Cpcnotesoriginal 1

CPC (CIVIL PROCEDURE CODE) – ASSIGNMENT
1) JURISDICTION & ITS TYPES.

Jurisdiction in the Code of Civil Procedure can be described as the power of the court to settle
the matter. Judicial forum must have jurisdiction to deal with the matter. Hence, the
Jurisdiction commonly rests where the crime is committed. Jurisdiction is defined as the limit
of judicial authority or extent to which a court of law can exercise its authority over suits,
cases, appeals etc.
Lack of jurisdiction and irregular exercise of jurisdiction

Whenever the suit is made before the court the initial issue is to decide whether the court has
jurisdiction to deal with the matter. If the court has all the three territorial, pecuniary or
subject matter jurisdiction then simply the court has the power to deal with any of the cases.
If the court does not have any of the jurisdiction then it will be recognised as lack of
jurisdiction and irregular exercise of jurisdiction. When the court does not have jurisdiction to
decide the case then such decision will be regarded as void or voidable depending upon the
circumstances.
The basis to determine jurisdiction

Jurisdiction is determined mainly on the grounds of:
1. Fiscal value;
2. Geographical boundaries of a court;
3. The subject matter of court.
So, the Court, before accepting notice of crime, need to take into consideration the
following characteristics:
• The Fiscal value of the trial.
• The specialities of the case.
• The regional limits of the court.
KINDS OF JURISDICTION
Territorial or local jurisdiction

Under this territorial or local jurisdiction, the geographical limits of a court’s authority are
clearly delineated and specified. It cannot exercise authority beyond that geographical/
territorial limit. In the case of Harshad Chiman Lal Modi Vs D.L.F Universal Ltd , the court
interpreted Section 16 that the suit pertaining to immovable property should be brought to the
court. The court does not have the power to decide the rights of property which are not
situated. However, the court can still pass a relief if the opposite party agrees to try the suit in
such a case.
Pecuniary jurisdiction
Pecuniary means ‘related to capital.’ It approaches the question of whether the court is
competent to try the case of the financial value. The code allows analysing the case unless the
suit’s value exceeds the financial limit of the court.
Section 15 of the Code of Civil Procedure commands the organisation of the suit in the court
of the low grade. It refers to pecuniary jurisdiction of Civil court. It is a course of the method
and it does not affect the jurisdiction of the court. The main objective of establishing
Aneel U 1 CPC Notes

pecuniary jurisdiction is to prevent the court of a higher level from getting burdened and to
provide assistance to the parties. However, the court shall interfere if it finds the judgment to
be wrong.
Jurisdiction as to the subject matter

The subject matter can be defined as the authority vested in a court to understand and try
cases concerning a special type of subject matter. In other words, it means that some courts
are banned from hearing cases of a certain nature. No question of choices can be decided by
the court which do not have subject matter jurisdiction. Section 21 of the Code of Civil
Procedure is related to the stage challenging the jurisdiction.
Original and appellate jurisdiction

Appellate jurisdiction refers to the court’s authority to review or rehearsal the cases that have
been already decided in the lower courts. In the Indian circumstances, both the High Court
and Supreme Court have the appellate jurisdiction to take the subjects that are bought in the
form of appeals.
Original Jurisdiction refers to the court’s authority to take notice of cases that could be
decided in these courts in the first instance itself. Unlike appellate jurisdiction wherein courts
review the previously decided matter, here the cases are heard afresh.
Exclusive and concurrent jurisdiction

In Civil Procedure, exclusive jurisdiction means where a single court has the authority to
decide a case to the rejection of all the courts. This jurisdiction is decided on the basis of the
subject matter dealt with by a specific court. For example, the U.S District courts have
particular jurisdiction on insolvency topics.
Concurrent jurisdiction exists where two or more courts from different systems
simultaneously have jurisdiction over a particular case. In this situation, parties will try to
have their civil or criminal case heard in the court that they perceive will be most favourable
to them.
General and special jurisdiction

General jurisdiction means that general courts do not limit themselves to hearing only one
type of cases. This type of jurisdiction means that a court has the power to hear all types of
cases. So the court that has general jurisdiction can hear criminal, civil, family court case and
much more.
Specific jurisdiction is the ability of the court to hear a lawsuit in a state other than the
defendant’s home state if that defendant has minimum contacts within the state where the suit
will be tried.
Legal and equitable jurisdiction

Equitable jurisdiction belongs to the authorities of the courts to take specific actions and pass
some orders in order to deliver an equitable and reasonable outcome. In the case of
K.K.Velusamy Vs N.Palanisamy, the Supreme Court of India held that Section 151 does not
give any special jurisdiction to civil courts, but only presents for the application of
discretionary power to achieve the ends of justice.
Aneel U 2 CPC Notes

Expounding and expanding jurisdiction
Expounding jurisdiction means to describe, clarify and explain jurisdiction. Expanding
jurisdiction means to develop, expand or prolong jurisdiction. It is the duty of the court to
clarify its jurisdiction and it is not proper for the court to extend its jurisdiction.
Jurisdiction of foreign courts

A foreign court is described as a court outside India and not authorised or continued by the
authority of the Central Government, and a foreign judgement means a judgement of a
foreign court. In other words, a foreign judgement means an adjudication by a foreign court
upon a matter before it. The following conditions would give power to the foreign courts to
adjudicate a matter presented before it:
1. When the person is a subject of a foreign country in which the judgement has been
obtained.
2. If he was a resident of a foreign country when the action was commenced and the
summons was served on him.
3. When the person is in the character of plaintiff chooses the foreign court as the forum
for taking action in which forum he issued later.
4. When the party on summons voluntarily appeared.
5. When through an agreement, a person has agreed to present himself to the forum in
which the judgement is obtained.
Jurisdiction of civil court

Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in India. It
declares that the court shall have jurisdiction to try all lawsuits of civil nature accepting suits
of which their cognizance is either expressly or impliedly barred.
Conditions
A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:
1. The suit must be of a civil nature.
2. The cognizance of such a suit should not have been expressly or impliedly barred.
Conclusion
Civil court has jurisdiction to investigate whether tribunal and quasi-judicial bodies or legal
executive acted within their jurisdiction. It can be presumed that section 9 essentially deals
with the issue of the civil court’s jurisdiction to consider a matter. Civil court has jurisdiction
to consider a suit of civil nature except when it’s notification is expressly barred or bared by
significant suggestion. Civil court has jurisdiction to resolve the problem of its jurisdiction.
Aneel U 3 CPC Notes

2) WHAT IS LAW OF LIMITATION? WHEN CAN IT BE EXTENDED UNDER THE
VARIOUS PROVISIONS OF THE LIMITATION ACT?
Law of Limitation in India

The word limitation itself says the meaning. The word limitation in its literal term means a
restriction or the rule or circumstances which are limited. The law of limitation has been
prescribed as the time limit which is given for different suits to the aggrieved person within
which they can approach the court for redress or justice.
The basic concept of limitation is relating to fixing or prescribing of the time period for
barring legal actions. According to Section 2 (j) of the Limitation Act, 1963, ‘period of
limitation’ means the period of limitation prescribed for any suit, appeal or application by the
Schedule, and ‘prescribed period’ means the period of limitation computed in accordance
with the provisions of this Act.
The Law of Limitation signifies to prevent from the last date for different legal actions which
can take place against an aggrieved person and to advance the suit and seek remedy or
righteous before the court. Where a suit is initiated after the bar of limitation, it will be hit by
the law of limitation. The main and the fundamental aim of the law of limitation is to protect
the lengthy process of penalizing a person indirectly without doing any offence.
The Limitation Act, 1963 does not affect the provisions provided under The Indian Contract
Act, 1872. The Act is made effective for the reason that it bars the jurisdiction of the court to
entertain the actions that are frivolous and to avoid the long proceeding of the pending actions
by the complainants.
The Salient Features are

• The Limitation Act contains 32 Sections and 137 Articles. The articles have been divided
into 10 parts. There is no uniform of limitation for the suits under which the
classifications has been attempted.
• The limitation period is reduced from a period of 60 years to 30 years in the case of suit
by the mortgagor for the redemption or recovery of possession of the immovable property
mortgaged, or in case of a mortgages for the foreclosure or suits by or on the behalf of
Central Government or any State Government including the State of Jammu and Kashmir.
• Whereas a longer period of 12 years has been prescribed for different kinds of suits
relating to immovable property, trusts and endowments, a period of 3 years has been
prescribed for the suits relating to accounts, contracts and declarations, suits relating to
decrees and instruments and as well as suits relating to movable property.
• A period varying from 1 to 3 years has been prescribed for suits relating to torts and
miscellaneous matters and for suits for which no period of limitation has been provided
elsewhere in the Schedule to the Act.
• It is to be taken as the minimum period of seven days of the Act for the appeal against the
death sentence passed by the High Court or the Court of Session in the exercise of the
original jurisdiction which has been raised to 30 days from the date of sentence given.
Aneel U 4 CPC Notes

Main Objects of the Law of Limitations are as follows
Whereas it has been observed and expressed by the Court that there are almost three different
types of supporting reasons for the existence of statutes of limitation.
• That long dormant claims have more of cruelty than justice in them.
• That a defendant might have lost the evidence to dispute the State claim.
• That person with good causes of actions should pursue them with.
There are two Major Broad Considerations on which the Doctrine of Limitation and
Prescription are based on
• That, the right which are not exercised for a long time are said to be as nonexistence.
• That, the rights which are related to property and rights which are in general should
not be in a state of constant uncertainty, doubt and suspense.
The main object of limit in any of the legal actions which is to give effect to the maxim
‘interest reipublicae ut sit finis litium’ which means that if the interest of the State is required
that there should be a limit to a litigation and also to prevent any kind of disturbance or
deprivation of what may have been acquired in equity and justice or by way long enjoyment
or what may have been lost by a party’s own inaction, negligence or laches.
The intention in accepting the concept of limitation is that “controversies are restricted to a
fixed period of time, lest they should become immortal while men are moral.”
There is a limitation to litigation which interposes the statutory bar. This statutory restriction
after a certain period of time gives a status to enforce an existing right. Simply, it neither
create any right in favour of any person nor does it define or create any cause of action
against the particular person but it prescribes about the remedy. These remedy can be
exercised only up to a certain period of time and not subsequently. The main object of the
statute of the Limitation Act, 1963 is more over a preventive kind and not to interpose a
statutory bar after a certain period of time and it gives a quietus to all the suit matters to
enforce an existing right.
The major purpose of the statutory of the Limitation Act, 1963 is not to destroy or infringe the
rights of an aggrieved person but to serve public in a better way and to save time. This statute
is basically founded on the public policy for fixing a life span for the legal action which are
taken place and to seek remedy in time with the purpose of general welfare. The object of
providing a legal remedy is to repair the damage which is caused by reason of legal injury.
Law of Limitation is an adjective Law. It is lex fori. Thus, it can be said that the rules of the
Law of Limitation are generally prima facie with the rules of procedure and which has not
created any rights in favour of any particular person nor does they define or create any cause
of action. It has been simply prescribed that the remedy can be exercised only for a limited
fixed period of time and subsequently.
The two effective implementation which helps in for a quick disposal of a cases or matters
and which are also effective for litigation are Limitation and compensation of delay, which
plays a vital role before the court. The Law of Limitation helps to keep a check while pulling
of cases where it prescribes the period of time within which a suit is to be filled and also it is
the time which are available within which an aggrieved person can get the remedy
Aneel U 5 CPC Notes

conveniently and in an easy manner. Whereas the Law of Compensation of delay helps to
keep the principle of natural justice alive and it also helps to state the facts that when different
people might have different problem then the same kind of sentence or a same singular rule
may not apply to all of them in a same manner. Thus, it is very much essential to hear the
matter first from them and then decide accordingly whether they are fit in the criteria of the
judgment or whether they should be given another chance. So, it can be said that Law of
Limitation is very much important for the country like India and it also plays a major role in a
court of law.
3) CPC PROVISIONS RELATING TO INJUNCTIONS & INTERLOCUTORY

ORDERS.
Rooted in the principles of goodwill, equity, good conscience and the legal maxim, “Ubi jus,
ibi remedium” – where there is a right, there is a remedy – an injunction is an equitable
remedy where an individual is commanded by a court – having authority over that individual
– to perform or cease to perform a specific action, provided, if the court were not to intervene
would cause irreparable harm to the status quo of the individuals involved in the case.
To illustrate the practicality of an injunction, it can be used to force striking workers to

resume the course of their employment during the course of the civil suit between the striking
trade union and the firm which employs members of the said trade union.
An injunction is characterized by three important notions which include the presence of a

judicial proceeding, the relief which is granted is in the form of a restraint, and lastly, that the
restrained act needs to be wrongful on the grounds of equity.
Perpetual Injunction
The other broad category of injunctions and the counterpart of temporary injunction –
perpetual injunctions – as defined by Section 37 of the Specific Relief Act, 1963 is “the
decree made at the hearing and upon the merits of the suit, the defendant is thereby
perpetually enjoined from the assertion of a right, or from the commission of an act which
would be contrary to the rights of the plaintiff”.
Temporary Injunction & its basic principles

In its essence, a temporary injunction is an interim remedy to maintain the status quo of the
parties with regards to the property in dispute during the pendency of the case. The aim of
temporary injunctions in the Indian law is to protect a party to the suit against injury by
violation of his right for which he could not be adequately compensated in damages
recoverable in the action if the uncertainty were resolved in his favor at the trial. The
aforementioned aim was highlighted in the case of M/S Gujarat Pottling Co. Ltd. & Ors v.
The Coca Cola Company & Ors. (1995).
When can a Temporary Injunction be rejected

The circumstances in which a temporary injunction is granted is governed by Order 39, Rule
1 of the Code on Civil Procedure, 1908, which will be discussed later. Thus, it becomes
imperative to discuss the instances when a temporary injunction can be rejected. This is
highlighted in Section 41 of the Specific Relief Act, 1963.
Aneel U 6 CPC Notes

Restrain any person from prosecuting a judicial proceeding at the institution of the suit, in
which injunction is sought, unless restraint is necessary to prevent multiplicity of
proceedings.
1. To restrain any person from instituting or prosecuting any proceeding in a Court not
subordinate to that, from which injunction is sought.
2. To restrain any person from applying to any legislative body.
3. To restrain any person from instituting any proceeding in a criminal matter.
4. To prevent the breach of a contract the performance of which could not be specifically
enforced.
5. To prevent on the ground of nuisance, an act of which it is not reasonably clear that it will
be a nuisance.
6. To prevent a continuing breach in which the plaintiff has acquiesced.
7. When equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust.
8. When the conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance of the court.
9. When the plaintiff has no personal interest in the matter.
On Interlocutory Orders
Interlocutory orders are the extension of which temporary injunctions are a part of. They are
the final hammer for the subplots that are not related to the core of a pending suit. They settle
those subordinate issues which may be necessary for deciding the outcome of the case –
intangibly – and need a swift decision because of the time-sensitivity of those issues. These
orders exist to make sure that the involved parties’ interests are not harmed during the due
process of justice.
Achieving justice is the main aim of the Indian judiciary but achieving their aim in an
equitable process is also important. The latter is governed by interlocutory orders.
Interlocutory orders may take on many shapes and sizes including, but not limited to, notice
to conduct search and seizure, temporary injunction, payment into court, etc.
However, in the case of the Sub Committee of Judicial Accountability v. Union of India
(1991), the Supreme Court noted that an interlocutory order must not be passed if it were to
have any inference of pre-judging some important and delicate issue related to the main
matter.
Reading Rules 6-10 of the Code on Civil Procedure 1908, will give us a proper understanding
of the weight of interlocutory orders in the Indian legal system.
1. Order 39, Rule 6 talks about the power to hold an interim sale. The court may order
the sale of any movable property being the subject matter of the suit.
2. Order 39, Rule 7 talks about the detention or inspection of the subject matter of the
suit. Essentially, the court may order any individual to retain, preserve or inspect the
property of dispute.
3. Order 39, Rule 8 brings closure to rule 6 and 7 on grounds of equity. It claims that an
order under rule 6 and 7 will only be passed if:
• The applicant applies for the order after the institution of the suit.
Aneel U 7 CPC Notes

• The applicant provides notice of the application to the parties involved in the
suit.
• The other parties of the suit have been given a fair chance to argue against the
interim order.
• However, the rule is subject to the exception that if the hearing would cause
delay leading to the loss of the objective of the suit.
4. Order 39, Rule 9 talks in relation to an instance if land paying revenue is the subject
matter of the suit. It speaks about if an individual neglects paying his government
revenue or the rent to his proprietor, then the court may order the sale of the land or
tenure, as the case may be, to any party interested in buying that said land or tenure.
The proceeds from the sale can be used to compensate the defaults in the payment of
the rent.
5. Order 39, Rule 10 talks about dispute over money or any item which is capable of
delivery. If in the dispute, a party claims to have the trusteeship of the disputed item,
then the court may order that item to be deposited in the able hands of the court until
the dispute is resolved.
Conclusion
In the general understanding of injunctions in Indian jurisprudence there is intangible
presence of the Specific Reliefs Act,1963 while discussing Order 39 of the Code on Civil
Procedure, 1908. This is because the essence of injunctions is captured when the two
documents are interpreted together. Their symphony is what brings out the equity, good
conscience, and goodwill of injunctions. While considering an application for injunction, the
Court would pass an order thereupon having regard to prima facie, balance of convenience
and irreparable injury.
Aneel U 8 CPC Notes

4) APPEAL, REFERENCES, REVIEW AND REVISION.
In the Indian legal system, Review, Revision, and Appeal are different remedies available to
parties who have been aggrieved by a judicial order in both civil and criminal law.
Appeal: Appeal is a legal remedy that allows a party to challenge the correctness of a judicial
order passed against them. It is filed in a higher court and can be sought on various grounds
such as error of law, error of fact, or even to re-examine the evidence and facts that were
considered by the lower court.
According to Section 96, an appeal lies to the High Court from any 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. In other words, an appeal can be filed in the High
Court if the case involves a substantial question of law and the subordinate court has passed a
decree in appeal.
Reference: Reference is mentioned under sec113 of CPC. Where the subordinate court refers
the case involving the question of law to the High court for the opinion on that matter,
reference is made to the High court when it has reasonable doubt during any suit, appeal,
execution proceeding etc. Reference means referring a case to High court on a question of
law.
No party to the suit has the right to apply for reference. It is only the subordinate court as the
power of reference suo moto. Where there is doubt regarding the validity of any legal
provision, for matters other than the validity of legal provision, 4 the court is not found to
refer to the High Court. A Tribunal or persona designate cannot be said to be a court and no 5
reference can be made by them.
Review: Review is a legal remedy that allows a party to challenge the correctness of a
judicial order passed against them. It is filed in the same court that passed the order and can
Aneel U 9 CPC Notes

only be sought on the grounds of discovery of new and important matter or evidence, which
was not within the knowledge of the applicant or could not be produced by them in the
original proceedings.
The procedure for filing a review in civil law is provided under Section 114 of the Code of
Civil Procedure, 1908. Review can only be sought on the grounds of discovery of new and
important matter or evidence, which was not within the knowledge of the applicant or could
not be produced by them in the original proceedings.
Revision: Revision is a legal remedy that allows a superior court to examine the legality and
propriety of an order passed by a subordinate court. It is filed in a higher court and can be
sought on the grounds of error of law or of fact, which is apparent on the face of the record.
The procedure for filing a revision in civil law is provided under Section 115 of the Code of
Civil Procedure, 1908. According to Section 115, the High Court may call for the records of
any case which has been decided by any court subordinate to such High Court and in which
no appeal lies thereto, and if such subordinate court appears- (a) to have exercised a
jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
In other words, a revision can be filed in the High Court if the subordinate court has exercised
a jurisdiction not vested in it by law, failed to exercise a jurisdiction vested in it, or acted
illegally or with material irregularity in the exercise of its jurisdiction.
In conclusion, Review, Revision, and Appeal are different remedies available in the Indian
legal system to challenge the correctness of a judicial order passed against a party. The
procedure for filing each remedy and the scope of their powers differ in civil and criminal
law. It is important to understand the differences and limitations of each remedy to effectively
navigate the Indian legal system and seek justice.
Review is filed in the same court that passed the order and can only be sought on the grounds
of discovery of new and important matter or evidence, while Revision is filed in a higher
court and can be sought on the grounds of error of law or of fact. Appeal is also filed in a
higher court and can be sought on various grounds such as error of law, error of fact, or to re-
examine the evidence and facts. It is important for parties to understand the differences
between these remedies in order to choose the appropriate remedy that best suits their needs.
Aneel U 10 CPC Notes

5) WRITTEN STATEMENT, SET-OFF, COUNTER-CLAIM.
Written statement order 8

It is a pleading of the defendant in the answer of the plaint led by the plaintiff against him. It
is a reply statement of the defendant in a suit specially denying the allegations made against
him by the plainti in his plaint.
A written statement may be filed by the defendant or by his duly authorized agent. In the case
of more than one defendants, the common written statement led by them must be signed by
all of them. But written statement led by one defendant does not bind other defendants.
A written statement should be led within thirty days from the service of the summons on him.
The said period, however, can be extended up to ninety days,(Rule -1). A defendant should
present a written statement of his defence in the said period.
In written statement defendant can specifically deny the allegations made in the plaint by the
plaintiff against him. Besides this, he also can claim to set-o any sums of money payable by
the plaintiff to him as a counter defence (Order 8 Rule 6). Further, if the defendant has any
claim against the plaintiff relating to any matter in the issue raised in the plaint, then he can
separately le a counter-claim along with his written statement. It is provided in Order 8 Rule
6A to 6G of the code.
No pleading after the written statement of the defendant other than by way of defense to set-o
or counterclaim can be led.
Set off (Order VIII, Rule 6]

Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has
a claim of some amount against the plaintiff what he do is he can claim a set-off in respect of
the said amount. This right of the defendant to claim set off has been recognized under Order
8, Rule 6 of the Code.
Essential Conditions:
A defendant may claim a set-off, if:
1. The suit is for the Recovery of money;
2. The sum of money must be ascertained;
3. Such sum must be legally recoverable;
4. It must be recoverable by the defendant or by all the defendants, if not more than one;
5. It must be recoverable by the defendant from the plaintiff(s);
6. It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
7. Both the parties must fill in the defendant's claim to set-off, the same character as they
fill in the plaintiff's
Effects:
When a defendant claims set-off, he is put in the position of the plaintiff as regards the
amount claimed by him. Where the plaintiff doesn't appear and his suit is dismissed or he
withdraws, it does not affect the claim for a set-off by the defendant and a decree may be
passed in his favor if he is able to prove his claim.

