CPC

Q .What Properties are liable to attachment and Sale in execution of a

Decree?

Section 51 of The Code of Civil Procedure, 1908 provides various modes of

execution of a decree subject to some conditions and limitations as may be
prescribed.

(a) By delivery of any property specifically decreed;

(b) By attachment and sale or by the sale without attachment of any property;

(c) By arrest and detention in prison for such period not exceeding the period;

(d) In such other manner as the nature of the relief granted may require.

Attachment of property is one of the modes of execution applied by the court

of justice. An executing court is competent to attach the property if it is
situated within the jurisdiction of the court. The place where a judgement
debtor carries out his business is not relevant.

NATURE, SCOPE AND OBJECTIVE

Attachment of property is one of the modes of execution of a decree in a civil

suit. In a decree, the court may require a person(defendant) to pay an amount
to the decree-holder. In cases where the defendant fails to pay the required
sum, the court can, in the execution of its decree, attach the movable and
immovable property of the defendant and recover the amount which is due by
the disposal of these assets. However, there are some assets which cannot be
attached to recover the due amount.

PROPERTY WHICH CAN BE ATTACHED

Attachment is a legal term which refers to the action of seizing property in

anticipation of a favourable ruling for a plaintiff who claims to owed money by
the defendant. Decree Holder is Dominus litis(person to whom the suit
belongs) and he h.as the right to choose the mode of execution from those
available to him. Neither the Court nor the Judgement debtor can force or
persuade him to choose a particular mode of execution. This can be referred
from the case V. Dharmavenamma v. C. Subrahmanyam Mandadi.

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In the process of attachment, the court at the request of the decree-holder
designates specific property owned by the debtor to be transferred to the
creditor or sold for the benefit of the creditor. Sections 60 to Section 64 and
Rules 41-57 of Order 21 of CPC 1908, deals with the matter of attachment of
property.

Section 60 CPC,1908 describes the property which can and cannot be attached
while execution. Several types of property are liable for attachment and sale in
execution of a decree like lands, houses or other buildings, goods, money,
banknotes, checks, bills of exchange, hundis, government securities, bonds or
other securities etc., and things on which he has a disposing power. There is
express mention of particulars which shall not be liable for attachment or sale.
The decree as mentioned in this section is only a money decree and it does not
include a mortgage decree. Therefore, it is important that the property not
only belongs to the judgement-debtor but also he has disposing power on it.

In M. Balarajan vs. M. Narasamma, it was held that the said house of the
Judgement-debtor was liable to be sold for execution of the decree as his
contention of agricultural produce was declined.

Section 61 grants partial exemption to agricultural produce- The state

Government may by general or special order published in the Official Gazette
declare any piece of agricultural land for the purpose until next harvest season
for the due cultivation of land and support of the Judgement-debtor and his
family, exempt that property from being attached or sold in execution of the
decree.

Section 62 talks about seizure of property in case of dwelling house. No person

executing under the code will enter the premises of a dwelling house after
sunset and before sunrise. No door of such dwelling house can be broken
without the knowledge of the Judgement-debtor. Where a woman resides in
such house and she is not allowed to appear in public. The person executing
has to give her a notice to be at liberty to withdraw and also reasonable time
to do the same. Once she withdraws he has the power to enter the premises.

Section 63 says that where the property attached in execution of decree is

going on in several courts then the final decision of the court of higher grade
prevails and where the court are at same grades then the court where the case
of attachment came first will hold a higher value.

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Q .What Properties are not liable to attachment and Sale in execution of a
Decree?

Introduction - Section 60(1) of the Civil Procedure Code, declares that all
saleable properties are liable to attachment and sale in execution of the
decree. It also provides that the property specified therein are exempted from
attachment and sale in the execution of a decree.

According to the general rule, all property movable and immovable

properties which include agricultural land, buildings, and shares, furniture's
fixtures or movable property including money, articles etc. Owned by
judgment-debtor and judgment-debtor entitled to hold and process to the
exclusion of others.

Properties which cannot be attached -

According to Section 60(1) of the Civil Procedure Code following 20 kinds of

property are not liable to attachment or sale namely -

(a) the necessary wearing-apparel, cooking vessels, beds and bedding of

the judgment-debtor, his wife and children, and such personal ornaments as,
in accordance with religious usage, cannot be parted with by any woman;

(b) tools of artisans, and, where the judgment debtor is an agriculturist,

his implements of husbandry and such cattle and seed-grain as may, in the
opinion of the Court, be necessary to enable him to earn his livelihood as such,
and such portion of agricultural produce or of any class of agricultural produce
as may have been declared to be free from liability under the provisions of the
next following section;

(c) houses and other buildings (with the materials and the sites thereof
and the land immediately appurtenant thereto and necessary for their
enjoyment) belonging to an agriculturist or a labourer or a domestic servant
and occupied by him;

(d) books of account;

(e) a mere right to sue for damages;

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(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government or of a

local authority or of any other employer, or payable out of any service family
pension fund notified in the Official Gazette by the Central Government or the
State Government in this behalf, and political pension;

(h) the wages of laborers and domestic servants, whether payable in money or
in kind

(i) salary to the extent of the first one thousand rupees and two-thirds of the
remainder in execution of any decree other than a decree for maintenance:

(ia) one-third of the salary in execution of any decree for maintenance;

(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of
1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957),
applies;

(k) all compulsory deposits and other sums in or derived from any fund to
which the Provident Funds Act, 16[1925 (19 of 1925), for the time being
applies in so far as they are declared by the said Act not to be liable to
attachment;

(ka) all deposits and other sums in or derived from any fund to which the
Public Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so
far as they are declared by the said Act as not to be liable to attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment
debtor;

(kc) the interest of lessee of a residential building to which the provisions of

law for the time being in force relating to control of rents and accommodation
apply;

(l) any allowance forming part of the emoluments of any servant of the
Government or of any servant of a railway company or local authority which
the appropriate Government may by notification in the Official Gazette declare

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to be exempt from attachment, and any subsistence grant for allowance made
to any such servant while under suspension;

(m) an expectancy of succession by survivorship or other merely contingent or

possible right or interest;

(n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to
attachment or sale in execution of a decree; and

(p) where the judgment-debtor is a person liable for the payment of land-
revenue; any movable property which, under any law for the time being
applicable to him, is exempt from sale for the recovery of an arrear of such
revenue.

Q.SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR

OFFICIAL CAPACITY

Section 79-82 of the Code deals with suits by or against the government or
public officers in their official capacity. According to Section 79 of the Code,
when any suit is filed against the government, then the government shall be
referred to as defendant in the suit and likewise, if any suit is filed by the
government, then the government will be referred to as Plaintiff in the suit.
However, it is pertinent to note that if any such suit is filed either by the
Central Government or against the Central Government, then the plaintiff or
defendant, as the case may be, shall be the Union of India. And, if any such suit
involves State Government, then, the party to suit will be referred to as the
State.

In-state of Rajasthan v Vidyawati, the Hon’ble Supreme Court observed that in

case if any wrongs are committed by the government employees during their
employment, then the government itself will be liable for the acts committed
by its employees. However, such acts must not include the sovereign powers
of the government.

