QUES) RULES RELATING TO AMENDMENT OF PLEADING.

Meaning of Amendment of Pleadings CPC

Amendment of pleadings means making changes to the formal written statements submitted by
parties in a court case. In India, according to the Code of Civil Procedure (CPC), parties can
make these changes during a trial with the court’s permission. The purpose of amending
pleadings is to make sure that the real issues in the case are addressed and that justice is served.
However, there are conditions for making these changes, such as not causing harm to the other
party and following the time limits set by the court.

Order VI, Rule 17 of the Code of Civil Procedure deals with amending pleadings. Pleadings
are the statements made by the Plaintiff or the Defendant in their respective claims and
responses. An amendment can involve altering, modifying, or deleting something in these
statements.

In the case of Gurdial Singh v. Raj Kumar Aneja4, the court stated that any person who is
applying for the amendment of pleadings should state that what is to be altered, amended or
modified in the original pleadings.

Importance of Amendment of Pleadings

Amending pleadings is crucial in the Indian legal system, especially in civil cases. Allowing
amendments to these statements is essential for several reasons:

• Ensuring Justice: Amendment of pleadings helps ensure that justice is served. It

allows parties to correct errors or omissions in their defence, making their case
presentation more effective.
• Resolving Disputes: Amendments to pleadings help parties identify and resolve key
issues in a dispute more effectively.
• Avoiding Delays: Allowing parties to amend their pleadings before the trial begins
helps prevent delaysThis speeds up case resolution, lightens the burden on the justice
system and improves efficiency.
• Promoting Fairness: Amending pleadings promotes fairness in the justice system. It
prevents one party from gaining an unfair advantage over the other by allowing both
sides an equal opportunity to present their case.

What can be amended in pleading?

1. Plaint filed by the Plaintiff

2. Written Statements filed by the Defendant

Amendment of Pleadings when granted:

In the case of Kishan Das Vithoba Bachelor, the court stated that there are two necessary
conditions to be satisfied before granting leave for amendment of pleadings:
 1. This grant of leave should not leads to the injustice to other party.
2. This Amendment of pleadings is necessary for determining the real question of
controversy between parties.
In the case of Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarawagi And Co. Pvt. Ltd.
And Anr, the honorable Supreme Court stated certain conditions when amendments of
Pleadings can be allowed they are:

• When nature of the case will change by allowing application for amendment of
appeal
• When a new cause of action arise by allowing application of an amendment
• When Amendments of Pleadings defeats the law of limitation.
Other points on which Amendments of Pleadings is granted:

• When the application of amendment is filed to avoid multiplicity of suits.

• When parties in the plaint or written statements wrongfully described.
• When the plaintiff omits to add some properties to the plaint.

Amending Pleadings and Limitation

Amendment of pleadings when a suit is debarred by the Limitation Act is subject to certain
considerations and principles as established by various court cases:

L.J. Leach & Co. Ltd. v. Jardine Skinner & Co: The Supreme Court has stated that if an
application for amending pleadings is debarred by the Limitation Act, it can be a ground for
rejecting the application. However, the court also has discretionary power to allow the
amendment if it deems it necessary to secure the ends of justice.

Vishwambhar v. Laxminarayan: The application for amendment of pleadings is related back

to the date of the application itself, not the date of filing the suit.

Failure to Amend within Prescribed Time

According to Order VI, Rule 18 of the Civil Procedure Code:

If a party obtains an order for leave to amend but fails to amend within the time specified in
the order, or if no specific time is provided, within fourteen days from the date of the order,
they will not be allowed to amend after this prescribed time unless the court extends the time.

In other words, if a party does not act promptly to make the amendments within the specified
or default timeframe, they may lose the opportunity to amend their pleadings unless the court
decides to grant an extension. This rule helps ensure the orderly progression of legal
proceedings.

General Principles on Amendment of Pleadings CPC

In the case of Ramesh Kumar Agarwal vs. Rajmala Exports P. Ltd. & Ors, Justices P.
Sathasivam and J. Chelameswar of the Supreme Court of India discussed the principles
governing the amendment of pleadings and provided valuable guidance on this matter. Here
are the key principles and judgments they referenced.

QUES) Appeals under CPC-Essentials,procedure,rules and cases

What is an Appeal under CPC?

An appeal is a judicial examination of the decision of an inferior court, by a superior court i.e.
it is the removal of a cause from an inferior court to test the soundness of its decision, done by
a superior court. There is no formal definition of an “appeal” under the CPC 1908.

The settled position in law is that an appeal is a substantive right and not really a procedural
one. Also, there can be an appeal only if the statute allows for it. However, if an Act/Code does
not provide for a mechanism of appeal, it cannot be declared ultra-vires or unconstitutional on
that ground.
The essentials of an appeal are quite simple:
• There is a decision given by the subordinate court.
• The person is aggrieved by such a decision
• There is a reviewing body ready and willing to entertain an appeal
The Civil Procedure Code 1908 provides for appeals under Sections 96 to 112 to be read
with Orders 41 to 45 of the Code. We shall discuss appeals under the following heads) along
with the general procedure in Appeals:
• First Appeals [Section 96-99A and Order 41]

• Second Appeals [Section 100-103, 107-108 and Order 43]

• Orders from which appeal lies[Section 104]

• Powers of Appellate Courts [Section 107]

• Appeal to the Supreme Court [Section 109,112 and Order 45]

First Appeals

Section 96(1) provides that an aggrieved party can file an appeal to a superior court against a
decision of a subordinate court either on a question of fact or a question of law or a question
involving a mix of both fact and law.
Note: First appeals can be filed in any court which may or may not be the High Court.

Who may appeal?

In A.P Gandhi v H.M. Seervai, it was held that appeals can be made by-
1. A party to suit who was aggrieved or affected by the decree of the

subordinate court.
 2. A person claiming or having vested interest under a party to the suit,

which has been affected by the decree.[Section 146]

3. A guardian ad idem [Section 147, Order 32- Rule 5]

4. Any other party affected by the decree provided leave of the appellate court

is granted.