Counter Claim
Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the defendant in a suit
against the plaintiff. It is a claim independent of and separable from plaintiff's claim which
can be enforced by a cross section. Counter-claim can be set up in respect of action accruing
to the defendant either before or after the filing of the suit but before the defendant has
delivered his defense or before the time fixed for delivery of his defense has expired.
Such claim should not exceed the pecuniary limits of the jurisdiction of the concerned court.
The counter-claim is to be treated as a plaint and the plaintiff can file a written statement in
answer to it. Counter-claim can be filed after filing of written statement.
In Smt. Shanti Rani Das v. Dinesh Roy it has been held that the right to file a counter claim is
referable to the date of accrual of cause of action. If the cause of and such action had arisen
before or after filing of the suit, cause of action continued up to the date of filing of the suit
and such cause of action continued up to the date of filing written statement or extended date
of filing plaintiff statement, then such counter claim can be filed even after filing the written
statement.
Who may file counterclaim?

Normally, it is the defendant who may file a counterclaim against the plaintiff. But
incidentally and along with the plaintiff, the defendant may also claim relief against the co-
defendants in the suit. But a counterclaim solely against co-defendants is not maintainable.
The effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued,
dismissed or withdrawn, the counterclaim will be decided on merits and the defendant will
have a right to get a decree for a counterclaim as claimed in the written statement. If the
plaintiff does not file any reply to the counterclaim made by the defendant, the court may
pronounce the judgment against the plaintiff in relation to the counterclaim made against him
or make such order in relation to the counterclaim as it thinks fit.268 The counterclaim shall
be treated as a plaint and will be governed by the rules applicable to plaints. Similarly, a reply
filed in answer to a counterclaim shall be treated as a written statement and governed by rules
applicable to written statements.

6) ARREST & ATTACHMENT BEFORE JUDGEMENT.
The main objective of justice and judicial procedure is to protect preserve and enforce the
rights of parties. This is done through the judgment and decree. So long as judgment and
decree are not executed, they are meaningless. Many times, the defendant try to defeat the
execution of judgment and decree of the court. Before judgment, they make such a plan such
as consumption of property, transferring it elsewhere or running away.
When the defendant becomes successful in doing this, the decree of court becomes
meaningless. Therefore, to defeat such plan of the defendant, provision has been made under
order 38 of Civil Procedure Code 1908 for arrest and attachment before judgment.
Arrest before judgment:
Under rules 1 to 4 of order 38 of the code, provision has been made for arrest before
judgment.
1. Demand for security- when at any stage of the case, if it appears from the affidavit of
the court or otherwise that the defendant with the intention of:
a. delaying the trial of the suit;
b. avoiding the order of the court;
c. creating obstacles in the execution of the decree being passed against him:
i. has run away
ii. about to run away
iii. has left the jurisdiction of the court; or
iv. about to leave the jurisdiction of the court; or
v. remove the property from the jurisdiction of the court; or
vi. has consumed the property or
vii. about to leave India so that delay or obstacle may be caused in the
execution of the decree.
Then the court will issue warrant of arrest with the intention that he should be brought
before the court and he should explain as to why he should not give security to the
court for his appearance.
If the defendant presents himself in the court and assures the court that he is willing to
give security or deposits the amount of claim of the plaintiff in the court, he will not
be arrested and the warrant of arrest will be cancelled. (Order 38, Rule 1).
In Chimanlal Vs Radhy Shayam (1972 JIJ 36), it has been said that for the purpose of
rule 1, it is not sufficient to give security, but the security must be sufficient.

2. Procedure when be becomes unsuccessful in giving security- if the defendant remains
unsuccessful in giving the desired security then under Rule 4, order 38, the defendant
will be put to civil prison till:
a. The case is decide finally; or
b. If the decree has been passed against the defendant, the decree is not satisfied.
The period of detention in civil prison will not exceed six weeks if the value of suit does not
exceed Rs. 50/- and six months, in other cases.
It is to be mentioned that in case of suits for recovery of money, no woman can be arrested.
(M/s Chelsia Mills V/s M/s Choras girl, A.I.R. 1991, Delhi 129). It is to be mentioned here
that in case of suits instituted under section 16 of the code, no order of arrest can be passed
before judgment in the following cases:
1. suit for re-possession of immoveable property;
2. suit for partition of immoveable property;
3. suit of prohibition or redemption or for redemption of mortgage of such immoveable
property;
4. suit for acquiring rights for benefits in any immoveable property;
5. suit for sale of immoveable property; and
6. Suit for creating charge on immoveable property. (Order 38, Rule 1 and section 16).
Attachment before judgment

The second method of defeating the obstacles to be created by the defendant in execution of
decree is passing order by the court for attachment of the property before judgment. Provision
has been made in this regard under rules 5 to 13 or order 38 of the code.
1. Demand for Security: under Rule 5, order 38 of the code, if the court comes to the
conclusion at any stage of the suit either from the affidavit or otherwise, that the
defendant with the intention of creating obstruction in the execution of decree passed
against him:
a. intends to consume his property; or
b. about to remove that property from the jurisdiction of the court; then the court
will direct the defendant that he should explain why security should not be
taken from him he should surrender that property or its value or any portion of
it at the disposal of the court or to give security for that (Sub rule 2 of Rule 5).
It is to be mentioned that until the court gives direction or passes orders otherwise, the
plaintiff can make demand for attachment of the property (Sub-rule 2, Rule 5) Further,
the court can pass order for conditional attachment of any property (Subrule 3 of Rule
5).
2. Procedure in case the defendant remains unsuccessful in giving security:

when the defendant remains unsuccessful in submission of proper security or could
not show any cause for it, then court under Rule 6, Order 38, will attach the property
or any portion of it which can satisfy the claim of the plaintiff (Sub-rule 1, Rule 6).
But during this period, if cause is shown by the defendant or security is given, then
the court will withdraw such order (Sub-rule 2 of Rule 6).

Thus under rules 5 and 6 of Order 38 of the code, provision has been made for
attachment of property before judgment.
The provision of rule 5, order 38 are mandatory. In Poldhar Rolling Mills Pvt. Ltd. Vs
Vishvasaraiyya Iron and Steel Company Ltd. (A.I.R. 1985, Karnataka 282), has been decided
by the court that before passing orders for attachment by any court, it should be ascertained
that strong possibility exists of creating obstacles in the execution of the decree by the
defendant.
The plaintiff will have to prove that the defendant will create obstacles in the execution of
decree (Tatanagar Transport corporation vs M/s Ajanta Enterprises, A.I.R. 1987, Orissa 107).
In M/S K.C.V. Airways limited Vs Wing Commander R.K. Balgana (A.I.R. 1998, Delhi 70),
it has been decide that the order for attachment before judgment cannot be issued so long as
all the conditions of Rule 5, Order 38 are fulfilled.

7) SUITS BY OR AGAINST MINORS & PERSONS OF UNSOUND MIND.
Order XXXII(32) of Civil Procedure Code deals with suits by or against minors and lunatics.
According to section 37 of the Majority Act, 1875, “a minor is a person who has not attained
the age of 18 years. But in the case of a minor of whose person or property a guardian or next
friend has been appointed by a Court, or whose property is under the superintendence of a
Court of wards, the age of majority is 21 years.”
Order XXXII has been enacted to protect the interest of minors and lunatics (person of
unsound mind) and to ensure that they are represented in a suit by a person who is qualified
to act as such. Owing to his want of capacity and judgment, a minor/lunatic is disabled from
binding himself except where it is for his benefit. A decree passed in favor of minor/lunatic
without appointment of a guardian is not nullity but a decree passed against a minor/lunatic
without appointment of guardian is a nullity.
Filing or Defending of Suit on Minor’s Behalf (Order XXXII, Rules 1-14)
Suits by Minor: Rules (1 to 2A) – Under these provisions, a suit by a minor should be
instituted in his name through his guardian or next friend. Under rule 2A, the Court has
power to order the next friend to furnish security for costs of defendant. The object is to
discourage vexatious litigation by the next friend of minor.
Rule 3 – Order XXXII, rule 377, where a suit is instituted against a minor the Court should
appoint a guardian ad litem to defend the suit. The appointment of such guardian or next
friend is for throughout the proceedings unless it is terminated by retirement, removal or
death of such guardian.
Qualifications as to be a Guardian or Next Friend
Under rule 4, any person who is competent in law to make a contract or who has attained
majority and is of sound mind, may act as a guardian or next friend, provided that his interest
is not adverse to that of minor, nor who is an opposite party in the suit and who has given his
consent in written to act as a guardian or next friend. However, besides all this Court may
also appoint any of its officer to act as a guardian/next friend if it is of the view that no person
is competent for that.

Retirement, Removal or Death of such Guardian/Next Friend (Rules 8-11)
A next friend cannot retire without procuring a fit person for substituting him and giving
security for the costs already incurred by him (Rule 8).
The Court may remove a next friend in the following circumstances, if:
(i) his interest is ‘adverse to that of a minor’; or
(ii) lie is so connected with the defendant as to make it unlikely that the minor’s interest will
not be protected by him; or
(iii) he does not do his duty; or
(iv) he ceases to reside within India during the pendency of a suit; or (v) for any other
sufficient cause.
Prabhudayal filed a suit for possession of the house. The suit was contested on the ground that
Ramlal was a lunatic and earlier suit instituted against Ramlal without appointment of a
guardian ad litem, the decree in the suit was a nullity. The sale in execution of the decree was
void.
The defense was accepted by Trial Court and suit was dismissed. The first Appellate Court
also upheld the decision. The Bench of the High Court also confirmed the decision of lower
courts, consequently the appellant has come up to the Apex Court by special leave. The
Supreme Court held:
The decree was passed in contravention of Order XXXII, rule 15 of the Code of Civil
Procedure, 1908 Ramlal was insane when the first suit was instituted as well as when the
house was sold in execution of decree passed in the suit. It is settled that decree passed
against a minor without appointment of a guardian null and void. This principle becomes
applicable to the case of lunatic in view of Order XXXII, rule 5 of the Code of Civil
Procedure, 1908, so that decree obtained against Ramlal be created as without jurisdiction
and void.
In this case no right could be acquired by the purchaser Prabhudayal.

8) COMMISSIONS, THEIR PURPOSE AND PROCEDURE.
A court-appointed official who is in charge of carrying out specific tasks or responsibilities on

the court’s behalf is referred to as a commission in civil litigation. The word “commission” in
the context of the Code of Civil Procedure (CPC) refers to the procedure by which the court
assigns a person to carry out specific tasks, like gathering evidence or conducting a local
investigation, that are required to decide a case.
The CPC concept of commission is crucial because it enables the court to acquire evidence
that might not otherwise be possible. For instance, it might be challenging or impossible for
the parties to the case to get a witness’s testimony in person if they are located in a different
city or nation. The court may designate a commission in these circumstances to gather the
witness’ evidence and present it to the court.
The guidelines of Order XXVI of the Code apply to the appointment of a committee under
CPC. The court may designate a commissioner in accordance with this directive to
accomplish the following goals:
1. To examine any person;
2. To make a local investigation;
3. To examine accounts or documents;
4. To make a partition;
5. To hold a scientific, technical or expert investigation;
6. To conduct a sale of property; 7. To perform any ministerial act.
An order of the court is required to designate a commissioner. The order must outline the
commissioner’s responsibilities, including when and where they are to be carried out, as well
as the reason for the commissioner’s appointment. The sum of payment due to the
commissioner for their services may also be specified in the order.
A report summarising the commissioner’s conclusions must be submitted to the court. The
report must be presented in writing within the time frame set by the court. The commissioner
must sign the report and include any supporting documentation or other proof they have
collected.
When the commissioner is carrying out his or her duties, the parties to the case have the
opportunity to be present. They also have the opportunity to question anyone who is being
questioned by the commissioner in a cross-examination.
There are some restrictions on the admissibility of the commissioner’s testimony in court. For
instance, a witness who is questioned by a commissioner but is not present for a cross-
examination in court might have less credibility than if they had appeared in person.
To sum up, the CPC notion of commission is crucial because it enables the court to obtain
evidence that might not otherwise be possible. The requirements of Order XXVI of the Code
govern the commissioner’s appointment, and the commissioner is expected to submit a report
of their findings to the court. There are some restrictions on the admissibility of the
commissioner’s testimony in court.

In addition to the foregoing, it is significant to remember that only the court, not the parties to
the case, has the authority to designate a commission. If the court decides it is essential for a
fair and timely resolution of the case, it may choose to appoint a commissioner.
Additionally, the commissioner chosen by the court is a court officer and is subject to the
same responsibilities and obligations as every other court officer. The commissioner must
behave impartially, objectively, and without showing preference to any of the case’s parties.
It’s also critical to remember that selecting a commissioner may occasionally cause a delay in
the case’s settlement. This is so that both the commissioner and the parties have enough time
to complete their tasks and review and react to the commissioner’s report, respectively.
Due to the commissioner’s right to compensation for services rendered, the appointment of a
commissioner in some circumstances may also increase the expense of litigation. The
commissioner’s fees and expenses may be paid in full by one party, or the court may direct
that all costs be covered by one of the parties.
The appointment of a commission can be a useful instrument for gathering information and
settling disagreements in civil litigation despite these possible drawbacks. The commission
can assist in ensuring that cases are decided on the merits and in accordance with the law by
enabling the court to acquire evidence that might not otherwise be available.
In general, the CPC notion of commission is an important one that is crucial to civil litigation.
The appointment of a commissioner has some restrictions and possible drawbacks, but the
advantages of gathering important evidence and guaranteeing a fair and prompt resolution of
the case make it a crucial tool for the court.
In summary, the CPC’s notion of commission gives the court a useful tool for obtaining
evidence that might not otherwise be accessible. In order to determine the matter in a fair and
timely manner, the court may appoint a commissioner under the guidelines of Order XXVI of
the Code. The appointed commissioner is a court employee and is subject to the same
responsibilities and requirements, including impartiality and objectivity, as any other court
employee. The appointment of a commissioner is a crucial instrument in civil litigation even
though it might cause delays and higher costs because of the
advantages it has in terms of gathering important evidence and guaranteeing a fair resolution
of the case.

9) DISCOVERY, INSPECTION AND INTERROGATORIES.
There are two types of laws in a legal system- substantive laws and procedural laws. While
substantive laws contain the rights and duties of the citizens, the procedural laws determine
the procedure for enforcing such rights and regulations. Therefore, procedures are one of the
essential elements of rule of law. The code of civil procedure, 1908 is a procedural law which
determines the administration of civil proceedings in India. It provides separate chapters to
determine that both the parties of a conflict get a chance of fair trial.
Order XI of CPC provides for provisions which enables the parties to exchange information
about the witnesses and evidences produced before the court during the trial. The procedure
of discovery comes under this order. This procedure deals with ‘Facto probanda’i.e., the facts
with constitute the case of a party and does not deal with ‘Facto probantia’i.e., the facts which
will be considered as evidence if proven. Thus, Only ‘Facto Probanda’ can be asked by the
parties.
DISCOVERY
Discovery is defined under order XI of the Civil Procedure Code, 1908. This term refers to a
pre-trial process in which each party is given opportunity to obtain evidence from the
opposite party. It is a formal process where each party can question the other party about the
witnesses and evidence that will be presented to the court during the trial. This is done with
the object of making both parties aware about the plaint made and the issues raised.
The parties can ask to court to pass an order for the discovery of required facts and documents
from the opposite party. The court has the discretion to decide whether the material asked by
the other party is covered as per the scope of ‘Discovery’ under CPC.
Discovery can be of two types- discovery of documents and discovery by interrogatories.

Discovery of documents is where one party compels the other party to produce the
documents, they are relying on other than the evidence. Whereas, discovery by interrogatories
is when the same is asked through questions.
DISCOVERY BY INTERROGATORIES
“Discovery by interrogatories” is defined as following in the CPC Order XI:
“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.”
Interrogatories are formal written questions that are administered by the parties to the
opposite party with the leave of the court. The party to whom the questions were asked have
to give reply to the other party in writing and under oath. Thus, when the case is disclosed by
one party with affidavit and under the oath to the other party, on the direction the court it is
known as ‘Discovery by interrogatories.’

Procedure
• The parties which need the information shall file an application before that court stating
the subject of the interrogatories and as per Rule 2 the court shall decide in 7 days.
• Both plaintiff and the defendant have the right to conduct interrogatories. It can also be
conducted by one plaintiff to another plaintiff or by one defendant to another defendant.
• According to Rule 2, While deciding upon such application the court shall take into
consideration the following things-
 Any offer which may be made by the party to be interrogated to deliver
particulars;
 to make admissions;
 to produce documents relating to the matters in question or any of them.
• The court can further also consider the possibility of disposing the suit fairly, if necessary,
in a case or for saving costs.
• The parties cannot deliver more than one set of interrogatories to the same party without
an order for that purpose and the interrogatories which do not relate to any matters in
question in the suit are irrelevant. The set of questions provided can only be ‘question of
fact’ and not ‘question of law’.
• The party which was administered the interrogatories will have to file the affidavit to
answer within 10 days of the service. And if they fail to do so then the suit will be
dismissed in the case if the party is the plaintiff and if the party is the defendant, their
defence may be struck off.( Rule 21)
• According to Rule 4 of order XI interrogatories shall be filed as per the form provided in
Appendix C form no. 2 of CPC. And the reply to the interrogatories is filed with an
affidavit in the form provided in appendix C form no. 3 of CPC. They can be varied as per
need.
JUDGEMENTS
Samir Sen v Rita Ghosh In this case the petitioner filed an application under order XI five
months after the closure of evidence of plaintiff and respondent in trial court. The lower court
dismissed the application on the ground of delay in time. The aggrieved then filed an appeal
in the High court.
The Jharkhand High Court dismissed the writ petition and observed that as per Order XIII
CPC, the parties are required to produce their original documents on which their claim is
founded at the time of presentation of the plaint or while filing the written statement of
defence.
CONCLUSION
The provisions of Order XI in the Civil Procedure Code, 1908 ensure that both the parties
have equal opportunities and a fair trial is conducted. These provisions are important in our
legal system as their main objective is to save the court’s time and cost of litigation to the
parties. This provision grants the parties “right to information” from the opponent parties.
The process of interrogatories narrows the issues and makes the trial less timeconsuming.

