CPC PART 3

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CIVIL PROCEDURE
CODE
STUDY MATERIAL
PART-3
Collected by:
Y. SREENIVASULU,
Advocate,
TADIPATRI-515411
Ananthapuramu Dist.
Mobile: 9949474741
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CIVIL PROCEDURE CODE

PART-3
Commencement of a Trial under the Code of Civil Procedure, 1908
 Introduction
 Discovery and Inspection of Truth
 Framing of Issues
 Hearings in the Suit
Introduction
Before the procedure for trial under the CPC is examined in detail, it is
vital that the general procedure and the general facets of trial are
understood clearly. In a trial, the victim side first submits their written
submissions containing the claims, cause of such claim and the reliefs
sought from the court.
In response, the opposite party submits their written submissions

containing response to all individual allegations and claims put forth by
the victim side and mentioning his point of view as to the facts of the
case. After this, the court usually examines the victim in the court orally
and on the basis of the understanding from the allegations put by the
victim, the court frames the issues to be decided by the court at the end
of the trial.
Then the victim is examined by his own counsel (examination-in-chief)

to allow him to explain the facts and circumstances of the case and
then the opposite party cross-examines the victim. Subsequently, the
opposite party is examined by his counsel (examination-in-chief) to
answer the allegations hurled by the victim side and then the victim
cross-examines the opposite party.
The above mentioned is a bird‘s eye view of the trial procedure in any
matter; civil or criminal. According to place, nature of trial and
requirements of the matter, this procedure takes different forms. For
instance, in India, in civil matters, the examination-in-chief of parties to
a suit is done through a serving list of questions to each other and
demanding answers to them. These are called interrogatories.
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Similarly, witnesses are examined-in-chief by mentioning their

testimony on a sworn affidavit. Hereunder the article discusses the
need and procedure of serving interrogatories, settling of issues and
hearings in the court during the trial.
I. Discovery and Inspection of Truth

After the plaint and written statement is duly submitted and the trial
commences, it is essential for the parties to gain knowledge about each
other‘s case and their contentions to be put before the Hon‘ble Court.
The information does not only confine to material facts of the case
according to other party but also includes all relevant documents and
reports in his ownership or power which are applicable to issue in the
suit can likewise be requested to be delivered because the parties may
perhaps use this information to keep up the case or denounce or crush
the case. There are, along these lines, two sorts of facts for a situation.
These are: (a) facto probanda, meaning facts that are the storyline or
the circumstances for cause of action according to the party itself and
(b) facto probantia, meaning those facts which form as evidence to be
used in a court of law to prove facto probanda.
For instance, assume a case where A claims violation of his

elementary rights by a wall constructed by B in front of the main gate of
A‘s house. B claims that the house possessed by A is owned by B and
A is an illegal occupant of the house. A produces a sale deed showing
the house being bought by A‘s father from the previous owner of the
house and pictures showing the wall blocking A‘s right to free passage.
On the other hand, B produces a lease deed between A‘s father and
B‘s father showing that the house was leased out by his father to A and
hence, the lease has ended and the possession is unlawful.
In this case, the fact that A claimed a wall construction before his
house and B claiming the ownership of the house are facta
probanda whereas the documents to prove these facts are facta
probantia. In a civil suit, only facta probanda is allowed to be asked by
the parties and not facta probantia.
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Order XXII of the CPC deals with discovery and inspection of facts of
each other by the parties through two means. Firstly, through
interrogatories and secondly, by filing an application before the court.
Since it is as of now referenced that discovery might be looked for by
documenting a sworn affidavit or generally against defendant or plaintiff
with the suit; yet there are two conditions point of reference for a
disclosure to be ordered by the court. First, that such disclosure or
discovery is essential for fair and impartial disposal of the suit and
second, such revelation in a way or otherwise spares cost.
Rule 12 of Order XXII provides the right to every party to a suit to file
an application before the court requesting it to order the adverse party
to produce certain documents which are essential to give the applicant
a reasonable idea of the case of the adverse party.
However, there is an exception to this rule which states that if the
documents are of privileged nature, i.e. documents which relate to
government officials, defence personnel or any document relating
interior matters of family are protected from being produced to the
adverse party but, however, if the court finds the document essential
for the case, it may order the party to produce it before the court for
inspection.
II. Framing of Issues

Issues, in the simplest form, means questions that are raised by the
parties to be resolved by the court. When two parties do not agree to a
point of fact or circumstance and hurl allegations against each other,
then issues arise which need to be addressed by the court.
Order XIV of the CPC deals with settlement of issues by the court after
the suit has been brought before it. According to Rule 1, issues arise
when ‗material facts‘ related to the case before the court are asserted
by one party while it is falsified by the adverse party. The keyword in
the above statement is that the dispute must be over ―material facts‖
and not general facts of the case.
The code also explains what is a material fact or a material proposition
under Sub-rule 2 of Rule 1 and does not leave it in ambiguity.
Accordingly, material facts are those facts which the plaintiff must
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allege or aver that exist to prove that there is a bona fide cause of
action and he has a right to sue the defendant. On the other hand,
material propositions for the defendant are those which he must assert
before the court to establish a valid defence in his favour.
There can be disputes between the plaintiff and the defendant on

several point of facts which may lead to several legal injuries to the
plaintiff. All facts that constitute a different legal action or a distinct right
to sue are separate material facts and for each material fact, the court
shall frame an issue to be resolved. Further, at the disposal of the
case, it also the general rule under Rule 2 of this Order of the CPC that
the court should pronounce the decree and judgment separately for
each issue. This ensures brevity and clarity in the points in dispute and
the decision of the court.
According to Sub-rule 4, issues are of two types; (a) issues of fact and
(b) issues of law. Issues of fact are those points in dispute which relate
to the existence or non-existence of a factual situation and can be
proved only through evidence. Issues in law are pointers in dispute with
respect to the interpretation of certain legal provision. For instance,
whether a piece of land belongs to A or B is an issue of fact and can be
proved through evidence while whether the term ‗order‘ under Section
2 of the CPC includes interim order as well as a question of law and
requires detail argument and analysis of of the section to interpret the
same.
According to Sub-rule 5, the issues are framed by the court itself after it
determines the material facts which are in dispute. So, after the plaint
and a written statement is submitted, the court shall examine the
parties to the suit and allow the parties to present their opening
arguments asserting their claims and cause of action for such claims.
On the basis of these averments, the court shall decide the facts which
are in dispute between the parties and legal provision, if any, which
requires interpretation by the court. After the issues are settled by the
court, the parties are required to address those issues in their
submissions.
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III. Hearings in the Suit

Hearing refers to the day to day hearing before the court wherein the
parties present their respective submissions, examine witnesses and
produce documents to substantiate their respective case. Order
XVIII of the CPC deals specifically and particularly with hearings and
the stages involved in the hearing of the suit. Hearing includes two
essential stages which are explained hereunder:
 Opening of the Case

It is the right of the plaintiff to commence the hearing by submitting his
averments before the court. In its opening, plaintiff attempts to explain
the court the material facts of the case and the cause of action arising
from the facts. Further, this is the stage when the plaintiff has to satisfy
the court that all legal requirements have been duly fulfilled and the suit
is not barred under any law.
If the defendant accepts the allegations of the plaintiff at the first

hearing when summon was issued to him, the right to begin shifts to
the defendant from the plaintiff. The defendant shall commence the
proceeding and explain the court part of the allegations which he
accepts and part, if any, which he denies.
The defendant goes on to ascertain the court regarding the

circumstances in which such actions had taken place and may assert
that the plaintiff does not have the right to claim the relief that he seeks.
 Production of Evidence
Evidence here refers to witness testimony by the witnesses produced
by both the parties. Before proceeding with the rules of recording
evidence, it is necessary to understand that there are two kinds of
examination a witness is subjected to. When the witness is examined
by the party who calls the witness, it is called examination-in-chief and
when the witness is examined by the adverse party, it is called cross-
examination.
According to Rule 4, examination-in-chief of a witness shall not be

conducted orally but his testimony shall be written on a sworn affidavit
and submitted to the court and the adverse party to prepare for cross-
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examination. An affidavit which has been once filed can be withdrawn

by the party who files it if the application is made before the
commencement of the cross-examination and the court shall not infer
anything against the party from such withdrawal.
All the affidavits should be filed subsequently, one after the other and
when all the affidavits are filed, the court fixes date for cross-
examination of witnesses one by one. According to sub-rule 2, cross-
examination of a witness whose affidavit has been filed shall be
conducted by the court itself or by a commissioner appointed by the
court to act on its behalf.
These evidence shall be taken by the court in writing and as far as
practicable through dictation to his agent/stenographer. The evidence
should be given on oath which is mandated under Rule 5 of the Order
and only such examinations will allow the case to be appealed before
an appellate court.
After the conclusion of the evidence, the parties may render closing
submissions and the court records its finding according to what it has
observed and pass an appropriate decree with reasoning.
References
1. Avtar Singh, The Code of Civil Procedure, (5th 2018).

2. Dinshaw F. Mulla, The Key to Indian Practice: A Summary Of
The Code Of Civil Procedure, 11th 2015.
3. C. Sarkar, Sarkar Code of Civil Procedure, (2017).
Concepts of Admission and Affidavits under the Code of Civil

Procedure, 1908
Admission under the Evidence Act, 1872 means, in simple terms, the
acceptance of the statements or facts by the party who is referred to
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such fact. Under the Civil Procedure, examination-in-chief takes place

through affidavits and all admissions are done through affidavits as
well. Hence, this article shall assist in understanding the concepts of
admission and affidavits under the Code of Civil Procedure, 1908.
Introduction
The civil procedure code in India envisages the concept of Admission.
As the word itself suggests that it is an acknowledgment of something.
In a court of law admission is done through three ways:
 Firstly, it is done through oral or documentary evidence available

at the behest of the parties
 Secondly, it is done through the written submissions made by the
parties. In simpler terms through the arguments made by the parties.
 Lastly, by agreement between the parties to recognize or accept
particular evidence in whatsoever form.
I. How is an admission made?
As highlighted above admission is made either orally or through a
document. Now, this admission is made under oath by a person who
has knowledge of the facts and he then makes an admission through
an affidavit. This affidavit need not be in usual circumstances proved if
it is accompanied by annexures and relevant documents. However,
Rule 1 specifies that the court may direct any of the party to prove the
contents of the document if required.
Order XII and Order XIX go hand in hand and cannot be read in
isolation. I shall be explaining admission and then how is an admission
made by way of an affidavit.
Now the purpose of admission is to ensure that the court can move
forward with the assumption that the ‗admission‘ is truthful or reliable.
However, the court may at its discretion under certain circumstances
direct the party to prove the admission to ensure truthfulness.
The code of civil procedure envisages the concept of admission under

Order XII of the enactment. Order XII further envisages certain rules
made under laying down the procedure in further detail.
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What is the procedure of admission by a party?

Rule 1 of Order XII states that if any party wants to admit a certain fact
or evidence it can do so by sending a notice to the other party. This
notice allows the other party to have more clarity about the admission
made by the party. This notice requires the admitting party to
specifically state the facts admitted, either in whole or in part.
On the other hand, if a plaint makes certain allegations and the written
statement made as a reply to the plaint does not specifically deny the
stated facts. It shall be deemed that the adverse party is making an
admission of a certain fact according to Rule 2A of Order XII.
Therefore, the written statement should have a reply to each and every
paragraph of the plaint and when there is a failure to do so, it shall be
deemed to be admitted by the adverse party.
This rule further comprises of a proviso which states that it is the

discretion of the court to require any document so admitted to be
proved otherwise than by such admission. When a party is sent a
notice to admit certain facts but he fails to do so, it is the power of the
court to pass an order directing him to pay costs.
Time limits prescribed under Rule 4 of Order XII.
Any of the two parties may give notice to the other party to admit a
certain fact before Nine(9) days of the date of hearing fixed by the
court. Now the receiving party shall if neglects this notice or refuses to
reply to the same can be asked to pay costs for admission of the fact.
But it is to be noted, this time period can be extended by the court at its
discretion. The court can allow the party to reject or withdraw such
admission at any stage if it deems fit. Further, Rule 6 states that the
court may pass judgment on the basis and consideration of these
admissions made.
II. Affidavits
An affidavit is a sworn document by a person who has the knowledge
of a fact to be true and it can be said that this person admits those facts
to be true on Oath. The affidavit is signed by this person who is called
the Deponent. Now it is important to note that since this document is on
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oath if the court finds out to be dishonest and untruthful the deponent
can be held liable for the same. And a case of perjury i.e. lying to the
court can be instituted before the court.
This affidavit is a certain type of guarantee that the facts and

circumstances mentioned in the document are correct and to the best
of his knowledge. Furthermore, this affidavit needs to be attested by
the Notary (court-appointed officers) who ensures that the affidavit is
signed by the deponent himself and is not forged in nature.
In civil cases, unlike criminal cases, the chief examination of a person

is said to be taken on affidavit and the deponent can be cross-
examined in the court with regards to the contents of the document
presented as per Rule 2 under Order XIX.
Rule 3, further explains that an affidavit can only be made by a

deponent based upon the facts which he himself has knowledge of,
except Interlocutory applications in which statements he believes to be
true are made.
But it also needs to be duly noted that Rule 5 furthers that court in its
discretion redacts or reject any fact made on affidavit as a part of the
chief examination. It may direct the party, to redact the examination in
chief by way of affidavit if it feels that a certain portion is not relevant or
are not evidence. And the court can furthermore also reject or return an
affidavit if it is of the view that the contents are not admissible by the
court.
Rule 6 states the guidelines which need to be followed while drafting of

an affidavit. It is essential to ensure that the affidavit should contain
relevant facts which are formatted in paragraphs and should be in the
chronology of events as it has occurred. If the court at any time,
observes that the contents of the affidavit are a mere copy or
reproduction of the pleadings made by the party it can strike out
portions or the whole affidavit as it deems fit.
Each paragraph of an affidavit should be distinct and separate from

each other and deal with each subject matter at a time. if any
paragraph requires an annexure or a document on which it is relying on
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it should be annexed to the affidavit and should refer to the specific

page numbers as well as envisaged under rule 6(iv) of Order XIX.
Can an affidavit be treated as evidence?

The court can take the affidavit into evidence and if it qualifies
according to the court and shall be treated as evidence under section 3
of the Indian Evidence Act. But there are precedents which specify
what an affidavit should comprise of.
In the case of Padmabati Dasi v. Rasik Lal Dhar [(1910) ILR 37

Calcutta 259] the court observed that the affidavit should strictly
comprise the rules laid down under Order XIX of CPC and should
specifically provide that which portion of the affidavit the deponent had
personal knowledge of and what is stated based upon deponents belief
needs to be particularly highlighted. This will be useful for the court to
decide what would be safe to rely upon as evidence.
Consequences of filing a False Affidavit

As it has been highlighted that the deponent shall perjure himself if he
makes a false affidavit before the court. Moreover, there are several
provisions of law which holds such persona liable and legal proceeding
relying on the same can be instituted. It is a criminal offence under
Section 191, 193, 195, 199 of Indian Penal Code, 1860 to make a false
affidavit in one‘s pleadings or filing false affidavit or false document in
evidence before the court of law.
In addition to that since the deponent would have tried to mislead the
court by giving such false evidences he can also be liable under the
Contempt of Court Act.
Section 195 of CrPC specifically states that if any person intentionally
fabricates or gives false evidence during any stage of a judicial
proceeding shall be liable to be imprisoned and pay fine. And if a
person intentionally gives fabricated or false evidence shall be liable to
be imprisoned for a maximum period of 3 years.
References
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3. K. Takwani, Civil Procedure, 8th ed. 2018.
Meaning, Need and Procedure of Adjournment under CPC, 1908
The term adjourn, in layman‘s term, means to postpone or to

discontinue. The Code of Civil Procedure, 1908 does not define the
term but, however, Order XVII deals with adjournment specifically. This
article deals with the meaning, need and procedure of adjournment
under the Code of Civil Procedure, 1908.
Introduction
―The court is adjourned!‖. This is a very regular phrase that people
often hear in movies and screenplays when a court proceeding is going
on and after this, it is seen that the court calls it a day and the judges
leave the court. So, this gives us a slight impression that adjournment
probably means to discontinue the proceedings of the court. The
impressions are partly correct.
Nevertheless, to break the truth, the court is not adjourned but the
proceedings of the court in the suit which the court is hearing at that
present time are adjourned. It means that the court does not hear that
specific matter anymore for that day but the proceedings keep going on
and the court moves on to other cases to be heard on that day.
Imagine A sued B for specific performance of a contract to construct a

residential flat for A but B denies that existence of any such contract.
While the trial is at pace, A informs the court that he wishes to examine
C, a witness to the agreement between A and B and submits C‘s chief
examination on affidavit.
The court fixes a date for cross-examination of C but C does not

appear on that day. Now, the court does not have many choices in
these situations. It can dismiss the witness testimony or adjourn the
hearing for that day. Thus, CPC provides for adjournment.
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Breaking the Myth

It is a myth created by movies, media and other audio-visual aids that
we see in our daily lives that courts keep postponing the hearings in a
suit and keep giving later dates without any sufficient reason. It is
shown that courts allow the hearing to be adjourned for reasons such
as the defendant had other commitments or the witness did not receive
the summon, etc.
It is categorically a myth that courts keep adjourning hearings for no

reason because justice is not done in haste and it is no justice to pass
judgment without hearing the parties to their complete satisfaction.
There is a difference between a regular proceeding of life where we
judge people on how they behave according to us and the judicial
proceeding. The judge is expected to be impartial and presume the
defendant innocent until otherwise is proved. The court cannot pass
judgment without hearing the defendant on his defence even if the
plaintiff‘s case seems foolproof.
Adjournment can be an inconvenience to many persons, the parties

who are regular to court, the witnesses who might have to return un-
examined. But the court is ought to sufficient opportunity to the other
party to present its case and of course, if at the end court finds that the
adverse party played foul and deliberately delayed the proceedings, the
court can make an order as to costs to ensure no injustice is done.
Thus, adjournment is not a biased weapon but is a part and parcel of
the court proceedings and necessary to allow an impartial and fair trial.
General Procedure of Adjournment