--------96(2) further states that an appeal can be made against an Ex-parte decree though, one
may also prefer an appeal to set aside an ex-parte decree given by the subordinate court.
--------96(3) provides that no appeal can be sought against the award of a Consent Decree by
the subordinate court (based on the principle of estoppel. Also, no appeal lies in petty cases
[96(4)]

Section 97 provides that an appeal must lie usually against a Preliminary Decree i.e. one cannot
challenge a final decree if they do not challenge a preliminary decree (on which the final decree
in a suit is based).

After an appeal
The Court has three options-
• Reverse the order under appeal.

• Modify the order.

• Dismiss the appeal and re-affirm the order without any modification

It was held in Collector of Customs v. East India Commercial Company Ltd. that, after an
appeal, “it is the Appellate Court’s decision alone which subsists and, is operative and capable
of enforcement” i.e. the decision of the earlier court does not remain in force (unless the
Appellate Court did not modify or add anything to the decree of the subordinate court).
Second Appeals (i.e. Appeals arising out of Appellate Decrees)
Section 100 (1) allows the filing of second appeals in the High Court if it is satisfied that the
case involves a “Substantial Question of Law”.

--- “Whether something is a substantial question of law or not depends upon the facts and
circumstances of each case and, no rule of universal application can be laid down”--- In Syeda
Rahimunnisa v. Malan Bi

Whether the matter is of general importance (that it has a far-reaching effect in the justice
administration of the state).
1. Whether it directly and substantially affects the rights of parties and if so, -

- Whether it is an open question and it cannot be settled unless by the higher

court or ---it is not free from doubt or----- the matter calls for alternate views.
Also, Section 101 prohibits all second appeals apart from those initiated under Section 100(1)

------------Note: Any court may refer any matter to the High Court (for its opinion, which shall
pass an order thereon) by any court under Section 113.

100 (2) an appeal may lie under this Section in case of an appellate decree (first appeal) that
was passed ex-parte.

100(3) in an appeal under this Section, the memorandum of appeal shall precisely state the
substantial question of law that is involved.

100(4) if the High Court is satisfied that a substantial question of law is involved in the case
then, it shall formulate such a question.

100 (5) appeal shall be heard on the formulated question [Order 42- Rule 2] and, the
respondent in the case will be allowed to argue that the case does not involve such
question.

Appeals to the Supreme Court

Under Section 109 of the Code, an appeal shall lie to the Supreme Court from any judgement,
decree or final order in a civil proceeding of the High Court, if the said High Court certifies:
1. That the case involves a substantial question of law of general importance.

2. That it is the High Court’s opinion that the matter shall be resolved by the

Supreme Court.

Further, Section 112 states that the Civil Procedure Code’s provisions shall not affect the power
of the Supreme Court under Article 136 of the Constitution or interfere with rules of Appeals
formulated by the Supreme Court.

LIMITATION ON APPEALS

Article 116(a) of the Limitation Act 1963 provides that an appeal shall be brought to the
Supreme Court within 60 days, the High Court within 90 days and within 30 days (in case
of other appellate courts) of the date of the original or appellate decree.

Powers of an Appellate Court

1. Power to decide a case finally [Section 107(1)(a)- Order 41 Rule 24]
Where the original evidence is sufficient to enable the appellate court to pronounce a judgement
in the matter, no new evidence is taken. However, in Sunder Singh v. Narain Singh, this was
declared as the general rule and, new evidence might be allowed in rare cases.

2. Power to remand subordinate court [Section 107(1)(b), Order 41- Rule 23 & 23A]:
This power is subject to the satisfaction of the following three grounds:
• The case was disposed of by the trial court on a Preliminary point.

• The decree under appeal has been reversed.

 • Any other ground deemed fit by the Appellate Court.

3. Power to frame issues and refer them for trial [Section 107(1)(c), Order 41-Rule 25 &26]
4. Power to take in additional evidence [Section 107(1)(d), Order 41-Rule 29 to 29]
5. Power to modify original decree [Order 41-Rule 33]

QUES) REVIEW, REFERENCE AND REVISION

Reference means to refer an issue to someone to obtain an opinion on it. Review means to look after a
thing again. Revision means to revise the matter.

What is Reference in CPC

Reference means to refer an issue to someone to obtain an opinion on it. A matter is generally referred
when its question can’t be decided by the court doing a trial of it.

1. Reference is mentioned under section 113 and order 46 of the Civil Procedure Code.

2. It empowers a subordinate court to refer the matter to the High Court for its opinion on a matter.

3. The power of referring a case lies only with the subordinate court. It may or may not refer a case. It
is its discretion.

4. The case to be referred to the High Court must be regarding the validity of the Act.

5. The question referred by the subordinate court to the High Court must be essential for the disposal
of the case.

6. Court may itself refer a case to the High Court, that is suo motu or on the application of either of
the party.

7. The High Court is required to give its opinion on the matter concerned, along with the reasons.

8. Reference to the High Court must be made through a judicial order and not a letter to the High
Court.

9. The matter can be referred only in a suit, appeal, or execution and not in any other proceedings.

10. The reference can be made only when the subordinate court has a doubt on a question of law and
not otherwise.

What is Review in CPC

Review means to look after a thing again. It means to re-examine again.

1. Review is mentioned under section 114 and order 47 of the Civil Procedure Code.

2. The court which has tried the case and adjudicated the matter has the authority to review the case
again.

3. A review lies from a decree or order for which no appeal lies or such decree or order, which is
appealable, but no appeal has been preferred.

4. The application for review is submitted to the court, which has decided that case. If the judge is
transferred to another court, then the application may be given to the successor judge.

5. If the court during the trial has left or not entertained any substantial issue which is relevant for the
proper disposal of the case, then the case can be reviewed.

6. There is no provision for reviewing the order given by a judge in the proceedings of review.

7. The court must review its judgment if the error appears on the face of the record. And if that error is
not rectified, it will cause a miscarriage of justice.

