Substantive Laws which come under CPC –

 Contracts Law – Property Law is a subset

 Family Law – It ensures partition of family properties
 Torts Law – MVA has separate tribunals
a. Kejrival vs. Arun Jaitley
b. Jay Shah vs. the Wire
c. MJ Akbar case vs. Many Girls

If ST bus knocks down it comes under motor vehicles act so not under civil court.

Relief under Constitutional Tort -

1. Facts must not be controverted - Sube Singh vs. Haryana

2. If life and liberty not in question, then not constitutional tort
3. If facts are to be decided upon, then not constitutional tort

If the facts need to be established, it goes to the civil courts.

GIFT – For immovable property, registration is required

For movable property, registration is not required

Remedies that a Civil Court can give -

 Injunction
 Attachment
 Arrest
a. Very sparsely used - When debtor cannot pay – He cannot be sent to Jail
 Jolly George Verghese vs. State of Kochin
 Receiver put on the property
Ways in which a property can move – Put into effect by the civil court

 Succession - From the dead to their heirs as per succession acts of different religions
 Transfer - Titles to property when there is a dispute of ownership
 Land Acquisition

Family arrangements dealt with by civil court. For e.g. CAM & SAM

 Hinduja Brothers Case {Property dispute in UK high court for equal distribution among
all brothers}

CPC S.79 TO 82 –

They deal with claims against government. If life and liberty is not in question – you won’t
go to HC and SC – only Civil Court

 Bhagalpur Blinding Case

 Rudul Shah Case
 Vidyavati Case {Road transport – Bus was under fatal accidents acts}
 Sarla Varma vs. BTC {Damages}
 Bibbens case vs narcotics board {America said that constitution is self-executing so
court must give compensation}

Court Jurisdiction -

 What matters can and can't be heard.

 Established either by a statute or by the constitution.
 A court cannot pass order without jurisdiction.
 If the order is passed, it can be challenged.
 The appellate court will strike it down if disputed by the party.

Article 32: Writ jurisdiction of Supreme Court, Only for contravention of fundamental rights

Article 226: For all legal rights - If aggrieved, go under section

A.136: Special Leave Petition

4 stages of Civil Court:

 Munsif Court at block level or City Civil Court (Pecuniary jurisdiction, small
causes court)
 District Court
 High Court (Bombay, Madras, Delhi (2cr), Calcutta, Himachal (10L)- OG
Jurisdiction)
 Supreme Court

OG Jurisdiction- Admiralty, Arbitration petitions, Testamentary petitions, Trademark,

Patents, Copyrights

Bombay HC appeal goes to the Division Bench, if not satisfied then A.134 (Appellate
jurisdiction of SC) or then A.136 (Special Leave Petition)

Letters Patent Appeal- patent that can be made requesting a bench to hear an appeal (Delhi,
Punjab and Haryana- in appellate jurisdiction)

Bombay HC has Letters Patent appeal under OG jurisdiction.

SECTION 10 (RES SUB JUDICE): Two litigation suits cannot be filed subsequently for the
same matter. To prevent multiplicity of suits.

Section 10 of CPC provides for stay of suit. The primary rule under stay of suit or rule of res
sub-judice prevents Courts of concurrent jurisdiction from simultaneously adjudicating upon
parallel litigation filed for the same cause of action, for the same matter and for the same
relief.

Order 7, Rule 10 & 11 : Court can either return your plaint (if court is convinced that
they do not have jurisdiction) or reject your plaint (if contract is against public policy and law
of the land; S.23 of Contracts Act)

Return of plaint: can be filed in another court with jurisdiction.

Rejection of plaint: cannot be filed in any other court as the foundation of the case is baseless.

RES JUDICATA
When any matter b/w two parties is heard and decided then in such a case the parties’
successors cannot file another suit if dissatisfied. They can only appeal.

“The principle of res judicata is based on the need of giving a finality to judicial decisions.
What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies
as between past litigation and future litigation. When a matter, whether on a question of fact
or a question of law, has been decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a higher Court or because the appeal
was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding
between the same parties to canvass the matter again.”  Res Judicata applies to all writ
petitions also. If you fail under S.226, you can apply under A. 136. If any case is dismissed
altogether by the HC, a person has to go and appeal before the labour court.

Cases:

 Daryao vs State of UP
 Workmen of Cochin Port Trust vs. Trustees of Cochin Port Trust
 S.P Chengalvaraya Naidu vs Jagannath (“come to the court with clean hands”)
 Devilal Modi vs CTO/STO (“constructive res judicata”- if you knew certain facts and did
not present them in your application, in the appeal court you may not bring these facts out
again; cannot withhold facts)
 Shipping Corporation vs Machado Brothers (every fact that you know which is relevant
in your case must be there in your plaint, if you fail to do so, the court can give absolutely
no relief. Pleadings must be complete)
 Nawab Malik case (same judgment as Devilal case)

Order 2, Rule 2: Court can give permission to bring in a new claim later in the case only
when there is no fixed amount of damages being claimed or any uncertainty.

S.12- Wherever you are debarred from making applications, you cannot make a case there. If
your case is dismissed (non-prosecution, abandon claim, new suit), you cannot file a new suit
after this. If abandoned, you cannot file a new claim for the same amount.

S.13-14 (foreign judgments)- States that the Indian court will not enforce a foreign judgment
if the judgment is not that of a competent court. Jurisdiction is considered when treaties and
orders are accepted by both the countries. Court will assume they have jurisdiction, it is on
the defendant to prove otherwise. To go against the order given by a foreign court, the
defendant must go to the embassy and further take any action, to avoid any misinterpretation
and misunderstanding.

Grounds you can challenge the order:

 Court not having jurisdiction

 Merits have not been applied
 Laws don’t apply properly
 No summons given by parties
 Obtained by fraud
 Opposed by natural justice
 Any breach of law in force in India

Dispute Resolution:

 Mention Seat: which law is going to apply (contract law)

 Venue: where it will be held
 Curial Law: Which arbitration law will apply (procedural arbitration law)

Principles of Natural Justice:

1) Person on whom action is taken must have notice of proceedings (sent service of summons
order 5 by the court to the person)

2) Judge should not be connected to the case

3) Speaking Order: thoroughly detailed order. A speaking order is an order that speaks for
itself. The order should stand the test of legality, fairness and reason at all the higher
appellate forums. That is, the order should contain all the details of the issue, clear findings
and a reasoned order. Judge should be making the speaking order. This is compulsory for the
court to understand the rationale behind the conclusion. (Order 11, Rule 20)

Case: McDonalds vs Connaught Plaza

Dispute would be decided in the HC of London. Vikram Bakshi was thrown out of board of
directors; got 70mn in compensation. He approached NCLT. McD said that NCLT has no
jurisdiction. Later agreed NCLT had jurisdiction because it was a company dispute matter.
Settled by McD giving 1200 crores to Bakshi.

S.7- Provincial Court (small causes courts in Delhi, Pune, etc)

Monetary- upto 10,000

Subject matter jurisdiction- landlord and tenant, lessor lessee, and leave and license
businesses.

Subject matter jurisdiction supersedes pecuniary jurisdiction in all civil matters. So even if
the amount exceeds the maximum, if connected to subject matter, it has to be filed in that
respective court

S.8- Presidency Courts (Madras, Mumbai, Calcutta)

S.9- Courts to try all civil suits unless barred. The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred.

Statues that have barred civil suits in civil courts:

1. IBC (approach the NCLT) - you go as the capacity of a creditor; assets will be liquidated
of all creditors.

2. Labour Laws

3. Company Law (NCLT, NCLAT, Supreme Court)

WHERE AND HOW CAN YOU FILE A SUIT?

S.15- Courts in which suits to be instituted- go to the lowest court competent to try.

S.16- Suits should be instituted where the subject matter has taken place. The law ensures
that cases relating to movable, immovable property are instituted in courts within local limits
of the property.

S.17- Testamentary matter

Immovable property with different jurisdiction, case can be filed in any of the places where
properties are situated. No letter of administration is required outside Bombay, Madras and
Calcutta. Eg: In case of an immovable property, a person can apply in a court where property
has the highest value. You can file a case in any of the places where your property is there.

Sometimes the jurisdiction can change, this could happen if the district has been divided. For
Eg: Thane being divided into Thane and Palghar. In such a case, you can still file your case in
any one of these districts.

S.18- Place of institution of suit where local limits of jurisdiction of Courts are uncertain- this
is no more applicable in today’s time since all jurisdictions have been divided accordingly.

S.19- Suits for compensation for wrongs to person or movable- (Claim in torts)

Jurisdiction of Court- either in the place where the matter happened or where the defendant
resides. Online articles of defamation, such suits can be filed “Wherever the person felt
aggrieved”.

S.20- Suit cannot be instituted where the plaintiff resides. Suit can only be filed where the
defendant resides or where the cause of action has occurred. Eg: Men from Kolhapur beat up
person from Mumbai, in Pune. Jurisdiction- Kolhapur and Pune.

Cases cannot be filed in multiple courts in case of more than 1 defendants, here you take
leave of court or case would be instituted where the cause of action took place.

Case: Patel Roadways vs Prasad Trading

S.21- Objection to Jurisdiction

If there is an objection to jurisdiction you must raise it at threshold or else the court will not
come to your rescue.

Q. Facts are more important or law?

Law is more important because even if the facts are in your favour you cannot go if there’s no
law.

Example, Hindu Succession Act

If the daughter asks for part in ancestral property before even if the facts were in her favour
there was no law to protect her right but now there is a right available.

Five grounds on which you fight a case: (except claiming that Court has no jurisdiction)

1. Legal rights, whether they are applicable or not. Cause of action.

2. Facts

3. Customs and usages of trade

4. Precedents (A.141- mentions importance of Precedents; important considering we are a

common law country)

5. Policy

S.23- Whenever there are multiple suits for the same property, the court will combine the
plaints together. It is known as ‘tagging’ them together.

S.25- Power of Supreme Court to transfer suits, etc. (K.K. Modi case)

S.26- When you make your plaint, you shall swear and verify your plaint (facts shall be
proved by affidavit)

When you file your plaint, there are certain rules you have to follow from the Court’s rule
book. This is because each court has their own rule book.

S.27 (should be written with Order V)- Once you have made your plaint against the
defendants, the defendants must know what your case is and so, all defendants must be sent
summons.

S.28- You have to send the summons to the registrar of court of jurisdiction and then the
bailiff will forward it to the defendant. This ensures the summons and a copy of the plaint
have been received by the defendant.

S.29- Foreign summons can be sent to the Sheriff’s office and they will further do the posting
through our embassy. Sheriff’s office is necessary so that the summons being sent and
received are ensured.

S.30- Power to order discovery and the like

S.31- Summons to witness- Witness’ credibility can be questioned.

S.33- Based on the judgment and reading, the court will pass a decree. Decree defines rights,
liabilities, and obligations of the parties.

----

Aspect of Interest: (S.34)

1. Part of contract

2. Interest during the course of the litigation- Interest Pendent Lite

3. Interest post decree

Cases:

1) Hyder Consulting UK v The Governor, Orissa

-In another case, McDermont v Burn Standard, the SC had held that the word sum post
decree would include original claim, the contractual interest or interest pendent lite. It is
mentioned in the Arbitration act that once the order is made by the arbitrator, the fees has to
be paid to them.

Interest on Interest:
1. Original claim
2. Contractual claim (for any delay)
3. Interest Pendent Lite
2) SL Arora vs State of Haryana

-There can be no provision of interest over interest. The interest should be over the principal
sum. Interest has to be put in the prayer.

Order 7, Rule 11: Order VII Rule 11 of CPC explains on the dismissal of plaints in specific
circumstances and conditions. It has referenced certain grounds based on which the courts
dismiss the plaints. One of them is not referencing the reason or the cause of action that the
offended party looks for against the respondent.

It is essential to decide upon the application of dismissal of the plaint under Order VII. The
litigant cannot be forced to record a written statement or a composed proclamation without
settling on such an application if any.
Cause for Action has been referenced under plenty of provisions in the CPC. It is a set of
claims or actualities which compensate for the grounds for accepting a civil suit. One
instance of the cause of action is under Order II Rule 2 of CPC. In that, it has been expressed
that to establish a lawsuit, the reason should be unequivocally referenced to in the plaint.

If it has not been referenced, at that point the plaint will be dismissed by the Court.

It is the sole motivation behind why a civil suit exists in any case. It determines the legitimate
damage which the individual who is founding a suit has endured. It likewise has the cure or
help which the offended party will request that the Court award.

The individual initiating such suit likewise needs to demonstrate specific components like: -

1. that there existed an obligation or a duty;

2. the event of a breach or break of that obligation;

3. the reason for such a breach; and

4. the harms inflicted by the offended party.

Along these lines, if the plaint does not affirm the facts which are required for facilitating the
case of the offended party, the plaint will be expelled by the Court referring to the
justification and grounds for such dismissal.

It is pertinent to note that one person should not be bothered twice for the same cause of
action. The real test for the adjudicating authorities is that the cases falling under these
provisions of CPC must reply the query that the case in the new suit is found upon an
alternate reason for the activity. In any case, the offended party is at full freedom to discard
any piece of the evidence.

For instance, ‘ABC’ rents an apartment from ‘XYZ’ at a lease of INR 100,000 per annum.
The contract for the entire of the years 2015, 2016 and 2017 is still pending and is yet to be
realised. ‘XYZ’ institutes an action against ‘ABC’ in 2019 for asserting the sum which was
expected. The suit was regarding the lease due in 2015. Hence, ‘XYZ’ cannot sue ‘ABC’
subsequently for the rent due for the rest of the years.

3) Mathai v S. Varkey

Executive proceedings were bought.

i. Plaint should be complete

ii. Check jurisdiction (Order 7, Rule 11)

iii. If court refuses to hear, you can take up the matter with the HC under revision application

4) Dahiben v. Arvind Bhai Bhanushali CA no.9519 of 2019 (related to Order 7, Rule 11)
https://www.livelaw.in/top-stories/non-payment-part-sale-consideration-not-ground-cancel-
sale-deed-159636

S.35: Costs
“Costs” shall mean reasonable costs relating to— (i) the fees and expenses of the witnesses
incurred; (ii) legal fees and expenses incurred; (iii) any other expenses incurred in connection
with the proceedings.
Order 1:-
1. Making of the plaint
2. Issue summons
3. Written statement received
I) see all original documents are there (inspection and discovery)
II) File the written statement
4. File an inspection report
In certain cases, you require inspection report when people make claims. (Controversy: Rohit
Shekhar case)

Caveat (S.148A)- A Caveat is a Notice given by a person, informing the Court that another

person may file a suit or application against him and that the Court must give the Caveator
(person filing the Caveat) a fair hearing before deciding any matter brought before it in the
relevant case. Caveat has a limit of 90 days. Caveator must send copy to caveatee. Court
would give him no relief unless the other party is heard.
Q. In a suit, you usually expect relief from court. The object you seek to get from court, if it
is siphoned off by defendants, what can you (read: plaintiffs) do to prevent it?
- The moment you file a suit, you should also file miscellaneous application for interim and
ad interim relief. (Order 38 and 39- ask for attachment of property, etc). This is known as
interlocutory orders.
Reliefs you can seek under Order 38, 39 and S.94 of CPC.
(Ad interim- giving the relief instantly; 15 days. If party (plaintiff) cannot convince the court
why the defendant is wrong and should give reliefs, the court will extend the order making it
an indefinite order)
Interlocutory orders are orders that are issued by a court while a case is still ongoing.
These orders are not meant to be final. When the case is concluded, any aspect of
an interlocutory order that has not become moot may be challenged in an appeal from the
final judgment.
Three things court must keep in mind during interlocutory order:
- It must cost irreparable damage to the person asking for relief
- should not cause any prejudice to the opposite party
- The one claiming such an order must have a chance of winning the case. (Balance of relief;
Court would understand based on the merits of the case)
Case: Khatau Family (fighting for partition)

In case of a third party involved, defendant can make the third party a party in his suit against
plaintiff. This way, the third party can also get damages. Whenever there is a dispute of
property, you must file in the sub registrar office an application known as Lis pendens.
(Lis pendens- a pending legal action)
Whenever a lis pendens is filed against a property, if someone buys such a property, he is
bound by the outcome of the suit. Anybody who is harmed by the outcome of the suit, they
can join the appeal. He can even join the trial.
Before you seek relief, there should be a cause of action.

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. Appointed in case of any immovable property.
If partners are fighting over accounts, you would appoint a commissioner.

Q. What is the function of a receiver?

- 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. The subject matter is generally a movable or immovable
property.
ORDER 1:-
Rule 1: "Who may be joined as plaintiffs"
All persons may be joined in one suit as plaintiffs where-

(a) any right to relief in respect of, or arising out of, the same act (cause of action) or
transaction or series of acts or transactions is alleged to exist in such persons, whether jointly,
severally or in the alternative; and

(b) if such persons brought separate suits, any common question of law or fact would arise
Eg: A, B, C gave money to X. Firm ABC seeks to get the money back from X. CPC says
when the firm is suing, the firm and atleast 2 partners should be plaintiffs. It is a statutory
requirements. The cause title will say ABC (registered firm) and partners A & B.

Eg: A government housing firm decides to allot 100 flats of low income, 60 of middle and 30
of high income groups on lottery basis. They promise that delivery will be given on 31 Dec
2019. On Jan 1 2020 they inform that there has been an expense overrun and everyone will
have to pay 10k, 20k and 30k more respectively else they won't get their flats. Can they all
join hands and file a suit against the government? This is covered in Order 1, Rule 8 of CPC.

Eg: A gives land to B to build flats. B says he will build 1bhk flats all same and sells to 30
people. He takes money from them but doesn't deliver the flats to anyone and keeps
everything pending. The flat owners found a group called C. Can A join C to sue?
Here, A may not join C; different cause of action.

Rule 2: Where it appears to the court that any joinder of plaintiffs may embarrass or delay the
trial of the suit, the court may put the plaintiffs to their election or order separate trials or
make such other order as may be expedient.
-If there are multiple questions to be answered, the court may separate the case.
Cases:
1. Selvi J.Jayalalithaa & Ors vs State Of Karnataka & Ors on 30 September, 2013 
2. Padmanabhaswamy temple case (Issue: Who will run the temple? Royal family or
Government of Kerala)

Rule 3: All persons may be joined in one suit as defendants where-

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of
acts or transactions is alleged to exist against such persons, whether jointly, severally or in
the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact
would arise.
- In US, this happened for Opioid cases.

Rule 4: Court may give judgment for or against one or more of joint parties.— Judgment may
be given without any amendment—
(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such
relief as he or they may be entitled to;
(b) against such one or more of the defendants as may be found to be liable, according to
their respective liabilities.
Eg: ABCD form an HUF. A Karta and B are a group (defendants). C and D want partition
(plaintiff) rule of filing suit is such that they have to put B as a defendant (no clue what this
means). Who will actually do partition? A, the Karta, giving it to C and D. No reliefs can be
gained from B as he is just a coparcener. A and B will carry on the business after the
partition. Although there are multiple defendants, court may pass order against only one of
them.
---
Rule 6: Joinder of Causes of Action- A plaintiff may unite in the same suit several causes of
action against the same defendant, or the same defendants jointly; and any plaintiffs having
cause of action in which they are jointly interested against the same defendant, or the same
defendants jointly may unite such causes of action in the same suit.
Examples: (R&E suits)
1. Mesne Profits- the profits of an estate received by a tenant in wrongful possession and
recoverable by the landlord.
2. A agrees to sell a fully furnished house to B. On due date, he did not give the fully
furnished house. B must have made an arrangement to give the house to C on lease. Now, B
may sue A and he may also make a claim of breach of contract. Here, B is entitled to Mesne
Profits.
3. A sells and delivers certain goods to B. A dies, C is executor. C also sells some goods to B.
Can C sue B for his and A’s damages?
– No, he cannot since these are two different cause of action.
4. A enters into five different agreements. Upon breach, they cannot come together and file
against A because they do not have a joint interest, all different cause of action.
Case: Compania Sansineena v Houlder Bros 1910 KB
Rule 8: Applies only to representative suits when there are large number of persons having
common interest in a suit. One or more of those persons with the permission of the court can
sue or be sued or defend the suit on behalf of others also.
Case: T.N Ganapati vs. T.N Housing Board
- Judgment: Although the cause of action is different, the interest of these people is common
(gets flats on due date and at contracted rate), therefore, they may come together in a class
action.
“Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under
sub-rule (1), may apply to the Court to be made a party to such suit.”
-Anybody with interest may join the suit. If any such person is not informed of such a suit, a
public advertisement may be made to call anybody with interest to join the suit.
“For the purpose of determining whether the persons who sue or are sued, or defend, have
the same interest in one suit, it is not necessary to establish that such persons have the same
cause of action as the person on whom behalf, or for whose benefit, they sue or are sued, or
defend the suit, as the case may be”
- Sometimes organisations file cases on behalf pf the consumers. Eg: Mumbai Grahak
Panchayat. The cause of action may not be common which allows consumer bodies to file on
behalf of the consumer.

Rule 8 (A): an unbias party (also expert) in court would be the amicus curae since they are
not a part of any parties.
Case: Lodha case
All residents came together against builder. Claim for damages and defamation.

Order 23: Withdrawal and Adjustment

Order 23, Rule 3B: No agreement or compromise to be entered in a representative suit
without leave of Court— (1) no agreement or compromise in a representative suit shall be
entered into without the leave of the Court expressly recorded in the proceedings; and any
such agreement or compromise entered into without the leave of the Court so recorded shall
be void.
- if there is a compromise, it has to be followed.
Q) If a compromise is not followed, can there be a contempt of court application made?
-Yes, but because of the time taken and fees, it would go on for years serving no purpose.

Evidence Act S.115- Estoppel

When one person has, by his declaration, act or omission, intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such person or
his representative, to deny the truth of that thing. Illustration A intentionally and falsely leads
B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The
land afterwards becomes the property of A, and A seeks to set aside the sale on the ground
that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
Case: Arjunlal Gupta v. Mriganka Mohan

Order 23, Rule 3B:

(2) Before granting such leave, the Court shall give notice in such manner as it may think fit
to such persons as may appear to it to be interested in the suit.
Explanation.—In this rule, "representative suit" means,—
 a suit under section 91 (public trusts) or section 92 ( public nuisance) ,
 a suit under rule 8 of Order I,
 a suit in which the manager of an undivided Hindu family sues or is sued as
representing the other members of the family,
 any other suit in which the decree passed may, by virtue of the provisions of this Code
or of any other law for the time being in force, bind any person who is not named as
party to the suit. (when there is a common interest, and the person has not joined the
suit, this order would still operate upon him)
- When a decree is to be executed, it is an administrative job. Therefore, the court makes sure
that the decree is followed. To come into a conclusion about the decree is an adjudication job.
- All those interested in the suit should be given a notice.
- There can be a representative against nuisance as well.

How a matter is tried under the CrPC:

1. Investment
2. Prosecution
3. Actual Adjudication (trial)

Q. Section 245 of the companies act mentions class action suit (eg damages against director).
Can shareholders file a representative suit against board of directors?
- No, they have to go to the NCLT.
Necessary Party- (Order 1, Rule 9) (https://www.lawnotes4u.in/2018/10/necessary-and-
proper-parties-under-cpc-difference.html)
- in a suit for partition, all sharers are necessary party.
- in a suit for declaration to set aside public auction, purchase oof property in a public auction
is a necessary party.
- in an action against selection and appointment by an authority, candidates who are selected
and appointed are directly affected and therefore, they are necessary parties.

Rule 10:
- If there is no plaintiff, there is no suit. Sometimes, court can appoint a substitute plaintiff.
10 (2)- Court may strike out or add parties.—The Court may at any stage of the proceedings,
either upon or without the application of either party, and on such terms as may appear to the
Court to be just, order that the name of any party improperly joined, whether as plaintiff or
defendant, be struck out, and that the name, of any person who ought to have been joined,
whether as plaintiff or defendant, or whose presence before the Court may be necessary in
order to enable the Court effectually and completely to adjudicate upon and settle all the
questions involved in the suit, be added.
Intervenor is a person that is only interested in the outcome of a suit
- Disability under law- minors and those of unsound mind
- Example: There is a dispute between A and B over property. C files as an intervenor saying
even he was sold that land. So now, A has to file a new plaint, give it to C and B.

Rule 11: The court may give the conduct of a suit to such a persons as it deems proper.

Rule 12: If there are multiple Plaintiffs and Defendants, you can have one Plaintiff and one
Defendant. Others will give their authority. Example: Incase of HUF suit, only Karta would
go.

Rule 13: All objections on the ground of non- joinder or misjoinder of parties shall be taken
at the earliest possible opportunity and, in all cases where issue are settled, at or before such
settlement, unless the ground of objection has subsequently arisen, and any such objection
not so taken shall be deemed to have been waived.
- A cause of action should arise between the parties
- When a suit is adjudicated, reliefs must be given to the party
- If daughters were named in an HUF suit prior 2004, they would be considered unnecessary
parties and they would be considered misjoinders. (Order 1, Rule 10 (2)). Now, in the present
year, they are considered necessary parties so they have to be mentioned in any
dispute/claims as a part of the share goes to them also. If their name is not there, it would be
considered a non-joinder.
- Example: A, B, C, D are co-sharers. A files a suit for partition. Therefore, B, c and D are
necessary parties.

Case: Dwarka Prasad vs Harikant Prasad (https://www.tclindia.in/vendor-is-a-necessary-

party-in-a-suit-for-specific-performance-against-purchaser/)
-Vendor is a necessary party in a suit for specific performance against purchaser

ORDER 2:- FRAME OF SUIT

Rule 1: Every suit shall as far as practicable be framed so as to afford ground for final
decision upon the subjects in dispute and to prevent further litigation concerning them.
- A contract should be such that it incorporates all the recitals

Rule 2: Relinquish and omit a part of claim to sue within the jurisdiction of a court. The part
relinquished and omitted cannot be claimed later.
Rule 2 Explanation (as per bare act): For the purposes of this rule an obligation and a
collateral security for its performance and successive claims arising under the same
obligation shall be deemed respectively to constitute but one cause of action.
- All claims against the defendant should be claimed at the same time.
Case: Dahiben Case- in a cause of action, relief was left over.
Q. A borrows from B, C is the guarantor. If A does not mention this in the contract, can A
claim any amount from C later? (Rule 2 Explanation)
- No.

Rule 3: When there are multiple dealings of the same person with the same amount of people,
they try to take action together in one common suit. Although the rule mentions that you can
combine the suits, you cannot do that in real life.
Example: A lends to B without security loan of 5 lacs. Again 10 lacs. C is guarantor. Here, if
there is a suit, they cannot be combined because in the first loan, there was no guarantor.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall
depend on the amount or value of the aggregate subject-matters at the date of instituting the
suit. (Base on the sum aggregate of the suit, you approach the DC/HC/SC accordingly)
Rule 4: Only certain claims to be joined for recovery of immovable property— No cause of
action shall, unless with the leave of the Court, be joined with a suit for the recovery of
immovable property, except—
 claims for mesne profits or arrears of rent in respect of the property claimed or any
part thereof;
 claims for damages for breach of any contract under which the property or any part
thereof is held; and
 claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for
foreclosure or redemption from asking to be put into possession of the mortgaged property.
- there are court assisted valuers who help the court to understand the value of a property.
They do that by taking out the mean rate from the registrar’s office.
- A notarized rent deed is not valid
- Every deed should be registered at the Registrar’s office
- If any deed is not registered, it is inadmissible in the court (as evidence).
-Redemption allows individuals who have defaulted on their mortgages the ability to reclaim
their property by paying the amount due (plus interest and penalties) before the foreclosure
process begins, or, in some states, even after a foreclosure sale (for the foreclosure price, plus
interest and penalties).
- https://www.investopedia.com/terms/r/right-of-redemption.asp

Rule 5: Claims by or against executor, administrator or heir— No claim by or against an

executor, administrator or heir, as such, shall be joined with claims by or against him
personally unless the last mentioned claims are alleged to arise with reference to the estate in
respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir,
or are such as he was entitled to, or liable for, jointly with the deceased person whom he
represents.

Rule 6: Power of Court to separate trials— Where it appears to the Court that the joinder of
causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the
Court may order separate trials or make such other order as may be expedient in the interests
of justice.
Case: Syedna case
COA- She died leaving estate. Court ordered separate trials.

Rule 7: Objections as to misjoinder— All objections on the ground of misjoinder of causes of

action shall be taken at the earliest possible opportunity and, in all cases where issues are
settled, at or before such settlement unless the ground of objection has subsequently arisen,
and any such objection to so taken shall be deemed to have been waived.
Example: A is a manufacture of goods transferred by carrier B. One time B did not have
trucks so he suggested C. Now goods are destroyed because C got into an accident. A files a
suit against B. Is the suit against B maintainable?
- No. Therefore, B can raise objections in the very start. Here, there is no sub-contracting
done from B to C, so he cannot be held maintainable.
In case in this example, the court had ignored B’s appeal and continued the case and held him
maintainable, B would have to file for an appeal.

ORDER 3:-
Rule 1: Appearances, etc., may be in person, by recognized agent or by pleader— Any
appearance, application or act in or to any Court, required or authorized by law to be made or
done by a party in such Court, may, except where otherwise expressly provided by any law
for the time being in force, be made or done by the party in person, or by his recognized
agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:
Provide that any such appearance shall, if the Court so directs, be made by the party in
person.
Example: Vijay Mallya
Case: Standard Chartered Bank v ED (Doctrine of Alter Ego)
- https://www.mondaq.com/india/asset-finance/729666/secured-creditors-v-enforcement-
directorate-right-to-attachment-of-property
Rule 2: Recognized agent— the recognized agent of parties by whom such appearances,
applications and acts may be made or done are—
 persons holding powers-of-attorney, authorizing them to make and do such appearances,
applications and acts on behalf of such parties;
 persons carrying on trade or business for and in the names of parties not resident within
the local limits of the jurisdiction of the Court within which limits the appearance,
application or act is made or done, in matters connected with such trade or business only,
where no other agent is expressly authorized to make and do such appearances,
applications and acts.
- This rule mainly applies for corporate cases
- You can act as a counsel in another court outside jurisdiction but there must be a local
advocate.
Rule 3: Service of process on recognized agent— (1) Process served on the recognized agent
of a party shall be as effectual as if the same had been served on the party in person, unless
the Court otherwise directs.
(2) The provisions for the service of process on a party to a suit shall apply to the service of
process on his recognized agent.

Rule 4: Appointment of pleader— (1) No pleader shall act for any person in any Court,
unless he has been appointed for the purpose by such person by a document in writing signed
by such person or by his recognized agent or by some other person duly authorized by or
under a power-of-attorney to make such appointment.
(2) Every such appointment shall be deemed to be in force until determined with the leave of
the Court by a writing singed by the client or the pleader, as the case may be, and filed in
Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so
far as regards the client.
-If you client feels that the advocate is of no good, he is free to change the advocate.
--
Rule 5: Service of process on pleader—Any process served on the pleader who has been duly
appointed to act in Court for any party or left at the office or ordinary residence of such
pleader, and whether the same is for the personal appearance of the party or not, shall be
presumed to be duly communicated and made known to the party whom the pleader
represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if
the same had been given to or served on the party in person.

Rule 6: Agent to accept service— (1) besides the recognized agents described in rule 2 any
person residing within the jurisdiction of the Court may be appointed an agent to accept
service of process.
(2) Appointment to be in writing and to be filed in Court—Such appointment may be special
or general and shall be made by a instrument in writing signed by the principal, and such
instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.
(3)The Court may, at any stage of the suit, order any party to the suit not having a recognised
agent residing within the jurisdiction of the Court, or a pleader who has been duly appointed
to act in the Court on his behalf, to appoint, within a specified time, an agent residing within
the jurisdiction of the Court to accept service of the procession his behalf.

ORDER 4:-
1. Rule 1: Suit to be commenced by plaint— (1) Every suit shall be instituted by presenting
a plaint to the Court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are
applicable.
- Make the plaint according to the court rule book.

2. Register of suits— The Court shall cause the particulars of every suit to be entered in a
book to be kept for the purposes and called the resister of civil suits. Such entries shall be
numbered in every year according to the order in which the plaints are admitted.
- Hamdast service: personally go to the defendant’s house to deliver a document

ORDER 5:-
1. Summons— (1)When a suit has been duly instituted a summons may be issued to the
defendant to appear and answer the claim on a day to be therein specified:
Provided that no such summons shall be issued when the defendant has appeared at the
presentation of the plaint and admitted the plaintiff's claim :
A defendant to whom a summons has been issued under sub-rule (1) may appear—
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions relating to the suit,
or
(c) by a pleader accompanied by some person able to answer all such questions.
Every such summons shall be signed by the Judge or such officer as he appoints, and shall be
sealed with the seal of the Court.
- The front page of summons will always be the court’s order.

In the First Schedule to the Code,–– (A) in the Order V, in Rule 1, in sub-rule (1), for the
second proviso, the following proviso shall be substituted, namely:––
“Provided further that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the written statement on such other day, as
may be specified by the Court, for reasons to be recorded in writing and on payment of such
costs as the Court deems fit, but which shall not be later than one hundred twenty days from
the date of service of summons and on expiry of one hundred twenty days from the date of
service of summons, the defendant shall forfeit the right to file the written statement and the
Court shall not allow the written statement to be taken on record.”;

Cases:
1. Rani Kusum vs Kanchan Devi (2005)
- “procedure of law should not become the master of substantive law”
- Issue: whether the period of filing written statement can be extended beyond the time period
which is prescribed under Order VIII Rule 1 of the Civil Procedure Code, 1908.
- Held that the petitioner had provided sufficient reasons in his application seeking extension
of time but without giving due consideration to those reasons, the trial court had rejected his
application. The Court set aside the order of the trial judge and ordered that the written
statement of the petitioner shall be taken on record.
- will only operate for ordinary civil suits, not commercial.

2. Sangram Singh v Election Tribunal Kota by Vivian Bose

- held that the 90 days period is directory but not mandatory.

After this, a new act was introduced- Commercial Courts Act of 2015
Written Statement: 30 days and maximum extension upto 120 days.
Amount: fixed at 1 crore, but was later reduced to 3 lacs (case would go to City Civil Court)
Jurisdiction of any commercial court- District Court

Rule 2: Copy or statement annexed to summons— every summons shall be accompanied by a

copy of the plaint or, if so permitted, by a concise statement.
- The plaint should be sent with every summons so that the defendant knows the issues and
can proceed with a written statement.

Rule 3: Court may order defendant or plaintiff to appear in person— (1) where the Court sees
reason to require the personal appearance of the defendant, the summons shall order him to
appear in person in Court on the day therein specified.
(2) Where the Court sees reason to require the personal appearance of the plaintiff on the
same day, it shall make an order for such appearance

Rule 4: No party to be ordered to appear in person unless resident with certain limits— No
party shall be ordered to appear in person unless he resides—
(a) Within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at place less than fifty or (where there is railway or steamer
communication or other established public conveyance for five-sixths of the distance between
the place where he resides and the place where the Court is situate) less than two hundred
miles distance from the Court-house.

Rule 5: Summons to be either to settle issues or for final disposal— The Court shall
determine, at the time of issuing the summons, whether it shall be for the settlement of issues
only, or for the final disposal of the suit; and the summons shall contain a direction
accordingly:
Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the
final disposal of the suit.
- if you are aggrieved by the list of questions which the court asks, you can seek relief under
order 14

Rule 6: Fixing day for appearance of defendant— The day for the appearance of the
defendant shall be fixed with reference to the current business of the Court, the place of
residence of the defendant and the time necessary for the service of the summons; and the day
shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer
on such day.
- Fixed day for the first hearing

Rule 7: Summons to order defendant to produce documents relied on by him— the summons
to appeal and answer shall order the defendant to produce all documents in his possession or
power upon which he intends to rely in support of his case.

Rule 8: On issue of summons for final disposal, defendant to be directed to produce his
witnesses— where the summons is for the final disposal of the suit, it shall also direct the
defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence
he intends to relay in support of his case.
- Both parties submit a list of witnesses in prior

Rule 9: Delivery or transmission of summons for service— (1) Where the defendant resides
within the jurisdiction of the Court in which the suit is instituted, or has an agent resident
within that jurisdiction who is empowered to accept the service of the summons, the
summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer
to be served by him or one of his subordinates.

Q. If suppose Plaintiff sends a speed post to the defendant and he complains that it should be
registered post. Can the defendant complain about it? – No.
(2) The proper officer may be an officer of a Court other than that in which the suit is
instituted, and, where he is such an officer, the summons may be sent to him by post or in
such other manner as the Court may direct.
- Example: Sheriff’s office sending summons to defendants who stay abroad.

Rule 9 A: Summons given to the plaintiff for service.- (1) The Court may, in addition to the
service of summons under Rule 9,on the application of the plaintiff for the issue of a
summons for the appearance of the defendant, permit such plaintiff to effect service of such
summons on such defendant and shall, in such a case, deliver the summons to such plaintiff
for service.
(2) The service of such summons shall be effected to or on behalf of such plaintiff by
delivering or tendering to the defendant personally a copy thereof signed by the Judge or such
officer of the Court as he may appoint in this behalf and sealed with the seal of the Court or
by such mode of service as is referred to in sub-rule (3) or rule 9.
(3) The provisions of Rules 16 and 18 shall apply to a summons personally served under this
rule as if the person effecting service were a serving officer.
(4) If such summons, when tendered, is refused or it the person served refuses to sign an
acknowledgment of service or for any reason such summons is not be served personally,. The
Court shall, on the application of the party, re-issue such summons to be served by the Court
in the same manner as a summons to a defendant.
- The court will make it and send it through the bailiff.

Rule 10: Mode of service— Service of the summons shall be made by delivering or tendering
a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed
with the seal of the Court.
- You have to serve a copy to all the defendants directly or their agent (lawyer appointed by
him)

Q. Where will you issue the summons for appeal? Directly send it to the defendant and he
would give it to a lawyer.

Rule 11: Service on several defendants— Save as otherwise prescribed, where there are more
defendants than one, service of the summons shall be made on each defendant.
- If the agent is also a party to a suit, it is okay, but if they are not, it is as dangerous as giving
it to a lawyer.
Rule 12: Service to be on defendant on person when practicable, or on his agent— Wherever
it is practicable service shall be made on the defendant in person, unless he has an agent
empowered to accept service, in which case service on such agent shall be sufficient.

Rule 13: Service on agent by whom defendant carries on business— (1) In a suit relating to
any business or work against a person who does not reside within the local limits of the
jurisdiction of the Court from which the summons is issued, service on any manager or agent,
who, at the time of service, personally carries on such business or work for such person
within such limits, shall be deemed good service.
(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the
owner or chartered.

Rule 14: Service on agent in charge in suits for immovable property— Where in a suit to
obtain relief respecting, or compensation for wrong to, immovable property, service cannot
be made on the defendant in person, and the defendant has no agent empowered to accept the
service, it may be made on any agent of the defendant in charge of the property.

Rule 15: Where service may be on an adult member of defendant's family— Where in a suit
the defendant is absent from his residence at the time when the service of summons is sought
to be effected on his at his residence and there is no likelihood of his being found at the
residence within a reasonable time and he has no agent empowered to accept service of the
summons on his behalf service may be made on any adult member of the family, whether
male or female, who is residing with him.
- we cannot have any such scheme now.
- Explanation.—A servant is not a member of the family within the meaning of this rule.

Rule 16: Person served to sign acknowledgement— Where the serving officer delivers or
tenders a copy of the summons to the defendant personally, or to an agent or other person on
his behalf, he shall require the signature of the person to whom the copy is so delivered or
tendered to an acknowledgement of service endorsed on the original summons.
- if receiver is a minor, it will be considered as a bad service therefore no service.

Rule 17: Procedure when defendant refuses to accept service, or cannot be found— Where
the defendant or his agent or such other person as aforesaid refuses to sign the
acknowledgement, or where the serving officer, after using all due and reasonable diligence,
cannot find the defendant, [127][who is absent from his residence at the time when service is
sought to be effected on him at his residence and there is no likelihood of his being found at
the residence within a reasonable time] and there is no agent empowered to accept service of
the summons on his behalf, nor any other person on whom service can be made, the serving
officer shall affix a copy of the summons on the outer door or some other conspicuous part of
the house in which the defendant ordinarily resides or carries on business or personally works
for gain, and shall then return the original to the Court from which it was issued, with a report
endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances
under which he did do, and the name and address of the person (if any) by whom the house
was identified and in whose presence the copy was affixed.
- Example: If the party has office hours at odd times, the bailiff cannot come at the same
time. The bailiff could ask two neighbours of the party, take their signature and leave it
outside his door.

Rule 18: Endorsement of time and manner of service— The serving officer shall, in all cases
in which the summons has been served under rule 16, endorse or annex, or cause to be
endorsed or annexed, on or to the original summons, a return stating the time when and the
manner in which the summons was served, and the name and address of the person (if any)
identifying the person served and witnessing the delivery or tender of the summons.

Rule 19: Examination of serving officer.— Where a summons is returned under rule 17, the
Court shall, if the return under that rule has not been verified by the affidavit of the serving
officer, and may, if it has been so verified, examine the serving officer on oath, or cause him
to be so examined by another Court, touching his proceedings, and may make such further
enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly
served or order such service as it thinks fit.
- The court can consider this as summons sent or order to send it again.

