City Law College

LL.B. (3 Yrs.) III Semester

Subject - The Code of Civil Procedure
By Ishan Sir
Paper IV
UNIT 3

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Q1 Discuss the provision of Arrest Before Judgement.
Answer - 1

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The provisions are mandatory in nature and must be strictly complied with. They are not punitive in
character. The object of detention of judgment-debtors in a civil prison is twofold. On one hand, it enables
the decree-holder to realise the fruits of the decree passed in his favour; while on the other hand, it
protects the judgment-debtor who is not in a position to pay the dues for reasons beyond his control or is
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unable to pay[1]. Therefore, mere failure to pay the amount does not justify arrest and detention of the
judgment-debtor inasmuch as he cannot be held to have neglected to pay the amount to the
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decree-holder.

When Arrest And Detention May Be Ordered

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Where the decree is for the payment of money, it can be executed by arrest and detention of the
judgment debtor[2]. Likewise, in case of a decree for specific performance of contract or for injunction, a
judgment debtor can be arrested and detained. Again, where a decree is against a corporation, it can be
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executed with the leave of the court by detention in civil prison of its directors or other officers[3].

Who Cannot Be Arrested

As per the Civil Procedure Code, the following classes of persons cannot be arrested or detained in a
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civil prison:
● Judicial officers, while going to, presiding in or returning from their court;
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● A woman;
● The parties, their pleaders, mukhtars, revenue agents and recognised agents and their witnesses
acting in disobedience to a summons, while going to, or attending or returning from the court;
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● Members of legislative bodies;

● Any person or class of persons, whose arrest, according to the State Government, might be
attended with danger or inconvenience to the public;
● A judgment-debtor, where the decretal amount does not exceed rupees two thousand.
Power And Duty of The Court
The provisions relating to arrest and detention of the judgment-debtor protect and safeguard the interests
of the decree-holder. If the judgment-debtor has means to pay and still he refuses or neglects to honour
his obligations, he can be sent to civil prison. Mere omission to pay, however, cannot result in arrest or
detention of the judgment-debtor. Before ordering detention, the court must be satisfied that there was an
element of bad faith, “not mere omission to pay but an attitude of refusal on demand verging on demand
verging on disowning of the obligation under the decree”.

Substantive Provisions Section 55

Section 55 reads as follows:
Arrest and detention.-
A judgment debtor may be arrested in execution of a decree at any hour and on any day, and shall, as
soon as practicable, be brought before the Court, and his detention may be in the civil prison of the

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district in which the Court ordering the detention is situate, or where such civil prison does not afford
suitable accommodation, in any other place which the State Government may appoint for the detention of

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persons ordered by the Courts of such district to be detained:
Provided, firstly, that, for the purpose of making an arrest this section, no dwelling-house shall be entered
after sunset and before sunrise:

Provided, secondly, that no outer door of a dwelling house shall be broken open unless such

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dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access
thereto, but when the officer authorized to make the arrest has duly gained access to any
dwelling-house; he may break open the door of any room in which he has reason to believe the
judgment-debtor is to be found:
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Provided, thirdly that, if the room is in the occupancy of a woman who is not the judgment-debtor and
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who according to the customs of the country does not appear in public, the officer authorized to make
arrest shall give notice to her that she is at liberty to withdraw and after allowing a reasonable time for
her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of
making arrest:
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Provided, fourthly, that, where the decree in execution of which a judgment debtor is arrested, is a
decree for the payment of money and the judgment debtor pays the amount of the decree and the costs
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of the arrest to the officer arresting him, such officer shall at once release him.The State Government
may, by notification in the official gazette, declare that any person or class of persons whose arrest might
be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a
decree otherwise than in accordance with such procedure as may be prescribed by the State
Government in this behalf.
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Where a judgment debtor is arrested in execution of a decree for the payment of money and brought
before the Court, the Court shall inform him that he may apply to be declare an insolvent and that he may
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be discharged if he has not committed any act of bad faith regarding the subject of the application and if
he complies with the provisions of the law of insolvency for the time being in force.
Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes
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security, to the satisfaction of the Court, that he will within one month so apply and that he will appear,
when called upon, in any proceeding upon the application or upon the decree in execution of which he
was arrested, the Court may release him from arrest and if he fails so to apply and to appear, the Court
may either direct the security to be realised or commit him to the civil prison in the execution of the
decree.

Object of the section

The object of this section is to prevent the vexatious forms of resistance to execution proceedings which
constantly obstruct decree-holders in the execution of their decrees. But before a judgment-debtor can
be arrested this section governs his case and lays down certain limitations.

Applicability of this section

It has been provided by this section that a judgment-debtor may be arrested in execution of a decree at
any hour of the day and on any day of the month and shall as soon as practicable be brought before the
Court subject to the following limitations:
That no dwelling or house shall be entered after sunset and before sunrise.