8. Court cannot review its judgment suo motu. The court reviews a case only on the application of the
party.

9. What is an error on the face of the record can’t be illustrated or elaborated. It has to be understood
from facts to facts and case to case.

10. If the judgment given by the subordinate court is inconsistent with the judgment laid down by the
Supreme Court, then the court reviews its judgment.

Grounds to Review Judgment

1. If in a case, there is the discovery of a new or important matter or evidence, then the court can
review its judgment.

2. If there is a mistake or any mathematical or clerical error on the face of the record, the court can
review it.

3. If there is any other reasonable or sufficient reason for which the court is satisfied to review its
judgment.

What is Revision in CPC

Revision means to revise the matter and pick out if something has been done wrongly or in the wrong
manner.

1. The High Court does revision under section 115 of the Civil Procedure Code.
2. The purpose of revision by the High Court is to rectify the mistakes made by the subordinate courts
during the trial of a case.

3. The High Court is empowered to do revision only in a civil case, but in criminal matters, the
sessions court is also empowered along with the High Court for revision.

4. The purpose of revision is to serve the parties with the ends of justice and not to defeat their rights.

5. The High Court, while doing revision, can’t appreciate any additional or new evidence. That shall
not be acceptable.

6. If any issue has been left over in trial, then such an issue can’t be brought at the time of revision.

Grounds for Revision

1. The subordinate court has tried and decided such case of which it has no jurisdiction to try it.

2. When the subordinate court had jurisdiction to try the matter, but it did not exercise its jurisdiction.

3. If the court during trial and hearing left or avoided any evidence which was crucial for the impartial
conclusion of the case.

4. If the subordinate court violated the principles of natural justice, that is Audi Alteram
Partem and Nemo judex in causa sua.

Difference between Reference and Review

In reference, it is the subordinate court that refers the matter to the High Court. Only the High
Court can decide the matter on reference. But in review, the aggrieved party makes an application to
the court which delivered judgment or passed the decree.

Difference between Review and Appeal

Review means to look again or re-examine the judgment delivered by a judge. It is done in the same
court. Whereas, an appeal lies to a higher court, before another judge. There can also be a second
appeal in a matter. But a matter for review can’t be reviewed for the second time. There can be
numerous grounds for appeal, but for review, there are countable reasons like error, substantial issue,
etc.

QUES) EXECUTION OF A DECREE AND ITS MODES

Introduction
The litigation consists of three stages, initiation of litigation, adjudication of litigation, and
implementation of litigation. The last stage of litigation, that is the implementation of litigation
is known as an execution. Once a decree or judgment is passed by the court, it is the obligation
of the person against whom the judgment is passed (judgment-debtor), to give effect to the
decree so as to enable the decree-holder to enjoy the benefits of the judgment.

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means implementing or
enforcing or giving effect to an order or a judgment passed by the court of justice. In simple
words “execution” means the process of enforcing or giving effect to the decree or judgment
of the court, by compelling the judgment-debtor to carry out the mandate of the decree or order
and enable the decree-holder to recover the thing granted to him by judgment.

Illustration:

X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be called
the decree-holder, Y is the judgment-debtor, and the amount of Rs 20,000 is the judgment-
debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him. Suppose Y refuses
to pay the decretal amount to X, X can recover the said amount by execution through the
judicial process. The principles governing the execution of a decree or order are given in
Section 36 to Section 74 (substantive law) and Order 21 of the code which provides for
procedural law.

Execution proceedings under CrPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of the
code relating to the execution of orders and decree and stated that the Code contains elaborate
provisions which deal with all questions regarding executability of a decree in all aspects.

Courts which can execute decrees

Section 38 of the Code states that a decree can be executed either by the Court of the first
instance or by the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of the expression “court which passed a
decree” with the object of enabling a decree-holder to recover the fruits of the decree. The
courts which fall within the said expression are as follows:

1. The court of the first instance;

2. The court which actually passed the decree in case of appellate decrees;
3. The court which has jurisdiction to try the suit at the time of execution, if the court
of first instance ceased to exist;
4. The court which at the time of execution had jurisdiction to try the suit, if the court
of first instance has ceased to have jurisdiction to execute the decree.
Explanation to the section clarifies that the court of first instance shall have jurisdiction to
execute a decree even in the case of any area being transferred from the jurisdiction of the court
of first instance to the jurisdiction of any other court. In such cases, the court to the jurisdiction
of which such area has been transferred will also have jurisdiction to execute the decree,
provided that the said court had jurisdiction to try the said suit when the application for
execution was made.

Transfer of decree for execution

Section 39 provides that when a decree-holder makes an application to the court of the first
instance to send the decree for execution to another court, the court of first instance may do the
same if any of the following grounds exist:

1. if the judgment-debtor carries on business, or resides or personally works for gain,

within the jurisdiction of such Court;
2. if the property of judgment-debtor does not come under the jurisdiction of the Court
of the first instance but it comes under the local limits of the jurisdiction of such
Court;
3. if the decree directs delivery or sale of immovable property situated outside the
jurisdiction of the Court which passed the same;
4. if the Court which had passed the decree considers that the decree should be
executed by another court, but it shall record the reasons in writing for doing the
same.
Section 39(2) states that the Court of the first instance may suo motu send it for execution to
any subordinate Court of competent jurisdiction

In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of
Section 39 are not mandatory because the court will have discretion in the matter which can be
exercised by it, judicially. The decree-holder would not have any vested or substantive right to
get the decree transferred to another court.

Execution of foreign decrees in India

The Code lays down the procedure for execution of foreign judgments and decrees in India.
While enforcing a foreign judgment or decree in India it should be ensured that the judgment
or decree is a conclusive one, given on the merits of the case and by a court having competent
jurisdiction.

What is a foreign judgment and a foreign decree?

Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As
per section 2(5) of CPC, a foreign court implies a court which is situated outside India and
which is not established or continued by the authority of the Central Government.
A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or
judgment of such court and which directs that a sum of money is payable. However, such sum
of money shall not be a sum payable in respect of taxes or other charges of a like nature or in
respect of any penalty or fine. It should not include an arbitral award, even if such an award is
enforceable as a decree or judgment.