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

can be enlisted as follows:
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1. The party to the suit must move the motion of adjournment

before the court. It means that when the hearing in a suit commences,
the party seeking adjournment of the hearing shall request the court to
adjourn the hearing for that day. The court has the discretion to adjourn
the hearing which means that the court can choose not to adjourn the
hearing and proceed normally. However, the court cannot suo
motu adjourn a case unless either of the parties or their pleaders make
a request.
2. The party seeking adjournment of a hearing shall provide
sufficient reasons for seeking adjournment of the hearing. Date of
hearing in a suit is always fixed at least one month in advance.
Therefore, the parties have a huge burden to satisfy the court that
adjournment is unavoidable and against the interest of justice.
3. The hearing can be adjourned and the request for adjournment
can be made at any time during the hearing of the suit before the court
renders the decree. There is no specific stage for claiming
adjournment, nor is there a bar.
4. The court shall record the reasons for adjournment of the hearing
for that day in writing and such written reasons will form part of the
record of the case.
5. There can be several reasons for seeking adjournment of a
hearing and Rule 1 recognizes one such reason to be to grant time to
the parties to the suit to prepare their respective cases.
6. The court cannot grant an adjournment to the same party more
than thrice in a suit. It means the total number of adjournments allowed
to be sought by the parties are six in the complete proceedings.
7. The court shall fix another date for hearing in the suit and
announce the date before the parties after passing the adjournment
order. Further, while fixing the date of the next hearing, the court shall
also pass an order with respect to costs that need to be borne because
of the postponement of the hearing.
8. Adjournment shall be an exception to the normal rule of day to
day hearing until the case is finally disposed of. Adjournment is only the
last resort of the court and should only be granted if the circumstances
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in the case go beyond the control of the parties and the case needs to
be adjourned. Rule 1 specifically mentions that a pleader cannot plead
the excuse of being busy in another court for the reason of
adjournment.
Procedure of Adjournment when Party or Witness Fail to Appear
The general procedure when a party to a suit fails to appear is
mentioned in Order IX of CPC. The rule empowers the court to dismiss
the suit if the plaintiff is absent or pass an ex-parte order if the
defendant is non-appearing. However, Order XVII Rule 2 of CPC
allows the court to deviate from the general rule and adjourn the
hearing for that day in lieu of passing an ex-parte order or order of
dismissal.
Rule 3 states that if a person who was supposed to give evidence in

the case on the date fixed for his/her evidence, fails to give evidence
and fails to appear, the court can opt for two options: (
a. if the parties to the suit are present in the court, the court may
proceed to decide the suit further and
b. if the parties or either party is absent, the court may proceed as
aforementioned. This summarises the entire procedure of adjournment.
References
1. Takwani C. K., Civil Procedure with Limitation Act, 1963,
7thEdition, Eastern Book Company, Lucknow, 2013.
2. Sir D.F. Mulla, The Code of Civil Procedure, 19th Edition, Vol. 3,
Lexis Nexis, 2017.
Death, Marriage and Insolvency of Parties: Order 22
I. Introduction
The stages in a civil suit should ideally proceed smoothly from the
institution of a suit to the delivery of the judgment and decree by courts.
However, reality does not reflect such a timely disposition of civil suits
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in India. According to a study by DAKSH, civil suits take up to four

years to be disposed of in courts in the country.[1]
Thus, the longer periods for case disposal and the relatively large
number of parties to suits, mean that there would be ample opportunity
for deaths, marriage and even insolvency of such parties to occur
between the institution of suits to their final disposal.
Order 22 of the Code of Civil Procedure, 1908 (‗the Code‘) sets out
the appropriate procedures required where there is death, marriage
and insolvency of parties (in case of both plaintiffs and defendants). It
also affords clarity to the question of the appropriate response to any
changes brought about by the occurrence of such contingent events
during the pendency of a suit.
According to the Supreme Court (‗SC‘), the object of the provisions

provided in Order 22 was crafted to ―…ensure continuation …of suits
into an effective adjudication‖ and not to hinder the progress of the
proceedings. In the view of the SC, ―…distinctive and independent
rights to property or any claim remain intact and not lost forever due to
death of one or the other, in the proceedings.‖[2]
The Order is structured into several rules. Rules 1-6 of the Order deal
with Death of Party; Rule 7 deals with Marriage of Party; Rule 8 deals
with Insolvency of Party; and Rule 10 deals with Devolution of Interest.
II. Death of Party: Rules 1-6

1. Abatement and Right to Sue [O.22 Rule 1]
The abatement of a suit in civil procedure refers to when a civil suit
becomes redundant due to any person ceasing to exist as a party.
Abatement applies in the case of both the plaintiff and the defendant.
However, the mere death of a plaintiff or defendant shall not cause the
suit to abate if the right to sue survives.[3]
The right to sue is defined as the right to bring a suit or the right to seek
relief.[4] The SC has expressed its position on the right to sue in the
case of N. Jayaram Reddi v. Revenue Divisional Officer and Land
Acquisition Officer, Kurnool („N. Jayaram Reddi case‟) In that case,
a piece of land belonging to three claimants was acquired by the state
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government for a public purpose, but the market value fixed by the
government was disputed by the claimants as being too low.
The claimants appealed to the High Court, and appeals continued up to

the SC, at which point one of the claimants died- yet the state
government omitted to make the legal representatives of the deceased
claimant, parties to the appeal filed by the deceased.
In the instant case, the SC dismissed the appeals made by the

claimants before it and rejected the contention that the state
government‘s suit was abated due to the legal representatives of the
claimant not being added as parties. In the view of the Court, a decree
against a dead person cannot be treated as a nullity because the
appellate court is still permitted to bring the legal representatives of the
deceased claimant on record.
Thus, it was held that the right to sue does not get extinguished simply
because no application has been made to bring the legal
representatives of the claimant on record to the suit/appeal.
Type of claims and right to sue
If the entire suit claim was based on torts, then on the death of one or
several parties, the entire suit would abate.[5] In suits that are based
partly on torts and partly on contract, the part of the claim that is based
on the contract would survive, but the claim based on tort would
abate.[6]
However, if the entire claim in a suit is based on a contract, then the

suit must proceed in its entirety.[7] The right to sue must be in
accordance with O.22 Rule 1, and in most cases right to sue survives,
except in suits based on damages for defamation or assault or after the
death of the party, when granting the relief would defeat the purpose.[8]
2. Procedure where one of several plaintiffs or defendants dies

and Right to Sue survives [O.22 Rule 2]
O.22 R 2 applies wherein any one out of several plaintiffs or
defendants dies, and where the right to sue survives as against the
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surviving plaintiffs/plaintiff alone or surviving defendants/ defendant

alone.[9] In such a case, the provision mandates that the Court will add
to the record that such event has occurred and the suit shall proceed at
the instance of the plaintiffs/plaintiff alone or surviving defendants/
defendant alone.[10]
As illustrated above in the N. Jayaram Reddi case,[11] the survival of

the right to sue and the discretion of the surviving parties to continue
with the suit is the critical component here. This was emphasized by
Justice Shingal in that case, when he stated that it is the discretion of
the legal representative to question whether the decree was a nullity or
fight the appeal on merits. [12]
3. Procedure in case of death of one of several plaintiffs or sole

plaintiffs; and of several defendants or sole defendant [O.22 Rule
3-4]
In both these rules, in the event of such contingency arising, an
application must be made [either under Rule 3(1) or under Rule 4(1)]to
bring the legal representative of the deceased on the record within 90
days[13] from the date of death of deceased.
In case such application is not made in either case, the suit will abate.
In fact, in case no application is made, the suit would abate without any
order of the court.[14] This is because abatement does not require any
adjudication or declaration by courts- it occurs by operation of the law
itself.[15]
In the case of Rule 3, when the suit stands abated, the defendant can
on application to the court, be awarded costs incurred in defence of the
suit, to be received from the estate of the deceased plaintiff.[16]
In the case of Rule 4, there is a discretionary provision for the Court to

exempt the plaintiff from substituting the legal representative of a
defendant in case the latter has not filed his written statement or failed
to appear or contest at his hearing. In case the aforementioned
scenarios arise, judgment may be pronounced against the defendant,
regardless of the fact of his/her death.[17]
19
Further, in case of abatement of a suit under Rule 4, an application to

set aside said abatement must be made within 60 days.[18] However,
Rule 4 also provides for the Court to consider the ignorance of the
plaintiff as to the death of the defendant as a sufficient cause for not
submitting an application or submitting an application after the
appropriate limitation period.[19]
4. Determination of question as to legal representative [Rules 4A

and 5]
In case of no legal representative available, Rule 4A sets out that the
Court may proceed without any person representing the estate of the
deceased person or may appoint the Administrator-General or other
court officer as such representative.[20] The ensuing judgment or order
pronounced by the court would be binding upon the estate of the
deceased person. [21]
In case of a question arising as to whether a particular person is or is

not the legal representative of a deceased plaintiff or defendant, the
court is mandated to determine the same.[22] However, in case such a
question comes up before an Appellate Court, it may direct a
subordinate court to try the question and take the findings into
consideration while determining the question.[23]
5. No abatement by reason of death before hearing [Order 22 Rule

6]
This provision mandates that there will be no abatement by reason of
the death of either party between the conclusion of the hearing and the
pronouncing of the judgment- but judgment is to be pronounced
regardless of the fact of death and would have the same force as if it
had been delivered prior to the occurrence of said death.[24]
This Rule operates whether the cause of action survives (and not the
right to sue) survives the death of the deceased plaintiff or defendant or
not. [25]
III. Suit not abated by Marriage of Female party [Order 22 Rule 7]

Rule 7 deals with the procedure to be followed in case of marriage of
the female party (plaintiff or defendant) and states that the marriage of
20
a female party shall not cause a civil suit to abate.[26] The civil
proceedings may continue till judgment and if the decree is against a
female defendant, it may be executed against her alone.[27]
The provision also states that where the husband of the female party is
by law, liable for the debts of his wife then a decree may be executed
against the husband as well, with permission of the court.[28]
In case of a judgment in favour of the wife, the husband may make an

application for permission before the court for the execution of the
decree. However, this is provided that the husband is entitled to the
subject matter of the decree. [29]
IV. Insolvency of the party [Order 22 Rule 8]

The insolvency of the plaintiff does not mean per se, that the suit would
abate, but this is provided that the assignee or receiver appointed
continues the suit, or gives security for costs within the time
ordered.[30] The Court, however, may assign a special reason for such
abatement.[31]
Rule 8(2) sets out the procedure to be followed when the assignee
does not continue the suit or give security as directed.[32] In this case,
the defendant may apply to the court that the suit be dismissed due to
the plaintiff‘s insolvency. This provision grants discretionary power to
the Court to issue an order dismissing the suit, and awarding costs
borne in defending the suit, to the defendant to be drawn out from the
plaintiff‘s estate as debt.
V. Devolution of Interest [Order 22 Rule 10]

Devolution of interest refers to the creation and assignment of an
interest in a claim. Rule 10 lays out the procedure for assignment of
interest during the pendency of the suit, before the final order is
delivered.[33]
The provision states that the creation of such interest (assignment,

creation or devolution of any interest) can proceed with the leave of the
court, which is in its discretion to provide or not.
21
Rule 10(2) applies in cases where there has been an attachment of a

decree and said attachment is being appealed.[34] In such cases, the
attachment will be deemed to be an interest in itself- entitling any
person who has been assigned such an interest in compliance with
Rule 10(1).
VI. Conclusion
Order 22 sets out the various procedures and actions to be taken when
there is a death, insolvency or marriage of any of the parties in the
pendency of a suit. The above article has outlined the provisions of the
same and provided case law.
References
[1] P. Thakur, ‗Some HCs Take An Average of 4 Years Per Case‘, The
Times of India, (18/12/2017), Available Here.
[2] AIR 2003 SC 2588.
[3] O.22, R.1, Code of Civil Procedure, 1973.
[4] N. Jayaram Reddi v. Revenue Divisional Officer and Land

Acquisition Officer, Kurnool, (1979) 3 SCC 578.
[5] D.F. Mulla, The Key to Indian Practice: Summary of the Civil
Procedure Code, 1908, 11th ed, 2016.
[6] Ibid.
[7] M. Verappa v. Evelyn Sequeira, (1988)1 SCC 556.
[8] Sec. 301, Indian Succession Act, 1925
[9] O.22, R. 2, Code of Civil Procedure, 1973.
[10] Ibid.
[11] Supra, at note 4.

22
[12] Ibid.
[13] Art. 120, Limitation Act, 1963.
[14] Dhurander Pratap Singh v. JP University, AIR 2001 SCC 2552.
[16] O.22, R. 3(2), Code of Civil Procedure, 1973.
[18] Art. 121, Limitation Act, 1963.
[20] O.22, R. 4(A), Code of Civil Procedure, 1973.
[21] Ibid.
[22] O.22, R. 5, Code of Civil Procedure, 1973.
[23] Ibid.
[24] O.22, R.6, Code of Civil Procedure, 1973.
[25]Ibid.
[26] O.22, R. 7(1), Code of Civil Procedure, 1973
[29] Ibid.
[31] Ibid.

23
[33] O.22, R. 10 (1), Code of Civil Procedure, 1973.
Withdrawal and Compromise of Suits: Order 23
Withdrawal and Compromise of Suits: Order 23

Reducing needless litigation is an important concern in a civil law
system with high pendency rates, like in India. Order 23 of the Code of
Civil Procedure, 1908 (‗the Code‘) sets out the appropriate procedure
to be followed when parties wish to withdraw their suits at certain
stages of civil proceedings. It also outlines the situations in which
compromise of suits can be entered into between parties to a civil suit,
and which scenarios require the leave of the court concerned.
I. Introduction
The terms ―withdrawal‖ and ―compromise‖ of civil suits refer to
scenarios wherein one party to a suit or both parties to a suit choose or
consent to cease the litigation. This withdrawal or compromise may be
done with or without the leave of the court, depending upon the specific
situation of the party and the applicable rule of the Code. The
procedure-related to the withdrawal of suits is outlined in Order 23
Rules 1-2 and the procedure related to compromise of suits is
contained within Order 23 Rules 3-3B of the Code.
II. Withdrawal of Suits Order 23 Rules 1-2

1. Withdrawal of suit or abandonment of part of the claim: Rule 1
According to this rule, the plaintiff may at any time after instituting the
civil suit, abandon the suit or abandon a part of his/her claim in the
subject matter of the suit.[1] A plaintiff may find that after instituting the
suit, that the possibility of a favourable decree is low- in such cases he
may withdraw suit under Rule 1(1) without further expenditure of
cost.[2] This is because it is an unqualified and absolute withdrawal
under the Code.
24
In fact, the Court has no power to compel a plaintiff to continue with his
suit or refuse permission to withdraw the suit,[3] unless there are some
extraordinary conditions justifying such refusal.[4]
If the plaintiff in question is a minor or person of unsound mind (i.e any

person to whom rules 1-14 of O. 32 apply), then the leave of the court
is required for the plaintiff in this case to abandon the suit in its entirety
or even a part of the claim.[5]
Along with such an application for leave of the court, an affidavit of the
next friend is also to be provided in case of minor plaintiffs or other
similarly placed plaintiffs.[6] In case of a minor or a person of unsound
mind being represented by a pleader, the application to the court for its
leave must be accompanied with a certificate by said pleader that the
action being taken is in his opinion, for the benefit of his client.[7]
Withdrawal of suit and res judicata
According to the Supreme Court (‗SC‘), the underlying principle or

object of Rule 1 is that whence a plaintiff institutes a civil suit and
opens himself to remedies available under law, he cannot be permitted
to file a fresh suit on the same subject-matter after
withdrawing/abandoning the earlier suit without the leave of the court to
institute such fresh suit.[8]
When a plaintiff withdraws a suit without seeking the leave of the court,
costs can be imposed upon the plaintiff.[9] Withdrawing a suit without
the permission of the court has an adverse impact on the plaintiff‘s
success in a specific claim. This is because withdrawing a suit without
seeking permission to institute a new suit will lead to the second suit
being barred.[10]
In Sarjuga Transport case (see below), the petitioner withdrew his

earlier writ petition without permission of the court to file a fresh
suit.[11] Thereafter, the petitioner filed a suit disputing an order passed
in the first petition. However, the Supreme Court held that withdrawal is
not the same as res judicata, which bars other remedies, and the
petitioner was entitled to move court under Art. 32 of the Constitution if
25
he saw fit to. In the view of the court, the rule of res judicata applies
only when there has been a final disposition of a case by a court.
However, in case of a withdrawal, there is no prior adjudication at all.
Rule 1(3) states that the Court may grant the plaintiff the right to
withdraw the suit (or part of it) and also the leave to institute a fresh suit
relating to the subject matter of the withdrawn suit. This is provided that
the court is satisfied that the suit was to fail due to a formal
defect[12] or there are sufficient grounds[13] to give such leave to the
plaintiff.[14] Thus, certain discretion has been given to the court in
determining what constitutes as sufficient grounds in such cases.
2. When transposition of defendants as plaintiffs may be

permitted: Rule 1A
A defendant in a suit where a plaintiff has withdrawn a case in
compliance with Rule 1, may apply for being transposed in place of the
plaintiff under Order 1 Rule 10. In deciding whether to order the
applicant to be substituted as plaintiff, the court is directed to take due
regard as to whether the applicant has a substantial question to be
decided vis-à-vis the other defendants in the case. [15]
3. Limitation law not affected by first suit: Rule 2

The Code clarifies how the limitation period for fresh suits would run in
case the previous suit has been withdrawn. Rule 2 states that when
any fresh suit is instituted with the permission of the court, then the law
of limitation will run as if the first suit had not been instituted at all.[16]
III. Compromise of Suits Order 23 Rules 3-3b

1. Compromise of suit: Rule 3
The Code provides for compromise of suits and details the effect of the
same. It is up to the parties themselves to compromise or adjust the
civil suit and come to a settlement.[17] Finally, the parties must apply,
(in the form of a lawful agreement or compromise,[18] written and
signed by the parties) for a decree.[19] If the court in turn is satisfied
that the suit has come to a lawful compromise, it shall be the duty of
the court to pass a decree to the effect of the signed
26
application.[20] Such a decree when passed is known as a consent

decree.
Consent decree
The Supreme Court has clarified the meaning of the term consent-
decree as follows:
―…a consent decree is a mere creature of the agreement on which it is

founded and is liable to be set aside on any of the grounds which will
invalidate the agreement.‖[21]
Consent decrees, as a rule, have been held to be valid even when the
terms of the compromise are entered into by the power of attorney
holder on behalf of the parties.[22] In a certain case, the appellants
appealed an order by the High Court which dismissed three civil
applications preferred by the same parties to recall an earlier order also
passed by the High Court: which was founded on consent terms signed
in due accordance with the law.[23]
An appellant party had appointed a respondent party as a lawful power

of attorney holder, and the actions of the latter were assailed by the
other appellants. However, the SC upheld the validity of the consent
decree in this case. A judgment by consent essentially functions to stop
litigation between the parties- hence it creates an ―estoppel by
judgment.‖[24]
No appeal lies from a consent decree that is founded or based on a

compromise between parties under Order 23.[25] This does not mean
per se, that a compromise decree operates as a form of res judicata as
provided in Section 11 of the Code.[26] It is the seal of the court upon
an agreement entered into by the parties.
Compromise decree and Consent decree
While compromise and consent decrees may seem synonymous, they

are distinct in terms of the appeal of the same. As mentioned above, no
appeal lies from a consent decree. However, according to the court
in Banwari Lal v. Chando Devi,[27] a party challenging a compromise
27
can file an appeal under Section 96(1)[28] of the Code and Section
96(3)[29] shall not function to bar the appeal.
A compromise decree may be challenged on grounds of fraud, undue

influence or coercion but remains lawful until it is displaced by a court
of law.[30] A compromise decree is not a res judicata because the
court does not in fact, decide anything or consider the case on merits.
On other hand, a consent decree while it may not be res judicata, may
create estoppel between parties. [31] A consent decree may be
challenged through a review application or application under Section
151 of the Code (inherent powers of the Civil Court), and this would be
an appropriate remedy for setting aside a consent
decree.[32] Compromise must be written form and signed by the
parties- if not written and signed by the parties or counsel, they may not
be seen as not enforceable.[33]
2. Bar to suit: Rule 3A

This provision states that a decree based on compromise cannot be
assailed on the grounds that the compromise on which the decree is
based is unlawful. When an order is passed on compromise and
becomes part of the order of the court- then the terms are to be strictly
enforced.[34] As stated earlier, it is possible to assail such decrees but
extenuating circumstances must exist in order for this to pass.
Order 23 Rule 3 also provides that a void or voidable agreement

cannot be deemed ‗lawful‘ within the meaning of the provision. In a
particular case, the appellants were traders on Grand Trunk Road,
Howrah and were in fear of being displaced due to the imminent
construction of a fly-over near their places of business.[35] Thus, the
appellants instituted proceedings against relevant authorities in
Calcutta High Court, including the Howrah municipal corporation.
During the proceedings, an application for settlement of dispute and

disposing of the case was filed- the court duly filed an order based on
said settlement. However, the authorities did not abide by their terms of
the order, and allotted the spaces occupied by the appellant traders to
other groups. Aggrieved, the appellants sought to set aside the original
28
order and approached the SC. The Apex Court allowed the appeal and
set aside the order passed by the High Court.
3. No agreement or compromise to be entered in a representative

suit without leave of the court: Rule 3B
According to this Rule, the leave of the court is required for
compromise in a representative suit. A representative suit implies:[36]
―(a) a suit under Section 91 or section 92,
(b) a suit under rule 8 of Order I,
(c) a suit in which the manager of an undivided Hindu family sues or is

sued as representing the other members of the family,
(d) any other suit in which the decree passed may, by virtue of the
provisions of this Code or of any other law for the time being in force,
bind any person who is not named as party to the suit.‖
Thus, suits relating to public nuisance and wrongful acts so affecting

the public; public charities; representative suits as defined in Order 1
Rule 8 of the Code and those involving family or other groups, require
the leave of the court in order for a lawful agreement or compromise to
be affected.
IV. Conclusion
Order 23 Rules 1-2 and Rules 3-3B allow for parties to adjust and
settle their suits. This may be done by complying with the stated
conditions and attaining the leave of the court in certain cases.
[1] Order XXIII, Rule 1(1), Code of Civil Procedure, 1908.
[2] D.F. Mulla, Mulla The Key to Indian Practice: Summary of the Civil
Procedure Code, 1908, 11th ed., 2016.
[3] K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458.