In Bhagchand Dagadusa vs The Secretary Of State For India on 15 August 1923,

the Bombay High Court observed it was observed by the court that the
procedure to deal with suits by or against the government is laid down under
order 27 and Section 79-82 of the Code. However, those rights and liabilities

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that are enforceable either against the government or by the government are
not covered by these provisions.

Requirement of notice ( Section 80(1))

In ordinary suits, i.e. suits between two or more individuals, there is no

mandate to serve notice to the defendant by the plaintiff before instituting a
suit. However, Section 80 is an exception to this general rule followed in
ordinary suits. This is so because as per Section 80, the plaintiff can sue neither
the government nor against a public officer with regards to acts that are
purported to be completed by the public officers working in the official
capacity. Such a suit by or against the government official can only be filed
after the expiration of the next two months of receiving the notice by the
government or public official in writing.

The notices can also be served in the following offices:

1. In case if any suit is filed against the Central Government, excluding the
cases of railway, a notice shall be served to the Secretary to that
Government;
2. In the case, if a suit is filed against the Central Government, involving the
matters of railway, then the notice shall be served upon the General
Manager of that Railway;
3. In case when the suit is against the Government of the State of J&K, the
notice shall be served upon the Chief Secretary to that Government or
any other officer authorized by that Government on that behalf;
4. In case if a suit is filed against any other state Government, then the
notice shall be served upon the Secretary to that Government or the
Collector of the district;
5. In case if a suit is filed against a public officer, then the notice shall be
served upon that public officer.

Section 80(2) is an exception to Section 80(1) of the Code as it states that when
a suit is filed for obtaining immediate relief either against the government or
any public officer working in its official capacity, then without serving notice on
the opposite party, such suit shall be filed after taking the permission of the
court. According to Section 81 of the Code, when a suit is filed against a public
office due to his conduct in his official capacity, then such public officer shall
neither be arrested nor will his property be attached. Furthermore, in case the

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court accepts that it is impossible for the public officer to appear before the
court, he shall be excluded from presenting himself from the court. The
execution of the decree has been explained under Section 82 of the Code.
Section 82(2) strictly forbids the execution of the decree passed under 82(1)
against the public officer or government, as the case may unless the decree
remains unsatisfied for three months calculated from the date when the
decree is passed.

It has been observed by the court in The State of Bihar And Anr. vs Jiwan Das
Arya, that section identifies two types of cases: Firstly, those suits are filed
against the Government; wherein the notice has to be given under all cases.
Secondly, those suits filed against public officers; wherein notice is obligatory
only in cases where the suit is filed in respect of any act “purporting to be
done” by such public officer in the discharge of the public officer’s duty, and
whereas not in other cases.

The importance of sending a notice under Section 80 (1) of the Code has been
discussed by the Hon’ble Supreme Court in The State Of Madras vs C.P.
Agencies And Anr where it was held that the main objective of sending a notice
under section 80 before filing a suit against the concerned public official or
government, is to give a chance to the respective office or government to
consider their legal position and settle the claim made by the plaintiff if such
claim seems to be proper.

SUITS BY ALIENS

This section discusses those cases wherein aliens will be permitted to institute
a suit. According to Section 83 of CPC, the alien enemies residing in India, after
seeking permission from the Central Government as well as the alien friends
are allowed to sue as if they were citizens of India. The alien enemies can file
the suit in any court competent to try a suit of a citizen. However, it is
pertinent to note that the alien enemies residing in India without permission of
the Central Government or residing in a foreign country are not allowed to sue
in any court of India. Furthermore, Section 84 of the code permits the foreign
state to institute a suit incompetent court.

Section 85 of the Code states that the government shall appoint specific
persons for either prosecution of the foreign rulers or their defense. Here, the
term ‘Government’ ideally refers to the Central Government. Such appointed
persons shall be deemed to be the recognized agents working on behalf of the
foreign rulers. Section 86 further deals with those suits that are instituted

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against foreign rulers, ambassadors, and envoys whereas Section 87 states the
style or patterns of such foreign rulers as parties to suit. According to this
provision, it is specified that the ruler of a foreign state can both sue as can be
sued, however in the name of their state. For a better understanding of the
terms Foreign State and Ruler, reference must be given to Section 87A that
provides its definition. Any state which is outside the boundaries of India but at
the same it is recognized by the Central Government, then such state shall
come under the purview of ‘Foreign State’ and whereas the person acting as
the head of the Foreign State, appointed and recognized by the Central
Government, is a Ruler. Section 87B of the Code provides suits instituted
against rulers of Former Indian States that means when any suit is instituted by
the state which depends upon a cause of action that arose before the
origination of the Indian Constitution, then the aforesaid provisions (Section 85
and Section 86) will be applied with respect to such ruler of former India
states.

INTERPLEADER SUITS

Section 88 of CPC, 1908 provides for interpleader suits. The word ‘To
Interpleader’ implies ‘to litigate with each other to settle a point concerning
the third party. The procedure to institute an Interpleader Suit is given under
Order 35 of CPC, 1908. An interpleader suit is defined as a suit wherein no
dispute is between the parties; namely the plaintiff and the defendant, but the
dispute is actually between the defendants themselves, who inter-plead
against each other. One can differentiate between an original suit and an
interpleader suit as the former is a dispute between plaintiff and defendant
whereas the latter is between defendants. In such types of suits, the plaintiff is
least attentive towards knowing the subject matter of the suit. However, the
plaintiff in such a suit must be in a position of impartiality/ non-arbitrariness.

The reason behind filing an interpleader suit is to get the claims of rival
defendants adjudicated. In the case of Groundnut Extractions Export
Development Association vs State Bank Of India, “the interpleader suit was
understood as a process wherein the plaintiff calls upon the rival claimants to
appear before the court and get their respective claims decided. The decision
of the court in an interpleader suit affords indemnity to the plaintiff on
payment of money or delivery of property to the person whose claim has been
upheld by the court”.

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Test

To decide whether a suit is an interpleader suit or not, the court must

specifically look into the prayer clause in the plaint. In Groundnut Extractions
Export Development Association vs State Bank Of India, the court opined that
“A suit does not become an interpleader suit merely because the plaintiff
requires the defendants to interplead with each other as regards one of the
prayers in the plaint”.

Who can file interpleader suits?

In National Insurance Co. Ltd. vs Dhirendra Nath Banerjee And Anr, it was
observed that one can file an interpleader suit in case there exists two or more
than two individuals claiming adversely to one another for some debt, money,
movable property, or immovable property, from a person who does not claim
any interest therein expect the charges and costs incurred by him that person
is also ready to pay the same to the rightful claimant. In simple terms, an
interpleader suit can be filed by: Any person who has no interest in any debt,
money, or, other property (movable or immovable), the person excludes the
charges and costs incurred by him and lastly that person is also ready to pay
the debt, money, or, other property to the rightful claimant.

Who cannot file interpleader suits?

Order 35, Rule 5 of the CPC, 1908 provides that, neither an agent can sue his
principal, nor a tenant can sue his landlord to compel the principals and
landlords to interplead with persons other than persons claiming through
these principals and landlords.

Procedure

The procedure to file an interpleader suit is given under Order 35 CPC. 1908.
Order 35 Rule 1, 1908 provides that the interpleader must particularly mention
in his plaint that,

(i) The plaintiff do not claim any interest in the subject matter of the dispute
except the costs and charges

(ii) The claims that are mentioned by the defendants severally

(iii) No collusion is observed between the plaintiff and any of the defendants.