MODES OF EXECUTION OF DECREE

The Code of Civil Procedure (CPC) in India provides various modes of execution of a decree,
allowing the successful party to enforce the judgment of the court. Here are the primary
modes of execution under CPC:
1. Attachment of Property (Section 51 CPC):
• The court may attach the judgment debtor's property, both movable and
immovable, to satisfy the decree.
• Attachment prevents the debtor from transferring or encumbering the attached
property.
OR
A decree may also be executed on the application of the decree-holder by
attachment and sale the only sale without attachment of property. The code
recognizes the right of the decree-holder to attach the property of the
judgment debtor in execution proceeding and lays down the procedure to
effect attachment. Sections 60 to 64 and Rules 41 to 57 of Order 21 deals
with the subject of attachment of property.

The code enumerates properties which are liable to be attached and sold in
execution of a decree. It also specifies properties which are not liable to be
attached or sold. It also prescribes the procedure where the same property is
attached in execution of decrees by more than one court. The code also
declares that a private alienation of property after attachment is void.

2. Sale of Movable Property (Order XXI, Rule 64-73 CPC):

• The court may order the sale of movable property, such as goods, vehicles, or
other assets belonging to the judgment debtor.
• The proceeds from the sale are used to satisfy the decree.
3. Sale of Immovable Property (Order XXI, Rule 64-103 CPC):
• The court may order the sale of immovable property, such as land, buildings,
or houses, owned by the judgment debtor.
• The sale proceeds are utilized to fulfill the decree, and the property is
transferred to the purchaser.
4. Arrest and Detention (Order XXI, Rule 37 CPC):
 • In certain cases, the court may order the arrest and detention of the judgment
debtor.
• This mode is usually employed in cases of non-payment of a monetary decree.
OR
One of the modes of executing a decree is arrest and detention of the judgment-debtor in
civil imprisonment. Where the decree is for payment of money, it can be executed by arrest
and detention of the judgment-debtor.

A judgment-debtor may be arrested at any time on any day in the execution of a decree.
After this arrest, he must be brought before the court as soon as practicable. For the
purpose of making arrest, no dwelling house may be entered after sunset or before sunrise.
Further, no outer door of a dwelling house may be broken open unless such dwelling house
is in the occupancy of the judgment-debtor and he refuses or prevents access thereto.

No order of detention of the judgment-debtor shall be made where the

decretal amount does not exceed Rs.2000. Where the judgment-debtor pays
the decretal amount and costs of arrest to the officer, he should be released
once. Women, judicial officers, the parties, their pleaders, member of
legislative bodies, a judgment-debtor where the decretal amount does not
exceed Rs 2,000, this person cannot be arrested and detained in civil
imprisonment.

A decree for money cannot be executed by arrest and detention where the
judgment-debtor is a woman, or a minor, or a legal representative of a
deceased judgment-debtor.

5. Appointment of Receiver (Order XL CPC):

• The court may appoint a receiver to manage the property or business of the
judgment debtor.
• The receiver collects the income from the property or business to satisfy the
decree.
6. Delivery of Possession (Order XXI, Rule 35-36 CPC):
• If the decree involves the delivery of possession of specific property, the court
may order the judgment debtor to vacate and deliver possession to the decree-
holder.
7. Decree Against Legal Representatives (Order XXI, Rule 50-53 CPC):
• In case the judgment debtor dies, the court may pass a decree against their
legal representatives, and execution proceedings can be initiated against the
assets of the deceased.
8. Compromise or Settlement (Section 375 CPC):
 • If the parties reach a compromise or settlement after the decree, the court may
pass an order in terms of the compromise.
9. Decree for Payment of Money (Order XXI, Rule 37-40 CPC):
• If the decree is for the payment of money, the judgment debtor's salary,
allowances, or other earnings may be attached for satisfaction of the decree.
10. Certificate to Collector (Section 82 CPC):
• If the judgment debtor has agricultural land, the court may issue a certificate to
the Collector to recover the decretal amount as arrears of land revenue.
QUES) EXPLAIN LAW RELATING TO SUIT OR AGAINT GOVT.
Under the Civil Procedure Code, the subject of suits by or against public officers in their
official capacity has been recognized under Section 79, Section 80 and Order 27 of CPC.
Section 79 and 80 are defined as follows under the Procedure of Civil Code-

Section 79- This Section defines the concept of suits by or against the government:
Whenever a case is filed against a government or if it is filed by the government, the plaintiff
and the defendant who will be named in the case will be as provided under:

• Whenever the case is instituted by or against the central government, the Union of
India will be represented as the required plaintiff or defendant respectively.
• Whenever the suit is filed by or against the state government, the state government
will be required to act as the plaintiff or the defendant.
Section 80- This section deals with the concept of Notice. According to this Section, there
exists no onus for the institution of a suit against the government without issuing a notice
regarding the same, this includes the state of Jammu and Kashmir.

Section 79

Section 79 lays down the procedure whereby the suits are brought by or against the government
but at the same time, it does not deal with the rights and liabilities enforceable by or against
the government body [3]. In the case of Jehangir v. Secretary of State [4], an important
observation was made which was that this section gives no cause of action but only declares
the mode of the procedure when the cause of action arises.

Jurisdiction

Under Section 79, only the court within whose local limits, the cause of action arose, has the
jurisdiction to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC
Nath & Co. [5], it was held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are
mentioned in Section 18, 19 and 20 of code, do not apply to the government [6].
Order XXVII
1- Suits by or against the government- It should be noted that in any suit by or against the
government, the plaint or the written statement should be signed by such a person, as the
government by general or special order, appoint in this behalf. State of Rajasthan v. Jaipur
Hosiery Mills [12], in this case, it was held that the sanction to sign must be prior to the
institution, and if not complied with this, the signing shall be by an incompetent person, and
further, issuing of a retrospective sanction will not preserve the defect.