That no outer door of a dwelling house shall be broken open unless such dwelling house is in the

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occupancy of the judgment-debtor and he refuses or in any way prevent access thereto, but when the
officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open

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the door of any room in which he has reason to believe judgment-debtor is to be found.

That if the room is in the actual occupation of a woman who is not the judgment-debtor and who
according to customs does not appear in public, the officer authorized to make arrest shall have to give a
notice to her that she is at liberty to withdraw and allow her reasonable opportunity to withdraw therefrom

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before entering into the room for the purpose of making arrest.

That if the decree is for the payment of money, no arrest shall be made if the judgment-debtor pays the
full decrial amount and the costs of the arrest to the officer arresting him.

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A woman is exempt from arrest under this section. A woman may, however, be detained in the civil
prison in execution of a decree for restitution of conjugal rights.
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Who May be arrested
The Civil Procedure Code does not prevent a judgment-debtor from being arrested a second time on
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account of the same decree where he has been released on the application of the judgment creditor. A
judgment-creditor has the option of enforcing his decree against the person or the property or both of the
judgment-debtor. It is otherwise, however, where the decree is against the property only. A
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judgment-debtor cannot be arrested and imprisoned separately for the default in the payment of each
installment. A person is not protected from arrest in the execution of decree, merely because his property
is in the hands of the receiver in insolvency.

Exemption from arrest of certain persons

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Clause (2) of this section is intended to cover the cases of certain persons or classes of persons whose
summary arrest might, as in the case of Railway Servants, be attended with danger or inconvenience to
the public in general. However, where a suit is brought against such a person, the fact that he could not
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be arrested in execution is not a ground for not passing a decree against him.

Court’s duty after the arrest of the judgment-debtor

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A Court executing a decree for money is bound to inform the judgment-debtor when he is brought under
arrest before it that he may apply to be declared an insolvent and that he might be discharged on
complying with the requirement of the law, but not on re-arrest after failing in insolvency proceedings.
This clause does not entitle the debtor to be declared an insolvent where his application does not comply
with the provisions of insolvency law. It is open beyond the time given to apply at subsequent due, to be
declared an insolvent on the strength of the permission previously given.

But if the application of a judgment-debtor to be declared an insolvent has been dismissed and he is
re-arrested in execution of decree against him he is not entitled to a release on expressing his
willingness to apply again to be declared an insolvent, so long as the bar of the previous dismissal is not
removed. Prior to the adjudication, the rights are unaffected. A person arrested and brought up before
the Court might be discharged on giving security and stating his intention to apply to be declared an
insolvent, but if he has been sent to prison, he can only be released under Section 58, he cannot obtain
his release from prison upon the mere admission of his subsequent petition of Insolvency under section
21 of the Provisional Insolvency Act.

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Q2 What do you mean by Temporary Injunction? Discuss the consequences of disobedience or breach
of contract?
Answer 2
Meaning:

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An Injunction is a judicial process whereby a party is required to do, or refrain from doing, any act. It is
the remedy in the form of an order of the court addressed to a person that either prohibits him from doing
or continues to do such an act. Thus, Injunction is a relief that (prevents or restricts from doing an act) or
(may include the order from doing any act for the purpose of prevention).
Kinds of Injunction: O
A temporary or interim injunction restrains a party temporarily from doing the specified act and can be
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granted only until the disposal of the suit or until the further order of the court. It is regulated under the
provisions of Order -XXXIX of CPC and may be granted at any stage of the suit.
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Permanent Injunction restrains a party forever from doing the specified act and can be granted only on
the merits at the conclusions of the trial after hearing both the parties to the suit. It is governed by
Section-38 to Sec-42 of the Specific Relief Act,1963.
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Injunction are also:

Preventive, prohibitive or restrictive i.e. when they prevent, prohibit, or restrain someone from doing
something; orMandatory i.e. when they compel, command or order a person to do something.
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Who may apply and against whom Injunction may be issued?

Both plaintiff and defendant may apply for Injunction against each other. An injunction may be issued
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only against a party and not against any stranger or a third party.
Grounds of Temporary Injunction:
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O39 R1 provides that Temporary Injunction may be granted by court:

● Property in dispute is in danger of being WASTED, DAMAGED or ALIENATED by any party to the
suit, or WRONGFULLY SOLD IN EXECUTION OF DECREE.
● Where defendant: THREATENS or INTENDS TO REMOVE or DISPOSE OF HIS PROPERTY
with a view to defraud creditors.
● Where defendant: THREATENS TO DISPOSSESS the plaintiff or otherwise CAUSE INJURY to
the plaintiff in RELATION TO THE PROPERTY IN DISPUTE
 ● Defendant is about to COMMIT BREACH OF PEACE OR CONTRACT OR OTHERWISE (Order
39 Rule 2).
● Where the court is of opinion that INTEREST OF JUSTICE, so required.