29
[4] Sandesh Limited vs Chandulal Jethalal Jaiswal, AIR 2005 Guj 219.
[5] Order XXIII, Proviso to Rule 1(1), Code of Civil Procedure, 1908.
[7] Ibid.
[8] Haryana State Co-op Land Development Bank v. Neelam, (2005) 5

SCC 91.
[10] Sarjuga Transport Service vs. State Transport Appellate Tribunal,

M.P., Gwalior and Others, [(1987) 1 SCC 5].
[11] Ibid.
[12] Order XXIII, Rule 1(3)(a), Code of Civil Procedure, 1908.
[13] Order XXIII, Rule 1(3)(b), Code of Civil Procedure, 1908.
[15] Order XXIII, Rule 1(A), Code of Civil Procedure, 1908.
[18] It may be noted that the agreement, satisfaction or compromise

could relate to the whole or a part of the suit and may also comprise
the subject matter of the suit, in keeping with Order XXIII, Rule 3(1),
Code of Civil Procedure, 1908.
[20] Ibid.
[21] Ruby Sales & Services (P) Ltd. v. State of Maharashtra, (1994) 1
SCC 531.
30
[22] S.B.V Patel v. N.J Tiwari (2010) SCC 104.
[23] Ibid.
[24] Byram Pestonji Gariwala v. Union Bank of India (1992) 1 SCC 31.
[26] Ibid.
[27] (1993) 1 SCC 581.
[28] Sec. 96(1) of the Code: Save where otherwise expressly provided
in the body of this Code or by any other law for the time being in force,
an appeal shall lie from every decree passed by any Court exercising
original jurisdiction to the Court authorized to hear appeals from the
decisions of such Court.
[29] Sec. 96(3) of the Code: No appeal shall lie from a decree passed
by the Court with the consent of parties.
[32] Sri Sri Iswar Gopal Jen v. Bhagwandas Shan, AIR 1982 Cal 12.
[33] Deepa Bhargava v. Mahesh Bhargava, (2009) 2 SCC 294.
[34] Salkia Businessmen‘s Association v. Howrah Municipal Corpn, AIR

2001 SC 2790.
[35] Ibid.
[36] Order XXIII, Rule 3(B), Code of Civil Procedure, 1908.

31
Meaning and Procedure of Judgment and Decree under CPC, 1908
Introduction
Section 2 (2) of the Code of Civil Procedure, 1908 ( hereinafter, ‗CPC‘)
defines the term decree and Section 2 (9) defines judgment.
Accordingly, decree means a formal statement passed by the court by
which the court declares that the case has been adjudicated and the
expression conclusively determines the rights of the parties to the suit.
On the other hand, judgment means the statements made by the judge
on the grounds of the decree or order. It means that judgment includes
the grounds or reasons based on which the decree is passed. Hence,
the decree is the verdict and judgment is a reason for the verdict.
Whenever a suit is instituted, the court can pass an order and/or a

decree. An order is passed while the trial proceedings are still ongoing
and decree is passed at the end of the trial because it conclusively
determines the rights and liabilities of the parties. Thus, whenever, a
court passes an order or a decree, it must mention the reasons for
passing such order or decree. This reason is called judgment.
Judgment and Decree

According to Section 33 of the CPC, judgment shall be passed after the
case has been heard by the court. This does not mean that the court
must hear the entire case and only one judgment can be made, that is
at the end of the trial. It means that the court must hear the parties on
the point for which the judgment is being claimed by the plaintiff.
For instance, A has filed a suit against B for causing destruction of A‘s
property since B has started demolishing A‘s property without lawful
reasons. The suit may be for a permanent injunction but A can file an
application for a temporary injunction as well while the case is
proceeding.
Section 33 requires that the court shall hear the case of the parties with
respect to a temporary injunction and then pass any judgment or order,
etc. Section 33 also provides that the court shall pass judgment and
―on such judgment, the decree shall follow‖[1].
32
It means that after the case is heard and the court has made up its
mind about the decision, first, judgment should be passed and then the
decree should be passed. Basically, the decree should follow the
judgment. It means that the court should give the reasons for making
the decree and then pass the decree.
Manner in which Judgment is Pronounced

Order XX deals specifically with the procedure and manner in which
judgment and decree are pronounced by the judge, the contents of the
decree and time when they should be pronounced.
Rule 1 states that the court should pronounce the judgment after it has
heard the entire case of the parties. The judgment should always be
pronounced in an open court and at once. It means that the judgment
should be pronounced in the presence of all the people present in the
court along with the parties and their pleaders.
In certain exceptional circumstances, the court is entitled to hold in-
camera proceedings where people not related to the case are not
allowed to be present in the court. The judgment shall be pronounced
at once. It connotes that the court should pronounce the entire
judgment in one go and should not adjourn the matter in the middle of
the judgment.
However, it is not a blanket provision that the judge needs to

pronounce the judgment at once. Rule 1 also provides that if the judge
believes that it is not practicable for the court to pronounce the
judgment on the same day, the judge may fix a separate day when the
judgment is to be pronounced.
In cases where the judgment is not pronounced on the same day when
the case is finally heard, the court shall render a notice to the parties (if
they are not present in the court) informing them of the date fixed for
pronouncement of judgment. Such future date of pronouncing the
judgment must be within 30 days from the conclusion of the trial and in
any case, must not exceed sixty days.
The CPC does not provide anywhere for a mandatory written judgment.
It means that judgment can be both oral and written and the court must
33
read out and explain the judgment in whatever form it is. If the
judgment is written, the judge need not read out the entire judgment but
only the relevant parts and the final order that is passed in the case.
On the other hand, if the judgment is oral, the court can dictate the
judgment and a stenographer (usually one expert in writing shorthand)
can take down the judgment and a transcript be made ready and
signed by the judge and certified copies of the transcript of the
judgment shall be served to the parties to be collected from the court.
As aforementioned, a judgment, decree or order must be signed by the
judge who pronounces the judgment. According to Rule 3, a judgment
after being prepared (if it is in writing) should be dated and signed by
the presiding officer of the court. The judgment is required to be signed
when it is pronounced, i.e. soon after it is read out to the people in
court. The judge cannot change anything mentioned in the judgment
after it has been duly signed by him under the law.
However, Section 152 of the code makes an exception to Rule 3 and

provides that if there is certain mathematical, calculative or any other
form of clerical errors in the judgment which went past the scrutiny of
the judges, then amendment can be done in the judgment at any time
either by the court itself or on the filing of an application by any of the
parties.
Considering the high mobility of judges in our nation, there can be a

situation when a judge may hear entire case and fix a date for
pronouncement of the judgment but before that day comes, he may
retire or is transferred, etc. and is not able to pronounce the judgment.
In such a case, Rule 2 comes to rescue because Rule 2 empowers a
judge to pronounce a judgment written by his predecessor judge but
not pronounced.
Separate Judgments for Separate Issues

Rule 5 of the XX Order requires that the court shall pronounce
separate judgments for all the issues that have been framed. The
requirement applies equally to decrees and orders as well. When the
34
court has framed the requisite issues in a suit, it shall pass decree or
order as the case may be according to such issues.
For every issue framed by the court, there must be certain decision and
reasons for the decision to be recorded by the court. The court is
entitled to pronounce one single judgment for more than one issue if
the court finds that one decision or one finding shall be sufficient to
dispose of the matter in the suit.
Procedure of Passing a Decree

According to Rule 6 of the Order XX of CPC, a decree should be in
agreement with the judgment pronounced by the court. As has already
been explained that under Section 33 of CPC, a decree shall follow the
judgment. Hence, this rule states that a decree should be in
consonance with the judgment. The judgment must explain the exact
reasons for pronouncing such decree. If the decree and judgment have
no link or relation, it may be ground of appeal.
For example, if the judgment explains why a decree of permanent

injunction cannot be given, the decree should be that suit for a
permanent injunction is dismissed. There must be a direct proportional
relationship between the decree and judgment.
Under Rule 6, there are certain essential requirements that a decree

shall contain. These are:
 Details of the parties including their names and registered

addresses
 The Suit number as allocated while filing of the suit
 The respective claims of the parties involved
 The relief that is granted by the court and/or any other finding
that the court considers necessary to pronounce.
 The expense borne by the plaintiff towards the costs of filing the
suit and litigation.
35
 Date on which the decree is pronounced and the signatures of

the judge who pronounced such decree.
 The name of the party who shall bear the litigation cost borne by
the plaintiff at the initiation of trial. If the litigation cost is to be paid in
part by both the parties, the decree must contain the exact part that
each of the parties have to pay.
 If the party paying cost is entitled to receive certain sum from the
opposite party, the court may allow the cost to be set off from the
payable amount and mention the same in the decree.
Manner in which Decree is Pronounced
Rule 6A of the Code requires that a decree should be pronounced as
soon as it is possible and practicable for the court to pass a decree.
The provision states that the decree should be passed within 15 days
from the date on which the judgment is pronounced by the court. When
the court drafts the decree, it needs to be collected from the registrar
office within the court, by the parties who is/are in need of the decree.
Service of a copy of the judgment might take some time and filing of
appeal before a higher court depends on such decree. Hence, Sub-rule
2 of Rule 6 enables a party to the suit willing to appeal the higher court
even without the copy of the decree and submit the decree when it
issued by the trial court.
It is not always required that the presiding officer of the court who
pronounced the decree shall sign it as well. If the judge pronouncing
the decree resigns or his post terminates before the decree is
pronounced, his successor judge can sign the decree.
References
3. K. Takwani, Civil Procedure, 8th ed. 2018.
[1] Section 33, Code of Civil Procedure, 1908.
36
Comprehending the Concept of Foreign Judgment under the CPC,

1908
Introduction
Imagine a situation. A is an Indian citizen residing in Mumbai dealing
with elite quality furniture. B is a Pakistani citizen living in Karachi who
intends to purchase furniture from A and they enter into a contract
through telephone calls. A sent half of the assignment to B and
received payment for the entire order and he refused to send the
remaining furniture thereby defrauding B. B sues A in the civil court of
Karachi and obtains an order for specific performance of a contract.
Now, this situation raises myriad of questions; mainly
a. whether this amounts to a foreign judgment,

b. whether the order is binding on A, an India citizen and
c. even if the order is binding, how will B execute the order from
Karachi when A is at Mumbai. Thus, these are the main areas of study
in this article, i.e. meaning of foreign judgment, its conclusiveness and
factors that affect its conclusiveness and the procedure of execution of
a foreign judgment.
Meaning of a Foreign Judgment
Section 2 (6) of the Civil Procedure Code, 1908 (CPC) defines foreign
judgment as a ‗judgment pronounced by a foreign court‘. Section 2 (5)
defines the term ‗foreign court‘ as ‗any court established outside the
territories of India and which is not established or continued under the
authority of the Indian government‘.
The definition has three aspects.
 First, the court must be situated outside the territorial limits of

India, i.e. in another country.
 Second, the court must not be established by the government of
India. It means that there can still be court established by India in
some other country for any specific purpose; such courts shall be
37
Indian courts. A foreign court is one which is established under the

authority of an alien country.
 Third, the court must not be continued under the governmental
authority of India. It means that suppose another country established
a court outside India but the court ceased to work. Indian government
should not continue its working to render it a foreign court.
The term ‗judgment‘ is defined under Section 2 (9) as a statement
pronounced by a judge stating as reasons for passing a specific order
or decree. Foreign judgment means any statement in the form of an
order, decree or any reason for pronouncing such order or decree by a
court established outside India and outside the control and authority of
Indian government. Thus, for example, any judgment given by courts in
Pakistan, USA, England, etc. are all foreign judgments from an Indian
perspective.
Conclusiveness of Foreign Judgments in India

As enshrined under Section 13 of the CPC, the general with respect to
foreign judgments is that it is conclusive and binding with respect to the
subject matter which that court has adjudicated and upon the parties
between whom the subject matter is adjudicated.
It means that if A and B have a dispute over the ownership of a

property, the judgment of the foreign court shall be binding upon A and
B and with respect to that specific property on which the court has
pronounced its judgment. The judgment cannot be used as a precedent
and cannot be binding upon others even in similar factual
circumstances.
Section 13 lays down certain sine qua non for a foreign judgment to be
valid and binding upon the parties. The requirements are laid down in
negative form which means that the provision explains when the
foreign judgment will not be conclusive and not when the foreign
judgment will be conclusive.
38
A foreign judgment shall be conclusive except in the following

circumstances:
1. Pronouncement of Judgment by an Incompetent Court
Jurisdiction is the most essential requirement in any legal proceeding
before the court. Jurisdiction determines whether a court is competent
to try and adjudicate a matter or not. In the domestic scenario, for
instance, a court of Mumbai cannot take a dispute arising in Delhi or a
criminal court cannot take up the matter of civil nature. Similarly, a
foreign judgment must also come from a foreign court which had the
jurisdiction to pass judgment in that case.
In Gurdayal Singh v. Raja of Faridkot[1], the appellant was a resident

of Jhind and the respondent resided at Faridkot. The respondent filed a
suit against the appellant in the native court of Faridkot and obtained
an order against him.
The court observed that the appellant was in service of the Raja in
Faridkot and hence, it had jurisdiction over him. However, the suit was
instituted in 1879 and the appellant had left the service in 1874 and
resided in Jhind since then. The Calcutta High Court reversed the
judgment and held that the foreign judgment of Faridkot was not
binding upon the appellant in Jhind since it was passed without
requisite jurisdiction.
However, under Section14, it is a legal presumption that when a copy

of a foreign judgment is produced before a court, it shall be presumed
to be judgment pronounced by a court of competent jurisdiction. Unless
the contrary can be proved by the adverse party, the judgment of a
foreign court shall always be presumed to be coming from a court of
competent jurisdiction.
2. Pronouncement of Judgment Ignoring the Merits of the Case

To apply as a binding judgment, the court must have taken into
consideration every aspect of the case. To decide the case on merits
means that the court looked into all the evidence produced by both the
parties without any bias or prejudice. The court must apply its mind
while pronouncing judgment because there may be circumstances that
39
call for action but the court should look into what would be in the
interest of justice.
For instance, when an ex parte order is made, the court should look
whether the defendant has filed the written statement and whether the
defendant has appeared in all other hearings.
3. Pronouncement of Judgment with Wrong Interpretation of

Laws
When a judgment is passed in ignorance of existing law, it is called a
judgment per in curiem. Section 13 (c) of the CPC requires that a
foreign judgment must not be pronounced with a wrong interpretation of
any Indian or International laws to be conclusive.
Thus, in a situation where a suit for breach of contract was filed in

England when the contract was actually entered and executed in India,
the decision of the English court applying the English Contract law was
held to be wrong when the contract was executed in India[2]. This
came to called the doctrine of lex loci contractus.
4. Pronouncement of Judgment violates Natural Justice

There two basic principles of natural justice recognized around the
world; audi alteram partem or the right to be heard and nemo judex in
causa sua or the rule against bias.
These principles connote that no one shall be condemned without

giving one opportunity to be heard and no one shall be a judge in his
own cause. Therefore, in A.K. Kraipak v. Union of India[3], the officer
for the Indian Forest Service in Jammu was to be selected and one of
the candidates was also in the selection panel.
The decision of the panel was held to be biased and not binding.
Similarly, it is the rule under Section 13 CPC that a foreign judgment
must be passed only giving sufficient opportunity to both the parties to
present their arguments. Further, the judgment must be pronounced in
an impartial manner by a person with no interest in the dispute.
5. Pronouncement of Judgment obtained by Fraud

40
It is a settled principle in the Private International Law (as well as in

National laws) that a judgment obtained by acting fraud over the court
shall not act as conclusive and will not operate as res judicata over
subsequent proceedings. Thus, when a husband defrauded the US
court falsely making it believe that he was an American citizen and
obtained a decree of divorce, the Indian Supreme Court held it to be
obtained by fraud and null and void[4].
On account of Chengalvaraya Naidu v. Jagannath[5], the apex court

categorically held that a judgment obtained by acting fraud on the court
is a nullity and cannot be considered as a conclusive foreign judgment.
6. Pronouncement of Judgment that Breaches India Law

For any country, before the International community, comes their own
country. Protection of one‘s country from foreign intervention and
protection of one‘s independence is called sovereignty and to enforce
one‘s law before any International law is an exercise of sovereignty.
The Code also empowers Indian courts to overrule judgments that
have ignored Indian laws and run against Indian laws.
For instance, prostitution may be legal in some country and thus, the
court of that country may pronounce a different judgment than the
Indian court. In such cases, the judgment shall not be conclusive.
Execution of a Foreign Judgment

First of all, for the execution of a foreign judgment or as mentioned
under Section 44A decree from a court of a reciprocating territory, all
the six aforementioned conditions under Section 13 of the Code must
be duly fulfilled. A foreign judgment can be executed in India only if it is
binding and conclusive under Section 13. Section 44A lays down the
requisites for a foreign judgment to be executed in India. If all the
conditions under Section 13 is satisfied, the following are steps to
enforce a foreign judgment in India:
1. Reciprocating Territory: In Indian courts, decrees of all courts

throughout the world cannot be binding. The country from whose court
the decree has been pronounced must have a treaty signed with India
to reciprocate with respect all legal proceedings like an extradition
41
treaty. When there is a treaty between India and another country, it is

called a reciprocating territory. The judgment pronounced by a court of
the reciprocating territory can only be conclusive and executable. In the
case of Marine Geotechnics LLC v. Coastal Marine Ltd.[6], it was
held that if the foreign judgment is from a non-reciprocating territory,
the decree-holder, i.e. the person in whose favour the decree has been
pronounced should file a suit in any Indian district court which is
competent to adjudge the matter.
2. Certified Copy and Set-Off Certificate: The party that seeks to
enforce a foreign judgment in India must submit the certified copy of
the judgment along with a certificate issued by the foreign court stating
the amount or claim that has already been satisfied or adjusted.
3. Right to Objection: Similar to any execution of an Indian
decree, the adverse party against whom a foreign decree is obtained
has the right under Section 47 to object on the execution of the decree
on grounds of limitation and jurisdiction. It means that if the execution
of a decree is barred by law of limitation of India and if it is
unenforceable under any clause of Section 13, the execution can be
objected by the adverse party.
If all the above conditions are duly satisfied, the foreign judgment shall
be treated as a decree of the district court before which it is presented
to be executed and it shall be executed like any other Indian decree.
References
1. Takwani C. K., Civil Procedure with Limitation Act, 1963,

7thEdition, Eastern Book Company, Lucknow, 2013.
2. Sir D.F. Mulla, The Code of Civil Procedure, 19th Edition, Vol. 3,
Lexis Nexis, 2017.
[1] Gurdayal Singh v. Raja of Faridkot, (1895) ILR 22 Cal 222.
[2] Star Printing Company v. Air Jamaica, 45 F. Supp. 2d. 625 (1999
U.S. Dist.).
[3] A.K. Kraipak v. Union of India, AIR 1970 SC 150.