Rule 20: Substituted service

(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping
out of the way for the purpose of avoiding service, or that for any other reason the summons
cannot be served in the ordinary way, the Court shall order the summons to be served by
affixing a copy thereof in some conspicuous place in the Court-house, and also upon some
conspicuous part of the house (if any) in which the defendant is known to have last resided or
carried on business or personally worked for gain, or in such other manner as the Court thinks
fit.
- Summons are stuck on defendant’s door and also in the high court.
(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a
newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the
defendant is last known to have actually and voluntarily resided, carried on business or
personally worked for gain.]
- Newspaper advertising can only be done when the bailiff has exhausted all means.
Advertisement should be put in a language known to defendant. Once published, bailiff is
supposed to buy three copies of the newspaper and file an affidavit of service with the
acknowledgement.
(2) Effect of substituted service—Service substituted by order of the Court shall be as
effectual as if it had been made on the defendant personally.
- Pasting and Advertising
(3) Where service substituted, time for appearance to be fixed—Where service is substituted
by order of the Court, the Court shall fix such time for the appearance of the defendant as the
case may require.
-The court normally gives 30 days after summons being delivered.

Rule 21: Service of summons where defendant resides within jurisdiction of another Court—
A summons may sent by the Court by which it is issued, whether within or without the State,
either by one of its officers or by post to any Court (not being the High Court) having
jurisdiction in the place where the defendant resides.
- the summons’ copy will be sent to district court and not high court since all high courts do
not have original jurisdiction for the same.

Rule 22: Service within presidency-towns of summons issued by Courts outside— Whereas
summons issued by any Court established beyond the limits of the towns of Calcutta, Madras
and Bombay is to be served within any such limits, it shall be sent to the Court of Small
Causes within whose jurisdiction it is to be served.

Rule 23: Duty of Court to which summons is sent— The Court to which a summons is sent
under rule 21 or rule
shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then
return the summons to the Court of issue, together with the record (if any) of its proceedings
with regard thereto.

Rule 24: Service on defendant in prison— Where the defendant is confined in a prison, the
summons shall be delivered or sent by post or otherwise to the officer in charge of the prison
for service on the defendant.

Rule 25: Service where defendant resides out of India and has no agent— Where the
defendant resides out of India and has no agent in India empowered to accept service, the
summons shall be addressed to the defendant at the place where he is residing and sent to him
by post, if there is postal communication between such place
- You can send it to the party through the sheriff’s office for proof of posting.
Rule 26 and 26 A:
- Sent through embassies

Rule 27: Service on civil public or on servant of railway officer or on servant of railway
company or local authority— Where the defendant is a public officer (not belonging to the
Indian military naval or air forces, or is the servant of a railway company or local authority,
the Court may, if it appears to it that the summons may be most conveniently so served, send
it for service on the defendant to the head of the office in which he is employed together with
a copy to be retained by the defendant.
- can be done at the office they are at.

Rule 28: Service on soldiers, sailors or airmen— Where the defendant is a soldier, sailor or
airman, the Court shall send the summons for service to his commanding officer together
with a copy to be retained by the defendant.
- have to send it to Army itself

Rule 29: Duty of person to whom summons is delivered or sent for service—
(1) Where a summons is delivered or sent to any person for service under rule 24, rule 27 or
rule 28, such person shall be bound to serve it if possible and to return it under his signature,
with the written acknowledgement of the defendant, and such signature shall be deemed to be
evidence of service.
(2) Where from any cause service is impossible, the summons shall be returned to the Court
with a full statement of such cause and of the steps taken to procure service, and such
statement shall be deemed to be evidence of non-service.

Rule 30: Substitution of letter for summons—

(1) The Court may, notwithstanding anything hereinbefore contained, substitute for a
summons a letter signed by the Judge or such officer as he may appoint in this behalf, where
the defendant is, in the opinion of the Court, of a rank entitling him to such mark of
consideration.
A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in
a summons, and, subject to the provisions of sub-rule (3), shall be treated in all respects as a
summons.
A letter so substituted may be sent to the defendant by spot or by a special messenger
selected by the Court, or in any other manner which the Court thinks fit; and where the
defendant has an agent empowered to accept service, the letter may be delivered or sent to
such agent.
- It is a summons, not an order.
- If you send a summons to a governor, it would not be called summons, but a letter of the
court.
Case: Ashok Chavan vs Governor

 “The king is dead. Long live the king”- the institution of the king will be perpetual. This
concept was explained by Max Weber: Rational Legal Authority

ORDER 6:-

Rule 1: Pleading

Rule 2: Pleading to state material facts and not evidence— (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.
Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively,
each allegation being, so far as is convenient, contained in a separate paragraph.
Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
- You do not quote the law here. When you write a Cause of action, it is understood that there
is a law backing it.
- Evidence becomes supporting and attachment to the plaint.

Rule 3: Forms of pleading— The forms in Appendix A when applicable, and where they are
not applicable forms of the like character, nearly as may be, shall be used for all pleadings.  
- When you plead, you have to go to the annexure and they would tell you how to plead.

Rule 3A: Forms of pleading in Commercial Courts––In a commercial dispute, where forms of
pleadings have been prescribed under the High Court Rules or Practice Directions made for
the purposes of such commercial disputes, pleadings shall be in such forms.;

Rule 4: Particulars to be given where necessary— In all cases in which the party pleading
relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and
in all other cases in which particulars may be necessary beyond such as are exemplified in the
forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
- What happens when you plead these things? The contract under which the cause of action
exists, becomes void or voidable.

Rule 5: Further and better statement, or particulars— A further and better statement of the
nature of the claim or defence, or further and better particulars of any matter stated in any
pleading, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be
just.

Rule 6: Condition precedent— Any condition precedent, the performance or occurrence of

which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff
or defendant, as the case may be; and, subject thereto, an averment of the performance or
occurrence of all conditions precedent necessary for the case of the plaintiff or defendant
shall be implied in his pleading.
- Example: A makes a will. Is the will operative when A is alive? – No.
- If the outcome of the contract were to depend on some incident, that incident has to be
mentioned in the court.

Rule 7: Departure— No pleading shall, except by way of amendment, raise any new ground
of claim or contain any allegation of fact inconsistent with the previous pleadings of the party
pleading the same.
- Inconsistent pleadings cannot be made

Rule 8: Where a contract is alleged in any pleading, a bare denial of the same by the opposite
party shall be construed only as a denial in fact of the express contract alleged or of the
matters of fact from which the same may be implied and not as a denial of the legality or
sufficiency in law of such contract.
- A contract can be denied on two grounds- actuals facts or, contract that cannot be acted
upon (legality of contract)
- B sells a plot to A as an individual. Can there be a third party involving in this transfer? No.

Rule 9: Effect of document to be stated.— Wherever the contents of any document are
material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible,
without setting out the whole or any part thereof, unless the precise words of the document or
any part thereof are material.
- Anything where material is mentioned, is a document.
Rule 10: Malice, knowledge, etc.,— Wherever it is material to allege malice, fraudulent
intention, knowledge or other condition of the mind of any person, it shall be sufficient to
allege the same as a fact without setting out the circumstances from which the same is to be
inferred.
- This material can be inferred during cross examination of witness.

Rule 11: Notice— Wherever it is material to allege notice to any person of any fact, mater or
thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms
of such notice, or the circumstances from which such notice is to be inferred are material.
- Notice has to be sent to the government. If not sent, the procedure has not been followed.
Therefore, the suit is not considered.
- You may mention what the notice is and present it as an exhibit.

Rule 12: Implied contract, or relation— Wherever any contract or any relation between any
persons is to be implied from a series of letters or conversations or otherwise from a number
of circumstances it shall be sufficient to allege such contract or relation as a fact, and to refer
generally to such letter, conversations or circumstances without setting them out in detail.
And if in such case the person so pleading desires to rely in the alternative upon more
contracts or relations than one as to be implied from such circumstances, he may state the
same in the alternative.
- Example: A exports his goods and B is a carrier. B suggests C since he does not have a
carrier at the moment. Goods get destroyed. A wants to sue both. Therefore, all those
conversations must be shown to prove Cause of action.

Rule 13: Presumptions of law— Neither party need in any pleading allege any matter of fact
which the law presumes in his favour or as to which the burden of proof lies upon the other
side unless the same has first been specifically denied (e.g. consideration for a bill of
exchange where the plaintiff sues only on the bill and not for the consideration as a
substantive ground of claim.)
- What happens to a man who has not been heard of in the last 7 years? He is presumed to be
dead. Therefore, you will mention it properly that he has not been heard by anyone in the last
7 years. It has to be proved in court. This means there are many measures to be taken to prove
that he is unheard of and dead. Now, if a person has disappeared, initially an FIR would be
filed. From that date of FIR, the period of 7 years would start and later be taken into
consideration.

Rule 14: Pleading to be signed— Every pleading shall be signed by the party and his pleader
(if any):
Provided that where a party pleading is, by reason of absence or for other good cause, unable
to sign the pleading it may be signed by any person duly authorized by him to sign the same
or to sue or defend on his behalf.

Rule 14 A: Address for service of notice— (1) Every pleading, when filed by a party, shall be
accompanied by a statement in the prescribed form, signed as provided in rule 14, regarding
the address of the party.
(5) Where the registered address of a party is discovered by the court to be incomplete, false
or fictitious, the Court may, either on its own motion, or on the application of any party, order
—
In the case where such registered address was furnished by a plaintiff, stay of the suit, or
- if the address of the plaintiff is not known, the suit stays.
In the case where such registered address was furnished by a defendant, his be struck out and
he be placed in the same position as if he had not put up and defence.
- if the address of the defendant is not known, the suit is struck out.
(Anton Piller Orders. John Doe-The Anton Piller order is a form of discovery preservation
granted on an ex-parte application)

Where a suit is stayed or a defence is struck out under sub- rule (5), the plaintiff or, as the
case may be, the defendant may, after furnishing his true address, apply to the Court for an
order to set aside the order of stay or, as the case may be, the order striking out the defence.
- you may give your correct address and subsequently get your case on board.
the Court, if satisfied that the party was prevented by any sufficient cause from filing the true
address at the proper time, shall set aside the order of stay or order striking out the defence,
on such term as to costs or otherwise as it thinks fit and shall appoint a day for proceeding
with the suit or defence, as the case may be.
Nothing in this rule shall prevent the Court from directing the service of a process at any
other address, if, for any reason, it thinks fit to do so.]
- Once they permit you they may take your proper address.

Rule 15: Verification of pleadings— (1) Save as otherwise provided by any law for the time
being in force, every pleading shall be varied at the foot by the party or by one of the parties
pleading or by some other person proved to the satisfaction of the Court to be acquainted with
the facts of the case.
The person verifying shall specify, by reference to the numbered paragraphs of the pleading,
what he verifies of his own knowledge and what he verifies upon information received and
believed to be true.
- The client is not usually aware of the legal terms. Therefore, what he knows directly are the
facts What is “believes to be true” are the points his lawyer makes.
The verification shall be signed by the person making it and shall state the date on which and
the place at which it was signed.

Rule 16: Striking out pleadings— The Court may at any stage of the proceedings order to be
struck out or amended any matter in any pleading—
which may be unnecessary, scandalous, frivolous or vexatious, or
which may tend to prejudice, embarrass or delay the fair trail of the suit, or
which is otherwise an abuse of the process of the Court.
- In such suits, only the particular detail which may be scandalous or frivolous in nature may
be struck out unless it is extremely relevant to the suit.
- This is known as Facts in issue evidence act
- Fact in issue means the matters which are in dispute or which form the subject of
investigation. When a case comes before the court, it is most important that the facts in
controversy should first be determined as because the evidence tendered must be relevant and
pertinent to the points in issue.
- Example: A daughter argues for her father’s will saying that her brother does not deserve a
share because he is part of a gang. This argument would not be relevant. Even if the father
had removed the brother out of the house and posted an advertisement saying that the son is a
no good (vagabond), this would be a relevant fact but if this property was an ancestral
property, it would not matter.

Rule 17: Amendment of pleadings— The Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such manner and on such terms as may be just,
and all such amendments shall be made as may be necessary for the purpose of determining
the real questions in controversy between the parties.
Cases:
1. Revajeetu builders v Narayanaswamy and sons (2009)
Issue: Whether a change can be made after the trial has started?
- Court said that upto the date of judgment you can always file an application

2. Ram Narayan Kajaria vs Sheo Prakash Kajaria (2015)

- In this case, Ram Narayan wanted to withdraw his admissions made. Court held that it is not
permissible.
Rule 18: Failure to amend after order— If a party who has obtained an order for leave to
amend does not amend accordingly within the time limited for that purpose by the order, or if
no time is thereby limited then within fourteen days from the date of the order, he shall not be
permitted to amend after the expiration of such limited time as aforesaid or of such fourteen
days, as the case may be, unless the time is extended by the Court.

ORDER 7- PLAINT:-
Rule 1: Particulars to be contained in plaint— The plaint shall contain the following
particulars:—
 the name of the Court in which the suit is brought ;
 the name, description and place of residence of the plaintiff;
 the name, description and place of residence of the defendant, so far as they can be
ascertained;
 where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect;
 the facts constituting the cause of action and when it arose;
- Cause of action determines which court has jurisdiction.
 the facts showing that the Court has jurisdiction;
 the relief which the plaintiff claims;
 where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction
and of court fees, so far as the case admits.

Rule 2: In money suits— where the plaintiff seeks the recovery of money, the plaint shall
state the precise amount claimed:
But where the plaintiff sue for mesne profits, or for an amount which will be found due to
him on taking unsettled accounts between him and the defendant (this usually occurs when
there is a dissolution of partnership), or for movables in the possession of the defendant, or
for debts of which the value he cannot, after the exercise of reasonable diligence, estimate,
the plaint shall state approximately the amount or value sued for.
- In such cases, you may take the court’s permission and use the approximate amount. Two
factors to be considered- Jurisdiction and Court fees
- If you file a rent case in court only, you cannot file n eviction case later. The case should be
filed as Rent and Recovery suit.
Rule 3: Where the subject-matter of the suit is immovable property— Where the subject-
matter of the suit is immovable property, the plaint shall contain a description of the property
sufficient to identify it, and, in case such property can be identified by boundaries or numbers
in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

Rule 4: When plaintiff sues as representative— Where the plaintiff sues in a representative
character the plaint shall show not only that he has an actual existing interest in the subject-
matter, but that he has taken the steps (if any) necessary to enable him to institute a suit
concerning it.
- Plaintiff sues as the representative when he is presented by an agent.
- What are necessary steps you have to take when a company files a suit for recovery? –
Legal officer, Director, etc of the company.

Rule 5: Defendant's interest and liability to be shown— The plaint shall show that the
defendant is or claims to be interested in subject-matter, and that he is liable to be called upon
to answer the plaintiff's demand.
- You have to clearly mention how the defendant is liable and becomes the defendant in your
case.

Rule 6: Grounds of exemption from limitation law— Where the suit is instituted after the
expiration of the period prescribed by the law of limitation, the plaint shall show the ground
upon which exemption from such law is claimed:
Provided that the Court may permit the plaintiff to claim exemption from the law of
limitation on any ground not set out in the plaint, if such ground is not inconsistent with the
grounds set out in the plaint.
- If your suit is beyond the limitations, you must mention the exact nature of exemption that
you are claiming by mentioning the sections of the limitations act that you are referring to.
- If you (read: plaintiff) could take an exemption under two clauses and you have applied
under one clause, then the court is free to consider the other clause as well and give you the
relief you want. This does not ideally happen in real life.
- The court is free to apply some other principle of limitations to save the suit. (S.3 of the
limitations act)
- Law of Pre-emption: It is the right of an owner of immovable property to acquire by
purchase another immovable property which has been sold to another person. In other words,
under this right owner of an immovable property is entitled to repurchase an
adjacent property which has been sold to someone else.
Rule 7: Relief to be specifically stated— every plaint shall state specifically the relief which
the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for
general or other relief which may always be given as the Court may think just to the same
extent as if it had been asked for. And the same rule shall apply to any relief claimed by the
defendant in his written statement.
- Example: Dahiben Case
- Permanent injunction is not a general relief. To claim injunction, you have to file a special
application. It starts with a temporary injunction eventually becoming a permanent injunction
after the final decree.

Rule 8: Relief founded on separate ground— Where the plaintiff seeks relief in respect of
several distinct claims or causes of action founded upon separate and district grounds, they
shall be stated as far as may be separately and distinctly.
- A suit in which there are multiple COA’s, the court orders separate cases.

Rule 9: Procedure on admitting plaint.- Where the Court orders that the summons be served
on the defendants in the manner provided in rule 9 of Order V, it will direct the plaintiff to
present as many copies of the plaint on plain paper as there are defendants within seven days
from the date of such order along with requisite fee for service of summons on the
defendants.
- All costs of services has to be paid by the plaintiff.

Rule 10: Return of plaint— (1) Subject to the provisions of rule 10A, the plaint shall at any
state of the suit be returned to be presented to the Court in which the suit should have been
instituted.
- If you go to a court without jurisdiction, that court may return your plaint.
- The defendant will have to prove that the court does not have jurisdiction.
Case: Kiran Singh vs Chaman Paswan
- Ready Reckoner/ Circle rates- government valued rates of a particular area

- If a matter was in a court for wrong jurisdiction for ‘x’ amount of period then after the
jurisdiction has been proved wrong and you get your plaint back, then that ‘x’ amount of
period would be added to your suit.

Rule 11: Rejection of plaint— The plaint shall be rejected in the following cases:—
 where it does not disclose a cause of action;
- You will be thrown out if there is no cause of action.
 where the relief claimed is undervalued, and the plaintiff, on being required by the
Court to correct the valuation within a time to be fixed by the Court, fails to do so;
 where the relief claimed is properly valued, but the plaint is returned upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so;
- In the second point, he has undervalued property and paid fees for it. In this point, he has
valued it correctly, but there is no stamp.
 where the suit appears from the statement in the plaint to be barred by any law :
Q. Does barred by any law include the limitations act?
- Yes.
 Where it is not filed in duplicate – In any suit a duplicate copy of the plaint has to be filed
and when a duplicate copy of plaint is not filed it is liable to be dismissed.
- Any irregularities would be fixed in the registrar’s office itself.
Provided that the time fixed by the Court for the correction of the valuation or supplying of
the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded,
is satisfied that the plaintiff was prevented by any cause of an exceptional nature form
correcting the valuation or supplying the requisite stamp-paper , as the case may be, within
the time fixed by the Court and that refusal to extend such time would cause grave injustice
to the plaintiff.

Rule 12: Procedure on rejecting plaint— Where a plaint is rejected the Judge shall record an
order to that effect with the reasons for such order.

Rule 13: Where rejection of plaint does not preclude presentation of fresh plaint— The
rejection of the plaint on any of the grounds herein before mentioned shall not of its own
force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of
action.
- Unless your plaint is rejected, you cannot bring a suit with the same cause of action again
Q. If suppose the suit was barred by any law, then can you come to the court?
- You cannot go against any statute.

Rule 14: Production of document on which plaintiff sues— (1) Where a plaintiff sues upon a
document in his possession or power, he shall produce it in Court when the plaint is
presented, and shall at the same time deliver the document or a copy thereof to be filed with
the plaint.
- All documents which are admitted need not be argued.
Examples:
1. A and B are fighting over will. A has attached the will. B denies existence of the will.
While A says admission of document, B will deny it.
2. Now if later B says that there is a will but it is different. Here, B cannot deny the will. He
denies the content in it.

Rule 15: Statement in case of documents not in plaintiff's possession or power— Where any
such document is not in the possession or power of the plaintiff, he shall, if possible, state in
whose possession or power it is.
- if there are certain axillary documents that are used for cross examination, that is
permissible.

Rule 16: Suits on lost negotiable instruments— Where the suit is founded upon a negotiable
instrument, and it is proved that the instrument is lost, and an indemnity is given by the
plaintiff, to the satisfaction of the Court, against the claims of any other person upon such
instrument, the Court may pass such decree as it would have passed if the plaintiff had
produced the instrument in Court when the plaint was presented, and had at the same time
delivered a copy of the instrument to be filed with the plaint.

Rule 17: Production of shop-book- (This does not apply anymore since it is now
computerized.)
- All relevant parts should be given to the court.
Case: Vinit Narayan vs UOI
- Police seized some documents from a trader and in one of his books, there was entry of
initials of top politicians. When this book came in their possession, they stopped
investigation. Vinit Narayan came and said that despite so much evidence, the investigation
was stopped. Court held that entries in a shop book would not be considered as relevant
material.

Rule 18: Inadmissibility of document not produced when plaint filed— (1) A document
which ought to be produced in Court by the plaintiff when the plaint is presented, or to be
entered in the list to be added or annexed to the plaint, and which is not produced or entered
accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at
the hearing of the suit.
- Whenever photocopies are given, the original may be submitted to. The court would check
and mark it and return it.
ORDER 8:-

Rule 1: Written statement —(1) The defendant shall, at or before the first
hearing or within such time as the Court may permit, present a written statement of his
defence.
- A written statement can be submitted late, but an application must be filed. You cannot
exceed 120 days.

Rule 2: New facts must be specially pleaded— The defendant must raise by his pleading all
matters which show the suit not be maintainable, or that the transaction is either void or
voidable in point of law, and all such grounds of defence as, if not raised, would be likely to
take the opposite party by surprise, or would raise issues of fact not arising out of the plaint,
as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.

Rule 3: Denial to be specific— It shall not be sufficient for a defendant in his written
statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal
specifically with each allegation of fact of which he does not admit the truth, except
damages. 

Rule 4: Evasive denial— Where a defendant denies an allegation of fact in the plaint, he must
not do so evasively, but answer the point of substance, Thus, if it is alleged that he received a
certain sum of money, it shall not be sufficient to deny that he received that particular
amount, but he must deny that he received that sum or any part thereof, or else set out how
much he received. And if an allegation is made with diverse circumstances, it shall not be
sufficient to deny it along with those circumstances.
- you need to be specific, if you look fishy, you can get acquitted for it as it seems like you
are hiding something.
- if you do not known of something, you should deny the facts based on ignorance.

Rule 5: Specific denial— (1) Every allegation of fact in the plaint, if not denied specifically
or by necessary implication, or stated to be not admitted in the pleading of the defendant,
shall be taken to be admitted except as against a person under disability:
Provided that the Court may in it discretion require any fact so admitted to be proved
otherwise than by such admission.
- All facts not denied are deemed to be admitted. Therefore, you have to deny it in the first
place and be specific with it.
- Disability parties would be minors, people with unsound mind, and “litigation friend”
- Litigation friend helps you in class actions. This concept is not known in India.

CASES ON WRITTEN STATEMENT:-

Case: Desh Raj vs Balkishen (D)
There was an ancestral property of which two people had rights. One on the ground floor, one
on first floor. One sold the property to the other person. After he sold the property, there was
a dispute between the parties. The buyer then asked the seller to register at the registrar since
there were rumours of the first floor bring on the market. The buyers went to court asking the
seller to transfer the property. After court ordering him to do so, the seller did not do so.
Therefore, no written statement submitted in over 120 days. Plaintiff said written statement
should not be accepted anymore.
Contention:
1. No provision in law that it has to be done in 120 days since this is not a commercial suit. It
is a family suit.
2. Defendant must get a chance to represent himself.
Court held:
- Not a commercial suit therefore the period of 120 days is not applicable. There is no strict
restriction of filing the written statement.
- Court allowed him to submit a written statement and charged him a fine of late submission.

Case: SCG Contracts India Pvt Ltd v K S Chamankar Infrastructure Pvt. Ltd
- This case laid down the restriction of 120 days for submission of written statement for
commercial suits.

Case: RK Roja vs US Rayadu & Ors (Summary dismissals in Commercial Suits)

- There is no justification for pleadings (late submission of written statement)

Rule 6: Particulars of set-off to be given in written statement— (1) Where in a suit for the
recovery of money the defendant claims to set-off against the plaintiff's demand any
ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the
pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as
they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not
afterwards unless permitted by the Court, presents a written statement containing the
particulars of the debt sought to be set-off.
Three Conditions:-
- Set- off must be in case of money only.
- It should relate to the same transaction.
- Parties must be the original parties. Example: C being executor of A and C in his personal
capacity is different.

- In most money suits when a claim is made by one party against another where the party says
that the other party has no money to make dealings. In such a case, the defendant party has to
show their income tax, bills, etc.

(2) Effect of set-off—The written statement shall have the same effect as a plaint in a cross-
suit so as to enable the Court to pronounce a final judgment in respect both of the original
claim and of the set-off : but this shall not affect the lien, upon the amount decreed, of any
pleader in respect of the costs payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written statement in
answer to a claim of set-off.
Q. The part of written statement which makes a counter claim is deemed to be a plaint.
Therefore, what is the original plaintiff supposed to do now?
- He has to file a written statement against his plaint.

Rule 6A: Counter-claim by defendant— (1) A defendant in a suit may, in addition to his right
of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the
plaintiff, any right or claim in respect of a cause of action accruing to the defendant against
the plaintiff either before or after the filing of the suit but before the defendant has delivered
his defence or before the time limited for delivering his defence has expired. Whether such
counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of
the Court.
- Example: A has filed a claim of 90 lacs against B in city civil court. B has 1 Cr, 20 lacs
against A. Here, B can write to the city civil court and ask to file in the HC since the counter
claim or set-off should not exceed the jurisdiction of the courts.

Case: Hadley vs Baxandale (S. 74 and 75 of ICA which deals with compensation)
- Incase the amount of damages are not clear; non-liquidated damages.

Case: ONGC vs SAW Pipes

(This case shows how a contract should be made.)
- ONGC had placed an order for pipes from SAW pipes. There was a strike or workers and
therefore, they could not deliver the pipes to ONGC.

Rule 6B: Counter-claim to be stated— Where any defendant seeks to rely upon any ground as
supporting a right of counter-claim, he shall, in his written statement, state specifically that he
does so by way of counter-claim.
Q. If there is a counter claim and since it is to be treated as plaint, what must it necessarily
contain?
- Court fees (if you do not pay the court fees, the court will accept the written statement but
will not put the counter claim into effect)

Rule 6C: Exclusion of counter-claim— Where a defendant sets up a counter-claim and the
plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-
claim but in an independent suit, the plaintiff may, at any time before issues are settled in
relation to the counter-claim, apply to the Court for an order that such counter-claim may be
excluded, and the Court may, on the hearing of such application make such order as it thinks
fit.
- Plaintiff may say that this counter claim should be a separate suit. The court may order a
separate suit.
---
Rule 6D: Effect of discontinuance of suit— If in any case in which the defendant sets up a
counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim
may nevertheless be proceeded with.

Rule 6E: Default of plaintiff to reply to counter-claim— If the plaintiff makes default in
putting in reply to the counter-claim made by the defendant, the Court may pronounce
judgment against the plaintiff in relation to the counter-claim made against him or make such
order in relation to the counter-claim as it thinks fit.

Rule 6F: Relief to defendant where counter-claim succeeds— Where in any suit a set-off or
counter-claim is established as defence against the plaintiff's claim and any balance is found
due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the
party entitled to such balance.
- Court will counter balance the two claims and give an order.

Rule 6G: Rules relating to written statement to apply— The rules relating to a written
statement by a defendant shall apply to a written statement filed in answer to a counter-claim
Rule 7: Defence or set-off founder upon separate grounds— Where the defendant relies upon
several distinct grounds of defence or set-off [152][or counter-claim] founded separate and
distinct facts, they shall be stated, as far as may be, separately and distinctly.

Rule 8: New ground of defence— Any ground of defence which has arisen after the
institution of the suit or the presentation of a written statement claiming a set-off [153][or
counter-claim] may be raised by the defendant or plaintiff as the case may be, in his written
statement.
- the moment there is a change in a party’s claim, the other party can make certain
observations an reply to it.

Rule 9: Subsequent pleadings— No pleading subsequent to the written statement of a

defendant other than by way of defence to a set-off [155][or counter-claim] shall be presented
except by the leave of the Court and upon such terms as the Court thinks fit, but the Court
may at any time require a written statement or additional written statement from any of the
parties and fix a time for presenting the same.
- Court may ask parties for certain clarifications and give them 30 days to do so.

Rule 10: Procedure when party fails to present written statement called for by Court— Where
any party from whom a written statement [156][is required under rule 1 or 9] fails to present
the same within the time [157][permitted or fixed by the Court, as the case may be, the Court
shall] pronounce judgment against him or make such order in relation to the suit as it thinks
fit [158][and on the pronouncement of such judgment, a decree shall be drawn up.]
- The court may proceed ahead as if there is no written statement.

ORDER 9:- appearance

Rule 1: Parties to appear on day fixed in summons for defendant to appear and answer— On
the day fixed in the summons for the defendant to appear and answer, the parties shall be in
attendance at the Court-house in person or by their respective pleaders, and the suit shall then
be heard unless the hearing is adjourned to a future day fixed by the Court.

Rule 2: Dismissal of suit where summons not served in consequence of plaintiffs failure to
pay cost— Where on the day so fixed it is found that the summons has not been served upon
the defendant in consequence of the failure of the plaintiff to pay the court-fee of postal
charges (if any) chargeable for such service, or to present copies of the plaint or concise
statements, as required by rule 9 of order VII, the Court may make an order that the suit be
dismissed
- defendant would come to court despite summons not being presented, the matter would not
be dismissed. If the defendant had not come, it would be dismissed.

Rule 3: Where neither party appears, suit to be dismissed— Where neither party appears
when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

Rule 4: Plaintiff may bring fresh suit or Court may restore suit to file— Where a suit is
dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a
fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court
that there was sufficient cause for [161][such failure as is referred to in rule 2], or for his non-
appearance, as the case may be, the Court shall make an order setting aside the dismissal and
shall appoint a day for proceeding with the suit.
- Restoration of a suit is easier as you would not have to pay the court fees again. For
restoration, you would have to pay stamp duty.
- Explanation is given by plaintiff as to why he could not show up.

Rule 5: Dismissal of suit where plaintiff after summons returned unserved, fails for one
month to apply for fresh summons— (1) Where after a summons has been issued to the
defendant, or to one of several defendants, and returned unserved the plaintiff fails, for a
periods of one month from the date of the return made to the Court by the officer ordinarily
certifying to the Court returns made by the serving officers, to apply for the issue of a fresh
summons the Court shall make an order that the suit be dismissed as against such defendant,
unless the plaintiff has within the said period satisfied the Court that—
 he has failed after using his best endeavours to discover the residence of the
defendant, who has not been served, or
 such defendant is avoiding service of process, or
 there is any other sufficient cause for extending the time,
in which case the Court may extend the time for making such application for such period as it
thinks fit.]
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.
- In actual practice, the court does not start the proceedings unless the summons are served.
- Order 5 Rule 20 and 21 A would be applicable here.

Rule 6: Procedure when only plaintiff appears— (1) Where the plaintiff appears and the
defendant does not appear when the suit is called on for hearing, then—
[163] [(a)] When summons duly served—if it is proved that the summons was duly served,
the Court may make an order that the suit shall be heard ex parte.
When summons not duly served—if it is not proved that the summons was duly serve, the
Court shall direct a second summons to be issued and served on the defendant;
When summons served but not in due time—if it is proved that the summons was served on
the defendant, but not in sufficient time to enable him to appear and answer on the day fixed
in the summons,
the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and
shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiffs' default that the summons was not duly served or was
not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by
the postponement.

Rule 7: Procedure where defendant appears on day of adjourned hearing and assigns good
cause for previous non-appearance— Where the Court has adjourned the hearing of the suit
ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his
previous non-appearance, he may, upon such terms as the Court directs as to costs or
otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his
appearance.

Rule 8: Procedure where defendant only appears— Where the defendant appears and the
plaintiff does not appear when the suit is called on for hearing, the Court shall make an order
that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case
the Court shall pass a decree against the defendant upon such admission, and, where part only
of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

Rule 9: Decree against plaintiff by default bars fresh suit— (1) Where a suit is wholly or
partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in
respect of the same cause of action. But he may apply for an order to set the dismissal aside,
and if he satisfies the Court that there was sufficient cause for his non-appearance when the
suit was called on for hearing, the Court shall make an order setting aside the dismissal upon
such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with
suit.
(2) No order shall be made under this rule unless notice of the application has been served on
the opposite party.
- Such an application would be argued after the defendant has been given the rights to argue.

Rule 10: Procedure in case of non-attendance of one or more of several plaintiffs— Where
there are more plaintiffs than one, and one or more of them appear, and the others do not
appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to
proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks
fit.

Rule 11: Procedure in case of non-attendance of one or more of several defendants— Where
there are more defendants than one, and one or more of them appear, and the others do not
appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make
such order as it thinks fit with respect to the defendants who do not appear.

Rule 12: Consequence of non-attendance, without sufficient cause shown, of party ordered to
appear in person— Where a plaintiff or defendant, who has been ordered to appear in person,
does not appear in person, or show sufficient cause to the satisfaction of the Court for failing
so to appear, he shall be subject to all the provisions of the foregoing rules applicable to
plaintiffs and defendants, respectively who do not appear.

Rule 13: etting aside decree BIex parte against defendant— In any case in which a decree is
passed ex parte against a defendant, he may apply to the Court by which the decree was
passed for an order to set it aside; and if he satisfies the Court that the summons was not duly
served, or that he was prevented by any sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order setting aside the decree as against him
upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint
a day for proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also:
[Provided further that no Court shall set aside a decree passed ex parte merely on the ground
that there has been an irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient time to appear and answer the
plaintiff's claim]
[Explanation.—where there has been an appeal against a decree passed ex parte under this
rule, and the appeal has been disposed of an any ground other than the ground that the
appellant has withdrawn the appeal, no application shall lie under this rule for setting aside
that ex parte decree.
- Ex parte application will have to be made by the defendant.
- If there are a large number of people in a group, the decree would apply on all of them.

Rule 14: No decree to be set aside without notice to opposite party— No decree shall be set
aside on any such application as aforesaid unless notice thereof has been served on the
opposite party.
- Opposite party should be given charge to oppose the application by the defendant.
ORDER 10:- examination of parties
Rule 1: Ascertainment whether allegations in pleadings are admitted or denied— At the first
hearing of the suit the Court shall ascertain from each party or his pleader whether he admits
or denies such allegations of fact as are made in the plaint or written statement (if any) of the
opposite party, and as are not expressly or by necessary implication admitted or denied by the
party against whom they are made. The Court shall record such admissions and denials.
1A. Direction of the Court to opt for any one mode of alternative dispute resolution.
1B. Appearance before the conciliatory forum or authority
1C. Appearance before the court consequent to the failure of efforts of conciliation
- Read with S. 89 of CPC
- http://lawtimesjournal.in/analysing-section-89-of-cpc/
- once a settlement is one and the parties do not abide by it, you can go to the court again with
a new cause of action.

Rule 2: Oral examination of party, or companion of party— (1) At the first hearing of the
suit, the Court—
 shall, with a view to elucidating matters in controversy in the suit examine orally such
of the parties to the suit appearing in person or present in Court, as it deems fit; and
 may orally examine any person, able to answer any material question relating to the
suit, by whom any party appearing in person or present in Court or his pleader is
accompanied.
- asking and taking certain information.

Rule 3: Substance of examination to be written— The substance of the examination shall be

reduced to writing by the Judge, and shall form part of the record.
- known as the roznama of the court.

Rule 4: Consequence of refusal or inability of pleader to answer— (1) Where the pleader of
any party who appears by a pleader or any such person accompanying a pleader as is referred
to in rule 2, refuses or is unable to answer any material question relating to the suit which the
Court is of opinion that the party whom he represents ought to answer, and is likely to be able
to answer if interrogated in person, the Court may postpone the hearing of the suit to a future
day and direct that such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on the day so appointed, the
Court may pronounce judgment against him, or make such order in relation to the suit as it
thinks fit.
- if he does not come, an order will be passed against him.

ORDER 11:- interrogation

Rule 1: Discovery by interrogatories— In any suit the plaintiff or defendant by leave of the
Court may deliver interrogatories in writing for the examination of the opposite parties or any
one or more of such parties and such interrogatories when delivered shall have a note at the
foot thereof stating which of such interrogatories each of such persons is required to answer:
Provided that no party shall deliver more than one set of interrogatories to the same party
without an order for that purpose : Provided also that interrogatories which do not relate to
any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might
be admissible on the oral cross-examination of a witness.
- if the party is not able to come, the defendant forms the final questions, the court approves
of them, the defendant may go to the house of plaintiff and ask them.

Rule 2: Particular interrogatories to be submitted— On an application for leave to deliver

interrogatories, the particular interrogatories proposed to be delivered shall be submitted to
the Court. In deciding upon such application, the Court shall take into account any offer,
which may be made by the party sought to be interrogated to deliver particulars, or to make
admissions, or to produce documents relating to the matters in question, or any of them, and
leave shall be given as to such only of the interrogatories submitted as the Court shall
consider necessary either for disposing fairly of the suit or for saving costs.
- Time Period: 7 days
- The court may or may not accept interrogatories.
- you must ensure that the questions are not irregular or irrelevant.

Rule 3: Costs of interrogatories— In adjusting the costs of the suit inquiry shall at the
instance of any party be made into the propriety of exhibiting such interrogatories, and if it is
the opinion of the taxing officer or of the Court, either with or without an application for
inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at
improper length, the cost occasioned by the said interrogatories and the answers thereto shall
be paid in any event by the party in fault.

Rule 4:  Form of Interrogatories- Interrogatories shall be in Form No. 2 in Appendix C, with

such variations as circumstances may require.
Rule 5: Corporations— Where any party to a suit is a corporation or a body of persons,
whether incorporated or not, empowered by law to sue or be sued, whether in its own name
or in the name of any officer or other person, any opposite party may apply for an order
allowing him to deliver interrogatories to any member or officer of such corporation or body,
and an order may be made accordingly.
- If firms are not registered, they cannot sue.
- Since the company cannot come in person, the official of the company would come and
answer the questions.

INTERROGATORIES:- (A summary)
- Old or Ill people who cannot come to the court will get a set of questions from the lawyer
and a court commissioner will go and ask the questions. These questions are called
interrogatories.
- One party must take out all questions once and should not send interrogatories more than
once.
- The interrogatories particulars must be submitted.
- Must not be irregular/ irrelevant.
- The interrogatories that have an important baring on the case only must be looked at.
- Cost of interrogatories will be born by those who want to use the interrogatories. (Cost of
court commissioners - retired court officers)
- All documents have to be given with an affidavit.
- The original will stays in the locker of the court in testamentary matters.
- All documents other than privileged documents need to be given.

Rule 6: Objections to interrogatories by answer— Any objection to answering any

interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for
the purpose of the suit, or that the matters inquired into are not sufficiently material at that
stage, [167][or on the ground of privilege or any other ground], may be taken in the affidavit
in answer.-
- Doctrine of Alter Ego (lifting of corporate veil)

Rule 7: Setting aside and striking out interrogatories— Any interrogatories may be set aside
on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the
ground that they are prolix, oppressive, unnecessary or scandalous; and any application for
this purpose may be made within seven days after service of the interrogatories.
- S.6 of CPC
Rule 8: Affidavit in answer, filing— Interrogatories shall be answered by affidavit to be filed
within ten days or within such other time as the Court may allow.
-Now it is under oath and anything you say could be held against you.

Rule 9: Form of affidavit in answer— An affidavit in answer to interrogatories shall be in

Form No. 3 in Appendix C, with such variations as circumstances may require.
- Follow the rulebook of the court

Rule 10: No exception to be taken— No exceptions shall be taken to any affidavit in answer,
but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be
determined by the Court.

Rule 11: Order to answer or answer further— Where any person interrogated omits to
answer, or answer insufficiently, the party interrogating may apply to the Court for an order
requiring him to answer, or to answer further, as the case may be. And an order may be made
requiring him to answer or answer further, either by affidavit or by viva voice examination,
as the Court may direct.
- If any party says that a certain question raised is relevant, it is upto the court to decide.

Rule 12: Application for discovery of documents— Any party may, without filing any
affidavit, apply to the Court for an order directing any other party to any suit to make
discovery on oath of the documents which are or have been in his possession or power,
relating to any matter in question therein. On the hearing of such application the Court may
either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not
necessary at that stage of the suit, or make such order, either generally or limited to certain
classes of documents, as may, in its discretion be thought fit :
Provided that discovery shall not be ordered when and so far as the Court shall be of opinion
that it is not necessary either for disposing fairly of the suit or for saving costs.
Example: You may get certain documents by RTI, some by payment of fees, paying someone
and getting document, etc. Which of these documents can be used as evidence?
- RTI definitely and by paying someone to get document can be used as evidence.

Rule 13: Affidavit of documents— The affidavit to be made by a party against whom such
order as is mentioned in the last preceding rule has been made, shall specify which (if any) of
the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in
Appendix C, with such variations as circumstances may require.
- All documents given should be given in form of affidavit (form 5, appendix 6)

Rule 14: Production of documents— It shall be lawful for the Court, at any time during the
pendency of any suit, to order the production by any party thereto, upon oath of such of the
documents in his possession or power, relating to any matter in question in such suit, as the
Court shall think right; and the Court may deal with such documents, when produced, in such
manner as shall appear just.
- Court may ask you at any given point to produce the documents in the court.