Conditions for granting Temporary Injunction:

Injunction is discretionary remedy and thus, before granting of the temporary injunction, the following
conditions are required to be satisfied:
1. Prima Facie Case is in the favour of the plaintiff and against the defendant.
2. Irreparable injury is likely to be caused to the plaintiff, which cannot be compensated for in terms

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of money.
3. Balance of convenience is in favour of the plaintiff and against the defendant.

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4. There is a bona fide dispute raised by the applicant and there is a probability of the applicant
being entitled to the relief claimed by him.
Thus, the burden is on the plaintiff praying for the relief. Mere proof of one of the above conditions does
not entitle a person to an order of temporary Injunction.

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Case- Dalpat Kumar vs Prahlad Singh and Ors.[1] the Apex Court, while considering the question of
balance of convenience observed that the court while exercising discretion in granting or refusing
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injunction should exercise sound judicial discretion and should attempt to weigh substantial mischief or
injury likely to be caused to the parties , and in the case of refusal of injunction should compare it with
that which is likely to be caused to the opposite party, if the injunction is granted.
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Circumstances where Injunction can be granted:
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The list below is not exhaustive but some of them are as follows:
● To maintain status -quo.
● Against transfer of property.
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● Disposal of goods.
● Making construction
● Affecting recovery of dues.
● Attachment of property.
● Appointing receiver or commission
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● Against Prosecution etc.

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Case: ManoharLal vs Seth HiraLal AIR 1962; SC held, even if case not covered on grounds of 0-39,
Temporary Injunction can be granted in exercise of Inherent Powers Under Section 151 of CPC.
Consequences of disobedience or breach of an injunction:
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O 39 Rule 2-A: If Rule 1 and Rule 2 of Order 39 are not complied then:
● Property of guilty be attached.
● Detention in civil prison not exceeding 3 months.
● Limit of attachment:
Not more than 1 year.
If disobedience or breach continues – Property may be sold.
Case: Ram Prasad Singh vs Subodh Prasad Singh[2] , it was held by the court that a person is liable
to be proceeded against O39, R2-A,CPC even if he was not personally a party to the suit provided he is
known to have been agent or servant of the defendant and to have violated the order of injunction in
spite of knowledge that there was such an order.

Ex-parte Injunction:
Rule 3 of O-39 requires that the applicant to issue a notice to the opposite party before an injunction is
granted. Though the court has the power to grant an ex-parte injunction without issuing a notice or
granting a hearing to the party, who will be affected by such order, the said power is to be exercised

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sparingly and under exceptional circumstances.
Case: Morgan Stanley vs. Kartick Das, (1994) 4 SCC 225 (241-242),

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The Supreme Court indicated the following factors which should weigh with a court in the grant
of an ex-parte Injunction:

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● Whether irreparable or serious mischief will be ensured to the plaintiff.
● Whether the refusal of an ex-parte injunction would involve greater injustice than grant of it would
involve.
● The court will also consider the time at which the plaintiff first had notice of the act complained of

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so that the making of an improper order against a party in his absence is prevented.
● The court will consider whether the plaintiff had acquiesced for some time and in such
circumstances, it will not grant an ex parte injunction.
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● General principles like prima facie case, balance of convenience and irreparable loss would also
be considered by the court.
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The above stated guidelines were followed in Union of India vs. Era Educational Trust, AIR 2000 SC
1573[3]
An order issuing or refusing to issue an Injunction is subject to appeal in view of Order-XLIII. Thus, any
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order passed in exercise of the powers in Rule 1 (including ex- parte orders) would be appealable as
indicated in order XLIII, Rule 1.
Revision against the order refusing to grant ex parte injunction, is not covered under clause (i) and (ii) of
second proviso of section-115. Refusal to exercise jurisdiction by the revisional court is proper i.e. No
revision is permissible in such a case.
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Discharge and variation of order of injunction:

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O-39 R4 lays down that any order for an injunction may be discharged or varied or set aside by the court
on an application made thereto by any party dissatisfied with such order.
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It is further provided that if an application for temporary Injunction, or in any affidavit supporting such
application, a party has knowingly made a false or misleading statement in relation to a particular matter
and the injunction was granted without giving notice to the opposite party, the court must vacate the
injunction unless for the reasons to be recorded, it considers that it is not necessary so to do in the
interests of justice. Moreover, if an order for an injunction has been passed after giving to a party an
opportunity of being heard, the order is not to be discharged, varied or set aside on the application of that
party, except where such discharge, variation or setting aside has been necessitated by a change in the
circumstances, or unless the court is satisfied that the order has caused undue hardship to that party.
Q3 When security for cost may be required from the plaintiff and what are the consequences of failure to
furnish security?
Answer 3