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Apart from the aforementioned claim, the interpleader can also mention other
statements as well.

 Order 35, Rule 2 of CPC, 1908, gives the court discretionary power
whereby if a thing is claimed and it is capable of being paid into the
court, then, the plaintiff has to deposit such an amount or thing before
the court. In case, such a thing is a property, then the property shall be
placed in court.
 Order 35, Rule 3 of CPC, 1908 provides that in an interpleader suit if any
of the defendants sue the plaintiff with regards to the subject matter of
the suit, then in such case, the court where the suit is instituted against
the plaintiff is pending, will stay the proceedings in that suit as against
the plaintiff.
 Order 35, Rule 4 of CPC, 1908 gives the court discretionary power to
declare at the first hearing itself, the fact that the plaintiff is discharged
from all liabilities and award the plaintiff his costs and dismiss him from
the suit. But, in case the court believes that to uphold justice, propriety,
and convenience, the inclusion of all parties (plaintiff and defendant) to
the suit be retained, then, the court in such will not discharge the
plaintiff till the final disposal of the suit.
 Order 35, Rule 5 of CPC, 1908 states that the agents, as well as the
tenants, won’t be permitted to file an interpleader suit against their
principles or landlords respectively.

Arbitration

Section 89 of the CPC, 1908 provides for the settlement of disputes outside the
courts. It is one of the most important provisions given in the Code, This
section makes it necessary for the parties to resolve their disputes falling under
the domain of civil litigation through the mechanisms of Alternative Dispute
Resolution. In cases where the court observes that there is the existence of
such elements of a settlement acceptable and favorable to both parties, then
the court refers to such cases for arbitration, conciliation, Lok Adalat, or
mediation. Section 89(2) provides the procedure followed in different
mechanisms of Alternative Dispute Resolution i.e. arbitration, conciliation, Lok
Adalat, or mediation. In case the parties to suit are unable to resolve their
dispute by using the modes of ADR, the matter will then continue in the same
court in which such a suit was instituted earlier. For further reading click, refer
to this link .

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Friendly suits

A special type of suit namely a friendly suit is defined under Section 90 of the
CPC and Order 36 lays down its procedure. It is a special kind of suit wherein
the plaintiff and defendant do not approach the court and the plaintiff in such
suits does not present a complaint. The procedure used in ordinary civil
litigation is different from that in friendly suits. The parties in friendly suits are
concerned about the decision on any question of fact or law. For determining
the question of law or question of fact, both parties agree in writing whereby
they state these questions similar to the manner a case is filed. The same is
done to obtain the opinion of the court. The court may decide the question if it
is satisfied that such a question is fit to be decided. Order 36 Rule 1-6 lays
down the procedure for special cases or friendly suits.

According to Order 36 Rule 1, certain conditions are to be satisfied for the case
to qualify as a friendly suit under Section 90 of CPC.

1. The agreement must be duly executed between the plaintiff and

defendant.
2. The case is fit to be decided.
3. Plaintiff and Defendant have a bonafide interest in the question so
asked.

It is important to note that as a decree passed in a friendly suit under Section

90 is like a compromise decree, henceforth the same is not appealable.

Order 36, Rule 2 of CPC, 1908 provides that in cases where the agreement
pertains to the delivery of property, or it involves a case where one party is
stopping the other party from doing an act, then in such cases, it is compulsory
to state in the agreement the estimated value of the property that needs to be
delivered, or in other case expected value of the act mentioned hereinabove.
Furthermore, as per Rule 3, if such an agreement is made following all the
rules laid down in Order 36, then it shall be filed along with an application
before the court having territorial and pecuniary jurisdiction to deal with it.
The said application will be treated as a suit following which notice shall be
served upon the parties to the agreement, however excluding the party who
originally made the application in the court. Rule 4 and Rule 5 deal with the
jurisdiction of the court and hearing and disposal of the case
respectively. Order 37 summary suits and Order 33 suits by indigent persons
are also covered under the purview of special suits.

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PUBLIC NUISANCES AND OTHER WRONGFUL ACTS AFFECTING THE PUBLIC

Section 91 deals with suits concerning public nuisances and any other wrongful
acts affecting the public. It states that in the case when public nuisance or any
wrongful act that is harming the public at large is observed, then an Advocate
General can file a suit for declaration and injunction shall be made. Even two
or more two persons can institute a suit against such nuisance even if no harm
is caused to them with the permission of the court.

Section 92 deals with suits instituted in the case of public charities. According
to this provision, if any express or constructive trust is created for public use
having a religious or charitable nature is likely to have been breached, or
otherwise requires the direction of the court for the purpose of administering
the trust, then in such an Advocate General or two or more than two persons
possessing an interest in the trust can institute a suit before the principal civil
court having original jurisdiction or in any other court. The suit shall be filed to
attain decree for various reasons like; appointment of a new trustee, removal
of any trustee, direction of accounts and inquiries, settling scheme, or granting
relief as mentioned in the section.

Q. Suit Against Minor and unsound Mind

Order XXXII is one such provisions which ensures that rights of such persons
are protected. It contains a set of rules to apply to each case concerning
minors and persons of unsound mind and has measures to ensure that such
persons are protected not only against the opposite persons in the concerned
case but also from adverse interests of their own guardian or next friend.
Order XXXII of the Code of Civil Procedure, 1908 deals with SUITS BY OR
AGAINST MINORS AND PERSONS OF UNSOUND MIND. Order XXXII contains
special provisions applicable only in cases where either the suit is:

i. To be instituted at the cause of a minor/person of unsound mind

ii. To be instituted against a minor/person of unsound mind

In the Code of Civil Procedure, the main object behind the enactment of Order
XXXII is the protection of the interests of minors and persons of unsound mind.
The origin behind this concern rests in Common Law. The Common Law

12
position is that persons who are unable to understand the nature and
consequences of their actions (of immature intelligence and discretion[1])
ought not to be liable for their actions so undertaken. This legal position stands
firm even today except where his status is that as a cestui qui trust.

Quoting Pollock:
An infant is not absolutely incapable of binding himself, but is, generally
speaking, incapable of absolutely binding himself by contract.

The law will, as a general principle, treat all acts of infants which are of his
benefit on the same footing as those of adults, but will not permit him to do
anything prejudicial to his own interests.

In Ram Chandra v. Man Singh it was held that a decree passed against a minor
or a lunatic without appointment of a guardian is a nullity and void, not merely
voidable. Now that the origin of the concerned aspect of law is intelligible, it
next becomes important to describe who it pertains to.

A minor is, for purposes of civil litigation in India, defined to mean a person
who has not attained majority under the provisions of the Indian Majority Act,
1875, that is a person who has not completed the age of eighteen years and in
the case of a minor of whose person or property a guardian has been
appointed by a court, or whose property is under a court of wards, a person
who has not attained the age of 21 years.[5]

Similarly, a person of unsound mind is a person who is declared after

competent examination to be unable to understand the nature and
consequence of his actions due to the presence of a mental disease or
infirmity.