10) CREATION OF OWNERSHIP BY ADVERSE POSSESSION UNDER
LIMITATION ACT.
The Limitation Act of 1963 in India sets time constraints for initiating legal actions to ensure
timely resolution of disputes. It defines specific periods within which a person must file a
lawsuit, varying based on the nature of the case. The Act aims to prevent the filing of stale
claims, promoting judicial efficiency. For example, it stipulates a general limitation period of
three years for most civil suits, but certain actions, like recovery of money or for specific
contracts, may have distinct timelines. Understanding and adhering to these limitations is
crucial for individuals seeking legal remedies and contributes to the overall efficacy of the
legal system.
The concept of adverse possession stems from the idea that land must not be left vacant but
instead, be put to judicious use.
Adverse Possession:
Adverse possession refers to the acquisition of property through hostile, continuous,
uninterrupted, and peaceful possession.
The concept aims to prevent long-standing doubts over land ownership and to benefit society
by allowing someone to make use of idle land left by the owner. It also provides protection to
individuals who have regarded the occupant as the rightful owner of the property.
The law of limitation was introduced in India through the "Act XIV of 1859" and underwent
significant changes with the enactment of the Limitation Act in 1963.
Major Provisions of the Limitation Act, 1963:

• Burden of Proof: The 1963 Act shifted the burden of proof of adverse possession to
the claimant, thereby strengthening the position of the true owner.
• Acquisition of Ownership: Under the Limitation Act, 1963, any person in possession
of private land for over 12 years or government land for over 30 years can become the
owner of that property.
• To claim adverse possession, the possession must be open, continuous, and adverse to
the rights of the true owner for the required statutory period.
Main Ingredients of Adverse Possession:

The Supreme Court, in the 2004 case of Karnataka Board of Wakf v Government of India,
outlined the essential elements for proving adverse possession.
Claimants must establish the date of possession, the nature of possession, awareness of
possession by the true owner, the continuity of possession, and that the possession was open
and undisturbed.
Criticism and Recommendations:

In the 2008 case of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others, the
Supreme Court criticised adverse possession as being unduly harsh on the true owner and
benefiting dishonest trespassers. The court urged the government to reconsider and amend the
law, recognizing the necessity for a fresh perspective on adverse possession.
Arguments Against Adverse Possession:

• Promotes False Claims: Adverse possession promotes false claims and burdens the
judicial system with avoidable litigation.
• Lack of Consent: Adverse possession allows someone to acquire property without the
consent or knowledge of the true owner. This is considered unfair and unethical, as it
disregards the owner's rights and denies them the opportunity to make decisions about
their own property.
• Inequitable Outcome: Adverse possession can lead to unjust outcomes, especially

when the true owner is unaware of the adverse possessor's occupation. The true owner
may suddenly discover that their property has been taken away by someone who had
no rightful claim to it, resulting in a loss of property and often emotional distress.
In conclusion, adverse possession, as governed by the Limitation Act, provides a

mechanism for individuals to acquire ownership of property through continuous and open
occupation. The Act establishes the temporal framework within which adverse possession
must occur for it to be legally recognized. Understanding the elements of actual, exclusive,
open, and continuous possession, along with the intent to possess, is crucial for anyone
seeking to establish ownership through adverse possession.

11) STAY OF SUIT & RES JUDICATA, SUMMARY SUITS AND THEIR
PROCEDURE.
Ans) Introduction
The judiciary always refers to certain principles, doctrines, and precedents to pronounce
judgment in any suit. These doctrines play an immense role to make the judiciary work
efficiently and pace the speed of delivering judgment. In our country, the litigation process is
very time-consuming and expensive due to the large number of cases filed every day. Hence,
there are two doctrines, i.e., res judicata and res sub judice, under the Code of Civil
Procedure, 1908 (CPC), which aim to provide efficiency and speedy process during
proceedings.
Res sub judice.
Sub-judice is a Latin maxim meaning ‘under judgment’ or ‘under a judge’, or a matter ‘under
consideration’. This maxim primarily deals with the ‘stay of suits’ with the same cause of
action and matters which are pending before the same court or in separate courts. The
doctrine of Res Sub-judice means ‘stay of suit’. In other words, when two or more than two
cases are filed in two or more different courts with the same subject matter between the same
parties, the competent court has the authority or power to ‘stay proceedings’ of another court.
More precisely, any subject matter or suit of the same parties litigating under the same title,
with the same issue and cause of action, as in the previous suit then the secondly instituted

suit is deemed to be stayed. The stay of suits can only be done by the competent courts
having jurisdiction and inherent powers.
In Indian law, Section 10 of the CPC (Code of Civil Procedure) deals with the concept of Res
Sub-judice. The scope of Section 10 of the CPC (Code of Civil Procedure), 1908, deals with
res Sub-judice which states ‘stay of suit’ as “No Court shall proceed with the trial of any suit
in which the matter in issue is also directly and substantially in issue in a previously instituted
suit between the same parties, or between parties under whom they or any of them claiming
litigating under the same title, where such suit is pending in the same or any other Court, in
India, having jurisdiction to grant the relief claimed.”
In Indian Bank v. Maharashtra State Co-Operative Marketing Federation (1998), the
Supreme Court stated that the purpose of the doctrine of res sub judice is to avoid
contradictory rulings on the subject at hand by preventing courts with jurisdiction from trying
two parallel matters at once.
Example
Wife A filed a suit for separation of conjugal life and custody of minor child against husband
B. Subsequently husband B claimed custody of minor child by filling another suit against
wife B. The second suit liable to stay under section 10 of CPC,1908.
Purposes of Res sub-judice

The section -10 intends to protect a person from multiplicity of proceedings and to avoid a
conflict of decisions. It also protect the litigant people from unnecessary harassment. It also
aims to avert (avoid) inconvenience to the parties and gives effect to the rule of res judicata.
Purpose in short
 Avoid wasting Court Resources.

 Avoid Conflicting decisions.
 Avoid multiplicity of suit.
What is res-judicata?
Under section 11 of the Code of Civil procedure 1908 , provision has been made regarding
res-judicata. According to this, no court will try any suit or any issue in the suit in which that
issue has been decided between that parties to the suit or any other parties under them for
whose rights the suit has already been filed in any court of competent jurisdiction, heard and
decided by that court or any point has been raised in the subsequent suit which has already
been heard and decided by any court of competent jurisdiction.
It means that when any suit on certain issues has been heard by the court for this parties, then
the same parties cannot bring the suit on the same points which have been already heard and
decided by the same or any other court prior to the court.

Thus the doctrine attaches importance to one decision for one case and prohibits another.
(Narayanam Chettiyar Vs Annamlle Chettiyar, A.I.R. 1959, SC 275).
The main objective of this doctrine is to avoid multiplicity of suits. Had thus doctrine not
been there, there would been no end to litigation and no decision would have been final. One
individual could have filed suit on the same point many times.
Broadly, there are three objectives of this doctrine:
a. end of litigation;
b. security against double suits;
c. to give finality to the decision (Gulam Abbas Vs State of Uttar Pradesh, A.I.R.
1981 SC 2198).
In Satya Charan Vs Dev Rajan (A.I.R. 1962, SC 941) the Supreme Court has decided that
the doctrine of res-judicata is based on the need of giving final shape to judicial decisions.
According to this, any case decided once cannot be reopened for decision.
This doctrine can be clarified by an example. A brings a suit against B in the capacity of
owner on the basis of contract which is rejected. Then A again brings suit against B on the
basis of same contract in the capacity of agent. This was prohibits on the principle of owner
on the basis of contract which is rejected. Then A again brings suit against B on the basis of
same contract in the capacity of agent. This was prohibited on the principle of res-judicata.
Purpose
Res judicata
The doctrine of res judicata applies to all civil and criminal cases and is based on the
principles of justice, equity, and good conscience. The main aim of the doctrine is to restrict
the process of re-litigation. The other purpose of the doctrine is as follows:
1. It prevents the time and resources of the court from being misused.
2. It provides a safeguard for the defendant from damage.
3. It prevents the conflict between the parties in a matter that has been officially
resolved by bringing a verdict to an end and barring any future claims.
4. It prevents the confusion that might be caused by multiple judgments in a single
suit.
Res sub judice
The doctrine of res sub judice also aims to save the judiciary time from unnecessary suits.
Apart from this, there are a few more objectives of the doctrine which are as follows:

1. It allows the plaintiff to file one suit for all the issues and facts against the same
defendant.
2. Avoid contradictory decisions on a similar matter in issue.
3. Stop the courts with concurrent jurisdiction from concurrently hearing and making
decisions on two parallel lawsuits involving the same claim, same issue, and
similar remedy.
4. Protect the defendant from paying compensation or damages twice.
5. Prevent unnecessary confusion.
Essentials
Res judicata
The essentials of res judicata are as follows:
1. There should be one former and one subsequent suit filed.

2. The matter is directly and substantially related to the subsequent suit.
3. The parties who filed suit must be similar to the parties who filed the former suit
also.
4. The titles of both suits are also the same.
5. The suit must be filed in the competent jurisdiction.
6. The court must have previously heard and decided the issue that is directly and
substantially in question in the subsequent suit.
Res sub judice
The essentials of res sub judice are as follows:
1. There must be two civil suits between the same parties.

2. The former suit is pending before the competent court for final decision and the
subsequent suit is brought.
3. The subsequent suit is also filed under a similar title to the former suit.
4. Any suit that is pending in a foreign court does not invoke Section 10 of the Code.
5. If the subsequent application is filed before the Tahsildar and the suit is pending
before the court, then it will fall under the scope of the doctrine.
6. The date of the plaint presentation is considered for the institution of the suit, and
the appeal is also included in the suit.
7. The court must have the inherent power to stay the proceedings.
8. If a decree is passed for violation of Section 10 will be null and void.
9. The parties can waive their right under Section 10.
10. The court has the power to pass interim orders.

In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (1961), the
Supreme Court stated that Section 10’s requirements must be followed, and the court has no
discretion.
In Dr. Guru Prasad Mohanty and Ors. v. Bijoy Kumar Das (1984), the Orissa High Court
stated that the objective of Section 10 is to prohibit courts with concurrent jurisdiction from
hearing and ruling on two parallel lawsuits involving the same claim, same issue, and
identical relief at the same time.
Exceptions
Res judicata
The doctrine of res judicata restricts the parties from re-filing the litigation procedure, but
there are certain circumstances when this doctrine is not applicable.
1. When the decree and order have been obtained by committing fraud and
misrepresentation of the facts or issues.
2. When the judgment is not pronounced on the merits.
3. When the special leave petition was dismissed without making a proclamation or
determination of the judgment.
4. When the subsequent lawsuits have a different cause of action. If a later lawsuit
has a separate cause of action, the court cannot dismiss it.
5. When the court did not have competent jurisdiction in the former suit.
6. When there is a question of law.
7. When an interlocutory order had been passed in a former suit.
8. If there is any amendment to an existing law that grants new rights to the party
then the doctrine will not apply.
9. When the suit was dismissed by default.
10. If the party does not raise a plea for res judicata.
Res sub judice
There are certain cases where the doctrine of res sub judice is not applicable. These are as
follows:
1. When the claims in each suit are unique from one another.
2. When there are both common and unique issues, then this rule does not apply.
3. When there are different issues between the same parties.
4. All of the issues from the earlier suit don’t have to be raised in the later litigation
for Section 10 to be applicable.

Difference between Res Judicata and Res Sub-judice
Serial
Res Judicata Res Sub-judice
Number
It is a Latin maxim meaning ‘matter It is a Latin maxim meaning ‘under

1.
has been adjudicated’. judgment’.
It is applied to a matter that is already It is applied to a matter which is

2..
decided or adjudicated. pending.
The concept of Res Judicata is The concept of Res Sub-Judice is

3.
embodied under Section 11 of CPC. embodied under Section 10 of CPC.
A decision must be given in the Two suits must be presented, Formerly

4. previously instituted suit by a court of or previously instituted suit and
competent jurisdiction. subsequently instituted suit.
The former suit and subsequent suit

The former suit and subsequent suit
5. must have been litigated under the
must be litigating under the same titles.
same title.
It bars the trial of a suit, decided in a It bars the trial of a suit, pending
6.
former or previous suit. before the former or previous suit.
Overview
The summary suit is given under XXXVII of the Code of Civil Procedure, 1908. It is
used for effectively enforcing a right. Courts pass judgment without hearing the
defense in a summary suit. This appears to be violative of the principle of natural
justice Audi alteram partem (let the other side be heard as well) but this procedure is
only followed in limited cases. It is used in cases where the defendant has no defense
and applies to limited subject matters.
What is the object behind the summary suit?
The object behind the summary suit are:
 To Ensure An Expeditious Hearing
 To Prevent Unreasonable Delay By The Defendant
 To Ensure The Defendant Doesn’t Have A Frivolous Defense
 To Assist Expeditious Disposal Of The Suit
In the case of Navinchandra Babulal Bhavsar v. Bachubhai Dhanabhai Shah [AIR 1969
Gujrat 124 (128) DB], the Gujarat High Court opined that the purpose of
enacting summary suits is to boost the confidence in commercial cases that their
money claims would be expeditiously decided and their claims will not remain
pending for years. The object of the summary suit is to aid commercial transactions
by a swift redressal mechanism.
Where can a summary suit be instituted?

Summary suits can be instituted in Courts of Small Causes, City Civil Courts, High
Courts, and any court notified by the High Court. The High Courts have the power to
restrict, enlarge or vary the categories of suits brought under this order.
Order XXXVII Rule 1 Sub-rule 2 provides classes of suits where it can be instituted.
 Bills Of Exchange
 Hundies
 Promissory Notes
 Suit Where The Plaintiff Seeks Only To Recover A Debt
Where can plaintiff file summary suit?

A plaintiff can file a summary suit in the court that has jurisdiction over the area where the
cause of action arose, or where the defendant resides or carries on business. In other words,
the suit can be filed in the court that has territorial jurisdiction over the matter.
Summary suits can be instituted in Courts of Small Causes, City Civil Courts, High Courts,
and any court notified by the High Court. The High Courts have the power to restrict, enlarge
or vary the categories of suits brought under this order.
What is the procedure for a summary suit?
Rules 2 and 3 of the Code provide the procedure of summary suits. After the
summons has been issued to the defendant, he is not entitled to defend the summary
suit unless he makes an appearance. If the defendant defaults, the plaintiff will be
entitled to an ex parte decree. If the defendant appears, he must apply for leave to
defend within 10 days from the date of service of summons upon him. Leave will only
be granted if his affidavit discloses facts that may entitle him to defend.
After the institution of a summary suit, the defendant should be served a copy of the
plaint and summons in the prescribed form. The defendant has to make an appearance
within 10 days of service of summons. If the defendant makes an appearance, the
plaintiff shall serve him a summons for judgment. Then the defendant has to apply for
leave to defend the suit. Leave may be granted to him unconditionally or what the
court deems fit. If the defendant doesn’t apply for leave to defend, the plaintiff
becomes entitled to judgment. If conditions on which leave was granted did not
comply the plaintiff becomes entitled to judgment again. Order XXXVII Rule 7
provides that procedure in summary suits shall be the same as the procedure in
ordinary suits.

12)WRIT OF SUMMONS AND MODES OF ITS SERVICE.
Summon occupies an important place in judicial administration. It is well known word I

judicial procedure. Normally, it is a convenient method by which any party, individual,
witness or defendant can be asked to present himself before the court. The order is issued to
any party, individual, witness and defendant to present himself before the court by means of
summon.
Therefore, summon is an order of the court which is issued to any person to present himself
before the court. It is issued to defendant after the case is filed by the plaintiff.
Normally, summon is issued to defendant to present written statement within a period of 30

days. But under special circumstances or reasons, this period may be extended to 90 days by
the court (order 5, rule 1).
The copy of plaint should be included with the summon. Without this, the service of summon
is not considered valid (Lakshmi Bai Vs Keshari Mal Jain 1995, MPLJ 105).
The following are the requisites of a valid summons:

it should be signed by the presiding officer issuing the summons or by the officer appointed
for that purpose;
the seal of the court should be affixed on it;
the copy of plaint should be enclosed;
the date, place and time should be mentioned when any individual and his advocate is to
present in the court;
the purpose of issuing summons should be mentioned
if the summon is issued to call any document, then full particular of that document should be
given.
WRIT OF SUMMON
A writ of summons is a court document that commences legal proceedings and informs the
defendant that the plaintiff has started civil proceedings against him in a court of law. It
requires the defendant to enter an appearance if he wishes to dispute the claim.
A writ of summons is often preceded by a letter of demand setting out the claims against the
recipient. Unlike a writ of summons, a letter of demand is not a formal court document, and it
does not start any formal legal proceedings. It merely informs the recipient of the claim and
that legal action will follow if the demands aren’t met. If the letter of demand is not complied
with, the claimant can decide whether to proceed with legal action or not.

If the claimant/plaintiff decides to proceed with legal action against the defendant, issuing a
writ of summons will be the first step to commence with civil proceedings.
Filing a writ of summons

The plaintiff can either file the writ of summons personally or through a lawyer. Filing is
usually done electronically through eLitigation. The writ will then be processed and issued by
the court for service on the defendant or their lawyers.
Legal proceedings will not continue until the writ is served on the defendant.
Modes of Service:
Under Rule 12, order 5 of Civil Procedure Code 1908, various modes of service of summons
have been described.
These modes are as follows:

Personal Service:
This is the most popular method of service of summons. Under this, the copy of summons is
given to the defendant. The signature of the defendant are taken on the second copy. Such
service may be effected on the authorized agent of the defendant (Order 5, Rule 15).
Service by fixing the Summons:

This is the second method of service of summons. When the personal service is not possible;
then the copy of the summons can be affixed on that building; gate or at such visible places
where that person;
resides; or
does his business; or
works himself for profits or gains (order 5, Rule 17).
When service of summons is effected by above method, then the officer who effects such
service by this mode will submit his report to the court mentioning the reasons for such
service. The names and addresses of those persons will be written who have identified such
house.
When summons have been issued on both husband and wife both, and the husband has
refused to take summons; the service of summons on wife could not have been made because
she was inside the house; then the affixing the summons on the visible portion of the house
was considered proper (Meera Rani De Vs Goswami, A.I.R. 1977, Calcutta 372).
Substituted Service:
The third method of service of summons is substituted service. Its mention has been made
under order 35, Rule 20 of the code. This mode of service is used only when;
the defendant tries to avoid taking summons, or

the summons could not be served by other normal methods.
Under such conditions, the summons can be served by using the following methods:
by affixing one copy of the summons on the consoecuous place of the court;

by affixing the conspicuous place of the resident of the defendant at his place of business or
at the place where he works and
by publishing in the daily newspaper circulating in that area.
This type of service has the same effect as the effect of personal service. In Mrs. Rampyari
Devi Vs Additional District Judge (second) Ajamgarh [(A.I.R. 1989, Allahabad 93] the
publishing of summons in newspaper was held as valid service of summons.
Service of summons by post:

Under Rule 9, order 5 of the code, the service of summons can be also be made by following
methods:
By registered post;
By speed post;
By courier service;
By fax message;
By electronic mail service.
When a summon is sent by registered post then the acknowledgement si signed by the
defendant or his agent. It is sufficient service of summons. If the defendant refuses to take
this, it is also considered as sufficient service (Sameer Snigdha Chandra Vs Pranya
Bhushna Chandra, A.I.R. 1989, Orissa 185).
Service of Summons on the defendant leaving in the jurisdiction of other court:

If the service of summons is to be effected on the defendant who is detained in the prison,
their for such service, the incharge of such service prison shall be:
informed or
summon shall be sent to him by post; or
by courier service; or
by fax message
by electronic mail service.
The incharge of such prison shall effect the service fo such summons on the defendant (order
5, Rule 24).
Service of Summons Outside India:

If the service of summon is to be effected on such person who resides outside India and his
representative or agent does not reside in India, then summons shall be rent to him;
by post;
by courier services;
by fax message;
by electronic mail service (order 5, Rule 25)
if such defendant resides in Bangladesh or Pakistan, then the summons shall be sent to any
court in that country.
Service of Summons by Political Agent or Court:

Another mode of service of summon in other countries has been stated under order 5, Rule 26
of the code. According to this, summons shall be sent to the political agent or court of that
country under whose jurisdiction such defendant resides, does his business or works for

profits or gains.
Service of summons on the Public Officer:

If the service of Summons is to be effected on:
any public officer

any employee in service of Railway Company or
on local officer.
Then summons shall be sent to the Head of such Office under whose subordination such
officer works. The head will effect the service of such summons (order 5, Rule 27).
If the service of summons is to be made on such officer who is engaged in army, Air Force of
Navy, then the summons shall be sent to such commanding officer. The commanding officer
shall effect service of such summons on soldier, soulor or airman (order 5, Rule 28).
13) SUIT BY OR AGAINST INDIGENT PERSON.
Any person who has a right or an interest in the subject matter of the dispute may file a civil
suit to claim that right or interest. However, such a person is required to pay court fees to the
court for the adjudication of his rights. The court fee is determined by the value of the subject
matter in dispute. There may be cases in which a parson has a substantial interest in the suit
property, but he does not have the means to pay for the court fees. In that case, how would he
be able to file his suit without paying anything as court fees?
What is the Meaning of Suits by Indigent Persons?
To no one will we sell, to no one will we deny or delay right or justice.[1]

Order XXXIII of the Civil Procedure Code, 1908 (hereinafter as CPC) deals with Suits by
Indigent Persons. An indigent person is one who is not financially stable to proceed with the
filing of a suit. Earlier the suit was also referred as 'a pauper suit' but due to social standards it
has been renamed. Order XXXIII, Rule 1 defines an indigent person. Under these provisions
the aim is, without payment, to make it possible for persons too poor to pay Court fees.
Order 33 of the Code of Civil Procedure provides for civil suits that may be filed by a person
even without payment of a court fee. Therefore, a suit instituted without paying court fees by

a person who is incapable of paying court fees is characterized as a suit instituted by an
indigent person or a suit instituted in forma pauperis.
Suit Against an Indigent Person

Filing a suit against an indigent person can be challenging. While legal actions are designed
to address grievances, it's crucial to consider the person's financial situation. Pursuing a case
against someone without means may result in limited recourse. Courts may provide waivers
or alternative dispute resolution methods. It's essential to balance justice with empathy,
ensuring that legal proceedings don't unduly burden those already struggling. Exploring
options like pro bono representation or mediated settlements can foster a more equitable
resolution, acknowledging the complexities of the individual's circumstances.
Legal Provisions
Legal provision for the institution of suits by an indigent person has been provided under
Order 33 of the Code of Civil Procedure. This order consists of 18 rules that provide details
on procedure, such as how permission for filing a suit by an indigent person may be obtained,
if such permission has been obtained by misrepresentation, how it is to be withdrawn, and
how the pleader is to be appointed to represent the indigent person's case after it’s filed.
Who is an Indigent Person?
A person is an indigent person if he does not have sufficient means to pay the fee prescribed
by law for such a suit. Here it is clear that a person may have means for his livelihood that
consist of property that is exempt from attachment in the execution of a decree and the
subject-matter of the suit. So apart from the subject matter of the suit and such other property
that cannot be attached in execution of a court decree, an indigent person does not have other
property or means to pay for the prescribed court fees.
However, there may be a case where no such fee is prescribed. In that case, a person is said to
be an indigent person if he is not entitled to property worth one thousand rupees other than
the property exempt from attachment in execution of a decree and the subject-matter of the
suit.
Moreover, any property that is acquired by a person after the filing of the application for
permission to sue as an indigent person and before the decision on the application shall be
taken into account in deciding whether the applicant is an indigent person or not.
Furthermore, if a suit is filed by the plaintiff in a representative capacity, the question whether
he is an indigent person shall be determined with reference to the means possessed by him in
such a capacity.