42
[4] Satya v. Teja Singh, AIR 1975 SC 105.
[5] Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853.
[6] Marine Geotechnics LLC v. Coastal Marine Ltd., 2014 (2) Bom CR
769.
Appeals Under Civil Law
Introduction
 What is an appeal under the Code?
The term ―appeal‖ has not been duly defined in the Code. It is an
application or petition to a higher court to reconsider the decision
rendered by a lower court. It is ultimately a proceeding to be
undertaken by a higher authority in re-appreciating the decision given
to the court of lower authority.[1] Thus, as a rule of thumb, any
application by a party to a higher court (or appellate court) praying to
set aside or reverse a decision of a lower court, is seen as an appeal
within the normal use of the term in legalese.[2]
 Is appeal a matter of, right?

While not defined in the Code, the appeal remains a creation of statute
and the right of appeal is not an inherent or natural right accruing to the
party seeking it. In Zair Hussain v. Khurshed Jan,[3] the Allahabad
High Court held that
―…Unless a right of appeal is clearly given by a statute, it does not

exist. Whereas a litigant has independently of any statute a right to
institute any suit of civil nature in one court or another.‖
 What are the provisions relating to appeal under the Code?
As for provisions of the Code, they are as follows
 Appeals from original decrees/judgments: (Section 96-99A)

 Appeals from appellate decrees/judgments: (Section 100-103)
 Appeals from Orders (Section 104-106)
 General Provisions Relating to Appeals (Section 107-108)
 Appeals to the Supreme Court (Section 109)
As for Orders under the Code, they are as follows
43
 Appeals from Original Decrees (Order 41, Rules 1-37)

 Appeals from Appellate Decrees (Order 42, Rules 1-3)
 Appeals from Orders (Order 43, Rules 1-2)
 Appeals by Indigent Persons (Order 44, Rules 1- 17)
I. Appeals from Original and Appellate Decrees (Section 96-103;
Order 41-Order 42)
 Appeals from original decrees
Per Section 96(1) of the Code, an appeal under Section 96 will lie
against every decree passed by any court exercising original
jurisdiction, unto the court imbued with the authority to hear appeals
from decisions of the former court.[4] According to the Code, an appeal
may lie from an original decree passed ex parte of the appellant in
question.[5] The course of action open to the defendant who has been
served with an ex parte decree was discussed in Bhanu Kumar Jain
v. Archana Kumar.[6]
In that case, it was held that the defendant has two clear options in
case an ex parte decree is passed. One is to file an appeal and another
to file an application under Order 9, Rule 13 to set aside the impugned
order. However, in case the application under Order 9, Rule 13 is
dismissed, he cannot then file a first appeal in order to dispute the
correctness of the ex parte decree. In this case, the plaintiff had filed a
partition suit against his wife and offspring, however, the latter did not
appear in court or file any written statements.
Eventually, an ex-parte decree was passed against them, which they

attempted to circumvent by making an application under Order 9, Rule
13 which was dismissed by the lower court. The respondents then tried
to file an appeal on the same contention which was challenged by the
appellant herein.
The Code prohibits that a consent decree (a decree passed by the

Court with the consent of the parties) should be appealed.[7] Thus,
in keeping with Section 96(3), it follows that no appeal lies from the
award of the Lok Adalat as it is an order under the consent of the
parties, and is also deemed to be a decree of the civil court, within the
meaning of the Code.[8] Further, no appeal lies against the decree
44
passed by small cause court, if the value of the subject matter does not
exceed Rs. 10,000/- except on a question of law.[9]
As per Section 97, where a party does not appeal a preliminary decree
that he is aggrieved by, he is then precluded from disputing the validity
of the same in any appeal preferred against the final decree in the
case.[10]
Section 98 sets out the procedure where an appeal is heard by two or

more judges. It states that the appeal shall be decided by the bench of
such judges or the majority of the bench of such judges.[11] However,
in the situation that the bench is unable to come to a consensus
opinion as to whether a judgment is rendered such that the appeal is
reversed or varied, then the decree shall be confirmed.[12]
The confirmation of this decree, however, is provided that the bench

hearing the appeal is [composed of 2 or more even a number of
judges belonging to a court comprising of more judges than those
constituting the bench] and the judges composing the bench differ on
a point of law- then the appeal will be heard upon that point by one or
more of the other judges, with the point being decided by the majority
opinion of the judges that have first heard the appeal.[13]
Sub-section (3) of Section 98 provides that nothing under this section

would alter or affect otherwise the provision of letters patent of any
High Court, such as the letters patent appeal which is specifically
saved in Section 104(1) of the Code.[14]
Sections 99 and 99A mention negative considerations in the

appreciation of a decree during the first appeal before a court. Section
99 provides that no decree would be reversed or substantially varied or
remanded or modified for error or irregularities not affecting the merits
or jurisdiction of the case. The section sets out a list of such errors or
irregularities, and they include misjoinder or non-joinder of parties; or
causes of action; or any error, defect, or irregularity in any proceedings
in the suit.[15]
45
The section clarifies that a non-joinder of necessary parties to a suit

shall not be included within the meaning of Section 99. Per Section
99A, it is mentioned that no order under Section 47 (attachment of
share in movables) is to be reversed or modified unless the decision
of the case is prejudicially affected. Similar to the previous provision,
this section states that without affecting the generality of the previous
section, no order under Section 47 of the Code shall be reversed or
substantially varied on account of any error, defect, or irregularities in
any proceedings relating to such order unless such errors prejudicially
affect the decision of the case.[16]
 Appeals from Appellate Decrees

Per Section 100 of the Code, an appeal to a high court from a decree
of an appellate court subordinate to it is called a second or special
appeal.[17] Such an appeal is allowed on the ground that the case
involved a substantial question of law.[18] The existence of a
substantial question of law is the sine qua non for the exercise of
jurisdiction under Section 100 of the Code.[19]
A second appeal may also lie from an ex-parte decree.[20] Further, the
provision mentions that the memorandum of appeal shall state the
substantial question of law that is involved in such appeal.[21] The high
court must then also formulate such a question if it is satisfied that
question of law is involved.[22]
In addition to this statutory mandate, it has also been held that the high
court cannot proceed to hear a second appeal without formulating the
substantial question of law involved in the substantial appeal: failure to
do so would vitiate the adjudication itself.[23] Further, at the hearing of
the appeal, the respondent shall be allowed to contend before the court
that the appeal does not involve the formulated question.[24]
However, the proviso to Section 100(5) explains that during the course
of the hearing, the high court may hear the appeal on a question not
formulated earlier if deemed fit- thus highlighting the discretionary
power afforded to the high court in hearing second appeals.[25]
46
 What is a substantial question of law for purposes of the

second appeal?
What constitutes a substantial question of law is the sole ground upon
which a second appeal lies. Various case-law has expanded and
clarified what does and does not fall within this ground for the purposes
of preferring a second appeal under the Code. As per Govindaraja v.
Mariamman,[26] it was held that
―…scope of exercise of the jurisdiction by the High Court in the second

appeal under section 100 is limited to the substantial question of law.
To be a substantial question of law it must be debatable, not previously
settled by the law of the land or a binding precedent, and answer to the
same will have a material bearing as to the rights of the parties before
the court.‖[27]
In that case, the appellant defendant and respondent plaintiff were
litigating for possession of the suit property, with both the parties
claiming to be purchasers of the suit property, being related to the last
undisputed owner of such property. The Supreme Court in this case
finally accepted the appeal, but not before making some important
observations as to the interpretation of Section 100 of the Code and
noted that the counsel for respondent could not formulate a question of
law which could be said to be arising in the second appeal.
In Smt. Vidya Wati through her LRs. v. Hans Raj through his LR.s[28],
it was held that the interpretation of a contract is a substantial question
of law and thus can be examined in a second appeal before the
appellate court.
Questions before the court may be questions of fact, questions of law,

or mixed questions of fact and law. Normally, the high court, while
dealing with a second appeal, will not permit a new argument or
contention based on a question of the fact to be revised.[29] In fact, is
provided in Section 102 that no second appeal shall lie before a court
apart from those mentioned under Section 100 of the Code.[30]
This is because the trial court is the first court of instance and appellate
courts are statutorily limited to appreciate a substantial question of law
47
that has been formulated, and not review the factual findings of the
lower court[31]– however, on occasion, the High Court may interfere
with a finding of fact of the lower court if the court below ignored the
weight of some key evidence altogether.[32]
In the same way, a plea involving a mixed question of law and fact also
cannot be allowed for the first time.[33] The high court cannot interfere
in appeal and modify the decree on a question that did not arise for
consideration in the suit or in the appeal and on which neither any
evidence nor any finding was recorded.
Thus, while there is no absolute bar on the re-appreciation of evidence

in those proceedings, however, such a course is permissible in
exceptional circumstances. Section 103 deals with the power of the
High Court to determine issues of fact, and states that it is a
discretionary power of the High Court to determine issues which have
not been determined by either or both of the lower courts; a wrong
decision based on a substantial question of law as mentioned in
Section 100 of the Code.
There is a bar on appeal in certain cases, and this is discussed in

Section 100A of the Code. An intra-Court appeal within a high court
against the original or appellate decree or order of a single judge is not
maintainable notwithstanding anything contained in the High Court
Rules or the Letters Patent to the contrary.[34] Thus a Letters Patent
Appeal (‗LPA‘) would not be maintainable against the judgment and
order passed by a Single Judge of the high court in view of Section
100A.
Order 41
Order 41 deals with appeals from original decrees and is to be read

with Sections 96-99A of the Code. This section will focus on the more
important rules, and while discussing the other rules in brief.
Rules 1-4 deal with a form of appeal and memorandum. Rules 5-8 deal
with a stay of proceedings and execution, while Rules 9-15 state the
procedure on the admission of appeal. The procedure on hearing is
48
covered in Rules 16-29 and the judgment in appeal is mentioned under

Rules 30- 34. Finally, the procedure related to the decree in the appeal
is covered in Rules 35-37.
 Rule 1: Form of appeal

The form of appeal is to be set forth in the form of a memorandum
signed by the appellant or his pleader and presented to the court or to
its office.[35] The contents of the memorandum must set forth, in
concise terms and under distinct heads, the grounds of objection to the
decree appealed from without any argument or narrative, in numbered
form.[36]
According to Rule 1(3), after the memorandum of appeal is ready, it is

to be presented to the court along with a copy of the decree and the
judgment. The memorandum will be admitted if it is in proper form.
Where the appeal is preferred against a decree for payment of money,
the appellant shall deposit the disputed amount in court or furnish such
other security within the time granted by the court.
 Rule 2: Grounds that may be taken in the appeal

This rule provides that the appellant shall not, except with the leave of
the court, urge to be heard in support of any ground of objection not set
forth in the proper form in the memorandum of appeal- however, the
appellate court is not prohibited to the grounds of objections set forth in
the memorandum in determining the appeal before it. This is provided
that the court shall not ground its decision on any other ground unless
the party who may be affected thereby has had a sufficient opportunity
of contesting the case on that ground.
 Rule 3A: Application for condonation of delay

This rule provides that when an appeal is presented after the expiry of
the period of limitation specified for the purpose of that particular suit, it
shall then be accompanied by an application supported by an affidavit
setting forth the facts on which the appellant relies to satisfy the Court
that he had sufficient cause for not preferring the appeal within such
period.[37] What constitutes sufficient cause may be determined by the
Court itself.
49
In case the Court sees no reason to reject the application without the
issue of a notice to the respondent, a notice to that effect shall be
issued to the respondent and the matter shall be finally decided by the
Court before it proceeds to deal with the appeal under Order 41, rule
11 or rule 13 (it should be noted that rule 13 has been repealed by
the 1999 amendment to the Code) as the case may be.[38] This rule
also provides that the court shall not order a stay of execution of the
impugned decree unless the court decides against hearing the appeal
as provided in rule 11 of the Code.[39]
 Rule 11: Power to dismiss the appeal without sending a

notice to the lower court
The appellate court has the discretion to dismiss the appeal after
hearing the appellant on a stipulated day.[40] In case the appellant
does not appeal on the stipulated day for which hearing the appeal is
scheduled, the court has the discretion to order the dismissal of the
appeal.[41] This rule provides that the dismissal of an appeal under this
rule is statutorily required to be notified to the lower court from whose
decree the appeal is preferred.[42]
In case of an appellate court that is not the High Court, dismissing an

appeal under this rule, a judgment is required to be delivered with
grounds for the dismissal and a decree must accompany said
judgment.[43]
 Rules 17: Dismissal of appeal for appellant‟s default

This rule provides that the court has the discretion to order the
dismissal of an appeal in case the appellant does not appear when the
appeal is called on for hearing: although it is clarified that in sub-rule (1)
of Rule 17 shall be construed as empowering the Court to dismiss the
appeal on the merits.[44] In case the appellant appears and the
respondent does not appear, the appeal shall be heard ex parte.[45]
 Rule(s) 23-23A: Remand

These rules speak of remand of the case by appellate court and
remand in other cases. Rule 23 provides that Appellate Court may, if it
thinks fit, by order remand the case, and may further direct what issue
50
or issues shall be tried in the case so remanded, with specific

directions to the lower court to re-admit the suit under its original
number in the register of civil suits and proceed to determine the suit.
Further, any evidence recorded during the original trial shall, subject to
all just exceptions, be evidence during the trial after remand. This is in
a situation wherein the impugned decree has been disposed on a
preliminary point by the court against whose decree an appeal is
preferred and decree is reversed in appeal.
According to Rule 23A, the Appellate Court is statutorily endowed with

the same powers as it has under rule 23 when a re-trial of a case is
considered necessary where the Court from whose decree an appeal is
preferred has disposed of the case otherwise than on a preliminary
point.
 Rule 26-27: Findings and evidence to be put on record

With reference to the procedure followed in the appellate court, it is
stated that the relevant evidence and findings shall form part of the
record in the suit and either party has the discretion to present a
memorandum of objections to any finding, within a time to be fixed by
the Appellate Court.[46] After the expiration of the period so fixed for
presenting such a memorandum, the Appellate Court is mandatorily
required to determine the appeal.[47]
Rule 27 deals with the production of additional evidence before the

appellate court. As mentioned above, additional evidence, either oral or
documentary, is generally not presented by either party at the appellate
stage, however, the exceptions to this are listed in this provision. If any
additional evidence is allowed, the court is mandated to record the
reasons for such admission.[48] Additional evidence is allowed in the
following conditions:[49]
―(a) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or
[(aa) the party seeking to produce additional evidence, establishes that

notwithstanding the exercise of due diligence, such evidence was not
51
within his knowledge or could not, after the exercise of due diligence,
be produced by him at the time when the decree appealed against was
passed, or]
(b) the Appellate Court requires any document to be produced or any

witness to be examined to enable it to pronounce judgment, or for any
other substantial cause,
the Appellate Court may allow such evidence or document to be

produced, or witness to be examined.‖[50]
 Rule(s) 30-34: Judgment in appeal
Rule 30 mentions when and where the judgment is to be pronounced
and provides that the court shall pronounce the judgment in open court,
with due notice to the parties or their pleaders.[51] Further, in case of a
written judgment, it shall not be necessary for the Court to read out the
whole judgment, but a copy of the whole judgment shall be made
available for the perusal of the parties or their pleaders immediately
after the judgment is pronounced.[52]
The rule states that it is sufficient if the points for determination, the
decision thereon, and the final order passed in the appeal are read out.
The judgment itself may be for confirming, varying, or reversing the
decree from which the appeal is preferred.[53] Otherwise, if the parties
to the appeal agree as to the form which the decree or order in appeal
shall take, the Appellate Court may pass a decree or make an order
accordingly.[54]
Rule 31 provides that the following must be contained in the written

judgment:[55]
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and,
(d) where the decree appealed from is reversed or varied, the relief to
which the appellant is entitled.
52
Rule 33 deals with the power of a court of appeal and lays down that
Appellate Court shall have the power to pass any decree and make any
order which ought to have been passed or made and to pass or make
such further or other decree or order as the case may require. This
power is notwithstanding that the appeal is preferred to only part of the
decree, and such power may be exercised as against or in favor of all
or any of the respondents or parties, regardless of whether such
respondents or parties may not have filed an appeal or objection.
In case of cross-suits or in case of two more decrees passed in one

suit, the Appellate Court can exercise said power in respect of all or
any of the decrees, although an appeal may not have been filed
against such decrees. However, this is provided that Appellate Court
shall not make any order under section 35A, that is order as to costs,
for purposes of any objection on which the Court from whose decree
the appeal is preferred has omitted or refused to make such order. The
illustration provided in the rule reads as follows:
Illustration. ‗A‘ claims a sum of money as due to him from ‗X‘ or ‗Y‘,
and in a suit against both obtains a decree against ‗X‘. ‗X‘, appeals, and
‗A‘ and ‗Y‘ are respondents. The Appellate Court decides in favor of X.
It has the power to pass a decree against ‗Y‘.
Finally, Rule 34 holds that dissent is to be recorded, in writing when

any judges dissents from the judgment of the court where the appeal is
heard by more than one judge. Reasons may be provided for the same.
Order 42
Order 42 deals with the appropriate procedure to be followed in

Appeals from Appellate Decrees. This Order is to be read with
Section(s) 100-103 of the Code. This Order holds that the rules for
original decrees (Order 41) shall apply as much as may be, to appellate
decrees. [56]
Further, Rule 2 provides that the Court is statutorily required to

formulate the substantial question of law as required by section 100 of
the Code, and in doing so, the Court may direct that the second appeal
53
be heard on the question so formulated and it shall not be open to the

appellant to urge any other ground in the appeal without the leave of
the Court, complying with the section 100.[57]
Rule 3 states it shall not be necessary to serve notice of any incidental

proceeding to an appeal on any respondent other than one impleaded
unless he has appeared and filed an address for the service in the
Court to which the appeal was preferred from the original decree or
order or has appeared in the appeal.
II. Appeals From Orders (Sections. 104-106; Order. 43)

The lists of suits are given in Section. 104 and Order 43, Rule. 1 gives
an idea of which orders are appealable at a glance. Further, this Order
holds that the rules for original decrees (Order 41) shall apply as much
as may be, to appeals from orders.[58] Under Section 104, which is an
exhaustive provision, it follows that appeal shall lie from the following
orders, and save as otherwise expressly provided in the body of this
Code or by any law for the time being in force
(ff) an order under Section 35A;
(ffa) an order under Section 91 or Section 92 refusing leave to

institute a suit of the nature referred to in Section 91 or Section 92, as
the case may be;
(g) an order under Section 95;
(h) an order under any of the provisions of this Code imposing a fine or
directing the arrest or detention in the civil prison of any person except
where such arrest or detention is in the execution of a decree;
(i) any order made under rules from which an appeal is expressly
allowed by rules:
[Provided that no appeal shall lie against any order specified in clause
(ff) save on the ground that no order, or an order for the payment of a
less amount, ought to have been made.]
54
Section 104 also provides that no appeal shall lie from any order
passed in appeal under this section.[59]
Section 105 provides that no appeal shall lie from any order made by a
Court in the exercise of its original or appellate jurisdiction. However,
where a decree is appealed from, any error, defect, or irregularity in
any order, affecting the decision of the case, maybe set forth as a
ground of objection in the memorandum of appeal.[60] It also provides
that any party so aggrieved by an order of remand, does not appeal
where an appeal lies, he thereafter is precluded from disputing its
correctness.[61]
Section 106 lays out what Courts will hear appeals. It follows where an
appeal from any order is so allowed, it shall lie to the Court to which an
appeal would lie from the decree in the suit in which such order was
made, or
As mentioned above, Order 43, Rule 1 is to be read with Section 104.