Rule 15: Inspection of documents referred to in pleadings or affidavits— Every party to a suit
shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits
reference is made to any document or who has entered any document in any list annexed to
his pleadings] or produce such document for the inspection of the party giving such notice, or
of his pleader, and to permit him or them to take copies thereof; and any party not complying
with such notice shall not afterwards be at liberty to put any such document in evidence on
his behalf in such suit unless he shall satisfy the Court that such document relates only to his
own title, he being a defendant to the suit, or that he had some other cause or excuse with the
Court shall deem sufficient for not complying with such notice, in which case the Court may
allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall
think fit.
- If the opposite party wants to see any document from your list, they may ask you through
inspection, if you do not show them, they will be considered as inadmissible.
- Only in certain cases, the court may ask you to not show these documents (incase you are a
title holder)

Rule 16: Notice to produce— Notice to any party to produce any documents referred to in his
pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as
circumstances may require.

Rule 17: Time for inspection when notice given— The party to whom such notice is given
shall, within ten days from the receipt of such notice, deliver to the party giving the same a
notice stating a time within three days from the delivery thereof at which the documents, or
such of them as he does not object to produce, may be inspected at the office of his pleader,
or in the case of bankers books or other books of account or books in constant use for the
purposes of any trade or business, at their usual place of custody, and stating which (if any)
of the documents he objects to produce, and on what ground. Such notice shall be in Form
No. 8 in Appendix C, with such variations as circumstances may require.
Rule 18: Order for inspection— (1) Where the party served with notice under rule 15 omits to
give such notice of a time for inspection or objects to give inspection, or offers inspection
elsewhere than at the office of his pleader, the Court may, on the application of the party
desiring it, make an order for inspection in such place and in such manner as it may think fit :
Provided that the order shall not be made when and so far as the Court shall be of opinion
that, it is not necessary either for disposing fairly of the suit or for saving costs.

Rule 19: Verified copies— (1) Where inspection of any business books is applied for, the
Court may , if it thinks fit, instead of ordering inspection of the original books, order a copy
of any entries therein to be furnished and verified by the affidavit of some person who has
examined the copy with the original entries, and such affidavit shall state whether or not there
are in the original book any and what erasures, interlineations or alterations :
Provided that, notwithstanding that such copy has been supplied, the Court may order
inspection of the book from which the copy was made.
- this was applicable for the time there were ledgers.

Rule 20: Premature discovery— Where the party from whom discovery of any kind or
inspection is sought objects to the same, or any part thereof, the Court may if satisfied that
the right to the discovery or inspection sought depends on the determination of any issue or
question in dispute in the suit, or that for any other reason it is desirable that any issue or
question in dispute in the suit should be determined before deciding upon the right to the
discovery or inspection, order that such issue or question be determined first, and reserve the
question as to the discovery or inspection.
- By an application, you may argue if you want to see it and the court will decide if its
relevant or not.

Rule 21: Non-compliance with order for discovery— [170][(1)] Where any party fails to
comply with any order to answer interrogatories, or for discovery or inspection of documents,
he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a
defendant, to have his defence, if any struck out, and to be placed in the same position as if he
had not defended, and the party interrogating or seeking discovery or inspection may apply to
the Court for an order to that effect and [171][an order may be made on such application
accordingly, after notice to the parties and after giving them a reasonable opportunity of
being heard.]
[172] [(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall
be precluded from bringing a fresh suit on the same cause of action.]
Using answers to interrogatories at trial— Any party may, at the trial of a suit, use in
evidence any one or more of the answers or any part of an answer of the opposite party to
interrogatories without putting in the others or the whole of such answer : Provided always
that in such case the Court may look at the whole of the answers, and if it shall be of opinion
that any others of them are so connected with those put in that the last-mentioned answers
ought not to be used without them, it may direct them to be put in.
Order to apply to minors— This Order shall apply to minor plaintiffs and defendants, and to
the next friends and guardians for the suit of the persons under disability.
- if your suit is thrown out for discovery, you will not be allowed to file a suit on the same
cause of action again.
- If someone is using a certain part of discovery for his own good, the court may see in what
context is has been taken.

ORDER 12:- admissions

Rule 2: Notice to admit documents— Either party may call upon the other party [173][to
admit, within fifteen days from the date of service of the notice any document,] saving all just
exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving
any such document shall be paid by the party so neglecting or refusing, whatever the result of
the suit may be, unless the Court otherwise directs; and no costs of proving any document
shall be allowed unless such notice is given, except where the omission to give the notice is,
in the opinion of the Court, a saving of expense.

Rule 2A: Document to be deemed to be admitted if not divided after service of notice to
admit documents—
(1) Every document which a party is called upon to admit, if not denied specifically or by
necessary implication, or stated to be not admitted in the pleading of that party or in his reply
to the notice to admit documents, shall be deemed to be admitted except as against a person
under a disability:
Provided that the Court may, in its discretion and for reasons to be recorded, require any
document so admitted to be proved otherwise than by such admission.
(2) Where a party unreasonably neglects or refuses to admit a document after the service on
him of the notice to admit documents, the Court may direct him to pay costs to the other party
by way of compensation.
- If you do not prove, court may ask you for a fine.

Rule 3A: Power of Court to record admission— Notwithstanding that no notice to admit
documents has been given under rule 2, the Court, may at any stage of the proceeding before
it, of its own motion, call upon any party to admit any document and shall in such a case,
record whether the party admits or refuses or neglects to admit such document.
- Admit, Deny, Document admitted but contents denied.
Rule 4: Notice to admit acts— Any party, may, by notice in writing, at any time not later than
nine days before the day fixed for the hearing, call on any other party to admit, for the
purposes of the suit only, any specific fact or facts, mentioned in such notice. And in case of
refusal or neglect to admit the same within six days after service of such notice, or within
such further time as may be allowed by the Court, the costs of proving such fact or facts shall
be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless
the Court otherwise directs:
Provided that any admission made in pursuance of such notice is to be deemed to be made
only for the purposes of the particular suit, and not as an admission to be used against the
party on any other occasion or in favour of any person other than the party giving the notice:
Provided also that the Court may at any time allow any party to amend or withdraw any
admission so made on such terms as may be just.
- If any admission of fact is made over here, it can only be used in that suit.

(Rule 5: not important)

Rule 6: Judgment on admissions— (1) Where admissions of fact have been made either in the
pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit,
either on the application of any party or of its own motion and without waiting for the
determination of any other question between the parties, make such order or give such
judgment as it may think fit, having regard to such admissions.
- If somebody had accepted a fact somewhere, that can be admitted as a fact.
Case:
1. Duggal vs United Bank
- Duggal had borrowed money from United Bank. RBI came up with a scheme where if the
defaulters did not have adequate money, they could give them something and get done with
the loan. Duggal proposed a plan but bank refused and went ahead with a suit. One of the
documents were document put by Duggal where he promises to pay a certain amount,
collateral, etc. Such an admission would be taken into consideration.
Q. What if the document had “without prejudice” written on it? (S.21 of Evidence Act)
- It would not be admissible.

2. Joshi v Mafatlal Bath

- Cashier at club misplaced money (35 lacs). Criminal case was filed against Joshi. He
admitted in that court for stealing 33.5 lacs. Civil proceedings were made to get his
property/money in collateral for the money he stole. Would his admission in criminal court
be admissible in the civil proceedings? – Yes.
Q. If evidence was admitted from civil proceedings and used in Criminal proceedings, would
it be admissible? There is no mens rea- Yes. Here, mens rea would not matter.
3. SEBI vs Shriram Mutual Fund
- held that in statutory purposes, no mens rea is required.
Example: if you are found with an unlicensed gun, you can be held liable without mens rea
too.

- The SEBI Act till 2015 was civil in nature. Post 2014, it became criminal in nature. In all
these statutes, Mens rea does not play any role.

4. Newmann Chalson vs US
- SC held that there was no insider trading. New law brought in regarding insider trading
saying any information that is not public and has been given to anyone else, such a person
would be liable for insider trading.

5. Salman vs US
Fact: 2 analysts in a big company. They informed their brother that the company was doing
well. He further told his brother-in-law who bought shares and was later caught. He pleaded
the Newmann case. Would he be held liable? – Yes, because of the new rule introduced by
the SCC regarding insider trading.

Rule 7: Affidavit of signature— An affidavit of the pleader or his clerk, of the due signature
of any admissions made in pursuance of any notice to admit documents or facts, shall be
sufficient evidence of such admissions, if evidence thereof is required.
- Signature of court clerk will also do.
- They put the time also now, cause in Bombay HC, post 5.30 pm served documents aren’t
heard the next day.

Rule 8: Notice to produce documents— Notice to produce documents shall be in Form No.
12 in Appendix C, with such variations as circumstances may require. An affidavit of the
pleader, or his clerk, of the service of any notice to produce, and of the time when it was
served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the
service of the notice, and of the time it was served.
Rule 9: Costs— If a notice to admit or produce specifies documents which are not necessary,
the costs occasioned thereby, shall be borne by the party giving such notice.
- Unnecessary notices given to harass a party would result into court fining such a party.

ORDER 13:- production, impounding and return of documents

Three kinds of technicalities:
1. Production of documents (original)/ Return of documents
- Evidence (documents you cannot keep in court for a long time. Example: license of a shop)
2. Inadmissibility of documents
- In case a document needs to be registered and it’s not, it becomes inadmissible later. An
unstamped and unregistered document is inadmissible as evidence.
3. Impounded documents

Rule 3: Rejection of irrelevant or inadmissible documents— The Court may at any stage of
the suit reject any document which it considers irrelevant or otherwise inadmissible,
recording the grounds of such rejection.
- Even a useful document can become inadmissible if the court rejects it.
- Order 2, Rule 2 emphasizes on giving the documents early.

Rule 4: Read Clause 1

(2) Where a document so admitted is an entry in a book, account or record, and a copy
thereof has been substituted for the original under the next following rule, the particulars
aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or
initialled by the Judge.

Rule 5: Is not applicable anymore.

Rule 6: Endorsements on documents rejected as inadmissible in evidence— Where a

document relied on as evidence by either party is considered by the Court to be inadmissible
in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b), and
(c) of rule 4, sub-rule (1), together with a statement of its having been rejected, and the
endorsement shall be signed or initialled by the Judge.
Rule 7: recording of admitted and return or rejected documents— (1) Every document which
has been admitted in evidence or a copy thereof where a copy has been substituted for the
original under rule 5, shall form part of the record of the suit.
(2) Documents not admitted in evidence shall not form part of the record and shall be
returned to the persons respectively producing them.
- If one party admits a document and the other denies, the court has to prove such a
document.
- all irrelevant and inadmissible documents are given back.

Rule 8: Court may order any document to be impounded— Notwithstanding anything

contained in rule 5 or rule 7 of this Order or in rule 17 of Order VII, the Court may, if it sees
sufficient cause, direct any document or book produced before it in any suit to be impounded
and kept in the custody of an officer of the Court, for such period and subject to such
conditions as the Court think fit.
- There are certain documents which are supposed to be kept in the court premises. The
impounded documents are sent to the registrar of court who will further send it to the chief
controller of stamp.

Rule 9: Return of admitted documents— (1) Any person, whether a party to the suit or not,
desirous of receiving back any document produced by him in the suit and placed on the
record shall, unless the document is impounded under rule 8, be entitled to receive back the
same,—
 where the suit is one in which an appeal is not allowed, when the suit has been
disposed of, and
 where the suit is one in which an appeal is allowed, when the Court is satisfied that
the time for preferring an appeal has elapsed and that no appeal has been preferred or,
if an appeal has been preferred, when the appeal has been disposed of :
Provided that a document may be returned at any time earlier than that prescribed by this rule
if the person applying therefore—
(a) delivers to the proper officer for being substituted for the original,—
(i) in the case of a party to the suit, a certified copy, and
(ii) in the case of any other person, an ordinary copy which has been examined, compared
and certified in the manner mentioned in sub-rule (2) of rule 17 of Order VII, and
(b) undertakes to produce the original, if required to do so :]
Provided also, that no document shall be returned with, by force of the decree, has become
wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt shall be given by the person
receiving it.
- A person is entitled to get his documents back unless it has been impounded under Rule 8.
- As the law of evidence prescribes you can only give that evidence.
Four things coming out of a suit:-
1. Attachments
2. Injunctions
3. Commissions
4. Receivers
- All these come from your plaint and Written Statement, you cannot bring anything new.

ORDER 14:- issues

A question may relate to both, facts and law.
Q. Can we have a condition where there is neither fact (no fact that can become a disputed
topic) nor law? –Yes.

Rule 1: Framing of issues— (1) Issues arise when a material proposition of fact or law is
affirmed by the one party and denied by the other.
Material propositions are those propositions of law or fact which a plaintiff must allege in
order to show a right to sue or a defendant must allege in order to constitute his defence.
Each material proposition affirmed by one party denied by the other shall form the subject of
distinct issue.
 Issues are of two kinds :
 issues of fact,
 issues of law.
At the first hearing of the suit the Court shall, after reading the plaint and the written
statements, if any, and [181][after examination under rule 2 of Order X and after hearing the
parties or their pleaders], ascertain upon what material propositions of fact or of law the
parties are at variance, and shall thereupon proceed to frame and record the issues on which
the right decision of the case appears to depend.
Nothing in this rule requires the Court to frame and record issues where the defendant at the
first hearing of the suit makes no defence.
- In most courts, both parties have to give draft issues. The court shall go through these,
glance through the plaint and written statement. The court would then frame the issues based
on these documents.
Q. What can you do if the court refuses to take your issue? –Then you can file an application
for the court to take the issue or you may include it in your appeal.

Rule 2: Court to pronounce judgment on all issues— (1) Notwithstanding that a case may be
disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2),
pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion
that the case or any part thereof may be disposed of on an issue of law only, it may try that
issue first if that issue relates to—
The jurisdiction of the Court, or
A bar to the suit created by any law for the time being inforce.
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after
that issue has been determined, and may deal with the suit in accordance with the decision on
that issue.
- If the court decides that limitations and jurisdiction has to be decided first, and later realise
that they have no jurisdiction, the court would not proceed.

Rule 3: Materials from which issues may be framed— The Court may frame the issues from
all or any of the following materials :—
allegations made on oath by the parties, or by any persons present on their behalf, or made by
the pleaders of such parties;
allegations made in the pleadings or in answers to interrogatories delivered in the suit;
the contents of documents by either party.

Rule 4: Court may examine witnesses or documents before framing issues— Where the Court
is of opinion that the issues cannot be correctly framed without the examination of some
person not before the Court or without the inspection of some document not produced in the
suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for
the time being in force) compel the attendance of any person or the production of any
document by the person in whose possession or power it is by summons or other process.
- When they have to make certain issues, they have to refer to an expert who would help them
frame the issues.
Rule 5: Power to amend and strike out, issues— (1) The Court may at any time before
passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and
all such amendments or additional issues as may be necessary for determining the matters in
controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear
to it to be wrongly framed or introduced.
- The court may strike out or add issues by themselves.

Q. When do you require to frame additional issues? -When the parties file new amendments
in the suit.

Rule 6: Questions of fact or law may by agreement be stated in form of issues— Where the
parties to a suit are agreed as to the question of fact or of law to be decided between them,
they may state the same in the form of an issue, and enter into an agreement in writing that
upon the finding of the Court in the affirmative or the negative of such issue,—
a sum of money specified in the agreement or to be ascertained by the Court, or in such
manner as the Court may direct, shall be paid by one of the parties to the other of them, or
that one of them be declared entitled to some right or subject some liability specified in the
agreement;
some property specified in the agreement and in dispute in the suit shall be delivered by one
of the parties to the other of them, or as that other may direct; or
one or more of the parties shall do or abstain from doing some particular act specified in the
agreement and relating to the matter in dispute.
- both parties can come together and decide on certain laws and facts.
- Originating summons- A summons that sets out the questions the court is being asked to
settle. When the facts in a case are not disputed, but the interpretation of the law or of the
documents needs to be resolved, an originating summons is prepared.
Case: A was a stock market picker. He buys shares of blue chip companies and later shared
this with his wife (they were joint owners). He made a will where he said that the shared he
bought should be equally divided amongst his seven children. After he died, the issue arose-
whether the ‘will’ will prevail or the company law?
- Here, till the extent of A’s share, his heirs are entitled to that amount. This is still an
ongoing case in the SC.

Rule 7: Court, if satisfied that agreement was executed in good faith, may pronounce
judgment— Where the Court is satisfied, after making such inquiry as it deems proper,—
that the agreement was duly executed by the parties;
that they have a substantial interest in the decision of such question as aforesaid, and
that the same is fit to be tried and decided,
it shall proceed to record and try the issue and state its finding or decision thereon in the same
manner as if the issue had been framed by the Court.
and shall, upon the finding or decision on such issue, pronounce judgment according to the
terms of the agreement, and, upon the judgment so pronounced a decree shall follow
- suppose you have a question of law, if the court feels there is no dispute but the party only
wants to resolve the dispute, the court may frame such an issue and pronounce a judgment.

Diff. b/w Judgment and Decree:

Decree is the operation part of the judgment and the judgment is the reason the court has
reached an end.

Kinds of Summons:
1. Summons by Judgment
2. Originating summons- A summons that sets out the questions the court is being asked to
settle. When the facts in a case are not disputed, but the interpretation of the law or of the
documents needs to be resolved, an originating summons is prepared.

Case: Nandkishor Bhandari vs Pavanputra CHS (Application of amendments made by state

government and how it works)
Case: Iridium vs Motorola (2005) (Court rule book>>>>>CPC)

TYPES OF SUITS:-
1. Short cause suit
2. Long cause suit
3. Summary Suit

ORDER 37:- (SUMMARY SUITS)

Summary Suits- comes under Order 37
- A contract under this order must always be unambiguous
- Where there is no factual dispute, but dispute only over money. Such a suit would be a
summary suit. Summons for judgment to be taken out within 6 months.
Example:
1. A gives a cheque to B for 1 lac. B gives a promissory note for 1 lac money repayable at 9%
interest, within 9-12 months. Is there any dispute in this contract?
- No factual dispute.
2. A gives B a cheque of 1 lac. B gives no promissory note. Can it become a lengthy dispute?
- No dispute over money as such because amount was given by cheque. but since there is no
acknowledgement for what purpose that amount was given and therefore, the court will have
to look into the factual matter.
Case: ONGC vs Saw Pipes

Rule 1: Court and classes of suits to which the order is to apply

Order applies to the following classes of suits, namely:-

(a) suits upon bills of exchange, hundies and Promissory notes:

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money
payable by the defendant, with or without interest, arising,-

(i) on a written contract, or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the
nature of a debt other than a penalty; or

(iii) on a guarantee, Where the claim against the principal is in respect of a debt or liquidated
demand only.

Rule 2: (1) A suit, to which this Order applies, may if the plaintiff proceed desires to desires
hereunder, be instituted by presenting a plaint which shall contain,-

(a) a specific averment to the effect that the suit is filed under this Order;
- Title must mention “suit filed under Order 37”

(b) that no relief, which does not fall within the ambit of this rule; has been claimed in the
plaint; and
- Can you bring out a separate application to attach property? –Yes.

(c) the following inscription, immediately below the number of the suit in the title of the suit,
namely :-

"(Under Order XXXVII of the Code of Civil Procedure, 1908)."

(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as
may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an
appearance and in default of his entering an appearance the allegations in the plaint shall be
deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not
exceeding the sum mentioned in the summons, together with interest at the rate specified, if
any, up to the date of the decree and such sum for costs as may be determined by the High
Court from time to time by rules made in that behalf and such decree may be executed
forthwith.
- Appearance has to be done in 10 days.
- If the defendant does not come to court and defend it, a decree can be given right away.

Triable issue- can be one of fact or of law

Rule 3: (1) In a suit to which this Order applies, the plaintiff shall, together with the summons
under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the
defendant may, at any time within ten days of such service, enter an appearance either in
person or by pleader and, in either case, he shall file in Court an address for service of notices
on him.

(2) Unless otherwise ordered, all summons, notices and other judicial processes, required to
be served on the defendant, shall be deemed to have been duly served on him if they are left
at the address given by him for such service.
- If his address is known, just deliver it there.
(3) On the day of entering the appearance, notice of such appearance shall be given by the
defendant to the plaintiff's pleader, or, if tile plaintiff sues in person, to the plaintiff himself,
either by. Notice delivered at or sent by a pre-paid letter directed to the address of the
plaintiff's pleader or of the plaintiff, as the case may be.

(4) if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant
a summons for judgment in Form No. 4A in Appendix B or such other Form as may be
prescribed from time to time, returnable not less than ten days from the date of service
supported by an affidavit verifying the cause of action and the amount claimed and stating
that in his belief there is no defence to the suit.
- Plaintiff has to give a vakalatnama saying that the defendant has no defense.

(5) The defendant may, at any time within ten days from the service of such summons for
judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to
entitle him to defend, apply on such summons for leave to defend such suit, and leave to
defend may be granted to him unconditionally or upon such terms as may appear to the Court
or Judge to be just:
- Defendant may take permission from Court to file WS.

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts
disclosed by the defendant do not indicate that he has a substantial defence to raise or that the
defence intended to be put up by the defendant is frivolous vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the
defendant to be due from him, leave to defend the suit shall not be granted unless the amount
so admitted to be due is deposited by the defendant in Court.
- If there is an amount payable by the defendant, the other party has to be paid that amount
before proceeding with the suit.

(6) At the hearing of such summons for judgment,-

(a) if the defendant has not applied for leave to defend, or if such application has been made
and is refused, the plaintiff shall be entitled to judgment forthwith; or
- The Court may pronounce a judgment on the same day.

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court
or Judge may direct him to give such security and within such time as may be fixed by the
Court or Judge and that, on failure to give such security within the time specified by the
Court or Judge or to carry out such other directions as may have been given by the Court or
Judge, the plaintiff shall be entitled to judgment forthwith.
- Wherever the defendant defaults, plaintiff is entitled to judgment.

(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of
the defendant in entering an appearance or in applying for leave to defend the suit.
- The court may give extra time to the defendant both for first day appearance as well as leave
to defend the suit. An application to “leave to defend” cannot be considered as a guarantee
note. The court may grant a reasonable time to the defendant.

Rule 4: After decree the Court may, under special circumstances set aside the decree, and if
necessary stay or set aside execution, and may give leave to the defendant to appear to the
summons and to defend the suit, if it seems reasonable to the Court so to de, and on such
terms as the Court thinks fit.
- If there is a proper reason, the court will consider such a reason and set aside the decree.

Rule 5: Power to order bill, etc., to be deposited with officer of court

In any proceeding under this Order the Court may order the bill, hundi or note on which the
suit is founded to be forthwith deposited with an officer of the Court, and may further order
that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.
- All BOEs, original documents must be submitted to the officer of Court. The purpose
behind this is to prevent multiple litigations.

Rule 6: Recovery of cost of noting non-acceptance of dishonoured bill or note

The holder of every dishonoured bill of exchange or promissory note shall have the same
remedies for the recovery of the expenses incurred in noting the same for non-acceptance or
non-payment, or otherwise, by reason of such dishonour, as he has under this Order for the
recovery of the amount of such bill or note.
- Example: Cheque bounce.
- He may act for such recovery of money

Rule 7: Save as provided by this Order, the procedure in suits hereunder shall be the same as
the procedure in suits instituted in the ordinary manner.
- But for the WS and Summons for judgment (different for Bombay HC; Summons for
judgment- 6 months), everything else under the suit is same as CPC.
Case: Raj Trading vs UOI (Court rule book time period would prevail over CPC)
- If defendant can convince the court, on the date of Summons of Judgment, that he has a
triable issue and has a defence to make and he is willing to pay some part of the dispute, court
shall give him a chance to defence wherein it will transfer the suit from Order 37 to general
suit process (framing issues, WS, proceedings, etc.).

ORDER 15:- disposing of suit at first hearing

Rule 1: Parties not at issue— Where at the first hearing of a suit it appears that the parties are
not at issue on any question of law or of fact, the Court may at once pronounce judgment.

Rule 2: One of several defendants not at issue— [183][(1)] Where there are more defendants
than one, and any one of the defendants is not at issue with the plaintiff on any question of
law or of fact, the Court may at once
Pronounce judgment for or against such defendant and the suit shall proceed only against the
other defendants.

Rule 3: Parties at issue- (1) Where the parties are at issue on some question of law or of fact,
and issues have been frame by the Court as herein before provided, if the Court is satisfied
that no further argument or evidence than the parties can at once adduce is required upon
such of the issues as may be sufficient for the decision of the suit, and that no injustice will
result from proceeding with the suit forthwith, the Court may proceed to determine such
issues, and , if the finding thereon is sufficient for the decision, may pronounce judgment
accordingly, whether the summons has been issued for the settlement of issues only or for the
final disposal of the suit :
- If paper itself is sufficient to prove the facts, then an order can be given based on the papers
itself.
Provided that, where the summons has been issued for the settlement of issues only, the
parties or their pleaders are present and none of them objects.
- “Parties at issue” refers to the people that would actually be affected by the suit.
(2) Where the finding is not sufficient for the decision, the Court shall postpone the further
hearing of the suit, and shall fix a day for the production of such further evidence, or for such
further argument as the case requires.
- If paper is not sufficient, then evidence is required as well. In such a case, the court would
just give another date to produce such evidence.

Rule 4: Failure to produce evidence— Where the summons has been issued for the final
disposal of the suit and either party fails without sufficient cause to produce the evidence on
which he relies, the Court may at once pronounce judgment, or any, if it thinks fit, after
framing and recording issues, adjourn the suit for production of such evidence as may be
necessary for its decision upon such issues.
- In all cases, the first witness is the plaintiff. Second, defendant.
- There are cases where the first fitness is a third party. This happens in testamentary suits
since the first witness is the witness of the will. (Witness of the will cannot be beneficiary of
the will)
Case: Priyamvadhaa Birla Will Case

ORDER 16:- summon

Rule 1: List of witnesses and summons to witnesses— (1) On or before such date as the
Court may appoint, and not later than fifteen days after the date on which the issues are
settled, the parties shall present in Court a list of witnesses whom they propose to call either
to give evidence or to produce documents and obtain summonses to such person for their
attendance in Court.
A party desirous of obtaining any summons for the attendance of any person shall file in
Court an application stating therein the purpose for which the witness is proposed to be
summoned.
The Court may, for reasons to be recorded, permit a party to call, whether by summoning
through Court or otherwise, any witness, other than those whose names appear in the list
referred to in sub-rule (1), if such part shows sufficient cause for the omission to mention the
name of such witness in the said list.
Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained
by the parties on an application to the Court or to such officer as may be appointed by the
Court in this behalf.
- When you forget to mention a witness, you may give a reason for the same and if its
genuine, the court may allow you to add a witness.

Rule 1A: Production of witnesses without summons— A subject to the provisions of sub-rule
(3) of rule 1, and party to the suit may, without applying for summons under rule 1, bring any
witness to give evidence or to produce documents.

Rule 2: Expenses of witnesses to be paid into Court on applying for summons— (1) The
party applying for a summons shall, before the summons is granted and within a period to be
fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray
the travelling and other expenses of the person summoned in passing to and from the Court in
which he is required to attend, and for one day's attendance.
Experts—In determining the amount payable under this rule, the Court may, in the case of
any person summoned to give evidence as an expert, allow reasonable remuneration for the
time occupied both in giving evidence and in performing any work of an expert character
necessary for the case.
Scale of expenses—Where the Court is subordinate to High Court, regard shall be had, in
fixing the scale of such expenses to any rules made in that behalf.
- The cost of witness travelling, etc must be paid into court
(4)] Expenses to be directly paid to witnesses—Where the summons is served directly by the
party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the
party or his agent.

Rule 3: Tender of expenses to witness— The sum so paid into Court shall be tendered to the
person summoned, at the time of serving the summons, if it can be served personally.
- If there are personal summons, they will give it to you.

Rule 6: Summons to produce document— Any person may be summoned to produce a

document, without being summoned to give evidence, and any person summoned merely to
produce a document shall be deemed to have complied with the summons if he causes such
document to be produced instead of attending personally to produce the same.
- Example: A bank manager is asked to produce extracts from court ledger. He does not have
to give it to court personally. He can send someone on his behalf.

Rule 10: 1) Where a person to whom a summons has been issued either to attend to give
evidence or to produce a document, fails to attend or to produce the document in compliance
with such summons, the Court—
 shall, if the certificate of the serving officer has not been verified by affidavit, or if
service of the summons has been effected by a party or his agent, or
 may, if the certificate of the serving officer has been so verified.
examine on oath the serving officer or the party or his agent, as the case may be, who has
effected service, or cause him to be so examined by any Court, touching the service or non-
service of the summons.
- In such cases, the court may then, if the summons have been properly served on him, punish
by attachment of his assets and also make orders for his arrest.
- Nothing of this kind happens.
It has become very difficult to make such orders since the case of- Jolly George Varghese vs
Bank of Cochin
- In Criminal cases, Government officers are first called as witnesses (the investigators). In
Civil cases, example: the Bankers’ Book Act also has a provision where an officer is
appointed to go to court as a witness in case of any dispute. Such an officer would go to court
and give his testimony.
- Jurisdiction of adoption cases have been given to the principle judge. Before him, certain
officers from the agency come and give their statement.

Rule 13: The court can order attachment of assets and arrest the witness if he fails to comply.
He can be fined with 500 INR.

Rule 14: Court may of its own accord summon as witnesses strangers to suit.— Subject to
the provisions of this Code as to attendance and appearance and to any law for the time being
in force, where the Court at any time thinks it necessary to examine any person, including a
party to the suit] and not called as witness by a party to the suit, the Court may, of its own
motion, cause such person to be summoned as a witness to give evidence, or to produce any
document in his possession on a day to be appointed, and may examine him as a witness or
require him to produce such document.
- The court may call any expert of the subject.
- The court may also call any commissioner to take evidence. This happens often in HC.
Rule 15: Duty of persons summoned give evidence or produce document— Subject as last
aforesaid, whoever is summoned to appear and give evidence in a suit shall attend at the time
a place named in the summons for that purpose, and whoever is summoned to produce a
document shall either attend to produce it, or cause it to be produced, at such time and place.
- If they have any evidence, they shall give.
Q. Who would be a witness in your suit? – Anyone who has the knowledge about the facts of
the suit and anyone who would testify in your favour.

Rule 19: No witness to be ordered to attend in person unless resident within certain limits—
No one shall be ordered to attend in person to give evidence unless he resides—
within the local limits of the Court's ordinary original jurisdiction, or
- not possible anymore.
without such limits but at a place less than or (where there is railway or steamer
communication or other established public conveyance for five-sixths of the distance between
the place where he resides and the place were the Court is situate) less than five hundred
kilometers distance from the Court-house : (irrelevant now)
Provided that where transport by air is available between the two places mentioned in this
rule and the witness is paid the fare by air, he may be ordered to attend in person.

Rule 20: Consequence of refusal of party to give evidence when called on by Court— Where
any party to a suit present in Court refuses, without lawful excuse, when required by the
Court, to give evidence or to produce any document then and there in his possession or
power, the Court may pronounce judgment against him or make such order in relation to the
suit as it thinks fit.

Rule 21: Rules as to witnesses to apply to parties summoned— where any party to a suit is
required to give evidence or to produce a document, the provisions as to witnesses shall apply
to him so for as they are applicable.
- Also applies to those parties who have been summoned by the court.

ORDER 16A- NOT IMPORTANT (Read 1 and 7 only)

- Those who are in prison can be served the notice through jailor and their evidence can be
taken by means of court commissioner. They are then brought in custody. All notices are
brought through warden.
- This usually does not happen in civil cases.
- If one of the parties is in jail, his lawyer can still plead.
ORDER 17:- (ADJOURNMENTS)
Rule 1: Court may grant time and adjourn hearing—(1) The Court may, if sufficient cause is
shown, at any stage of the suit grant time to the parties or to any of them, and may from time
to time adjourn the hearing of the suit. (does not happen)
(2) Costs of adjournment—In every such case the Court shall fix a day for the further hearing
of the suit and may make such order, as it thinks fit with respect to the costs occasioned by
the adjournment:
- The courts may award costs to the other party which are normally done.
When the hearing of the suit has commenced, it shall be continued from day-to-day until all
the witnesses in attendance have been examined, unless the Court finds that, for the
exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following
day is necessary.
- There is no day to day hearing unless there is an order given by the HC
Case: Spencers vs Vishwabharti (Day to day hearing ordered by HC. If not followed, there
may be a contempt of court)

- No adjournment shall be granted at the request of a party, except where the circumstances
are beyond the control of that party.
- The fact that the pleader of a party is engaged in another Court, shall not be a ground for
adjournment.
Q. What do courts do in such cases?
- “Keep back”- court would hear the case after the recess of the court.

Where the illness of a pleader or his inability to conduct the case for any reason, other than
his being engaged in another Court, is put forward as a ground for adjournment, the Court
shall not grant the adjournment unless it is satisfied that the party applying for adjournment
could not have engaged another pleader in time.
- Usually court gives 4-15 days in case of sickness or death in the family. This is done by the
court so that the party is well represented.

Where a witness is present in Court but a party or his pleader is not present or the party or his
pleader, though present in Court, is not ready to examine or cross-examine the witness, the
Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks
fit dispensing with the examination-in-chief or cross-examination of the witness, as the case
may be, by the party or his pleader not present or not ready as aforesaid.
- The statement of the witness will be taken by the court, no evidence, no cross examination,
no examination-in-chief will be done.

Rule 2: Procedure if parties fail to appear on day fixed, — Where, on any day to which the
hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may
proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make
such other order as it thinks fit.
- Court may make the whole decree as ex parte.
- If the plaintiff does not appear, case is dismissed.
- If defendant does not show up, he has no defense.
Explanation.—Where the evidence or a substantial portion of the evidence of any party has
already been recorded and such party fails to appear on any day to which the hearing of the
suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were
present.
- Example: Defendant has not come but plaintiff’s lawyer is making submission. In such a
case, the court may proceed as if the defendant was present.

Rule 3: Court may proceed notwithstanding either party fails to produce evidence, etc.—
Where any party to a suit to whom time has been granted fails to produce his evidence, or to
cause the attendance of his witnesses, or to perform any other act necessary to the further
progress of the suit, for which time has been allowed, [the Court may, notwithstanding such
default,—
 if the parties are present, proceed to decide the suit forthwith, or
 if the parties are, or any of them is, absent, proceed under rule 2].
- The court can take its discretion whether to dismiss the suit or keep hearing it if a
substantial part of the matter has been formed.

ORDER 18:- HEARING OF SUIT AND EXAMINATION OF WITNESS

Rule 1: Right to begin— The plaintiff has the right to begin unless the defendant admits the
facts alleged by the plaintiff and contends that either in point of law or on some additional
facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he
seeks, in which case the defendant has the right to begin.
- Incase the defendant has a very strong defense, then the defendant has the right to begin.
Example: If defendant has to begin on grounds of jurisdiction or limitations.
Rule 2: (1) On the day fixed for the hearing of the suit or on any other day to which the
hearing is adjourned, the party having the right to begin shall state his case and produce his
evidence in support of the issues which he is bound to prove.
- The burden of proof is on the plaintiff. Therefore, he shall bring his evidence and witness
and he will prove his case.
 The other party shall then state his case and produce his evidence (if any) and may
then address the Court generally on the whole case.
- The other party may do the same and address the court on basis of law, facts, etc.
 The party beginning may then reply generally on the whole case.

Rule 3: Evidence where several issues.—Where there are several issues, the burden of
proving some of which lies on the other party, the party beginning may, at his option, either
produce his evidence on those issues or reserve it by way of answer to the evidence produced
by the other party; and, in the latter case, the party beginning may produce evidence on those
issues after the other party has produced all his evidence, and the other party may then reply
specially on the evidence so produced by the party beginning; but the party beginning will
then be entitled to reply generally on the whole case.
- A makes an aversion. B denies. A clarifies.
Any party may address oral arguments in a case, and shall, before he concludes the oral
arguments, if any, submit if the Court so permits concisely and under distinct headings
written arguments in support of his case to the Court and such written arguments shall form
part of the record.
A copy of such written arguments shall be simultaneously furnished to the opposite party.
Q. Difference between oral arguments and written statement- You can argue law and facts
and policy, precedents and customs in oral arguments but we cannot include them in written
statement. Plaint is facts and WS is challenging those facts and oral argument is supporting it
with law.

Q. What all do you present at the time of Oral evidence?

- Everything contained in the plaint and WS has to be collaborated with evidence. In oral
argument, you can argue customs, laws, facts, precedents, cross examination, but all of this
cannot be contained in plaint and WS. The entire plaint contains facts (Order 6).
- Whatever is given in the court, you will have to give the same to the opposite party.

No adjournment shall be granted for the purpose of filing the written arguments unless the
Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
The Court shall fix such time limits for the oral arguments by either of the parties in a case, as
it thinks fit.
- Part of the record is useful to the parties.

Rule 3A: Party to appear before other witnesses— Where a party himself wishes to appear as
a witness, he shall so appear before any other witness on his behalf has been examined,
unless the Court, for reasons to be recorded permits him to appear as his own witness at a
later stage.
Q. Is the plaintiff a witness or not?
– Yes. When he is producing he document, he has to produce them all on his own. Therefore,
he is the first witness.
- Sometimes, he is not the first witness. This usually happens in testamentary suits.

Rule 4: Recording of Evidence

(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies
thereof shall be supplied to the opposite party by the party who calls him for evidence.
- All that he has to say must be added in the affidavit, one copy to court, and one to the
opposite party.

Provided that where documents are filed and the parties rely upon the documents, the proof
and admissibility of such documents which are filed along with affidavit shall be subject to
the Orders of the Court.
- This is the outcome of admission and denial in court.
Q. If a documents is required to be registered and if it’s unregistered, is it admissible as
evidence? – No. they become inadmissible.
- Documents cannot be taken into consideration they are impounded.
- Documents that are required to be stamped and no such stamp duty is paid then such a
document will be ceased by the court and penalty will be given. (Impounded documents)

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose
evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken
either by the Court or by the Commissioner appointed by it:
- The court may take evidence itself (happens in small causes courts and city civil courts) or
by a commissioner appointed it (happens in HC).
- This happens in many testamentary maters in HC.

Provided that the Court may, while appointing a commission under this sub-rule, consider
taking into account such relevant factors as it thinks fit:
(3) The Court or the Commissioner, as the case may be, shall record evidence either in
writing or mechanically (typewriter) in the presence of the Judge or of the Commissioner, as
the case may be, and where such evidence is recorded by the Commissioner he shall return
such evidence together with his report in writing signed by him to the Court appointing him
and the evidence taken under it shall form part of the record of the suit.
- The commissioner shall take all evidence and give it to the court.

Example: A makes a plaint against B asking money after 13 years. B who has received the
benefits of a proven will wants to contest A’s claim. Both of them were heirs.
- B must take out an application under Order 7, Rule 11 and should present it in front of the
court since A is 13 years late. (Limitations Act; only from the facts of the case, it is clear
what the law is and therefore, there is no need for precedents for this case either.)

(4) The Commissioner may record such remarks as it thinks material respecting the
demeanour of any witness while under examination.
- How the witness looked, whether nervous, etc.

Provided that any objection raised during the recording of evidence before the Commissioner
shall be recorded by him and decided by the Court at the stage of arguments.
- When the commissioner is taking evidence, sometimes party refuses to give answers. The
commissioner is supposed to record such a party saying no and then the court may ask the
party the same questions during oral evidence.

(5) The report of the Commissioner shall be submitted to the Court appointing the
commission within sixty days from the date of issue of the commission unless the Court for
reasons to be recorded in writing extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of
Commissioners to record the evidence under this rule.

(7) The Court may by general or special Order fix the amount to be paid as remuneration for
the services of the Commissioner.

(8) The provisions of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are
applicable, shall apply to the issue, execution and return of such commissions under this rule.

Rule 5: How evidence shall be taken in appealable cases.—In case in which an appeal is
allowed, the evidence of each witness shall be,— (a) taken down in the language of the
Court,— (i) in writing by, or in the presence and under the personal direction and
superintendence of, the Judge, or (ii) from the dictation of the Judge directly on a typewriter;
or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the
language of the Court in the presence of the Judge.
- Nowadays there is a simple system where the judge says, the stenographer notes it down.
- Even if the statute says you have no appeal, you may still approach the HC under S.136
(Special leave petition) or A. 227 (Supervisory Jurisdiction; HC will see whether such an
order was made in a perverse manner. Conditions: Prima facie of the judgment, it is clear that
it was wrong. Such a matter may be quashed and set for a new hearing by the respective
court.)

Rule 6: When deposition to be interpreted.—Where the evidence is taken down in a language

different from that in which it is given, and the witness does not understand the language in
which it is taken down, the evidence as taken down in writing shall be interpreted to him in
the language in which it is given.

Rule 7: Evidence under section 138.—Evidence taken down under section 138 shall be in the
form prescribed by rule 5 and shall be read over and signed and, as occasion may require,
interpreted and corrected as if it were evidence taken down under that rule.
- In one such case, Testamentary matter between two brothers. In this case, the witness gave
his testimony in another language and the lawyer noted it down in a different way which
would favour him. Henceforth, all affidavits must be signed by the oath commissioner of the
court, not the notary.

Rule 8: Memorandum when evidence not taken down by Judge.—Where the evidence is not
taken down in writing by the Judge, 4 [or from his dictation in the open Court, or recorded
mechanically in his presence,] he shall be bound, as the examination of each witness
proceeds, to make a memorandum of the substance of what each witness deposes, and such
memorandum shall be written and signed by the Judge and shall form part of the record.
- If it is a complicated matter, is this a safe way of taking evidence?- No.