Therefore, a person shall be deemed to be an indigent person if he does have means
exceeding one thousand rupees in value. However, if such a person has property worth more
than a thousand rupees, it is insufficient to pay the fees prescribed by law. Without any doubt,
property that is either the subject matter of a dispute or that is exempt from attachment in
execution of a decree shall not be considered to be property in his possession for the purpose
of determining his status as an indigent person.
Who is Included in "Person"?
The word "person" mentioned in Order 33 of the Code of Civil Procedure shall include both a
natural person as well as a legal person such as a company or a body corporate. Therefore, a
company can also maintain an application under Order 33 Rule 1, seeking permission to file a
suit as an indigent person.
What property should not be considered for the determination of an "indigent person"?
For the purpose of determining a person as an "indigent person," the property that is exempt
from attachment and the subject of the suit are not to be taken into consideration.
Conclusion
According to the Indian Constitution, every citizen has a fundamental right to free and fair
justice. Further justice is not only done, it is seen to be done. Order 33 of the Code of Civil
Procedure implements the fundamental right to free justice by allowing a person to exercise
his rights without paying any court fees in order to assert his rights and interests. However,
certain conditions must be met before taking advantage of these provisions.

14) PROVISIONS RELATING TO FRAMING OF ISSUES AND
JUDGEMENT ON ISSUES.
Introduction
The term "issue" in a civil case means a disputed question relating to rival contentions in a
suit. It is the focal point of disagreement, argument or decision. It is the point on which a case
itself is decided in favour of one side or the other, by the court. Framing of issues is probably
the most important part of the trail of a civil suit. For a correct and accurate decision in the
shortest possible time in a case, it is necessary to frame the correct and accurate issues.
Inaccurate and incorrect issues may kill the valuable time of the court. In Siddhi Chuni Lal
vs. Suresh Gopi kishan, it was observed that if correct and accurate issues were not framed, it
leads to gross injustice, delay and waste of the court's valuable time in deciding the matter.
Definition of issues
Issues mean a single material point of fact or law in litigation that is affirmed by one party
and denied by the other party to the suit and that subject of the final determination of the
proceedings. In Howell v. Dering, the court held that, an issue is that which, if decided in
favour of plaintiff, will in it give a right to relief; and if decided in favour of the defendant,
will in itself be a defence. Issues arise when a material proposition of fact or law is affirmed
by one party and denied by the other party to the suit.

Framing of Issues: (Order XIV, Rule 1-6):
The process of framing issues in a civil case is governed by Order 14 of the CPC. Issues are
essentially questions that need to be answered during the course of a trial. Framing issues
serves several purposes, including defining the scope of the trial, focusing the parties on the
key points of contention, and providing clarity for the court in adjudicating the matter.
Pleadings:
The foundation of framing issues lies in the pleadings of the parties. Pleadings are the written
statements of facts and claims submitted by each party to the court. These pleadings help
identify the disputed and undisputed facts, forming the basis for framing issues.
Determination of Material Facts:
The court determines the material facts from the pleadings, which are the facts essential for
deciding the case. These material facts are then framed into specific issues that the court
needs to address.
Formulation of Issues:
The court, based on the material facts, formulates the issues that need determination. The
framing of issues involves defining the specific points on which the parties disagree and
which require resolution.
Concise and Clear:
The issues framed should be concise, clear, and devoid of unnecessary details. This ensures
that the trial stays focused on the essential points and does not get sidetracked.
Amendment of Issues:
The court has the authority to amend or add issues during the course of the trial if it deems
necessary for the just decision of the case.
Admissions and Denials:
Issues are often framed based on the admissions and denials made by the parties in their
pleadings. Admitted facts may not require detailed adjudication, while disputed facts become
the crux of the trial.
Judgment on Issues: (Order XX, Rule 4-8):

Once the issues are framed, the court proceeds to hear evidence and arguments from both
parties. The judgment on issues is the court's decision on each framed issue, determining the
rights and liabilities of the parties involved.
Burden of Proof:
The party making an affirmative claim has the burden of proving the facts supporting that
claim. The court evaluates the evidence presented by both parties to determine the credibility
and weight of the arguments.
Admissibility of Evidence:
The court considers the admissibility of evidence during the trial. Only relevant and legally
admissible evidence is considered in the decision-making process.
Examination and Cross-Examination:
Witnesses may be examined and cross-examined to establish or challenge the veracity of the
evidence presented. The court evaluates the credibility of witnesses in reaching its judgment.
Arguments of Counsel:
The legal representatives of the parties present their arguments, relying on legal principles
and precedents to support their case. These arguments contribute to the court's understanding
of the legal aspects of the issues.

Precedents and Case Law:
The court may refer to precedents and case law to interpret legal provisions and apply
established principles to the facts of the case.
Decisive Pronouncement:
The judgment on each issue involves a decisive pronouncement by the court. The decision
can be in favor of one party, both parties, or none, depending on the court's evaluation of the
evidence and legal arguments.
Reasoned Judgment:
The court is generally required to provide a reasoned judgment, outlining the basis for its
decision on each issue. This ensures transparency and allows the parties to understand the
rationale behind the court's conclusions.
Res Judicata:
Once the court pronounces judgment on the issues, the principle of res judicata comes into
play. It prevents the same issues from being re-litigated between the same parties in
subsequent proceedings.
Finality and Appeal:
The judgment on issues may conclude the trial at the trial court level. However, dissatisfied
parties have the right to appeal to higher courts, seeking a review of the judgment on legal
and factual grounds.
In conclusion, the framing of issues and the subsequent judgment on these issues in the CPC
form the core of the trial process in civil cases. These procedures aim to ensure a fair and just
resolution by systematically identifying, evaluating, and deciding the key points of
contention between the parties. Adherence to these procedural steps enhances the integrity
and effectiveness of the civil justice system.
15) PROVISIONS RELATING TO WRITTEN STATEMENT, SET OFF AND
COUNTER CLAIM.
A civil suit is instituted by filing a plaint in the appropriate court which has jurisdiction over
the subject-matter. A plaint is filed by the plaintiff. Similarly, the defendant has to file a
written statement, i.e., response to the content in the plaint. This written statement, in some
cases, is accompanied by set-off and counter-claim. So, set-off and counter-claims are the
cross-claims done by the defendant and these cross-claims cannot be contested unless they
are accompanied by the written statement. A written statement is a reply to the plaint, and
such reply has to be given within 30 days the date of the filing of the plaint.
Written statement order 8 (Order VIII, Rule 1-10):

Introduction:
First of all, we should know that what is written statement. Actually, it is a pleading of the
defendant in the answer of the plaint led by the plainti against him. It is a reply statement of
the defendant in a suit specically denying the allegations made against him by the plainti in
his plaint. The provision regarding the written statement has provided in the Code of Civil
Procedure, 1908.
Meaning:
The expression Written Statement has not been dened in this code. It is a term of specic
meaning ordinarily signifying a reply to the plaint led by the plainti. In other words, it is the

pleading of the defendant wherein he deals with the material fact alleged by the plainti in his
plaint and also states any new fact in his favour or takes legal objections against the claim of
the plainti.
Who may be written statement:

A written statement may be filed by the defendant or by his duly authorized agent. In the case
of more than one defendants, the common written statement led by them must be signed by
all of them. But it is sucient if it is veried by one of them who is aware of the facts of the case
and is in a position to le an adavit. But a written statement led by one defendant does not bind
other defendants.
Time limit for ling written statement:

A written statement should be led within thirty days from the service of the summons on him.
The said period, however, can be extended up to ninety days,(Rule -1). A defendant should
present a written statement of his defence in the said period.
Defences in written statement:

In written statement defendant can specically deny the allegations made in the plaint by the
plainti against him. Besides this, he also can claim to set-o any sums of money payable by the
plainti to him as a counter defence (Order 8 Rule 6). Further, if the defendant has any claim
against the plainti relating to any matter in the issue raised in the plaint, then he can
separately le a counter-claim along with his written statement. It is provided in Order 8 Rule
6A to 6G of the code.
Particulars: Rules 1-5 and 7-10

Drafting a written statement is an art so it should be drafted carefully and artistically. Before
proceeding to draft a written statement it is absolutely necessary for the defendant to examine
the plaint carefully.
Special rules of defence:

Rules 2 to 5 and 7 to 10 deal with special points regarding the ling of a written
statement:
New facts, such as the suit is not maintainable, or that the transaction is either void or
voidable in law, and all such grounds of defence as, if not raised, would take the plainti by
surprise, or would raise issues of fact not arising out of the plaint, such as fraud, limitation,
release, payment, performance or facts showing illegality, etc. must be raised. (Order 8 Rule
2)
The denial must be specie. It is not succinct for a defendant in his written statement to deny
generally the grounds alleged by the plainti, but he must deal specially with each allegation
of fact which he does not admit, except damages.
The denial should not be vague or evasive. Where a defendant wants to deny any allegation
of fact in the plaint, he must do so clearly, specially and explicitly and not evasively or
generally.
Where every allegation of fact in the plaint, if not denied specically or by necessary
implication, or stated to be not admitted except as against a person under disability. The court
may, however, require proof of any such fact otherwise than by such admission.
Where the defendant relies upon several distinct grounds of defence or set-o or counterclaim
founded upon separate and distinct facts, they should be stated separately and distinctly.

Any new ground of defense which has arisen after the institution of the suit is a presentation
of a written statement claiming a set-o or counterclaim may be raised by the defendant or
plainti in his written statement as the case may be.
If the defendant fails to present his written statement within the time permitted or relaxed by
the court, the court will pronounce the judgment against him or pass such order in relation to
the suit as it thinks t and a decree will be drawn up according to the said judgment.
No pleading after the written statement of the defendant other than by way of defense to set-o
or counterclaim can be led.
Set off (Order VIII, Rule 6]

Definition:
Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has
a claim of some amount against the plaintiff what he do is he can claim a set-off in respect of
the said amount. This right of the defendant to claim set off has been recognized under Order
8, Rule 6 of the Code.
Essential Conditions:
A defendant may claim a set-off, if:

The suit is for the Recovery of money;
The sum of money must be ascertained;
Such sum must be legally recoverable;
It must be recoverable by the defendant or by all the defendants, if not more than one;
It must be recoverable by the defendant from the plaintiff(s);
It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
Both the parties must fill in the defendant's claim to set-off, the same character as they fill in
the plaintiff's
Effects:
When a defendant claims set-off, he is put in the position of the plaintiff as regards the
amount claimed by him. Where the plaintiff doesn't appear and his suit is dismissed or he
withdraws, it does not affect the claim for a set-off by the defendant and a decree may be
passed in his favor if he is able to prove his claim.
Illustrations:
X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected to insure Y's goods
and is liable to him in compensation which he claims to set-off. The amount not being
ascertained cannot be set-off.
P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P for Rs. 1,000. The
two claims being both definite, it may be set-off.
Types of Set Off

Set-off is of two kinds viz., legal set-off and equitable set-off. Rule 6 speaks of legal set-off
only. In contrast to legal set-off, an equitable set-of, can be claimed for unascertained money
but it must arise from the same transaction. For example, where a servant sues his master for
recovery of amount of salary, the master can claim set-off for loss sustained by him due to
negligence of servant since it arises out of same relationship.

Legal Set Off
It is apparent from a reading of the above provisions that in order to constitute legal set-off,
the following conditions must be fulfilled, viz.,
The suit must be for recovery of money.

The defendant must claim an ascertained sum of money. A sum of money due in respect of a
disputed transaction cannot constitute an ascertained sum.
That ascertained sum must be legally recoverable from the plaintiff, i.e., it is not barred by
the law of limitation.
The plaintiff's claim and the set-off must be claimed in the same character. The amount must
be recoverable by the defendant and if there are more than one defendant, then by all the
defendants. Again, the amount must be recoverable by the defendant from the plaintiff and if
there are more than one plaintiff, then from all the plaintiffs.
The set-off should be within the pecuniary jurisdiction of the Court.
Equitable set-off
Court of Equity in England allowed set-off when cross-demands arose out of the same
transaction, even if the money claimed by way of set-off was an unascertained sum of money.
The Common Law Courts refused to take notice of equitable claims for they were not
ascertained sums. The Courts of Equity, however, held that it would be inequitable to drive
the defendant to a separate cross-suit and that he might be allowed to plead a set-off though
the amount might be unascertained. Such a set-off is called an equitable set-off.
In India, the distinction between legal and equitable set-off remains. The provisions as to
legal set-off are contained in Order VIII, Rule 6, C.P.C. The same has now been enlarged by
insertion of Rule 6-A with regard to counter-claim by the defendant. So far as equitable set-
off is concerned it is provided in Order XX, Rule 19(3), C.P.C., which states that:
The provisions of this rule (relating to a decree for set-off or counter-claim and an appeal
therefrom) shall apply whether the set-off is admissible under Rule 6 of Order VIII or
otherwise.
The provisions of Order VIII, Rule 6, and Rule 6-A are, therefore, not exhaustive because
apart from a legal set-off an equitable set-off can be pleaded independently of the specific
provision of the Code.
Counter Claim
Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the defendant in a
suit against the plaintiff. It is a claim independent of and separable from plaintiff's claim
which can be enforced by a cross section. Counter-claim can be set up in respect of action
accruing to the defendant either before or after the filing of the suit but before the defendant
has delivered his defense or before the time fixed for delivery of his defense has expired.
Such claim should not exceed the pecuniary limits of the jurisdiction of the concerned court.
The counter-claim is to be treated as a plaint and the plaintiff can file a written statement in
answer to it. Counter-claim can be filed after filing of written statement.

In Smt. Shanti Rani Das v. Dinesh Roy it has been held that the right to file a counter claim
is referable to the date of accrual of cause of action. If the cause of and such action had arisen
before or after filing of the suit, cause of action continued up to the date of filing of the suit
and such cause of action continued up to the date of filing written statement or extended date
of filing plaintiff statement, then such counter claim can be filed even after filing the written
statement.
Who may file counterclaim?

Normally, it is the defendant who may file a counterclaim against the plaintiff. But
incidentally and along with the plaintiff, the defendant may also claim relief against the co-
defendants in the suit. But a counterclaim solely against co-defendants is not maintainable.
When counterclaim may be set up?

A counterclaim may be set up by a defendant against a plaintiff in respect of cause of action
accruing either before or after filing of the suit, provided such claim is not barred by
limitation.
Effect of counterclaim Such counterclaim has the effect of a cross-suit and the court can
pronounce a final judgment both on the original claim and the counterclaim. The
counterclaim of the defendant will be treated as a plaint and the plaintiff has a right to file a
written statement in answer to the counterclaim of the defendant.
The effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued,
dismissed or withdrawn, the counterclaim will be decided on merits and the defendant will
have a right to get a decree for a counterclaim as claimed in the written statement. If the
plaintiff does not file any reply to the counterclaim made by the defendant, the court may
pronounce the judgment against the plaintiff in relation to the counterclaim made against him
or make such order in relation to the counterclaim as it thinks fit.268 The counterclaim shall
be treated as a plaint and will be governed by the rules applicable to plaints. Similarly, a reply
filed in answer to a counterclaim shall be treated as a written statement and governed by rules
applicable to written statements.
Set Off & Counter Claim

The distinction between set-off and counter-claim may now be noted:
Set-off is a statutory defence to a plaintiff's action, whereas a counterclaim is substantially a
cross-action.
Set-off must be for an ascertained sum or must arise out of the same transaction as the
plaintiff's claim. A counter-claim need not arise out of the same transaction.
Set-off is a statutory ground of defence and has to be pleaded in the written statement. It can
be sued as a shield and not as a sword. Counter-claim, on the other hand, does not afford any
defence to the plaintiff's claim. It is a weapon of offence which enables the defendant to
enforce his claim against the plaintiff as effectually as in an independent action. It is a sort of
cross-action.

If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to establish
his plea has to prove that set-off was barred when the plaintiff commenced the action. It is
not enough to prove that it was barred at the time when it was pleaded. In the case of a
counter-claim, it is enough for the plaintiff to prove that the counter-claim was barred when it
was pleaded.
An equitable set-off is a claim by the defendant in defence, which generally cannot exceed
the plaintiff's claim. A counter-claim the defendant may, however, exceed the plaintiff's
claim, being in nature of the cross action. Under the provision rule 6-F of Order 6, if in any
suit a set off or counter claim is established as a defence against plaintiffs claim and any
balance is found due to the defendant as the case may be the court may give judgment to the
party entitled to such balance.
Relevant Case Laws
Hulas Rai Baij Nath v. Firm K.B Bass and Co. AIR 1963 All 368.:
In this case was filed by the respondent firm to seek rendition of accounts by claiming Rs.
2100 in the plaint against the appellant (who was their commission agent) because their
accounts were not settled since 1941. The court dismissed this appeal and held that in the
cases of rendition of accounts plaintiff should not be compelled to proceed at such a stage in
the suit in which the respondent has applied for withdrawal like in the present suit.
Furthermore, the court also held that nothing in the facts lead to set-off or counter claim as no
provision has been shown which could lead to the same. Costs were awarded to the appellant.
Subaida Ebrahim v. Moosa C. and ors, (2022):
In this case, the appeal was filed under section 104 and Order XLIII of CPC, in order to
challenge the order preferred in the favour of decree-holder in the dispute related to
distribution of property. The 1st respondent could appropriate the balance sale price which
was Rs. 2,85,433 that was deposited by the appellant, so the appellant contended there is no
alleged fraud or irregularity, therefore order of sale should not be set aside. The High Court
of Kerala ruled that in case of separate decree-holders, claim cannot be set-off by one of
them.
Conclusion:
The provisions related to the written statement, set-off, and counterclaim in the CPC play a
pivotal role in ensuring a fair and comprehensive resolution of civil disputes. The written
statement allows the defendant to present their version of events and legal defenses, while
set-off enables the adjustment of mutual claims. Counterclaims, on the other hand, empower
the defendant to assert independent claims against the plaintiff within the same proceeding.
These provisions collectively contribute to the procedural framework of civil litigation,
balancing the interests of both parties and facilitating a just and efficient resolution of
disputes. Understanding and adhering to these provisions is essential for litigants and legal
practitioners engaged in civil proceedings in India.