Government pleader is an agent under the order 27 of CPC. The government pleader acts as an
agent for receiving processes issued against the government. Also he is the only person to
intimate the court that he is representing the government and no stamped power of attorney or
vakalatnama is required for the same [13].

Lutfar Rahman v. State of West Bengal [14]. In the aforementioned case, it was held that when
a person other than the government pleader wants to act as an agent, it is possible only when
the government agent intimates the Court that the former is acting under his directions. Rule 5
of Order 27, has been discussed in the next segment of this article.

2- Attendance of person being able to answer the questions related to suits against the
government- The court may, in any case where government pleader is not accompanied by
person on the part of the government and if he is able to answer the questions relating to suit,
the court may direct the attendance of that person [15].

QUES) OBJECTIVE OF JURISDICTION

OBJECTIVE OF JURISDICTION
The objective of jurisdiction in law serves several important purposes, aiming to provide a fair
and orderly administration of justice. Here are the primary objectives of jurisdiction:

Ensure Fairness and Impartiality:

• Jurisdiction ensures that legal proceedings take place in a fair and impartial
manner. It prevents parties from being subjected to arbitrary legal processes and
judgments.
Determine the Appropriate Court:
• Jurisdiction helps determine which court has the authority to hear and decide a
particular case. It specifies the geographical area and the type of cases a court is
empowered to handle.
Promote Judicial Efficiency:
• Jurisdictional rules contribute to the efficient functioning of the judicial system by
distributing cases among various courts based on their subject matter,
geographical location, or other relevant factors.
Protect Defendant's Rights:
• Jurisdiction protects the rights of defendants by ensuring that they are brought to
trial in a court with a legitimate connection to the case. This prevents unfair
surprise or inconvenience to the defendant.
 Establish Legal Authority:
• Jurisdiction defines the legal authority of a court or tribunal. It specifies the limits
of a court's power and authority to adjudicate on particular matters, maintaining
the rule of law.
Maintain Order and Stability:
• Jurisdictional rules help maintain order and stability within the legal system. They
prevent chaos that could arise if parties could bring cases in any court of their
choosing.
Ensure Compliance with Due Process:
• Jurisdictional requirements contribute to due process by ensuring that parties
have adequate notice and an opportunity to be heard in a court with the
appropriate authority to hear the case.
Facilitate International Cooperation:
• In cases involving multiple jurisdictions or parties from different countries,
jurisdictional rules help facilitate international cooperation and coordination
among legal systems.
Protect the Integrity of Judgments:
• Jurisdictional rules protect the integrity of court judgments. A court lacking
proper jurisdiction may render a judgment that is void and unenforceable.
Preserve Judicial Resources:
• By assigning cases to specific courts based on jurisdictional criteria, judicial
resources are preserved, and unnecessary duplication of legal proceedings is
avoided.
QUES) LEGAL DISABILTY UNDER LIMITATION LAW AND ITS ADVANTAGES

What Does Limitation Act, 1963 Say?

The Limitation Act of 1963 establishes the time limits within which an aggrieved party can
approach the court seeking relief and justice. If a suit is filed after the specified time limit, it is
deemed invalid due to the law of limitation.

The primary aim of this law is to safeguard the rights of long-standing users and indirectly
penalize individuals who have neglected their rights for an extended period. According to the
Act, any person must initiate a suit or make a request within the timeframe specified in its
schedule.

The Need for Recognition of Legal Disability

However, there are circumstances where a person, due to physical or mental incapacity, is
unable to file a suit or make an application. In such cases, the law acknowledges the need for
additional rights and benefits for individuals with disabilities.

What is Legal Disability in the Limitation Act 1963?

Legal Disability under Limitation Act refers to the lack of legal capacity to perform an action
due to insufficient physical and mental abilities. It denotes the incapacity of a person to exercise
all the legal rights that an average person possesses.
Section 6 of the Act addresses situations where a person entitled to initiate a suit or file an
application for the execution of a decree is a minor, insane or mentally disabled. It states that
such a person can file a suit or make an application once the disability ends, as specified in the
Act’s schedule. If a person is affected by multiple disabilities, they can file a suit or make the
application when both disabilities cease.

It is important to note that, according to this section, the term “minor” encompasses a child in
the womb of the mother.

Kinds of Legal Disabilities

Section 6(1) of the Limitation Act, 1963 provides three types of legal disabilities:

Minor
The first legal disability under Limitation Act is related to the age of an individual, known as
“minor.” According to the Indian Majority Act, 1875, an individual attains majority at the age
of eighteen.

Insanity
The second legal disability is “insanity.” The Supreme Court, in the case of S.K. Yadav v.
State of Maharashtra, discussed the concept of legal insanity. The court held that legal
insanity is recognized by the courts, as distinct from medical insanity. There is no specific test
to prove legal insanity, but even if medical insanity is established in lower courts, it must be
proven again in higher courts. To determine whether a person is legally insane, their behaviour,
antecedents and events before, during and after the incident must be considered.

Idiot
In the case of Hari Singh Gond v. State of Madhya Pradesh, the Supreme Court defined four
sub-types of non-compos mentis, including “idiot.” An idiot is someone who is unable to count
the days of the week, lacks sane memory since birth and cannot count up to twenty.

Rules Relating to Legal Disability in Limitation Act

The rules related to legal disability under Limitation Act is discussed under Section 6 to 9.
They can be briefed as:

Combination with other Sections 3, 7, 8, 9

The Limitation Act contains important provisions regarding legal disabilities, particularly
Sections 6, 7 and 9, which provide detailed insights into various aspects of these disabilities.
These sections complement each other effectively.

Section 3 of the Limitation Act is of great significance as it deals with the prescribed time
periods within which parties must file their cases. Failure to file within these time limits results
in the application of the concept of limitation. However, certain exceptions are also provided
for in this section for exceptional circumstances, which are covered by Sections 4 to 24 of the
Limitation Act.