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Rule 1 of Order 25 of the Code of Civil Procedure 1908 (hereinafter as "CPC")2 in India provides for the
taking of security for the costs of the suit. It states that the court may, at any stage of the suit, order the

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plaintiff to give security for the payment of the costs of the defendant. This is at the discretion of the
court.3 This power may be exercised by the court on an application by a defendant or suo motu (on its
own motion).
In the following circumstances, however, the court shall make such order:4

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1. where the plaintiff resides outside India or where there are two or more plaintiffs and all of
them reside outside India; and
2. where the sole plaintiff or none of the plaintiffs has sufficient immovable property within
India other than the suit property.
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Rule 10 of Order 41 provides for taking of security for costs of appeal.5
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The object of the rule is to provide for the protection of the defendants in certain cases where, in the
event of success, they may have difficulty in realising their costs from the plaintiff.6 It is a discretionary
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power which can be exercised only in exceptional circumstances, where it is shown that the exercise of
power is necessary for the reasonable protection of the interests of the defendant.7
An order for security of costs may be passed by the court either suo motu (of its own motion) or on
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application of the defendant and must be a reasoned one. The provisions of this order apply even to a
minor plaintiff.8
If the security is not furnished within the time fixed or extended, the court shall dismiss the suit unless the
plaintiff or plaintiffs are permitted to withdraw therefrom.9 Sub-rule (2) of Rule 1 empowers the court to
restore the suit dismissed under sub-rule (1). The dismissal shall not, however, be set aside without
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giving notice to the defendant.10

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Grounds for Seeking Security for Costs:

Defendants usually seek security for costs when they have legitimate concerns about the plaintiff's ability
to pay the defendant's legal costs if the case is decided in the defendant's favor.
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Grounds for seeking security may include:

● Plaintiff's lack of financial resources.
● Plaintiff's residency in a foreign jurisdiction.
● Plaintiff's history of not paying legal costs in previous litigation.
Procedure for Seeking Security for Costs:
Application: The defendant files an application with the court seeking an order for the plaintiff to provide
security for costs.
Evidence: The defendant must provide evidence to support their application, demonstrating the grounds
for seeking security.
Notice to Plaintiff: The plaintiff is usually given an opportunity to respond to the application and provide
evidence regarding their financial position.
Court Hearing: The court may conduct a hearing to consider the application and any submissions from
both parties before making a decision.

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Forms of Security:

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The court may order the plaintiff to provide security for costs in various forms, including:
● Cash deposit into court.
● Bank guarantee or letter of credit.
● Insurance policy.

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● Undertaking from a third party to cover costs if the plaintiff fails to pay.
. Conditions and Amount of Security:

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The court has discretion to determine the amount of security required, taking into account factors such as
the complexity of the case, the potential costs involved, and the plaintiff's financial circumstances.
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The court may impose conditions on the security, such as the timing of payment and the circumstances
under which the security may be forfeited.
Consequences of Non-Compliance:
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If the plaintiff fails to provide the ordered security for costs within the specified time frame, their case may
be dismissed or stayed until they comply with the court's order.
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Failure to comply with a court order regarding security for costs may also result in adverse cost
consequences for the plaintiff.
Appeals and Review:
Parties aggrieved by a court's decision regarding security for costs may have the right to appeal or seek
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review of the decision through appropriate legal avenues.

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Legal Representation:
It's crucial for parties involved in civil litigation to seek legal advice and representation from experienced
attorneys familiar with the rules and procedures governing security for costs in their jurisdiction.
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Understanding the intricacies of security for costs and navigating the procedural requirements effectively
can help parties protect their interests and ensure fair and equitable outcomes in civil litigation.
Q4 Write a short note on Power of court to issue Commission.
Answer 4
The purpose of issuing commission by the court is to impart complete justice to the parties to the suit.
The power of issuing commission rests totally in the discretion of the judges[1]. By issuing a commission
in a particular case, the Court performs an in - depth investigation where the Court deems necessary.

Issuing of Commission can be made by the Court if it gets an application from the parties, stating the
necessity for the same or sue - moto.[2] Section 75 to 78 of the Code of Civil Procedure, 1908 speaks
about the discretionary power of the Civil Courts and Order 26 to issue commission for the furtherance of

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complete justice.[3] According to Section 75 of the Code of Civil Procedure, 1908, the court may issue a
commission for any of the following purposes:

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● Examination of witnesses
● Perform a local investigation
● For adjustment of accounts