16) ISSUE OF COMMISSIONS AND ITS TYPES.
A court-appointed official who is in charge of carrying out specific tasks or responsibilities

on the court’s behalf is referred to as a commission in civil litigation. The word
“commission” in the context of the Code of Civil Procedure (CPC) refers to the procedure by
which the court assigns a person to carry out specific tasks, like gathering evidence or
conducting a local investigation, that are required to decide a case.
The CPC concept of commission is crucial because it enables the court to acquire evidence
that might not otherwise be possible. For instance, it might be challenging or impossible for
the parties to the case to get a witness’s testimony in person if they are located in a different
city or nation. The court may designate a commission in these circumstances to gather the
witness’ evidence and present it to the court.
What is meant by issue of commission by the Court?
Commission is instruction or role given by the Court to a person to act on behalf of the Court
and to do everything that the Court requires to deliver full and complete justice. Such person
who carries out the commission is known as a Court commissioner.
For example, whenever the Court has to do a local investigation, a commissioner is appointed
who conducts the local investigation. Similarly, to record the evidence of a witness who
cannot come to the Court for evidence, the Court can issue a commission for recording of
such evidence.
When can a commission be issued?

Section 75 to 78 and order number 26 of the CPC deal with the power of the court to issue a
commission.
The commission must take place for the examination of a witness. Order 26 rule one lays
down the court may issue a commission for examination or otherwise of any person:
When such a person resides within the local limits of the court‘s jurisdiction
The person is exempted under the court from attending the court. Due to sickness or infirmity
he or she is unable to attend the court.
Rule 4 of the same also talks about the commission being issued under the circumstance
when a government servant is unable to attend the hearing due to his performance of duty.
The main duty of the commissioner is to provide the court with evidence.
As per rule nine, order 26 The court may issue the commission for the purpose of local
investigation for the following reasons:-
In order to explain any disputed issue
For the purpose of determination of market value of a property
In order to determine profit damages annual net profits etc.
order 26 rule 13, for the issue of commission for partition of immovable property. In case of
a preliminary decree of partition of immovable property has been passed further the court

may issue a commission to make an actual separation or partition. Here the commissioner has
to prepare a report appointing the share of each party and distinguishing the shares.
For the purpose of scientific investigation the provision has been provided under order 26
rule 10 A if as per the court a scientific issue is present in the case The court may issue
scientific investigation.
Rule 10 B of the order 26 states the issue of commission for the performance of ministerial
acts as per this when a court finds the suit before it any question of performance of
ministerial actors involved then it can issue commission in the interest of justice.
Rule 10 C talks about for the sale of movable property it is essential to sell an immovable
property which is in its courts custody and the same cannot be conveniently preserved here
the court issues a commission subject to speedy and natural decay.
Commissions Order 26 -
Commissions to examine witnesses -
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 infirmity of any
person, without calling the medical, practitioner as a witness.
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.
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.
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) 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.
5. Commission or request to examine witness not within India -
Where any Court to which application is made for the issue of a commission for the
examination of a person residing at any place not within India is satisfied that the evidence of
such person is necessary, the Court may issue such commission or a letter of request.
6. Court to examine witness pursuant to Commission
Every Court receiving a commission for the examination of any person shall examine
him or cause him to be examined pursuant thereto.
7. Return of commission with depositions of witnesses -
Where a commission has been duly executed, it 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; and the commission and the returned thereto and the evidence taken
under it shall (subject to the provisions of rule 8) from part of the record of the suit.
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 the commission has
ceased at the time of reading the same.
Commissions for local investigations
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.
10. Procedure of Commissioner -
(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. -
(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.
Commissions for scientific investigation, performance of ministerial act and sale of movable
property.
Commissions to examine accounts -
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.
''
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. Commissions to make partitions
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.
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 directly 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 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.
General provisions
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.
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.
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.]
(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.
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.
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,
(b) that the proceeding is of a civil nature, and
(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 clauses (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 (c) by a letter of request issued by the foreign Court and
produced before the High Court by a party to the proceeding.
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.
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.
22. Issue, execution and return of commissions, and 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 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, along with the letter of request for transmission to the foreign court.
17) ACQUISITION OF RIGHTS BY PRESCRIPTION AND CREATION OF

OWNERSHIP BY ADVERSE POSSESSION UNDER LIMITATION ACT.
Concept
The principle of adverse possession dates back to the British era. According to this law, if a
person is in a continuous possession of a property for 12 years, then the ownership of that
property will be transferred to that person.
This concept was introduced with the motive to improve the land usage but over the years, it
has become a means to obtain hostile possession of property through unsolicited means as the
rightful owner will be denied the right in such property.
The essential elements for claiming ownership right by way of Adverse Possession are-
a. Uninterrupted possession in property for 12 years.

b. The possessor must have been in actual and exclusive possession of the property.
c. The possession must be open, notorious in the sense that it should not be secretive,
rather should be openly possessed.
d. Possession must be hostile and adverse to the interests of the true owner.
Prescription shows the effect of time constraints on creating some new rights and then
destroying the old rights. The term by prescription means that the acquisition of a title or a
right by the owner of the property in the manner prescribed by law. A person can acquire
property or certain rights over a property to show that he is in possession of the property or
has been enjoying the rights for a long time.
Therefore, if there is a need to prove its title after prolonged, uninterrupted and continuous
occupation or to exercise certain rights over real estate it will cause hardship and will cause
injustice. The law, therefore, recognizes an easement by prescription. What is
Adverse Possession?
The process of Adverse Possession provides the title of the property to the person who is in
continuous possession of the property for 12 years without the permission despite not being
the owner. In short, if a person occupies the property of another person whether through legal
or illegal mode, and remains in that property continuously for 12 years or more without the
permission of the owner while this fact is known to the owner of property, but the owner does
not take any action to take the possession back from him, the occupant gets the title of that
property and becomes the owner himself after the expiry of 12 years.
Adverse Possession has been defined by Mozley and Whiteley’s law dictionary as “where
one person is in possession of property under any title, and the another person claims to be
the rightful owner of the property under a different title, the possession of the former is said
to be an ‘adverse possession’ with reference to the latter. A rightful owner neglecting to assert
his claim within a given period (12 or 30 years in India as per the Limitation Act, 1963) is
henceforth barred of his right to it.
Article 64 and Article 65 read with Section 27 of the Limitation Act, 1963 provides the
limitation period of 12 years to claim the possession back from adverse possessor. After the
expiry of these 12 years, the adverse possessor gets the right to acquire the title of the
property and owner loses his title. By the virtue of Article 112 of the Act, the government
gets the period of 30 years to claim the possession back from adverse possessor.
Adverse Possession and Limitation Act

The law on Adverse Possession is governed by the Limitation Act, 1963. According to it, if
the owner of a certain property fails to make his/her claim towards his/her property for 12
years, while some other person (Y) is in possession of such property, the ownership rights
will be transferred to such other person (Y). The law finds its traces from Section 27 read
with Article 64 and 65 of Schedule I.
Section 27- it lays down that the right to property shall be extinguished if the cause of action
exists to file a suit for possession and the same is not filed within the limitation period
prescribed.

Article 65 Sch.-I- It prescribes a limitation of 12 years for a suit for possession of immovable
property or any interest therein based on the title. The period of limitation shall start from the
day the possession becomes adverse to the real owner.
Article 64 Sch.-I- It prescribes limitation of 12 years for suits for possession based on
possessory right. The period of limitation shall start from the day of dispossession.
Judicial Interpretation
The rules/guidelines/principles applicable to the law of adverse possession are formulated by
the Landmark judgements of the courts.
The concept of adverse possession was firstly introduced into India by way of Perry vs.
Clissold, 1907 and the same was upheld by the Supreme Court in Nair Service Society v K.C.
Alexande, 1968.
In Amrendra Pratap Singh vs. Tej Bahadur Prajapati,2004 the Apex court
held- “The process of acquisition of title by
adverse possession springs into action essentially by default or inaction of the owner”.
Acquisition of Rights by Prescription: Unraveling the Legal Tapestry
Introduction to Prescription: A Historical Perspective
Prescription, as a legal concept, has deep historical roots. It emanates from the Latin term
"praescriptio," meaning a rule or law that has been established. In the realm of property law,
prescription refers to the acquisition of rights through the passage of time, typically in a
continuous and uninterrupted manner.
Legal Framework Under the Limitation Act, 1963

The Limitation Act of 1963 in India encapsulates the principles of prescription concerning
various legal rights, including property rights. Section 15 to Section 27 of the Act delineates
the specific periods within which actions must be initiated to enforce different rights. Among
these, Section 15 deals explicitly with the acquisition of easements and other rights by
prescription.
Essentials of Acquiring Rights by Prescription

 Continuous and Uninterrupted Use: Prescription necessitates continuous and
uninterrupted use of a right over a certain period. This continuous enjoyment is a
crucial element, signifying the establishment of a right through consistent usage.
 Adverse Possession: The possession must be adverse, meaning it should be without
the owner's consent. This underscores the notion that prescription is not merely about
the passage of time but about the acquisition of a right through adverse use.
 Prescribed Period: The Limitation Act specifies the duration within which a right can
be acquired through prescription. The period varies depending on the nature of the
right. For example, the period for acquiring easements is different from that for
acquiring a right to property.

Acquisition of Easements by Prescription
Easements, which include rights like the right of way, the right to light, and the right to water,
can be acquired by prescription. The continuous and uninterrupted use of these rights for a
specified period without the owner's interference leads to their acquisition.
Challenges and Controversies

While prescription is a well-established legal principle, its application is not without
challenges. The determination of what constitutes adverse possession, the calculation of the
prescribed period, and the proof of uninterrupted use can be contentious issues in legal
proceedings.
Creation of Ownership by Adverse Possession: An In-Depth Analysis
Adverse Possession: A Legal Alchemy Adverse possession is a legal doctrine that allows an
individual to acquire ownership rights over someone else's property through continuous,
open, and hostile possession for a statutory period. Unlike prescription, adverse possession
involves the acquisition of full ownership, not just specific rights.
Statutory Foundation in the Limitation Act, 1963

Sections 27 to 31 of the Limitation Act, 1963, deal specifically with adverse possession.
These sections set out the conditions and requirements for the creation of ownership through
adverse possession.
Essential Elements of Adverse Possession

1. Actual, Open, and Notorious Possession: Adverse possession requires the occupant
to have actual, open, and notorious possession of the property. This means that the
possession should be visible, apparent, and not hidden from the true owner.
2. Hostile Possession: The possession must be adverse or hostile, indicating an intention

to possess the property to the exclusion of all others, including the true owner.
3. Exclusive Possession: The possession must be exclusive, and the adverse possessor
must treat the land as if they were the true owner.
4. Continuous Possession: The possession must be continuous and uninterrupted for the
statutory period, which varies depending on the nature of the property.
Statutory Period for Adverse Possession

The Limitation Act prescribes different periods for adverse possession based on the type of
property:
a. Twelve Years:
For immovable property or any interest therein.
For a suit by a landlord to recover possession from a tenant.
b. Thirty Years:
For suits by the government.
Public Policy Considerations

The doctrine of adverse possession is not without controversy. Some argue that it rewards
those who trespass on another's property, while others contend that it provides a necessary
mechanism to resolve disputes and encourage the productive use of land.
Limitations on Adverse Possession

While adverse possession can lead to the creation of ownership, certain limitations exist.
Adverse possession cannot be claimed against the government, public land, or charitable
land. Additionally, it cannot be claimed if the true owner is under a legal disability.
Comparative Analysis: Prescription vs. Adverse Possession

While both prescription and adverse possession involve the passage of time leading to the
acquisition of rights, there are key differences between the two concepts:
Nature of Rights Acquired:

 Prescription: Involves the acquisition of specific rights, such as easements.
 Adverse Possession: Results in the acquisition of full ownership rights.
 Statutory Periods Prescription: The period varies depending on the nature of the
right.
 Adverse Possession: Has fixed statutory periods, with different durations for different
types of property.
 Hostility Requirement Prescription: Requires adverse use but doesn't necessarily
involve hostility.
 Adverse Possession: Requires open, notorious, and hostile possession.
Conclusion: Striking a Balance Between Justice and Certainty
In conclusion, the concepts of acquisition of rights by prescription and creation of ownership

by adverse possession under the Limitation Act of 1963 provide a nuanced framework for the
evolution of property rights over time. While these doctrines contribute to legal stability and
the resolution of long-standing disputes, their application requires a delicate balance between
justice and legal certainty. Courts must navigate the complexities of property law to ensure
that the principles of prescription and adverse possession serve their intended purpose
without undermining the rights of rightful property owners. As the legal landscape continues
to evolve, the doctrines of prescription and adverse possession remain essential tools in the
arsenal of property law, shaping the contours of ownership and property rights in a dynamic
and ever-changing society.

18) “SUIT ABATES UPON DEATH OR INSOLVENCY OF THE PARTIES
TO THE SUIT”, EXPLAIN?
Introduction
Order 22 of CPC,1908 talks about the provision related to death, marriage and insolvency of
parties. Under this order of CPC, in case of death marriage and insolvency of parties, what
will happen to the suit of parties, what are the remedies available and what is the procedure to
continue the suits, are discussed in this article. There are 12 rules under this Order .Rule 1 to
6,9 and 10A talks about the death of parties, Rule 7 talks about marriage and Rule 8 about the
insolvency of parties.
In a civil suit, any of the party to the suit dies and if right to sue survive then the suit can be
continued by the heirs or legal representative of the deceased party. If in any case where right
to sue does not survive the suit will come to an end. The most essential element which affects
the abetment of a suit after the death of party is the survival of right to sue; if that is there
then the suit can be continued.
The general rule is that suits and actions must be prosecuted by and against living parties. If a
person against whom a personal action may be brought dies before suit papers naming such
person as defendant have been filed with the court, then such suit papers may be amended to
substitute the decedent’s personal representative as party defendant.[1]
Enactments setting up procedure for revival seeks to prevent the arbitrary cessation of a
proceeding where the cause of action survives and provide for substitution of the personal
representative or other proper party and the continuation of the matter in that party’s name.
Upon the death of an indispensable party, the action abates until the deceased party’s estate,
or other appropriate legal representative, has been substituted.[2]
A deceased person cannot be a party to a legal proceeding and the effect of the death is to
suspend the action as to the decedent until his or her legal representative is substituted as a
party. A deceased person cannot be a party to legal proceedings.”While the death of a party
does not abate a pending action where the cause of action survives, nevertheless the effect of
the death is to suspend the action as to the decedent until someone is substituted for the
decedent as a party to the proceedings. Until someone is properly substituted as a party after
the action is thus suspended, further proceedings in the case are void as to the decedent.”[3]
Abetment:
Considering the matter of the abatement of an action by the death of a party, as well as the
survival and revival of the action, there is a clear difference between the action and the cause
of action; a cause of action may survive although a particular action based on it is abated by
the death of a party.

Abatement, in law, means discontinuation, cessation, destruction, or elimination. The term is
used in several different contexts.
Abatement of an action is the cessation of a particular judicial proceeding because of some
fact not affecting the merits of the controversy. The commonest grounds for abatement are
the pendency of another suit or the death of a party. To abate a later suit, the pending suit
must be in the same jurisdiction, with the same parties and legal issues. At common law,
death of a party abated an action but did not necessarily extinguish the legal right on which it
depended.
Other grounds for abatement of actions are defects of the parties (such as misnomer or
incapacity); lack of jurisdiction of the court; dissolution of a corporation; premature
commencement of an action; and transfer of a party's interest in the lawsuit.
There are two types of parties involved in a lawsuit: plaintiffs and defendants. The party who
initiates a lawsuit is called the plaintiff. The party against whom an action is brought is the
defendant. The plaintiff claims relief, usually monetary, or recovery against the defendant.
Laws relating to abatement vary from state to state.
The premature ending of a suit before final adjudication is called abatement of an action. If
reasons for abating a suit are not apparent on the pleading filed by the plaintiff, the defendant
can move to abate the case. However, if the defendant fails to claim for abetment in his/her
answer, the defence will be waived. Court considers a plea for abatement of an action before
proclaiming a judgment as a judgment on the plea may affect the final decision in the case.
Right to sue:
A personal action dies with the person, is derivation and source of Latin maxim Actio
personalis moritur cum persona Right to sue, other than closely connected with the
individuality of the deceased, always survives to or against his legal representatives.
There is a simple experiment to check as to when and how a right to sues survives regardless
of the death of a party. There are cases where the plaintiffs mostly sue with regard to some
claim which is associated with or vests in their individuality.
A suit for damages falls under that nature. If a plaintiff dies during the pendency of suit for
damages, the right to sue, which can also be termed as a right to seek relief, would not
survive but if he succeeds in getting, a decree for damages and dies during the pendency of
his opponent’s appeal, the right would of course survive to his legal representatives.
In case of the survival of right to sue the suits do not abate on death of a party but the
impleadment or substitution of his legal heirs becomes incumbent within the period of 90
days. This is so because the surviving right has now become vested in the legal heirs. So long
as a right is referable to the individuality of a person, it does not survive at the death of that
person. The general rule is that all causes of action and all demands whatsoever existing in
favour of or against a person at the time of his death survive to or against his legal
representatives.
This principle is found enacted in the Succession Act as well, with the only exception that
rights intimately connected with the individuality of the deceased will not survive based on

the famous maxim actio personalis moritur cum personal–a personal right of action dies with
the person. A right to sue, other than intimately connected with the individuality of the
deceased, will always, survive to or against his legal representatives.
No abatement by the death of parties:
1. Death of plaintiff:
Where the sole plaintiff dies, the suit will not abate, if the right to sue survives. It can be
continued by the heirs and the legal representatives of the deceased plaintiff. If the right to
sue does not survive, the suit will come to an end.[4]
Where one of several plaintiffs dies and the right to sue survives to the surviving plaintiff or
plaintiffs, the court will make an entry to that effect and proceed with the suit by the
surviving plaintiff or plaintiffs.[5]
Where one of several plaintiff dies and right to sue does not survives to the survive to the
surviving plaintiff or plaintiffs or where the sole plaintiff and the right to sue survives, the
court on an application by the legal representative of the deceased plaintiff will make him a
party and proceed with the suit.[6]
Where no such application is made in the period of limitation (ninety days), the suit shall
abate so far as the deceased plaintiff is concerned. On an application by the defendant, the
court may award costs, which might have been incurred by him in defending the suit from the
estate f the deceased plaintiff.[7]
Where the plaintiff dies after hearing and before pronouncement of judgement, the suit shall
not abate.[8]
The same principal will apply in case of death of the plaintiff after passing of preliminary
decree and before final decree.[9]
2. Death of defendant:
Where the sole defendant dies, the suit shall not abate if the right to sue survives. It can be
continued against the heirs and legal representatives of the deceased defendant.[10]
Where one of several defendants dies and the right to sue survives against the surviving
defendant or defendants, or where the sole surviving defendant dies and the right to sue
survives, the court on an application by the legal representative of the deceased defendant,
will make him a party and proceed with the suit.[11]
Where no such application is made in the period of limitation (ninety days), the suit shall
abate as against the deceased defendant.[12]
The court may, if it thinks fit, exempt the plaintiff from substituting the legal representative
of a non-contesting or pro forma defendant and pronounce judgement notwithstanding the
death of such defendant.[13]
Where the plaintiff is ignorant of the death of the defendant and the reason is unable to make
the application for substitution of the legal representative of the deceased defendant within

the period of limitation, and the suit stands abated, he may make an application for setting
aside such abetment within the period of limitation, stating that due to ignorance of the death
of the defendant he could not make application within time. The court shall consider the
application, having due regard to the fact of such circumstances.[14]
In Elliott v. Cline, 184 Ga. 393 (Ga. 1937) [15], the court observed that a cause of action for
an injunction survives the death of either party where it relates to property. Whereas, if the
acts are of a purely personal character, the right of action abates on the death of the
defendant. However, if a suit is for damages and injunction, then the right to damages ex
contractually will survive the death of the defendant.
Where the defendant dies after hearing and before pronouncement of judgement, the suit
shall not abate.[16]
The suit also does not abate on account of the death of an unnecessary party.[17]
Conclusion: -
Generally under the common law, a lawsuit was thought to automatically abate on the death
of a party. However, whether the cause of action abated depended on whether or not the
lawsuit was considered personal to the parties. For example, contract and property cases were
thought to involve issues separate from the parties themselves and did not necessarily abate
on the death of a party. On the other hand, personal injury cases including injuries to the
person as well as cases of libel, slander, and malicious prosecution were considered personal
and did abate at death of the party.
Many states today have statutes that permit the revival of an action that was pending when a
party died. In the usual course, an executor or administrator is substituted for the deceased
party and the lawsuit continues. A lawsuit may not be revived unless the underlying cause of
action continues to have a legal existence after the party’s death. Revival statutes vary from
state to state, but today most lawsuits do not abate due to the death of the party.
If two or more persons bring an action to the court and if one of them dies while the action is
pending, then the action will not abate if the cause of action survives. The action will
continue in the name of a surviving party, or by the representatives of decedent.[18]
After the death of a party, if the right sought to be enforced survives only for or against the
surviving plaintiffs or defendants, the action will not abate but will continue for and against
the surviving parties. However, the death must be noted on the record.[19]
In common law, if one of the defendants dies, it will not abate an action against the other
defendants entirely either in contract or in tort actions.[20]
If the rights of the deceased party, or his/her successors remain in the cause of action, then the
matter is either abated or suspended until the action is properly revived and a successor
named. A judgment is not entered against the decedent’s successors in interest or against
his/her former rights until these steps are taken.[21]