Sections 6 and 7 of the Act are specifically relevant as they allow parties to file suits even after
the expiration of the limitation period if the disabilities of a minority, insanity or madness are
involved.
It is important to note that the legal disability must actually exist at the time when the limitation
period is scheduled to commence. No future disability can reset the limitation period once it
has already begun, as stated in Section 9 of the Limitation Act. If a person has multiple
disabilities, i.e., at least two or if they have overcome one legal disability and acquired a new
one as per Section 6(2), then they can file a complaint once all these disabilities have ceased to
exist or the most recent disability has ceased to exist.

Section 8 clarifies that there is no provision for preemptive action in such cases and the
limitation period is three years from the death of the individual or the termination of their legal
disability under Limitation Act.

Who is Entitled to the Benefit of Section 6?

In the case of Bailchon Karan v. Basant Kumari Naik, it was established that only an
individual who is entitled to file a suit or application can claim the benefit of Section 6 (legal
disability). If an individual does not have the right to sue or apply within the initial limitation
period but is later allowed to do so, they cannot avail themselves of the provisions of Section
6.

In the case of Zafir v. Amiruddin, it was held that Section 6 is applicable when one plaintiff
is an idiot, minor or insane or when there are multiple defendants who fall under the disabilities
mentioned in Section 6.

QUES) NATURE & SCOPE OF LIMITATION ACT

Limitation means to limit something, or a restriction, or circumstances which are limited. In other
words, limitation is the act of limiting something or circumstances which restrict something.

Limitation Act is the Act that prescribes the time limit or period of limitation for certain suits in civil
matters so that the aggrieved party may apply within the limited time provided to them to file a suit
or approach the court for justice.

Need for the Limitation Act

Suppose the plaintiff’s rights have been infringed in some way or his property is acquired by another
person. In such cases, the plaintiff must always have a right to go to court to enforce his rights. But it
does not mean that the plaintiff can enforce his right at any period of time, say 20 years or 30 years
or more.

Purpose of the Limitation Act

The principle maxim Interest reipublicae ut sit finis litium means, ‘the interest of the state
requires that there should be the end of litigation.’ This means that the purpose of the Limitation Act
is to end litigation and ensure justice.

Therefore, the Limitation Act is the Act which puts a bar (limit) on going to a court of law. It is based
on the well-accepted principle of jurisprudence and public policy. Hence the object of the Limitation
Act is to provide a legal remedy to repair the damage caused by legal injury, but such a legal
remedy can only be enforced when it is claimed within the time provided in the Act.

Salient Features of the Limitation Act, 1963

These are the salient (most noticeable or important) features of the Limitation Act:
1. Exhaustive Law: The Limitation Act is an exhaustive law with respect to all the matters
expressly provided in it. It is complete in itself.

2. Adjective Law: The Limitation Act is an adjective law. Being an adjective law, it provides for both
the substantial and procedural features of any statute. But, it is more of procedural law. Note: Thus,
in competitive exams, it should be marked as procedural law.

In A.S.K. Krishnappa Chettiar & Ors. Vs. S.V.V.Somiah & Ors, AIR 1964 SC 227, the
Supreme Court noted that the Limitation Act is basically a piece of adjectives or procedural law and
not substantive law.
3.Only applicable to civil cases: The Limitation Act applies only to civil matters
4. Prospective as well as a retrospective effect: Section 31 of the Limitation Act provides for
the retrospective and prospective effect of the Act.

5. Only applicable to suits, appeals and applications: Section 3 of the Limitation

Act provides for the bar of limitation, which means that the Limitation Act only applies to suits,
appeals, and applications.

Leading Case Laws Related to the Limitation Act

Bombay Dyeing and Manufacturing Company vs the State of Bombay (1957): In this case,
the court held that the limitation bars the remedy and does not extinguish the right. Thus, the lapse
of time does not extinguish the person’s right.

Sri Kishan Lal vs Musammat Kashmiro And Ors (1913): In this case, it was held that the
law of limitation does not bar a defence but only bars action.
QUES) PLACE OF SUING
What is the Place of Suing in CPC?
Place of suing in CPC refers to where a lawsuit or legal action should be initiated or filed. It specifies
the jurisdiction and venue where the case should be brought before a court.

The provisions regarding the place of suing are outlined in the Code of Civil Procedure to ensure that
the appropriate Court with the necessary jurisdiction is chosen for the efficient and fair resolution of
the dispute.

Provisions for Place of Suing under CPC

The place of suing in CPC is discussed under Sections 15 to 20. Section 15 pertains explicitly to the
pecuniary jurisdiction of the Court. Sections 16 to 18 address suits concerning immovable property,
Section 19 covers suits related to compensation for wrongs and movable property, and Section 20
deals with suits concerning other matters.

Section 15: Place of Suing Based on Pecuniary Basis

Section 15 of Code of Civil Procedure 1908- “Court in which suits to be instituted”-“Every suit shall be
instituted in the Court of the lowest grade competent to try it”

Section 15 of the Code of Civil Procedure states that every lawsuit should be initiated in the Court of
the lowest grade with the competence to handle it. This requirement aims to prevent overburdening
of higher courts. While a judgment passed by a higher-grade court remains valid, a decree passed by
an incompetent court would be considered void.

Therefore, a higher court decree cannot be passed without jurisdiction, as clarified by the Nagpur
Bench of the Bombay High Court in the case of Gopal v. Shamrao (1941).

Section 15 serves two primary purposes:

Reducing the workload of higher courts.

Providing convenience to the parties and witnesses involved in such lawsuits.

The jurisdiction of a court under Section 15 is determined based on the valuation stated by the
plaintiff in the lawsuit, rather than the final amount for which the Court will pass the decree.

Kiran Singh v. Chaman Paswan (1954)

In the case of Kiran Singh v. Chaman Paswan (1954), a bench comprising Justices Aiyyar and T.L.
Venkatarama considered the application of Section 11 of the Suits Valuation Act, 1887. This
provision, along with Sections 21 and 99 of the Code of Civil Procedure, 1908, is founded on the
principle that once a case has been fully heard and a judgment has been pronounced, it should not
be overturned solely on technical grounds unless there has been a miscarriage of justice.