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● To do a partition
● To hold investigation
● For conducting a sale
● For the performance of a ministerial act.[4]O
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1. Examination of witnesses
Issuing of commission for the purpose of examination of witnesses is guided by Sections 76 to 78 and by
Rules 1 - 8 of Order 26.[5] Generally the examination of witnesses is done in an open court. The
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evidence of the witnesses is examined by cross - examination and recorded in the presence of all.
However sometimes it may happen where the witness may not be able to come and appear in the court.
The reasons for the inability to come to the Court must be reasonable.
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The Court relaxes the rule of attendance in the Court and issues commission only if the Court finds that
the reason for non - attending the court is justified. The reasons for non - attendance of the witnesses
may be on the grounds of illness, or if the witness resides beyond the local limits of the jurisdiction of the
Court or any other reasons as the Court may; find sufficient. In the case of Paramhansa Ramkrishna v.
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Trimbak Rajaram, the court had issued a commission to record the evidence of the witness who was a
Parmahansa. Parmahansa are people who practice various religious rituals and practices and due to
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which they remain and roam around naked[7].

Similarly in the case of Vinayak Trading Co. v. Sham Sunder & Co., the court had issued a commission
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for the recording of the statement of the witness, as the court had apprehended danger to the life of the
witness if he becomes compelled to come to court.[8]
2. Perform a local investigation
This is covered by Rules 9 and 10 of Order 26 of the Code of Civil Procedure.[9] Courts can issue
commission where it finds that there is a need to:
To get a proper clarity regarding a matter in dispute; &
To get a proper valuation of the property in dispute if any, or if any damages or mesne profits is involved
in the claim of a suit, then finding the exact amount for the same.[10]
The main reason to conduct a local investigation by issuing a commission is to find out and obtain
evidence which would bring clarity and help the court in determining the case. The investigation is
performed where the evidences are of peculiar in nature and which can only be ascertained by visiting
and conducting an investigation at the spot.[11] In the case of Southern Command Military Engg.
Services Employees Coop. Credit Society v. V.K.K. Nambiar, the court had to issue a commission to find
out whether the tenants had really occupied the premises in dispute of the suit. This was a peculiar
situation which can only be ascertained by visiting the place and conducting investigation.

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3. Adjustment of accounts
Rules 11 and 12 of Order 26 of the Code of Civil Procedure, 1908 guide the action of conducting an

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investigation by the Court by issuing a commission to examine and for the adjustment of accounts.[13]
The Court issues gives necessary instructions to the commissioner and the reports provided by the
Commissioner shall then be deemed to be evidence in the Court.[14]
4. To do a partition

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This is guided by Rules 13 and 14 of Order 26 of Code of Civil Procedure, 1908.[15] In this case, the
Court issues a Commission when a preliminary decree of partition of an immovable property has been
passed by the Court. The duty of the Commission is to make the partition according to the guidelines

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provided by the decree. The Commissioner then divides the property into the required number of parts
and then allots the shares to the parties. After partitioning and allotting the parts of the property to the
rightful owners, the Commissioner prepares a report and provides it to the Court. After allotting, if any
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party objects or is unsatisfied with something, the Court hears their objections and passes a final
allotment decree.
5. To hold investigation
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Rule 10 - A of Order 26 of the Code of Civil Procedure, 1908 guides this cause of issuing a
commission.[17] When the Court finds that the issue of a case deals with any peculiar dispute which
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requires a scientific investigation and which cannot be successfully conducted in the Court premises, the
Court issues a commission to investigate into the matter and inquires into the matter.
6. To sell property
This is guided by Rule 10 - C of Order 26 of the Code of Civil Procedure, 1908.[18] The Court issues a
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commission when the Court requires selling a movable property on which the Court has custody and on
which a case is pending. The selling of the property becomes necessary if the property cannot be
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properly preserved or if the court deems the selling necessary in the interest of justice. The
Commissioner is directed to sell off the property and submit the report of the sale to the Court.
7. For the performance of a ministerial act
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The statute guiding this is Rule 10-B of the Code of Civil Procedure, 1908.[19] The Court issues a
Commission when a requirement of the performance of a ministerial act comes. Ministerial Acts
constitute works like accounting, calculation and works of the same nature. The ministerial acts do not
require the application of judicial mind and if done by the Court, it would lead to wastage of Court’s
precious time. The Court issues a commission who would perform all the ministerial acts as required and
after completion the Commissioner shall provide the report to the Court.[20] The Commissioner does not
perform any judicial acts and does only the ministerial acts for which the Commission had been issued
by the Court.[21]
 LL.B. (3 Yrs.) III Semester
The Code of Civil Procedure
Paper IV
UNIT 4

Q1 What is an Interpleader Suit? Refer to the Provision of Section and Order?

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Answer 1

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The terms of interpleader litigation are covered under Order 35, s. 88 of the CPC 1908. Ordinary actions
brought before the Hon'ble court usually involve two parties: the plaintiff and the defendant. However, the
interpleader suit differs from typical suits in which two defendants fight for a claim to a specific property,
debt, or chattel. Typically, the plaintiff in such claims has no real interest in the subject matter of the suit
and just wants to ensure that the property in dispute is returned to the rightful owner.