Rules 1 - 14 of Order XXXII apply not only to minors and persons, adjudged to
be of unsound mind, but also, those, who are found to be, by a Court upon
inquiry to be incapable, by reason of any mental infirmity, of protecting their
interest when suing or being sued. This is based on the natural law principle

13
that both parties to a suit must be heard equally before a suit is adjudicated
upon.

The next legal problem that arises is how best to ensure that such
disadvantaged persons are not taken advantage of by means of vexatious
litigation or misuse of provision. This was addressed by the concept of next
friend or guardian. The concept is framed on the assumption that a next friend
or guardian, being an adult of reasonable prudence will act to ensure that the
disadvantaged persons interests are not misdirected.

Concept of Next Friend/ Guardian:

The object behind having a next friend or guardian ad litem is that a minor is
deemed to be incapable of defending himself and therefore it is imperative
that his interests in the suits should be supervised by an adult person. This
person, in case the minor is a plaintiff, is to be called the next friend and when
the minor is a defendant, is called a guardian ad litem or guardian for the suit.
However, neither the next friend nor guardian ad litem is a party to the suit.[6]
The power of the person so assigned is limited to the proceedings for which he
is recognised by the court.[7]

Who can be appointed as Next Friend/Guardian:

Every suit by a minor should be instituted in his name through his guardian or
next friend.[8] If the same is not done, the plaint will be taken off the file.[9]
Any person who has attained majority and is of sound mind[10], may act as a
guardian or next friend, provided his interest is not adverse to that of minor,
who is not the opposite party in the suit and who gives consent in writing to
act as a guardian or next friend.[11] In the absence of a guardian who is fit and
willing person to act as a guardian, the court may appoint any of its officers as
guardian in that particular suit.[12]

Provisions to ensure that interests of minors are safeguarded during the suit -
Rule 5 of Order XXXII states that every representation made before the court
other than under Rule 10(2) must be made by his next friend or guardian.[13]
Where an order is passed without such representation, the same may be
discharged with.[14] Further, by way of Rules 6 and 7, without the leave of the
court, no guardian or next friend can:

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  Receive any amount or movable property on behalf of the minor
 Enter into any agreement on behalf of the minor
 Reach any sort of compromise in the suit on behalf of the minor

The guardian must apply for leave of the court in all of the above cases and the
application must be accompanied with a pleaders certificate and affidavit. Any
agreement entered into, without the leave of the court is voidable at the
instance of the minor.Rules 6 and 7 have been designed in order to safeguard
the interests of a minor during the pendency of a suit against hostile, negligent
or collusive acts of next friend or guardian.

The principle these rules follow is that infant litigants become wards of court
and therefore it becomes the duty of the court to ensure that guardians act
properly and bona fide in the interests of the minor.[17] The protection
however, is only during the pendency of the suit.

Duty to Act in Best Interest of Minor:

as already stated in rule 4 any person complying with the qualifications under
Rule 4 may become guardian or next friend. The guardian or next friend
however, must ensure that he acts in best interests of the minor or unsound
person. A guardian must ensure that the discretionary powers exercised by
him in his capacity as guardian including the employment/dismissal of legal
counsel etc. must be in the best interests of the minor and not to advance his
own cause or interests.

However, in certain cases it may be allowed for the guardian and the minor to
have common interest in the suit. As in the case of Ranganathan Chettiar v.
Perrkarriappa Chettiar where the mother was allowed to bring a suit
concerning certain properties to be inherited by her and her minor son which
had been wrongfully claimed by the brother of the deceased husband.[19]

Retirement, removal or death of guardian/next friend - A next friend or

guardian who wishes to retire must first procure a fit person to substitute him
and give security for costs already incurred by him.[20]

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The court may also remove a particular guardian or next friend if the court is
satisfied that either[21]:

a. His interest is adverse to that of the minor in the concerned case

b. He is in such a standing as to be capable of colluding with the opposite
party or is closely connected to the opposite party
c. He does not discharge his duty to the satisfaction of the court
d. He ceases to stay in India during the pendency of the suit and is
therefore unable to look after the best interests of the minor
e. Any other sufficiently justifiable cause as the court may decide

In a case where a guardian or next friend retires or is removed or in the case of

his death, the suit remains stayed until another appropriate guardian is duly
appointed in that particular case.[22]

When Minor attains majority:

When a minor attains majority, he can choose either to proceed with a

particular suit or to abandon it, if he had moved the court through a next
friend/guardian. Therefore:

i. Where he elects to proceed with the suit - he must apply for an order
from the court discharging the next friend or guardian and for leave to
proceed with the suit in his own name.[23]
ii. Where he elects to abandon the suit - he must apply for dismissal of suit
on repayment of costs to defendant or next friend/guardian as the case
may be.[24]
iii. Where minor co-plaintiff desires to repudiate suit - he may repudiate the
suit and apply to have his name as co-plaintiff stuck off. The court after
examination of the circumstances may remove his name from the suit
on finding that he is not a necessary party or may make him a defendant
instead.[25]
iv. Where minor desires that suit instituted in his name be dismissed on the
ground that it was unreasonable/improper - he may by application move
the court for dismissal on such grounds.[26]

It is important to mention that Order XXXII does not expressly provide for
provisions when a defendant would attain majority because a defendant
cannot terminate the suit.[27]

Application of Order XXXII to persons of unsound mind - Rule 15 of the Code

16
states that the provisions of Order XXXII (Rules 1 to 14) shall squarely apply to
persons of unsound mind as they do to minor with exception of Rule 2A which
relates to the furnishing of certain securities by guardian.[28]

Conclusion:
Order XXXII is another example of exemplary legal framework which is part of a
larger code and process of litigation that has been operating since the
inception of the Code in 1908. The rules under the order have also been
amended from time to time to ensure that relevance is maintained.

Q.SUITS BY INDIGENT PERSON

Order 33 of the Civil Procedure Code talks about suits by indigent persons.
Section 304 of Criminal Procedure Code, and Article 39A of the Indian
Constitution respectively mention, legal aid to accused at state expense in
certain cases, and equal justice and free legal aid.

Order 33 provides the procedure for filing of suit by an indigent

person. It empowers the persons who are not able to pay Court fees to
institutes suits without payment of requisite Court fees.
Meaning of indigent person:-
An indigent person means any person who fulfills
the conditions provided under Order 33 Rule 1 which is as follows:-
1. Any person who has no means to pay the Court fees prescribed by the law
for the plaint in suit; and,
2. He has not entitled to any property worth 1000 rupees where no fees is
prescribed.
The Hon’ble Supreme Court in Union Bank of India v. Khader International
Construction discussed the definition of an indigent person. It was observed by
the court that an indigent person is one who is not possessed of sufficient
amount (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 plaintiff in such a suit. In case no such fee is
prescribed if such person is not entitled to property worth one thousand

17
rupees other than the property exempt from attachment in execution of a
decree and the subject matter of the suit he would be an indigent person.

Object:-
Order 33 provides the provisions which are intended to enable an
indigent person to institute and prosecute suits without payment of the court
fees under the Court Fees Act plaintiff showing in the court of law is bound to
pay Court fees prescribed presentation of the plaint. Under this Order, the
person is exempted from paying the court fee at the first instant and allow him
to prosecute his suit provided certain conditions laid down in this order 33 has
been enacted to server triple purpose
I. to protect Bonafide cleans of an indigent person
II. to safeguard the interest of revenue and
III. to protect the defendant from harassment
Procedure to Sue as an Indigent Person if Application is Admitted

Where the application for permission to sue as an indigent person is granted, it

shall be numbered and registered. It shall be deemed the plaint in the suit, and
the suit shall proceed as if it was instituted in an ordinary manner.