Rule 9: When evidence may be taken in English.—(1) Where English is not the language of
the Court, but all the parties to the suit who appear in person, and the pleaders of such of the
parties as appear by pleaders, do not object to having such evidence as is given in English,
being taken down in English, the judge may so take it down or cause it to be taken down.
- If there is a court if Orissa where Oriya is the language and both parties agree to it, it would
continue in Oriya.
(2) Where evidence is not given in English but all the parties who appear in person, and the
pleaders of such of the parties as appear by pleaders, do not object to having such evidence
being taken down in English, the Judge may take down, or cause to be taken down, such
evidence in English.
- Evidence is taken down in English so that it can help with other appeals.
Case: Swastik Gases Pvt Ltd vs Indian Oil Corporation Ltd.
In one contract, the clause mentioned that incase of dispute, Kolkata would have the
jurisdiction. The other party challenged it saying that it was not, mentioned that ONLY
Kolkata would have the jurisdiction. SC held that since the contract had a special clause that
mentioned the jurisdiction, the intention of parties was intended. This was part of a big case
that was- Kolmar Group AG v Traxpo Enterprises Pvt Limited - 2010

Rule 10: Any particular question and answer may be taken down.—The Court may, of its
own motion or on the application of any party or his pleader, take down any particular
question and answer, or any objection to any question, if there appears to be any special
reason for so doing.
- Becomes useful in the appeal

Rule 11: Questions objected to and allowed by Court —Where any question put to a witness
is objected to by a party or his pleader, and the Court allows the same to be put, the Judge
shall take down the question, the answer, the objection and the name of the person making it,
together with the decision of the Court thereon.

Rule 12: Remarks on demeanour of witnesses.—The Court may record such remarks as it
thinks material respecting the demeanour of any witness while under examination.

Rule 13: Memorandum of evidence in unappealable cases.—In cases in which an appeal is

not allowed, it shall not be necessary to take down or dictate or record the evidence of the
witnesses at length; but the Judge, as the examination of each witness proceeds shall make in
writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a
memorandum of the substance of what the witness deposes, and such memorandum shall be
signed by the Judge or otherwise authenticated, and shall form part of the record.
- You have no statutory right but under supervisory jurisdiction, you can appeal. Under
supervisory jurisdiction, you must assail that the jurisdiction was neither applied nor
excessively applied.
- Unappealable cases- where amount is very small and where there has been a consent decree

Rule 15: Power to deal with evidence taken before another Judge.—(1) Where a Judge is
prevented by death, transfer or other cause from concluding the trial of a suit, his successor
may deal with any evidence or memorandum taken down or made under the foregoing rules
as if such evidence or memorandum had been taken down or made by him or under his
direction under the said rules and may proceed with the suit from the stage at which his
predecessor left it.
(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to
evidence taken in a suit transferred under section 24.
- Provision for another judge to resume the case of another judge incase of death, etc.

Rule 16: Power to examine witness immediately—(1) Where a witness is about to leave the
jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court
why his evidence should be taken immediately, the Court may, upon the application of any
party or of the witness, at any time after the institution of the suit, take the evidence of such
witness in manner hereinbefore provided.
(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice
as the Court thinks sufficient, of the day fixed for the examination, shall be given to the
parties.
(3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct,
shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it,
and it may then be read at any hearing of the suit.

Rule 17: Court may recall and examine witness.—The Court may at any stage of a suit recall
any witness who has been examined and may (subject to the law of evidence for the time
being in force) put such questions to him as the Court thinks fit.
- Court cannot demand privilege information/ evidence (what transpires between a person and
his lawyer) and original documents.

Rule 18: Power of Court to inspect.—The Court may at any stage of a suit inspect any
property or thing concerning which any question may arise and where the Court inspects any
property or thing it shall, as soon as may be practicable, make a memorandum of any relevant
facts observed at such inspection and such memorandum shall form a part of the record of the
suit.
- Rarely happens; when court requires evidence, he shall appoint a court commissioner who
shall do he needful.

Rule 19: Power to get statements recorded on commission.—Notwithstanding anything

contained in these rules, the court may, instead of examining witnesses in open court, direct
their statements to be recorded on commission under rule 4A of Order XXVI.

ORDER 19:- AFFIDAVITS

Rule 1: Power to order any point to be proved by affidavit.—Any Court may at any time for
sufficient reason order that any particular fact or facts may be proved by affidavit, or that the
affidavit of any witness may be read at the hearing, on such conditions as the Court thinks
reasonable: Provided that where it appears to the Court that either party bona fide desires the
production of a witness for cross-examination, and that such witness can be produced, an
order shall not be made authorizing the evidence of such witness to be given by affidavit.
- A witness can be called to court then it is preferable to not ask for affidavits. Cross
examination helps more than an affidavit.
(Book- The Devil’s advocate-ways of cross examination and grilling)

Rule 2: Power to order attendance of deponent for cross-examination.—(1) Upon any

application evidence may be given by affidavit, but the Court may, at the instance of either
party, order the attendance for cross-examination of the deponent. (2) Such attendance shall
be in Court, unless the deponent is exempted from personal appearance in Court, or the Court
otherwise directs.
- Exempted from personal appearance: Illness, Old timers, those people who hold high ranks
(you do not send them summons, you send them a letter)
- Minor’s evidence is also taken especially in family law cases.

Rule 3: Matters to which affidavits shall be confined.—(1) Affidavits shall be confined to

such facts as the deponent is able of his own knowledge to prove, except on interlocutory
applications, on which statements of his belief may be admitted: provided that the grounds
thereof are stated. (2) The costs of every affidavit which shall unnecessarily set forth matters
of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the
Court otherwise directs) be paid by the party filing the same.
- Example: Concept of “Best Evidence” in Evidence Act which means in case of document, it
is an original document and if it’s a witness, his testimony is taken.

Rule 4: Court may control evidence. — (1) The Court may, by directions, regulate the
evidence as to issues on which it requires evidence and the manner in which such evidence
may be placed before the Court. (2) The Court may, in its discretion and for reasons to be
recorded in writing, exclude evidence that would otherwise be produced by the parties.

ORDER 20:-
Rule 1: (1) The Court, after the case has been heard, shall pronounce judgment in an open
Court, either at once, or as soon thereafter as may be practicable and when the judgment is to
be pronounced on some future day, the Court shall fix a day for that purpose, of which due
notice shall be given to the parties or their pleaders:
Provided that where the judgment is not pronounced at once, every endeavour shall be made
by the Court to pronounce the judgment within thirty days from the date on which the hearing
of the case was concluded but, where it is not practicable so to do on the ground of the
exceptional and extraordinary circumstances of the case, the Court shall fix a future day for
the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty
days from the date on which the hearing of the case was concluded, and due notice of the day
so fixed shall be given to the parties or their pleaders.
(1) The Commercial Court, Commercial Division, or Commercial Appellate Division, as the
case may be, shall, within ninety days of the conclusion of arguments, pronounce judgment
and copies thereof shall be issued to all the parties to the dispute through electronic mail or
otherwise.]
(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the
Court on each issue and the final order passed in the case are read out and it shall not be
necessary for the Court to read out the whole judgment.
(3) The judgment may be pronounced by dictation in open Court to a shorthand writer if the
Judge is specially empowered by the High Court in this behalf: Provided that, where the
judgment is pronounced by dictation in open Court, the transcript of the judgment so
pronounced shall, after making such correction therein as may be necessary, be signed by the
judge, bear the date on which it was pronounced, and form a part of the record.
- Judgments are checked, their errors are counted and then signed.

Rule 2: Power to pronounce judgment written by judge's predecessor.-- [A Judge shall]

pronounce a judgment written, but not pronounced, by his predecessor.

Rule 3: Judgment to be signed.—The judgment shall be dated and signed by the Judge in
open Court at the time of pronouncing it and, when once signed, shall not afterwards be
altered or added, to save as provided by section 152 or on review.
- Once made, there can be no alteration unless there is an addition as per S. 152
(S. 152- Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in
judgments, decrees or orders or errors arising therein from any accidental slip or omission
may at any time be corrected by the Court either of its own motion or on the application of
any of the parties.)

Rule 4: Judgments of Small Cause Courts.—(1) Judgments of a court of Small Causes need
not contain more than the points for determination and the decision thereon.
- “What is to be decided and what has to be decided”
- Issues at hand in small cause courts: Tenant at suffering
(2) Judgments of other Courts.—Judgments of other Courts shall contain a concise statement
of the case, the points for determination (issues), the decision thereon, and the reasons for
such decision (compulsory).
- The court hears both parties, their reliance on precedents and then further decide.

Rule 5: Court to state its decision on each issue.—In suits in which issues have been framed,
the Court shall state its finding or decision, with the reasons therefor, upon each separate
issue, unless the finding upon any one or more of the issue is, sufficient for the decision of
the suit.
Defendant Issues:
- Jurisdiction
- Whether suit is barred for limitation
Plaintiff Issues:
- Whether plaintiff proves that he is entitled to property as per the schedule
-Whether Plaintiff proves that he is entitled to compensation
If Defendant’s issues are proved, court may not proceed with the case.

Rule 6: Contents of decree.—(1) The decree shall agree with the judgment: it shall contain
the number of the suit, the [names and descriptions of the parties, their registered addresses,]
and particulars of the claim, and shall specify clearly the relief granted or other determination
of the suit.
- decides the proportion of each person
(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of
what property and in what proportions such costs are to be paid.
(3) The Court may direct that the costs payable to one party by the other shall be set off
against any sum which is admitted or found to be due from the former to the latter.
- The other party must pay for the expenses.

Rule 6A: Preparation of decree.—(1) Every endeavour shall be made to ensure that the
decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the
date on which the judgment is pronounced.
(2) An appeal may be preferred against the decree without filing a copy of the decree and in
such a case the copy made available to the party by the court shall for the purposes of rule 1
of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall
cease to have the effect of a decree for the purposes of execution or for any other purpose.
- With the judgment also you may go ahead and go for a decree.
Rule 6B: Copies of judgments when to be made available.—Where the judgment is
pronounced, copies of the judgment shall be made available to the parties immediately after
the pronouncement of the judgment for preferring an appeal on payment of such charges as
may be specified in the rule made by the High Court
- Must ensure that immediately after the order is made, you approach the court, file an
application and get your judgment. If court is delayed, you get extension for appeal.
- Period for review: 30 days

Rule 7: Date of decree.—The decree shall bear the day on which the judgment was
pronounced, and, when the judge has satisfied himself that the decree has been drawn up in
accordance with the judgment, he shall sign the decree.

Rule 8: Procedure where Judge has vacated office before signing decree.—Where a Judge has
vacated office after pronouncing judgment but without signing the decree, a decree drawn up
in accordance with such judgment may be signed by his successor or, if the Court has ceased
to exist, by the Judge of any Court to which such Court was subordinate.
- If a tribunal or court has been abolished, then in such cases, it can be done (decree signed)
by another judge.

Rule 9: Decree for recovery of immovable property.—Where the subject-matter of the suit is
immovable property, the decree shall contain a description of such property sufficient to
identify the same, and where such property can be identified by boundaries or by numbers in
a record of settlement or survey, the decree shall specify such boundaries or numbers.
- Description of property should be there inside the order for certainty of immovable
property.
---
Rule 10: Decree for delivery of movable property.—Where the suit is for movable property,
and the decree is for the delivery of such property, the decree shall also state the amount of
money to be paid as an alternative if delivery cannot be had.
- If you cannot give delivery, you may also ask the court to make financial restitution.
Q. What can be done incase of Antique or Heirloom?
- Have it valued, add some valuation and finish off the transaction.

- If goods cannot be given, it is ascertained how much money is to be given.

.
Rule 11: Decree may direct payment by instalments.—(1) Where and in so far as a decree is
for the payment of money, the Court may for any sufficient reason [incorporate in the decree,
after hearing such of the parties who had appeared personally or by pleader at the last
hearing, before judgment, an order that] payment of the amount decreed shall be postponed or
shall be made by instalments, with or without interest, notwithstanding anything contained in
the contract under which the money is payable.
- Benchmark Interest in India: 6% pa
- Incase of money suits, court may allow payment in instalments
(2) Order, after decree, for payment by instalments.—After the passing of any such decree
the Court may, on the application of the judgment-debtor and with the consent of the decree-
holder, order that payment of the amount decreed shall be postponed or shall be made by
instalments on such terms as to the payment of interest, the attachment of the property of the
judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.
- Even after a decree is made, application can be taken out by the judgment debtor. Decree
holder must be present in such a hearing.

Rule 12: Decree for possession and mesne profits.—(1) Where a suit is for the recovery of
possession of immovable property and for rent or mesne profits, the Court may pass a decree
— (a) for the possession of the property;
Q. Can court pass a preliminary decree asking the tenant to give back possession of the house
to the landlord? –No.
Example: Tenant has sublet people in the house. Landlord claims that he has no right as a
tenant now. He has also not paid rent for the last three years. Court can order eviction as a
preliminary decree. Here, court can give one preliminary decree regarding the possession and
a final decree on mesne profits. Court cannot give preliminary decree for mesne profits.
- Rents are crystallized. Mesne profits are uncertain.
- Whenever you make an application to the court, must make sure what is crystallized and
what is uncertain. In case of breach of a contract, you look for damages of the contract. Now
incase damages is not mentioned, you prove the damages suffered. (This is the difference
between crystallised claims and uncrystallised claim. Read: ONGC vs Sawpipes)
(b) for the rents which have accrued on the property during the period prior to the institution
of the suit or directing an inquiry as to such rent.
- they may pass an order or order an inquiry into such rent (inquiry would be done by court
commissioner or court may ask parties to get it evaluated by an evaluer)

(ba) for the mesne profits or directing an inquiry as to such mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit (a squatter)
until—
- When someone has trespassed into the society (a squatter). In such cases, such a squatter is
liable to pay damages. The landlord in such cases (to evict squatter) would approach the civil
court.
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder
through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
- Court can make all these orders in cases of rent control matters. This provision can be used
in the case of squatters.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the
rent or mesne profits shall be passed in accordance with the result of such inquiry.

Rule 12A: Decree for specific performance of contract for the sale or lease of immovable
property- Where a decree for the specific performance of a contract for the sale or lease of
immovable property orders that the purchase-money or other sum be paid by the purchaser or
lessee, it shall specify the period within which the payment shall be made.
Q. What must a plaintiff do in specific performance? What would he get? – Court would give
monetary damages and refund the sale deposit.

Example: A sells a plot of land to B on condition that conveyance will be done after full
amount is paid. B pays 25 lacs on a property worth 1cr. B wants conveyance. Here, B has to
prove in court that he can pay those 75 lacs. What must B tell the court first?
- That B has paid 25 lacs and he must prove that he is willing to pay the remaining 75 lacs.
- Words used in such contracts: “for specific relief”, “ready and willing” to complete your
part of the transaction (Buyer must prove that he is a value buyer)
Q. If contract has some provisions for payment and the matters reaches court and the court
orders that the money should be paid within three months, what would prevail—the court
order or the contract clause? – Court order.
- If payment is not made in this period, is the contract over?- No specific relief and contract is
lost.

Rule 13: Decree in administration suit.—(1) Where a suit is for an account of any property
and for its due administration under the decree of the Court, the Court shall, before passing
the final decree, pass a preliminary decree ordering such accounts and inquiries to be taken
and made, and giving such other directions as it thinks fit.
- An administration suit is, in essence, one in which a person, claiming rights, seeks court
orders for administration of the estate of a deceased person, be he a debtor, a testator—one
who left a Will-- or an intestate –one who did not make a will.
- Even Creditors can file a suit in certain cases.
- Can executor be made into a commissioner for taking accounts and rendering accounts? –
yes, unless there is a dispute over the will. In that case, Court then may appoint any executor
of its own record.

(2) In the administration by the Court of the property of any deceased person, if such property
proves to be insufficient for the payment in full of his debts and liabilities, the same rules
shall be observed as to the respective rights of secured and unsecured creditors and as to
debts and liabilities provable, and as to the valuation of annuities and future and contingent
liabilities respectively, as may be in force for the time being, within the local limits of the
Court in which the administration-suit is pending with respect to the estates of persons
adjudged or declared insolvent;
- Accounts of two people taken: 1. Dead persons 2. Insolvent person
and all persons who in any such case would be entitled to be paid out of such property, may
come in under the preliminary decree, and make such claims against the same as they may
respectively be entitled to by virtue of this Code.
- Secured creditors get full money. Left over is given to unsecured creditors. Unsecured
creditors are entitled to 50% of their amount.

Rule 14: Decree in pre-emption suit.—(1) Where the Court decrees a claim to pre-emption in
respect of a particular sale of property and the purchase-money has not been paid into Court,
the decree shall— (a) specify a day on or before which the purchase-money shall be so paid,
and (b) direct that on payment into Court of such purchase-money, together with the costs (if
any) decrees against the plaintiff, on or before the day referred to in clause (a), the defendant
shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to
have accrued from the date of such payment, but that, if the purchase-money and the costs (if
any) are not so paid, the suit shall be dismissed with costs.
- Pre-emption: A pre-emption right, right of pre-emption, or first option to buy is a
contractual right to acquire certain property newly coming into existence before it can be
offered to any other person or entity.
- Court will first set a date for man claiming pre-emption to pay the money. If he pays, that
part is transferred to him and if he does not, suit of pre-emptor would be dismissed.

(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,
— (a) if and in so far as the claims decreed are equal in decree, that the claim of each pre-
emptor complying with the provisions of sub-rule (1) shall take effect in respect of a
proportionate share of the property including any proportionate share in respect of which the
claim of any pre-emptor failing to comply with the said provisions would, but for such
default, have taken effect; and,
- If there are multiple claims, Court usually gives it to the higher of the two
- If the bidding amount is the same, court may divide it amongst them.
(b) if and in so far as the claims decreed are different in degree, that the claim of the inferior
pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply
with the said provisions.
Example: Between an actual brother and cousin brother, the actual brother would be the
superior pre-emptor. If the superior pre-emptor fails to make the payment, the court may give
the property share to the inferior pre-emptor i.e., the cousin brother.

Rule 15: Decree in suit for dissolution of partnership.—Where a suit is for the dissolution of
a partnership, or the taking of partnership accounts, the Court, before passing a final decree,
may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day
on which the partnership shall stand dissolved or be deemed to have been dissolved, and
directing such accounts to be taken, and other acts to be done, as it thinks fit.
- First preliminary decree for all shares and given off in proportion.
- Assets which have to be liquefied would be given in the final order.

Rule 16: Decree in suit for account between principal and agent.—In a suit for an account of
pecuniary transactions between a principal and an agent, and in any other suit not
hereinbefore provided for, where it is necessary, in order to ascertain the amount of money
due to or from any party, that an account should be taken, the Court shall, before passing its
final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.
- Court in matters of accounts, etc., would first appoint a court commissioner and on receipt
of that, court will proceed with distribution.

Rule 17: Special directions as to accounts.—The Court may either by the decree directing an
account to be taken or by any subsequent order give special direction with regard to the mode
in which the account is to be taken or vouched and in particular may direct that in taking the
account the books of account in which the accounts in question have been kept shall be taken
as prima facie evidence of the truth of the matters therein contained with liberty to the parties
interested to take such objection thereto as they may be advised.
- If commissioner takes the books is his power and starts the power, those books would be
deemed to be properly made. If any party feels there is any dishonesty, they may challenge it.
- In case of such accounts taken by lenders, what can be done? What do lenders do to
ascertain the credibility of accounts? – Forensic Audit (to ensure where money has siphoned)
Rule 18: Decree in suit for partition of property or separate possession of a share therein.—
Where the Court passes a decree for the partition of property or for the separate possession of
a share therein, then,— (1) if and in so far as the decree relates to an estate assessed to the
payment of revenue to the Government, the decree shall declare the rights of the several
parties interested in the property, but shall direct such partition or separation to be made by
the Collector (- District Land Record Officer), or any gazetted subordinate of the Collector
deputed by him in this behalf, in accordance with such declaration and with the provisions of
section 54;
(2) if and in so far as such decree relates to any other immovable property or to movable
property, the Court may, if the partition or separation cannot be conveniently made without
further inquiry, pass a preliminary decree declaring the rights of the several parties interested
in the property and giving such further directions as may be required.
- Can you partition every property properly by meats and bounds? –No.
- All divisions depend of the State Land Revenue Court.
- If the distribution is complicated, Court would first decide share for all parties in the
preliminary decree. After inquiry and understanding which property is divisible or not, the
court can pass the final order.

Rule 19: Decree when set-off or counter-claim is allowed.—(1) Where the defendant has
been allowed a set-off 1 [or counter-claim] against the claim of the plaintiff, the decree shall
state what amount is due to the plaintiff and what amount is due to the defendant, and shall be
for the recovery of any sum which appears to be due to either party.
- Example: Claim in plaint is mentioned as 1 lac. Counter claim is filed as 1.5 lac. Court must
mention both claims proved and therefore, plaintiff must pay defendant Rs. 50,000 as
mentioned in the final judgment.
(2) Appeal from decree relating to set-off or counter-claim.—Any decree passed in a suit in
which a set-off 1 [or counter-claim] is claimed shall be subject to the same provisions in
respect of appeal to which it would have been subject if no set-off 1 [or counter-claim] had
been claimed.
- First rule of counter claim: 1. It cannot be bare, has to be filed before the court as a counter
claim. 2. Pay court fees for his counter claim. If it’s not paid, trial may proceed without
written statement.
(3) The provisions of this rule shall apply whether the set-off is admissible under rule 6 of
Order VIII or otherwise.

Rule 20: Certified copies of judgment and decree to be furnished.—certified copies of the
judgment and decree shall be furnished to the parties on application to the Court, and at their
expense.
- When court pronounces an order, you must file an application to get the judgment as soon
as possible.
- Speaking to the minute: A Note for speaking to Minutes is required to be entertained only
for the limited purpose of correcting a typographical error or an error through oversight,
which may have crept in while transcribing the original order. Once, the judgment/order is
pronounced and if any party to the same wants any rectification of any typographical error
and any clerical mistake regarding the date or number, such a party may apply to the
concerned Court for correcting such an error in the judgment/order.
- HC and small causes court have an appeal bench. An appeal must be filed within 30 days.

ORDER 21:- (COSTS- done before)

Q. When can you get contractual interest? – When you have mentioned the interest in the
contract.

EXTRA DISCUSSION:-
Case: Damania case (S 151 CPC Nitin G. Thakker v St. of Maharashtra & anr. LV-VC-GSP
Interim App No.1 of 2020 in LC VC GSP 75 of 2020)
- Man isn't dead yet, he is in a vegetative state where he cannot draft a will or decide what
should be done with his property.
- Man is unmarried, no living heirs
- Lawyers claimed to pay for various costs
- Judgment: he has not died; there is no provision in CPC that grants this but the courts are
not powerless. Therefore, he applied S. 151 of CPC.
- When there is an absolute vacuum in some case, court may use S. 151
- Use of S. 151 cannot be contrary to any provision of CPC.

Interlocutory orders are orders that are issued by a court while a case is still ongoing.

These orders are not meant to be final. When the case is concluded, any aspect of
an interlocutory order that has not become moot may be challenged in an appeal from the
final judgment.

ORDER 38:-
Rule 1: Where defendant may be called upon to furnish security for appearance.—Where at
any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d),
the Court is satisfied, by affidavit or otherwise,—
(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court
or to obstruct or delay the execution of any decree that may be passed against him,—
(i) has absconded or left the local limits of the jurisdiction of the Court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the Court his
property or any part thereof, or
(b) that the defendant is about to leave 1 [India] under circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the execution of
any decree that may be passed against the defendant in the suit, the Court may issue a warrant
to arrest the defendant and bring him before the Court to show cause why he should not
furnish security for his appearance:
Provided that the defendant shall not be arrested if he pays to the officer entrusted with the
execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's
claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until
the further order of the Court.
- Petitioner must have a chance of winning
- Balance of convenience must be on your side
- Grave harm must not be caused to the other side when you ask for such reliefs
- Court keeps the defendant’s money as security. He does not give it to the plaintiff as there is
a possibility of him losing.

Rule 2: Security- (1) Where the defendant fails to show such cause the Court shall order him
either to deposit in Court money or other property sufficient to answer the claim against him,
or to furnish security for his appearance at any time when called upon while the suit is
pending and until satisfaction of any decree that may be passed against him in the suit, or
make such order as it thinks fit in regard to the sum which may have been paid by the
defendant under the proviso to the last preceding rule.
(2) Every surety for the appearance of a defendant shall bind himself, in default of such
appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.

Rule 3: Read

Rule 4: Procedure where defendant fails to furnish security or find fresh security.—Where the
defendant fails to comply with any order under rule 2 or rule 3, the Court may commit him to
the civil prison until the decision of the suit or, where a decree is passed against the
defendant, until the decree has been satisfied:
Provided that no person shall be detained in prison under this rule in any case for a longer
period than six months, nor for a longer period than six weeks when the amount or value of
the subject-matter of the suit does not exceed fifty rupees :
Provided also that no person shall be detained in prison under this rule after he has complied
with such order.

Rule 5: Where defendant may be called upon to furnish security for production of property.—
(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the
defendant, with intent to obstruct or delay the execution of any decree that may be passed
against him,—
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the
jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it,
either to furnish security, in such sum as may be specified in the order, to produce and place
at the disposal of the Court, when required, the said property or the value of the same, or such
portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he
should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be
attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any
portion of the property so specified.
- It is on the plaintiff to say how much property is to be attached.
(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of
this rule, such attachment shall be void.
Plaintiff has to prove that defendant is planning to go out of jurisdiction, plaintiff is right,
defendant is planning to sell such property, etc
- The court would give no relief in such a case without listening to the other side. Only in the
case of Anton pillar order or John Doe order can relief be given instantly. This is used mostly
in IPR matters. The “attachments” would be known as Mareva Injunctions.

Rule 6: Attachment where cause not shown or security not furnished.—(1) Where the
defendant fails to show cause why he should not furnish security, or fails to furnish the
security required, within the time fixed by the Court, the Court may order that the property
specified, or such portion thereof as appears sufficient to satisfy any decree which may be
passed in the suit, be attached.
(2) Where the defendant shows such cause or furnishes the required security, and the property
specified or any portion of it has been attached, the Court shall order the attachment to be
withdrawn, or make such other order as it thinks fit.
- If house has been attached, then defendant may leave fixed deposit as security.

Rule 7: Mode of making attachment.—Save as otherwise expressly provided, the attachment

shall be made in the manner provided for the attachment of property in execution of a decree.

Rule 8: Mode of making attachment.—Save as otherwise expressly provided, the attachment

shall be made in the manner provided for the attachment of property in execution of a decree.
What happens if his property is already attached? Can there be another property?
- Court will adjudicate the shares and decide who would get how much.

Rule 9: Removal of attachment when security furnished or suit dismissed.—Where an order

is made for attachment before judgment, the Court shall order the attachment to be withdrawn
when the defendant furnishes the security required, together with security for the costs of the
attachment, or when the suit is dismissed.

Rule 10: Attachment before judgment not to affect rights of strangers nor bar decree-holder
from applying for sale.—Attachment before judgment shall not affect the rights, existing
prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree
against the defendant from applying for the sale of the property under attachment in
execution of such decree.
- Stranger to the suit remains in the possession of the premises. This provision was added
incase people make false cases to have their tenants thrown out.

Rule 11: Property attached before judgment not to be re-attached in execution of decree.—
Where property is under attachment by virtue of the provisions of this order and a decree is
subsequently passed in favour of the plaintiff, it shall not be necessary upon an application
for execution of such decree to apply for a re-attachment of the property.

Rule 11A: Provisions applicable to attachment.—(1) The provisions of this Code applicable
to an attachment made in execution of a decree shall, so for as may be, apply to an attachment
made before judgment which continues after the judgment by virtue of the provisions of rule
11.
(2) An attachment made before judgment in a suit which is dismissed for default shall not
become revived merely by reason of the fact that the order for the dismissal of the suit for
default has been set aside and the suit has been restored.
- If there is an attachment and the suit has been dismissed, and suppose it’s brought back,
does the attachment also come back? – No.
Rule 13: Small Cause Court not to attach immovable property.—Nothing in this Order shall
be deemed to empower any Court of Small Causes to make an order for the attachment of
immovable property.

ORDER 39:-
Rule 1: Cases in which temporary injunction may be granted.—Where in any suit it is proved
by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view
to [defrauding] his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a
temporary injunction to restrain such act, or make such other order for the purpose of staying
and preventing the wasting, damaging, alienation, sale, removal or disposition of the property
[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any
property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until
further orders.

Rule 2A: Consequence of disobedience or breach of injunction.—(1) In the case of

disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of
any of the terms on which the injunction was granted or the order made, the Court granting
the injunction or making the order, or any Court to which the suit or proceeding is
transferred, may order the property of the person guilty of such disobedience or breach to be
attached, and may also order such person to be detained in the civil prison for a term not
exceeding three months, unless in the meantime the Court directs his release.
- You can get 3 months jail if you disobey an ad interim order.
(2) No attachment made under this rule shall remain in force for more than one year, at the
end of which time, if the disobedience or breach continues, the property attached may be sold
and out of the proceeds, the Court may award such compensation as it thinks fit to the injured
party and shall pay the balance, if any, to the party entitled thereto.

Rule 3: Before granting injunction, Court to direct notice to opposite party.—The Court shall
in all cases, except where it appears that the object of granting the injunction would be
defeated by the delay, before granting an injunction, direct notice of the application for the
same to be given to the opposite party:
 [Provided that, where it is proposed to grant an injunction without giving notice of the
application to the opposite party, the Court shall record the reasons for its opinion that the
object of granting the injunction would be defeated by delay, and require the applicant—
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the
order granting the injunction has been made, a copy of the application for injunction together
with— (i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant, relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately
following that day, an affidavit stating that the copies aforesaid have been so delivered or
sent.
- Injunction should be made by a special application.
- If Court grants immediate injunction, you’re supposed to send all documents to the other
side within that day.

Rule 4: Order for injunction may be discharged, varied or set aside.—Any order for an
injunction may be discharged, or varied, or set aside by the Court, on application made
thereto by any party dissatisfied with such order:
[Provided that if in an application for temporary injunction or in any affidavit supporting such
application, a party has knowingly made a false or misleading statement in relation to a
material particular and the injunction was granted without giving notice to the opposite party,
the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is
not necessary so to do in the interests of justice:
Provided further that where an order for injunction has been passed after giving to a party an
opportunity of being heard, the order shall not be discharged, varied or set aside on the
application of that party except where such discharge, variation or setting aside has been
necessitated by a change in the circumstances, or unless the Court is satisfied that the order
has caused undue hardship to that party.
- This order can be challenged in an appellate court.
- Wherever by fraud, an order is procured by the court, will such an order stand? –No. Such
an order would be withdrawn or taken.
- The court and the staute are both to be sympathetic to the party.

Rule 5: Injunction to corporation binding on its officer.—An injunction directed to a

corporation is binding not only on the corporation itself, but also on all members and officers
of the corporation whose personal action it seeks to restrain.
- Those officers that run day to day business of the company would be held liable.
- Now, one such person is appointed in every company who would be held liable in any
mismanagement.

Rule 6: Power to order interim sale.—The Court may, on the application of any party to a
suit, order the sale, by any person named in such order, and in such manner and on such
terms as it thinks fit, of any movable property, being the subject-matter of such suit, or
attached before judgment in such suit, which is subject to speedy and natural delay, or which
for any other just and sufficient cause, it may be desirable to have sold at once.
- It should be movable property (so that they do not perish)

Rule 7: Detention, preservation, inspection, etc., of subject-matter of suit.—(1) The Court

may, on the application of any party to a suit, and on such terms as it thinks fit,—
(a) make an order for the detention, preservation or inspection of any property which is the
subject-matter of such suit, or as to which any question may arise therein;
(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land
or building in the possession of any other party to such suit; and
(c) for all or any of the purposes aforesaid authorize any samples to be taken, or any
observation to be made or experiment to be tried, which may seem necessary or expedient for
the purpose of obtaining full information or evidence.
(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons
authorized to enter under this rule.
- Similar to the process of execution.
Q. Who does the inspection of these properties? –Court Commissioner

Rule 8: Application for such orders to be after notice.—(1) An application by the plaintiff for
an order under rule 6 or rule 7 may be made at any time after institution of the suit. (2) An
application by the defendant for a like order may be made at any time after appearance. 4 [(3)
Before making an order under rule 6 or rule 7 on an application made for the purpose, the
Court shall, except where it appears that the object of making such order would be defeated
by the delay, direct notice thereof to be given to the opposite party.
- Example: Urgency in case of movable property (since they are perishable)

Rule 9: When party may be put in immediate possession of land the subject-matter of suit.—
Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of
a suit, if the party in possession of such land or tenure neglects to pay the Government
revenue, or the rent due to the proprietor of the tenure. as the case may be, and such land or
tenure is consequently ordered to be sold, any other party to the suit claiming to have an
interest in such land or tenure may, upon payment of the revenue or rent due previously to the
sale (and with or without security at the discretion of the Court), be put in immediate
possession of the land or tenure; and the Court in its decree may award against the defaulter
the amount so paid, with interest thereon at such rate as the Court thinks fit, or may charge
the amount so paid, with interest thereon at such rate as the Court orders, in any adjustment
of accounts which may be directed in the decree passed in the suit.
- In case somebody has not paid up the tenure, it can be sold to someone else as well.
- If there are joint owners and one of them does not pay up, the other one can be in possession
of the property.

Rule 10: Deposit of money, etc., in Court.—Where the subject-matter of a suit is money or
some other thing capable of delivery and any party thereto admits that he holds such money
or other thing as a trustee for another party, or that it belongs or is due to another party, the
Court may order the same to be deposited in Court or delivered to such last-named party,
with or without security, subject to the further direction of the Court.
Example: If there is a suit for mesne profits, court directs the regular rents may be deposited
in the registrar office or if someone is holding the money in trust for someone else, they let it
be in trust. This is in case one of the parties is insufficient to pay money later in the suit.
Although now, the amount has been given to the tenant by the landlord at the very start
instead of keeping it with the court.
- A paying guest cannot claim possession over the property.

Q. When can Interlocutory orders be given by the Court?

Case- American Cynamide Company vs Ethicon Limited (1975)
Facts- The appellant was a company that held a patent for artificial absorbable surgical
sutures. The respondent was a company that intended to launch a suture to the British market
which the appellant claimed was in breach of its patent. At first instance, the appellant was
granted an injunction preventing the respondent’s use of the type of suture at issue until the
trial of the patent infringement. On appeal, the Court of Appeal discharged the injunction on
the basis that the case for patent infringement was not made out. The appellant appealed to
the House of Lords.
Issue- The issue on these facts was primarily the extent of any substantive claim necessary
for the grant of an interim injunction. The House of Lords however, set out detailed
guidelines with regards to how the courts should deal with the grant of interim injunctions in
general.
Held- It was held that (a) it was not the courts’ role to consider conflicting evidence in
respect of an interim application. This was a matter for trial. (b) All that was necessary at this
stage was that the claimant should show that there was a real issue to be tried. (c) The court
should consider whether damages were an adequate remedy for a claimant if an injunction
was not granted. If so, an injunction would not be available. (d) If damages were not an
adequate remedy, the court should then ask whether the claimant would be able to give an
undertaking in damages to the defendant. (e) If it was considered that there was any difficulty
regarding the availability of damages on either side, the court should consider the balance of
convenience between the parties. (f) If these factors were evenly balanced, the court should
consider maintaining the status quo. On the facts of this case, the balance of convenience lay
with the appellant and the appeal was allowed.

Three Ingredients before an Interlocutory order must be given-

1. There must be a prima facie case- there must be some merits in the claim of one of the
parties when they file a suit.
2. Irreparable Injury- if the injunction is not given, it is going to cause harm, it should not be
allowed. Court must see there is no undie delay in such a case.
3. Balance of Convenience or Inconvenience- Court must be satisfied that damage to the
other party after giving the injunction is more than what the party getting relief suffers. If
applicant has more difficulty than the defendant then the court may give such an injunction.

- Ordinarily no injunction shall be granted for recovery of tax or octroi, enforcement of

contractual rights or liabilities, delay in election process, interfering with ongoing
investigation. (S.41 of Specific Relief Act)

- Reasons must be given when an injunction is passed. All orders made under this application
are appealable. If there is no reason, the appellate court can quash such an injunction.
Case: Shiv Kumar vs MCD
--
EXTRA:
Case: Udit Narayan Singh vs Board of Revenue
- The Court made a distinction between necessary parties, proper parties and pro forma
parties
- Pro forma parties- those parties from whom no relief is sought by the plaintiff.

Cases:
1. Asian resurfacing vs CBI (2013)
- Order given in this case, its life is for 6 months, until further orders of the court. It would
not be valid in SC.
2. Fazalullah Khan v M.Akbar Contractor (same as the above case)
Case: J. Delibarn v BCI 2019 (Read; Important)

Section 75: Subject to such conditions and limitations as may be prescribed, the court may
issue a commission-
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or (usually happens in the case of HUF)
(d) to make a partition; (property distributed by metes and bounds; if that cannot happen,
property must be sold)
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which is in
the custody of the Court pending the determination of the suit;
(g) to perform any ministerial act. (Gathering information that the court may order)

Section 76: (1) A commission for the examination of any person may be issued to any Court
(not being a High Court) situate in a State other than the State in which the Court of issue is
situate and having jurisdiction in the place in which the person to be examined resides.
(2) Every Court receiving a commission for the examination of any person under sub-section
(1) shall examine him or cause him to be examined pursuant thereto, and the commission,
when it has been duly executed, shall be returned together with the evidence taken under it to
the Court from which it was issued, unless the order for issuing the commission has otherwise
directed, in which case the commission shall be returned in terms of such order.
- If evidence has to be taken from another state, then the court with the ongoing case would
send an applicable to that court.

Section 77 (Letter of Request):  In lieu of issuing a commission the Court may issue a letter
of request to examine a witness residing at any place not within India.

Section 78 (Commissions issued by foreign Courts): Subject to such conditions and

limitations as may be prescribed the provisions as to the execution and return of commissions
for the examination of witnesses shall apply to commissions issue by or as the instance of-
(a) Courts situate in any part of India to which the provisions of this Code do not extend; or
(b) Courts established or continued by the authority of the Central Government outside India,
or
(c) Courts of any State or country outside India.
- This process is done through the counsellor.
Q. Which cases have maximum foreign depositions? - Maritime Jurisdiction

ORDER 26:-
Rule 1: Cases in which Court may issue commission to examine witness.—Any Court may in
any suit issue a commission for the examination on interrogatories or otherwise of any person
resident within the local limits of its jurisdiction who is exempted under this Code from
attending the Court or who is from sickness or infirmity unable to attend it:
Provided that a commission for examination on interrogatories shall not be issued unless the
Court, for reasons to be recorded, thinks it necessary so to do.
Explanation.—The Court may, for the purpose of this rule, accept a certificate purporting to
be signed by a registered medical practitioner as evidence of the sickness or informity of any
person, without calling the medical practitioner as a witness.
Two cases: (taking of evidence)
1. Interrogatory- given to those who are sick or informity
2. For witnesses- here if the parties do not give an answer, it will be mentioned. This is a case
of cross examination.
- Suppose the doctor has given a false certificate, he can be called to court by specifically
making an allegation.

Q. Who can give deposition as a witness? – Anybody who is mentally sound.

Rule 2: Order for commission.—An order for the issue of a commission for the examination
of a witness may be made by the Court either of its own motion or on the application,
supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

Rule 3: Where witness resides within Court's jurisdiction.—A commission for the
examination of a person who resides within the local limits of the jurisdiction of the Court
issuing the same may be issued to any person whom the Court thinks fit to execute it.

Rule 4: Persons for whose examination commission may issue.—(1) Any Court may in any
suit issue a commission [for the examination on interrogatories or otherwise of—] (a) any
person resident beyond the local limits of its jurisdiction ; (b) any person who is about to
leave such limits before the date on which he is required to be examined in Court; and (c) 3
[any person in the service of the Government] who cannot in the opinion of the Court, attend
without detriment to the public service : [Provided that where, under rule 19 of Order XVI, a
person cannot be ordered to attend a Court in person, a commission shall be issued for his
examination if his evidence is considered necessary in the interests of justice: Provided
further that a commission for examination of such person on interrogatories shall not be
issued unless the Court, for reasons to be recorded, thinks it necessary so to do.]
(2) Such commission may be issued to any Court, not being a High Court, within the local
limits of whose jurisdiction such person resides, or to any pleader or other person whom the
Court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct whether the commission
shall be returned to itself or to any subordinate Court.
- Court must record its reasons.
- Court would itself mention where the commission should give its findings.

Rule 8: When depositions may be read in evidence.—Evidence taken under a commission

shall not be read as evidence in the suit without the consent of the party against whom the
same is offered, unless—
(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or
unable from sickness or infirmity to attend to be personally examined, or exempted from
personal appearance in Court, or is a [person in the service of the Government] who cannot,
in the opinion of the Court, attend without detriment to the public service, or
(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned
in clause (a) and authorizes the evidence of any person being read as evidence in the suit,
notwithstanding proof that the cause for taking such evidence by commission has ceased at
the time of reading the same.
- Evidence collected by the commissioner can be cross examined in the court later.
- Incase of interrogatories, the questions are fixed and therefore cannot be cross examined.