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Meaning of Interpleader Suit:
According to Halsbury's laws of England, "Where a person is under liability in respect of a debt or in
respect of any money, goods or chattels, and he is or expects to be sued for or in respect of the debt or
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money or those goods or chattels, by two or more persons making adverse claims thereto, he may apply
to the court for relief by way of interpleader."
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Object of Interpleader Suit:
The primary goal of initiating an interpleader suit is to have opposing defendants; assertions adjudicated.
It is a procedure in which the plaintiff summons the opposing claimants to appear in court and have their
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claims heard.
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Section 88:
This section talks about the essentials or conditions to file an interpleader suit. The below mentioned
essentials must be met in order to file an interpleader suit: Firstly, there has to be some liability, amount
of the money, or other movable or immovable property in conflict; Secondly, two or more individuals must
be trying to claim it detrimental to one another; Thirdly, the plaintiff doesn't really claim any interest in it
except the expenses or cost, and is willing to pay or give it to the right claimant; Fourthly, there shouldn't
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be any ongoing suit wherein the rival claimant's right can be enforced.
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Procedure laid down by order 35 of CPC: Order 35 of the CPC establishes the following procedure:
Order 35 established the following conditions that must be met by the plaintiff seeking to launch an
interpleader suit:
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Firstly, the plaintiff must state that, except on the charges or expenses, he has no interest in the matter
which is in dispute;

Secondly, the assertion made by the defendants individually; and thirdly, there shouldn't be any
collaboration between the plaintiff and any of the defendants. If any of the defendants files a suit against
the Plaintiff while the interpleader suit is pending, the suit will be stayed under s. 10 of the CPC which
talks about Res Sub-judice.
In Mangal Bhikaji Nagpase v. State of Maharashtra in the year of 1997, According to the Bombay High
Court, the plaintiff must declare that he has zero interest on the issue other than expenses and charges.

In Asaan Ali v. Sarada Charan Kastagir, the Calcutta HC held that for a suit to be an interpleader suit,
the applicant must be ready to give over the property to the claimant and have no financial interest in it;
nevertheless, if the applicant has a financial interest in the litigation, the suit will be dismissed once the
plaintiff's financial interest in the subject matter is discovered.

Procedure for Interpleader Suit

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The procedure to file an interpleader suit has been laid out in Order 35 of the Civil Procedure Code.

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The following additional facts must be stated in the plaint of an interpleader suit:
● The plaintiff claims no interest in the subject matter in dispute other than the charges and cost.
● The claims have been made by the defendants severally.
● There is no collusion between the plaintiff and any of the defendants.

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At the first hearing, the court may declare the plaintiff discharged from all liability, award him the cost and
dismiss him from the suit. And based on available evidence, the court may adjudicate the matter. In case
of lack of evidence, the court may frame issues and try them by making one of the claimants, the plaintiff,
in lieu of or in addition to the original plaintiff and shall proceed in the suit in an ordinary manner.
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The Person Who May Not Institute Interpleader Suit
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According to Rule 5 of Order 35 of the Civil Procedure Code:
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● An agent cannot sue his principal,

● A tenant cannot sue his landlord,
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for the purpose of compelling them to interplead.An exception to this general rule is that where the claim
is made through the principal or landlord, the agent or tenant may file an interpleader suit against their
principal or landlord, respectively.

Plaintiff:
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Unless the equity or efficiency of the case demands the presence of the plaintiff, the court may rule that
the plaintiff is absolved from all legal responsibilities, give him his costs, and discharge him from the
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claim at the first hearing itself.

Example:
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X is in possession of the property claimed by Y and Z adversely. X does not claim any interest in the
property and is ready to deliver it to the rightful owner he can file an interpleader suit.

Conclusion:
Finally, in light of the foregoing, it is obvious that an interpleader suit is genuinely between the
defendants. Except for the charges and fees that are acceptable to him under the law, the plaintiff has no
interest in the subject matter of the litigation.
Q2 Discuss provision relating to suit by or against government and requirement of issuance of notice
under section 80,CPC. What are the consequences of non-issuance of notice?
Answer 2
Section 79 to 82 and Order 27 of the Civil Procedure Code, 1908 lay down procedure where suits are
brought by or against the Government or Public officers. The provisions provides for the procedure only
not about rights and liabilities. Substantive right has to be find accordance with the provisions of the

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Constitution. These provisions gives no cause of action but only declares the mode of procedure when a
cause of action has arisen.

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Under Civil Procedure Code, 1908 Section deal with provisions of a substantive nature and lays down
general principles and Orders deals with procedure, manner and mode in which general principle can be
exercised. Similarly Section 79 to 82 provides for the general principles and Order 27 prescribe the
procedure in which general rules provided under Section 79 to 82 can be exercised.