But the plaintiff shall not be liable to pay any court fee or process fee. The
plaintiff shall also not be liable for any fee for the appointment of a pleader.

If a person has been allowed to sue as an indigent person, but he is not

represented by a pleader, the court may assign a pleader to him.

Who may Appeal as an Indigent Person?

Order XLIV of the Civil Procedure Code talks about appeals by indigent persons.

Any person who is entitled to file an appeal but unable to pay the necessary
court fee may obtain the permission of the court to appeal as an indigent
person.

18
For this purpose, he may present an application to the court, along with a
memorandum of appeal. The court may allow the applicant to appeal as an
indigent person, subject to the provisions relating to suits by indigent persons.

Period of Limitation

The application for leave to appeal as an indigent person must be filed within
30 days. But in case of appeal before the High Court, such a period is 60 days
from the date of the decree when passed.

If there is no reason to reject the application, the court shall fix a day for
receiving evidence in proof or disproof of the indigence of the applicant. At
least 10 days clear notice shall be given to the opposite party and the
government pleader.

Contents of application:-
Every application should contain the following
particulars:
a). the particulars required in regard to Plains in suit
b). of any movable or immovable property belonging to the applicant with
estimate value thereof, and
c). signature and verification as provided in order 6 rule 14 and 15
Applicant should present the application to the court in person unless
exempted by court Rule 3.
In case of more than one applicant, it can be presented by any of the proviso
to rule 3.

Rejection of application rule 5:-

In the following cases an application for
permission to show as an indigent person will be rejected by the court:-
1. if the application is not framed and presented prescribed manner; or
2. if the applicant is not an indigent person; or
3. if the applicant has disposed of any property fraudulently in order to get
permission to sue as an indigent person within two months before the
presentation of the application; or

19
4. if there is no cause of action; or
5. if the applicant has entered into an agreement with reference to the subject
matter of the shoot under which another person has obtained interest; or
6. if the suit appears to be barred by law
7. if any other person has entered into an agreement with the applicant to
finance costs of litigation.
In Dhanalakshmi v. Saraswathy case, the plaint was found to be undervalued.
So, it was returned for presentation in the court along with proper valuation
and court fee. A time of one month was granted for doing so and the plaintiff
filed the plaint within the stipulated period. Subsequently, the plaint was
presented in the Sub-Court along with a petition seeking leave to sue as
indigent persons to which the court observed that though the petition was
filed under Order XXXIII Rule 1, one cannot say that the application filed under
Rule 2 seeking permission to file the suit as indigent persons might not be
rejected as provided in Rule 5 of Order XXXIII CPC. A similarity was drawn
between Order XXXIII Rule 5 CPC and Order VII Rule 11 CPC. While Order VII
Rule 11 is used in the rejection of plaint, Order XXXIII Rule 5 deals with the
rejection of an application filed for permission to sue as indigent persons.
Revocation of permission: Rule 9:-
On the application by the dependent or by
the Government Pleader, the court may revoke permission granted to the
plaintiff to sue as an indigent person in the following cases:-
1. If he is guilty of vexatious or improper conduct in the course of the suit;
or
2. If his means are such that he ought not to continue to sue as an indigent
person; or
3. If he has entered into an agreement on which another person has
obtained an interest in the subject matter of the suit.
Recovery of the court fees and costs:-
Where indigent person succeeds in the suit, the court shall
calculate the amount of court fees and costs and recover from the party as per
the direction in the decree and it will be the first charge on the subject matter
of the suit.

20
 Where an indigent person fails or abates, the court fees shall be paid
by him. Where the suit abates due to the death of the plaintiff, such court fee
would be recovered from the estate of the deceased plaintiff.
Q . Meaning of ex-parte and consequences of non appearance of the parties

“Ex parte” is a Latin phrase meaning “on one side only; by or for one party.”

According to Order 9, Rule 6(1)(a), the court may proceed ex-parte and issue
an ex-parte decree if it determines that the defendant failed to appear in court
on the hearing date specified in the summons properly served on him.

What is “ex-parte”

‘Audi Alteram Partem’ is a Latin phrase that means, “Listen to both sides” and
it is one of the principles of natural justice. Every party has a right to a fair
hearing. If any party does not appear on the prescribed date, the court will
issue summons and notices to appear before the court. When, during the
proceedings of a civil suit, a plaintiff was present and the defendant was not
present, and the summons was issued, then the court could proceed against
the defendant and pass an ex-parte decree.

The court has jurisdiction to pass an ex-parte decree under Order 9 Rule 6 of
the CPC. The order states that if the defendant does not appear before the
court despite having summons served on him, the court can pass an ex parte
decree. But if the summons is not duly served, the court will issue another
summons to the defendant. When the summons is served properly but the
defendant does not get enough time to be present in court, the court will
postpone the proceeding to a future date. If the court finds that the summons
was not served properly due to the plaintiff’s fault, then the court will ask the
plaintiff to pay the cost of adjournment of the hearings.

In M Krishnappa v. Mensamma (2020), the Karnataka High Court held that

when the defendants attended an appearance but did not argue the case, it
would be classified as Ex Parte and the defendants could maintain a petition
under Order 9 Rule 13 of the CPC.

In Bhanu Kumar Jain v. Archana Kumar & Anr (2004), the Supreme Court stated
that it is permissible for the defendant to argue that he had sufficient and
reasonable grounds for not being able to attend the hearing of the suit on a
relevant day, except to challenge the authenticity or otherwise of an order
posting the matter for ex-parte hearing.

21
Order IX of the Code of Civil Procedure lays down the laws regarding the
appearance of the parties and the consequences if they do not appear.

Thus, this article deals with the effects of non-appearance of parties to a suit.

THE APPEARANCE OF THE PARTIES TO A SUIT

As stated under Rule 1 of Order IX of the Code of Civil Procedure, once the
summons have been received by the parties and they have been intimated
about the day and the date on which the suit is to be conducted, they are
required to appear in the court in person or through an advocate on the fixed
day.

If the plaintiff or the defendant fail to appear in the court and furthermore also
fail to produce any sufficient cause for their absence the court is empowered
under Rule 12 of Order IX as follows:

 If the plaintiff continuously fails to appear, to dismiss the suit.

 If the Defendant fails to appear, to pass an ex-parte order.

IF BOTH THE PARTIES DO NOT APPEAR

When neither the Plaintiff nor the Defendant appears before the court and the
suit is called for hearing then the court is empowered to dismiss the suit under
Rule 3 of Order IX of the Code of Civil Procedure. Rule 4 states that the
dismissal of the suit under this rule does not put a bar on filing a fresh suit on
the same cause of action.

The Plaintiff is also entitled to apply to set aside the dismissal if he is able show
a sufficient cause for his absence. If the court is satisfied with such a cause
then it may set aside the dismissal order and schedule another day for the
hearing of the suit.