Rule 9: Commissions to make local investigations.—In any suit in which the Court deems a
local investigation to be requisite or proper for the purpose of elucidating any matter in
dispute, or of ascertaining the market-value of any property, or the amount of any mesne
profits or damages or annual net profits, the Court may issue a commission to such person as
it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such
commission shall be issued, the Court shall be bound by such rules.

Rule 10: — (1) The Commissioner, after such local inspection as he deems necessary and
after reducing to writing the evidence taken by him, shall return such evidence, together with
his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit. Commissioner may be examined in person.
—The report of the Commissioner and the evidence taken by him (but not the evidence
without the report) shall be evidence in the suit and shall form part of the record; but the
Court or, with the permission of the Court, any of the parties to the suit may examine the
Commissioner personally in open Court touching any of the matters referred to him or
mentioned in his report, or as to his report, or as to the manner in which he has made the
investigation.
- Commissioner’s report can be crossed by the other party. His statements can be proved
wrong.

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner,
it may direct such further inquiry to be made as it shall think fit.
- Whenever the court is dissatisfied by the commissioner’s work, the court may direct further
inquiry.

Read 10A, 10B, and 10C

Rule 11- Commission to examine or adjust accounts.—In any suit in which an examination or
adjustment of the accounts is necessary, the Court may issue a commission to such person as
it thinks fit directing him to make such examination or adjustment.
- Account taking is usually done when there is a principal agent relationship, HUF, difference
between partners of a partnership, etc.

Rule 12- Court to give Commissioner necessary instructions.—(1) The Court shall furnish the
Commissioner with such part of the proceedings and such instructions as appear necessary,
and the instructions shall distinctly specify whether the commissioner is merely to transmit
the proceedings which he may hold on the inquiry, or also to report his own opinion on the
point referred for his examination.
(2) Proceedings and report to be evidence. Court may direct further inquiry.—The
proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where
the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall
think fit.
Role of Commissioner—
 Audit- look into books and accounts given by the company on face value.
 Forensic audit- looks into every bill, contents of the bill and suspect any fraud used by
creating expenditure to siphon money out.

Q. Can the civil court have commissioners to examine the accounts of a company which is
limited? – No, it will go to the tribunal who may order a forensic audit.
- Forensic Audit took place in the case of Bhushan Steel, Kingfisher case
Rule 13- Commission to make partition of immovable property—Where a preliminary decree
for partition has been passed, the Court may, in any case not provided for by section 54, issue
a commission to such person as it thinks fit to make the partition or separation according to
the rights as declared in such decree.
- Done by District Land officer who would have to do the partition. He must consider the
type of land and consolidation acts of land. If it is an agricultural land, then sub division of
land cannot be done. In such a case, the land is sold by appointment of a receiver and pre-
emption claim would be given to the members of the family and then the neighbour of the
land.

Rule 14- Procedure of Commissioner.—(1) The Commissioner shall, after such inquiry as
may be necessary, divide the property into as many shares as may be directed by the order
under which the commission was issued, and shall allot such shares to the parties, and may, if
authorised thereto by the said order, award sums to be paid for the purpose of equalizing the
value of the shares.
(2) The commissioner shall then prepare and sign a report or the Commissioners (where the
commission was issued to more than one person and they cannot agree) shall prepare and
sign separate reports appointing the share of each party and distinguishing each share (if so
directed by the said order) by metes and bounds. Such report or reports shall be annexed to
the commission and transmitted to the Court; and the Court, after hearing any objections
which the parties may make to the report or reports, shall confirm, vary or set aside the same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree in
accordance with the same as confirmed or varied; but where the Court sets aside the report or
reports it shall either issue a new commission or make such other order as it shall think fit.

Rule 15- Expenses of commission to be paid into court.—Before issuing any commission
under this Order, the Court may order such sum (if any) as it thinks reasonable for the
expenses of the commission to be, within a time to be fixed, paid into Court by the party at
whose instance or for whose benefit the commission is issued.
- He who makes an application for a commission, if allowed, he must pay.
- In case of partition, all the members must pay.

Rule 16- Powers of commissioners.—Any commissioner appointed under this Order may,
unless otherwise directed by the order of appointment,—
(a) examine the parties themselves and any witness whom they or any of them may produce,
and any other person whom the Commissioner thinks proper to call upon to give evidence in
the matter referred to him;
(b) call for and examine documents and other things relevant to the subject of inquiry;
(c) at any reasonable time enter upon or into any land or building mentioned in the order.

Rule 16A- Questions objected to before the Commissioner.—(1) Where any question put to a
witness is objected to by a party or his pleader in proceedings before a Commissioner
appointed under this Order, the Commissioner shall take down the question, the answer, the
objections and the name of the party or, as the case may be, the pleader so objecting :
Provided that the Commissioner shall not take down the answer to a question which is
objected to on the ground of privilege but may continue with the examination of the witness,
leaving the party to get the question of privilege decided by the Court, and, where the Court
decides that there is no question of privilege, the witness may be recalled by the
Commissioner and examined by him or the witness may be examined by the Court with
regard to the question which was objected to on the ground of privilege.
(2) No answer taken down under sub-rule (1) shall be read as evidence in the suit except by
the order of the Court.
- Whenever a party objects to answer based on i) irrelevancy (not relevant to subject of
dispute) and ii) Privileged communication (privileges under Evidence Act or a state
confidential matter). In case of privilege matter, the court may decide whether the matter
would be considered as that.

Rule 17- Attendance and examination of witnesses before Commissioner.—(1) The

provisions of this Code relating to the summoning, attendance and examination of witnesses,
and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to
persons required to give evidence or to produce documents under this Order whether the
commission in execution of which they are so required has been issued by a Court situate
within or by a Court situate beyond the limits of [India], and for the purposes of this rule the
Commissioner shall be deemed to be a Civil Court:
[Provided that when the Commissioner is not a Judge of a Civil Court, he shall not be
competent to impose penalties; but such penalties may be imposed on the application of such
Commissioner by the Court by which the commission was issued.]
- Commissioner is not permitted to issue penalties but he may bring it to the notice of court,
the non-cooperation of the witnesses in such an event.

(2) A Commissioner may apply to any Court (not being a High Court) within the local limits
or whose jurisdiction a witness resides for the issue of any process which he may find it
necessary to issue to or against such witness, and such Court may, in its discretion, issue such
process as it considers reasonable and proper.
- Commissioner may through another court (not being a high court) ask regarding the
jurisdiction of the court.
Q. Why is High Court excluded in the above case?
- This is because in most places, the HC does not have original jurisdiction.
- Wherever there is a HC without original jurisdiction, the District Court would be present.

Rule 18- Parties to appear before Commissioner.—(1) Where a commission is issued under
this Order, the Court shall direct that the parties to the suit shall appear before the
Commissioner in person or by their agents or pleaders. (2) Where all or any of the parties do
not so appear, the Commissioner may proceed in their absence.
- Before the commissioner, this whole act is repeated when it is in execution.
- Execution is when all appeals are over and all legal options are over. It will apply even to
execution proceedings.

Rule 18B- Court to fix time for return of Commission- The Court issuing a commission shall
fix a date on or before which the commission shall be returned to it. after execution, and the
date so fixed shall not be extended except where the Court, for reasons to be recorded, is
satisfied that there is sufficient cause for extending the date.
- Every time such a commission is given, court may fix a time by when the person shall
gather the information either on interrogatories or a commission between parties to take
evidence. If the time has elapsed for any reason, the code may extend the time for a while.

Rule 19- Cases in which High Court may issue commission to examine witness.—(1) If a
High Court is satisfied.— (a) that a foreign court situated in a foreign country wishes to
obtain the evidence of a witness in any proceeding before it,
- There must be a treaty of reciprocity (international treaty by which if we accept their court
proceedings, they accept our provisions)
(b) that the proceeding is of a civil nature, and
- If proceedings are of criminal nature then S. 188 of the CrPC (trial will take place where he
is found in India) is looked into.
(c) that the witness is residing within the limits of the High Court's appellate jurisdiction, it
may, subject to the provisions of rule 20, issue a commission for the examination of such
witness.

(2) Evidence may be given of the matters specified in clause (a), (b) and (c) of sub-rule (1)—
(a) by a certificate signed by the consular officer of the foreign country of the highest rank in
India and transmitted to the High Court through the Central Government, or
(b) by a letter of request issued by the foreign Court and transmitted to the High Court
through the Central Government, or
- Foreign code must send it to the Central Government who would further send it to the
representative HC.
(c) by a letter of request issued by the foreign court and produced before the High Court by a
party to the proceeding.

Rule 20- Application for issue of commission.—The High Court may issue a commission
under rule 19— (a) upon application by a party to the proceeding before the foreign court, or
(b) upon an application by a law officer of the State Government acting under instructions
from the State Government.
- Basically talks on what conditions can the application for commissions be done.

Rule 21- To whom commission may be issued.—A commission under rule 19 may be issued
to any Court within the local limits of whose jurisdiction the witness resides, or the witness
resides within the local limits of [the ordinary original civil jurisdiction of the High Court], to
any person whom the Court thinks fit to execute the commission.
- It can be given anybody who the court thinks would be fit to do it. If the place has ordinary
original jurisdiction then it can be given to the HC and they would further proceed with the
matter.

Rule 22- Issue, execution and return of commissions, land transmission of evidence to
foreign Court.—The provisions of rules 6, 15, [sub-rule (1) of rule 16A, 17, 18 and 18B] of
this Order in so far as they are applicable shall apply to the issue, execution and return of
such commissions, and when any such commission has, along with the letter of request for
transmission to the foreign been duly executed it shall be returned, together with the evidence
taken under it, to the High Court, which shall forward it to the Central Government court.
- Whenever the Indian Court collects evidence, it will give it to the Central government who
would further transfer it to the foreign court and give those details to the foreign court.

- A. 137 of The Limitations Act gives a period of 3 years for any suit for which nature, the
limitation has not been prescribed in the Act.

Section 79- Suits by or against Government-

In a suit by or against the Government, the authority to be named as plaintiff or defendant, as
the case may be, shall be-
(a) in the case of a suit by or against the Central Government, the Union of India, and
(b) in the case of a suit by or against a State Government, the State.
Section 80- Save as otherwise provided in sub-section (2), no suits 3 [shall be instituted]
against the Government (including the Government of the State of Jammu and Kashmir)] or
against a public officer in respect of any act purporting to be done by such public officer in
his official capacity, until the expiration of two months next after notice in writing has
been 4[delivered to, or left at the office of]
(a) in the case of a suit against the Central Government, 5 [except where it relates to a
railway] a Secretary to that Government;
[(b)] in the case of a suit against the Central Government where it relates to railway, the
General Manager of that railway;
[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the
Chief Secretary to that Government or any other officer authorized by that Government in
this behalf;]
(c) in the case of a suit against 8[any other State Government], a Secretary to that Government
or the Collector of the district; 
and, in the case of a public officer, delivered to him or left at his office, stating the cause of
action, the name, description and place of residence of the plaintiff and the relief which he
claims; and the plaint shall contain a statement that such notice has been so delivered or left.
- Statutory notice is mandatory.
- For railway related claims must be applied in the Railway Court.

[(2) A suit to obtain an urgent or immediate relief against the Government (including the
Government of the State of Jammu and Kashmir) or any public officer in respect of any act
purporting to be done by such public officer in his official capacity, may be instituted, with
the leave of the Court, without serving any notice as required by sub-section (I); but the Court
shall not grant relief in the suit, whether interim or otherwise, except after giving to the
Government or public officer, as the case may be , a reasonable opportunity of showing cause
in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, which no urgent or
immediate relief need be granted in the suit, return the plaint for presentation to it after
complying with the requirements of sub-section (1).
- No interim provided here
- File application after notice period of two months
(3) No suit instituted against the Government or against a public officer in respect of any act
purporting to be done by such public officer in his official capacity shall be dismissed merely
by reason of any error or defect in the notice referred to in sub-section (I), if in such notice
(a) the name, description and the residence of the plaintiff had been so given as to enable the
appropriate authority or the public officer to identify the person serving the notice and such
notice had been delivered or left at the office of the appropriate authority specified in sub-
section (1), and (b) the cause of action and the relief claimed by the plaintiff had been
substantially indicated.]
- Such suits will not be thrown away on technical grounds. Grievances must be known to the
public authority.
Case- Geeta Iron & Steel vs State of Punjab

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

officer to consider the legal position and to settle the claim forwarded by the prospective
plaintiff if it appears to be just and proper. It is expected from the government unlike private
parties to consider the matter objectively and make an appropriate decision in two months
after obtaining proper legal advice. It saves public money and time and is in public interest.
- The legislative intent behind this provision is that public money not be wasted for
unnecessary litigation. The section guides the Government or a public officer to negotiate just
claims and to settle them if well‐founded without adopting an unreasonable attitude by
inflicting wasteful expenditure on public exchequer.

Section 81- Exemption from arrest and personal appearance-

In a suit instituted against a public officer in respect of any act purporting to be done by him
in his official capacity-
(a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in
execution of a decree, and
(b) where the Court is satisfied that the defendant cannot absent himself from his duty
without detriment to the public service, it shall exempt him from appearing in person.
- only injunction or interlocutory orders under Order 39 would be applicable.

Section 82- Execution of decree-

(1) Where, in a suit by or against the Government or by or against a public officer in respect
of any act purporting to be done him in his official capacity, a decree is passed against the
Union of India or a State or, as the case may be, the public officer, such decree shall not be
executed except in accordance with the provisions of sub-section (2).
(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the
period of three months computed from the date of such decree.
(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as
they apply in relation to a decree, if the order or award-
(a) is passed or made against the Union of India or a State or a public officer in respect of any
such act as aforesaid, whether by a Court or by any other authority; and
(b) is capable of being executed under the provisions of this code or of any other law for the
time being in force as if it were a decree.

- In the land acquisition act, the compensation given comes under the form of an award.
Q. No attachment or execution can be done for three months. Why? - It is for government to
go in appeal or satisfy this decree against them.

ORDER 27:-
Rule 1: Suits by or against Government.—In any suit by or against 1 [the Government], the
plaint or written statement shall be signed by such person as the Government may, by general
or special order, appoint in this behalf, and shall be verified by any person whom the
Government may so appoint and who is acquainted with the facts of the case.
- Court may appoint a pleader

Rule 2: Persons authorised to act for Government.—Persons being ex officio or otherwise

authorised to act for the Government in respect of any judicial proceeding shall be deemed to
be recognised agents by whom appearances, acts and applications under this Code may be
made or done on behalf of the Government.
- Government list is there with all the judges

Rule 3: Plaints in suits by or against Government.—In suits by or 2 [against the

Government], instead of inserting in the plaint the name and description and place of
residence of the plaintiff or defendant, it shall be sufficient to insert 1 [the appropriate name
as provided in section 79
- If it is a particular department, it is necessary to mention that department as well.

Rule 4: Agent for Government to receive process.—The Government pleader in any Court
shall be the agent of the Government for the purpose of receiving processes against the
Government issued by such Court
- It can be given by the court to the government pleader

Rule 5: Fixing of day for appearance on behalf of Government.—The Court, in fixing the day
for [the Government] to answer to the plaint, shall allow a reasonable time for the necessary
communication with the Government through the proper channel, and for the issue of
instructions to the [Government pleader] to appear and answer on behalf of 6 [the
Government], and may extend the time at its discretion [but the time so extended shall not
exceed two months in the aggregate].
- The government advises the pleader who shall argue with the case.
Rule 5A: Government to be joined as a party in a suit against a public officer.—Where a suit
is instituted against a public officer for damages or other relief in respect of any act alleged to
have been done by him in his official capacity, the Government shall be joined as a party to
the suit.
- Government will be a party since incase the party wins, the government would have to pay
the damages.
- A civil suit against public officer- Example- If a public officer damages your property on
basis that the property is illegal, you may file a suit against him.

Rule 5B: Duty of Court in suits against the Government or a public officer to assist in
arriving at a settlement.—(1) In every suit or proceeding to which the Government, or a
public officer acting in his official capacity, is a party, it shall be the duty of the Court to
make, in the first instance, every endeavour, where it is possible to do so consistently with the
nature and circumstances of the case, to assist the parties in arriving at a settlement in respect
of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage, it appears to the court that there is a
reasonable possibility of a settlement between the parties, the Court may adjourn the
proceeding for such period as it thinks fit, to enable attempts to be made to effect such a
settlement.
(3) The power conferred under sub-rule (2) is in addition to any other power of the Court to
adjourn proceedings.
- Time is given for settlement and adjournment would be given for such a period.

Rule 6: Attendance of person able to answer questions relating to suit against Government.—
The Court may also, in any case in which the [Government pleader] is not accompanied by
any person on the part of [the Government] who may be able to answer any material
questions relating to the suit, direct the attendance of such a person.
- Department may send any person to ask questions. The person present on site does not
necessarily be there.

Rule 7: Extension of time to enable public officer to make reference to Government.—(1)

Where the defended is a public officer and, on receiving the summons, considers it proper to
make a reference to the Government before answering the plant, he may apply to the Court to
grant such extension of the time fixed in the summons as may be necessary to enable him to
make such reference and to receive orders thereon through the proper channel.
(2) Upon such application the Court shall extend the time for so long as appears to it to be
necessary.
- In such cases (relating to tender, etc), he may then put it forward to take reference of special
committee or persons.

Rule 8: Procedure in suits against public officer.—(1) Where the Government undertakes the
defence of a suit against a public officer, the [Government pleader] upon being furnished
with authority to appear and answer the plaint, shall apply to the court, and upon such
application the Court shall cause a note of his authority to be entered in the register of civil
suits.
(2) Where no application under sub-rule (1) is made by the [Government pleader] on or
before the day fixed in the notice for the defendant to appear and answer, the case shall
proceed as in a suit between private parties: Provided that the defendant shall not be liable to
arrest, nor his property to attachment, otherwise than in execution of a decree.
- Government may replace itself in the place of a government officer as defendant.

Rule 8A: No security to be required from Government or a public officer in certain cases.—
No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the
Government or, where the Government has undertaken the defence of the suit, from any
public officer sued in respect of an act alleged to be done by him in his official capacity.
- No arrest, no attachment before decree.

Rule 8B: Definitions of “Government” and “Government pleader”.—In this Order 3 [unless
otherwise expressly provided] “Government” and [“Government pleader”] mean respectively
—
(a) in relation to any suit by or against the Central Government, or against a public officer in
the service of that Government, the Central Government and such pleader as that Government
may appoint whether generally or specially for the purposes of this order ;
(c) in relation to any suit by or against State Government or against a public officer in the
service of a State the State Government and the Government pleader [as defined in clause (7)
of section 2], or such other pleader as the State Government may appoint, whether generally
or specially for the purposes of this Order.].
- People appointed by the government are government employees. If there is a suit against the
government then such a government appointed pleader may stand on behalf of the
government.

SUITS IN CORPORATIONS-
- In the case of corporations, remember corporation is a legal person. If there is a particular
officer responsible for the working of company, he may be put as a second defendant. If a
person is involved in the day-to-day business of the corporation, he may also be named in the
suit.
- In case of a large corporation, you cannot name a particular director unless lifting of
corporate veil is applied.

Case- Shailendra Swaroop v ED

Issue: Whether each of the defendant to whom notices were issued, were during the relevant
period "in charge of and responsible to the said company for the conduct of the day-to-day
business of the company"?

- First Impediment to filing a civil suit: Court fees. Someone who isn’t capable of paying
court fees may apply for in forma pauperis fees (It refers to the ability of an indigent person
to proceed in court without payment of the usual fees associated with a lawsuit or appeal.)
- Would the lawyer fees be exempted as well?- The legal service committee would hire a
lawyer for such a person.
- Can corporates file in forma pauperis?- Yes.

ORDER 35:-
Section 88: Where interpleader-suit may be instituted-
Where two or more persons claim adversely to one another the same debts, sum of money or
other property, movable or immovable, from another person, who claims no interest therein
other than for charges or costs and who is ready to pay or deliver it to the rightful claimant,
such other person may institute a suit of interpleader against all the claimants for the purpose
of obtaining a decision as to the person to whom the payment or delivery shall be made and
of obtaining indemnity for himself :
Provided that where any suit is pending in which the rights of all parties can properly be
decided, no such suit of interpleader shall be instituted.
Example: A pledges goods to B. C comes and tells B that they are his goods. Here, A refuses
to pay B. In such a case, B would file a suit against A and C and let the court decide further.

Rule 1: Plaint in interpleader-suit.—In every suit of interpleader the plaint shall, in addition
to the other statements necessary for plaints, state— (a) that the plaintiff claims no interest in
the subject-matter in dispute other than for charges or costs; (b) the claims made by the
defendants severally; and (c) that there is no collusion between the plaintiff and any of the
defendants.
- He has to mention facts and circumstances in the plaint.
Rule 2: Payment of thing claimed into Court.—where the thing claimed is capable of being
paid into Court or placed in the custody of the Court, the plaintiff may be required to so pay
or place it before he can be entitled to any order in the suit.
- Amount in dispute or goods in dispute may be left in the court and kept in the custody of
court.

Rule 3: Procedure where defendant is suing plaintiff.—Where any of the defendants in an

interpleader-suit is actually suing the plaintiff in respect the subject-matter of such suit, the
Court in which the suit against the plaintiff is pending shall, on 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 may be provided for in such suit; but if and in so far as, they are not
provided for in that suit, they may be added to his costs incurred in the interpleader-suit.
- Example: : A pledges goods to B. C comes and tells B that they are his goods. Here, A
refuses to pay B. In such a case, B would file a suit against A and C and let the court decide
further. The goods were with B. C has filed a suit against B. B filed an interpleader suit
making A and C parties.
This rules says that the suit between C and B must take place first and the case of B against C
and A would be kept in abeyance. If there are costs in the suit, it must either be solved in B
and C or in the case of B against C and A.

Rule 4: Procedure at first hearing.—(1) At the first hearing the Court may— (a) declare that
the plaintiff is discharged from all liability to the defendants in respect of the thing claimed,
award him his costs, and dismiss him from the suit; or (b) if it thinks that justice or
convenience so require, retain all parties until the final disposal of the suit.
(2) Where the Court finds that the admission of the parties or other evidence enable it to do
so, it may adjudicate the title to the thing claimed.
(3) Where the admissions of the parties do not enable the Court so to adjudicate, it may
direct— (a) that an issue or issues between the parties be framed and tried, and (b) that any
claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed
to try the suit in the ordinary manner.
Example: A pledges goods to B. C comes and tells B that they are his goods. Here, A refuses
to pay B. In such a case, B would file a suit against A and C and let the court decide further.
The goods were with B. C has filed a suit against B. B filed an interpleader suit making A
and C parties. C tells Court that he will pay B the amount A owes B. B is anyway not
interested in goods. Therefore, B may be dismissed from the suit and the suit would be
between A and C.
- The Court may frame issues and decide the suit like a normal suit in case of multiple facts.
Rule 5: Agents and tenants may not institute interpleader suits.—nothing in this Order shall
be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the
purpose of compelling them to interplead with any persons other than persons making claim
through such principals or landlords.
- No agent to question the right of the principal.
Illustrations
(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully
obtained from him by A, and claims them from B. B cannot institute an interpleader-suit
against A and C.
(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of
making the jewels a security for a debt due from himself to C. A afterwards alleges that C’s
debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute in
interpleader-suit against A and C.
Exclusive agent- Agents that have only one principals
General agent- Agents that have multiple principals

Rule 6: Charge for plaintiff’s costs.—where the suit is properly instituted the Court may
provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in
some other effectual way.
- Court may decide the cost of the suit for him.
(Selling a decree- Suit is over, decree is sold and execution is left.)

SUITS RELATING TO PUBLIC NUISANCE-

Section 91: Public nuisances and other wrongful acts affecting the public.— [(1) In the case
of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a
declaration and injunction or for such other relief as may be appropriate in the circumstances
of the case, may be instituted,— (a) by the Advocate-General, or (b) with the leave of the
Court, by two or more persons, even though no special damage has been caused to such
persons by reason of such public nuisance or other wrongful act.]
Example: Temple outside the building where constantly people coming in and playing
bhajans. Here, aggrieved person can either seek relief himself or along with 2-3 other
aggrieved people.

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which
may exist independently of its provisions.
Cases: (Noise pollution)
1. Re Noor Batti
2. KSSR Residents’ Association vs Church of Full Gospel
- Held: Writ petition can be brought to end the nuisance.

Case: Ratlam Municipal Council vs Vardichand (S. 133 of CrPC)

REFERENCE, REVIEW AND REVISION

- Once a judgment is done and given, you are left with options of appeals, review and
references
- From which court can revision go to the HC? – District Court, City Civil Court
Q. Can a CJ have a full bench reference on a part of law? –Yes. (Case: Reliance vs Reliance
Petro Chemical)
Q. A full bench does not decide on Central subject. Why? – HCs may have conflicting
opinions
Case: Mardia Chemicals Ltd v UOI & anr ( ICICI Bank ) (DRT Sarfesi Act S. 17)

- If it is a revenue generating staute, the court looks through and not at the statute
Case: CCRA vs Costal Gujarat power Ltd
Facts: Lenders made State bank the boss and paid one stamp duty. Authority in-charge
refused and said each lender must stamp it separately for lending.
Held- Lenders must pay separately; Court looked through and not at the statute.
This was followed as a reference in a Reliance case.

REFERENCE
S. 113- Reference to High Court.—Subject to such conditions and limitations as may be
prescribed, any Court may state a case and refer the same for the opinion of the High Court,
and the High Court may make such order thereon as it thinks fit:
Provided that where the Court is satisfied that a case pending before it involves a question as
to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act,
Ordinance or Regulation, the determination of which is necessary for the disposal of the case,
and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative,
but has not been so declared by the High Court to which that Court is subordinate or by the
Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor,
and refer the same for the opinion of the High Court.
Explanation.—In this section, “Regulation” means any Regulation of the Bengal, Bombay or
Madras Code or Regulation as defined in the General Clauses Act,1897, (10 of 1897) or in
the General Clauses Act of a State.
- Envisages constitutionality of act, bylaws, ordinances, etc. Such a case is to be referred to
the Court by the parties.

ORDER 46:-
Rule 1: Reference of question to High Court.—Where, before or on the hearing of a suit or an
appeal in which the decree is not subject to appeal, or where, in the execution of any such
decree, any question of law or usage having the force of law arises, on which the Court trying
the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either
of its own motion or on the application of any of the parties, draw up a statement of the facts
of the case and the point on which doubt is entertained, and refer such statement with its own
opinion on the point for the decision of the High Court.

Rule 2: Court may pass decree contingent upon decision of High Court.—The Court may
either stay the proceedings or proceed in the case notwithstanding such reference, and may
pass a decree or make an order contingent upon the decision of the, High Court on the point
referred: But no decree or order shall be executed in any ease in which such reference is
made until the receipt of a copy of the judgment of the High Court upon the reference.
- Court can also go ahead and pass an order when reference is pending.

Rule 3: Judgment of High Court to be transmitted and case disposed of accordingly.—The

High Court, after hearing the parties if they appear and desire to be heard, shall decide the
point so referred, and shall transmit a copy of its judgment, under the signature of the
Registrar, to the Court by which the reference was made; and such Court shall, on the receipt
thereof, proceed to dispose of the case in conformity with the decision of the High Court.
- Proposition of law settled by HC and lower court may fall in line with the decision of the
HC.

Rule 4: Cost of reference to High Court.—The costs (if any) consequent on a reference for
the decision of the High Court shall be costs in the case.

Rule 4A: Reference to High Court under proviso to section 113.—The provisions of rules 2,
3 and 4 shall apply to any reference by the Court under the proviso to section 113 as they
apply to a reference under rule 1.
Rule 5: Power to alter, etc., decree of Court making reference.—Where a case is referred to
the High Court under rule [or under the proviso to section 113], the High Court may return
the case for amendment, and may alter, cancel or set aside any decree or order which the
Court making the reference has passed or made in the case out of which the reference arose,
and make such order as it thinks fit.
- If trial court has decided the matter before the HC has, HC has the authority to make any
change required or set it aside.

Rule 6: Power to refer to High Court questions as to jurisdiction in small causes.—(1) Where
at any time before judgment a Court in which a suit has been instituted doubts whether the
suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the
record to the High Court with a statement of its reasons for the doubt as to the nature of the
suit.
(2) On receiving the record and statement, the High Court may order the Court either to
proceed with the suit or to return the plaint for presentation to such other Court as it may in
its order declare to be competent to take cognizance of the suit.
Q. Can Small causes court decide question of illegal trespasser? - No. It will go to the City
Civil court.

Rule 7: Power to District Court to submit for revision proceeding had under mistake as to
jurisdiction in small causes.—(1) Where it appears to a District Court that a Court
subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court
of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by
law, or exercised a jurisdiction not so vested, the District Court may, and if required by a
party shall, submit the record to the High Court with a statement of its reasons for
considering the opinion of the Subordinate Court with respect to the nature of the suit to be
erroneous.
(2) On receiving the record and statement the High Court may make such order in the case as
it thinks fit.
(3) With respect to any proceedings subsequent to decree in any case submitted to the High
Court under this rule, the High Court may make such order as in the circumstance appears to
it to be just and proper.
(4) A Court subordinate to a District Court shall comply with any requisition which the
District Court may make for any record or information for the purposes of this rule.
- If there is a matter that is not in the jurisdiction of Munsif Court, the District Court may take
such a case to High Court to decide.

REVIEW
S. 114- Review.—Subject as aforesaid, any person considering himself aggrieved— (a) by a
decree or order from which an appeal is allowed by this Code, but from which no appeal has
been preferred. (b) by a decree or order from which no appeal is allowed by this Code, or (c)
by a decision on a reference from a Court of Small Causes, may apply for a review of
judgment to the Court which passed the decree or made the order, and the Court may make
such order thereon as it thinks fit.
Q. How many types of review in SC? – 1. Against order passed 2. Curative petition
Q. What happens when matter has been heard by two judges in the HC? They passed an order
and subsequently the bench split. How can a review be filed in such a case? – Judges come
together for it and call advocates of both parties and give clarifications.
- Judges who have passed the order, give clarifications.

ORDER 47:-
Rule 1: Application for review of judgment.—(1) Any person considering himself aggrieved
— (a) by a decree or order from which an appeal is allowed, but from which no appeal has
been preferred,
(b) by a decree or order from which no appeal is allowed, (unappealable decree or order) or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery
of new and important matter or evidence which, after the exercise of due diligence was not
within his knowledge or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent on the face of the
record or for any other sufficient reason, desires to obtain a review of the decree passed or
order made against him, may apply for a review of judgment to the Court which passed the
decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment
notwithstanding the pendency of an appeal by some other party except where the ground of
such appeal is common to the applicant and the appellant, or when, being respondent, he can
present to the Appellate Court the case on which he applied for the review.
- Even in such a case, a review is possible (incase the opposite party goes for appeal, you go
for review). If grounds raised by both are common then it may be taken in appeal.
[Explanation.—The fact that the decision on a question of law on which the judgment of the
Court is based has been reversed or modified by the subsequent decision of a superior Court
in any other case, shall not be a ground for the review of such judgment.]

Rule 4: Application where rejected.—(1) Where it appears to the Court that there is not
sufficient ground for a review, it shall reject the application.
(2) Application where granted.—Where the Court is of opinion that the application for review
should be granted, it shall grant the same:
Provided that— (a) no such application shall be granted without previous notice to the
opposite party, to enable him to appear and be heard in support of the decree or order, a
review of which is applied for; and
(b) no such application shall be granted on the ground of discovery of new matter or evidence
which the applicant alleges was not within his knowledge, or could not be adduced by him
when the decree or order was passed or made, without strict proof of such allegation.
Two Conditions:-
- If permitted, no such permission can be given without hearing the other side.
- If evidence found later on, such an allegation can be put with a proof that the evidence was
found by you on the later day.

Rule 5: Application for review in Court consisting of two or more Judges.—Where the Judge
or Judges, or any one of the Judges, who passed the decree or made the order a review of
which is applied for, continues or continued attached to the Court at the time when the
application for a review is presented, and is not or are not precluded by absence or other
cause for a period of six months next after the application from considering the decree or
order to which the application refers, such Judge or Judges or any of them shall hear the
application, and no other Judge or Judges of the Court shall hear the same.
- When there is a multiple bench, even if they are separated, they would hear the case.
- In case of absence of one judge, the CJ may take his place.

Rule 6: Application where rejected.—(1) Where the application for a review is heard by more
than one Judge and the Court is equally divided, the application shall be rejected. (2) Where
there is a majority, the decision shall be according to the opinion of the majority.
- If it is heard by two judges and one says go in order and the other says go in review, then
the order would stand.

Rule 7: Order of rejection not appealable. Objections to order granting application.—(1) An

order of the Court rejecting the application shall not be appealable; but an order granting an
application may be objected to at once by an appeal from the order granting the application or
in an appeal from the decree or order finally passed or made in the suit.
- If court rejects your order, you may go in appeal.
- If court accepts your review, the other party may go in appeal against accepting the review.
(2) Where the application has been rejected in consequence of the failure of the applicant to
appear, he may apply for an order to have the rejected application restored to the file, and,
where it is proved to the satisfaction of the Court that he was prevented by any sufficient
cause from appearing when such application was called on for hearing, the Court shall order
it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall
appoint a day for hearing the same.
(3) No order shall be made under sub-rule (2) unless notice of the application has been served
on the opposite party.
- On day on review if you do not appear, it will be dismissed unless you give cogent reasons
to the Court. This may be done by submitting an application which may be opposed by the
opposing party.

Rule 8: Registry of application granted, and order for re-hearings.—When an application for
review is granted, a note thereof shall be made in the register and the Court may at once re-
hear the case or make such order in regard to the re-hearing as it thinks fit.

Rule 9: Bar of certain application.—No application to review an order made on an

application for a review or a decree or order passed or made on a review shall be entertained.
- No review of a review.
- If review is rejected, you can go for appeal.
- Curative petition: review for a review under an SLP or under Ss. 132-134.

APPEALS
- Appeals is a creature of staute therefore the system of appeal must be mentioned in the
staute itself.
Q. Can State government put onus or appellate jurisdiction to the SC? –Yes.

S. 96- Appeal from original decree.—(1) Save where otherwise expressly provided in the
body of this Code or by any other law for the time being in force, an appeal shall lie from
every decree passed by any Court exercising original jurisdiction to the Court authorized to
hear appeals from the decisions of such Court.
- Appeal will be a statutory right.
- Small causes court has their own division bench for appeal.
- There are maximum two appeals. Second appeal would stand only if there is a substantial
question of law. (Res Integra)
- Res integra means an entire thing; untouched matter; a point without a precedent; a case of
novel impression. The term res integra is applied to those points of law which have not been
decided, which are untouched by dictum or decision
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed [ten thousand rupees].
- Unless it’s a question of law, SC would not take any case exceeding 10,000.

S.97- Appeal from final decree where no appeal from preliminary decree.—Where any party
aggrieved by a preliminary decree passed after the commencement of this Code does not
appeal from such decree, he shall be precluded from disputing its correctness in any appeal
which may be preferred from the final decree.
- In a suit where a preliminary decree is given, if opposite party does not appeal in the time
prescribed, it will become the final decree.

S. 98- Decision where appeal heard by two or more Judges.—(1) Where an appeal is heard by
a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of
such Judges or of the majority (if any) of such Judges. (2) Where there is no such majority
which concurs in a judgment varying or reversing the decree appealed from, such decree shall
be confirmed:
Provided that where the Bench hearing the appeal is 3 [composed of two or other even
number of Judges belonging to a Court consisting of more Judges than those constituting the
Bench] and the Judges composing the Bench differ in opinion on a point of law, they may
state the point of law upon which they differ and the appeal shall then be heard upon that
point only by one or more of the other Judges, and such point shall be decided according to
the opinion of the majority (if any) of the Judges who have heard the appeal, including those
who first heard it.
- Most appeal benches are even benches (usually 2). If they do not conquer or agree on a
matter, another judge would be bought and his judgment is considered final.
(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the
letter’s patent of any High Court.
- Rules made under letter’s patent will prevail.
Q. Can Letter’s Patent be amended by the State Government? –Yes, by resolution.

S. 99- No decree to be reversed or modified for error or irregularity not affecting merits or
jurisdiction.—No decree shall be reversed or substantially varied, nor shall any case be
remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of
action or any error, defect or irregularity in any proceedings in the suit, not affecting the
merits of the case or the jurisdiction of the Court : [Provided that nothing in this section shall
apply to non-joinder of a necessary party.]
- Do not raise technicalities and set aside an order that is given on merits of the case.

S. 99A- No order under section 47 to be reversed or modified unless decision of the case is
prejudicially affected.—Without prejudice to the generality of the provisions of section 99,
no order under section 47 shall be reversed or substantially varied, on account of any error,
defect or irregularity in any proceeding relating to such order, unless such error, defect or
irregularity has prejudicially affected the decision of the case.
- In case of obstruction application, they (administrative court) would hear the matter.

APPEALS FROM APPELLATE DECREES

S. 100- Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or
by any other law for the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
- Matter has not been heard and decided and therefore, you may go to the second appellate
court after explaining why the matter went ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
- Court must hear the question and reframe it and answer accordingly.
(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
- The opposite party can come and assail the question (Res Integra)
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power
of the Court to hear, for reasons to be recorded, the appeal on any other substantial question
of law, not formulated by it, if it is satisfied that the case involves such question.
- If court finds that there are some additional questions that must be decided, the court may
also do so.
- Every second appeal must come to HC and SC. These courts being constitutional court can
address substantial question of law.

S. 100A- No further appeal in certain cases.—Notwithstanding anything contained in any

Letters Patent for any High Court or in any instrument having the force of law or in any other
law for the time being in force, where any appeal from an original or appellate decree or
order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from
the judgment and decree of such Single Judge.
- This happens in cases that go from very small courts.

S. 101- Second appeal on no other grounds.—No second appeal shall lie except on the
ground mentioned in section 100.

S. 102- No second appeal in certain cases.—No second appeal shall lie from any decree,
when the subject matter of the original suit is for recovery of money not exceeding twenty-
five thousand rupees.

S. 103- Power of High Court to determine issue 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,— (a) which has not been determined by the lower Appellate Court or
both by the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on
such question of law as is referred to in section 100.
- Where matters of facts in the suit have been ignored, wrongly misinterpreted, here the
second appellant court would address them. Usually, the second appellate court does not
address facts of a suit.

APPEALS FROM ORDERS

S. 104- Orders from which appeal lies.—(1) An appeal shall lie from the following orders,
and save as otherwise expressly provided in the body of this Code or by any law for the time
being in force, from no other orders:— [(ff) an order under section 35A;] [(ffa) an order
under section 91 or section 92 refusing leave to institute a suit of the nature referred to in
section 91 or section 92, as the case may be;] (g) an order under section 95; (h) an order
under any of the provisions of this Code imposing a fine or directing the arrest or detention in
the civil prison of any person except where such arrest or detention is in execution of a
decree; (i) any order made under rules from which an appeal is expressly allowed by rules:
[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground
that no order, or an order for the payment of a less amount, ought to have been made.]
(2) No appeal shall lie from any order passed in appeal under this section.
- When you have multiple appeals against decrees, you may not have multiple decrees under
order.
S. 105- Other orders.—(1) Save as otherwise expressly provided, no appeal shall lie from any
order made by a Court in the exercise of its original or appellate jurisdiction; but where a
decree is appealed from, any error, defect or irregularity in any order, affecting the decision
of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an
order of remand from which an appeals lies does not appeal therefrom, he shall thereafter be
precluded from disputing its correctness.
- If you do not go in appeal, you cannot go later after the suit has been decided.

S. 106- What Courts to hear appeals.—Where an appeal from any order is allowed it shall lie
to the Court to which an appeal would lie from the decree in the suit in which such order was
made, or where such order is made by a Court (not being a High Court) in the exercise of
appellate jurisdiction, then to the High Court.
- Where you would go to file appeals of the suit.

GENERAL PROVISIONS RELATING TO APPEALS

S. 107- Powers of Appellate Court.—(1) Subject to such conditions and limitations as may be
prescribed, an Appellate Court shall have power— (a) to determine a case finally;
(b) to remand a case; (if case has been heard badly and the decision is meritless than he may
remand the case to be de novo)
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken (by the commissioner)
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as
nearly as may be the same duties as are conferred and imposed by this Code on Courts of
original jurisdiction in respect of suits instituted therein.
- Everything that a trial court does can be done by first appellate court as well.

S. 108- Procedure in appeals from appellate decrees and orders.—The provisions of this Part
relating to appeals from original decrees shall, so far as may be, apply to appeals— (a) from
appellate decrees, and (b) from orders made under this Code or under any special or local law
in which a different procedure is not provided.
- If a different procedure is not provided then CPC would only apply. If it is, the other
procedure would apply.

APPEALS TO THE SUPREME COURT

S. 109- When appeals lie to the Supreme Court.—Subject to the provisions in Chapter IV of
Part V of the Constitution and such rules as may, from time to time, be made by the Supreme
Court regarding appeals from the Courts of India, and to the provisions hereinafter contained,
an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil
proceeding of a High Court, if the High Court certifies— (i) that the case involves a
substantial question of law of general importance; and (ii) that in the opinion of the High
Court the said question needs to be decided by the Supreme Court.
- In all these cases, a certificate is required to get your matter heard. The thought process is
that by deciding this case, other cases may also be decided.