According to Order 43, Rule 1, an appeal shall lie from the following
orders under the provisions of section 104, namely: — [62]
―(a) An Order under Rule 10 of Order VII returning a plaint to be

presented to the proper Court 1[except where the procedure specified
in Rule 10A of Order VII has been followed];
(c). An Order under Rule 9 of Order IX rejecting an application (in a

case open to appeal) for an order to set aside the dismissal of a suit;
(d) An Order under Rule 13 of Order IX rejecting an application (in a

case open to appeal) for an order to set aside a decree passed ex
parte;
(f) An Order under Rule 21 of Order XI;
(i) An Order under Rule 34 of Order XXI on an objection to the draft of

a document or of an endorsement;
(j) An Order under Rule 72 or Rule 92 of Order XXI setting aside or

refusing to set aside a sale;
55
1[ja) An Order rejecting an application made under sub-rule (1) of rule

106 of Order XXI, provided that order on the original application, that is
to say, the application referred to in sub-rule (l) of rule 105 of that Order
is appealable;]
(k) an order under rule 9 of Order XXII refusing to set aside the
abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(n) an order under rule 2 of Order XXV rejecting an application (in a

case open to appeal) for an order to set aside the dismissal of a suit;
1[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an

application for permission to sue as an indigent person;]
(p) orders in interpleader-suits under rule 3, rule 4, or rule 6 of Order

XXXV;
(q) an order under rule 2, rule 3, or rule 6 of Order XXVIII;
(r) an order under rule 1, rule 2, 1[rule 2A], rule 4 or rule 10 of Order
XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;

(t) an order of refusal under rule 19 of Order XLI to re-admit, or under
rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 1[or rule 23A] of Order XLI remanding a
case, where an appeal would lie from the decree of the Appellate court;
(w) an order under rule 4 of Order XLVII granting an application for

review.‖
Rule 1A(1) states that there exists the right to challenge non-
appealable orders in an appeal against decrees by contending that
such order should not have been made and the judgment should not
have been pronounced, where any order is made under this Code
against a party and thereupon any judgment is pronounced against
such party and a decree is drawn up. This also refers to consent or
compromise decrees.[63]
56
III. General Provisions (Section 107-108)

The general provisions herein relate to the powers of Appellate Court,
and subject to such conditions and limitations as may be prescribed,
the Appellate court has the power to do the following[64]
(a) to determine a case finally;

(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
Section 107(2) of the Code notes that the appellate court has the same
powers as the courts of original jurisdiction in respect of suits instituted
therein as specified under Section 107. Section 108 deals with general
procedure in appeals from appellate decrees and orders. It follows that
the parts that apply to appeals from original decrees shall, so far as
may be, also apply to appeals:[65]
(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law
in which a different procedure is not provided.
IV. Appeals To Supreme Court (Section 109; Order 45)

Section 109 of the Code states that an appeal lies to the Supreme
Court from any judgment, decree, or final order of a high court in a civil
proceeding of the high court, if the high court in question, provides
certification to the effect that the case involves a substantial question of
law of general importance, and that in the opinion of the high court, the
said question needs to be decided by the Supreme Court. Section 109
provides for the substantive provision relating to appeals to the
Supreme Court. However, the procedure in such cases is provided in
Order 45, which is to be read with Section 109.
Order 45, Rule(s) 1-3 states that a party desiring to appeal to the
Supreme Court should apply by petition to the court. Every petition
should state the grounds of appeal, a prayer for a certificate, that the
case fulfills the conditions mentioned above, that is the conditions
mentioned in Section 100 of the Code, as regards appeal to the
Supreme Court.[66]
57
Further, in accordance with Order 45, Rule(s) 3-7, upon the receipt of
such petition, the court shall direct that notice be served on the
opposite party to show cause why the certificate should not be granted.
When granted, the applicant should, within ninety days, furnish security
for the cost of the respondent and deposit the amount required to
defray expense for preparing a copy record of the for transmitting it to
the Supreme Court.
Where security has been permitted and a deposit made in the

prescribed form, the court should declare appeal admitted, give notice
thereof to the respondent, and transmit to Supreme Court, the correct
copy of the said record. Pending the appeal, the Court retains the
power to order certain actions in case it thinks fit and on special cause
shown by any party interested in the suit or appearing to the Court.
These include:[67]
―(a) impound any movable property in dispute or any part thereof, or
(b) allow the decree appealed from to be executed, taking such security
from the respondent as the Court thinks fit for the due performance of
any order which [the Supreme Court] may make on the appeal, or
(c) stay the execution of the decree appealed from, taking such security
from the appellant as the Court thinks fit for the due performance of the
decree appealed from, or of [any decree or order] which the [the
Supreme Court] may make on the appeal, or
(d) place any party seeking the assistance of the Court under such
conditions or give such other direction respecting the subject-matter of
the appeal, as it thinks fit, by the appointment of a receiver or
otherwise‖.
Order 45, Rule 13 states that the court stay the execution, taking
proper security from the appellant, or it may allow the decree to be
executed while taking proper security from the respondent. Order 45,
Rule 15 states that a party desiring obtains the execution of the order
of the Supreme Court should apply by petition the court from which the
appeal was preferred. Such court should then transmit the order to the
58
court which passed the first decree appealed from with directions to
execute it.[68]
V. Appeals By Indigent Persons (O. 44)

Rule 1 of this Order defines who may appeal as an indigent person and
holds that ―Any person entitled to prefer an appeal, who is unable to
pay the fee required for the memorandum of appeal,‖ may be allowed,
to present an application along with the memorandum of appeal. With
the leave of the court, such a person may be allowed to appeal as an
indigent person.[69]
It is to be noted that Order 44 should be read with Order 33, Rules 1-

18, which deal with ‗Suits by Indigent Persons.‘
In case an application is rejected under Order 44, Rule 1, then Order

44, Rule 2 grants time for payment of court fee within a specified time,
and upon such payment, the memorandum of appeal will have the
same force and effect as if the court fee had been paid in the first
instance.
As is also mentioned in Order 33, Rule 1A, this Order also contains a
rule dealing with an inquiry as to whether the applicant is an indigent
person. To this end, in case an applicant was allowed to sue under
Rule 1 of this Order, Rule 3(1) states that no further inquiry in respect
of the question of whether or not he is an indigent person shall be
necessary.
This is provided that the applicant has made an affidavit stating that he
has not ceased to be an indigent person since the date of the decree
appealed from.[70] Moreover, in case the Government pleader or the
respondent disputes this, an inquiry into the question may be made by
the appellate court, by or through an officer of the court.[71]
Rule 3(2) provides for the circumstance wherein the applicant alleged
to have become an indigent person since the date of the decree
appealed from, the inquiry into whether the same is indeed indigent is
statutorily required to be made by the Appellate Court or, under the
59
orders of the Appellate Court, by an officer of that Court, unless held

unnecessary by the Appellate Court.
Conclusion
The present article has discussed in detail the provisions under the
Code that deal with appeals under civil law including first appeals,
second appeals, appeals from orders, appeals by indigent persons,
appeals to the supreme court. In this regard, the discussion has
included Sections 96 to 109 of the Code and Orders 41 to 45 of the
Code.
[1] Sita Ram v. State of Uttar Pradesh, AIR 1979 SC 745.
[2] D.F. Mulla, Key to Indian Practice: A Summary of the Code of Civil
Procedure, 11th ed., 2016.
[3] (1906) 28 All. 545
[4] Section 96(1), Code of Civil Procedure, 1908.
[6] AIR 2005 SC 626.
[9] Ibid.
[13] Proviso to Section 98(2), Code of Civil Procedure, 1908.

60
[16] Section 99A, Code of Civil Procedure, 1908.
[18] Ibid.
[19] Commr. of Hindu Religious & Charitable Endowment vs. P.

Sharmugama & Anr., AIR 2005 SC 770.
[23] Bashir Ahmed v. Abdul Rahman, AIR 2004 SC 3284.
[25] Proviso to Section 100(5), Code of Civil Procedure, 1908.
[26] AIR 2005 SC 1008.
[27] Ibid.
[28] AIR 1993 Del 187.
[29] Tirumala Tirupati Devasthanam vs. KM Krishnaiah, AIR 1998 SC

1132.
[32] Ajab Singh vs. Shital Puri, AIR 1993 All 138.

61
[34] Section 100A, Code of Civil Procedure, 1908.
[35] Order 41, Rule 1(1), Code of Civil Procedure, 1908.
[50] Ibid.
[53] Order 41, Rule 32, Code of Civil Procedure, 1908.
[54] Ibid.
62
[58] Order 43, Rule 2, Code of Civil Procedure, 1908
[63] Order 43, Rule 1A(2), Code of Civil Procedure, 1908.
[67] Order 41, Rule 13(2)(a)-(d), Code of Civil Procedure, 1908.
[71] Ibid.
Appeal from Original Decree and Order:
Introduction
The Code (hereinafter ‗CPC‘) does not define the term ‗appeal‘ nor is it
defined in the General Clauses Act, 1897. According to Black‘s law
dictionary, appeal is a legal proceeding wherein a case is taken to a
63
higher judiciary to review and/or revise the decree or judgment

pronounced by a lower court.
The right to the first appeal is not a natural right. It means that a person
does not have a right to appeal by virtue of the fact that a decision has
been made by a court against him. Right to the first appeal is a
statutory right which is granted in certain circumstances by the statute
and unless it is specifically granted, it cannot be exercised.
For instance, under Section 50 of the Arbitration and Conciliation Act,
an appeal is allowed to High Court only against two orders, i.e. order of
refusal to refer the parties to arbitration and order of refusal to execute
a foreign judgment in arbitration.
Further, the appeal should be made to the Commercial Division of the

High Court under the Commercial Courts Act. Thus, a person cannot
appeal form any aggrieved order and approach any appellate court to
exercise its right to appeal. The CPC grants the right to first appeal
under Section 96 of the code.
First Appeal under CPC

Section 96 entitles a person aggrieved by any order or decree of a
subordinate court in a civil suit to approach the appellate authority for
redressal of his / her grievances. Section 96 requires that the appeal
before any appellate authority shall lie only if the impugned order is
passed by the court in its ordinary original jurisdiction. It means that the
provision applies only to situations of first appeal. The essential
features of this provision are as follows:
1. Savings Clause: Section 96 begins with a savings clause which

makes an exception to the application of this section to circumstances
specifically provided under the Code or any other law. It means that the
parties should resort to Section 96 of CPC to appeal only when the
specific law is silent on this aspect and when the CPC does not provide
any procedure of the first appeal in any other provision. So, for
example, a law prohibits appeal from any order or decree unless the
case involves a substantial question of law; in such case, the aggrieved
person cannot move an appellate court under Section 96.
64
2. Blanket Provision for Appeal: Section 96 does not have any

qualification as to which decree can be appealed and from which court.
It is a blanket provision and allows an appeal from all decrees
pronounced by any courts in the country. Therefore, if a law or
enactment fails to provide any right to appeal and does not provide any
remedy for the aggrieved party to challenge the first order or decree,
this provision may be resorted.
3. Original Jurisdiction: The impugned order or the decree
against which an appeal is sought, must be pronounced by the court in
its original jurisdiction. It means it should be pronounced by a court of
first instance. Section 96 does not cover a situation of the second
appeal whereby an appellate court has pronounced a decree or order
which has been challenged. Thus, Section 96 applies simply to civil
courts of the junior and senior division.
4. Authorized Appellate Courts: The provision does not mention
where an appeal would lie but only provides that the appeal should be
from a court exercising original jurisdiction. It mentions that appal under
this provision shall lie before the appropriate authority. To determine
appropriate authority, the CPC and the special laws are necessary to
be considered in this regard. Thus, if an appeal is sought against the
order or decree of a civil court junior or senior division, it is a common
understanding that it would lie before the High Court of the respective
State. If an appeal is sought against the order of, for instance, the
Commissioner of Income Tax, under the Income Tax Act, the
appropriate authority would be the Income Tax Appellate Tribunal.
5. Ex-parte Decree: The provision also allows appeal from a
decree passed ex-parte. When the defendant absents himself/herself
from the hearing in the suit despite service of summons and sufficient
opportunity being given by the court to appear, the court is compelled
to proceed with the suit on the basis of the arguments and evidence of
the plaintiff alone. Any decree passed in the absence of the defendant
is called an ex-parte Section 96 (2) allows an appeal from this decree
as well.
6. Decree passed by Consent: The CPC allows parties to settle a
dispute outside the court with their mutual understanding and talks.
This enables the court to save time and the parties can save the cost of
litigation. The court in such cases pronounces such decree that
65
satisfies both the parties. This is called a compromise decree. The

one sine qua non of an out of court settlement is that the parties must
enter into an agreement with voluntary consent and not under any
influence or duress. Under Section 96 (3), if a compromise decree is
pronounced by the court with the consent of the parties, the parties
cannot appeal from such decree. This is to ensure that litigants do not
misuse the law at their whim.
7. Decree of Small-causes Court: The British established for us
several levels of courts from lower to higher in a hierarchy. The lowest
in the hierarchy was the small-causes court which takes minor civil
disputes where the damages claimed or value of the suit does not
exceed Rs. 10,000. The small-causes court is still functioning in several
parts of the country, especially in rural areas. Now, Section 96 (4)
provides that to appeal an order or decree passed by a small-causes
court, the question in the appeal must be a question of law and the
amount or value of subject matter of the suit should not exceed Rs. 10,
000.
No Appeal from Preliminary Decree
The CPC entails two types of decree with respect to their finality, i.e.
preliminary decree and final decree. A preliminary decree is one which
is pronounced while the trial is in progress and the all the issues raised
in the case are not settled by the court. A preliminary decree
determines rights of the parties with respect to any particular matter
raised within or during the proceedings of the court in the suit.
Section 96 does not only allow an appeal from a final decree but also
connotes appeal from a preliminary decree. Thus, if a party to a suit is
not satisfied with the preliminary decree passed by the court, it has the
right to challenge the preliminary decree before the appropriate higher
court.
If the preliminary decree is reversed by the appellate court, it becomes
bad in law and ineffective. However, if the appellate court concedes to
the ratio of the subordinate court and decide that the decree needs to
be upheld, the decree becomes final and effective.
Section 97 provides a different situation to be dealt with. According to

this provision, if an aggrieved party has failed to challenge a
66
preliminary decree, it is presumed that the decree is good in law and

the decree-holder can be execute the decree against such judgment
debtor. If the judgment debtor has decided not to appeal a preliminary
decree, s/he cannot claim that the decree was wrong or bad in law at
the time when the final decree is pronounced.
Further, if the judgment debtor appeals against the final decree of the
court, he cannot challenge the correctness or accuracy of the
preliminary decree passed by the court which he failed to appeal at the
first instance. In any further appeal related to the case, the preliminary
decree shall remain effective.
Appeals from Orders
It is a general rule created under the Code that only decrees are
appealable and orders are non-appealable. However, there can be
circumstances where an order can largely affect the rights of the
parties to a suit and therefore, Section 104 was enacted to provide a
list of orders from which an appeal lies. Under Section 104, the
following orders are appealable:
1. Section 35 A: When a party submits its claims or defence before

the court, the other party has a right to object to such claims or
defences o grounds that the claims or defences are vexatious and
false. The objecting party is then required to submit any proof of his
objections. If, in the end, the court is satisfied that the claim or defence
was vexatious, it may pass an order disallowing such claim or defence.
This order is appealable under Section 104.
2. Section 91 and 92: Section 91 provides that if there an act
causing public nuisance or any wrongful act causing violation of
public‘s rights, the advocate-general of the State or other two or more
affected persons may institute a suit for injunction against such wrong
actions. The order of the court allowing or disallowing the injunction is
appealable under Section 104.
3. Section 95: Under this provision, the court is empowered to pass
an order awarding compensation to the defendant if there is any loss
caused to the defendant because of any civil arrest, detention or a
temporary injunction passed incorrectly and when the plaintiff fails to
67
substantiate its claims. The order of compensation is passed against

the plaintiff and is appealable at the option of the plaintiff under Section
104.
4. Order of Arrest or Fine: Any order of a civil arrest or fine
passed by any civil court is always appealable under Section 104
before any appropriate appellate authority.
Any order besides the aforementioned orders cannot be appealed
under the Code of Civil Procedure. Further, Section 104 (2) also
provides that once an order is appealed before an appeals court, any
order passed by the appeals court shall not be subject to challenge in
any other court. It means that an order can be appealed once only.
These are relevant procedure and provisions with respect to the first
appeal.
References
1. Dinshaw F. Mulla, The Key to Indian Practice: A Summary of the
Code of Civil Procedure, 1908, (11th 2015).
2. K. Takwani, Civil Procedure, (8th ed. 2018).
Appeals | Part VII of Civil Procedure Code, 1908
Introduction
The judicial process in India depends on the application of ‗judicial
mind‘ and ‗judicial reasoning‘ to decide a dispute. This application of
mind is made by the judge, who hears the case. A judge, though
trained to decide such disputes while applying the correct law and
expounding it too to fit into the facts, is ultimately a human being. There
is a very famous saying, as ‗a man is to err‘. As the whole judicial
system depends on the human being, it is not immune to errors or
mistakes. These errors can only be checked by way of giving the right
of appeals to the parties to the suit. This points out the indispensability
of ‗appeal‘ and vitality of its proper functioning for a judicial system to
survive.
68
In Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126 it has been held that
suit is inherent, general or common law right and it need not be
provided by any statute, however, the appeal is a statutory right and is
maintainable only when some statute provides the remedy of an
appeal.
The statute which is talked here primarily refers to the Civil Procedure
Code, 1908 (hereinafter referred to as ―CPC‖ or ―the Code‖) which
grants right to appeal in civil suits. This is a general law. Different
Special law, provide different appellate courts, which decide cases,
which are allotted to them through that special enactment.
Part VII of CPC and Order 41-45 of CPC deals with Appeals.
Abatement of Appeal
Abatement of a suit generally is a stage, where a legal proceeding is
interrupted or suspended, and the plaintiff is prohibited from going
forward with the lawsuit at that particular time. Abatement is available
to a defendant through procedural pleadings and may be considered a
defense. If a case is abated, the case will not continue until a judge
gives the approval to resume the hearings. Abatements can be based
on several objections raised by the defendants, but typically arise,
when a prior action has already been initiated or when a party to the
lawsuit has become deceased.
Order XXII of ‗The Civil Procedure Code, 1908‘ (CPC), deals with the
substitution of legal representatives and abatement of proceedings.
Order XXII Rule 3 provides that in case the application for substitution
of the legal representatives of the deceased plaintiff/petitioner is not
filed within the limitation prescribed by law, the suit/proceedings shall
abate as against the said party. Order XXII Rule 4 deals with the
procedure in case of death of one or several defendants or sole
defendant and fixes the period of limitation to bring an application for
substitution of legal representatives of the deceased defendant, failing
which proceedings would stand abated. In case there are several
defendants and only one dies, the proceedings would not
abate qua the other defendants.
69
Generally, a case abates against the person who is dead and