WHEN THE DEFENDANT DOES NOT APPEAR

In a case where the Defendant has been duly served with the summons and
has still not appeared in the court on the given date but the plaintiff is present
in the court then an ex-parte order may be passed against the Defendant
provided that it has been proved by the Plaintiff that the Defendant had
received the summons.

22
Once an ex-parte order has been passed, then the Court proceeds to pass a
decree in favor of the Plaintiff.

If the service of the summons is proved then the court has the power to pass
an ex-parte order against the defendant and further pass a final decree in favor
of the plaintiff.

 Sangram Singh Vs Election Tribunal The court held that the provision
applies only for the first hearing and not for the subsequent hearings of
the matter.

 Maya Devi Vs Lalta Prasad It has been held by the Supreme Court that it
is the duty of the court to ensure that statements in the plaint stand
proven and the prayers before the court are worthy of being granted.
Ex-parte order cannot be passed when there is more than one
defendant in the case and even one of them has appeared in the court.

WHEN THE PLAINTIFF DOES NOT APPEAR

When only the defendant appears in the matter then the provisions under
Rule 11 of Order IX are followed. When the defendant appears but the plaintiff
does not then there can be two situations:

 The Defendant does not admit the claim of the plaintiff either wholly or
any part of it.
 The Defendant admits the claim of the Plaintiff.

If the Defendant does not admit to the claims made by the Plaintiff then the
court has the power to dismiss the suit. If the Defendant admits to part or all
of the claims made by the plaintiff then the court has the power to pass a
decree against the Defendant on the grounds of such admission and the suit
may stand dismissed for the claims that have not been admitted by the
Defendant.

 PMM Pillayathiri Amma Vs Lakshi Amma It was held that when the
Plaintiff has not appeared due to his death then the court does not have
the power to dismiss the suit and if such a dismissal order is passed then
it amounts to nullity.

When the suit has been dismissed on the grounds of non-appearance of the
plaintiff then the order of dismissal can be set aside by filing an application. If
the court is convinced that the reason for the absence of the parties is a

23
legitimate one then the court can set aside an order dismissing the suit and fix
a new date to conduct the proceedings.

 P.K.P.R.M. Raman Chettyar Vs K.A.P. Arunachalam Chettyar It was held

that in the absence of a sufficient cause the court has the discretion to
set aside the dismissal or not.

It has also been observed that if the party to a suit has appeared on the
stipulated day but is late and has arrived after the matter has been called out
then the matter may be restored as late appearance is not the same as non-
appearance.

 Chhotalal Vs Ambala Hargovan The Hon’ble High Court observed that

when a party arrives late and finds out that the party has arrived late
and found that the suit has been dismissed on the grounds of non-
appearance then the party is entitled to have the suit or application
restored with the payment of costs.

EX-PARTE DECREE

As we have already discussed hereinabove, an ex-parte decree is passed in the

absence of the Defendant. Such a decree has all the force of any other valid
decree that may be passed by the court unless it has been challenged. It is a
voidable decree.

Rule 6(1)(a) of Order IX of the Civil Procedure code empowers the court to
pass any judgement ex parte in case the defendant part does not appear in the
proceedings on the date that has been allotted for the same in the summons
that have been duly served on him in the case.

An ex parte decree is neither void not inoperative but it is voidable at the

option of one party which may seek an annulment order for the same.

 Panduranga Ramchandra Vs Shantibai Ramchandra An ex-parte decree

is absolutely valid and is not null and void but can be merely voidable
unless it is annulled on legal and valid grounds. An ex-parte can be
enforced like a bi-parte decree and has all the forces of a valid decree.

Conclusion

The appearance and non-appearance of the parties have a direct effect on the
case and whether it will be carried on the next hearing or dismissed or whether

24
an ex-parte decree will be given in the matter. The court has the discretion to
dismiss or restore the case depending on whether or not sufficient cause has
been shown to the court.

When any suit is dismissed, or an ex-parte order is passed then the court has
the power to set aside the ex-parte order if they find sufficient reason behind
the absence of the parties.

While passing any adverse orders in the absence of the parties the court needs
to keep in mind whether or not there have been valid reasons to their absence
so that no miscarriage of justice is carried out.

Q .What is a decree

A decree is an official order issued by the court and it is only passed in civil
suits under Section 2(2) of the CPC. In a civil suit, a decree is a formal
expression of the decision made by the court that determines the rights and
obligations of the parties. A decree can be either preliminary or final, or
partially preliminary and partly final. It is always followed by judgement. A
judgement is a final statement made by the judge in a particular civil or
criminal suit. It is defined under Section 2(9) of the CPC.

A decree must include the condition for the rejection of any plaint or the
question raised in Section 144 of the CPC. However, a decree can be passed if
any appeal is filed against the previous order or decision and any order of
discharge relating to default. A decree can not be referred to as a precedent to
pronounce future judgments.

ESSENTIALS OF A DECREE

A decree is a decision made by the judge in any civil suit. The essential
elements that are required to announce the law are as follows:

1.Adjudication:

Adjudication is the formal decision made by the judicial body in civil dispute
matters. If any judicial officer does not make the order, there is no decree to
arise. While making a decree decision, the adjudication must be formally
expressed.

In the case of Naik v. Hansubala Devi (1983), the Court stated that if there is no
adjudication of rights and adjudication of the dispute, then there is no decree.

25
2.Suit:

Any civil proceeding which is initiated while filing a plaint in a civil court. If
there is no civil suit filed, there is no decree passed in the suit.

In Hansraj Gupta v. Official Liquidators of the Dehradun-Mussoorie Electric

Tramway Co. Ltd.(1932), the privy council defined the term ‘suit’ as any civil
proceedings which commenced with the filing of a plaint.

3.Formal expression:

A decree must be passed formally by the court, which must be followed by a

judgement. It should be given separately according to the law.

4.Rights of the parties:

A decree consists of the substantive and procedural rights of the parties, i.e.,
the plaintiff and the defendant. It determines the legal rights of the parties
which are in question in the matter of dispute.

In Kanji Hirjibhai Gondalia v. Jivaraj Dharamshi (1976), the Court said that the
plaintiff and the defendant are the parties in a lawsuit. If the court passes any
decision on the request of the third party in a lawsuit, then that decision is not
considered a decree.

TYPES OF DECREE

There are three types of decree as recognised by the Civil Procedure. They are:

Preliminary Decree - It is passed in cased in which the court has to first

adjudicate upon the right of the parties and further proceedings need to take
place before the suit is in a position to be completely disposed of.

Final Decree - A final decree is where a suit is completely disposed and all the
questions in controversy between the parties are finally settled and there is
nothing remaining to be decided on. A decree may be final in two ways:

1. Where no appeal is filed against the decree within the prescribed time
2. Where the matter has been decided by the decree of the highest court.
3. Where the decree completely disposed of the suit.

26
Partially preliminary and partially final decree - A decree can be said to be
partially preliminary or partially final when it only determines the rights of the
parties, while the rest is left to be worked out in the further proceedings.

Q .SETTING ASIDE AN EX-PARTE DECREE UNDER ORDER 9 RULE 13 CPC

Order 9 Rule 13 provides a remedy for the defendant to apply to set aside the
ex-parte decree which was passed due to the non-appearance of the
defendant in the civil suit. The court only sets aside the ex-decree when the
defendant presents a satisfactory reason in court or the summons is not served
well.