S. 112- (1) Nothing contained in this Code shall be deemed— (a) to affect the powers of the
Supreme Court under article 136 or any other provision of the Constitution; or (b) to interfere
with any rules made by the Supreme Court, and for the time being in force for the
presentation of appeals to that Court, or their conduct before that Court.] (2) Nothing herein
contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction (naval
warfare business) or to appeals from orders and decrees of Prize Courts (goods confiscated by
enemy)
- Power of A. 136 cannot be curtailed by the CPC.

ORDER 41:- (APPEALS FROM ORIGINAL DECREES)

Rule 1: Form of appeal- What to accompany memorandum.—(1) Every appeal shall be
preferred in the form of a memorandum signed by the appellant or his pleader and presented
to the Court or to such officer as it appoints in this behalf. The memorandum shall be
accompanied by a copy of the Judgment.
- Appeal submitted to Registrar of Court
- Appeal must be in the format of the Court rule book
Provided that where two or more suits have been tried together and a common judgment
(disputes of two different people but the outcome is the same) has been delivered therefor and
two or more appeals are filed against any decree covered by that judgment, whether by the
same appellant or by different appellants, the Appellate Court may dispense with the filing of
more than one copy of the judgment.
(2) Contents of memorandum.—the memorandum shall set forth, concisely and under distinct
heads, the grounds of objection to the decree appealed from without any argument or
narrative; and such grounds shall be numbered consecutively.
(3) Where the appeal is against a decree for payment of money, the appellant shall, within
such time as the Appellate Court may allow, deposit the amount disputed in the appeal or
furnish such security in respect thereof as the Court may think fit.
Rule 2: Grounds which may be taken in appeal.—The appellant shall not, except by leave of
the Court, urge or be heard in support of any ground of objection not set forth in the
memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined
to the grounds of objections set forth in the memorandum of appeal or taken by leave of the
Court under this rule: Provided that the Court shall not rest its decision on any other ground
unless the party who may be affected thereby has had a sufficient opportunity of contesting
the case on that ground.
- Court may take other grounds not mentioned in the memorandum (highly unlikely in real
life)
- This gives a chance to those whom are affected by the case. They may come as an
intervenor

Rule 3: Rejection or amendment of memorandum.—(1) Where the memorandum of appeal is

not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the
appellant for the purpose of being amended within a time to be fixed by the Court or be
amended then and there. (2) Where the Court rejects any memorandum, it shall record the
reasons for such rejection. (3) Where a memorandum of appeal is amended, the judge, or
such officer as he appoints in this behalf, shall sign or initial the amendment.
- If memorandum is not as per the court rule book, court may reject it.

Rule 3A: Application for condonation of delay.—(1) When an appeal is presented after the
expiry of the period of limitation specified therefore, it shall be accompanied by an
application supported by affidavit setting forth the facts on which the appellant relies to
satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
- The party must give cogent reasons and memorandum for appeal must be ready with it.
(2) If the Court sees no reason to reject the application without the issue of a notice to the
respondent, notice hereof shall be issued to the respondent and the matter shall be finally
decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the
case may be.
- If court accepts your application, they may tell the petitioner to send the papers to the
respondent to appear.
(3) Where an application has been made under sub-rule (1), the Court shall not make an order
for the stay of execution of the decree against which the appeal is proposed to be filed so long
as the Court does not, after hearing under rule 11, decide to hear the appeal.
- Merely on condonation of delay, there can be no stay unless the opposite party is heard.

Rule 4: One of several plaintiffs or defendants may obtain reversal of whole decree where it
proceeds on ground common to all.—Where there are more plaintiffs or more defendants
than one in a suit, and the decree appealed from proceeds on any ground common to all the
plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal
from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in
favour of all the plaintiffs or defendants, as the case may be.

Rule 5: Stay by Appellate Court.—(1) An appeal shall not operate as a stay of proceedings
under a decree or order appealed from except so far as the Appellate Court may order, nor
shall execution of a decree be stayed by reason only of an appeal having been preferred from
the decree; but the Appellate Court may for sufficient cause order stay of execution of such
decree.
[Explanation.—An order by the Appellate Court for the stay of execution of the decree shall
be effective from the date of the communication of such order to the Court of first instance,
but an affidavit sworn by the appellant, based on his personal knowledge, stating that an
order for the stay of execution of the decree has been made by the Appellate Court shall,
pending the receipt from the Appellate Court of the order for the stay of execution or any
order to the contrary, be acted upon by the Court of first instance.]
(2) Stay by Court which passed the decree.—Where an application is made for stay of
execution of an appealable decree before the expiration of the time allowed for appealing
therefrom, the Court which passed the decree may on sufficient cause being shown order the
execution to be stayed.
- Even the court which passes an order, you may request stay on such order so that the party
may have time to file an appeal.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the
Court making it is satisfied— (a) that *substantial loss* may result to the party applying for
stay of execution unless the order is made; (b) that the application has been made without
*unreasonable delay*; and (c) that *security* has been given by the applicant for the due
performance of such decree or order as may ultimately be binding upon him.
(4) [Subject to the provision of sub-rule (3)], the Court may make an ex parte order for stay
of execution pending the hearing of the application.
- If merits of the matter can be proved to the court, Court may put a stay order.
(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails
to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall
not make an order staying the execution of the decree.
- If there is no security then no stay order can be given.

Rule 6: Security in case of order for execution of decree appealed from.—(1) Where an order
is made for the execution of a decree from which an appeal is pending, the Court which
passed the decree shall, on sufficient cause being shown by the appellant, require security to
be taken for the restitution of any property which may be or has been taken in execution of
the decree or for the payment of the value of such property and for the due performance of
the decree or order of the Appellate Court, or the Appellate Court may for like cause direct
the Court which passed the decree to take such security.
- If there is any transfer done in the decree (where no stay is given), restitution must be done.
(2) Where an order has been made for the sale of immovable property in execution of a
decree, and an appeal is pending from such decree, the sale shall, on the application of the
judgment-debtor to the Court which made the order, be stayed on such terms as to giving
security or otherwise as the Court thinks fit until the appeal is disposed of.

Rule 8: Exercise of powers in appeal from order made in execution of decree.—The powers
conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred
not from the decree but from an order made in execution of such decree.
- Orders of execution can be assailed and taken.
Rule 9: Read

Rule 10: Appellate Court may require appellant to furnish security for costs.—(1) The
Appellate Court may in its discretion, either before the respondent is called upon to appear
and answer or afterwards on the application of the respondent, demand from the appellant
security for the costs of the appeal, or of the original suit, or of both:
Where appellant resides out of India.—Provided that the Court shall demand such security in
all cases in which the appellant is residing out of [India], and is not possessed of any
sufficient immovable property within [India] other than the property (if any) to which the
appeal relates.
(2) Where such security is not furnished within such time as the Court orders, the Court shall
reject the appeal.
- no security, no appeal.

Rule 11: Power to dismiss appeal without sending notice to Lower Court.—(1) The appellate
Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly
if he appears on that day may dismiss the appeal.
- In some cases, the Court hears the matter, finds no merit in the appeal and dismisses it. In
such cases, no notice needs to be sent to the respondent.
(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant
does not appear when the appeal is called on for hearing, the Court may make an order that
the appeal be dismissed.
- Appeal becomes still borne and matter might be dismissed
(3) The dismissal of an appeal under this rule shall be notified to the Court from whose
decree the appeal is preferred.
(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule
(1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall
be drawn up in accordance with the judgment.

Rule 11A: Time within which hearing under rule 11 should be concluded.—Every appeal
shall be heard under rule 11 as expeditiously as possible and endeavour shall be made to
conclude such hearing within sixty days from the date on which the memorandum of appeal
is filed.]

Rule 12: Day for hearing appeal. — (1) Unless the Appellate Court dismisses the appeal
under rule 11, it shall fix a day for hearing the appeal.
(2) Such day shall be fixed with reference to the current business of the Court

Rule 14: Publication and service or notice or day for hearing appeal.—(1) Notice of the day
fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be
sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall
be served on the respondent or on his pleader in the Appellate Court in the manner provided
for the service on a defendant of a summons to appear and answer; and all the provisions
applicable to such summons, and to proceedings with reference to the service thereof, shall
apply to the service of such notice.
- Notice must be given to the party directly.
(2) Appellate Court may itself cause notice to be served.—Instead of sending the notice to the
Court from whose decree the appeal is preferred, the Appellate Court may itself (Usually the
Small Causes court does this) cause the notice to be served on the respondent or his pleader
under the provisions above referred to.
(3) The notice to be served on the respondent shall be accompanied by a copy of the
memorandum of appeal.
(4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be
necessary to serve notice of any proceeding incidental to an appeal on any respondent other
than a person impleaded for the first time in the Appellate Court, unless he has appeared and
filed an address for the service in the Court of first instance or has appeared in the appeal.
- Provisions regarding intervenors.
Example: A sells a land to B. C has filed an adverse possession suit against A. Can B
substitute himself in the place of A? –Yes, as B’s interests are harmed.
(5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending
it.
- Intervenor can also defend the suit.
Rule 16: Right to begin.—(1) On the day fixed, or on any other day to which the hearing may
be adjourned, the appellant shall be heard in support of the appeal. (2) The Court shall then, if
it does not dismiss the appeal at once, hear the respondent against the appeal, and in such
case the appellant shall be entitled to reply.

Rule 17: Dismissal of appeal for appellant’s default.—(1) Where on the day fixed, or on any
other day to which the hearing may be adjourned, the appellant does not appear when the
appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
Explanation.—Nothing in this sub-rule shall be construed as empowering the Court to
dismiss the appeal on the merits.
- If plaintiff is not there on the day allotted, his application can be thrown away on grounds of
non-prosecution.
(2) Hearing appeal ex parte.—Where the appellant appears and the respondent does not
appear, the appeal shall be heard ex parte.

Rule 19: Re-admission of appeal dismissed for default. —Where an appeal is dismissed under
rule 11, sub-rule (2) or rule 17 the appellant may apply to the Appellate Court for the re-
admission of the appeal; and, where it is proved that he was prevented by any sufficient cause
from appearing when the appeal was, called on for hearing or from depositing the sum so
required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it
thinks fit.
- Condition: Appellant must keep the security specified by Court

Rule 20: Power to adjourn hearing and direct persons appearing interested to be made
respondents. — (1) Where it appears to the Court at the hearing that any person who was a
party to the suit in the Court from whose decree the appeal is preferred, but who has not been
made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the
hearing to a future day to be fixed by the Court and direct that such person be made a
respondent.
- Condition: He was a party to the suit but not as respondent.
(2) No respondent shall be added under this rule, after the expiry of the period of limitation
for appeal unless the Court, for reasons to be recorded, allows that to be done, on such terms
as to costs as it thinks fit.
- Post limitation no suit is possible.

Rule 21: Re-hearing on application of respondent against whom ex parte decree made.—
Where an appeal is heard ex parte and judgment is pronounced against the respondent, he
may apply to the Appellate Court to re-hear the appeal: and, if he satisfies the Court that the
notice was not duly served or that he was prevented by sufficient cause from appearing when
the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to
costs or otherwise as it thinks fit to impose upon him.
- Court may reopen matter after costs being paid by the respondent.

Rule 22: Upon hearing respondent may object to decree as if he had preferred separate
appeal.—(1) Any respondent, though he may not have appealed from any part of the decree,
may not only support the decree [but may also state that the finding against him in the Court
below in respect of any issue ought to have been in his favour; and may also take any cross-
objection] to the decree which he could have taken by way of appeal provided he has filed
such objection in the Appellate Court within one month from the date of service on him or his
pleader of notice of the day fixed for hearing the appeal, or within such further time as the
Appellate Court may see fit to allow.
Explanation. —A respondent aggrieved by a finding of the Court in the judgment on which
the decree appealed against is based may, under this rule, file cross-objection in respect of the
decree in so far as it is based on that finding, notwithstanding that by reason of the decision
of the Court on any other finding which is sufficient for the decision of the suit, the decree, is,
wholly or in part, in favour of that respondent.
(2) Form of objection and provisions applicable thereto.—Such cross-objection shall be in the
form of a memorandum, and the provisions of rule 1, so far as they relate to the form and
contents of the memorandum of appeal, shall apply thereto.
- Objection should be made exactly like Memorandum of Appeal.

(4) Where, in any case in which any respondent has under this rule filed a memorandum of
objection, the original appeal is withdrawn or is dismissed for default, the objection so filed
may nevertheless be heard and determined after such notice to the other parties as the Court
thinks fit.
- After the notice, the appellant court may only hear the objections.
(Same as claim and counter claim; even if the claim is dismissed, the counter claim is
followed)
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made
applicable, apply to an objection under this rule.

- Cross Appeals- Court will tag both the appeals together (within one months’ time)
- Cross Objection- SC said that if main appeal fails then cross objection will also fail.

EXTRA NOTES TO UNDERSTAND DIFFERENCE BETWEEN CROSS APPEALS AND

OBJECTIONS:-
In the judgment of Superintending Engineer & Ors. Vs B Subba Reddy, the following
principles emerge—
(1) Appeal is a substantive right. It is a creation of the statute. Right to appeal does not exist
unless it is specifically conferred.
(2) Cross objection is like an appeal. It has all the trappings of an appeal. It is filed in the
form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these
relate to the form and contents of the memorandum of appeal apply to cross-objection as
well.
(3) Court fee is payable on cross-objection like that on the memorandum of appeal.
Provisions relating to appeals by indigent person also apply to cross-objection.
(4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may
nevertheless be heard and determined.
(5) Respondent even though he has not appealed may support the decree on any other ground
but if wants to modify it, he has to file cross-objection to the decree which objections he
could have taken earlier by filing an appeal. Time for filing objection which is in the nature
of appeal is extended by one month after service of notice on him of the day fixed for hearing
the appeal. This time could also be extended by the Court like in appeal.
(6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the
respondent wanted to give quietus to whole litigation by his accepting the judgment and
decree or order even if it was partly against his interest. When, however, the other party
challenged the same by filing an appeal statute gave the respondent a second chance to file an
appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or
order.

Rule 23: Remand of case by Appellate Court.—Where the Court from whose decree an
appeal is preferred has disposed of the suit upon a preliminary point and the decree is
reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and
may further direct what issue or issues shall be tried in the case so remanded, and shall send a
copy of its judgment and order to the Court from whose decree the appeal is preferred, which
directions to re-admit the suit under its original number in the register of civil suits, and
proceed to determine the suit; and the evidence (if any) recorded during the original trial
shall, subject to all just exceptions, be evidence during the trial after remand.
- The original court has on a preliminary question disposed of the suit. The party went to the
appellate court and this court decides that the preliminary question was decided wrongly.
Therefore, in this case the court would reframe the questions, send it back to the original
court with instructions. This is called remand.
Case: Spencer vs Vishwabharti (also a remand case)
- Incase HC has not heard the case in remand, an application must be filed to the HC first and
if they still do not consider it, the party can approach the SC.
Rule 23A: Remand in other cases.—Where the Court from whose decree an appeal is
preferred has disposed of the case otherwise than on a preliminary point, and the decree is
reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the
same powers as it has under rule 23.
- Even in this case, there is no preliminary issue and the whole decree/judgment is bad then
the whole case may be given in remand to the court as de novo.

Rule 24: Where evidence on record sufficient Appellate Court may determine case finally.—
Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce
judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine
the suit, notwithstanding that the judgment of the Court from whose decree the appeal is
preferred has proceeded wholly upon some ground other than that on which the Appellate
Court proceeds.
- The appellate court being a superior court is free to hear the whole trial itself and come and
give a clear judgment.
Q. Can this be done in revision? – Yes.

Rule 25: Where Appellate Court may frame issues and refer them for trial to Court whose
decree appealed from.—Where the Court from whose decree the appeal is preferred has
omitted to frame or try any issue, or to determine any question of fact, which appears to the
Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court
may, if necessary, frame issues, and refer the same for trial to the Court from whose decree
the appeal is preferred, and in such case shall direct such Court to take the additional
evidence required; and such Court shall proceed to try such issues, and shall return the
evidence to the Appellate Court together with its findings thereon and the reasons therefore
[within such time as may be fixed by the Appellate Court or extended by it from time to
time].
- Court may frame questions and send it back to the trial court, gather evidence and finish the
matter at their end.

Rule 26: Findings and evidence to be put on record. Objections to findings.—(1) Such
evidence and findings shall form part of the record in the suit; and either party may, within a
time to be fixed by the Appellate Court, present a memorandum of objections to any finding.
(2) Determination of appeal—After the expiration of the period so fixed for presenting such
memorandum the Appellate Court shall proceed to determine the appeal.
- If in taking such new evidences in the original trial court, the parties may raise objections.

Rule 26A: Order of remand to mention date of next hearing.—Where the Appellate Court
remands a case under rule 23 or rule 23A, or frames issues and refers them for trial under rule
25, it shall fix a date for the appearance of the parties before the Court from whose decree the
appeal was preferred for the purpose of receiving the directions of that Court as to further
proceedings in the suit.

Rule 27: Production of additional evidence in Appellate Court.—(1) The parties to an appeal
shall not be entitled to produce additional evidence, whether oral or documentary, in the
Appellate Court. But if — (a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to
produce additional evidence, establishes that notwithstanding the exercise of due diligence,
such evidence was not within his knowledge or could not, after the exercise of due diligence,
be produced by him at the time when the decree appealed against was passed, or] (b) the
Appellate Court requires any document to be produced or any witness to be examined to
enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may
allow such evidence or document to be produced, or witness to be examined.
- Bar on bringing something new in the evidence stage. If new evidence is taken, the Court
must mention the reason why they have done so.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court
shall record the reason for its admission.

Rule 28: Mode of taking additional evidence.—Wherever additional evidence is allowed to

be produced, the Appellate Court may either take such evidence, or direct the Court from
whose decree the appeal is preferred, or any other subordinate Court, to take such evidence
and to send it when taken to the Appellate Court.
- Additional evidence taken and records put in becomes an outright necessity. Court may take
evidence themselves or let the trial court gather evidence. These days, the Court
commissioner takes evidence.

Rule 29: Points to be defined and recorded.—Where additional evidence is, directed, and
allowed to be taken, the Appellate Court shall specify the points to which the evidence is to
be confined, and record on its proceedings the points so specified.
- Frame the reference as to what evidences have to be taken and report back to the Appellate
Court as directed.

Rule 30: Judgment when and where pronounced.—(1) The Appellate Court, after hearing the
parties or their pleaders and referring to any part of the proceedings, whether on appeal or in
the Court from whose decree the appeal is preferred, to which reference may be considered
necessary, shall pronounce judgment in open Court, either at once or on some future day of
which notice shall be given to the parties or their pleaders.
- Court would decide a day to announce the judgment.
(2) Where a written judgment is to be pronounced, it shall be sufficient if the points for
determination, the decision thereon and the final order passed in the appeal are read out and it
shall not be necessary for the Court to read out the whole judgment, but a copy of the whole
judgment shall be made available for the perusal of the parties or their pleaders immediately
after the judgment is pronounced.
- On the day the court announces its judgment, the copy would be given to the opposite party.

Rule 31: Contents, date and signature of judgment.—The judgment of the Appellate Court
shall be in writing and shall state— (a) the points for determination; (b) the decision thereon;
(c) the reasons for the decision; and, (d) where the decree appealed from is reversed or varied,
the relief to which the appellant is entitled; and shall at the time that it is pronounced be
signed and dated by the Judge or by the Judges concurring therein (in case of division bench).

Rule 32: What judgment may direct.—The judgment may be for confirming, varying or
reversing the decree (These are the powers) from which the appeal is preferred, or, if the
parties to the appeal agree as to the form which the decree in appeal shall take, or as to the
order to be made in appeal, the Appellate Court may pass a decree or make an order
accordingly.

Rule 33: Power of Court of Appeal.—The Appellate Court shall have power to pass any
decree and make any order which ought to have been passed or made and to pass or make
such further or other decree or order as the case may require, and this power may be
exercised by the Court notwithstanding that the appeal is as to part only of the decree and
may be exercised in favour of all or any of the respondents or parties, although such
respondents or parties may not have filed any appeal or objection [and may, where there have
been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised
in respect of all or any of the decrees, although an appeal may not have been filed against
such decrees:]
Provided that the Appellate Court shall not make any order under section 35A in pursuance
of any objection on which the Court from whose decree the appeal is preferred has omitted or
refused to make such order.
- Order that has been made is applicable even to the other parties in the suit.

Example: A claims a sum of money as due to him from X or Y, and in a suit against both
obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court
decides in favour of X. It has power to pass a decree against Y.
Rule 34- Dissent to be recorded.—Where the Appeal is heard by more judges than one, any
judge dissenting from the judgment of the Court shall state in writing the decision or order
which he thinks should be passed on the appeal, and he may state his reasons for the same.
- It must be recorded as every judicial thought of legal question must be out for dispute. It
could be possible that any time later, such a question can be raised.

Rule 35- Date and contents of decree.—(1) The decree of the Appellate Court shall bear date
the day on which the judgment was pronounced. (2) The decree shall contain the number of
the appeal, the names and descriptions of the appellant and respondent, and a clear
specification of the relief granted or other adjudication made. (3) The decree shall also state
the amount of costs incurred in the appeal, and by whom, or out of what property, and in
what proportions such costs and the costs in the suit are to be paid. (4) The decree shall be
signed and dated by the Judge or Judges who passed it
- Date is essential for all judgments and orders for limitations period.
- It shall also work out the costs and interests

Rule 36: Copies of judgment and decree to be furnished to parties.—certified copies of the
judgment and decree in appeal shall be furnished to the parties on application to the Appellate
Court and at their expense.
- If party wants to go in appeal, they go can go further.

ORDER 43:- (APPEALS FROM ORDERS)

Rule 1A: Right to challenge non-appealable orders in appeal against decrees.—(1) Where any
order is made under this Code against a party and there upon any judgment is pronounced
against such party and a decree is drawn up, such party may, in an appeal against the decree,
contend that such order should not have been made and the judgment should not have been
pronounced.
- Example: Injunction is given and a decree is drawn up, such party may appeal in a decree
against the orders made by the court in the interlocutory application.
- You may assail the order at the time of appeal.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to
record a compromise, it shall be open to the appellant to contest the decree on the ground that
the compromise should, or should not, have been recorded.
- A court refuses to recognise a compromise in cases which is against any provision of law.

Rule 2: Procedure.—The rules of Order XLI shall apply, so far as may be, to appeals from
orders.
ORDER 45:-
- Can approach SC when you have obtained a certificate

Rule 1: “Decree” defined.—In this Order, unless there is something repugnant in the subject
or context, the expression “decree” shall include a final order.

Rule 2: Application to Court whose decree complained of.—[(1)] Whoever desires to appeal
[the Supreme Court] shall apply by petition to the Court whose decree is complained of.
(2) Every petition under sub-rule (1) shall be heard as expeditiously as possible and
endeavour shall be made to conclude the disposal of the petition within sixty days from the
date on which the petition is presented to the Court under sub-rule (1).

Rule 3: Certificate as to value or fitness. —(1) Every petition shall state the grounds of appeal
and pray for a certificate— (i) that the case involves a substantial question of law of general
importance, and (ii) that in the opinion of the Court the said question needs to be decided by
the Supreme Court.
- Appeals to the SC can only come from the HC. Only the HC can issue such a certificate and
the opposite side may go against it. An application would be filed in HC where it would be
considered if there is a substantial question of law at hand.
(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite
party to show cause why the said certificate should not be granted.

Rule 6: Effect of refusal of certificate.—Where such certificate is refused, the petition shall
be dismissed.
- When your petition is dismissed, it would be the end of trial.

Rule 9: Revocation of acceptance of security.—At any time before the admission of the
appeal the Court may, upon cause shown, revoke the acceptance of any such security, and
make further directions thereon.
Q. Who revokes security after given? -Party appealing (they get a bank guarantee)\

Rule 9A: Power to dispense with notices in case of deceased parties.—Nothing in these rules
requiring any notice to be served on or given to an opposite party or respondent shall be
deemed to require any notice to be served on or given to the legal representative of any
deceased opposite party or deceased respondent in a case, where such opposite party or
respondent did not appear either at the hearing in the Court whose decree is complained of or
at any proceedings subsequent to the decree of that Court: Provided that notices under sub-
rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous
place in the court-house of the Judge of the district in which the suit was originally brought,
and by publication in such newspapers as the Court may direct.
- Incase of deceased parties if you do not know their name, the name of their legal heirs
would be named in the notice.

Rule 11: Effect of failure to comply with order.—Where the appellant fails to comply with
such order, the proceedings shall be stayed, and the appeal shall not proceed without an order
in this behalf of 3 [the Supreme Court], and in the meantime execution of the decree appealed
from shall not be stayed
- If you do not give security, security fails, the security giver revokes the security, then the
execution proceeding will start, application fails and you cannot go to the SC.

Rule 12: Refund of balance deposit.--When the copy of the record, except as aforesaid, has
been transmitted to 1 [the Supreme Court], the appellant may obtain a refund of the balance
(if any) of the amount which he has deposited under rule 7.
- If there is any extra money with the court lying, they may refund it.

Rule 13: Powers of Court pending appeal.—(1) Notwithstanding the grant of a certificate for
the admission of any appeal, the decree appealed from shall be unconditionally executed,
unless the Court otherwise directs.
(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit,
or otherwise appearing to the Court,— (a) impound any movable property in dispute or any
part thereof, or (b) allow the decree appealed from to be executed, taking such security from
the respondent as the Court thinks fit for the due performance of any order which 1 [the
Supreme Court] may make on the appeal, or (c) stay the execution of the decree appealed
from, taking such security from the appellant as the Court thinks fit for the due performance
of the decree appealed from, or of 2 [any decree or order] which the 1[the Supreme Court]
may make on the appeal, or (d) place any party seeking the assistance of the Court under such
conditions or give such other direction respecting the subject-matter of the appeal, as it thinks
fit, by the appointment of a receiver or otherwise.
- If a certificate is given, the court normally gives a stay of all proceedings.

Rule 14: Increase of security found inadequate

- When a lot of years elapse, security is then increased.
Rule 15: Procedure to enforce orders of the Supreme Court.—(1) Whoever desires to obtain
execution of [any decree or order] of [the Supreme Court] shall apply by petition,
accompained by a certified copy of the decree passed or order made in appeal and sought to
be executed, to the Court from which the appeal to [the Supreme Court] was preferred.
(2) Such Court shall transmit the [decree or order] of 1 [the Supreme Court] to the Court
which passed the first decree appealed from, or to such other Court as [the Supreme Court]
by such [decree or order] may direct, and shall (upon the application of either party) give
such directions as may be required for the execution of the same; and the Court to which the
said [decree or order] is so transmitted shall execute it accordingly, in the manner and
according to the provisions applicable to the execution of its original decrees.
(4) Unless the Supreme Court otherwise directs, no decree or order of that Court] shall be
inoperative on the ground that no notice has been served on or given to the legal
representative of any deceased opposite party or deceased respondent in a case, where such
opposite party or respondent did not appear either at the hearing in the Court whose decree
was complained of or at any proceedings subsequent to the decree of that Court, but such
order shall have the same force and effect as if it had been made before the death took place.
- Legal heirs cannot block the decree at a later date and stop the execution.

Rule 16: Appeal from order relating to execution.—The orders made by the Court which
executes the [decree or order] of [the Supreme Court], relating to such execution, shall be
appealable in the same manner and subject to the same rules as the orders of such Court
relating to the execution of its own decrees.
- Although it is order of SC, it shall be executing it as its own decree.
- Executing court is an administrative court and not adjudicating court.

EXECUTION
S. 36: Application to orders.—The provisions of this Code relating to the execution of
decrees (including provisions relating to payment under a decree) shall, so far as they are
applicable, be deemed to apply to the execution of orders (including payment under an
order).]

S. 37: Definition of Court which passed a decree.—The expression “Court which passed a
decree,” or words to that effect, shall, in relation to the execution of decrees, unless there is
anything repugnant in the subject or context, be deemed to include,— (a) where the decree to
be executed has been passed in the exercise of appellate jurisdiction, the Court of first
instance, and (b) where the Court of first instance has ceased to exist or to have jurisdiction to
execute it, the Court which, if the suit wherein the decree was passed was instituted at the
time of making the application for the execution of the decree, would have jurisdiction to try
such suit.
 [Explanation.—The Court of first instance does not cease to have jurisdiction to execute a
decree merely on the ground that after the institution of the suit wherein the decree was
passed or after the passing of the decree, any area has been transferred from the jurisdiction
of that Court to the jurisdiction of any other Court; but, in every such case, such other Court
shall also have jurisdiction to execute the decree, if at the time of making the application for
execution of the decree it would have jurisdiction to try the said suit.]

S. 38- Court by which decree may be executed.—A decree may be executed either by the
Court which passed it, or by the Court to which it is sent for execution.
- Sent for execution when there are immovable properties

S. 39- Transfer of decree.—(1) The Court which passed a decree may, on the application of
the decree holder, send it for execution to another Court [of competent jurisdiction],—
(a) if the person against whom the decree is passed actually and voluntarily resides or carries
on business, or personally works for gain, within the local limits of the jurisdiction of such
other Court, or (b) if such person has not property within the local limits of the jurisdiction of
the Court which passed the decree sufficient to satisfy such decree and has property within
the local limits of the jurisdiction of such other Court, or (c) if the decree directs the sale or
delivery of immovable property situate outside the local limits of the jurisdiction of the Court
which passed it, or (d) if the Court which passed the decree considers for any other reason,
which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any
subordinate Court of competent jurisdiction.
- A district court may give execution of a decree to Munsif Court for execution.
(3) For the purposes of this section, a Court shall be deemed to be a Court of competent
jurisdiction if, at the time of making the application for the transfer of decree to it, such Court
would have jurisdiction to try the suit in which such decree was passed. (only if there is a
property there, at another place)
(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to
execute such decree against any person or property outside the local limits of its jurisdiction.
- persons or property out of jurisdiction cannot hear it.

S. 41- Result of execution proceedings to be certified.—The Court to which a decree is sent

for execution shall certify to the Court which passed it the fact of such execution, or where
the former Court fails to execute the same the circumstances attending such failure.
When executing court has certified that it has executed the decree, it must send it back to the
original court.
S. 42- (1)] The Court executing a decree sent to it shall have the same powers in executing
such decree as if it had been passed by itself. All persons is disobeying or obstructing the
execution of the decree shall be punishable by such Court in the same manner as if it had
passed the decree. And its order in executing such decree shall be subject to the same rules in
respect of appeal as if the decree had passed by itself.
- It may not investigate into the wisdom of the court, the appellate court must do the same.
- If it has gone to the SC and then come to the lower court, there is no investigation left.
(2) Without prejudice to the generality of the provisions of sub-section (1), the powers of the
Court under that sub-section shall include the following powers of the Court which passed the
decree, namely:— (a) power to send the decree for execution to another Court under section
39; (b) power to execute the decree against the legal representative of the deceased judgment-
debtor under section 50; (c) power to order attachment of a decree.
(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send
a copy thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the Court to which a decree is sent
for execution any of the following powers, namely:— (a) power to order execution at the
instance of the transferee of the decree ; (b) in the case of a decree passed against a firm,
power to grant leave to execute such decree against any person, other than such a person as is
referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXI
- People used to earlier sell decrees since they did not want the hassle of courts.
- Now, loan can be sold through Asset Reconstruction Companies.

- The concept of reciprocating territory existed since we have princely states. (S. 44A)

S. 46- Precepts.—(1) Upon the application of the decree-holder the Court which passed the
decree may whenever it thinks fit, issue a precept to any other Court which would be
competent to execute such decree to attach any property belonging to the judgment-debtor
and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the property in the manner
prescribed in regard to the attachment of property in execution of a decree:
Provided that no attachment under a precept shall continue for more than two months unless
the period of attachment is extended by an order of the Court which passed the decree or
unless before the determination of such attachment the decree has been transferred to the
Court by which the attachment has been made and the decree-holder has applied for an order
for the sale of such property.
- Valid for 2 months. If judgment debtor pays your money (in those two months), satisfaction
is done then you will find the precept will go away.
S. 47- Questions to be determined by the Court executing decree.—(1) All questions arising
between the parties to the suit in which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree, shall be determined by the
Court executing the decree and not by a separate suit.
(3) Where a question arises as to whether any person is or is not the representative of a party,
such question shall, for the purposes of this section, be determined by the Court.
- Any dispute that arises at the time of execution then only that can be determined by the
executing court. Executing court shall not go behind the decree.
[Explanation 1.—For the purposes of this section, a plaintiff whose suit has been dismissed
and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II—(a) For the purposes of this section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a party to the suit in which the decree is passed;
and
(b) all questions relating to the delivery of possession of such property to such purchaser or
his representative shall be deemed to be questions relating to the execution, discharge or
satisfaction of the decree within the meaning of this section.
- Example: Questions may arise about the title of executing property. This would go to the
executing court.
- Incase of selling of property, the neighbour must be offered first (pre-emption)

S. 49- Transferee.—Every transferee of a decree shall hold the same subject to the equities (if
any) which the judgment-debtor might have enforced against the original decree-holder.

S. 50- Legal representative.—(1) Where a judgment-debtor dies before the decree has been
fully satisfied, the holder of the decree may apply to the Court which passed it to execute the
same against the legal representative of the deceased. (2) Where the decree is executed
against such legal representative, he shall be liable only to the extent of the property of the
deceased which has come to his hands and has not been duly disposed of; and, for the
purpose of ascertaining such liability, the Court executing the decree may, of its own motion
or on the application of the decree-holder, compel such legal representative to produce such
accounts as it thinks fit.
Example: Mr. A borrows 1 crore on his bungalow. He has a wife, 2 sons. A dies. One son is
successful. The bungalow is worth 50 lacs. Therefore, the heirs can attach the property and
then get 50 lac.

S. 51- Powers of Court to enforce execution.—Subject to such conditions and limitations as

may be prescribed, the Court may, on the application of the decree-holder, order execution of
the decree— (a) by delivery of any property specifically decreed; (b) by attachment and sale
or by the sale without attachment of any property; (c) by arrest and detention in prison [for
such period not exceeding the period specified in section 58, where arrest and detention is
permissible under that section]; (d) by appointing a receiver; or (e) in such other manner as
the nature of the relief granted may require :
[Provided that, where the decree is for the payment of money, execution by detention in
prison shall not be ordered unless, after giving the judgment-debtor an opportunity of
showing cause why he should not be committed to prison, the Court, for reasons recorded in
writing, is satisfied—
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution
of the decree,— (i) is likely to abscond or leave the local limits of the jurisdiction of the
Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly
transferred, concealed, or removed any part of his property, or committed any other act of bad
faith in relation to his property, or
(b) that the judgment-debtor has, or has had since the date of the decree. the means to pay the
amount of the decree or some substantial part thereof and refuses or neglects or has refused or
neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary
capacity (trustees) to account
Explanation. —In the calculation of the means of the judgment-debtor for the purposes of
clause (b), there shall be left out of account any property which, by or under any law or
custom having the force of law for the time being in force, is exempt from attachment in
execution of the decree.]
- All that can be done by the executing court. Under Civil law, those who cannot pay and
those who would not pay must be segregated. Those who won’t pay must spend three months
in jail. Most people in jail today is because of the negotiable instruments act (S. 138)

S. 53- Liability of ancestral property.—For the purposes of section 50 and section 52,
property in the hands of a son or other descendant which is liable under Hindu law for the
payment of the debt of a deceased ancestor, in respect of which a decree has been passed,
shall be deemed to be property of the deceased which has come to the hands of the son or
other descendant as his legal representative.
- Whatever has come to the legal representatives must be attached.

S. 54- Partition of estate or separation of share.—Where the decree is for the partition of an
undivided estate assessed to the payment of revenue to the Government, or for the separate
possession of a share of such an estate, the partition of the estate or the separation of the share
shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in
this behalf, in accordance with the law (if any) for the time being in force relating to the
partition, or the separate possession of shares, of such estates (subject to land provision act of
the state; when divisions cannot be done, court can put p sale of divisionary rights)
- This is in cases where the government has given estates on rent, collector’s land, etc.
A. 55- (1) A judgment-debtor may be arrested in execution of a decree at, any hour and on
any day, and shall, as soon as practicable, be brought before the Court, and his detention may
be in the civil prison of the district in which the Court ordering the detention is situate, or,
where such civil prison does not afford suitable accommodation, in any other place which the
State Government may appoint for the detention of persons ordered by the Courts of such
district to be detained.

ATTACHMENT
S. 60- Property liable to attachment and sale in execution of decree.—(1) The following
property is liable to attachment and sale in execution of a decree, namely, lands, houses or
other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory
notes, Government securities, bonds or other securities for money, debts, shares in a
corporation and, save as hereinafter mentioned, all other saleable property, movable or
immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has
a disposing power which he may exercise for his own benefit, whether the same be held in
the name of the judgment-debtor or by another person in trust for him or on his behalf.
- Land Development Bank in every state where such people get their loans from.
- Attachment of salary is gone as they have their own cooperative societies

Q. What happens when a brand is of multiple classes?

- Example: Kingfisher, Vijay Mallya
- Bank attached Kingfisher brand in a public auction. Heineken objected. Court said that
anybody buys this brand would buy it to run a plane company.

S. 63- Property attached in execution of decrees of several Courts.—(1) Where property not
in the custody of any Court is under attachment in execution of decrees of more Courts than
one, the Court which shall receive or realize such property and shall determine any claim
thereto and any objection to the attachment thereof shall be the Court of highest grade, or,
where there is no difference in grade between such Courts, the Court under whose decree the
property was first attached. (2) Nothing in this section shall be deemed to invalidate any
proceeding taken by a Court executing one of such decrees. 3 [Explanation.—For the
purposes of sub-section (2), “proceeding taken by a Court” does not include an order
allowing, to a decree-holder who has purchased property at a sale held in execution of a
decree, set off to the extent of the purchase price payable by him.]
- One flat, 20 decrees. The court may execute it and keep it for secured creditors and what is
left after that would be divided amongst unsecured creditors.
S. 64- Private alienation of property after attachment to be void. —4 [(1)] Where an
attachment has been made, any private transfer or delivery of the property attached or of any
interest therein and any payment to the judgment-debtor of any debt, dividend or other
monies contrary to such attachment, shall be void as against all claims enforceable under the
attachment.
(2) Nothing in this section shall apply to any private transfer or delivery of the property
attached or of any interest therein, made in pursuance of any contract for such transfer or
delivery entered into and registered before the attachment.]
Explanation. —For the purpose of this section, claims enforceable under an attachment
include claims for the rateable distribution of assets.
- If no consideration had moved and transfer had done only to show the judgment debtor has
paid, this means it is a fraud transaction.

SALE
S. 65- Purchaser's title.—Where immovable property is sold in execution of a decree and
such sale has become absolute, the property shall be deemed to have vested in the purchaser
from the time when the property is sold and not from the time when the sale becomes
absolute (when full consideration is paid)
Q. Can buyer get an extended period of time for payment? –No.

S. 67- Power for State Government to make rules as to sales of land in execution of decrees
for payment of money. — [(1)] The State Government may, by notification in the Official
Gazette, make rules for any local area imposing conditions in respect of the sale of any class
of interests in land in execution of decrees for the payment of money, where such interest are
so uncertain or undetermined as, in the opinion of the State Government, to make it
impossible to fix their value. [(2) When on the date on which this Code came into operation
in any local area, any special rules as to sale of and in execution of decrees were in force
therein, the State Government may, by notification in the Official Gazette declare such rules
to be in force, or may by a like notification, modify the same. Every notification issued in the
exercise of the powers conferred by this sub-section shall set out the rules so continued or
modified.] [(3) Every rule made under this section shall be laid, as soon as may be after it is
made, before the State Legislature.]
- Each state government makes its own land laws.
- This section deals with provisions which are essentially under the purview of the State
government.
Case: HDFC vs Hindustan Unilever
Example: Mr. A is a trustee of a private temple with a lot of land. He is judgment debtor in a
suit for money. Can the temple be attached to the suit? Could it be claimed that he has
transferred his personal assets to a trust? – No. Any property belonging to a trust must get the
permission of the Charity Commissioner (atleast in Maharashtra)

S. 73- Proceeds of executionsale to be rateably distributed among decree-holders- —(1)

Where assets are held by a Court and more persons than one have, before the receipt of such
assets, made application to the Court for the execution of decrees for the payment of money
passed against the same judgment-debtor and have not obtained satisfaction thereof, the
assets, after deducting the costs of realization, shall be rateably distributed among all such
persons :
- If there are many decree holders who have bought an attachment for a property, it must be
rateably given away (it must have a proportion in which it should be given away)
(a) where any property is sold subject to a mortgage or charge, the mortgage or incumbrancer
shall not be entitled to share in any surplus arising from such sale;
Example: The land was mortgaged at 1000 rupees with 6% interest. Land has now become
6000 rupees. How much will mortgagor get? – 1000 rupees+ Interest.
(b) where any property liable to be sold in execution of a decree is subject to a mortgage or
charge, the Court may, with the consent of the mortgagee or incumbrancer, order that the
property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer
the same interest in the proceeds of the sale as he had in the property sold;
(c) where any immovable property is sold in execution of a decree ordering its sale for the
discharge of an incumbrance thereon, the proceeds of sale shall be applied— First, in
defraying the expenses of the sale; Secondly, in discharging the amount due under the decree;
thirdly, in discharging the interest and principal monies due on subsequent incumbrances (if
any); and fourthly, rateably among the holders of decrees for the payment of money against
the judgement-debtor, who have, prior to the sale of the property, applied to the Court which
passed the decree ordering such sale for execution of such decrees, and have no obtained
satisfaction thereof.
- If there is a prior incumbrance, it has to be dealt with first. If anything is left out, you will be
left with unsecured creditors
(2) Where all or any of the assets liable to be rateably distributed under this section are paid
to a person not entitled to receive the same, any person so entitled may sue such person to
compel him to refund the assets.
(3) Nothing in this section affects any right of the Government.
Q. Suppose there is somebody who has defraud the government of his sales tax or Income
tax. If the government does not claim it at that point, have they lost their rights? –No.