Mazhar Husain And Anr. v. Nidhi Lal (1885)

In the case of Mazhar Husain and Anr. v. Nidhi Lal (1885), heard by the Allahabad High Court before
India’s independence, elucidates the objectives of Section 15 of the Code of Civil Procedure, 1908.
These objectives, as observed in the case, are as follows:

Avoiding overburdening higher-grade courts with an excessive number of suits.

Providing convenience to the parties and witnesses involved in such suits.

Section 16 to 20: Place of Suing Based on Territorial Aspects

When examining the territorial jurisdiction of a court, it is important to consider the following four
types of suits:

o Suits related to immovable property: These are governed by Sections 16-18 of the Code of
Civil Procedure. These sections outline the rules and guidelines for filing suits concerning
disputes over immovable property.
o Suits related to movable property: Section 19 of the Code of Civil Procedure pertains to
suits involving movable property. It lays down the provisions for filing suits related to
disputes over movable assets.
o Suits related to compensation for wrongs: Section 19 of the Code of Civil Procedure also
covers suits concerning compensation for wrongs. This section provides guidelines for filing
suits seeking compensation for injuries or damages caused by wrongful acts.
o Other suits: Section 20 of the Code of Civil Procedure deals with suits that fall outside the
specific categories mentioned above. It encompasses suits that do not fit into the scope of
immovable property, movable property, or compensation for wrongs.

Place of Suing for Matters Involving Immovable Property (Section 16-18)

Section 16
Section 16 of the Code of Civil Procedure, 1908 states that suits related to specific types of claims
concerning immovable property should be instituted in the Court within the local jurisdiction where
the property is situated. These types of suits include:

• Recovery of immovable property with or without rent or profits,

• Partition of immovable property,
• Foreclosure, sale, or redemption in the case of a mortgage or charge on immovable property,
• Determination of any other right or interest in immovable property,
• Compensation for wrong to immovable property,
• Recovery of movable property that is currently under distraint or attachment

Subject-Matter Jurisdiction
Subject-matter jurisdiction refers to the authority of a court to hear and decide cases based on the
nature of the issues involved. Different courts are granted jurisdiction over specific types of lawsuits
to handle diverse legal matters. For instance, matters related to insolvency, probate, divorce, and
similar issues cannot be adjudicated by a court of civil judges of the junior division. If a court lacks
subject-matter jurisdiction over a particular case, any decree or judgment issued by that Court is
considered null and void.

Section 16 of the Code of Civil Procedure, 1908 allows invoking jurisdiction in five specific types of
suits, which are as follows:

• Partition of immovable property

• Recovery of immovable property
• Torts to immovable property
• Determination of any right or interest in the property
• Sale, foreclosure, or redemption regarding a mortgage or charge on immovable property

In the case of Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005), the Supreme Court held
that an action could be filed under Section 16 of the CPC, 1908, in the jurisdiction where the
immovable property is located, regardless of factors such as the location of the cause of action or the
residence of the parties. In that particular case, since the immovable property was in Gurgaon
(Haryana), the Delhi High Court lacked jurisdiction to hear the case.

Section 17 of the CPC

Section 17 of Code of Civil Procedure 1908 states, “Suits for immovable property situate within the
jurisdiction of different Courts”.

In cases where the immovable property is situated within the local jurisdiction of different courts if a
lawsuit is filed seeking compensation or relief for wrongs caused to the immovable property, it can
be brought before any court within the jurisdiction where a portion of the property is located.
However, it is important to note that the Court hearing the case will have cognizance over the entire
claim, considering the significance of the subject matter of the suit.

Section 18
Section 18 of Code of Civil Procedure 1908 deals with “Place of institution of suit where local limits of
jurisdiction of Courts are uncertain”.

Place of Suing in CPC for Matters Involving Immovable Property (Section 19)
Section 19 of Code of Civil Procedure 1908 deals with “Suits for compensation for wrongs to person
or movables”.

In cases where a suit involves compensation for a wrong done to a person or movable property, if the
wrong occurred within the jurisdiction of one Court and the defendant resides, carries on business,
or personally works for gain within the jurisdiction of another court, the plaintiff has the option to
file the suit in either of the mentioned courts.

For instance, if Raj, who resides in Kolkata, commits a wrongful act against Suraj, who resides in
Gujarat, Suraj can choose to file the lawsuit in either the Court in Kolkata or the Court in Gujarat, but
not in a third unrelated court like Delhi. This provision allows the plaintiff to select the Court based
on their convenience or strategic considerations when the wrong and the defendant’s location fall
under different court jurisdictions.

Section 20: Place of Suing in CPC for Other Suits

Section 20 of Code of Civil Procedure 1908 deals with “Other suits to be instituted where defendants
reside or cause of action arises”

Section 20 of the Code of Civil Procedure is a residuary section that addresses situations where the
cause of action arises from a breach of contract or business transactions. According to this section, if
there is a breach of contract or a cause of action within the jurisdiction of one Court, or if the
defendant voluntarily resides, carries on business, or works for personal benefit within the
jurisdiction of another court, the plaintiff has the option to file the suit in either of those courts.

For example, let’s consider a scenario where Rohit, a clothing manufacturer, is based in Sonepat, and
Sonam, a clothing retailer, is based in Gandhinagar. Through her agent, who resides in Bangalore,
Sonam enters into a transaction with Rohit. In such a case, the suit can be filed either in Sonepat,
where the cause of action originated, or in Gandhinagar, where Sonam resides.

Section 20 provides flexibility to the plaintiff by allowing them to choose the Court that is most
convenient or beneficial for their case when the cause of action or the defendant’s location falls
under the jurisdiction of different courts.

QUES) TYPES OF DECREE

Types of decrees
The court may decide cases by decree or order. The court resolves conflicts formally by issuing a
decree, which is essentially broken down into the following heads.

• Preliminary decree,
• Final decree,
• Partly preliminary and partly final decree.

Preliminary decree
The preliminary decree is brought up by the court prior to rendering a decision in order to put an end
to disputes over the parties’ rights and all other issues. It is designed to be passed on by the court to
rule on specific cases. This preliminary decree is issued in advance of the final decree.