If one of the two co-parties is a necessary party, and the judgment will not have any meaning
without him/her as a party, then the action abates entirely upon the co-party’s death and
cannot be revived. However, if a valid judgment can be given against the remaining
defendants, the death of a party for whom no substitution can be made abates the action only
as to the decedent, without possibility of reviver.
19) EXPLAIN THE PROVISIONS RELATING TO PRODUCTION,

IMPOUNDING AND RETURN OF DOCUMENTS.
Introduction
One of the essential elements of the rule of law is its procedures. To run a fair trial, equal
opportunities shall be given to both parties to access the documents related to the case.
In the Civil Procedure Code, 1908, separate chapters are provided so that a fair trial is
attainable by both the parties of the suit. After the plaint has been filed by the plaintiff and
written statement by the defendant, if the parties feel that proper facts were not disclosed in
the suit, either of them can ask for the documents to obtain proper facts of the case.
Before we go further, we need to understand that there are two types of facts:-
 ‘Facto probanda’ – the facts which constitute a party’s case.
 ‘Facto probantia’ – the facts which will be considered as evidence if proven.
Under the procedure of discovery, only Facto Probanda can be asked by the parties.
Production of documents
As per Rule 1 of Order XIII, the parties or their pleaders shall produce the documents at or
before the settlement of disputes.
Return of documents

If any party to the suit or not is having the desire to receive back any of the documents
submitted by him in the suit which is placed on the record is entitled to receive the
documents unless it is impounded by the court under Rule 8.
The court can return the documents on the following grounds:-

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;
During the pendency of the suit, the party can receive the documents if the following
conditions are fulfilled:
the party is substituting the original document with a certified copy from a proper officer;
Undertakes to produce the original copy if required.
While returning the document which has been admitted in evidence, a receipt shall be given
to the person who is receiving it.
Rejection of documents
Rule 3 gives the discretion to the court to reject the documents on the basis of inadmissibility
or irrelevance of the document. The court while rejecting the documents shall also mention
the grounds of such rejection.
Impounding of documents
The court can order the parties in the suit to produce any documents or book before the court
as per Rule 8 notwithstanding Rule 5 or Rule 7 of Order 13 or Rule 17 of Order 7 of the
code.
The documents or books impounded by the court shall be in the custody of an officer of the
court, for such period with subject to conditions if required.
ORDER XIII of CIVIL PROCEDURE CODE (CPC) – PRODUCTION, IMPOUNDING

AND RETURN OF DOCUMENTS
1. Documentary evidence to be produced at or before the settlement of issues.
(1) The parties or their pleaders shall produce, at or before the settlement of issues, all the
documentary evidence of every description in their possession or power, on which they
intend to rely, and which has not already been filed in Court, and all documents which the
Court has ordered to be produced.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the
High Court directs.
2. Effect of non-production of documents.
(1) No documentary evidence in the possession or power of any party which should have
been, but has not been produced in accordance with the requirements of rule 1 shall be
received at any subsequent stage of the proceedings unless good cause is shown to the
satisfaction of the Court for the non-production thereof; and the Court receiving any such
evidence shall record the reasons for so doing.

(2) Nothing in sub-rule (1) shall apply to documents,-
(a) produced for the cross-examination of the witness of the other party, or
(b) handed over to a witness merely to refresh his memory.
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.
4. Endorsements on documents admitted in evidence.
(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every
document which as been admitted in evidence in the suit the following particulars, namely-
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted,
and the endorsement shall be signed or initialled by the Judge.
(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.
5. Endorsements on copies of admitted entries in books, accounts and records.
(1) Save in so far as is otherwise provided by the Bankers’ Books Evidence Act, 1891 ( 18 of
1891) where a document admitted in evidence in the suit is an entry in a letter-book or a
shop-book or a or other account in current use, the party on whose behalf the book or account
is produced may furnish a copy of the entry.
(2) Where such a document is an entry in a public record produced from a public office or by
a public officer, or an entry in a book or account belonging to a person other than a party on
whose behalf the book or account is produced, the Court may require a copy of the entry to
be furnished-
(a) where the record, book or account is produced on behalf of a party, then by that party, or
(b) where the record, book or account is produced in obedience to an order of the Court
acting of its own motion, then by either or any party.
(3) Where a copy of an entry is furnished under the foregoing provisions of this rule, the
Court shall, after accusing the copy to be examined, compared and certified in manner
mentioned in rule 17 of Order VII, mark the entry and cause the book, account or record in
which it occurs to be returned to the person producing it.
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.
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.
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.
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,-
(a) where the suit is one in which an appeal is not allowed, when the suit has been disposed
of, and
(b) 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.
10. Court may send for papers from its own records or from other Courts.
(1) The Court may of its own motion, and may in its discretion upon the application of any of
the parties to a suit, send for, either from its own records or from any other suit or
proceedings, and inspect the same.
(2) Every application made under this rule (unless the Court otherwise directs) be supported
by an affidavit showing how the record is material to the suit in which the application is
made, and that the applicant cannot without unreasonable delay or expense obtain a duly
authenticated copy of the record or of such portion thereof as the applicant requires, or that
the production of the original is necessary for the purposes of justice.
(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any
document which under the law of evidence would be inadmissible in the suit.
11. Provisions as to documents applied to material objects.
The provisions therein contained as to documents shall, so far as may be, apply to all other
material objects producible as evidence.
20) SUITS AGAINST FIRMS, CORPORATIONS & GOVERNMENT AND

APPEAL TO SUPREME COURT.
Introduction
Have you ever wondered how a civil suit is filed in a civil court? Let’s make our basics clear
first. The administration of civil proceedings in India is governed under the Code of Civil
Procedure, 1908 (CPC). Before filing a civil complaint, it is essential to determine the court’s

jurisdiction under Section 9 and the place of suing under Section 18 of the CPC. The initial
step of the procedure of a civil suit is the institution of the suit under Section 26 of the CPC.
The present article provides a detailed study of the provisions of the institution of the suit
under Section 26 of the CPC.
What is a suit
The term ‘suit’ is not defined under the CPC, 1908. The Black Law’s Dictionary, 4th edition
defines suit as “A generic term, of comprehensive signification, and applies to any
proceeding by one person or persons against another or others in a court of justice in which
the plaintiff pursues, in such court, the remedy which the law affords him for the redress of
an injury or the enforcement of a right, whether at law or in equity.”
A suit is a civil process initiated by the filing of a plaint seeking to enforce civil or
substantive rights against the state or a person. A suit results in a decree. There can be no
decree without a suit.
In the case of Ethiopian Airlines v. Ganesh Narain Saboo (2011), the Hon’ble Supreme Court
observed that the term ‘suit’ is a general term that encompasses all actions to be taken by a
person to enforce a legal right that has been vested in them by law.
In the landmark case of Hansraj Gupta & Others v. Dehra Dun-Mussoorie Electric Tramway
Co. Ltd. (1932), the Privy Council held that a civil proceeding is instituted by the
presentation of a plaint.
Suit under the Limitation Act, 1963

The Limitation Act, 1963 governs the laws regulating the limitation of suits and other
procedures. An appeal or an application is not considered a suit under Section 2(l) of the
Limitation Act, 1963. Section 5 of the Limitation Act, 1963, deals with the extension of the
prescribed time frame in certain circumstances.
It states that any appeal or application may be allowed even after the limitation period has
passed if the appellant establishes to the court that they could not file the appeal or
application during the limitation period. If the court is satisfied, the delay in submitting the
appeal or application can be excused, regardless of whether the party is a state or a private
entity. Section 5 of the Limitation Act, 1963, does not apply to suits.
In the case of F. Liansanga v. Union of India (2022), the Hon’ble Supreme Court held that the
authority to exempt delay under Section 5 of the Limitation Act does not apply to suits.
Section 9 of the Limitation Act, 1963 outlines the continuous running of time. When the
cause of action accrues, the time runs out.
It states that once a period of limitation starts, no subsequent disability or inability can stop
it. It applies solely to suits and applications and does not apply to appeals unless the matter
falls under one of the exceptions set out in the Act. Section 9 applies when the cause of action
or right to petition the court exists on the date of the application.
ORDER XXIX

SUITS BY OR AGAINST CORPORATION’S
1. Subscription and verification of pleading. -

In suits by or against a corporation, any pleading may be signed and verified on behalf of the
corporation by the secretary or by any director or other principal officer of the corporation
who is able to depose to the facts of the case.
2. Service on corporation. -
Subject to any statutory provision regulating service of process, where the suit is against a
corporation, the summons may be served-
(a) on the secretary, or on any director, or other principal officer of the corporation, or
(b) by leaving it or sending it by post addressed to the corporation at the registered office, or
if there is no registered office then at the place where the corporation carries on business.
3. Power to require personal attendance of officer of corporation.-
The Court may, at any stage of the suit, require the personal appearance of the secretary or of
any director, or other principal officer of the corporation who may be able to answer material
questions relating to the suit.
SUITS AGAINST GOVERNMENT
Ch.3 Sections 79 & 80 Suits against Government Suits may be

(i) General or
(ii) of a particular kind.
(iii) In respect of suits in general it is not necessary to give notice to the defendant
before filing a civil suit. However, in respect of suits against the Government, it is
essential that notice under Sn. 80 C.P.C. must be served. The object is to provide
an opportunity to the Govt. to reconsider the legal position, and to amend or settle
the claim without any litigation.
The Central Government shall be called the Union of India and the State
Government shall be called the State, e.g., state of Karnataka for the purpose of
serving notice. Period of notice: Two months’ Notice is essential, as per sn.80 In
respect of suits, against the Central Government notice must be given to the
Secretary to the Government. (If it relates to the railway, notice must be given to
the General Manager of the railways).
In respect of suits against State the cause of action Government notice must be
given to the Secretary to that Govt. or the Collector of the District, as the case may
be. The notice must be in writing, state the name and description and place of
residence of the plaintiff and also the relief which he claims. In case of a public
officer, notice under Sn.80 must be delivered to him or left at this office.
SUITS AGAINST FIRMS
Partnership firms 1. Partners may sue or be sued in the name of the firm: According to 0.30
R. I, any two or more persons claiming (or being liable) as partners, and carrying on business
in India, may sue or be sued in the name of the firm. These persons should be partners of the
firm at the time of accrual of the "cause of action".

Further, any party to the suit, may apply to the court for a statement of names and addresses
of the persons who were partners (at that time of accrual of cause of action) in such firm and
this is to be furnished by the party and verified in such manner as the court may direct. All
pleadings (plaint, written statement etc) may be verified or signed by any such person
(partner). The suit is not affected, if there is a minor in the firm, or one who is not capable of
suing or be used.
2. Partners' name and addresses: When the suit is filed in the name of the firm, the defendant
may in writing demand the names and addresses of all the partners and the plaintiff shall
furnish the same to the court. If the plaintiff fails to so furnish, the court may stay all
proceedings on such terms as it may direct. However, if the names and addresses are
declared, the suit shall proceed, with the partners arrayed in the plaint. The proceedings
continue in the name of the firm, but the names are to be entered in the decree of the court.
Suits between partners: R.9 provides for suits between partners of the same firm. Similarly, in
case of two or more common partners in two firms, suits by one firm against the other may
be filed.
APPEALS TO THE SUPREME COURT
Article 132 provides for an appeal to the Supreme Court of any judgement, order or decree
from civil or criminal cases or any other proceedings. But for that, the High Court has to
certify that the issues in the case involve a substantial question of law, that could only be
dealt by the Supreme Court or if there is a scope for the interpretation of the Constitution.
Article 133 provides for an appeal to the Supreme Court of any judgement, order or decree
from a civil proceeding of a High Court if it gives a certificate to the party that the case
revolves around an important question law that needs the opinion of the Supreme Court.
Article 133 provides for an appeal to the Supreme Court from any judgement, order or decree
from any proceeding of a High Court if:
On appeal, it has reversed the decision of acquittal of a person and has given him a death
sentence.
Withdrawn for trial before itself, any case from any Court subordinate to it and convicted the
accused given him a death sentence.
High Court certifies that the case is fit to be decided by the Supreme Court.
Article 136 provides that the Supreme Court may according to its discretion give “leave” to a
case decided by any Court in the territory of India to become an “appeal”. The “Court” in this
case should not be the one constituted under any law relating to armed forces.

21) EXPLAIN EFFECT OF MINORITY, FRAUD, MISTAKE AND SUIT
AGAINST TRUSTEES, WHICH EXTEND LIMITATION UNDER THE
LIMITATION ACT.
Introduction
The law of limitation finds its root in the maxims “Interest Reipublicae Ut Sit Finis
Litium” which means that in the interest of the state as a whole there should be a limit to
litigation and “vigilantibus non dormientibus Jura subveniunt” which means the law will
assist only those who are vigilant with their rights and not those who sleep upon it.
The law of limitation specifies the statutory time frame within which a person may initiate a
legal proceeding or a legal action can be brought. If a suit is filed after the expiry of the time
prescribed it will be barred by the Limitation. It means that a suit brought before the Court
after the expiry of the time within which a legal proceeding should’ve been initiated will be
restricted.
Whether the Act is exhaustive?
The Limitation Act is exhaustive with respect to all matters expressly dealt in it. It cannot be
extended by analogy. Ordinarily, the Act applies only to civil cases except in the
The Limitation Act of 1963 is a crucial piece of legislation that sets out the time limits
within which legal actions must be initiated. However, certain factors can affect these
limitation periods, providing exceptions to the general rule. This discussion will focus on four
significant factors: minority, fraud, mistake, and suits against trustees, exploring how they
extend the limitation period.
1. Minority:
 Legal Framework: Minority refers to the state of being below the age at which a
person is legally considered an adult. The Limitation Act recognizes that minors may
be unable to protect their legal rights promptly due to their age and lack of legal
capacity.
 Extension of Limitation: Under Section 6 of the Limitation Act, the period of
limitation for a minor is extended until the minor reaches the age of majority. The
clock for calculating the limitation period starts ticking from the time the minor turns
18. This provision acknowledges that minors may not be in a position to bring legal

actions during their minority and provides a reasonable opportunity for them to assert
their rights.
 Effect on Legal Proceedings: During the period of minority, the limitation clock
effectively stops ticking. This ensures that minors are not unfairly prejudiced by the
general time limits set by the Limitation Act. Once the minor reaches the age of
majority, they can initiate legal proceedings within the remaining period of limitation.
2. Fraud:
 Legal Framework: Fraud involves intentional deception or misrepresentation with the

intent to gain an unfair advantage or cause loss to another party. In the context of the
Limitation Act, fraud can significantly impact the limitation period.
 Extension of Limitation: Section 17 of the Limitation Act deals with cases where
fraud or deliberate concealment of facts has occurred. In such situations, the limitation
period is extended. The clock begins to run from the time when the fraud or
concealment becomes known to the aggrieved party.
 Effect on Legal Proceedings: The discovery of fraud triggers the commencement of
the limitation period. This provision aims to ensure that individuals who have been
victims of fraud have a fair opportunity to seek legal remedies. The Act acknowledges
that discovering fraud may take time, and it would be unjust to strictly adhere to the
original limitation period in such cases.
3. Mistake:
 Legal Framework: Mistake refers to an erroneous belief about a fact or situation. The
Limitation Act recognizes that a mistake can prevent a party from taking timely legal
action.
 Extension of Limitation: Section 14 of the Limitation Act deals with cases where a
mistake has occurred, and it has prevented a party from instituting legal proceedings.
The limitation period is extended in such cases, starting from the time when the
mistake is discovered.
 Effect on Legal Proceedings: Mistakes that prevent the initiation of legal proceedings
are viewed sympathetically under the Limitation Act. Once the mistake is discovered,
the aggrieved party has the balance of the limitation period to file a suit. This
provision ensures that individuals are not penalized for genuine mistakes that
hindered the timely assertion of their rights.
4. Suits Against Trustees:
 Legal Framework: Trustees act on behalf of beneficiaries in managing trust property.

When disputes arise, it may be necessary to take legal action against the trustees. The
Limitation Act recognizes the unique circumstances surrounding suits against trustees.
 Extension of Limitation: Section 10 of the Limitation Act deals specifically with suits
against trustees. The limitation period is extended if the trustee is a party to the suit.
The rationale behind this provision is to account for the complexities involved in trust
matters and the fact that beneficiaries may not be immediately aware of breaches of
trust.

 Effect on Legal Proceedings: Suits against trustees often involve complex fiduciary
relationships and intricate trust structures. The Limitation Act acknowledges that
beneficiaries may need additional time to discover breaches of trust and bring legal
actions against trustees. This provision ensures a fair and just approach to cases
involving trust matters.
Conclusion:
In conclusion, the Limitation Act of 1963 provides a structured framework for determining
the time limits within which legal actions must be initiated. However, it also recognizes that
certain factors, such as minority, fraud, mistake, and suits against trustees, can impact the
limitation period.
The extensions provided under these circumstances aim to strike a balance between the need
for timely legal actions and the acknowledgment of unique situations that may hinder the
prompt initiation of proceedings. Understanding these provisions is crucial for litigants and
legal practitioners navigating the complexities of the limitation period and seeking justice in
various legal scenarios.

22)EXPLAIN THE PROVISIONS WITH RESPECT TO
INTERPLEADER SUIT?
The terms of inter-pleader litigation are covered under Order 35, s. 88 of the CPC 1908.
Ordinary actions brought before the Hon’ble court usually involve two parties: the plaintiff
and the defendant. However, the interpleader suit differs from typical suits in which two
defendants fight for a claim to a specific property, debt, or chattel. Typically, the plaintiff in
such claims has no real interest in the subject matter of the suit and just wants to ensure that
the property in dispute is returned to the rightful owner.
Meaning of Interpleader Suit:

According to Halsbury's laws of England, "Where a person is under liability in respect of a
debt or in respect of any money, goods or chattels, and he is or expects to be sued for or in
respect of the debt or money or those goods or chattels, by two or more persons making
adverse claims thereto, he may apply to the court for relief by way of interpleader."
Object of Interpleader Suit:

The primary goal of initiating an interpleader suit is to have opposing defendants; assertions
adjudicated. It is a procedure in which the plaintiff summons the opposing claimants to
appear in court and have their claims heard.
Legal Provisions related to Interpleader Suits

Section 88 and Order XXXV of the Code of Civil Procedure, 1908 deals with the provisions
related to Interpleader suits.
Section 88 states the guidelines related to where an interpleader suit may be instituted, stating
the following ingredients of an interpleader suit:
1. There may be a similar mortgage, sum of money, or other movable or immovable

property.