RESISTANCE TO EXECUTION
S. 74- Resistance to execution.— Where the Court is satisfied that the holder of a decree for
the possession of immovable property or that the purchaser of immovable property sold in
execution of a decree has been resisted or obstructed in obtaining possession of the property
by the judgment-debtor or some person on his behalf and that such resistance or obstruction
was without any just cause, the Court may, at the instance of the decree-holder or purchaser,
order the judgment-debtor or such other person to be detained in the civil prison for a term
which may extend to thirty days and may further direct that the decree-holder or purchaser be
put into possession of the property.
- If you want to obstruct, you should first file an obstruction application. Only those who are
interested in the property under which the decree has been bought can file for obstruction
application.

ORDER 21:-
Rule 1: Modes of paying money under decree-
- Court must know there has been a satisfaction of decree.
Provided that, where the decree-holder refuses to aceept the postal money order or payment
through a bank, interest shall cease to run from the date on which the money was tendered to
him, or where he avoids acceptance of the postal money order or payment through bank,
interest shall cease to run from the date on which the money would have been tendered to
him in the ordinary course of business of the postal authorities or the bank, as the case may
be.
- If he intends to go in appeal and not take money, the interest will cease to run from that day.
Rule 2: Payment out of Court to decree-holder.—(1) Where any money payable under a
decree of any kind is paid out of Court, [or decree of any kind is otherwise adjusted] in whole
or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment
or adjustment to the Court whose duty it is to execute the decree, and the Court shall record
the same accordingly.
- If it has been decided between the parties, they may inform the court and the court would
mark it as satisfied.
(2) The judgment-debtor [or any person who has become surety for the judgment-debtor] also
may inform the Court of such payment or adjustment, and apply to the Court to issue a notice
to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or
adjustment should not be recorded as certified; and if, after service of such notice, the decree-
holder fails to show cause why the payment or adjustment should not be recorded as certified,
the Court shall record the same accordingly.
- If judgment debtor tells the court that he has paid the money, the Court may ask for
confirmation.
(2A) No payment or adjustment shall be recorded at the instance of the judgment-debtor
unless— (a) the payment is made in the manner provided in rule 1 (money orders)
(b) the payment or adjustment is proved by documentary evidence; or
(c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to
the notice given under sub-rule (2) of rule 1, or before the Court.]
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not
be recognized by any Court executing the decree.

Rule 3: Lands situate in more than one jurisdiction.—Where immovable property forms one
estate or tenure situate within the local limits of the jurisdiction of two or more Courts, any
one of such Courts may attach and sell the entire estate or tenure.
- The happening of this is difficult now.

Rule 4: Transfer to Court of Small Causes. —Where a decree has been passed in a suit of
which the value as set forth in the plaint did not exceed two thousand rupees and which, as
regards its subject-matter, is not excepted by the law for the tittle being in force from the
cognizance of either a Presidency or a Provincial Court of Small Causes, and the Court which
passed it wishes it to be executed in Calcutta, Madras [or Bombay], such Court may send to
the Court of Small Causes in Calcutta. Madras [or Bombay], as the case may be, the copies
and certificates mentioned in rule 6; and such Court of Small Causes shall thereupon execute
the decree as if it had been passed by itself.
- When the judgment decree is for 2000 rupees. The court may order small causes court to
execute it.

Rule 5: Read

Rule 6: Procedure where Court desires that its own decree shall be executed by another
Court.—The Court sending a decree for execution shall send— (a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution
within the jurisdiction of the Court by which it was passed, or, where the decree has been
executed in part, the extent to which satisfaction has been obtained and what part of the
decree remains unsatisfied; and
(c) a copy of any order for the execution of the decree, or, if no such order has been made, a
certificate to that effect.

Rule 7: Read
Rule 8: Execution of decree or order by Court to which it is sent.—Where such copies are so
filed, the decree or order may, if the Court to which it is sent is the District Court, be
executed by such Court or be transferred for execution to any subordinate Court of competent
jurisdiction.
- Decree holder has to make an application for execution.
- Can be executed by the district court or it may pass it to the Munsif Court or to the Court of
junior division to execute it.

Rule 9: Execution by High Court of decree transferred by other Court.—Where the Court to
which the decree is sent for execution is a High Court, the decree shall be executed by such
Court in the same manner as if it had been passed by such Court in the exercise of its
ordinary original civil jurisdiction.
- High Court would execute this decree.
- Makes provision for those courts that do not have original jurisdiction.
- If high court is executionary court - then it will be treated as original civil jurisdiction.

Rule 10: Application for execution.—Where the holder of a decree desires to execute it, he
shall apply to the Court which passed the decree or to the officer (if any) appointed in this
behalf, or if the decree has been sent under the provisions hereinbefore contained to another
Court then to such Court or to the proper officer thereof.

Rule 11: Oral application.—(1) Where a decree is for the payment of money the Court may,
on the oral application of the decree-holder at the time of the passing of the decree, order
immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of
a warrant if he is within the precincts of the Court.
- Oral application in money suits can work. But dont rely on oral application always file.
- Commissioner is not mentioned in the reliefs as there is no need for a commissioner here.

Rule 12: Written Application- (j) the mode in which the assistance of the Court is required
whether,— (i) by the delivery of any property specifically decreed; [(ii) by the attachment, or
by the attachment and sale, or by the sale without attachment (not very safe), of any
property;] (iii) by the arrest and detention in prison of any person; (iv) by the appointment of
a receiver; (v) otherwise, as the nature of the relief granted may require.
- You would have to ask for specific reliefs.
(3) The Court to which an application is made under sub-rule (2) may require the applicant
to produce a certified copy of the decree.
- They might insist on a certified copy.

Rule 12: Application for attachment of movable property not in judgment-debtor's

possession.—Where an application is made for the attachment of any movable property
belonging to a judgment-debtor but not in his possession, the decree-holder shall annex to the
application an inventory of the property to be attached, containing a reasonably accurate
description of the same.
- Give all details which are owned by him but not in his possession.
- If there are certain goods not in possession - may be in bank or wherever- the decree holder
will give all details

Rule 13: Application for attachment of immovable property to contain certain particulars.—
Where an application is made for the attachment of any immovable property belonging to a
judgment-debtor, it shall contain at the foot— (a) a description of such property sufficient to
identify the same and, in case such property can be identified by boundaries or numbers in a
record of settlement or survey, a specification of such boundaries or numbers; and (b) a
specification of the judgment-debtor's share or interest in such property to the best of the
belief of the applicant, and so far as he has been able to ascertain the same.
- Same thing as when you file a suit for relief for obtaining immovable property.
Two things to keep in mind:
- Specify the description
- Percentage of share must be mentioned.

Rule 15: Application for execution by Joint decree-holders.—(1) Where a decree has been
passed jointly in favour of more persons than one, any one or more of such persons may,
unless the decree imposes any condition to the contrary, apply for the execution of the whole
decree for the benefit of them all, or, where any of them has died, for the benefit of the
survivors and the legal representatives of the deceased. (2) Where the Court sees sufficient
cause for allowing the decree to be executed on an application made under this rule, it shall
make such order as it deems necessary for protecting the interests of the persons who have
not joined in the application.
- If there are multiple applications, they can file it together.
- Only one of the decree holder can go to court on behalf of the rest, but Court will mention
all the beneficiaries.

Rule 18: Execution in case of cross-decrees.—(1) Where applications are made to a Court for
the execution of cross-decrees in separate suits for the payment of two sums of money passed
between the same parties and capable of execution at the same time by such Court, then— (a)
if the two sums are, equal, satisfaction shall be entered upon both decrees; and (b) if the two
sums are unequal, execution may be taken out only by the holder of the decree for the larger
sum and for so much only as remains after deducting the smaller sum, and satisfaction for the
smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the
decree for the smaller sum.
- If two sums are equal in the decrees, they must be matched and satisfied.
- If two sums are unequal, then the person who has a lesser sum, his decree would be satisfied
first.

(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees
and as well in respect of judgment-debts due by the original assisgnor as in respect of
judgment-debts due by the assignee himself.
- It operates in the same way when it is getting from somebody who is getting on behalf of
someone else.

(3) This rule shall not be deemed to apply unless— (a) the decree-holder in one of the suits in
which the decrees have been made is the judgment debtor in the other and each party files the
same character in both suits; and (b) the sums due under the decrees are definite.
- Condition: No cross suits can take place if they are not of the same colour and character.
Executor will also go in the same colour.
- Example: Suppose A dies, you cannot make his executor as a party to the suit. He would be
involved in the suit only as the capacity of A’s executor.
(4) The holder of a decree passed against several persons jointly and severally may treat it as
a cross decree in relation to a decree passed against him singly in favour of one or more of
such persons.
- If there are multiple people, make an association of those who have to recover from you.

Illustrations:
(a) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of
Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a
cross-decree under this rule.
(b) A and B, co-plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtains a decree for
Rs. 1,000 against B. C. cannot treat his decree as a cross-decree under this rule. (because in
the original suit, the parties are A and B)
(c) A obtains a decree against B for Rs. 1,000. C, who is a trustee for B, obtains a decree on
behalf of B against A for Rs. 1,000. B cannot treat C's decree as a cross-decree under this
rule.
(d) A, B, C, D and E are jointly and severally liable for Rs. 1,000 under a decree obtained by
F. A obtains a decree for Rs. 1,000 against F singly and applies for execution to the Court in
which the joint-decree is being executed. F may treat his joint-decree as cross-decree under
this rule.

Rule 19: Execution in case of cross-claims under same decree.—Where application is made
to a Court for the execution of a decree under which two parties are entitled to recover sums
of money from each other, then,— (a) if the two sums are equal, satisfaction for both shall be
entered upon the decree; and, (b) if the two sums are unequal, execution may be taken out
only by the party entitled to the larger sum and for so much only as remains after deducting
the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.
- In the same decree, Court says that “A to give so much” “B to give so much of property”
(Similar to a set off or counter claim)
Example:
A files for partition and asks for 1/3 rd share. Court says yes he is entitled to 1/3rd. B says he
wants right of pre-emption. C says that he would pay 1/3rd to B. Therefore, B will be paid by
C and C will be given property.

Rule 20: Cross-decrees and cross-claims in mortgage-suits.—The provisions contained in

rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or charge.

Rule 21: Simultaneous execution.—The Court may, in its discretion, refuse execution at the
same time against the person and property of the judgment-debtor.
- Cross claims and mortgage suit sometimes happen when according to the deed of recitals
the income coming from that property goes to the lender or there is a certain kind of
adjustment between the person who keeps it on mortgage and the person who takes it on
mortgage.
Example:
1. There are many builders who built a building with bank funds and the ground floor was
given to the bank to run its branch. Now in such a case of foreclosure, what would be the
adjusting claims that would come about? –Rent vs Interests. In such kind of transactions, you
will always find that there could be cross claims in the same application.

2. If there are two cases going on A vs B and B vs A, the court may wait for both of them to
be simultaneously executed because it gives an advantage of matching the two decrees and
they become cross tickles.
Rule 22: Notice to show cause against execution in certain cases.—(1) Where an application
for execution is made— (a) more than [two years] after the date of the decree, or
- Anybody who is a serious litigant would never wait for two years.
- Provision made for those people who wait to file a decree within 2 years. Therefore, the
Court says that the party must send a notice to the opposite party as the opposite party may
have satisfied the decree, but may not have informed the court of that satisfaction. Basic idea
is to send a notice to the other party and take his say on the matter.

(b) against the legal representative of a party to the decree [or where an application is made
for execution of a decree filed under the provisions of section 44A]
- Such a person was never a party to the suit but now after the decree has been made, they
have become parties by virtue of being the legal representative of the deceased so they must
be given an opportunity to come and have their say whether they have received any
properties from the deceased or if they are independent and not liable to satisfy their decree.

(c) against the assignee or receiver in insolvency, where the party to the decree has been
adjudged to be an insolvent,] the Court executing the decree shall issue a notice to the person
against whom execution is applied for requiring him to show cause, on a date to be fixed,
why the decree should not be executed against him : Provided that no such notice shall be
necessary in consequence of more than [two years] having elapsed between the date of the
decree and the application for execution if the application is made within [two years] from
the date of the last order against the party against whom execution is applied for, made on
any previous application for execution, or in consequence of the application being made
against the legal representative of the judgment-debtor if upon a previous application for
execution against the same person the Court has ordered execution to issue against him.
- If a party against whom you have made the decree goes insolvent, an official assignee of the
other party may inform the court regarding his insolvency. Such a decree would stand for pro
rata distribution (proportionality test)

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any
process in execution of a decree without issuing the notice thereby prescribed, if, for reasons
to be recorded, it considers that the issue of such notice would cause unreasonable delay or
would defeat the ends of justice.
- It is not binding on the court to issue such notices to these parties. Court can proceed with
the execution process.

Rule 22A: Sale not be set aside on the death of the judgment-debtor before the sale but after
the service of the proclamation of sale.—Where any property is sold in execution of a decree,
the sale shall not be set aside merely by reason of the death of the judgment-debtor between
the date of issue of the proclamation of sale and the date of the sale notwithstanding the
failure of the decree-holder to substitute the legal representative of such deceased judgment-
debtor, but, in case of such failure, the Court may set aside the sale if it is satisfied that the
legal representative of the deceased judgment-debtor has been prejudiced by the sale
- Once a proclamation of sale has been done for the sale of that property in execution of the
decree then the sale is not set aside just because the deceased is dead. In such a case, the legal
heirs must be brought on record.
- Sale can be set aside if it can be proved that a sale is prejudicial to the rights of the legal
heirs.

Rule 26: When Court may stay execution.—(1) The Court to which a decree has been sent
for execution shall, upon sufficient cause being shown, stay the execution of such decree for
a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree
was passed, or to any Court having appellate jurisdiction in respect of the decree or the
execution thereof, for an order to stay execution, or for any other order relating to the decree
or execution which might have been made by such Court of first instance or Appellate Court
if execution had been issued thereby, or if application for execution had been made thereto.
(2) Where the property or person of the judgment-debtor has been seized under an execution,
the Court which issued the execution may order the restitution of such property or the
discharge of such person pending the result of the application.
- The court always tries to ensure that the judgment debtor does not lose something that is an
immovable property. In such cases, time is given to the judgment debtor to go to the appellate
court and time is also given if he could arrangements to settle the decree. If any property is
given to the other side because of some order of the court or otherwise, the court can also ask
for restitution.

(3) Power to require security from, or impose conditions upon, judgment-debtor.—Before

making an order to stay execution, or for the restitution of property or the discharge of the
judgment-debtor, [the Court shall require] such security from, or impose such condition upon,
the judgment-debtor as it thinks fit.
- Court may ask the party to pay security when the party is filing for appeal, etc.

Rule 27: Liability of judgment-debtor discharged.—No order of restitution or discharge under

rule 26 shall prevent the property or person of a judgment-debtor from being retaken in
execution of the decree sent for execution.
- Even if this property is returned to him, for certain reasons it can always be taken back
because it also happens sometimes that a party may lose in the trial court but win in the
appeal (and vice versa).
Case: Syndicate Bank
Facts- When the director of a company give in writing that his wife has jewellery of 50 lacs
which was a hypothecation to the bank. Fact was that there was no such jewellery.
Q. Suppose if the loan had become bad, how would the bank get the money? –Bank filed
criminal case of fraud (S. 420) against the couple who had signed that document.
Held- Man paid the amount to the bank because otherwise he would be thrown into jail.

Caparo Test- It is made up of three stages: foreseeability, proximity and fairness. This first
stage revolves around whether it is foreseeable that the defendant's carelessness could cause
damage to the claimant.

Rule 28: Order of Court which passed decree or of Appellate Court to be binding upon Court
applied to.—Any order of the Court by which the decree was passed, or of such Court of
appeal as aforesaid, in relation to the execution of such decree, shall be binding upon the
Court to which the decree was sent for execution.
- Reiteration of S. 47.
- Once a decree id given, the executing court being an administrating court only doing
administrative functions is bound by it.
Q. Suppose there is a decree. Can someone question the validity of the decree before the
executing court? –No. If some fresh questions as to ownership, etc., arise then would it be
possible to do so? –Yes.

Rule 29: Stay of execution pending suit between decree-holder and judgment-debtors.—
Where a suit is pending in any Court against the holder of a decree of such Court [or of a
decree which is being executed by such Court,] on the part of the person against whom the
decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit,
stay execution of the decree until the pending suit has been decided :[Provided that if the
decree is one for payment of money, the Court shall, if it grants stay without requiring
security, record its reasons for so doing.]
- If it is a pure money decree, then you have to provide security for the court to wait till the
other decree is there.

MODE OF EXECUTION
Rule 30: Decree for payment of money.—Every decree for the payment of money, including
a decree for the payment of money as the alternative to some other relief (suppose another
property was attached and in place of that, money is allowed to be accepted as a relief), may
be executed by the detention in the civil prison of the judgment-debtor, or by the attachment
and sale of his property, or by both.
- Attachment of property is one thing when there is decree of money.
Case: Dahiben vs Bhanushali case- She asked only for cancellation of sale deed, but she had
asked for cancellation of sales deed but in the alternative the money with interest must be
paid to her, that would become alternative relief.

Example: A supplied goods to somebody. A says that in return the goods must be returned or
the consideration must be paid for it. If goods have got damaged then the payment of goods
must be made to A. (Alternative relief)

Rule 31: Decree for specific movable property.—(1) Where the decree is for any specific
movable, or for any share in a specific movable, it may be executed by the seizure, if
practicable, of the movable or share, and by the delivery thereof to the party to whom it has
been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the
detention in the civil prison of the judgment-debtor, or by the attachment of his property, or
by both. (2) Where any attachment under sub-rule (1) has remained in force for 3 [three
months,] if the judgment-debtor has not obeyed the decree and the decree-holder has applied
to have the attached property sold, such property may be sold, and out of the proceeds the
Court may award to the decree-holder, in cases where any amount has been fixed by the
decree to be paid as an alternative to delivery of movable property, such amount, and in other
cases, such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-
debtor on his application. (3) Where the judgment-debtor has obeyed the decree and paid all
costs of executing the same which he is bound to pay, or where, at the end of 3 [three
months] from the date of the attachment, no application to have the property sold has been
made, or, if made, has been refused, the attachment shall cease.
- In such cases, the specific property can be given or orders would be made as to what to do
ahead.

Rule 34: Decree for execution of document, or endorsement of negotiable instrument.—(1)

Where a decree is for the execution of a document or for the endorsement of a negotiable
instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder
may prepare a draft of the document or endorsement in accordance with the terms of the
decree and deliver the same to the Court. (2) The Court shall thereupon cause the draft to be
served on the judgment-debtor together with a notice requiring his objections (if any) to be
made within such time as the Court fixes in this behalf. (3) Where the judgment-debtor
objects to the draft, his objections shall be stated in writing within such time, and the Court
shall make such order approving or altering the draft, as it thinks fit. (4) The decree-holder
shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may
have directed upon the proper stamp-paper if a stamp is required by the law for the time
being in force; and the Judge or such officer as may be appointed in this behalf shall execute
the document so delivered.
Q. What happens if the opposite party is required to sign certain documents but refuses to
come to court to sign the documents? –Rule 34 talks about this. The court itself would go and
collect such a signature on your behalf.
(5) The execution of a document or the endorsement of a negotiable instrument under this
rule may be in the following form, namely :—
“C. D., Judge of the Court of, (or as the case may be), for A. B., in a suit by E. F against A.
B.”,
and shall have the same effect as the execution of the document or the endorsement of the
negotiable instrument by the party ordered to execute or endorse the same.

Rule 35: Decree for immovable property.—(1) Where a decree is for the delivery of any
immovable property, possession thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if
necessary, by removing any person bound by the decree who refuses to vacate the property.
- If there is a decree for an immovable property, the court must make sure it is executed by
the bailiff.
(2) Where a decree is for the joint possession of immovable property, such possession shall
be delivered by affixing a copy of the warrant in some conspicuous place on the property and
proclaiming by beat of drum, or other customary mode, at some convenient place, the
substance of the decree.
- Joint possession, there are two decree holders.
(3) Where possession of any building on enclosure is to be delivered and the person in
possession, being bound by the decree, does not afford free access, the Court, through its
officers, may, after giving reasonable warning and facility to any woman not appearing in
public according to the customs of the country to withdraw, remove or open any lock or bolt
or break open any door or do any other act necessary for putting the decree-holder in
possession.
- Two things: 1. Person who has right to the property, 2. Person who is obstructing is bound
by the decree. The court can have them ejected.

Rule 36: Decree for delivery of immovable property when in occupancy of tenant—Where a
i. decree is for the delivery of any immovable property in the occupancy of a tenant or ii.
other person entitled to occupy the same and not bound by the decree to relinquish such
occupancy (long tenure lessors), the Court shall order delivery to be made by affixing a copy
of the warrant in some conspicuous place on the property, and proclaiming to the occupant by
beat of drum or other customary mode, at some convenient place, the substance of the decree
in regard to the property.
- New buyer will only be entitled to ownership of the building and not the occupancy.
- Letter of Attornment- letter given by previous owner of the building to the occupants to
inform them regarding the new owner.
Rule 37: Discretionary power to permit judgment-debtor to show cause against detention in
prison.—(1) Notwithstanding anything in these rules, where an application is for the
execution of a decree for the payment of money by the arrest and detention in the civil prison
of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court 1
[shall], instead of issuing a warrant for his arrest, issue a notice calling upon him to appear
before the Court on a day to be specified in the notice and show cause why he should not be
committed to the civil prison : 2 [Provided that such notice shall not be necessary if the Court
is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution
of the decree, the judgment-debtor is likely to abscond or leave the local limits of the
jurisdiction of the Court.]
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-
holder so requires, issue a warrant for the arrest of the judgment-debtor.
- If Judgment Debtor is not coming then you can issue a notice against him on the application
of decree holder.
- It is not good law since court is now required to make a distinction between a judgment
debtor who cannot pay and judgment debtors who won’t pay.

ATTACHMENT OF PROPERTY
Rule 42: Attachment in case of decree for rent or mesne profits or other matter, amount of
which to be subsequently determined.—Where a decree directs an inquiry as to rent or mesne
profits or any other matter, the property of the judgment-debtor may, before the amount due
from him has been ascertained, be attached, as in the case of an ordinary decree for the
payment of money.
- In other states, attachment of goods can be made till extent of rent. In Maharashtra, if a
person does not pay the rent, he may be removed.
- There is a provision that they may attach the property in prior.

Rule 43: Attachment of movable property, other than agricultural produce, in possession of
judgment-debtor.—Where the property to be attached is movable property other than
agricultural produce, in the possession of the judgment-debtor, the attachment shall be made
by actual seizure, and the attaching officer shall keep the property in his own custody or in
the custody of one of his subordinates, and shall be responsible for the due custody thereof :
Provided that, when the property seized is subject to speedy and natural decay, or when the
expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it
at once.

Rule 46: Attachment of debt, share and other property *not* in possession of judgment-
debtor—(1) In the case of— (a) a debt not secured by a negotiable instrument,
- If it is secured by negotiable instrument, then the holder thereof will have the first right on
it. Therefore, the court would not attach that. If it is a plain promissory note which cannot be
transferred or sold, court may attach that
(b) a share in the capital of a corporation,
- Example: Matrabhumi newspaper in Kerala. Shares were with Christians and they did not
know the value of shares. When Times started approaching the shareholders for a huge rate,
they denied. Such shares can be attached.
- Another example would be Tata sons.
(c) other movable property not in the possession of the judgment-debtor, except property
deposited in, or in the custody of, any Court, the attachment shall be made by a written order
prohibiting,— (i) in the case of the debt, the credit or from recovering the debt and the debtor
from making payment thereof until the further order of the Court; (ii) in the case of the share,
the person in whose name the share may be standing from transferring the same or receiving
any dividend thereon; (iii) in the case of the other movable property except as aforesaid, the
person in possession of the same from giving it over to the judgment-debtor.
- Attachment shall be made the debtor will not be permitted to return money not to the
debtor’s debtor, but to the court
- Under the new provisions of the act, the dividends are frozen
(2) A copy of such order shall be affixed on some conspicuous part of the court-house, and
another copy shall be sent in the case of the debt, to the debtor; in the case of the share, to the
proper officer of the corporation, and, in the case of the other movable property (except as
aforesaid), to the person in possession of the same
- If it is a company, the notice is sent to the proper office of the company (company secretary
or legal compliance officer)
(3) A debtor prohibited under clause (i) of sub-rule (1) may pay the amount of his debt into
Court, and such payment shall discharge him as effectually as payment to the party entitled to
receive the same.
- If C had pay B and the Court says that C has to pay the court then it would be deemed as if
he paid B. He will now have no liability towards B at all.
- Garnishee Order (debtor’s debtor) is an order passed by an executing court directing
or ordering a garnishee not to pay money to judgment debtor since the latter is indebted to the
garnisher (decree holder). It is an Order of the court to attach money or Goods belonging to
the judgment debtor in the hands of a third person.

Rule 46A: Notice to garnishee.—(1) The Court may in the case of a debt (other than a debt
secured by a mortgage or a charge—this is because they are all secured debts) which has been
attached under rule 46 upon the application of the attaching creditor, issue notice to the
garnishee liable to pay such debt, calling upon him either to pay into Court the debt due from
him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree and
costs of execution, or to appear and show cause why he should not do so.
- Two options a Garnishee has- Either pay up the amount otherwise he can contest the claim
in court.
(2) An application under sub-rule (1) shall be made on affidavit verifying the facts alleged
and stating that in the belief of the deponent, the garnishee is indebted to the judgment-
debtor.
- Decree holder has to give it on affidavit to the court.
(3) Where the garnishee pays in the Court the amount due from him to the judgment-debtor
or so much thereof as is sufficient to satisfy the decree and the costs of the execution, the
Court may direct that the amount may be paid to the decree-holder towards satisfaction of the
decree and costs of the execution.
- If he (said Garnishee) pays him (Decree Holder), the decree is satisfied and the liability is
satisfied.

Q. What difficulties are faced in corporate if the share is not a listed company? –Transfer,
since it can be blocked.
Landmark Case: Borland’s trustees vs Steel Brothers.

Rule 46B: Order against garnishee.—Where the garnishee does not forthwith pay into Court
the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy
the decree and the costs of execution, and does not appear and show cause in answer to the
notice, the Court may order the garnishee to comply with the terms of such notice, and on
such order, execution may issue as though such order were a decree against him.
- If the garnishee does not come, the court may extend the ambit of the execution on the
extent of garnishee.

Rule 46C: Trial of disputed questions.—Where the garnishee disputes liability, the Court may
order that any issue of question necessary for the determination of liability shall be tried as if
it where an issue in a suit, and upon the determination of such issue shall make such order or
orders as it deems fit: Provided that if the debt in respect of which the application under rule
46A is made is in respect of a sum of money beyond the pecuniary jurisdiction of the Court,
the Court shall send the execution case to the Court of the District Judge to which the said
Court is subordinate, and thereupon the Court of the District Judge or any other competent
Court to which it may be transferred by the District Judge shall deal with it in the same
manner as if the case had been originally instituted in that Court.
- If Garnishee raises a question of fact, it may be considered as a part of the suit only.
- If execution has been sent to the Munsif court, if the amount is 10 lacs, the Munsif Court
may refer to District court.

Rule 46D: Procedure where debt belongs to third person.—Where it is suggested or appears
to be probable that the debt belongs to some third person, or that any third person has a lien
or charge on, or other interest in such debt, the Court may order such third person to appear
and state the nature and particulars of his claim, if any, to such debt and prove the same.
- If there any counter claims against garnishee, he may be called in.

Rule 46E: Order as regards third person.—After hearing such third person and any person or
persons who may subsequently be ordered to appear, or where such third or other person or
persons do not appear when so ordered, the Court may make such order as is hereinbefore
provided, or such other order or orders upon such terms, if any, with respect to the lien,
charge or interest, as the case may be, of such third or other person or persons as it may deem
fit and proper.
- Garnishee has some assets which is controlled over by somebody else. In such a case, that
other person may be called.

Rule 46F: Payment by garnishee to be valid discharge.—Payment made by the garnishee on

notice under rule 46A or under any such order as aforesaid shall be a valid discharge to him
as against the judgement-debtor and any other person ordered to appear as aforesaid for the
amount paid or levied, although the decree in execution of which the application under rule
46A was made, or the order passed in the proceedings on such application may be set aside or
reversed.
- If garnishee pays the debt of Judgment Debtor and satisfies decree, he is discharged from
that payment to the judgment debtor entirely. He may now approach the decree holder for any
other payments.

Rule 46G: Costs.—The costs of any application made under rule 46A and of any proceeding
arising therefrom or incidental thereto shall be in the discretion of the Court.

Rule 46H: Appeals.—An order made under rule 46B, rule 46C or rule 46E shall be applicable
as a decree.

Rule 46I: Application to negotiable instruments.—The provisions of rule 46A to 46H (both
inclusive) shall, so far as may be, apply in relation to negotiable instruments attached under
rule 51 as they apply in relation to debts.
- If somebody has negotiable instruments instead of money, he may attach it.
Rule 47: Attachment of share in movables.—Where the property to be attached consists of
the share or interest of the judgment-debtor in movable property belonging to him and
another as co-owners, the attachment shall be made by a notice to the judgment-debtor
prohibiting him from transferring the share or interest or charging it in any way.
- Suppose DH has got an order to attach some assets belonging to JD, but these shares do not
entirely belong to him. In such a case, assets cannot be attached.

Rule 49: Attachment of partnership property.—(1) Save as otherwise provided by this rule,
property belonging to a partnership shall not be attached or sold in execution of a decree
other than a decree passed against the firm or against the partners in the firm as such.
- If there is a decree against the partner, you cannot touch the assets of the firm as the decree
is against the partner only.

(2) The Court may, on the application of the holder of a decree against a partner, make an
order charging the interest of such partner in the partnership property, and profits with
payment of the amount due under the decree, and may, by the same or a subsequent order,
appoint a receiver of the share of such partner in the profits (whether already declared or
accruing) and of any other money which may be coming to him in respect of the partnership,
and direct accounts and inquiries and make an order for the sale of such interest or other
orders as might have been directed or made if a charge had been made in favour of the decree
holder by such partner, or as the circumstances of the case may require.
(3) The other partner or partners shall be at liberty at any time to redeem the interest charged
or, in the case of a sale being directed, to purchase the same.
- Other partners have the rights to buy out the share of the partner.
(4) Every application for an order under sub-rule (2) shall be served on the judgment-debtor
and on his partners or such of them as are within [India].
(5) Every application made by any partner of the judgment-debtor under sub-rule (3) shall be
served on the decree-holder and on the judgment-debtor, and on such of the other partners as
do not join in the application and as are within [India].
- All of them have the right to decide how to deal with the share that has come under
execution.
(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the partners
and all orders made on such applications shall be similarly served.

Q. When are you proceeding against the firm, besides the firm, what other assets can you
reach? –The personal assets of the individual partners.
Rule 50: Execution of decree against firm.—(1) Where a decree has been passed against a
firm, execution may be granted— (a) against any property of the partnership; (b) against any
person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has
admitted on the pleadings that he is, or who has been adjudged to be, a partner; (c) against
any person who has been individually served as a partner with a summons and has failed to
appear: Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the
provisions of 2 [section 30 of the Indian Partnership Act, 1932 (9 of 1932)].
- Even those who hold out as partners, can be taken to task under this rule.
(2) Where the decree-holder claims to be entitled to cause the decree to be executed against
any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as
being a partner in the firm, he may, apply to the Court which passed the decree for leave, and
where the liability is not disputed, such court may grant such leave, or, where such liability is
disputed, may order that the liability of such person be tried and determined in any manner in
which any issue in a suit may be tried and determined.
- Those people who connected with the firm, but are not partners of the firm can also be
liable. This includes Agents of the firm.
(3) Where the liability of any person has been tried and determined under sub-rule (2), the
order made thereon shall have the same force and be subject to the same conditions as to
appeal or otherwise as if it were a decree.
- It must be treated as a decree in terms of appeal.
Q. Can such a third person go in review, reference or revision? No.
(4) Save as against any property of the partnership, a decree against a firm shall not lease,
render liable or otherwise affect any partner therein unless he has been served with a
summons to appear and answer.
- He should be made answerable. If no notice has been sent, he is not answerable.
(5) Nothing in this rule shall apply to a decree passed against a Hindu Undivided Family by
virtue of the provisions of rule 10 of Order XXX.
- Partnership is the creature of a contract and HUF is a creation by family. In case of an HUF
decree, only the property of the HUF can be attached.

Rule 51: Attachment of negotiable instruments.—Where the property is a negotiable

instrument not deposited in a Court, not in the custody of a public officer, the attachment
shall be made by actual seizure, and the instrument shall be brought into Court and held
subject to further orders of the Court.
- If there are such negotiable instruments, they must not be touched again.
Rule 52: Attachment of property in custody of Court or public officer.—Where the property
to be attached is in the custody of any Court or public officer, the attachment shall be made
by a notice to such Court or officer, requesting that such property, and any interest or
dividend becoming payable thereon, may be held subject to the further orders of the Court
from which the notice is issued: Provided that, where such property is in the custody of a
Court, any question of title or priority arising between the decree-holder and any other
person, not being the judgment-debtor, claiming to be interested in such property by virtue of
any assignment, attachment or otherwise, shall be determined by such Court.
- If there is some dispute of ownership of attached property, the court would have to hear. In
such a case, you wold file an intervening application.

Rule 54: Attachment of immovable property.—(1) Where the property is immovable, the
attachment shall be made by an order prohibiting the judgment-debtor from transferring or
charging the property in any way, and all persons from taking any benefit from such transfer
of charge.
- Once a decree is taken out, the property cannot be alienated in any way.
[(1A) The order shall also require the judgment-debtor to attend Court on a specified date to
take notice of the date to be fixed for settling the terms of the proclamation of sale.]
(2) The order shall be proclaimed at some place on or adjacent to such property by beat of
drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part
of the property and then upon, a conspicuous part of the Court-house, and also, where the
property is land paying revenue to the Government, in the office of the Collector of the
district in which the land is situate 2 [and, where the property is land situate in a village, also
in the office of the Gram Panchayat, if any, having jurisdiction over that village.]
- It is a way of announcing that the Plot is up for auction and therefore, and the people
interested, they can come and bid.

Rule 55: Removal of attachment after satisfaction of decree.—Where— (a) the amount
decreed with costs and all charges and expenses resulting from the attachment of any
property are paid into Court, or (b) satisfaction of the decree is otherwise made through the
Court or certified to the Court, or (c) the decree is set aside or reversed, the attachment shall
be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if
the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation
shall be affixed in the manner prescribed by the last preceding rule.
- If you settle it, attachments are removed and the dues have been settled. This provision has
been added because if your plot has got the stigma of being attached to someone else, it may
not get enough buyers.

Rule 57: Determination of attachment.—(1) Where any property has been attached in
execution of a decree and the Court, for any reason, passes an order dismissing the
application for the execution of the decree, the Court shall direct whether the attachment shall
continue or cease and shall also indicate the period upto which such attachment shall continue
or the date on which such attachment shall cease. (2) If the Court omits to give such
direction, the attachment shall be deemed to have ceased.
- Sometimes the eviction notice can fail, or plot will not sell, etc. in all such conditions, the
court might remove such an attachment or keep it till you can file for appeal.

Rule 58: Adjudication of claims to or objections to attachment of property.—(1) Where any

claim is preferred to, or any objection is made to the attachment of, any property attached in
execution of a decree on the ground that such property is not liable to such attachment, the
Court shall proceed to adjudicate upon the claim or objection in accordance with the
provisions herein contained : Provided that no such, claim or objection shall be entertained—
(a) where, before the claim is preferred or objection is made, the property attached has
already been sold; or (b) where the Court considers that the claim or objection was
designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the property
attached) arising between the parties to a proceeding or their representatives under this rule
and relevant to the adjudication of the claim or objection, shall be determined by the Court
dealing with the claim or objection and not by a separate suit.
- This matter would be decided in the executing court itself. No separate suit.
(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in
accordance with such determination,— (a) allow the claim or objection and release the
property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the
claim or objection; or (c) continue the attachment subject to any mortgage, charge or other
interest in favour of any person; or (d) pass such order as in the circumstances of the case it
deems fit.
- If you are bidding for a plot, the first thing you ensure is your own due diligence first.
(4) Where any claim or objection has been adjudicated upon under this rule, order made
thereon shall have the same force and be subject to the same conditions as to appeal or
otherwise as if it were a decree.
- It gives you right to appeal under any court.
(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule
(1), refuses to entertain it, the party against whom such order is made may institute a suit to
establish the right which he claims to the property in dispute; but, subject to the result of such
suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.
- Free hand to file a separate suit if court refuses to hear your claim.

Rule 59: Stay of sale.—Where before the claim was preferred or the objection was made, the
property attached had already been advertised for sale, the Court may— (a) if the property is
movable, make an order postponing the sale pending the adjudication of the claim or
objection, or (b) if the property is immovable, make an order that, pending the adjudication of
the claim or objection, the property shall not be sold, or that pending such adjudication, the
property may be sold but the sale shall not be confirmed, and any such order may be made
subject to such terms and conditions as to security or otherwise as the Court thinks fit.]
- If there is an objection against the property, the court would postpone such an auction.

Rule 64: Power to order property attached to be sold and proceeds to be paid to person
entitled.—Any Court executing a decree may order that any property attached by it and liable
to sale, or such portion thereof as may see necessary to satisfy the decree, shall be sold, and
that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party
entitled under the decree to receive the same.

Rule 65: Sales by whom conducted and how made.—Save as otherwise prescribed, every sale
in execution of a decree shall be conducted by an officer of the Court or by such other person
as the Court may appoint in this behalf, and shall be made by public auction in manner
prescribed.
- There are special auction houses that auction such houses that have been disputed over.

Rule 66: Proclamation of sales by public auction.—(1) Where any property is ordered to be
sold by public auction in execution of a decree, the Court shall cause a proclamation of the
intended sale to be made in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-
debtor and shall state the time and place of sale, and specify as fairly and accurately as
possible— (a) the property to be sold [or, where a part of the property would be sufficient to
satisfy the decree, such part]; (b) the revenue assessed upon the estate or past of the estate,
where the property to be sold is an interest in an estate or in part of an estate paying revenue
to the Government; (c) any incumbrance to which the property is liable; (d) the amount for
the recovery of which the sale is ordered; and (e) every other thing which the Court considers
material for a purchaser to know in order to judge of the nature and value of the property :
Provided that where notice of the date for settling the terms of the proclamation has been
given to the judgment-debtor by means of an order under rule 54, it shall not be necessary to
give notice under this rule to the judgment-debtor unless the Court otherwise directs :
Provided further that nothing in this rule shall be construed as requiring the Court to enter in
the proclamation of sale its own estimate of the value of the property, but the proclamation
shall include the estimate, if any, given, by either or both of the Parties.
Q. Why should revenue to the government be mentioned? Since many lands in the country
belong to the government i.e, it is a tenure land. If Court fails to give you any details, they
cannot be sued and therefore, you must get a search done on the property.
- Methods of how a proclamation must be done.

(3) Every application for an order for sale under this rule shall be accompanied by a statement
signed and verified in the manner hereinbefore prescribed for the signing and verification of
pleadings and containing, so far as they are known to or can be ascertained by the person
making the verification, the matters required by sub-rule (2) to be specified in the
proclamation.
- The owner of the property of the judgment debtor makes these declarations. If he makes any
false declarations, he can be prosecuted later for the same.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court
may summon any person whom it thinks necessary to summon and may examine him in
respect to any such matters and require him to produce any document in his possession or
power relating thereto.

- Reserve price is a price below which no price must be acceptable in an auction.

- 7-15 days’ notice is given in case of such a property. This is to give time to the buyer to
make sure of all the details.
- Fresh proclamation must be issued if any sale has been adjourned for more than 30 days.
- If a purchaser buys and does not pay the full amount, all losses further would be charged on
him.
- Just like a Decree Holder cannot bid, even the mortgagee cannot without permission of the
Court. There is no such provision for the Officer of Court.

Rule 73: Restriction on bidding or purchase by officers.—No officer or other person having
any duty to perform in connection with any sale shall, either directly or indirectly, bid for,
acquire or attempt to acquire any interest in the property sold.