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Name of party in Suit section 79
Section 79 of the Code provides that in a suit by or against the Government the authority to be named as
Plaintiff & Defendant in case of:

Central govt its Union of India &

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State Government its the State.
In Chief Conservator of Forests, Government of A.P. v. Collector, Supreme Court has observed that the
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requirement of provision contained in Section 79 CPC is not merely a procedural formality, but is
essentially a matter of substance and of considerable significance whereby the special provision as to
how the Central Government or the State Government may sue or be sued has been indicated, the
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authority to be named as plaintiff or defendant, as the case may be, shall be:

● In the case of a suit by or against the Central Government, the Union of India, and
● In the case of a suit by or against a State Government, the State.
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Notice under Section 80 of Civil Procedure Code, 1908:

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In suits between individuals and individuals, notice need not be given to the defendant by the plaintiff
before filing a suit but under Section 80 it is provided that notice has to be given in a suit against
Government or public officer in respect of any act purporting to be done by such public officer in his
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official capacity.

Section 80 of the Code provides that no suit shall be instituted against the Government or against a
public officer in respect of any act purporting to be done by such public office in his official capacity until
the expiration of two month next after notice in writing has been delivered to, or left at the office of:

● In case of the suit against the Central Govt., except where it relates to a railway, a Secretary to
that Govt;
 ● In the case of a suit against the Central Govt. where it relates to a railway, the General manager to
that railway;
● In the case of a suit against the Govt. of the State of Jammu and Kashmir, the Chief Secretary to
that Govt. or any other officer authorized by that Govt. in that behalf;
● In the case of a suit against any other state Govt.. a Secretary to that Govt. or the Collector of the
district; and
● In the case of a public officer, such public officer.Further it provides that with the permission of the
Court, a suit can be instituted without serving the notice where an urgent or immediate relief is
needed. Provided that the Court shall return the Plaint if found that there is no need of immediate
or urgent relief.

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The Section enumerates two types of case:

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● Suit against Government; and
● Suit against public officers in respect of acts done or purporting to be done by such public officers
in their official capacity.

The three essential requirements of S. 80 are:

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First, the addressee should be identified and must have received the communication;
Secondly, there should be no vagueness or indefiniteness about the person giving the notice, who must

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also be the person filing the suit and the notice must also give the details which are specified in S. 80;

Thirdly, the two months' time allowed must expire before the suit is laid. Once these requirements are
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fulfilled minor details like the misdescription of the person to whom the communication is addressed
should not make it an improper notice which does not comply with the requirements of S. 80, C.P.C
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Object of Notice:
Underlying object of section 80 is to provide:
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● An opportunity to the Government or public officer to consider the legal position and to settle the
claim forwarded by the prospective plaintiff if it appears to be just and proper.
● It is expected from the government, unlike private parties, to consider the matter objectively and
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make an appropriate decision in two months after obtaining proper legal advice. It saves public
money and time and is in public interest.
● The legislative intent behind this provision is that public money not be wasted for unnecessary
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litigation. The section guides the Government or a public officer to negotiate just claims and to
settle them if well‐founded without adopting an unreasonable attitude by inflicting wasteful
expenditure on public exchequer.
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Institution of Suit without Notice against govt. or Public officer:

Section 80(2) is in the nature of an exception to Section 80(1) and enables the plaintiff to file a suit to
obtain an urgent and immediate relief without serving any notice subject to the condition that such a suit
has to be filed with leave of the Court. The most important condition envisaged under Section 80(2) is
relating to urgency in the matter.
Where the Court is satisfied that urgent immediate relief is required and the plaintiff would not be in a
position to wail for the period of notice to expire, leave may be granted to a plaintiff to file suit against the
 State without service of notice contemplated under Section 80(1). Even in such cases where leave is
granted.
Himachal Steel Rerollers and Fabrication v. Union of India, AIR 1988 All 191. A plaintiff intending to
institute a suit against the Govt. has two options before him, either he may file a suit after serving two
months' notice under Section 80 C.P.C. or he may file the suit without serving the notice but in that event
he must satisfy the court that an urgent and immediate relief is required and also obtain previous leave of
the court.
Technical defect or error in notice: Section 80(3):
Section 80(3) provides that no suit instituted against the Govt. or Public officer shall be dismissed merely

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on ground of error or defect in the notice, if, in such, the name, description and residence of the plaintiff
had been so given as to enable the authority or public officer to identify the person serving the notice and

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such notice had been delivered or left at the office of the authority or public officer and the cause of
action and the relief claimed by the plaintiff had been substantially indicated therein.

State of A.P v. Gundugola Venkata, AIR 1965 SC 11 notice under section 80 cannot be held to be
invalid and no suit can be dismissed on the grounds that there has been a certain technical defect or

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error in the notice delivered or on the ground that such notice was served in an improper way.