substitution of his legal representative is not made. Setting aside
abatement requires a specific order under Order 22 Rule 11. (Madan
Nayak v. Mst. Handubal Devi, AIR 1983 SC 676).
Sub-rule (4) of Rule 4 thereof provides for an exemption for substitution

of the legal representatives where the defendants/ respondents have
not filed the written statement or failed to appear and contest the suit
and in such eventuality, the judgement can be pronounced against the
said defendant notwithstanding the death of such a defendant and the
judgement shall be enforceable, and have effect as if had been
pronounced before the death took place (Zahirul Islam v. Mohd.
Usman, 2003 1 SCC 476).
Sub-rule (5) of Rule 4 of Order 22 provides for condoning the delay in

filing the substitution application of legal representatives of the
deceased defendants in case the petitioner proves before the Court
that he was ignorant about his death. Thus, the purpose is seeking an
extension of time limit for substitution of legal representatives in such a
circumstance. This provision is explained in Union of India v. Ram
Charan, AIR 1964 SC 215.
In State of Punjab v. Nathu Ram AIR 1963 SC 89, while interpreting

the provisions of Order XXII Rule 4(3) CPC read with Rule 11 thereof,
the Apex Court observed that an appeal abates as against the
deceased respondents where within the time limited by law no
application is made to bring his heirs or legal representatives on record.
However, whether the appeal stands abated against the other
respondents also, would depend on the facts of a case.
In a case where the decree appealed against is joint and inseverable,

the entire appeal stands abated (N. Khosla v. Rajlakshmi, AIR 2006
SC 1249). Where each one of the parties has an independent and
distinct right of his own, not inter-dependent upon one or the other, nor
the parties have conflicting interests inter se, the appeal may abate
only qua the deceased respondent. However, in case, there is a
possibility that the Court may pass a decree contradictory to the decree
70
in favour of the deceased party, the appeal would abate in toto (in
totality) for the simple reason that the appeal is a continuity of suit and
the law does not permit two contradictory decrees on the same subject
matter in the same suit. Thus, whether the judgment/decree passed in
the proceedings vis-à-vis the remaining parties would suffer the vice of
being a contradictory or inconsistent decree, is the ‗relevant test‘ (Budh
Ram & Ors. v. Bansi & Ors., 2010 (9) SCR 674).
Order XXII Rule 6 is an exception as it provides that there shall be no

abatement of the proceedings in case the death occurs of either of the
parties where the cause of action survives or not after the hearing of
the case stands concluded. In N.P. Thirugnanam (D) by LRs v. Dr. R.
Jagan Mohan Rao & Ors., AIR 1996 SC 116, the Supreme Court
explained the scope of the provisions of Order 22, Rule 6 holding that if
the defendant dies after the conclusion of the arguments and the
judgement had been reserved, the proceedings shall not abate and the
decree against the dead person shall be executed. Order XXII Rule 10
A inserted by an amendment in 1976 creates an obligation on the part
of the lawyer appearing for a party to inform the court about the death
of his client, and the Court shall thereupon give notice of such death to
another party.
In such a case there may be a delay in bringing the application for

substitution of LRs and the Court may take a lenient view taking into
consideration the date of knowledge of the death by the party filing an
application for condonation of delay (Chaukas Ram v. Duni Chand
(Dead) by proposed LRs, 2004 13 SCC 567).
Appeal by Indigent Persons

Order 33 of the CPC deals with suits filed by indigent persons.
Explanation 1 of Rule 1 of Order 33, defines an indigent person, as a
person who is not possessed of sufficient means (other than property
exempt from attachment in execution of a decree and the subject
matter of the suit) to enable him to pay the fee prescribed by law for the
plaint in such suit; or where no such fee is prescribed, if he is not
entitled to property worth one thousand rupees other than the property
71
exempt from attachment in execution of a decree, and the subject-

matter of the suit.
Explanation 2 provides that, any property which is acquired by a person

after the presentation of his application for permission to use as an
indigent person, and before the decision of the application, shall be
taken into account into an account in considering the question whether
or not an applicant is an indigent person. Explanation III provides, that
there where the plaintiff sues 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 capacity.
Order XLIV of CPC deals with the appeal of indigent persons. Rule 1
provides that, any person entitled to prefer an appeal and is unable to
pay the fee required for the memorandum of appeal, may present an
application accompanied by a memorandum, and may be allowed to
appeal as an indigent person. If the court rejects the application under
rule 1, the Court may, while rejecting the application, allow the
applicant to pay the requisite court-fee, within such time as may be
fixed by the court or extended by it from time to time.
Rule 3, provides that if an applicant, who prefers an application under

rule 1, was allowed to sue or appeal as an indigent person in the Court
from whose decree the appeal is preferred, no further inquiry in respect
of the question whether or not he is an indigent person shall be
necessary if the applicant has made an affidavit stating that he has not
ceased to be an indigent person since the date appealed from. But, if
the government pleader or respondent disputes the truth of the
statements made in such affidavit, an inquiry into the question of
‗indigency‘ of the applicant shall be held by the Appellate court, or
under the orders of the appellate court, by an officer of that court.
In A.A. Haja Muniuddin v. India Railways (1992) 4 SCC 736, the

court has observed that ―Access to Justice cannot be denied to an
individual merely because he does not have the means to pay the
prescribed fee.‖
72
In R.V. Dev v. Chief Secretary, Govt. of Kerala (2007) 5 SCC 698,

the court has held that
―Order 33 of the Code of Civil Procedure deals with suits by indigent

persons whereas Order 44 thereof deals with appeals by indigent
persons. When an application is filed by a person said to be indigent,
certain factors for considering as to whether he is so within the
meaning of the said provision are required to be taken into
consideration therefor.
A person who is permitted to sue as an indigent person is liable to pay

the court fee which would have been paid by him if he was not
permitted to sue in that capacity if he fails in the suit at the trial or even
without a trial. Payment of court fee as the scheme suggests is merely
deferred. It is not altogether wiped off.‖
Cross-Objections in Appeal
Where the decree passed is partly in favour of any party against the
respondent and such decree is appealed from, the respondent can take
objection to that part of the decree which is against him as he could
have taken by way of a separate appeal. Such objections are called
cross-objections and are filed in the form of a memorandum.
Rule 22 of Order 42 of Civil Procedure Code provides that, any

respondent, though he may not have appealed from any part of the
decree, may not only support the decree but may also state that the
finding against him in the Court below in respect of any issue ought to
have been in his favour; and may also take any cross-objection to the
decree which he could have taken by way of appeal provided he has
filed such objection in the Appellate Court within one month, from the
date of service on him or his pleader of notice of the day fixed for
hearing the appeal, or within such further time as the Appellate Court
may see fit to allow.
Explanation provides that a respondent aggrieved by a ‗finding‘ of the

court in the judgement on which the decree appealed against is based
may, under this rule, file cross-objections in respect of the decree in so
far as it is based on that finding, notwithstanding that by reason of the
73
decision of the Court on any other finding which is sufficient for the
decision of the suit, the decree, is wholly or in a party, in favour of that
respondent.
Unless the respondent files with the objection a written

acknowledgement from the party who may be affected by such
objection or his pleader of having received a copy thereof, the appellate
court shall cause a copy to be served, as soon as may be after the
filing of the objection, on such party or his pleader at the expense of the
respondent. [O. 41, R. 22 (3)].
Powers of Appellate Court

First Appellate Court has got the power to judge the correctness of
findings of facts as well as of law recorded by the Trial Court. However,
Second Appeal to the High Court under Section 100 CPC lies only if
the case involves a substantial question of law. Section 107 explicates
law on Powers of Appellate Court. It states,
―107. Powers of Appellate Court – (1) Subject to such conditions and

limitations as may be prescribed, an Appellate Court shall have power-
 To determine a case finally;

 To remand a case;
 To frame issues and refer them for trial;
 To take additional evidence or to require evidence to be taken.
 Subject as aforesaid, the Appellate court shall have the same
powers and shall perform as nearly as may be the same duties as are
conferred and imposed by this code on courts of original jurisdiction in
respect of suits instituted therein.‖
Section 112 of the Code saves other powers of the Supreme Court (As
provided under the constitution or otherwise) from getting affected by
this code. Section 151 saves ‗inherent powers‘ of the court too.
Stay of Proceedings and Stay of Execution

Order 41 Rule 5, CPC states the relationship between the appeal on a
stay of proceedings and execution. It provides that, an appeal shall not
operate as a stay of proceedings under a decree or order appealed
from except so far as the Appellate Court may order, nor shall
74
execution of a decree be stayed by reason only of an appeal, having

been preferred from the decree. But, the Appellate Court may for
‗sufficient cause‘ order stay of execution of such decree.
Also, no order for stay of execution can be made unless the court
making it is satisfied that –
 That substantial loss may result in the party applying for a stay of
execution unless the order is made;
 That the application has been made without unreasonable delay;
 That security has been given by the applicant for the due
performance of such decree or order as may ultimately be binding
upon him.
The Court may also make an ex parte order for stay of execution
pending the hearing of the application. The court may also direct the
appellant to deposit some security for granting the stay of execution.
Under Order 21, rule 26, C.P.C. the court to which a decree has been
sent for execution shall, upon sufficient cause being shown, stay the
execution of such decree for a reasonable time, to enable the
judgment-debtor to apply to the court by which the decree was passed
or an appellate court for an order to stay the execution. Before making
an order to stay the execution, the court may require such security from
the judgment-debtor as it thinks fit.
Under rule 29 of the same Order the court may, on security or

otherwise, stay the execution of a decree until the decision of the
pending suit, filed by the judgment-debtor against the decree-holder.
Stay order in the appeal can be made conditional too, and if the
condition is not complied with, stay order stands revoked/discharged
but the appeal remains intact and has to be heard on merits. (Atma
Ram Properties (P) Ltd. v. M/s. Federal Motors Pvt. Ltd., 2005 (1)
SCC 705). But the condition attached to stay order must be
‗reasonable‘.
In the case of the appellate court, in order for a stay of proceedings,

such a stay cannot be in operation for more than 6 months, unless in
75
exceptional circumstances, as has been held by the Supreme Court,

in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. Central
Bureau of Investigation (Criminal Appeal No. 1375/2013).
Remand by Appellate Court

According to Black‘s Law Dictionary, Remand means, ‗the act or an
instance of sending something (such as a case, claim, or person) back
for future action.‘
There are three provisions in the Code, which deal with the power of
the Appellate Court to remand the case to the Trial Court. These
provisions are order 41 Rules 23, 23A and 25.
Order 41 Rule 23, enables the Appellate Court to remand the case to
the Trial Court when it finds that the Trial Court has disposed of the suit
upon a preliminary point. The Appellate Court in such cases is
empowered to direct the Trial Court to decide all the issues on
evidence on record.
Rule 23A enables the Appellate Court to remand the case to the Trial
Court when it finds that though the Trial Court has disposed of the suit
on all the issues but on the reversal of the decree in appeal, a re-trial is
considered necessary by the Appellate Court.
Rule 25 enables the Appellate court to frame or try the issue if it finds
that it is essential to the right decision of the suit and was not framed by
the Trial Court. The Appellate Court in such case, may, accordingly,
frame the issues and refer the same to the Trial Court to take the
evidence and record the findings on such issues and return to the
Appellate Court for deciding the Appeal. In such cases, the Appellate
Court retains the Appeal to itself.
Under Order 41 Rule 24, the code provides, that where the evidence
upon the record is sufficient to enable the Appellate Court to pronounce
the judgment, the Appellate Court may, after resettling the issues, if
necessary, finally determine the suit.
76
In Syeda Rahimunnisa v. Malan Bi (Dead) by L.R. & Anr. Etc., Civil

Appeal No. 2875/2010, Supreme Court held that, High court, while
hearing a second appeal, has no jurisdiction to remand a case to the
trial court, especially when no party to the appeal raised this ground
before the first appellate court or/and the high court as to why the
remand of the case to the trial court is called for and nor there was any
finding recorded on this question by the first appellate court.
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami &

V.P. Temple, AIR 2003 SC 4548, the court avoided remand, even
though it was desirable, as the suit had been instituted 25 years before.
Appeal from Original Decree

Section 96 of the Code provides that the first way of challenging the
decree, passed by a court exercising the original jurisdiction, is by filing
an appeal in the court ‗authorized to hear appeals‘ from the decisions
of such court. It also provides that, an appeal may lie from an original
decree passed ex parte, i.e., without hearing the other party. No appeal
will lie from a decree passed by the Court with the consent of parties.
This kind of appeal is also known as ‗the first appeal‘. It is permissible

for the appellate court to re-examine and re-appreciate the evidence, in
the first appeal. The right to institute the suit is an inherent right, but the
right of appeal is statutory. (Baldev Singh v. Surendra Mohan
Sharma, AIR 2003 SC 225).
In Delhi UP Madhya Pradesh Transport Co. v. New India

Assurance Co., 2006 9 SCC 213, the Apex Court held that regular first
appeal should not be dismissed summarily without assigning a proper
reason.
Order XLI Rule 31 CPC elaborates on how the First Appellate Court
must decide the appeal. It makes it mandatory for the court to mention
in its judgment
 The points for determination

 The decision thereon;
 Reasons for the decision;
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 Where the decree appealed from is reversed or varied, the relief

to which the appellant is entitled.
the below-mentioned case emphasizes these guidelines for the
appellate court to follow.
In H. Siddiqui (dead) by LRs v. A. Ramalingam, AIR 2011 SC 1492,

the apex court held as under
―It must be evident from the judgment of the appellate court that the
court has properly appreciated the facts/evidence, applied its mind and
decided the case considering the material on record. It would amount
to substantial compliance of the said provisions if the appellate court’s
judgment is based on the independent assessment of the relevant
evidence on all-important aspect of the matter and the findings of the
appellate court are well-founded and quite convincing.
It is mandatory for the appellate court to independently assess the

evidence of the parties and consider the relevant points which arise for
adjudication and the bearing of the evidence on those points. Being the
final court of fact, the first appellate court must not record a mere
general expression of concurrence with the trial court judgment rather it
must give reasons for its decision on each point independently to that
of the trial court. Thus, the entire evidence should be done after
formulating the points for consideration in terms of the said provisions
and the court must proceed in adherence to the requirements of the
said statutory. ‖
Second Appeal
Section 100-103 of CPC deals with the second appeal. This part of the
code contains provisions relating to appeal from ‗appellate decrees‘
unlike from original decree. As the word ‗second appeal‘ clearly
denotes, it is an appeal filed against the order of an appellate court.
Second here denotes the number of appeals, in laymen terminology.
Section 100 provides that an appeal shall lie to the High Court from
every decree passed in appeal by any Court subordinate to the High
Court if the High Court is satisfied that the case involves a substantial
question of law. It must be noted that second appeal only lies on the
substantial question of law, not on the question of facts.
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In State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594, the
Supreme Court explained the term ‗substantial question of law‘, by
observing that,
―The word ‘substantial’ prefixed to ‘question of law’ does not refer to the
stakes involved in the case, nor intended to refer only to questions of
law of general importance, but refers to impact or effect of the question
of law on the decision in the lis between the parties. ‘
Substantial question of law’ means not only substantial questions of

law of general importance but also the substantial question of law
arising in a case as between the parties. ….. any question of law which
affects the final decision in a case is a substantial question of law as
between the parties. A question of law which arises incidentally or
collaterally, having no bearing on the final outcome, will not be a
substantial question of law.‖
The High Court should not entertain a second appeal under Section
100 of the Code unless it raises a substantial question of law.
In Panchu Gopal Barua v. Umesh Chandra Goswami & Ors., AIR
1997 SC 1041, the Court observed that while entertaining the second
appeal, the Court should not overlook the change brought about by the
Amendment act of 1976, restricting the scope of the second appeal
drastically and now it applies only to appeals and formulated by the
High Court. The existence of a substantial question of law is sine qua
non for the exercise of jurisdiction under the provisions of Section 100
of the code.
In Kondibu Dagadu Kadam v. Savitribai Sopan Gujar & Ors. AIR

1999 SC 2213, the Apex Court held that second appeal cannot be
decided merely on equitable grounds as it lies only on the substantial
question of law. In Kashibai v. Parwatibai (1995) 6 SCC 213, the
Court held that the High Court cannot appreciate the evidence and
interfere with the findings of the facts in the second appeal unless the
substantial question of law or a question of law duly formulated is to be
decided. The second appeal does not lie on the ground of erroneous
findings of facts based on an appreciation of the relevant evidence.
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In Jai Singh v. Shakuntala (AIR 2002 SC 1428), the Supreme Court

held that it is permissible to interfere even on the question of fact but it
has to be done only under exceptional circumstances.
There may be exceptional circumstances where the High Court is

compelled to interfere, notwithstanding the limitation imposed by the
wording of Section 100 CPC. It may be necessary to do so for the
reason that after all the purpose of the establishment of the courts is to
render justice between the parties, though the High Court is bound to
act with circumspection while exercising such jurisdiction.
In the second appeal, the court frames the substantial question of law
and at the time of admission of the appeal, the Court is required to
answer all the said questions unless the appeal is finally decided on
one or two of those questions, or the court comes to the conclusion that
the questions framed could not be a substantial question of always.
There is no prohibition in law to frame the additional substantial
question of law if the need so arises at the time of the final hearing of
the appeal. (Union of India v. Ibrahim Uddin & Anr., 2012 8 SCC
148).
In P. Chandrasekharan & Ors. v. S. Kanakarajan & Ors. (2007) 5