2. When two or more parties make claims against each other,
3. The person who is claiming the property must have no interest in it except for
charges or expenses and must be able to pay or deliver it to the rightful claimant.
4. A person who is claiming property may file an interpleader action against all
claimants to decide who will receive payment or delivery and to obtain indemnity
for himself.
The Hon’ble Calcutta High Court held in Asan v. Saroda[1] that a suit is not interpleader if the
defendants do not complain adversely to each other, and the plaintiff does not admit the title
of one of the defendants or is willing to pay or deliver the property to him.
The proviso to section 88 further states, “Provided that no such suit of interpleader shall be
instituted where any suit is pending in which the interests of both parties can properly be
decided.”
Order XXXV Rule 1 – Plaint in an interpleader suit
This rule requires the interpleader to state in his plaint that the plaintiff has no interest in the
suit’s subject matter or the defendants’ allegations individually. The interpleader must also
claim unequivocally that there is no conspiracy between the complainants and any of the
defendants throughout the case. The interpleader must list all the defendants’ arguments in the
plaint, as well as his willingness to put the property (if it is moveable) before the court. The
Hon’ble Bombay High Court held in Mangal Bhikaji Nagpase vs State of
Maharashtra[2] that the plaintiff must affirm in support of Rule 1 that he has no interest in the
subject matter in dispute other than for charges or costs.
Order XXXV Rule 2 – Payment of the thing claimed into court
This rule talks about the situation where the thing claimed is capable of being paid into court
or placed in the custody of the court, the plaintiff may be obliged to do so before he can be
entitled to any order in the suit. The Hon’ble Patna High Court held in Syed Shamshul
Haque v. Sitaram Singh & Ors. [3] That the court has discretion to make certain orders as to
the subject matter in dispute, and that the party in question must follow the order before
seeking relief from the court.
Order XXXV Rule 3 – Procedure where Defendant is suing the Plaintiff
This rule provides that if either of the defendants in an interpleader suit is suing the plaintiff
in respect of the subject-matter of such suit, the court in which the suit against the plaintiff is
pending must, upon being informed by the court in which the interpleader-suit has been
instituted, stay the proceedings as against him; and his costs in the suit so stayed must be
provided for in such suit.
Order XXXV Rule 4 – Procedure at first hearing
This rule empowers the court to rule that the plaintiff is released from all liabilities at the first
hearing, and as a necessary consequence, the court will grant the plaintiff his costs and
dismiss the case. If the court believes that all parties to the suit must be retained for the sake
of justice, propriety, and convenience, the plaintiff will not be discharged until the suit is
finally resolved. If the court deems it appropriate, it may order that any other issues be
framed and tried concurrently with the suit, and that any complainant (that is, the defendant
in the interpleader suit) be made a plaintiff instead of or in addition to the original plaintiff.

Order XXXV Rule 5 – Who cannot file Interpleader suit?
In the case of Jugal Kishore & Anr. V. Bhagwan Das[4], the court held that an agent cannot
sue his principal, and a tenant cannot sue his landlord for the purpose of forcing those
principals/landlords to interplead with persons other than those claiming through them.
Order XXXV Rule 6 – Charge of Plaintiff’s cost
This last rule of this order states that when an interpleader suit is properly initiated, the court
will compensate for the original plaintiff’s costs to be charged either by charging him a fee
for the item alleged by the defendants or claimants, or by some other similarly successful
process.
Example- A deposite a box with b as his agent callges that the were wrongfully obtained from
him by b can not institute an interpleader suit.
Ranjan Sharma and other vs labh singh other ( may 6 2011)
It’s was held in the case that tenant and agent shall not file interpleader suit against their land
lord .
In Mangal Bhikaji Nagpase v. State of Maharashtra in the year of 1997,

According to the Bombay High Court, the plaintiff must declare that he has
zero interest on the issue other than expenses and charges.
In Asaan Ali v. Sarada Charan Kastagir, the Calcutta HC held that for a suit
to be an interpleader suit, the applicant must be ready to give over the property
to the claimant and have no financial interest in it; nevertheless, if the applicant
has a financial interest in the litigation, the suit will be dismissed once the
plaintiff's financial interest in the subject matter is discovered.
Procedure for Interpleader Suit
The procedure to file an interpleader suit has been laid out in Order 35 of the Civil Procedure
Code. The following additional facts must be stated in the plaint of an interpleader suit:
The plaintiff claims no interest in the subject matter in dispute other than the charges
and cost.
The claims have been made by the defendants severally.
There is no collusion between the plaintiff and any of the defendants.
At the first hearing, the court may declare the plaintiff discharged from all liability, award
him the cost and dismiss him from the suit. And based on available evidence, the court may
adjudicate the matter. In case of lack of evidence, the court may frame issues and try them by
making one of the claimants, the plaintiff, in lieu of or in addition to the original plaintiff and
shall proceed in the suit in an ordinary manner.
It was held in Jagganath vs Tulka Hera (1908) that a suit does not become an interpleader
suit simply because the plaintiff requires the defendants to interplead with each other on one
of the plaint’s prayers
Conditions for Instituting an Interpleader Suit

Following conditions must be satisfied before instituting an interpleader suit:
There must be some debt sum of money or other property movable or immovable in
dispute.
There must be two or more persons claiming it against each other.
The person from whom such money or property is being claimed must not be
claiming an interest therein other than the charges and costs.
Such a third person must be ready and willing to pay or deliver it to the rightful
claimant.
There must be no suit pending wherein the rights of the rival claimant can be properly
adjudicated.
Who may file an interpleader suit?
In Robinson v. Jenkins (1890) it was held that a person who has no interest in any debt, sum
of money or other property, movable or immovable except the charges and costs incurred by
him and is ready to pay or deliver the same to the rightful claimant may file an interpleader
suit.
Who cannot file an interpleader suit?
As per Order 35 Rule 5, an agent cannot sue his principal, or a tenant or his landlord, for the
purpose of compelling them to interplead with persons other than persons claiming through
such principals and landlords.
Plaintiff:
Unless the equity or efficiency of the case demands the presence of the plaintiff,
the court may rule that the plaintiff is absolved from all legal responsibilities,
give him his costs, and discharge him from the claim at the first hearing itself.
Example:
X is in possession of the property claimed by Y and Z adversely. X does not
claim any interest in the property and is ready to deliver it to the rightful owner
he can file an interpleader suit.
Conclusion:
Finally, in light of the foregoing, it is obvious that an interpleader suit is
genuinely between the defendants. Except for the charges and fees that are
acceptable to him under the law, the plaintiff has no interest in the subject
matter of the litigation.

23) APPEALS AGAINST DECREES, ORDERS AND CERTIFICATE OF
APPEAL TO SUPREME COURT.
Introduction:
The right to appeal is a fundamental aspect of the judicial process, providing a mechanism for
parties dissatisfied with a court's decision to seek redress at a higher judicial forum. In the
legal landscape, appeals against decrees, orders, and the certification of appeals to the
Supreme Court are integral components of the appellate process. This discussion will delve
into the procedural intricacies, grounds, and significance of appeals against decrees and
orders, ultimately leading to the certification of appeals to the Supreme Court.
1. Appeals Against Decrees:
Decree Defined: A decree is the formal expression of a court's judgment, conclusively

determining the rights of the parties in a lawsuit. Appeals against decrees form a critical stage
in the appellate hierarchy, allowing parties to challenge the final adjudication of their
disputes.
Appellate Jurisdiction: The appellate jurisdiction is typically exercised by higher courts,
such as the High Court, which reviews the decisions of lower courts. The process involves a
thorough re-examination of the evidence, legal arguments, and application of law in the
original trial.
Grounds for Appeal: The grounds for appealing a decree are generally based on errors of
law or fact. Common grounds include misinterpretation or misapplication of legal principles,
improper admission or rejection of evidence, or procedural irregularities that may have
affected the outcome.

Procedure for Filing an Appeal Against a Decree: The procedure for filing an appeal
against a decree is governed by the rules laid down in the applicable Civil Procedure Code. It
typically involves the filing of a notice of appeal, preparation of the appeal memorandum,
and submission of relevant documents from the lower court proceedings.
Appellate Court's Powers: The appellate court has broad powers in hearing appeals against
decrees. It may reevaluate the evidence, hear oral arguments, and either confirm, modify, or
set aside the decree. The goal is to ensure that justice is served and that any errors from the
lower court are rectified.
2. Appeals Against Orders:
Orders Defined: Orders, unlike decrees, are interim or interlocutory in nature and do not
conclusively determine the rights of the parties. Appeals against orders allow parties to
challenge decisions made during the course of legal proceedings before the final judgment is
rendered.
Interlocutory Orders: Interlocutory orders are those made during the pendency of a case
and are not final in nature. They address procedural or evidentiary matters and may include
orders related to discovery, injunctions, or other preliminary issues.
Final Orders: Final orders, while not concluding the entire case, may determine certain
issues such as jurisdiction, maintainability, or dismissal of a suit. Appeals against final orders
seek a review of these determinations before the final decree is pronounced.
Grounds for Appeal Against Orders: The grounds for appealing orders are similar to those
for decrees and may include errors of law or fact. Parties may also appeal on the basis of
procedural irregularities or if the order has a substantial impact on their rights during the
proceedings.
Procedure for Filing an Appeal Against an Order: The procedure for filing an appeal
against an order involves submitting a memorandum of appeal, detailing the reasons for
challenging the order. It is essential to demonstrate how the order adversely affects the party's
rights or prejudices their case.
Appellate Court's Powers: Appellate courts reviewing orders have discretion in granting
relief. They may affirm, modify, or set aside the order. The court aims to correct any errors
and ensure a fair and just resolution of the issues at hand.
3. Certificate of Appeal to the Supreme Court:
Certification Criteria: Not all appeals have an automatic right to be heard by the Supreme
Court. In certain cases, an appellant may need a certificate of appealability, which is granted
based on specific criteria, such as involving a substantial question of law of general
importance.
Section 100 of the CPC: Section 100 of the Civil Procedure Code provides the statutory
basis for the grant of a certificate of appeal to the Supreme Court. It specifies that an appeal
to the Supreme Court can be made only on substantial questions of law.
Meaning of Substantial Question of Law: The term "substantial question of law" is not
explicitly defined in the CPC but generally refers to a question that is of general public
importance or has significant implications beyond the specific case at hand.
Importance and Gravity of the Question: The criteria for certification emphasize the
importance and gravity of the legal question. It should be a question that is central to the

case, has not been conclusively settled by precedent, and has broader implications for legal
principles.
Procedure for Obtaining a Certificate: The procedure for obtaining a certificate of appeal
to the Supreme Court involves making an application to the appellate court. The applicant
must articulate the substantial question of law and convince the court that the case merits
consideration by the highest judicial authority.
Supreme Court's Discretion: The grant of a certificate is within the discretion of the court,
and the court may refuse if it determines that the question raised does not meet the threshold
of being a substantial question of law.
4. Role of the Supreme Court in Appeals:
Appellate Jurisdiction of the Supreme Court: The Supreme Court, being the highest court
in the judicial hierarchy, has appellate jurisdiction over decisions from lower courts and
tribunals. It serves as the final court of appeal, ensuring uniformity in the interpretation and
application of law.
Scope of Review: When hearing appeals, the Supreme Court has a broad scope of review. It
can examine questions of fact and law, ensuring that the principles of justice are upheld and
the correct legal standards are applied.
Landmark Decisions: The Supreme Court, through its judgments in various cases,
contributes to the development of legal principles and precedents. Landmark decisions often
shape the interpretation and application of the law in subsequent cases.
Public Importance: The Supreme Court may choose to hear cases not only based on their
legal significance but also on their public importance. Cases with implications for public
policy or societal values may attract the attention of the Supreme Court.
Conclusion
In conclusion, the appellate process is a crucial component of the legal system, providing
parties with a mechanism to seek redress against decrees, orders, and certificates. Appeals
serve as a vital check on the judiciary, ensuring that decisions are fair, just, and in accordance
with the law. The right to appeal enhances the overall transparency and accountability of the
judicial system.
As cases progress through appellate stages, the higher courts contribute to the evolution and
clarification of legal principles. The Certificate of Appeal to the Supreme Court holds special
significance, granting parties access to the highest judicial authority. In essence, the appellate
framework is instrumental in upholding the principles of justice and ensuring the proper
administration of the law.

24)DISCUSS THE FRAMING OF ISSUES, TYPES OF ISSUES AND
THEIR IMPORTANCE.
Introduction for framing of issues under CPC-
Framing of issues is a key procedure under the Code of Civil Procedure (CPC) in India. It is a
process by which the court identifies the key legal questions in dispute between the parties
and formulates them into precise and concise statements. The issues framed by the court
provide a framework for the trial and guide the parties in presenting their evidence and
arguments.
The framing of issues serves several important purposes in civil litigation. First, it helps to
narrow down the scope of the trial by identifying the key legal questions in dispute between
the parties. This can help to streamline the trial process and avoid the presentation of

irrelevant or extraneous evidence. Second, it helps to ensure that the evidence presented is
relevant and admissible by focusing the parties on the key legal questions at issue.
Finally, it helps to ensure a fair and efficient trial process by providing a clear and concise
framework for the presentation of evidence and arguments.
In this context, the process of framing of issues plays a crucial role in the adjudication of civil
disputes in India. It is a key tool for promoting the expeditious disposal of cases and ensuring
that the parties are able to present their case in a fair and efficient manner.
What is framing of issues under CPC?
Framing of issues is an important stage in a civil case under the Code of Civil Procedure
(CPC) in India. Once the written statements of both the plaintiff and the defendant have been
filed, the court will examine the facts and issues in dispute and “frame” them as specific legal
questions that need to be addressed during the trial.
The purpose of framing of issues is to clarify and narrow down the key legal and factual
disputes between the parties, and to guide the trial process by ensuring that the evidence
presented by both parties is relevant and focused on the key issues.
The court may frame issues on its own or based on the request of either party. Once the issues
are framed, the parties will be given an opportunity to present their evidence and arguments
on each issue during the trial. The issues framed by the court are crucial as the evidence
presented by the parties will be evaluated against these specific legal questions.
The court may modify or add issues as the trial progresses if it finds that new facts or legal
questions have arisen. The framing of issues is an important part of the trial process as it
helps to ensure a fair and efficient resolution of the dispute.
What is the importance of framing issues?
Framing of issues is a critical stage in a civil case as it serves several important purposes:
Clarifies the legal and factual disputes: Framing of issues helps to identify and clarify the
key legal and factual disputes between the parties. This ensures that the parties are clear
about the specific legal questions that need to be addressed during the trial and can focus
their evidence and arguments on these issues.
Guides the trial process: The issues framed by the court serve as a guide for the trial process.
This helps to ensure that the evidence presented by both parties is relevant and focused on the
key issues.
Promotes efficiency: By narrowing down the issues in dispute, framing of issues helps to
promote efficiency in the trial process. This can help to save time and reduce the cost of
litigation.
Facilitates the assessment of evidence: The issues framed by the court are crucial as the
evidence presented by the parties will be evaluated against these specific legal questions.

This helps the court to make a fair and just decision based on the evidence presented. Overall,
the framing of issues is an important part of the trial process in a civil case as it helps to
ensure a fair, efficient, and effective resolution of the dispute.
What are the types of issues in CPC?
Under the Code of Civil Procedure (CPC) in India, issues can be classified into two types:
Material Issues: Material issues are those which relate to the facts of the case and the relief
sought by the parties. These issues are based on the pleadings of the parties and are framed
by the court after considering the allegations and defences in the written statements of the
parties. Material issues are essential to the determination of the case and the evidence
presented by the parties is evaluated against these issues.
Issues of Law: Issues of law are those which relate to the legal principles involved in the case.
These issues may arise from the interpretation of the law or the applicability of legal
provisions to the facts of the case. Issues of law are framed by the court based on the
submissions made by the parties during the trial process.
The distinction between material and legal issues is important as the evidence presented by
the parties is evaluated against the material issues, while the legal issues are decided by the
court based on the interpretation and application of the law. Overall, the classification of
issues into material and legal issues is an important part of the trial process in a civil case in
India under the CPC.
Case law?
Framing of issues is a well-established legal concept in India, and there are several case laws
that have clarified and expanded on its scope and importance in civil and criminal
proceedings.
One important case law related to framing of issues is the case of Salem Advocate Bar
Association, Tamil Nadu v. Union of India (2005). In this case, the Supreme Court of India
held that the framing of issues is an essential part of the trial process, as it helps to narrow
down the scope of the trial and ensure that the evidence presented is relevant and admissible.
The Court further held that the issues framed by the court must be based on the pleadings of
the parties, and must be precise and concise.
Another important case law related to framing of issues is the case of State of Haryana v.
Bhajan Lal (1992). In this case, the Supreme Court of India held that the framing of issues is
an important part of the trial process, as it helps to clarify the key legal questions in dispute
and ensures that the evidence presented is relevant and admissible. The Court further held
that the issues framed by the court must be based on the pleadings of the parties, and must be
framed in such a way as to facilitate the expeditious disposal of the case.
Overall, these and other case laws related to framing of issues emphasize the importance of
this process in civil and criminal proceedings, and underscore the need for precision and
conciseness in the framing of issues to ensure a fair, efficient, and effective trial process.

Conclusion for Framing of Issues under CPC-
In conclusion, framing of issues under the Code of Civil Procedure (CPC) in India is a crucial
step in ensuring a fair and efficient trial process. It helps to clarify the key legal questions in
dispute between the parties and ensures that the evidence presented is relevant and
admissible.
Although there are some potential limitations and drawbacks associated with the process of
framing of issues under the CPC, such as the possibility of delay, technicality, and restriction
of the scope of the trial, these can be mitigated through careful consideration by the court.
Overall, framing of issues is an important tool for promoting the expeditious disposal of civil
cases, and it remains a critical aspect of the Indian legal system.

25)WHAT IS EXECUTION OF DECREE? WHAT ARE THE MODES OF
EXECUTION OF DECREE?
Decree
To understand the meaning of the term “decree”, let us see what the CPC says about it.
Section 2(2) of the CPC defines a “decree” as the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and may be
preliminary or final. It shall be deemed to include the rejection of a plaint and the
determination of any question within Section 144, but shall not include-
Any adjudication from which an appeal lies as an appeal from an order, or
Any order of dismissal for default.
Furthermore, Section 2(2) of the CPC goes on to provide a short explanation of the term
“decree”. It states that a decree is preliminary when further proceedings have to be taken
before the suit can be completely disposed of. It is final when such adjudication completely
disposes of the suit. It may be partly preliminary and partly final.
A decree is the manifestation of the court’s adjudication. In simple language, the court’s
expression of its adjudication in favour of one or more parties to a suit is called a “decree.” It
is the decree that clarifies which party won the suit.
In a decree, there are two parties; one is the decree-holder and the other is the decree-debtor.
A decree-holder is the party in favour of whom a decree is passed (Section 2(3) of the CPC);
on the other hand, a decree-debtor is the party against whose favour a decree is passed.
To further understand what a “decree” actually means, it is important for us to know the
meaning of another term, “judgement”. As per Section 2(9) of the CPC, a “judgement”
means the statement given by the judge on the grounds of a decree or order. It means that a
judgement contains the grounds of a decree. A decree is derived from a judgement. So, every
decree follows a judgement. Ultimately, a decree is the formal manifestation or representation
of the judge’s ruling.
Execution is the last stage of any civil litigation. There are three stages in litigation:
Institution of litigation.
Adjudication of litigation.
Implementation of litigation.
Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of the plaint. The decree
means operation or conclusiveness of judgment. Implementation of a decree will be done
only when parties have filed an application in that regard.
A decree or order will be executed by the court as facilitative and not an obligation. If a party
is not approaching the court, then the court has no obligation to implement it suo motu. A
decree will be executed by the court which has passed the judgment. In exceptional

circumstances, the judgment will be implemented by another court which is having
competency in that regard.
Execution is the medium by which a decree-holder compels the judgment-debtor to carry out
the mandate of the decree or order as the case may be. It enables the decree-holder to recover
the fruits of the judgment.
Execution
The term execution has not been defined in the code. The expression execution means
enforcement or implementation or giving an effect to the order or judgment passed by the
court of justice[1]. Simply execution means the process for enforcing or giving effect to the
judgment of the court.[2]
Execution is the enforcement of decrees and orders by the process of the court, so as to
enable the decree-holder to realize the fruits of the decree[3]. The execution is complete
when the judgment-creditor or decree-holder gets money or other thing awarded to him by
the judgment, decree or order.
Supreme Court in Ghanshyam Das v. Anant Kumar Sinha[4] dealing with provision of the
code relating to execution of decree and orders, stated:
so far as the question of executability of a decree is concerned, the Civil Procedure Code
contains elaborate and exhaustive provisions for dealing with it in all aspects. The numerous
rules of Order 21 of the code take care of different situations providing effective remedies not
only to judgment-debtors and decree-holders but also to claimant objectors, as the case may
be. In an exceptional case, where provisions are rendered incapable of giving relief to an
aggrieved party inadequate measures and appropriate time, the answer is a regular suit in the
civil court.
The remedy under the Civil Procedure Code is of superior judicial quality then what is
generally available under other statutes and the judge, being entrusted exclusively with
administration of justice, is expected to do better[5]. The Law Commission in its 14th (1958),
27th (1964) & 44th (1973) reports also considered the difficulties realised by the decree-
holders after obtaining decree from a competent court of law. It also went into the reasons for
unsatisfactory state of affairs and made several recommendations and suggestions.
Courts Which May Execute Decrees