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Q3 Can an indigent person file a suit under C.P.C.? Write the procedure in detail.
Answer 3
Order 33 provides for filing of suits by indigent persons. It enables persons who are too poor to pay
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court-fees and allows them to institute suits without payment or requisite court fees.
Object
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The provisions of Order 33 are intended to enable indigent persons to institute and prosecute
suits without payment of any court fees. Generally, a plaintiff suing in a court of law is bound to pay
court fees prescribed under the Court Fees Act at the time of presentation of plaint. But a person may
be too poor to pay the requisite court-fee. This order exempts such person from paying the court-fee
at the first instance and allows him to prosecute his suit in forma pauperis, provided he satisfies
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certain conditions laid down in this order.

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(a) Indigent person: Meaning: Order 33 Rule 1

A person is an “indigent person” (i) if he is not possessed of sufficient means to enable him to pay
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the fee prescribed by law for the plaint in such suit; or (ii) where not such fee is prescribed, when he
is not entitled to property worth one thousand rupees. In both the cases, the property exempt from
attachment in execution of a decree and the subject-matter of the suit should be excluded.
Explanation II enacts that the property acquired by the applicant after the presentation of the
application for permission to sue as an indigent person and the decisions thereon should also be
taken into consideration for deciding the question whether the application is an indigent person.
The word “person” includes juristic person.
(b) Contents of application: Rule 2

Every application for permission to sue as an indigent person should contain the
following particulars:
(1) The particulars required in regard to plaints in suits;
(2) A schedule of any movable or immovable property belonging to the
applicant with the estimated value thereof; and
(3) Signature and verification as provided in Order 6, Rules 14 and 15.

The application should be presented by the applicant to the court in person unless exempted

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by the court. Where there are two or more plaintiffs, it can be presented by any of them. The suit
commences from the moment an application to sue in forma pauperis is presented.

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(c) Rejection of application: Rule 5

The court will reject an application for permission to sue as an indigent person in the
following cases:

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(i) Where the application is not framed and presented in the prescribed manner; or
(ii) Where the application is not an indigent person; or
(iii) Where the applicant has, within two months before the presentation of the application,
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disposed of any property fraudulently or in order to get permission to sue as an indigent
person; or where there is no cause of action; or
(iv) Where the applicant has entered into an agreement with reference to the subject-matter of
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the suit under which another person has obtained interest; or
(v) Where the suit appears to be barred by law; or
(vi) Where any other person has entered into an agreement with the applicant to finance costs
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of the litigation.
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(d) Inquiry : Rule 1-A

In the first instance, an inquiry into the means of the applicant should be made by the Chief
Ministerial Officer of the court. The court may adopt the report submitted by such officer or may itself
make an inquiry.
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Where the application submitted by the applicant is in proper form and is duly represented, the
court may examine the applicant regarding the merits of the claim and the property of the applicant.
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The court shall then issue notice to the opposite party and to the Government Pleader and fix a day
for receiving evidence as the applicant may adduce in proof of his indigency or in disproof thereof by
the opposite party or by the Government Pleader. On the day fixed, the court shall examine the
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witnesses (if any), produced by either party, hear their arguments and either allow or reject the
application.
(h) Where permission is rejected: Rules 15 to 15-A

Where the court rejects an application to sue as an indigent person, it will grant time to the
application to pay court fees. An order refusing to allow an applicant to sue as an indigent person
shall be a bar to a subsequent similar application. However, this does not debar him from suing in an
 ordinary manner, provided he pays the costs incurred by the Government Pleader and the opposite
party in opposing the application.

(i) Revocation of permission: Rule 9

The Court may, on an application by the defendant or by the Government Pleader, revoke
permission granted to the plaintiff to sue as an indigent person in the following caes:
(i) Where he is guilty of vexatious or improper conduct in the course of the suit; or
(ii) Where his means are such that he ought not to continue to sue as an indigent person; or
(iii) Where he has entered into an agreement under which another person has obtained an

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interest in the subject-matter of the suit.
(j) Realization of court-fees: Rule 14

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Where an indigent person succeeds in a suit, the State Government can recover court fees
from the party as per the direction in the decree and it will be the first charge on the
subject-matter of the suit. Where an indigent person fails in the suit, the court-fees shall be
paid by him. Where the suit abates on account of the death of a plaintiff, such court fees

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would be recovered from the estate of the deceased plaintiff.

(k) Appeals by indigent persons: Order 44

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A person unable to pay court fees on memorandum of appeal may apply to allow him to appeal
as an indigent person. The necessary inquiry as prescribed in Order 33 will be made before
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granting or refusing the prayer. But where the appellant was allowed to sue as an indigent
person in the trial court, no fresh inquiry will be necessary if he files an affidavit that he continues
to be an indigent person.
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