SCC 669, the Supreme Court reiterated the principle that interference
in the second appeal is permissible only when the findings are based
on a misreading of evidence or are so perverse that no person of
ordinary prudence could take the said view.
Then, High Court can interfere with the finding of the fact while deciding
the Second Appeal provided the findings recorded by the Courts below
are perverse, as held in Dinesh Kumar v. Yusuf Ali, AIR 2010 SC
2679.
When deciding the second appeal, the court may also make a ‗finding a
fact‘ under section 103 of CPC. In Haryana State Electronics
Development Corporation Ltd. & Ors. v. Seema Sharma &
Ors. (2009 7 SCC 311), the court enumerated the conditions to be
fulfilled by the court before exercising power under section 103. The
conditions are:-
80
 Determination of an issue must be necessary for the disposal of

appeal;
 The evidence on record must be sufficient to decide such an
issue;
 (a) Such issue should not have been determined either by the
trial court or by the appellate court or by both;
(b) Such issue should have been wrongly determined either by the trial
court, or by the appellate court, or by both by reason of a decision on
the substantial question of law.
The issue of the perversity of fact is itself a substantial question of law,

and therefore, section 103 CPC can be held to be supplementary to
Section 100 CPC and does not supplant it altogether. Reading it
otherwise would render the provisions of Section 100 CPC redundant.
It is only an issue that involves a substantial question of law, that can

be adjudicated upon by the High Court itself instead of remanding the
case to the court below, provided there is sufficient evidence on record
to adjudicate upon the said issue and other conditions mentioned
therein stands fulfilled. Thus, the object of the Section is to avoid
remand and adjudicate the issue if the findings of fact recorded by the
courts below are found to be perverse. (Municipal Committee,
Hoshiarpur v. Punjab State Electricity Board & Ors., JT 2010 (11)
SC 615).
Section 102 provides that no second appeal would lie where the
subject matter of the original suit for recovery of money is not
exceeding Rs. 25,000/-.
Appeal from Orders

An order which is passed pendente lite, that order (interim) can also be
challenged in the appellate court if it falls under categories given under
Section 104 or Order XLIII of the Code.
Section 104 provides that an appeal shall lie from the following orders,
and save as otherwise expressly provided in the body of this Code or
by any aw for the time being in force, from no other orders:
81
a. An order under S. 35-A, i.e., in a case where compensatory costs

in respect of false or vexatious claims or defense have been awarded;
b. An order under S. 95, i.e., in a case where compensation for
obtaining arrest, attachment or injunction on insufficient grounds has
been awarded;
c. An order under any of the provisions of the Code imposing a fine
or directing the arrest or detention in the civil prison of any person
except where such arrest or detention is in the execution of a decree;
and
d. Any order made under rules from which an appeal is expressly
allowed by rules.
e. Under the amended provision, an appeal shall also lie from an
order under S. 91 or S. 92 refusing leave to institute a suit of nature
referred to in S. 91 or S. 92, as the case may be. No appeal shall lie
from any order passed in appeal under this section.
Order XLIII Rule 1 also enumerates several categories of orders which
are appealable.
Where any order is made under the Code against a party and
thereupon any judgment is pronounced against such party and a
decree is drawn up, such party may, in an appeal against the decree,
contend that such order should not have been made and the judgment
should not have been pronounced.
In an appeal against a decree passed in a suit after recording a

compromise or refusing to record a compromise, it shall be open to the
appellant to contest the decree on the ground that the compromise
should, or should not, have been recorded. (Order XLIII, Rule 1-A).
Review
Section 114 of the Code defines Review, It says that, if a person
considers himself aggrieved
 By a decree or order from which an appeal is allowed by this

code, but from which no appeal has been preferred.
 By a decree or order from which no appeal is allowed by this
code
82
 By a decision on a reference from a Court of Small Causes,

May apply for a ‗review‘ of judgment to ‗the Court which passed the
decree‘ or made the order, and the court may make such order thereon
as it thinks fit.
The primary difference between the appeal and review is that the
former is filed in the appellate court where the appeal of the suit is
allowed to be filed, while the latter is filed in the same court which
decreed/ordered the suit.
Review of an order/decree is a discretionary right of the court and not

statutory right.
The purpose of the review is a rectification of an order which stems

from the fundamental principle that the justice is above all and it is
exercised only to correct the error which has occurred by some
accident, without any blame (Raja Prithwi Chand Lal Choudhury v.
Sukhraj Rai & Ors., AIR 1941 FC 1).
Order 47 of the Code mentions grounds for review.
 When new and important matter or evidence is discovered which

after the exercise of due diligence was not within his knowledge, or
could not be produced by him at the time when the decree or order
was passed;
 When there is any mistake or error apparent on the face of the
record;
 When there is any other sufficient reason.
In State of West Bengal & Ors. v. Kamal Sengupta & Anr. (2008) 8
SCC 612, the Apex court held that, review on the ground of discovery
of new and important matter or evidence can be taken into
consideration, if the same is of such a nature that if it had been
produced earlier, it would have altered the judgement under review and
Court must be satisfied that the party who is adducing the new ground
was not having the knowledge of the same even after exercise of due
diligence and therefore, it could not be produced before the Court
earlier.
83
The error apparent signifies an error that is evident per se from the
record of the case and does not require detailed examination, scrutiny
and elucidation either of the facts or the legal position. In case the error
is not self-evident and detection thereof requires long debate and
process of reasoning, it cannot be treated as an error apparent on the
face of the record for the purpose of review.
There is no provision of reviewing an order ‗already reviewed‘, unlike

an appeal where there is a provision of the second appeal.
Article 137 of the Constitution confers power on the Supreme Court to

review its own judgments subject to the provisions of any law made by
Parliament or the Rules made under clause (c) of Article 145. The
Power of the Supreme Court, therefore, cannot be curtailed by the
Code (Ram Singh and Others v. Union of India, WP 274/2014).
Conclusion
The complex and tangled web of ‗appeal‘ is incomprehensible to
laymen. The Civil Procedure Code contains procedures which are
normally understood by lawyers only. This creates a situation of
absurdity, wherein, most of the time, the plaintiff, or the actual
applicant, knows his ‗substantive rights‘ but does not knows his
‗procedural rights‘ or the ways through which he can enforce his rights,
i.e. remedies which are provided to him. Hence, the ultimate goal
should be to make these laws as simple as they can be understood by
laymen.
When a person is unaware of his ‗procedural rights‘, his ‗substantive

rights‘ loses their meaning, as they are denuded of their enforcement.
A layman gets entrapped in this web, and ultimately this web takes his
life, and he is not able to claim the remedy.
Sources
 SCC Online
 Civil Procedure Code Book by C. K. Takwani
84
 The Code of Civil Procedure Book by Dinshah Fardunji Mulla
Meaning and Procedure of Second Appeal under the Civil

Procedure Code, 1908 | Overview
 Introduction
 Features of Section 100, CPC
 Evolution of Section 100
 Limitations to the Second Appeal
 Powers of the Appellate Court
Under the Code of Civil Procedure, appeal to the High Court is referred
to as the second appeal since the High Court is a second-highest court
of appeal. This article shall comprehend the meaning and procedure of
the second appeal under the Civil Procedure Code, 1908.
Introduction
The Code, under Section 100, entitles an aggrieved party to a suit to
appeal before the High Court, if the right to appeal from the original
decree has already been exhausted in the first attempt. The right to
appeal before the High Court is a right to second appeal and it can be
exercised after two subordinate courts have already looked into the
material facts and evidence involved in the suit. The right to second
appeal is not vested or deemed right.
It means that a person does not have a right to appeal by virtue of the
fact that a decision has been made by a court against him. Right to the
second appeal is a statutory right which is granted in certain
circumstances by the statute and unless it is specifically granted, it
cannot be exercised and any decree or judgment pronounced by the
court without jurisdiction shall be null and void.
Features of Section 100, CPC

Section 100 entitles every aggrieved person to move the High Court to
challenge any decree or judgment pronounced by a subordinate court
in appeal. The essential features of the provision for the second appeal
are as follows:
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1. Savings Clause: Section 100 begins with a savings clause

which makes an exception to the application of this section to
circumstances specifically provided under the Code or any other law. It
means that the parties should resort to Section 100 of CPC to appeal
only when the specific law is silent on this aspect and when the CPC
does not provide any procedure of the second appeal in any other
provision. So, for example, Section 104 (2) does not allow a second
appeal against orders passed by an appellate court, Section 100
cannot be invoked in such cases.
2. Any Sub-ordinate Court: Section 100 entails appeal from any
court subordinate to the High Court which has passed any decree in its
appellate jurisdiction. This provision entitles the High Court to hear
appeals from various appellate tribunals which have pronounced a
decree in their appellate jurisdiction. For instance, appeal from National
Company Law Appellate Tribunal or the Income Tax Appellate Tribunal
lies to the High Court as well.
3. Substantial Question of Law: The High Court can exercise
jurisdiction in the second appeal only if the case involves a substantial
question of law. Firstly, it means that the High Court shall not look into
the authenticity of the facts and shall not take evidence to prove such
facts. Further, the question of law must be substantial. In the matter
of Santosh Hazari v. Purushottam Tiwari[1], the apex court observed
that ‗substantial‘ means having substance, essential, real, of sound
worth, important or considerable. This meaning was also reiterated in
the recent case of Kashmir Singh v. Harnam Singh[2]. All these
judgments have been assimilated and a final test to decide the
definition of ‗substantial question of law‘ has been provided in the 2005
case of Govindaraju v. Mariamman[3] wherein the court, in clearest
terms, held, ―to be a substantial question of law, it must be debatable,
not previously settled by law of the land or a binding precedent and
should be such that answer to it would have a material bearing as to
the rights of parties before the court‖.
Evolution of Section 100
Although Section 100 entitles an aggrieved party of a right to the
second appeal, the issue in the appeal must involve a substantial
question of law. The Code was amended in 1976 to include the words
substantial question of law to prevent irrelevant appeals and misuses of
86
process of High Court. This imposed a grave restriction on the powers

of the High Court in adjudging appeals. Before the amendment, several
courts had presented their opinions in this regard and exercise of
power by the High Court.
In Durga Choudhrain v. Jawahir Choudhari[4], the apex court

observed that High Court has no jurisdiction to entertain second
appeals in cases of erroneous findings of facts.
Further, Subba Rao J. criticised works of the High Courts that heard
appeals in cases that lacked substantial question of law[5]. His
Lordship, in strong words, observed that certain High Courts dispose of
second appeals as if they were first appeals and by taking up matters
involving questions of facts, they perplex the litigants as well.
In Annapoorani Ammal v. G. Thangapalam[6], the apex court

analyzed Section 100 and stated that the provision clearly states that
the case should include a substantial question of law for the High Court
to exercise jurisdiction. Prima Facie, the parties should frame the
issues in a way that unveils and discloses clearly the substantial legal
question involved and further, under the proviso to the section, if the
issues do not disclose a substantial question of law, the court should
determine whether a substantial legal question needs to be addressed
in the appeal or not.
In Ramachandra Aiyyar v. Ramalinga Chettiar[7], the Supreme

Court further held that the High Court also cannot intervene with any
findings of the subordinate appeals court on the ground that its decision
and identification of facts was not inline or in consonance with the
findings of the trial court.
Limitations to the Second Appeal

Section 101 provides that there shall be no second appeal unless the
provisions and prerequisites of Section 100 are duly fulfilled. Therefore,
the test to determine eligibility for the second appeal is simply to fulfil
the conditions laid down under Section 101and more specifically, there
must be substantial legal question involved in the case.
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Moreover, Section 102 states that if the subject-matter of the appeal is

a recovery of money, to take the matter to the High Court, the amount
of money to be recovered should exceed Rupees Twenty Five
Thousand. It means that if the value of the money to be recovered is
less than Rs. 25,000, the High Court shall lack the requisite pecuniary
jurisdiction to entertain a second appeal.
Powers of the Appellate Court

Section 107 grants the following powers to the Appellate Courts:
 To Determine a Case Finally: An appellate court is entitled to

dispose of the case finally, conclusively determining the rights of the
parties involved. It is not necessary for the appellate court to look into
all the issues framed for disposal, it may settle all such issues it
deems necessary and involving a substantial question of law. Under
Order XLI Rule 24, if the court believes that there is sufficient
evidence to decide the case, it may proceed to decide the case finally.
 To Remand a Case: Remand a case means to send a case
back to the subordinate court to be tried again. Rules 23 and 23A of
Order XLI of the Code empowers the appellate court to remand a
case back to the trial court with certain specific issues to be resolved
by that court. It has to be understood that the appellate court is not
empowered to take evidence and determine the correct factual
situations. Thus, when a decree is passed by a trial court but no
reason for such finding is mentioned and the appeals court reverses
the decree, it is essential that the case is tried again on merits. Hence,
the rule empowers the appellate courts to remand a case.
 To Frame Issues and Refer the Case for Trial: Under Rule 25
of Order XLI, the appellate court is empowered to frame issues in a
suit which it believes that the subordinate court had failed to frame or
try any matter for revealing a fact which has not already been done by
the trial court. An appellate court is empowered under this provision to
refer a case for trial for collecting additional evidence in the matter as
well. Power to refer is different from that of remanding a case back
because, in case of remand the entire record of the case (the case
file) is sent back to the lower court for re-trial while in case of referral,
88
only the specific issue is sent to be adjudged whereas the case file
remains with the appellate court.
 To take additional evidence: As aforementioned, an appellate
court is not empowered to take additional evidence and for that
purpose, it has to be sent back to the trial court. However, Rules 27 to
29 provide certain exceptional situations when appeals courts can
admit additional evidence:
o When the trial court refuses to admit an evidence (oral or
documentary) without lawful and just reasons.
o When the party bringing the evidence had no knowledge
about the evidence at the trial or at any time before the appeal.
o If the party producing additional evidence can satisfy the
court that he was unable to produce the evidence during trial despite
exercising due diligence.
References
1. R Prakash, Scope of High Court‘s Jurisdiction Under Section 100

of the Civil Procedure Code, 1908, (2003) 5 SCC (Jour) 27.
2. C. Sarkar, Code of Civil Procedure, Vol. II, (12th ed. 2017).
[1] Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.
[2] Kashmir Singh v. Harnam Singh, AIR 2008 SC 1749.
[3] Govindaraju v. Mariamman, AIR 2005 SC 1008.
[4] Durga Choudhrain v. Jawahir Choudhari, AIR 1959 SC 57.
[5] Deity Pattabhiramaswamy v. S. Hanymayya, (1986) 3 SCC 360.
[6] Annapoorani Ammal v. G. Thangapalam, (1995) 6 SCC 213.
[7] Ramachandra Aiyyar v. Ramalinga Chettiar, (1995) 4 SCC 15.

89
Meaning and Procedure of Review under the Code of Civil

Procedure, 1908
Introduction
The Latin doctrine ‘functus officio’ is applicable with respect to a
judgment passed by any court following due procedure of law. The
doctrine means that a case cannot be re-opened if a judgment in the
case has been pronounced after a due and fair hearing and trial. The
right to file for a review of a judgment is an exception to the Latin
concept of functus officio.
The term ‗review‘ means ‗to re-examine or to study again‘. In a legal

sense it means filing an application before the court which passed the
decree requesting it to re-examine the material facts and evidence in
the case and pronounce a decree again.
Review under Section 114
Section 114 of the code enables a person to file an application or
review petition before the court to re-examine the case decided by that
court itself. The essential features of the provision are:
1. Aggrieved Person: The power to file for review is available with

a person who is aggrieved from any decree or order pronounced by a
court. An aggrieved person, basically, means the judgment-debtor, i.e.
the person against whom the decree has been passed. A person who
is the decree-holder cannot file an application for the review of a case.
2. Appeal not Filed: Review is allowed in a case where the CPC
allows an appeal to be filed but, however, the aggrieved party has
decided not to file an appeal and rather a review petition. It basically
means it can be filed only before appeal and not after an appeal is
moved.
3. Appeal not Allowed: Under Section 114, a review can be filed
for a decree or order from which appeal is disallowed under the
CPC. For instance, an appeal is not allowed from any compromise
decree, i.e. a decree passed on the basis of mutual settlement between
the parties. Hence, a review petition can be filed for the same.
4. By reference: When a case is referred from a court of small
causes to a higher court (civil court junior or senior division) for
90
determination and the case is decided by the said civic court, a review
petition can be filed by the person aggrieved by the decision of the
court. The power to review a judgement is vested upon the court which
has passed the decree. Such power is discretionary in nature and
depending on the merits of the case, the court can allow or dismiss the
review petition.
Application for review
Under rule 1 of Order XLVII of the civil procedure code any person
who is aggrieved by a decree or an order of a court and if one of the
four aforesaid circumstances exists, then the person can file an
application for the review of the decree or order.
The available grounds for filing are as follows:
 The aggrieved party must have found certain new material facts
or evidence which the party was unable to procure and produce
before the court at the time when the court passed the decree despite
exercising due care and diligence. However, under Rule 4, a mere
statement of the applicant cannot be sufficient to accept that a new
piece of evidence has suddenly come to the party‘s possession and
was genuinely not in his knowledge before. Hence, any such claim
must be proved before the court with no room for doubts or suspicion.
 There was a mistake or an error committed by the Hon‘ble court
which was apparent on the face of record while pronouncing the
decree, because of which the party believes that the decree has been
influenced and could be passed in his favour either. In the case
of Usha Rani v. Hardas Das[1], the Guwahati High Court observed
that what is an error apparent on the face of record depends on the
fact and circumstances of each case.
 Rule 1 uses the expression ―any other sufficient reason‖. In Lily
Thomas v. Union of India[2], it was clarified by the court that any
reason can be any reason which the court believes to be sufficient to
allow a review of the judgment provided that the reason is at least
analogous to the provisions of Rule 1 Order XLVII.
 A misconception or misinterpretation of the factual scenario of
the case can be a valid ground for a party to file an application of
review of the judgment[3].
91
If the court considers that the application filed for review has substantial
grounds for review, the application may be granted. Nevertheless, the
court must serve a notice of the review petition to the opposite party to
allow him/her to appear before the court and defend his case.
Process of Review
According to Rule 5 of Order XLVII, if any decree or order is sought to
be reviewed by a party to the suit, it can only be reviewed by the judge
or bench (in case the original decree was passed by two or more
judges) which passed the original decree or order. The rationale for this
provision is that the term review indicates to look again.
The purpose is to look for any mistake or deficiency that occurred last
time the case was decided. Hence, the bench that decided that the
case would be in the best possible situation to review the same.
Further, the judges would know the reason for passing the decree or
order while any other judge may not be able to appreciate the matter as
well as the original bench. Therefore, a judgment can be reviewed only
by the judge(s) who decided the case.
However, Rule 5 makes an exception to deal with situations where the

judges or one of the judges who pronounced the judgment is absent
and cannot hear the case for anytime sooner than six months from the
date of filing of the application of review. The provision allows any other
competent judge or any other court of competent jurisdiction to hear the
review petition and pass any order as it may deem fit.
Rejection of Review Petition