SALE OF MOVABLE PROPERTY

- Sale of agricultural land is not as relevant anymore except in the case of Estate (Tea,
Coffee, etc)
- Public auction can be done for example- antiques, etc.
- In the course of this selling, if someone has a counter claim, he may take the judgment
debtor and the person who bought such a movable property to court.

Q. Can a third party request intervention and claim shares as his incase of them being
attached? –No. This can only be done in two cases-
i. Assets in name of Partnership Firm
ii. Karta (Co-parcerners can claim)
Q. Who are the government bodies that can attach property? –Income Tax, GST Body,
Customs (originally)

SALE OF IMMOVABLE PROPERTY

Rule 82: What Court may order sales.—Sales of immovable property in execution of decrees
may be ordered by any Court other than a Court of Small Causes.
- The Small Causes can only decide tenancy and possession. It cannot decide the title.

Rule 83: Postponement of sale to enable judgment-debtor to raise amount of decree.—(1)

Where an order for the sale of immovable property has been made, if the judgment-debtor
can satisfy the Court that there is reason to believe that the amount of the decree may be
raised by the mortgage or lease or private sale of such property, or some part thereof, or of
any other immovable property of the judgment-debtor, the Court may, on his application,
postpone the sale of the property comprised in the order for sale on such terms and for such
period as it thinks proper, to enable him to raise the amount.
- Judgment debtor may arrange for another financer (re-fianance) to take away the property
and ensure that the property does not go for a poor rate.
(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him
within a period to be mentioned therein, and notwithstanding anything contained in section
64, to make the proposed mortgage, lease or sale : Provided that all moneys payable under
such mortgage, lease or sale shall be paid, not to the judgment-debtor, but, save in so far as a
decree-holder is entitled to set-off such money under the provisions of rule 72, into Court :
Provided also that not mortgage, lease or sale under this rule shall become absolute until it
has been confirmed by the Court.
- Basic rule here is to not to pay the Judgment debtor, pay it to the Court to the extent of the
decree and the court may make this decree absolute and close the matter.
(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sole in
execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.
- If property itself has been the subject of dispute, this rule would not apply over here.

Rule 84: Deposit by purchaser and re-sale on default.—(1) On every sale of immovable
property the person declared to be the purchaser shall pay immediately after such declaration
a deposit of twenty-five per cent on the amount of his purchase-money to the officer or other
person conducting the sale, and in default of such deposit, the property shall forthwith be re-
sold. (2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-
money under rule 72, the Court may dispense with the requirements of this rule.
Rule 85: Time for payment in full of purchase money.—The full amount of purchase-money
payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day
from the sale of the property: Provided that, in calculating the amount to be so paid into
Court, the purchaser shall have the advantage of any set-off to which he may be entitled
under rule 72.
- If purchaser himself is the mortgagor/decree holder, etc., he may adjust it for what is
receivable.

Rule 86: Procedure in default of payment.—In default of payment within the period
mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying
the expenses of the sale, be forfeited to the Government, and the property shall be re-sold,
and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for
which it may subsequently be sold.

Rule 87: Notification on re-sale.—Every re-sale of immovable property, in default of

payment of the purchase-money within the period allowed for such payment, shall be made
after the issue of fresh proclamation in the manner and for the period hereinbefore prescribed
for the sale.
- In all such cases, if the buyer has not been able to pay then a fresh proclamation must be
done.

Rule 88: Bid of co-sharer to have preference.—Where the property sold is a share of
undivided immovable property and two or more persons, of whom one is a co-sharer,
respectively bid the same sum for such property or for any lot, the bid shall be deemed to be
the bid of the co-sharer.
- Co sharer has first preference (Pre-emption)
- Even if their bid id equal to the highest bid, they will get first preference.

Rule 89: Application to set aside sale on deposit.—(1) Where immovable property has been
sold in execution of a decree, [any person claiming an interest in the property sold at the time
of the sale or at the time of making the application, or acting for or in the interest of such
person,] may apply to have the sale set aside on his depositing in Court,— (a) for payment to
the purchaser, a sum equal to five per cent of the purchase-money, and (b) for payment, to the
decree-holder, the amount specified in the proclamation of sale as that for the recovery of
which the sale was ordered, less any amount which may, since the date of such proclamation
of sale, have been received by the decree-holder.
(2) Where a person applies under rule 90 to set aside the sale of his immovable property, he
shall not, unless he withdraws his application, be entitled to make or prosecute an application
under this rule.
(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under
in respect of costs and interest not covered by the proclamation of sale.
- If anybody comes after the sale showing interest in the property, he may first pay 5% of the
purchase money.
- He must basically satisfy the decree holder.

Rule 90: Application to set aside sale on ground of irregularity or fraud.—(1) Where any
immovable property has been sold in execution of a decree, the decree-holder, or the
purchaser, or any other person entitled to share in a rateable distribution of assets, or whose
interests are affected by the sale, may apply to the Court to set aside the sale on the ground of
a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on
the ground of irregularity or fraud in publishing or conducting it unless, upon the facts
proved, the Court is satisfied that the applicant has sustained substantial injury by reason of
such irregularity or fraud.
- People who are affected by this sale if sale done by fraudulent manner then an application
can be made to prevent such a sale.
- Only irregularity cannot be bided, it must cause him substantial injury.
(3) No application to set aside a sale under this rule shall be entertained upon any ground
which the applicant could have taken on or before the date on which the proclamation of sale
was drawn up. Explanation.—The mere absence of, or defect in, attachment of the property
sold shall not, by itself, be a ground for setting aside a sale under this rule.
- If a person is aware regarding the sale and still takes his own time, his application would not
be valid later.

Rule 91: Application by purchaser to set aside sale on ground of judgment-debtor having no
saleable interest.—The purchaser at any such sale in execution of a decree may apply to the
Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in
the property sold.

Rule 92: Sale when to become absolute or be set aside.—

(1) If matter is pending, there can be no confirmation of a deal.
(2) This makes provision by which time you should make the sale and under what conditions.
(3) Res Judicata is applied. In such a case, a revision is permitted by the HC. (S. 115 read
with A. 227)
(4) In a third party challenge, both judgment debtor and decree holder must be made party to
the suit.
(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to
refund the money to the auction-purchaser, and where such an order is passed the execution
proceeding in which the sale had been held shall, unless the Court otherwise directs, be
revived at the stage at which the sale was ordered.

Rule 94: Certificate to purchaser.—Where a sale of immovable property has become

absolute, the Court shall grant a certificate specifying the property sold and the name of the
person who at the time of sale is declared to be the purchaser. Such certificate shall bear date
the day on which the sale became absolute.
- Certificate is granted to make appropriate changes.

Rule 95: Delivery of property in occupancy of judgment-debtor—Where the immovable

property sold is in the occupancy of the judgment-debtor or of some person on his behalf or
of some person claiming under a title created by the judgment-debtor subsequently to the
attachment of such property and a certificate in respect thereof has been granted under rule
94, the Court shall, on the application of the purchaser, order delivery to be made by putting
such purchaser or any person whom he may appoint to receive delivery on his behalf in
possession of the property, and, if need be, by removing any person who refuses to vacate the
same.

Rule 96: Delivery of property in occupancy of tenant.—Where the property sold is in the
occupancy of a tenant or other person entitled to occupy the same and a certificate in respect
thereof has been granted under rule 94, the Court shall, on the application of the purchaser,
order delivery to be made by affixing a copy of the certificate of sale in some conspicuous
place on the property, and proclaiming to the occupant by beat of drum or other customary
mode, at some convenient place, that the interest of the judgment debtor has been transferred
to the purchaser.

Rule 97: Resistance or obstruction to possession of immovable property.—(1) Where the

holder of a decree for the possession of immovable property or the purchaser of any such
property sold in execution of a decree is resisted or obstructed by any person in obtaining
possession of the property, he may make an application to the Court complaining of such
resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate
upon the application in accordance with the provisions herein contained.
- If he finds that there are others, he may make an application to the Court to remove such
people as they are obstructing his possession of immovable property.
Rule 98: Orders after adjudication.—(1) Upon the determination of the questions referred to
in rule 101, the Court shall, in accordance with such determination and subject to the
provisions of sub-rule (2)— (a) make an order allowing the application and directing that the
applicant be put into the possession of the property or dismissing the application; or (b) pass
such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction
was occasioned without any just cause by the judgment-debtor or by some other person at his
instigation or on his behalf, or by any transferee, where such transfer was made during the
pendency of the suit or execution proceeding, it shall direct that the applicant be put into
possession of the property, and where the applicant is still resisted or obstructed in obtaining
possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or
any person acting at his instigation or on his behalf, to be detained in the civil prison for a
term which may extend to thirty days.
- Transfers during the proceeding of a suit become void.

Rule 99: Dispossession by decree-holder or purchaser.—(1) Where any person other than the
judgment-debtor is dispossessed of immovable property by the holder of a decree for the
possession of such property or, where such property has been sold in execution of a decree,
by the purchaser thereof, he may make an application to the Court complaining of such
dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the
application in accordance with the provisions herein contained.
- If somebody is there who is authorised to acquire the property, he may be dispossessed by
the Decree Holder.

Rule 100: Order to be passed upon application complaining of dispossession.—Upon the

determination of the questions referred to in rule 101, the Court shall, in accordance with
such determination,— (a) make an order allowing the application and directing that the
applicant be put into the possession of the property or dismissing the application; or (b) pass
such other order as, in the circumstances of the case, it may deem fit.
- Example: If Decree Holder finds squatter and just throws them out then those parties can
move an obstruction application.

Rule 101: Question to be determined.—All questions (including questions relating to right,

title or interest in the property) arising between the parties to a proceeding on an application
under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the
application, shall be determined by the Court dealing with the application and not by a
separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary
contained in any other law for the time being in force, be deemed to have jurisdiction to
decide such questions.
- Since this is an executing court, all questions pertaining to execution would be to this court
even though they do not have the pecuniary jurisdiction.

Rule 102: Rules not applicable to transferee pendente lite.—Nothing in rules 98 and 100 shall
apply to resistance or obstruction in execution of a decree for the possession of immovable
property by a person to whom the judgement-debtor has transferred the property after the
institution of the suit in which the decree was passed or to the dispossession of any such
person. Explanation.—In this rule, “transfer” includes a transfer by operation of law.
- If JD has transferred any property during the suit, the court would not interfere since the
buyer would have to present that such a purchase was made after due diligence.

Rule 103: Orders to be treated as decrees.—Where any application has been adjudicated upon
under rule 98 or rule 100, the order made thereon shall have the same force and be subject to
the same conditions as to an appeal or otherwise as if it were a decree.
- Orders to be treated as a decree.
- Legal rights that follow once it is a decree- review, appeal, revision

Rule 104: Order under rule 101 or rule 103 to be subject to the result or pending suit.—Every
order made under rule 101 or rule 103 shall subject to the result of any suit that may be
pending on the date of commencement of the proceeding in which such order, is made if in
such suit the party against whom the order under rule 101 or rule 103 is made has sought to
establish a right which he claims to the present possession of the property.
Example: Suppose you get to know that there is a subtenant of your tenant, after 13 years.
Can you throw him out now? –No, since he becomes a tenant by virtue. If the sub tenant lets
someone else sublet the property, he loses his tenancy rights.

Rule 105: Hearing of application.—(1) The Court, before which an application under any of
the foregoing rules of this Order is pending, may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other day to which the hearing may be adjourned the
applicant does not appear when the case is called on for hearing, the Court may make an
order that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has been issued by
the Court does not appear, the Court may hear the application ex parte and pass such order as
it thinks fit.
Explanation.—an application referred to in sub-rule (1) includes a claim or objection made
under rule 58.
- If applicant is not there in the suit, it is dismissed. If respondent is not there, ex parte. This
rule makes provisions for that.
Rule 106: Setting aside orders passed ex parte, etc.—(1) The applicant, against whom an
order is made under sub-rule (2) rule 105 or the opposite party against whom an order is
passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to
the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for
his non-appearance whom the application was called on for hearing, the Court shall set aside
the order or such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the
further hearing of the application.
(2) No order shall be made on an application under sub-rule (1) unless notice of the
application has been served on the other party.
(3) An application under sub-rule (1) shall be made within thirty days from the date of the
order, or where, in the case of an ex parte order, the notice was not duly served, within thirty
days from the date when applicant had knowledge of the order

Section 144- Application for restitution.—(1) Where and in so far as a decree 4 [or an order]
is 5 [varied or reversed in any appeal, revision or other proceeding or is set aside or modified
in any suit instituted for the purpose, the Court which passed the decree or order] shall, on the
application of any party entitled to any benefit by way of restitution or otherwise, cause such
restitution to be made as will, so far as may be, place the parties in the position which they
would have occupied but for such decree [or order] or [such part thereof as has been varied,
reversed, set aside or modified]; and for this purpose, the Court may make any orders,
including orders for the refund of costs and for the payment of interest, damages,
compensation and mesne profits, which are properly [consequential on such variation,
reversal, setting aside or modification of the decree or order]. [Explanation.—For the
purposes of sub-section (1), the expression “Court which passed the decree or order” shall be
deemed to include,— (a) where the decree or order has been varied or reversed in exercise of
appellate or revisional jurisdiction, the Court of first instance; (b) where the decree or order
has been set aside by a separate suit, the court of first instance which passed such decree or
order.
(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to
execute, it, the Court which, if the suit wherein the decree or order was passed were instituted
at the time of making the application for restitution under this section, would have
jurisdiction to try such suit.] (2) No suit shall be instituted for the purpose of obtaining any
restitution or other relief which could be obtained by application under sub-section (1).
- Items are to be returned to the party.
- Restitution is discussed in Contracts Act as well.

S.145- Enforcement of liability of surety.—Where any person [has furnished security or

given a guarantee]— (a) for the performance of any decree or any part thereof, or (b) for the
restitution of any property taken in execution of a decree, or (c) for the payment of any
money, or for the fulfilment of any condition imposed on any person, under an order of the
Court in any suit or in any proceeding consequent thereon, [the decree or order may be
executed in the manner therein provided for the execution of decrees, namely:— (i) if he has
rendered himself personally liable, against him to that extent;
- If someone has put a conditional guarantee, then you will find that till the extent of those
conditions, the amount of surety would be given.
(ii) if he has furnished any property as security, by sale of such property to the extent of the
security;
(iii) if the case falls both under clauses (i) and (ii) then to the extent specified in those
clauses, and such person shall, be deemed to be a party within the meaning of section 47
(right of court to take money to satisfy the decree)
Provided that such notice as the Court in each case thinks sufficient has been given to the
surety.

S. 146- Proceedings by or against representatives.—Save as otherwise provided by this Code

or by any law for the time being in force, where any proceeding may be taken or application
made by or against any person then the proceeding may be taken or the application may be
made by or against any person claiming under him.
- Makes provisions for having people to represent you.

S.151- Saving of inherent powers of Court.—Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to make such orders as may be necessary for
the ends of justice or to prevent abuse of the process of the Court.
- A leeway to do complete justice between the parties and to ensure that no law prevents them
from doing so, and they (Court) be permitted to give orders.
- Example: Nitin Thakkar case (escheat)

S.153A- Power to amend decree or order where appeal is summarily dismissed.—Where an

Appellate Court dismisses an appeal under rule 11 of Order XLI, the power of the Court to
amend, under section 152, the decree or order appealed against may be exercised by the
Court which had passed the decree or order in the first, instance, notwithstanding that the
dismissal of the appeal has the effect of confirming the decree or order, as the case may be,
passed by the Court of first instance.
- The Court may amend an order when there are clerical or typing errors. If there are major
errors in the order, you will put it for review.

SPECIAL COURTS- COMMERICAL COURT

- https://www.indialaw.in/blog/blog/law/commercial-courts-act-2015-changes-in-provisions-
of-cpc/
- Under S.12A of the Commercial Courts Act, it is compulsory to go for arbitration before
filing a case unless the parties can prove urgency.
- Pecuniary jurisdiction of Special Courts was 1 crore and has been now brought down to 3
lacs.
- “Summary judgment”- Order 7, Rule 11 (Rejection of a plaint) CPC
- Three types of Interests- 1. Contractual interest, 2. Interest Pendant Lite, 3. After the
judgment is given and payment is realised.
- In the pleadings, it is essential for you to mention a column of interest. A person have to
calculate the outstanding interest before you would file the suit.
- Strict application of filing of Written Statement- 120 days.
- Costs (Section 35 of the CPC) - All costs become payable
- No evasive denial.
- Order 7, Rule 2: (2) Where the plaintiff seeks interest, the plaint shall state whether the
plaintiff is seeking interest in relation to a commercial transaction within the meaning of
section 34 of the Code of Civil Procedure, 1908 (5 of 1908) and, furthermore, if the plaintiff
is doing so under the terms of a contract or under an Act, in which case the Act is to be
specified in the plaint; or on some other basis and shall state the basis of that.
(3) Pleadings shall also state— (a) the rate at which interest is claimed; (b) the date from
which it is claimed; (c) the date to which it is calculated; (d) the total amount of interest
claimed to the date of calculation; and (e) the daily rate at which interest accrues after that
date.
- In admission and denial of documents, there are three columns: admit, deny, document
admitted-contents denied. In commercial courts, you make five columns: admit - correctness,
existence (deny), execution, issuance/receipt, custody of document.

Q. There is a will or trust deed. There is a question of interpretation of contract or that trust
deed. What will you do in such a case? –Originating summons (Section 90). The Court is
only to construe the interpretation. Both parties have to argue as to what is their interpretation
of the contract.
Case: Parsi Panchayat vs Khushroo Madon (2009)
- https://parsikhabar.net/bombay-parsi-panchayat/parsi-punchayet-moves-supreme-court-for-
ban-on-priests/3051/

ORDER VIII-A (COMMERCIAL COURTS ACT)

Rule 3: The Court may give a summary judgment against a plaintiff or defendant on a claim
if it considers that–– (a) the plaintiff has no real prospect of succeeding on the claim or the
defendant has no real prospect of successfully defending the claim, as the case may be; and
(b) there is no other compelling reason why the claim should not be disposed of before
recording of oral evidence.
- Prima facie evidence. Court would have to go into the facts of the matter.
- Order VII, Rule 11 of CPC goes into legality of the evidence.

Rule 4: Procedure- (1) An application for summary judgment to a Court shall, in addition to
any other matters the applicant may deem relevant, include the matters set forth in sub-
clauses (a) to (f) mentioned hereunder:— (a) the application must contain a statement that it
is an application for summary judgment made under this Order;
(b) the application must precisely disclose all material facts and identify the point of law, if
any;
- If you are raising a question of law, you must disclose everything.
(c) in the event the applicant seeks to rely upon any documentary evidence, the applicant
must,–– (i) include such documentary evidence in its application, and (ii) identify the relevant
content of such documentary evidence on which the applicant relies;
(d) the application must state the reason why there are no real prospects of succeeding on the
claim or defending the claim, as the case may be;
- the opposite parties must prove why the other party should not succeed.
(e) the application must state what relief the applicant is seeking and briefly state the grounds
for seeking such relief.
(2) Where a hearing for summary judgment is fixed, the respondent must be given at least
thirty days’ notice of:— (a) the date fixed for the hearing; and (b) the claim that is proposed
to be decided by the Court at such hearing.
(3) The respondent may, within thirty days of the receipt of notice of application of
summary judgment or notice of hearing (whichever is earlier), file a reply addressing the
matters set forth in clauses (a) to (f) mentioned hereunder in addition to any other matters that
the respondent may deem relevant:— (a) the reply must precisely–– (i) disclose all material
facts; (ii) identify the point of law, if any; and (iii) state the reasons why the relief sought by
the applicant should not be granted;
- Summary judgment can be brought by the plaintiff here as well. (Unlike Order VII, Rule 11
where only the defendant can file an application)

(b) in the event the respondent seeks to rely upon any documentary evidence in its reply, the
respondent must— (i) include such documentary evidence in its reply (be precise. Eg:
Annexure X, Page X, Para X)
(ii) Identify the relevant content of such documentary evidence on which the respondent
relies; (c) the reply must state the reason why there are real prospects of succeeding on the
claim or defending the claim, as the case may be;
(d) the reply must concisely state the issues that should be framed for trial (draft issues)
(e) the reply must identify what further evidence shall be brought on record at trial that could
not be brought on record at the stage of summary judgment; and
(f) the reply must state why, in light of the evidence or material on record if any, the Court
should not proceed to summary judgment (opposing summary judgment)

Q. Has the statute (CCA) left any room for oral arguments? –No.

Rule 5: (1) Notwithstanding anything in this Order, if the respondent in an application for
summary judgment wishes to rely on additional documentary evidence during the hearing,
the respondent must:— (a) file such documentary evidence; and (b) serve copies of such
documentary evidence on every other party to the application at least fifteen days prior to the
date of the hearing.
- Documents must fall in line with the evidence act.

Rule 6: (1) On an application made under this Order, the Court may make such orders that it
may deem fit in its discretion including the following:— (a) judgment on the claim; (b)
conditional order in accordance with Rule 7 mentioned hereunder; (c) dismissing the
application; (d) dismissing part of the claim and a judgment on part of the claim that is not
dismissed; (e) striking out the pleadings (whether in whole or in part); or (f) further directions
to proceed for case management under Order XV-A.

In civil suits, the lawyers submit their draft issues and the actual issues are decided and given
by the Court.
Q. Why are draft issues not submitted in small causes court?
- Issues are very small and limited in this court. The first question is always whether the
tenant is a protected tenant. If the question is answered in the negative then the next question
would be the question of mesne profits payable by the defendant.

Four necessary things:- (Difference between Original Suit under CPC and Commercial Suit)
- https://www.indialaw.in/blog/blog/law/commercial-courts-act-2015-changes-in-provisions-
of-cpc/
- Must be a commercial transaction
- Written Statement filed within 120 days
- Compulsory Mediation
- Summary Judgments

CASE MANAGEMENT (ORDER 15A)

- Court pre-decides the date for all the hearings.
- Case to be finished in 6 months after the first hearing of the suit.

Rule 1: First Case Management Hearing. — The Court shall hold the first Case Management
Hearing, not later than four weeks from the date of filing of affidavit of admission or denial
of documents by all parties to the suit.

Rule 2: Orders to be passed in a Case Management Hearing. — In a Case Management

Hearing, after hearing the parties, and once it finds that there are issues of fact and law which
require to be tried, the Court may pass an order–– (a) framing the issues between the parties
in accordance with Order XIV of the Code of Civil Procedure, 1908 (5 of 1908), after
examining pleadings, documents and documents produced before it, and on examination
conducted by the Court under Rule 2 of Order X, if required; (b) listing witnesses to be
examined by the parties; (c) fixing the date by which affidavit of evidence to be filed by
parties; (d) fixing the date on which evidence of the witnesses of the parties to be recorded;
(e) fixing the date by which written arguments are to be filed before the Court by the parties;
(f) fixing the date on which oral arguments are to be heard by the Court; and (g) setting time
limits for parties and their advocates to address oral arguments.
--
Important:
- If a suit is over 3 lacs, it would go under a commercial dispute i.e., commercial court. If it is
2 lacs or so, it would go into the city civil court.
- Testamentary matter, admiralty jurisdiction, arbitration petition, etc., all of them go to HC
irrespective of the sum.
- Only five HCs have original jurisdiction: Bombay (1 cr), Madras and Calcutta (25 lacs
each), Himachal Pradesh (10 lacs), Delhi (2 crs)
- For interim reliefs, a person must file interlocutory orders.

LIMITATIONS ACT:-
- If there is a specific statute that prescribes the limitation then the limitation act would not be
valid.
- Wide birth to the term “plaintiff”

Section 3: Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24

(inclusive), every suit instituted, appeal preferred, and application made after the prescribed
period shall be dismissed, although limitation has not been set up as a defence.
- Normally it is the job of the defendant to prove to the curt, but here, there is no need for
them to set up the defence.
(2) For the purposes of this Act,— (a) a suit is instituted,— (i) in an ordinary case, when the
plaint is presented to the proper officer (all documents must be lodged so you can get lodging
number)
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the
claimant first sends in his claim to the official liquidator;
- Job of the Official Liquidator has gone from the HC to the NCLT.
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and
shall be deemed to have been instituted— (i) in the case of a set off, on the same date as the
suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;
(strictly within limitations)
Q. Why distinction between counter claim and set off? – Set off is with respect to the same
transaction and counter claim can be anything other claimed.
(c) an application by notice of motion in a High Court is made when the application is
presented to the proper officer of that court. (miscellaneous application)

Section 4: Expiry of prescribed period when court is closed.—Where the prescribed period
for any suit, appeal or application expires on a day when the court is closed, the suit, appeal
or application may be instituted, preferred or made on the day when the court re-opens.
Explanation.—A court shall be deemed to be closed on any day within the meaning of this
section if during any part of its normal working hours it remains closed on that day.
- Even if for certain reasons it is closed (riots, disturbance in law and order), it would still be
closed.

Section 5: Extension of prescribed period in certain cases.—Any appeal or any application,

other than an application under any of the provisions of Order XXI of the Code of Civil
Procedure, 1908 (Execution) may be admitted after the prescribed period if the appellant or
the applicant satisfies the court that he had sufficient cause for not preferring the appeal or
making the application within such period.
Explanation.—The fact that the appellant or the applicant was missed by any order, practice
or judgment of the High Court in ascertaining or computing the prescribed period may be
sufficient cause within the meaning of this section.
- In the case of appeal or application, the court may condone delay if you can give a cogent
explanation for the delay.

- Section 3 is a benchmark for a new case.

- Section 5 talks is applicable when the case is already going on.

Section 6: Legal disability.—(1) Where a person entitled to institute a suit or make an

application for the execution of a decree is, at the time from which the prescribed period is to
be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application
within the same period after the disability has ceased, as would otherwise have been allowed
from the time specified therefor in the third column of the Schedule.
Q. Can lunatics sign a contract? –Only when they are in the phase of sanity.
(2) Where such person is, at the time from which the prescribed period is to be reckoned,
affected by two such disabilities, or where, before his disability has ceased, he is affected by
another disability, he may institute the suit or make the application within the same period
after both disabilities have ceased, as would otherwise have been allowed from the time so
specified.
- Insanity and being a minor could be two examples of two disabilities.
(3) Where the disability continues up to the death of that person, his legal representative may
institute the suit or make the application within the same period after the death, as would
otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of
the person whom he represents, affected by any such disability, the rules contained sub-
sections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceases but within the period
allowed to him under this section, his legal representative may institute the suit or make the
application within the same period after the death, as would otherwise have been available to
that person had he not died.
- He becomes fine and then dies. In such a situation, the remaining period that was left after
he became alright would only count.
Example: Let’s say he comes alright on Jan 1, 2019. His limitation for money suit would end
in 2021. Suppose he dies on 31st Jan, 2020. One year of limitation is now left. His heirs have
the time period of one year to make an application.
Explanation.—For the purposes of this section, “minor‟ includes a child in the womb.

Section 8: Special exceptions.—nothing in section 6 or in section 7 applies to suits to enforce

rights of pre-emption, or shall be deemed to extend, for more than three years from the
cessation of the disability or the death of the person affected thereby, the period of limitation
for any suit or application.
- For pre-emption, there is no exception because such a person would be aware regarding the
disability or death.

Section 9: Continuous running of time.—Where once time has begun to run, no subsequent
disability or inability to institute a suit or make an application stops it: Provided that, where
letters of administration to the estate of a creditor have been granted to his debtor, the running
of the period of limitation for a suit to recover the debt shall be suspended while the
administration continues.
- Under the succession act suppose A dies and no family member is executor then his
creditors can always become the executor to take charge and get their money. Here, the time
to recover the debt would be suspended.

Section 10: Suits against trustees and their representatives.—Notwithstanding anything

contained in the foregoing provisions of this Act, no suit against a person in whom property
has become vested in trust for any specific purpose, or against his legal representatives or
assigns (not being assigns for valuable consideration), for the purpose of following in his or
their hands such property, or the proceeds thereof, or for an account of such property or
proceeds, shall be barred by any length of time. Explanation.—For the purposes of this
section any property comprised in a Hindu, Muslim or Buddhist religious or charitable
endowment shall be deemed to be property vested in trust for a specific purpose and the
manager of the property shall be deemed to be the trustee thereof.
- Trustee can be sued at any given point of time by the beneficiary in case of any money
issues (illegal use of funds, etc). This is because any trustee must be loyal to the beneficiary.

Section 11: Suits on contracts entered into outside the territories to which the Act extends.—
(1) Suits instituted in the territories to which this Act extends on contracts entered into in the
State of Jammu and Kashmir or in a foreign country shall be subject to the rules of limitation
contained in this Act. (2) No rule of limitation in force in the State of Jammu and Kashmir or
in a foreign country shall be a defence to a suit instituted in the said territories on a contract
entered into in that State on in a foreign country unless— (a) the rule has extinguished the
contract; and (b) the parties were domiciled in that State or in the foreign country during the
period prescribed by such rule.
Section 12: Exclusion of time in legal proceedings.—(1) In computing the period of
limitation for any suit, appeal or application, the day from which such period is to be
reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or
for revision or for review of a judgment, the day on which the judgment complained of was
pronounced and the time requisite for obtaining a copy of the decree, sentence or order
appealed from or sought to be revised or reviewed shall be excluded.
- Takes care of the provision as to what happens when you approach the wrong court.
- Limitations get reduced by one day. If that date is on a court holiday, Section 4 will come
into operation. Matter would be heard the next day.
- When the court is preparing an order and a person has not filed an application, you would
not be applicable for condonation of delay.
Case: India Home vs Kishan N Lalwani
- He lost in the trial court. He appealed after 30 days. He put in his application late. By the
time he got his order and filed, it had become 53 days. Court said that where there is no bar
by a staute upto what time the appeal should be heard, it is on the discretion of the court.
- Most Courts do not agree with this judgment.

Case: Saketh India Ltd v India Securities Lt (1999)

- Case where SC gave a day extra.

(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an
application is made for leave to appeal from a decree or order, the time requisite for obtaining
a copy of the judgment shall also be excluded.
- Very important to obtain the judgment in an appeal since the judge needs to know wwhat
part of the judgment you are assailing.
(4) In computing the period of limitation for an application to set aside an award, the time
requisite for obtaining a copy of the award shall be excluded.
- This has become redundant now.
Explanation.—In computing under this section the time requisite for obtaining a copy of a
decree or an order, any time taken by the court to prepare the decree or order before an
application for a copy thereof is made shall not be excluded.
- The moment an order is made by the Court and you want to assail an order, you have two
options- 1. Speaking minutes, 2. Review.
Section 15: Exclusion of time in certain other cases.—(1) In computing the period of
limitation of any suit or application for the execution of a decree, the institution or execution
of which has been stayed by injunction or order, the time of the continuance of the injunction
or order, the day on which it was issued or made, and the day on which it was withdrawn,
shall be excluded.
Example: Suppose you got a decree, opposite party got an appeal against the order and it took
you 3 months to remove the injunction. Therefore, those 3 months would be excluded from
the process and you may get an extension for that amount of time.
(2) In computing the period of limitation for any suit of which notice has been given, or for
which the previous consent or sanction of the Government or any other authority is required,
in accordance with the requirements of any law for the time being in force, the period of such
notice or, as the case may be, the time required for obtaining such consent or sanction shall
be excluded.
- You have to file a suit against the government in tort within a year. Period of notice is 2
months so therefore, the period of 2 months would be excluded in this process.
Explanation.—In excluding the time required for obtaining the consent or sanction of the
Government or any other authority, the date on which the application was made for obtaining
the consent or sanction and the date of receipt of the order of the Government or other
authority shall both be counted.
- Any judicial process which impleads the limitation is to be removed.
(3) In computing the period of limitation for any suit or application for execution of a decree
by any receiver or interim receiver appointed in proceedings for the adjudication of a person
as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the
winding up of a company, the period beginning with the date of institution of such
proceeding and ending with the expiry of three months from the date of appointment of such
receiver or liquidator, as the case may be, shall be excluded.
(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in
execution of a decree, the time during which a proceeding to set aside the sale has been
prosecuted shall be excluded.
(5) In computing the period of limitation for any suit the time during which the defendant has
been absent from India and from the territories outside India under the administration of the
Central Government, shall be excluded.
- A person cannot leave the country knowing that they have to file a suit that still runs on
limitations. If they are already outside the territory, they shall be excluded from limitations.

Section 16: Effect of death on or before the accrual of the right to sue.—(1) Where a person
who would, if he were living, have a right to institute a suit or make an application dies
before the right accrues, or where a right to institute a suit or make an application accrues
only on the death of a person, the period of limitation shall be computed from the time when
there is a legal representative of the deceased capable of instituting such suit or making such
application.
(2) Where a person against whom, if he were living, a right to institute a suit or make an
application would have accrued dies before the right accrues, or where a right to institute a
suit or make an application against any person accrues on the death of such person, the period
of limitation shall be computed from the time when there is a legal representative of the
deceased against whom the plaintiff may institute such suit or make such application.
(3) Nothing in sub-section (1) or sub-section (2) applies to suits to enforce rights of pre-
emption or to suits for the possession of immovable property or of a hereditary office.
- A dies who has to recover money from B but dies. A's heir is a minor, limitation will run
from when the heir turns a major.
- Insurance or testamentary application are examples of such contracts.

Section 17: Effect of fraud or mistake–

- Right of limitation starts from the day you are aware of your concealed rights and not from
the day you filed a suit.
- Period till you get the document in hand shall be exempted.
Example: In case of siblings, the sister knows that all is given to the brother by father through
a will, but she does not do anything for 40 years. After 40 years can she bring an action
saying the will was fraudulent? Nope.
- In case of will, the SC says that when somebody assails the will, the limitation would start.
Period- 3 years.
- If opposite party files for assailing the will/partition of property and other party with the will
files for a probate. Logic here is that - intention of the dead person should be validated. And
therefore, probating is done first because if the probate petition succeeds then the partition
application cannot be heard.
Example: Suppose there is a contract for sale of goods, substandard goods, A sells to B. B
files a suit in Kolhapur, and A later files in Mumbai, here since facts are to be ascertained and
Kolhapur one was filed first, that one shall be heard.

No set asides of using a late limitation under the following conditions— If you have
committed a fraud, you get no consideration.
Case: Daiichi Sankyo vs Malvindir Singh
-Singh Brothers contested caveat emptor.

Section 18: Effect of acknowledgment in writing.—(1) Where, before the expiration of the
prescribed period for a suit or application in respect of any property or right, an
acknowledgment of liability in respect of such property or right has been made in writing
signed by the party against whom such property or right is claimed, or by any person through
whom he derives his title or liability, a fresh period of limitation shall be computed from the
time when the acknowledgment was so signed.
- If you have to receive a property/money, the party gives in writing that they owe money to
you and from that day, the limitations may get extended and would be considered from the
date the note was made.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given
of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872
(1 of 1872), oral evidence of its contents shall not be received.
- If the letter is not dated, it must be proved as evidence under the Evidence Act.
Explanation.—For the purposes of this section,— (a) an acknowledgment may be sufficient
though it omits to specify the exact nature of the property or right, or avers that the time for
payment, delivery, performance or enjoyment has not yet come or is accompanied by a
refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is
addressed to a person other than a person entitled to the property or right,
- You need not refer to the exact thing. Doctrine of specific materiality would apply and
therefore, the language used must be proper and unambiguous.
(b) the word “signed” means signed either personally or by an agent duly authorised in this
behalf, and
(c) an application for the execution of a decree or order shall not be deemed to be an
application in respect of any property or right.

Section 19: Effect of payment on account of debt or of interest on legacy.—Where payment

on account of a debt or of interest on a legacy is made before the expiration of the prescribed
period by the person liable to pay the debt or legacy or by his agent duly authorised in this
behalf, a fresh period of limitation shall be computed from the time when the payment was
made: Provided that, save in the case of payment of interest made before the 1st day of
January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a
writing signed by, the person making the payment.
Explanation.—For the purposes of this section,— (a) where mortgaged land is in the
possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed
to be a payment; (b) “debt” does not include money payable under a decree or order of a
court.

Example: A loan was given by cheque on 1st Jan, 2020. Last date for recovering this money
would be 1st January, 2023. On 26th December 2022, the party acknowledges the money given
to them and say that they will repay the amount at the earliest. From that date, to get 3 more
years to file the suit.
If he acknowledges and gives a letter on 5th January, 2023, such a letter would not be valid for
extension. (Exception- Section 25(3))
Case: PNB vs Surendra Prasad
- SC said “Bar of remedy, not of right.”
- You may use it as a defence, but not an attack.

Example: Suppose you were to receive 5 lacs on 31 st December and the money was not paid
so your period for recovery suit has started. If the party has paid a certain amount, 1 lac out of
5 lacs, then the limitation period may be extended

- The difference between section 18 and 19 is that in section 18, party gives you only letter
and in section 19 some money or interest is given basically in capital. You will appropriate it
as per Clifford’s rule i.e., the party who is paying will decide as to how the money has to be
appropriated which is as part payment or interest.

Section 20: Effect of acknowledgment or payment by another person.—(1) The expression

“agent duly authorised in this behalf” in sections 18 and 19 shall, in the case of a person
under disability, include his lawful guardian, committee or manager or an agent duly
authorised by such guardian, committee or manager to sign the acknowledgment or make the
payment.
(2) Nothing in the said sections renders one of several joint contractors, partners, executors or
mortgagees chargeable by reason only of a written acknowledgment signed by, or of a
payment made by, or by the agent of, any other or others of them.
- If one of the many partners make the payment, that would not bind all others.
- Therefore, the letter must come from the letterhead of the firm who is authorised or it must
be signed by every partner.
(3) For the purposes of the said sections,— (a) an acknowledgment signed or a payment made
in respect of any liability by, or by the duly authorised agent of, any limited owner of
property who is governed by Hindu law, shall be a valid acknowledgment or payment, as the
case may be, against a reversioner succeeding to such liability; and
Example: A man makes a will that property would go to widow when alive and then to heirs.
Therefore the devisee would be the wife and the reversioners would be the legal heir.
(b) where a liability has been incurred by, or on behalf of a Hindu undivided family as such,
an acknowledgment or payment made by, or by the duly authorised agent of, the manager of
the family for the time being shall be deemed to have been made on behalf of the whole
family.
- If Karta of a HUF does it, it is assumed to be given on behalf of the whole family.
Section 21: Effect of substituting or adding new plaintiff or defendant.—(1) Where after the
institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as
regards him, be deemed to have been instituted when he was so made a party: Provided that
where the court is satisfied that the omission to include a new plaintiff or defendant was due
to a mistake made in good faith it may direct that the suit as regards such plaintiff or
defendant shall be deemed to have been instituted on any earlier date. (2) Nothing in sub-
section (1) shall apply to a case where a party is added or substituted owing to assignment or
devolution of any interest during the pendency of a suit or where a plaintiff is made a
defendant or a defendant is made a plaintiff
- Provision 1 would not be applicable in cases of dissolution.
- If defendant is added then the date on which he is added or substituted will extend the
limitation. Even if parties change sides the new date will not start.

Section 22: Continuing breaches and torts.—In the case of a continuing breach of contract or
in the case of a continuing tort, a fresh period of limitation begins to run at every moment of
the time during which the breach or the tort, as the case may be, continues.
- A is supposed to send one truck of cement to the construction site every day at a fixed rate.
He has failed to do so. The limitation starts running continuously. (The tort of continuing
nature)

Section 23: Suits for compensation for acts not actionable without special damage.—In the
case of a suit for compensation for an act which does not give rise to a cause of action unless
some specific injury actually results therefrom, the period of limitation shall be computed
from the time when the injury results.
- Special damages can only be given in cases where it is made out in the statute.
- In torts you cannot have special damages because you must be bought to the position which
was prior to the commission of tort. Unless and until the parties prove that the nature of
negligence was of a very high nature that is of bad conduct and it resulted in a lot of loss then
in such cases special damages can be given.
Case: Rookes vs Bernand (Special Damages case)

Section 24: Computation of time mentioned in instruments.—All instruments shall for the
purposes of this Act be deemed to be made with reference to the Gregorian calendar.

Section 27: Extinguishment of right to property.—At the determination of the period hereby
limited to any person for instituting a suit for possession of any property, his right to such
property shall be extinguished.
- Within the period where such a person is in possession of your property, if you fail to make
such an application, your right may be extinguished.
Adverse Possession Period: 12 years
For government property: 30 years

Section 29: Savings.—(1) Nothing in this Act shall affect section 25 of the Indian Contract
Act, 1872 (9 of 1872). (2) Where any special or local law prescribes for any suit, appeal or
application a period of limitation different from the period prescribed by the Schedule, the
provisions of section 3 shall apply as if such period were the period prescribed by the
Schedule and for the purpose of determining any period of limitation prescribed for any suit,
appeal or application by any special or local law, the provisions contained in sections 4 to 24
(inclusive) shall apply only in so far as, and to the extent to which, they are not expressly
excluded by such special or local law.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage
and divorce, nothing in this Act shall apply to any suit or other proceeding under any such
law.
(4) Sections 25 and 26 and the definition of “easement” in section 2 shall not apply to cases
arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the
time being extend.
- If someone agrees to repay under contract then it will not be affected by this act.
- The operations to 4 to 24 will work unless special law excludes it.
- If a particular suit has created a bar that is different from that of section 3 then that bar will
prevail.
- The courts cannot accept suits after period is over unless in cases of appeals.

Section 30: Provisions of 1908 will not apply.

Schedule:-
31- A promissory note for 3 years. You cannot sue in that period.