Section 38 of the Code says that a decree may be executed either by the court which passed it
or by the court to which it is sent for execution. Section 37 defines the phrase courts which
passed a decree while Sections 39 to 45 provide for the transfer for the execution of a decree
by the court which passed the decree to another court, lay down conditions for such transfer
and also deal with the powers of executing court. Therefore, all this needs to be read together.
A decree may be execute by the court which passed it or by the court to which it is sent for
execution[6]. A court which has neither passed a decree, nor a decree is transferred for
execution, cannot execute it[7]. Where the court of first instance has ceased to exist or ceased
to have jurisdiction to execute the decree, the decree can be executed by court which at the

time of making the execution application would have jurisdiction in the matter[8].
Transfer of Decree for Execution: Sections 39-42; Order 21 Rule 3-9

As stated above, a decree may be executed either by the court which passed it or by the court
to which it is sent for execution. Section 39 provides for the transfer of a decree by the court
which has passed it and lays down the conditions therefor.
As a general rule, the court which passed the decree is primarily the court to execute it, but
such court may send the decree for execution to another court either suo motu (of its own
motion) or on the application of the decree-holder if any of the following grounds exists:
The judgment-debtor actually and voluntarily resides or carries on business, or personally
works for gain, within the local limits of the jurisdiction of such court; or
The judgment-debtor does not have property sufficient to satisfy the decree within the local
limits of the jurisdiction of the court which passed the decree but has property within the
local limits of the jurisdiction of such other court; or
The decree directs the sale or delivery of immovable property situate outside the local limits
of the jurisdiction of such other court; or
The court which passed the decree considers it necessary for any other reason to be recorded
in writing that the decree should be executed by such other court.
The provisions of Section 39 are, however, not mandatory and the court has discretion in the
matter which will be judicially exercised by it[9]. The decree-holder has no vested or
substantive right to get the decree transferred to another court. The right of the decree-holder
is to make an application for transfer which is merely a procedural right.
General Principles
With regard to the powers and duties of executing courts, the following fundamental
principles should be borne in mind:
As a general rule, territorial jurisdiction is a condition precedent to a court executing a
decree, and, therefore, no court can execute a decree in respect of property situate entirely
outside its local jurisdiction.
An executing court cannot go behind the decree. It must take the decree as it stands and
execute it according to its terms. It has no power to vary or modify the terms[10]. It has no
power to question its legality or correctness. This is based on the principle that a proceeding
to enforce a judgment is collateral to the judgment and therefore, no inquiry into its regularity
or correctness can be permitted in such a proceeding.
In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and its
invalidity could be set up wherever and whenever it is sought to be enforced, whether in
execution or in collateral proceedings[11]. In such a case, there is no question of going
behind the decree, for really in the eye of the law there is no decree at all.
Inherent lack of jurisdiction, however, must appear on the face of the Record. Hence, if the
decree on the face of it discloses some material on the basis of which the court could have
passed the decree, it would be valid. In such a case, the executing court must accept and
execute the decree as it stands and cannot go behind it. To allow the executing court to go

behind that limit would be to exalt it to the status of a superior court sitting in appeal over the
decision of the court which has passed the decree.
A decree which is otherwise valid and executable, does not become inexecutable on the death
of the decree-holder or of the judgment- debtor and can be executed against his legal
representatives.
When the terms of a decree are vague or ambiguous, an executing court can construe the
decree to ascertain its precise meaning. For this purpose, the executing court may refer not
only to the judgment, but also the pleadings of the case[12].
An executing court can go into the question of the executability or otherwise of the decree
and consider whether, by any subsequent developments, the decree has ceased to be
executable according to its terms.
A decree which becomes inexecutable by operation of law, may become executable by virtue
of a subsequent amendment in the statute and can be executed after such amendment.
The executing court has power to mould the relief granted to the plaintiff in accordance with
the changed circumstances.
The court executing the decree transferred to it has the same powers in executing such decree
as if it had been passed by itself.
Who may apply for the execution? Rule 10

The following persons may file an application for execution:
Decree-holder[13].
Legal representative of the decree-holder, if the decree-holder is dead[14].
Representative of the decree-holder.
Any person claiming under the decree-holder.
Transferee of the decree-holder, if the following conditions are satisfied[15]:
The decree must have been transferred by an assignment in writing or by operation of law;
The application for execution must have been made to the court which passed the decree.
Notice and opportunity of hearing must have been given to the transferor and the judgement-
debtor in case of assignment by the transfer.
The object of issuing a notice is to determine once and for all and in the presence of the
parties concerned the validity or otherwise of the assignment or transfer[16].
One or more of the joint decree-holders, provided the following conditions are fulfilled[17]:
The decree should not have imposed any condition to the contrary;
The application must have been made for the execution of the whole decree and;
The application must have been for the benefit of all the joint decree-holders.
Against whom the execution can be made?

Execution may be taken out against the following persons:
Judgement-debtor[18].
Legal representative of the judgement-debtor, if the judgement-debtor is dead[19].
Representative of or the person claiming under the judgement-debtor[20].
Surety of the judgement-debtor[21].
An application for the execution of the decree may be filed in the court which passed the
decree or in the court to which the decree has been transferred for the execution.
Limitation: The limitation period for the execution of a decree is 12 years from the date of the
decree. The period of limitation for the execution of a decree for mandatory injunction is 3
years from the date of the decree.
Execution Application and Res Judicata: After the Amendment Act of 1976 issue of Res
Judicata is now specifically dealt with as Section 11 with Explanation VII specifically
provides that the provisions of res judicata will apply to execution proceedings also.
Mode of Execution
The code lays down various mode of execution. After the decree-holder files an application
for execution of decree, the executing court can enforce execution.
A decree may be enforced by delivery of any property specified in the decree, by attachment
and sale or by sale without attachment of the property, or by arrest and detention, or by
appointing a receiver, or by effecting partition, or any such manner which the nature of relief
requires.
Arrest and Detention

One of the modes of executing a decree is arrest and detention of the judgment-debtor in civil
imprisonment. Where the decree is for payment of money, it can be executed by arrest and
detention of the judgment-debtor.
A judgment-debtor may be arrested at any time on any day in the execution of a decree. After
this arrest, he must be brought before the court as soon as practicable. For the purpose of
making arrest, no dwelling house may be entered after sunset or before sunrise. Further, no
outer door of a dwelling house may be broken open unless such dwelling house is in the
occupancy of the judgment-debtor and he refuses or prevents access thereto.
No order of detention of the judgment-debtor shall be made where the decretal amount does
not exceed Rs.2000. Where the judgment-debtor pays the decretal amount and costs of arrest
to the officer, he should be released once. Women, judicial officers, the parties, their pleaders,
member of legislative bodies, a judgment-debtor where the decretal amount does not exceed
Rs 2,000, this person cannot be arrested and detained in civil imprisonment.
A decree for money cannot be executed by arrest and detention where the judgment-debtor is
a woman, or a minor, or a legal representative of a deceased judgment-debtor.

Attachment of Property
A decree may also be executed on the application of the decree-holder by attachment and sale
the only sale without attachment of property. The code recognizes the right of the decree-
holder to attach the property of the judgment debtor in execution proceeding and lays down
the procedure to effect attachment. Sections 60 to 64 and Rules 41 to 57 of Order 21 deals
with the subject of attachment of property.
The code enumerates properties which are liable to be attached and sold in execution of a
decree. It also specifies properties which are not liable to be attached or sold. It also
prescribes the procedure where the same property is attached in execution of decrees by more
than one court. The code also declares that a private alienation of property after attachment is
void.
Section 60(1) declares what properties are liable to attachment and sale in execution of a
decree, and what properties are exempt therefrom. All saleable property (movable or
immovable) belonging to the judgment-debtor or over which or the portion of which he has a
disposing power which he may exercise for his own benefit may be attached and sold in
execution of a decree against him.
Section 61 deals where the judgment-debtor is an agriculturalist. It states that judgment-

debtor is an agriculturalist. Any agriculturalist produce is subject matter of agriculturalist.
The quantum of attachment of agricultural product depends upon the quantum of decretal
amount.
Section 63 where two different courts have attached the same property through different
decree, then it will be looked, that which court is superior. The value of the property will
determine whether further attachment can be done or not.
Percept
Section 46– precept means a command, an order, a writ or a warrant. A percept is an order or
direction given by court which passed the decree to a court which would be competent to
execute the decree to attach any property belonging to the judgment-debtor.
Section 46 provides that court which passed a decree may, upon an application by the decree-
holder, issue a percept to that court within whose jurisdiction the property of the judgment-
debtor is lying to attach any property specified in the percept.
A percept seeks to prevent alienation of property of the judgment-debtor not located within
the jurisdiction of the court which passed the decree so that interest of the decree-holder is
safeguarded and protected.
It is the interim attachment of the property which lies outside the jurisdiction of the court
which has passed the order. To protect the interest of the decree holder on his application will
issue percept to the court in whose jurisdiction property is situated to attach the property of
the judgment-debtor. The interim order for attachment is valid for the period of only 2

months.
Garnishee Order
It is the proceeding by which the decree-holder seeks to reach money or property of the
judgment-debtor in the hands of a third party (debtor of judgment-debtor).
Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may
require A not to pay money owed by him to B, but instead to pay C, since B owes the said
amount to C, who has obtained the order.
Garnishee order is an order passed by a court ordering a garnishee not to pay money to the
judgment-debtor because the latter is indebted to the garnisher.
Sale of the Property

A decree may be executed by attachment and sale or sale without attachment of any property.
Section 65 to 73 and Rules 64 to 94 of Order 21 deals with the subject relating to the sale of
movable and immovable property.
Power of court (Rule64-65): Rule 64: a court may sell the property, which he has taken into
custody under an attachment under Order 60. Rule 65: appointment of officer by the court
who will be charged to sell the property. Officer will be the representative of the court and
will sell the property for execution of decree.
Proclamation of sale (Rule66-67): It is a kind of order or declaration. It operates as a public

notice regarding the sale. It's said that people can participate in auction and sale. The
proclamation can be in writing or by customary mode.
Contents of the proclamation:

Time and place of sale
Property to be sold
Revenue, if any, assessed upon the property;
Encumbrance, if any, to which property is liable;
Amount to be recovered;
Details relating to property, such as title deed, length etc.
Time of sale: Rule 68 No sale without the consent in writing of the judgment-debtor can take
place before fifteen days in case of immovable property and before 7 days in case of movable
property from the date of proclamation in the courthouse. A sell can be conducted
immediately if the property is of perishable nature.
Adjournment of sale: Rule69 If the judgment-debtor after the issue of proclamation and
before sell has paid the amount or has partly promised to pay on the given date before
completion of public order, if there is any justified reason, in those circumstances, court has
discretionary power to postpone the sell. If it has been postponed for a period of 30 days, the
fresh proclamation has to be issued and again the process of Rule 67, 68 and 69 will follow.
Sell cannot be postponed where judgment-debtor dies before the date of sell or after the issue

of proclamation, or on the date of the auction.
Restriction to bid (Rule72-73): A decree-holder cannot, without the express permission of the
court, purchase the property sold in execution of his own decree.
A mortgagee of immovable property cannot, without the leave of the court, purchase the
property sold in execution of the decree on the mortgage.
Any officer or other person having any duty to perform in connection with the execution sale
cannot either directly or indirectly, acquire or any attempt to acquire any interest in the
property sold in execution.
Sale of movable property (Rule78-78): It relates to the sale of agricultural produce and
growing crops. Rule 76 covers negotiable instruments and shares. Sale of movable property
should be held by public auction. A sale of the movable property will not be said aside on the
ground of irregularity in publishing or conducting the sale (Rule 78).
Sale of immovable property (Rule82-94): Rule 83 enables the executing court to postpone
sale to enable the judgment-debtor to raise decretal dues by private alienation.
Payment of purchase money by auction-purchaser (Rule84-85): Rule 86 talks about cases of

default by auction-purchaser in making requisite payment and resale of the property. Rule 89-
91 and 93 deals with setting aside sale and effect thereof. Rules 92-94 provide confirmation
of sale and issuance of sale- certificate. Section 65 declares the effect of sale.
Stay of Execution
Provisions for stay of execution of a decree are made in Rule 26 of Order XI. This rule lays
down that the executing court shall, on sufficient cause being shown and on the judgement-
debtor furnishing security or fulfilling such conditions, as may be imposed on him, stay
execution of decree for a reasonable time to enable the judgment-debtor to apply to the court
which has passed the decree or to the appellate court for an order to stay execution.
The power to stay is not similar between the court who passed it and to the court the decree is
transferred for execution. The transferee court can only stay the execution of decree for a
reasonable time to enable the judgement-debtor to apply to the transferor court or to the
appellate court to grant stay against the execution but the transferor court can grant the
absolute stay against the execution. A transferee court cannot invoke inherent powers to grant
stay[22].
There is distinction between staying of an order and quashing of an order. Quashing of an

order means that no such order had ever been passed and there is restoration of position as it
stood prior to the passing of the order. Stay of order, however, means that the order is very
much there, but its operation is stayed.
Stay of Execution of Pending Suit: Rule 29

Rule 29 provides for stay of execution pending suit between the decree-holder and the
judgment debtor. It enacts that where a suit by the judgment-debtor is pending in a court
against the decree holder such court may, on the judgment debtor furnishing security or
otherwise as it thinks fit, stay execution of the decree until the disposal of such suit.
The underlying object of this provision is twofold, (i) to enable the judgment-debtor and the
decree holder to adjust their claims against each other; and (ii) to prevent multiplicity of
execution proceedings.
For this rule to apply, there must be two simultaneous proceedings in one and the same
court:
A proceeding in execution of the decree at the instance of the decree holder against the
judgment-debtor; and
a suit at the instance of the judgment debtor against the decree-holder.
For the application of this rule, it is not enough that there is a suit pending by the judgment-
debtor. Such suit must be against the decree-holder in such court. The words "such court" are
important and would mean that the suit must be pending in the same court."
The provisions of Rule 29 are not peremptory but discretionary. The discretion, however,
must be exercised judicially and in the interests of justice and not mechanically and as a
matter of course[23]. No hard and fast rule can be laid down in what cases stay would be
granted or refused. This rule is based on the principle that a judgment-debtor may not be
harassed if he has a substantial claim against the decree-holder which is pending for the
decision of the court executing the decree. If the court is of the view that there is some
substance in the claim, it may order for the stay of execution filed by the defendant in that
case but not otherwise.
While exercising the discretion conferred under Rule 29, the court should duly consider that a
party who has obtained a lawful decree is not deprived of the fruits of that decree except for
good and cogent reasons. So long as the decree is not set aside by a competent court, it stands
good and effective and it should not be lightly dealt with so as to deprive the holder of the
lawful decree of its fruits.
A party should not be deprived of the fruits of the decree obtained by him from a competent
court merely because a suit has subsequently been filed for setting aside that decree. A decree
passed by a competent court should be allowed to be executed and unless a strong case is
made out on cogent grounds no stay should be granted.
Even if stay is granted it must be on such terms as to security, etc., so that the earlier decree is
not made ineffective due to lapse of time. The discretion of the court under Rule 29[24] has
to be exercised with "very great care" and only in "special cases". It cannot be exercised so as
to allow a party to abuse the process of law.
Prior to the amendment in the Code in 1976, the jurisdiction to stay execution of a decree
vested only in the court which passed the decree. Hence, when the decree was transferred by
the court which passed it to another court, the transferee court had no power to stay its
execution. By virtue of the amendment of 1976, now the executing court is also competent to

stay not only the decree passed by it, but also a decree passed by another court transferred to
it for execution.
It is submitted that the following observations of Misra, J, in the case of Judhiatir v.

Surendra, lay down correct law on the point:
The fundamental consideration is that the decree has been obtained by a party and he should
not be deprived of the fruits of that decade except for good reasons. Until that decree is set
aside, it stands good and it should not be lightly dealt with on the off chance that another suit
to set aside the decree might succeed. The decree must be allowed to be executed, and unless
an extraordinary is made out, no stay should be granted. Even if stay is granted, it must be on
suitable terms that the earlier decree is not stifled[25].
The proviso has been added by the Amendment Act of 1976. It enacts that if the decree is for
payment of money and if the court grants stay without requiring security, it shall record its
reasons for doing so.
Order of Injunction and Order of Stay: There is distinction between an order of injunction
and an order of stay. The former is an order against a person or an individual restraining him
from doing something. The latter is a direction or an order to a court not to do something.
Proceedings taken in contravention of injunction order are not null and void being without
jurisdiction. The effect of non-compliance of an order of injunction may make the person
liable to punishment. Proceedings in contravention of an order of stay, on the other hand are a
nullity and of no effect whatsoever.
Conclusion
From the above discussion, it clearly appears that execution is the enforcement of decrees
and orders by the process of court, so as to enable the decree-holder to realize the fruits of the
decree. The execution is complete when the judgment-creditor or decree-holder gets money
or other thing awarded to him by the judgment, decree or order.
Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and
order, take care of the different type of situation and provide effective remedies not only to
the decree-holder and judgment-debtors but also to the objectors and third parties.
A decree can be executed by various modes which include delivery of possession, arrest, and
detention of the judgment-debtor, attachment of the property, by sale, by appointment of
receiver, partition, cross-decrees, and cross-claims, payment of money etc.
On exceptional situation, where provisions are rendered ineffective or incapable of giving
relief to an aggrieved party, he can file suit in civil court.

Cpcnotesoriginal 1

Uploaded by

Document Informationclick to expand document information

Copyright:

Available Formats

Cpcnotesoriginal 1

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Cpcnotesoriginal 1

Uploaded by

Copyright:

Available Formats

CPC (CIVIL PROCEDURE CODE) – ASSIGNMENT

1) JURISDICTION & ITS TYPES.

Lack of jurisdiction and irregular exercise of jurisdiction

The basis to determine jurisdiction

Territorial or local jurisdiction

Aneel U 1 CPC Notes

Jurisdiction as to the subject matter

Original and appellate jurisdiction

Exclusive and concurrent jurisdiction

General and special jurisdiction

Legal and equitable jurisdiction

Aneel U 2 CPC Notes

Jurisdiction of foreign courts

Jurisdiction of civil court

Aneel U 3 CPC Notes

Law of Limitation in India

The Salient Features are

Aneel U 4 CPC Notes

Aneel U 5 CPC Notes

3) CPC PROVISIONS RELATING TO INJUNCTIONS & INTERLOCUTORY

To illustrate the practicality of an injunction, it can be used to force striking workers to

An injunction is characterized by three important notions which include the presence of a

Temporary Injunction & its basic principles

When can a Temporary Injunction be rejected

Aneel U 6 CPC Notes

Aneel U 7 CPC Notes

Aneel U 8 CPC Notes

Aneel U 9 CPC Notes

Aneel U 10 CPC Notes

Written statement order 8

Set off (Order VIII, Rule 6]

Aneel U 11 CPC Notes

Who may file counterclaim?

Aneel U 12 CPC Notes

Arrest before judgment:

Aneel U 13 CPC Notes

Attachment before judgment

2. Procedure in case the defendant remains unsuccessful in giving security:

Aneel U 14 CPC Notes

Aneel U 15 CPC Notes

Filing or Defending of Suit on Minor’s Behalf (Order XXXII, Rules 1-14)

Qualifications as to be a Guardian or Next Friend

Aneel U 16 CPC Notes

In this case no right could be acquired by the purchaser Prabhudayal.

Aneel U 17 CPC Notes

A court-appointed official who is in charge of carrying out specific tasks or responsibilities on

Aneel U 18 CPC Notes

Aneel U 19 CPC Notes

Discovery can be of two types- discovery of documents and discovery by interrogatories.

Aneel U 20 CPC Notes

Aneel U 21 CPC Notes

Major Provisions of the Limitation Act, 1963:

Main Ingredients of Adverse Possession:

Aneel U 22 CPC Notes

Criticism and Recommendations:

Arguments Against Adverse Possession:

• Inequitable Outcome: Adverse possession can lead to unjust outcomes, especially