According to Rule 6, a review petition can be rejected in two ways.
Firstly, when the application was heard by two or more judges and the
judges are equally divided in their opinion as to whether the review
should be allowed or not.
Secondly, when the judges by majority decide that there is no sufficient

reason for allowing the review, the court by the majority can reject the
petition. Hence, the court should, by a majority, accept the review
application to allow a review and even a tie between the judges cannot
grant a review to the aggrieved party.
92
There can be several grounds for rejection. These grounds are:
 When the applicant or petitioner fails to satisfy the court that

there is new evidence that needs to be considered or that the court
has committed an error apparent on the face of record, the court may
reject the petition.
 According to the Supreme Court Rules, a review application
before the Supreme Court must be made before the expiry of 30 days
from the date of pronouncement of the decree or order. Similarly,
every review application has a time limit within which it must be filed.
If an application is barred by limitation, the court may reject it.
 Suppose A sued B for acquiring permanent injunction but the
decree was not passed in his favour and he applied for a review of the
decree before the same court. In the review, the decree was reversed
and the court found that there was an error and A was declared the
decree-holder. Now, B cannot file a review application for the review
of the reversed decree. Hence, review of a reviewed order or decree
is not allowed and an application for the same shall be rejected by the
court.
 After a review application is filed, the court fixes a date for the
first hearing of the review application and the applicant is called for
the hearing. If the applicant fails to appear either himself or through a
pleader without justification, the court may reject the application. A
party aggrieved by an order of rejection of review petition can file an
application for restoring it to file if s/he can satisfy the court that there
was sufficient cause beyond his control compelling his non-
appearance on the fixed date.
According to Rule 7, an order of rejection of review application is not
appealable and shall be binding between the parties. Although an order
granting the review application can be objected and appealed before
an appellate court, the order of rejection remains as it is. After the
review application is accepted and the court has reviewed the decree
or order, the court shall pronounce the reviewed judgment and it shall
be binding on the parties.
93
In M.B. Catholicos v. M. Poulose[4], the apex court observed that

after the acceptance of the review petition, the court proceeds with the
process of rehearing the case. The decision of the court after rehearing
the matter shall be binding on the parties concerned.
References:
1. Dinshaw F. Mulla, the Key to Indian Practice: A Summary of the

Code of Civl Procedure, 1908, (11th 2015).
[1] Usha Rani v. Hardas Das, AIR 2005 Gau 01.
[2] Lily Thomas v. Union of India, AIR 2000 SC 1650.
[3] Soumitra Panda v. A.K Agarwal, AIR 1994 Cal 165.
[4] M.B. Catholicos v. M. Poulose, AIR 1954 SC 526.
Revision under the Code of Civil Procedure, 1908 | Overview
 Introduction
 Nature and Scope of Section 115
 Object of Revisionary Jurisdiction
 Conditions for Exercising Revisionary Powers
 Section 115 of CPC and Article 227 of Constitution
Revision is the power of the High Courts to scrutinise any judgment
pronounced by a subordinate court and ensuring that the judgment was
passed by a competent court. This article aims to analyse the meaning,
object and procedure of exercising the powers of revision by the High
Courts under the CPC.
Introduction
Revision, etymologically, means to go through or examine a completed
task again and edit or make changes. In legal terminology, it means the
examination of a judgment pronounced by a lower court by a higher
court. The higher courts, in general, exercise supervision over the
94
working of the lower courts to ensure that justice is imparted in all

cases. Revisionary power of the higher courts is one tool to ensure
that.
Revisionary power is a statutory power and not an inherent power. It

means that unless a law specifically empowers a court to exercise the
power of revision, the courts cannot suo motu exercise it.
Section 115 of the Code of Civil Procedure empowers the High Courts
of respective States to call for the records of any case decided by a
sub-ordinate court and peruse whether the judgment pronounced in the
case was within the competence of the court or not and need be, the
High Court can make necessary changes.
Nature and Scope of Section 115

Section 115, as aforesaid, grants revisionary jurisdiction to the High
Courts to keep perusal on judgments of subordinate courts. The scope
and nature of this provision were examined by the apex court in the
landmark case of Major S.S. Khanna v. Brigadier F. J. Dillon[1].
In this case, the appellant and respondent were partners in a

partnership firm which was dissolved mutually by the parties. The
parties approached the court for realization of the assets and liabilities
and the court directed the parties to deposit the realized amount in a
joint account. Later the respondent sued the appellant for embezzling
the funds from the joint account.
The trial court observed that it does not have the jurisdiction to try the
case but the case was not dismissed and fixed for another date.
Meanwhile, the respondent filed an application for revision before the
High Court under Section 115 of CPC and the High Court observed
that the trial had the jurisdiction to try the case and directed the court to
proceed with the trial.
The appellant has appealed against this order of the High Court
claiming that the High Court has wrongly exercised its revisionary
powers because Section 115 applies to cases which have been
decided and since this case was not yet decided, High Court‘s order
is nullity.
95
To address the argument of the appellant, the apex court explained the
nature and scope of the provision. The court observed that Section 115
is divided into two portions. The first part explains the prerequisites to
the exercise of the revisionary jurisdiction of the High Court (when
there is no appeal from a judgment) and second part lays down the
circumstances, i.e. situations when the High Court can exercise its
jurisdiction (cases which have decided by any court).
The court further explained that meaning of ―cases which have been
decided‖ does not only mean that the entire case must be disposed of
and proceedings must come to an end. The court held that when an
order is made, that also amounts to deciding of the case with respect
one particular issue and revision can be sought against such order as
well. Hence, the High Court was correct to exercise its revisionary
jurisdiction.
The revisionary jurisdiction of the High Court under Section 115 can be
exercised only when the allegation relates to jurisdictional errors of the
trial court. It means that the High Court can intervene in its revisionary
powers only if the trial court has pronounced judgment without the
requisite jurisdiction or if the trial court has refused to take action
despite having jurisdiction.
In Panduranga Mandlik v. Maruti Ghatge[2], the apex court held that

―an erroneous decision on a question of law reached by the
subordinate court which has no relation to questions of jurisdiction of
that court, cannot be corrected by the High court under Section 115‖[3].
Object of Revisionary Jurisdiction
The object for vesting revisionary powers upon the High Courts is to
empower the High Courts to supervise the working of the lower courts.
It ensures that no arbitrary and illegal exercise of jurisdiction is being
done by the subordinate courts. The objects of granting revisionary
powers to the High Courts can be comprehended in four points:
 To ensure that any judgment, decree or order pronounced by a

subordinate court is within its competence and jurisdiction.
96
 To ensure that the case before a subordinate court is within the

jurisdiction of the court. It means that the case must be within the
territorial, pecuniary and subject matter jurisdiction of the court.
 To ensure that the subordinate courts exercise jurisdiction by
remaining within the four corners of the law and do not act illegally or
cause material irregularity by exercising jurisdiction in a case.
 To allow an aggrieved party an opportunity to ensure that any
non-appealable orders passed against them can be rectified by the
High Court.
Conditions for Exercising Revisionary Powers
Section 115 of the Code that vests revisionary powers on High Courts
also provides for certain conditions which are sine qua non to the
exercise of revisionary jurisdiction by the High Court. These conditions
can be enlisted as follows:
 Case must be decided: The case in which the application for

revision is sought must have been decided and should not be pending
before the court for decision. As explained before, in the case
of Major S.S. Khanna[4], the apex court observed that case must be
decided does not only mean that the entire case must be disposed of
and proceedings must come to an end. The court held that when an
order is made, that also amounts to deciding of the case with respect
one particular issue and revision can be sought against such order as
well.
 No Appeal Allowed: Section 104 read with Order XLIII of the
Code mentions orders from which an appeal can be brought before a
higher court. All other orders are non-appealable. Similarly, a decree
passed by court on the basis of the consent of both the parties is non-
appealable. These non-appealable orders or decrees can be revised
by filing an application before the High Court for revision and no other
orders.
 Jurisdictional Error: The lower court should have decided the
case under one of the three situations: (a) exercising jurisdiction
which is not vested upon it, (b) not exercising jurisdiction which is
vested upon it and (c) illegally or arbitrarily exercising jurisdiction
97
vested upon it. All these circumstances are called jurisdictional errors.
A revision is allowed only if the lower court commits a jurisdictional
error in any one of the three ways.
 Availability of Alternate Remedy: The power to exercise
revisionary jurisdiction is a discretionary power of the court and the
litigants cannot claim it as a statutory right. Once the application for
revision in made, it is completely at the option of the court to exercise
its powers or not. In this regard, in the aforementioned case of Major
Khanna[5] it was observed the Hon‘ble apex court that when the High
Court considers that an auxiliary and potent remedy is available to the
aggrieved person besides revision petition, the High Courts may reject
to entertain such application.
Section 115 of CPC and Article 227 of Constitution
Article 227 of the Indian Constitution entitles supervisory jurisdiction to
all the High Courts to peruse and superintend all lower courts within the
territory of the High Court. It is often misunderstood that Article 227 is
a revisionary jurisdiction of the High Court granted by the Constitution
and people often get confused between Article 227 and Section 115.
Both these provisions are completely different from each other. The
difference between these provisions can be explained as follows:
 Section 115 grants revisionary powers which are merely judicial

in nature and can be exercised when a lower court commits a
jurisdictional error. On the other hand, Article 227 bestows the power
of superintendence which is judicial as well as administrative in
nature. It means High Court exercises supervision over the
appointment, transfer and dismissal of judges of lower courts as well
under Article 227.
 Revisionary Jurisdiction is a statutory power and can be curtailed
or modified by the statute. However, supervisory power is a
Constitutional power and cannot be curtailed by law.
 Revisionary powers have limited application and are subject to
the conditions mentioned under Section 115 whereas the periphery of
Article 227 is much broader and any case of injustice by a lower court
can be brought under this provision.
98
References

2. C. Sarkar, Code of Civil Procedure, Vol. II, (12th ed. 2017).
[1] Major S.S. Khanna v. Brigadier F. J. Dillon, AIR 1964 SC 497.
[2] Panduranga Mandlik v. Maruti Ghatge, AIR 1989 SC 2240.
[3] Ibid. at 2249.
[4] Supra note 1.
[5] Ibid.
Application for Miscellaneous Proceedings under Section 141 of

CPC | Overview
 Introduction
 Historical Background of the Provision
 Meaning of ―Proceedings‖ under Section 141
 Conclusion
Procedural law can never be complete and exhaustive because
substantive laws keep changing with the need of the time. Therefore,
certain miscellaneous provisions are required to allow the code to be
conformed to in every situation. This article shall analyze the
application for miscellaneous proceedings under Section 141 of the
Code of Civil Procedure, 1908.
Introduction
Part XI of the CPC contains twenty-eight provisions which are
miscellaneous in nature and are exercised by the civil courts day in and
day out to enable a smooth continuum of the proceedings before the
court. The most used provision is Section 151 of the Code which deals
with inherent powers of the civil courts. Besides this section, the most
significant provision in Part XI is Section 141 which provides the
99
universal application of the Code in all civil proceedings before any

court exercising civil jurisdiction.
Section 141 has been a part of the CPC for almost a hundred years.
The provision has been subjected to several interpretations by the
judiciary and produced conflicting judicial opinions. The provision has
also undergone several modifications with the passage of time.
Historical Background of the Provision

The Code of Civil Procedure has been enacted five times in the Indian
legislative history. In 1859, 1861, 1877, 1882 and 1908. The present
law of civil procedure is governed by the Code of 1908 which repealed
all previously existing civil procedures. The provisions contained in
Section 141 did not find its place in 1859 CPC but was enacted for the
first time in Section 38 of the 1861 CPC. The provision empowered the
courts of civil jurisdiction to apply all the provisions of the code to any
matter which is miscellaneous in nature.
The provision remained in the Code till 1882 but it started to raise
conflict between several High Courts. The High Courts differed in their
opinion with respect to whether the provision applies to the application
filed for execution of a decree or not. The turmoil was resolved by
adding an explanation to the Section by an amendment in 1892. The
explanation made it categorical that the provision shall not apply to
applications for execution of a court decree but only to miscellaneous
applications related to certain suits.
For instance, A sued B for recovery of an amount of INR 5,00,000/-

lent by A to B as a friendly loan for a period of one year without
interest. After one year, B refused to return the amount and has been
absconding from the court to avoid the payment. The court ordered to
seize B‘s luxury car and notify B of the same and if the debt is not
repaid within a specific period, the money can be realized through the
vehicle.
Hearing this, B pays the pending amount and the suit is dismissed as
disposed of. Now, to recover his car, B has to file a miscellaneous
application before the same court where the trial was conducted.
100
According to Section 141 (Section 38 of the 1861 CPC), the court

should apply the provisions of CPC in such cases as well.
When the provision was enacted as Section 141 in the 1908 CPC, it
applied to all applications, suits and appeals of civil nature. However, in
1976, the CPC was amended and the explanation to the provision was
added. According to the explanation, the provision applies to suits and
proceedings under Order IX, i.e. appearance and non-appearance of
parties and it does not apply to writ jurisdiction of the High Courts under
Article 226.
Meaning of “Proceedings” under Section 141
Section 141 asserts that the procedure prescribed under the CPC for
the institution of suits shall also be applicable to other ―proceedings‖ of
civil nature. Now, the word ―proceedings‖ has been explained several
different manners by different courts because the provision has failed
to explain what proceedings is being referred to in the provision.
The first attempt to define the expression was made by the privy
council in Thakur Prasad v. Fakirullah[1] in 1894. Their Lordships
observed that ―proceedings‖ under Section 647 (now, Section 141)
refer to proceedings in ―original matters‖ or suits of civil jurisdiction and
any application for execution is not included in it. The decision
in Thakur Prasad led to a huge controversy among the High Courts of
different states. The issues raised after this judgment are:
 What is the meaning of ―original matters‖ as used by the Privy

Council in Thakur Prasad.
 Whether proceedings under Order XXI Rules 89, 90 and 91
amount to original matters.
 Whether proceedings under Order IX amount to original matters.
The term ―proceedings‖ was again subjected to interpretation after six
decades in Ebrahim Aboo Baker v. Tek Chand Dolwani[2]. The
question before the apex court was whether a proceeding conducted
before the custodian general under the Evacuee Property Act, 1950
would be considered proceedings under Section 141 of CPC. The court
101
held that since the custodian general is not a court, a proceeding

before a quasi-judicial body would not be proceedings for the purpose
of Section 141.
In Hemant Devi v. Midnapur Zaminadari Company[3], the matter had

gone for arbitration and after the arbitration was concluded, the parties
decided to settle the matter outside the court and moved the civil court
for a compromise decree. The question before the privy council was
whether the civil court was empowered to pronounce such a decree
under the CPC. The court observed that the power can be derived from
Section 141 of the CPC which allows the application of CPC procedure
in miscellaneous applications like one in this case.
In 1962, the Supreme Court reiterated the ratio in Thakur Prasad and
once again made it the precedent. In Dokku Bushayya v.
Ramkrishnayya[4], an application was filed in an execution case to
nullify a sale agreement and set aside the sale of an immovable
property which was later withdrawn because the suit was compromised
between the parties. This case was undertaken by a guardian of the
appellant above who was a minor then.
After the minor attained the age of majority, he wanted to set aside the
sale that his guardian had executed for him on a compromise and he
argued that the order of the court allowing the guardian to withdraw the
application was null and void because leave of the court required under
Order XXXII Rule 7 was not taken. The question was whether the leave
which is required for original matters needed to be taken in an
execution case as well where an application under Section 141 was
filed.
The court reiterated the findings in Thakur Prasad and held that
execution matters do not fall under ―proceedings‖ mentioned in Section
141 that includes only original matters such as petitions for probate,
guardianship, etc.
The most recent case where the issue involved interpretation of
―proceedings‖ under Section 141 is Union of India v. M/s Jain &
Associates[5], the apex court decided that provisions and procedure of
102
CPC shall be applicable to arbitration proceeding as well if an

application is filed under Section 141. The court made it crystal clear
that the word ―proceeding‖ under Section 141 includes arbitration
proceedings as well.
Conclusion
The findings of the apex court in this plethora of cases can be
summarized as follows:
 The proceedings should be original, viz. the trial before the court
must be on the basis of an institution of a suit or a petition.
 Proceedings rising because of the dismissal of suit or
determination of a suit are included in the meaning of proceedings.
 CPC is a law that is a part procedural law and part substantive
law. With respect to Section 141, only the procedural part of CPC
shall be applicable to all proceedings.
Unless the legislature breaks this sequence and the multitude of
interpretation of this provision, there will not be any relief. The judicial
determination as of now has been set to the questions decided and
unless a new issue arises before the court, these shall act as
precedents.
References:
1. M. Deka, Director, NEJOTI (Judicial Academy of Assam), The

Nature And Trial Of Miscellaneous Proceedings.
2. Dinshaw F. Mulla, the Key to Indian Practice: A Summary of the
Code of Civil Procedure, 1908, (11th 2015).
[1] Thakur Prasad v. Fakirullah, 17 ALL 106 PC.
[2] Ebrahim Aboo Baker v. Tek Chand Dolwani, AIR 1953 SC 298.
[3] Hemant Devi v. Midnapur Zamindari Company, AIR 1919 PC 79.

103
[4] Dokku Bushayya v. Ramkrishnayya, AIR 1962 SC 1886.
[5] Union of India v. M/s Jain & Associates, AIR 2001 SC 809.

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1

CIVIL PROCEDURE CODE

In response, the opposite party submits their written submissions

Then the victim is examined by his own counsel (examination-in-chief)

Similarly, witnesses are examined-in-chief by mentioning their

I. Discovery and Inspection of Truth

For instance, assume a case where A claims violation of his

II. Framing of Issues

There can be disputes between the plaintiff and the defendant on

III. Hearings in the Suit

 Opening of the Case

If the defendant accepts the allegations of the plaintiff at the first

The defendant goes on to ascertain the court regarding the

According to Rule 4, examination-in-chief of a witness shall not be

examination. An affidavit which has been once filed can be withdrawn

1. Avtar Singh, The Code of Civil Procedure, (5th 2018).

Concepts of Admission and Affidavits under the Code of Civil

such fact. Under the Civil Procedure, examination-in-chief takes place

 Firstly, it is done through oral or documentary evidence available

The code of civil procedure envisages the concept of admission under

What is the procedure of admission by a party?

This rule further comprises of a proviso which states that it is the

This affidavit is a certain type of guarantee that the facts and

In civil cases, unlike criminal cases, the chief examination of a person

Rule 3, further explains that an affidavit can only be made by a

Rule 6 states the guidelines which need to be followed while drafting of

Each paragraph of an affidavit should be distinct and separate from

it should be annexed to the affidavit and should refer to the specific

Can an affidavit be treated as evidence?

In the case of Padmabati Dasi v. Rasik Lal Dhar [(1910) ILR 37

Consequences of filing a False Affidavit

1. Dinshaw F. Mulla, The Key to Indian Practice: A Summary Of

The term adjourn, in layman‘s term, means to postpone or to

Imagine A sued B for specific performance of a contract to construct a

The court fixes a date for cross-examination of C but C does not

Breaking the Myth

It is categorically a myth that courts keep adjourning hearings for no

Adjournment can be an inconvenience to many persons, the parties

General Procedure of Adjournment

The procedure and traits of an adjournment under Rule 1 of Order XVII

1. The party to the suit must move the motion of adjournment

Rule 3 states that if a person who was supposed to give evidence in

Death, Marriage and Insolvency of Parties: Order 22

in India. According to a study by DAKSH, civil suits take up to four

According to the Supreme Court (‗SC‘), the object of the provisions

II. Death of Party: Rules 1-6

The claimants appealed to the High Court, and appeals continued up to

In the instant case, the SC dismissed the appeals made by the

Type of claims and right to sue

However, if the entire claim in a suit is based on a contract, then the

2. Procedure where one of several plaintiffs or defendants dies

surviving plaintiffs/plaintiff alone or surviving defendants/ defendant

As illustrated above in the N. Jayaram Reddi case,[11] the survival of

3. Procedure in case of death of one of several plaintiffs or sole

In the case of Rule 4, there is a discretionary provision for the Court to

Further, in case of abatement of a suit under Rule 4, an application to

4. Determination of question as to legal representative [Rules 4A

In case of a question arising as to whether a particular person is or is