Example of preliminary decree

X, Y, and Z, the parties to the property, are asking the court to order its partition, but the court cannot
do so until it has established the shares and rights of each party. The court could issue a preliminary
decree in this case in order to accomplish this.

A’s wife sues her husband for maintenance in this case, and the court must make sure that she
receives maintenance throughout the trial to enforce that. The court may therefore issue a preliminary
decree to ensure that she receives maintenance all through the trial.

Case law

Selvamani v. Chellamal (2015)

In this case, the court made a preliminary decision regarding the parties’ respective shares. Later, the
final decree was made, and one party appealed it, arguing that the preliminary decree had not given
him any shares. However, the court dismissed the appeal because it was not possible to appeal the
preliminary decree since the final decree had already been made.

Final decree

A final decree is one in which the court of law resolves all legal concerns and issues the final order
after the dispute in the lawsuit has been resolved, and the court will then entirely dispose of the
lawsuit. Final decrees are granted in one of two situations:

1) when an appeal is not filed within the allotted time or when the high court decides on it, and

2) when the court completely settles the case.

Example of final decree

To provide for a chance of reconciliation, interim divorce decrees are granted. A final decree is
subsequently issued in the divorce suit.

Case law

Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande (1995)

The Court ruled in this case that until the final decree is issued, there cannot be a formal court order
that definitively resolves all of the case’s issues.
Partly preliminary and partly final decree

The Code of Civil Procedure permits a decree to be partly preliminary and partly final. This occurs
because only a portion of the order is final, while the rest is a preliminary decree

Example of partly preliminary and partly final decree

Think about two brothers who want to inherit their late father’s property but the property is now
rented. The succession of the property may be the final decision, and the rent from the leased property
may be both a preliminary and final decree.

Case law

Lucky Kochuvareed v. P. Mariappa Gounder (1979)

In this case, the Court concluded that there is a dispute between mesne profits and a claim for
possession of the immovable property. Thus, the court must either decide who is the rightful owner of
the property or order a mesne profits inquiry. The first component defining possession of the property
is final, whereas the piece determining the mesne profit is preliminary.

Difference between preliminary decree and final decree

Preliminary decree Final decree

The formal statement made by the court to determine the rights

The final decree resolves the lawsuits entirely
of the parties involved in the issues in the lawsuits is known as
and leaves no issues for decisions in the future.
a preliminary decree.

There is nothing left to decide after the parties’

The court may determine the parties’ rights and wait for the
rights and responsibilities are established by the
final decree to be rendered
final decree.

The preliminary decree may be revised if the circumstances The final decree must always comply with the
change. preliminary decree.

A preliminary decree may be issued more than once. There can be more than one final decree issued.

According to Phoolchand v. Gopal Lal ,(1967) a preliminary According to Sankar v. Chandrakant

decree may be issued more than once. (1995), there may be more than one final decree
QUES) SHORT NOTES

1.Decree Holder
▪ Section 2(3) of CPC defines the term decree holder.
▪ Decree holder means any person in whose favour a decree has been passed or an
order capable of execution has been made.
▪ The term decree holder denotes a person:
o In whose favour a decree has been passed.
o In whose favour an order capable of execution has been made.
o Whose name appears in the decree, either as plaintiff or defendant and the
following conditions are satisfied:
• The decree must be capable of execution.
• The said person, by the terms of the decree itself or from its nature,
should be legally entitled to seek its execution.
▪ In Ajudhia Prasad v. The UP Govt. through the Collector (1947), the Allahabad
High Court considered the scope of the expression decree holder. The Court held
that it is clear from this that a person in whose favour an order capable of
execution has been made is also a decree holder.
o It is also evident from this definition that a decree-holder need not be a
party to the suit.

2.Judgement Debtor
▪ Judgement debtor is defined in Section 2(10) of CPC.
▪ Judgement-debtor means any person against whom a decree has been passed or an
order capable of execution has been made.
▪ The definition does not include legal representative of a deceased judgement-
debtor.
o A judgment debtor is a person against whom a judgment ordering him to
pay a sum of money has been obtained and remains unsatisfied.
▪ That order or decree may be for payment of money or for recovery of possession or
any other order or decree.

3.What is Interpleader Suit?

An interpleader suit is a legal action initiated by a person or entity holding property, funds, or
assets that are claimed by two or more conflicting parties. An interpleader suit is filed when
the party holding the property has no interest in it, except for potential charges or costs and
seeks to avoid liability or multiple lawsuits.

Section 88 and Order XXXV of CPC: Interpleader Suits

Section 88 and Order XXXV of the Code of Civil Procedure, 1908 encompass the provisions
governing Interpleader suits.

Section 88 delineates the criteria and conditions under which an interpleader suit can be
initiated. It specifies the essential elements of an interpleader suit as follows:
 • Similar Property: There must be property involved that is of a similar nature, which
can include a mortgage, a sum of money, or any movable or immovable property.
• Multiple Claims: Two or more parties must assert competing claims against each
other regarding the said property.
• Disinterested Claimant: The person initiating the suit (plaintiff) claiming the
property must not have any interest in it, except for potential charges or expenses.
This disinterest is crucial, as the plaintiff must be in a position to deliver or transfer
the property to the rightful claimant.
• Interpleader Action: A person claiming property may commence an interpleader
action against all the claimants involved. The objective is to determine which
claimant is entitled to receive payment or possession of the property. Additionally, the
plaintiff seeks indemnity for themselves in this process.
The Hon’ble Calcutta High Court, in the case of Asan v. Saroda, established that a suit cannot
be considered an interpleader suit in CPC if the defendants do not assert conflicting claims
against each other. Furthermore, the plaintiff must either acknowledge the title of one of the
defendants or be willing to make payment or deliver the property to that defendant.

The proviso to Section 88 further stipulates that no interpleader suit shall be instituted when
there is an ongoing lawsuit in which the interests of both parties can be adequately determined.