1.Summons duly not served well:

When the suit is filed in court, from the filing date of the suit to thirty days
afterwards, the summons must be served to the defendant. The summons is
the official notice that the defendant must appear in court on their behalf. But
there are certain scenarios, such as the postal address being incorrect or
changed, where the plaintiff has not paid the fees. When the summons is not
served properly to the defendant or the defendant does not get enough time
to appear before the court. Then the court may set aside the ex parte decree.

In Sushil Kumar Sabharwal v. Gurpreet Singh and Ors (2002), the Court
admitted that the summons was not duly served to the defendant and that the
defendant did not have enough to be present in court.

In Gauhati University v. Shri Niharlal Bhattacharjee(1995), the Supreme Court

stated that when the summons was not served properly, the limitation period
begins when the appellant knew of the ex parte decree.

2. Sufficient cause:

When the court finds sufficient grounds for the non-appearance of the
defendant, the court will set aside the ex parte decree. The term ‘sufficient
cause’ is not defined in the code. The court will determine through its
interpretation in different cases. The defendant has the burden of proof to
prove sufficient cause for non-appearance in court.

27
In G.P. Srivastava v. Shri R.K. Raizada & Ors. (2000), the Court said that if the
party is not able to set any ‘sufficient cause’ for his nonappearance on the fixed
date then the ex parte proceedings will be initiated against him.

In New Bank of India v. M/S. Marvels (India) (2001), when the appellant was
not able to present sufficient cause in the court and was found negligent in
presenting his case, the court could not set aside the decree.

In Parimal v. Veena @ Bharti (2011), the Supreme Court stated that the term
‘sufficient cause’ means the defendant did not act negligently and genuinely
wanted to be present when the case was summoned for hearing and used his
best effort to do so.

Q .REMEDIES AGAINST EX-PARTE DECREE

When a defendant presents sufficient cause before the court for non-
appearance the ex-parte decree can be set aside. Once the court accepts the
defendant’s reason, it will set aside the decree. The civil code provides
remedies that a defendant can use to set aside the decree passed by the code
and get the opportunity to represent his case.

A defendant against whom an ex-parte decree has been issued has the
following remedies:

1.Application under Order 9 Rule 13 CPC

A defendant can make an application under this order because the summons
had not been served properly and he had sufficient grounds for the
nonappearance before the court. The defendant has a thirty days time period
to apply, setting aside the suit. If the plaintiff did not appear, he may apply to
set aside the order of dismissal after the lawsuit has been dismissed. The order
dismissing the lawsuit may be reviewed and a date set for its continuation if
the court finds the reason for non-appearance to be a sufficient justification.

In the case of Chhotalal Mohanlal v. Ambalal Hargovan (1925), the Bombay

High Court stated if the party came late and a decree had been passed, then
the party was entitled to restore his suit after paying the cost to the court.

In Subodh Kumar v. Shamim Ahmed (2019), the Supreme Court held that if the
defendant proves that the summons had not been served properly, then the
court could set aside the ex parte decree passed against all the defendants.

28
2.An appeal under Section 96(2) CPC

The defendant can also make an appeal against the ex parte decree under
Section 96 (2) of the Code before the special bench of the High Court. The
defendant has a statutory right to appeal under Section 96 (2) of the Code and
it can not be denied because the application filed under Order 9 Rule 13 was
dismissed. This Section states that the aggrieved party against whom a decree
was passed has at least one right to file an appeal to the higher authorities.

In Bhivchandra Shankar More v. Balu Gangaram More and others (2019), the
Supreme Court held that the right to appeal is a statutory and substantive right
of the party, and such rights cannot be taken away from the defendant. Hence,
the defendant can use both the remedies application under Order 9 Rule 13
and the appeal under Section 96 (2) of the Code.

3.Revision application under Section 115 CPC

When there is no appeal available against the decree, the defendant can file a
revision application under Section 115 of the Code in the High Court. The High
Court has the authority to examine the orders and decrees passed by its
subordinate courts when the subordinate court fails to exercise its jurisdiction
and fails to settle the matter, or when the subordinate court does not have
jurisdiction over the matter. The defendant can appeal the revision application
when the final decree has been pronounced or the High Court can also take it
suo moto. The deadline to submit a revision application is 90 days from the
degree or order that is being sought to be revised.

The High Courts have been given revisional authority to provide the aggrieved
party with a remedy if the justice process is hampered by statutory mistakes. If
it is determined that a subordinate court has not acted according to the power
provided to it by law within its jurisdiction, the High Court has been given the
authority to review the matter.

In the case of Chandu S/O Jagannath Ambekar v. Digambar S/O Kisanrao

Kulkarni (2004), the Bombay High Court held that an application under Section
115 of the CPC is not maintainable because it can be only when the aggrieved
party does not have a remedy to file an appeal under Section 96 of the Code
and when the final order has been passed.

4.Review application under Order 47 Rule 1 CPC

29
The defendant can apply to Order 47 Rule 1 and Section 114 of the Code to
review the order passed by the court. A review application can be filed when
there is some new evidence discovered, any fault discovered by the court, or
any sufficient cause. Any aggrieved party can file a review application against
whom a decree has been passed, and an appeal is allowed from that decree,
but no appeal is filed. A review application shall be filed within thirty days after
the decree has passed.

There is no legal restriction on filing an appeal from such a decree or order

once the review application is filed. The review application cannot be extended
if the appeal is so preferred and resolved by the speaking order, i.e., on merits,
before the review application. When the court does not find sufficient grounds
for review of the application, it will be dismissed. But if the court agrees that it
does, then the request will be granted and also serve notice on the opposing
party to provide him with the opportunity to appear and defend the decree or
order under review.

In the case of Chajju Ram v. Neki (1922), the Court stated that the review
application was permitted on three grounds, i.e., new material found, mistake
or error, or any sufficient ground. There is no doubt that the third ground
mentioned widens the scope of the grounds for review, but at the same time,
that “sufficient reason” must be at least similar to either of the other two
grounds.

In the case of Parsion Devi and Ors. v. Sumitri Devi And Ors. (1997), it was
stated that if there is a mistake or error that is obvious from the record’s
surface, then the judgement may be subject to review. It is difficult to claim
that a mistake that needs to be proven through rational analysis is obvious
from the record on its own and justifies the Court using its review authority
under Order 47 Rule 1 CPC.

In the case of Union of India v. Nareshkumar Badrikumar Jagad & Ors. (2018),
the Supreme Court held that any person who is affected by the judgement can
take the remedy of a review petition.

5.Suit on the grounds of fraud:

A defendant can file a suit if the plaintiff obtained an ex parte decree by

committing fraud against the defendant. The burden of proof is on the
defendant to prove in the court the ex parte decree that has been passed is
fraudulent.

30
If it is proved in the court that the suit filed by the plaintiff does not disclose
the cause of action or the suit is barred by the limitation act, the court can
reject the plaint filed by the plaintiff.

Q .DIFFERENCE BETWEEN ORDER AND DECREE

An order is defined under Section 2(14) of the CPC as the formal expression of
any decision of a civil court which is not a decree.

As the definition clearly explains, an order is not a decree. However, though an

order is not a decree, a decree is usually an order. It is because a decree may
be preliminary, final, or partially both, but an order is always final in nature.

Nevertheless, it is pertinent to note that here, “final” refers to an order’s

conclusive ability to execute; it means that an order must be essentially and
procedurally executed. An order determines the procedural rights of the
parties. The court may pass orders at any stage of a civil suit. Essentially, a
decree is followed by one or several orders.

ESSENTIALS OF AN ORDER

From the definition of the term “order” provided under Section 2(14) of the
CPC, we can say that an order has the following essentials:

Decision of a Civil Court

 Only the formal expression of a civil court’s decision is considered as an

order.

Formal expression

 An order must be expressed formally, that is, in writing.

It should not be a decree

 Under Section 2(14) of the CPC, no order can be a decree.

TYPES OF ORDERS

The following are the types of orders under CPC:

31
Final order

A final order is one which ultimately establishes and calls for the execution of
the procedural rights of the parties.

Interlocutory order

An interlocutory order is one which is passed as a temporary measure to

prevent the happening of any harm to any person or property. Interlocutory
orders are also called interim orders.

Appealable order

As the name suggests, an appealable order is one against which an appeal can
be filed. Though most orders can not be appealed, a few orders, for instance,
the orders provided under Section 104 and Order 43 Rule 1 of the CPC, are
appealable orders.

Non-appealable order

A non-appealable order is one against which no appeal can be filed. It is issued

during the course of the suit and is provisional in nature.

S.
Decree Order
No.

An order can be passed in a suit

The decree is passed only in a suit
instituted on plaint as well as from a
1. which is commenced by the
proceeding commenced on a petition
presentation of the plaint.
application.

Decree determines the right of An order may or may not finally and
2.
parties in dispute conclusively. conclusively determine such rights.

A decree can be preliminary or

3. An order cannot be preliminary.
final.

4. In a suit, there can be only one A number of orders can be passed in a

decree except for the suits where a suit or proceeding.
preliminary and final decree is

32
 passed.

Every decree is appealable unless Only the orders specified in this code
5.
expressly provided. are appealable.

The second appeal lies to the High

There is no provision of the second
6. Court against the first appeal of a
appeal in case of appealable orders,
decree.

Q. JUDGEMENT
Judgment is defined in section 2(9) of the C.P.C. which says judgment is the
statement given by the Judge on the grounds of a decree or order. Judgment
refers to what the judge writes regarding all the issues in the matter and the
decision on each of the issues. Hence every judgment consists of facts,
evidence, findings etc. and the conclusion of the court.

ESSENTIALS OF A JUDGEMENT

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

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

 A concise statement of the case

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

Judgment of Small Causes Court

 Point for determination

 Decision thereon

REVIEW UNDER CODE OF CIVIL PROCEDURE

The provisions of review of a judgement are mentioned in Section 114 of the

Code. The main objective is to examine the facts and judgements of the case

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again. Even though this section does not contain the limitations and conditions
for the review, the same is laid down in Order 47 of the Code which contains 9
rules imposing the various conditions. The following are the 9 rules:

 Application for the review of Judgement

 To whom the application for review may be made
 Form of the application
 Application when rejected
 Application for review in Court consisting of two or more Judges
 Application when rejected under Rule 5
 Order of rejection not appealable. Objection to order granting
application
 Registry of granted application
 Bar of certain application

Q. PROCEDURES FOR ENFORCEMENT OF DECREE BY WAY OF EXECUTION.

What is Execution?

Execution is a process by which the Decree Holder "enforces the decree",

passed by the Court of Law. Execution is the final and conclusive step of civil
litigation. While the term "Execution" has not been defined under the Code of
Civil Procedure, 1908, Sections 36 to 74 and Order 21 of the Code of Civil
Procedure, 1908 deals with the Execution of Decree. By initiating the process
of Execution, the Decree Holder has undertaken steps to realise the fruits of
the Decree, so as to say recover the sums due from the Judgement Debtor.

Who can apply for Execution

The process of execution is meant and provided for the purpose of ensuring
that an aggrieved party, that has received a favourable order, is able to get
what has been rightfully awarded as theirs.

 Decree Holder
 In the event Decree Holder is dead, Legal Representative of Decree
Holder
 Any person claiming under the Decree Holder

Execution: How and When can a petition for execution be filed

In order to proceed for execution of a decree, the first and foremost step that
the Decree Holder has to do is to file a written application before the Court

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which has passed the Decree or the Court to which the Decree has been sent
for Execution. Until and unless there is a stay on the execution proceedings by
the Appellate Court, the Decree Holder can prefer the application for execution
of Decree anytime after the Decree is obtained.

While the Decree Holder can file this application for execution of Decree
anytime after the Decree is passed, however, there is a limitation of 12 years
from the date it is passed within which the Decree Holder or its Legal
Representative can prefer such application.

Steps of Execution

1. Decree Holder has to file a written application seeking execution of

decree with the court which has passed the Decree or the Court to
which it is transferred. The Execution Application must contain some
essential ingredients like suit number, amount to be recovered from the
Judgment Debtor, interest computed on the outstanding amount, mode
of execution, and any other assistance that is required;
2. Upon the application being accepted, a notice is issued on the
Judgement Debtor in terms of Rule 22 of the Code of Civil Procedure,
1908. Under this notice, an opportunity is provided to the Judgement
Debtor to appear before the Court executing the Decree;
3. In the event, even after the receipt of the notice, if the Judgement
Debtor fails to appear before the Court, the Court at the request of the
Decree Holder may proceed to issue a warrant for attachment of
movable/immovable property of the Judgement Debtor or issue notice
for the arrest of the Judgement Debtor;
4. The Court Bailiff upon the warrant being issued will attach this warrant
for attachment of property at the premises of the Judgement Debtor.
Thereafter, a period of two weeks is given to the Judgement Debtor to
come forward and pay the outstanding sums. If the Judgement Debtor
fails to come forward, the bailiff in consonance of the Decree Holder will
proceed to take steps for sale of the Immovable Property;
5. Once the sale is completed, the proceeds of the sale are given to the
Decree Holder to recover its outstanding dues. Upon the completion of
the entire process, the bailiff files a report with the Court executing the
Decree.

Conclusion

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Order 21 of the Code of Civil Procedure, 1908 gives an exhaustive, elaborate
and detailed process of the execution of the decree and also explains the
various modes of executing the decree before the court of law.

The above steps clearly clarify the procedure for Execution of Decree. It is
evidently clear from the above that the Execution is the final and conclusive
step of litigation and comes to end when the Decree Holder recovers his/her
outstanding sums. The legislature with the intent to protect the interest of the
Decree Holder has encapsulated these provisions in the law, which is like a
silver living for any Decree Holder.

Q Meaning Of Decree Holder and Judgement Debtor

Section 2(3) of the Code of Civil Procedure provides that a decree holder is a
person in whose favour a decree has been passed or an order capable of
execution has been made he/she is referred to as Decree Holder.
Accordingly,any decree passed in favour of a person who is not even a party to
the Suit shall also be considered as the Decree Holder under the Code.
Section 2(10) of the Code of Civil Procedure defines judgement debtor as any
person against whom a decree has been passed or an order capable of
execution has been made.

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