Date and Time: 26 March 2020 13:57:00 IST

Job Number: 113303272

Documents (45)

1. PRELIMINARY
Client/Matter: -None-
2. Jurisdiction of the Courts and Res Judicata 1 of 5
Client/Matter: -None-
3. Jurisdiction of the Courts and Res Judicata 2 of 5
Client/Matter: -None-
4. Jurisdiction of the Courts and Res Judicata 3 of 5
Client/Matter: -None-
5. Jurisdiction of the Courts and Res Judicata 4 of 5
Client/Matter: -None-
6. Jurisdiction of the Courts and Res Judicata 5 of 5
Client/Matter: -None-
7. Place of Suing 1 of 2
Client/Matter: -None-
8. Place of Suing 2 of 2
Client/Matter: -None-
9. Institution of Suits
Client/Matter: -None-
10. Summons and Discovery
Client/Matter: -None-
11. Judgment and Decree
Client/Matter: -None-
12. Interest
Client/Matter: -None-
13. Costs
Client/Matter: -None-
14. General
Client/Matter: -None-
15. Courts by which Decrees may be Executed
Client/Matter: -None-
16. Questions to be Determined by Court Executing Decree.
Client/Matter: -None-
17. Limit of time for Execution
Client/Matter: -None-
18. Transferees and Legal Representatives
Client/Matter: -None-
19. Procedure in Execution

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 Client/Matter: -None-
20. Arrest and Detention
Client/Matter: -None-
21. Attachment
Client/Matter: -None-
22. Sale
Client/Matter: -None-
23. Resistance to Execution
Client/Matter: -None-
24. Distribution of Assets
Client/Matter: -None-
25. Commissions
Client/Matter: -None-
26. Suits by or against the Government or Pubic
Client/Matter: -None-
27. Suits by Aliens and by or against Foreign Rulers, Ambassadors and Envoys
Client/Matter: -None-
28. Suits against Rulers of Former Indian
Client/Matter: -None-
29. Interpleader
Client/Matter: -None-
30. ARBITRATION
Client/Matter: -None-
31. SPECIAL CASE
Client/Matter: -None-
32. Public Nuisances and other Wrongful Acts Affecting the Public
Client/Matter: -None-
33. Part VI Supplemental Proceedings
Client/Matter: -None-
34. Appeals from Original Decrees
Client/Matter: -None-
35. Appeals from Appellate Decrees
Client/Matter: -None-
36. Appeals from Orders
Client/Matter: -None-
37. General Provisions Relating to Appeals
Client/Matter: -None-
38. Appeals to the Supreme Court
Client/Matter: -None-
39. Part VIII Reference, Review and Revision
Client/Matter: -None-
40. PART IX SPECIAL PROVISIONS RELATING TO THE HIGH COURTS [NOT BEING THE COURT OF A
JUDICIAL COMMISSIONER]
Client/Matter: -None-

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41. PART X Rules
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42. Part XI Miscellaneous 1 of 2
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43. Part XI Miscellaneous 2 of 2
Client/Matter: -None-
44. ANNEXURE-1 THE CODE OF CIVIL PROCEDURE(AMENDMENT) ACT, 1999(46 OF 1999)
Client/Matter: -None-
45. ANNEXURE-2 THE CODE OF CIVIL PROCEDURE (AMENDMENT) ACT, 2002(22 OF 2002)
Client/Matter: -None-

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 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1

The Code of Civil Procedure

Act V of 1908

Received the assent of the Governor-General

21 March 1908

An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil
Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the
Courts of Civil Judicature; it is hereby enacted as follows:

Preliminary

S. 1. Short Title, Commencement and Extent.

(1) This Act may be cited as the Code of Civil Procedure, 1908.
(2) It shall come into force on the first day of January, 1909.
1 [(3) It extends to the whole of India except
(a) the State of Jammu and Kashmir;
(b) the State of Nagaland and the tribal areas:

Provided that the State Government concerned may, by notification in the

Official Gazette, extend the provisions of this Code or any of them to the
whole or part of the State of Nagaland or such tribal areas, as the case may
be, with such supplemental, incidental or consequential modifications as may
be specified in the notification.

Explanation. In this clause,tribal areas means the territories which,

immediately before the 21st day of January 1972, were included in the tribal
areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the
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Constitution.

(4) In relation to the Amindivi Islands and the East Godavari, West Godavari and
Vishakapatnam Agencies in the State of Andhra Pradesh and the Union territory of
Lakshadweep, the application of this Code shall be without prejudice to the
application of any rule or regulation for the time being in force in such Islands,
Agencies or such Union Territory, as the case may be, relating to the application of
this Code].

1. Previous Procedure. The first Code of Civil Procedure was Act 8 of 1859. Prior to that, the
procedure of the mofussil courts was regulated by special Acts and Regulations repealed by
Act 10 of 1861; and the procedure of the Supreme Courts was under their own rules and
orders and certain Act s, for example Act 17 of 1852 and Act 6 of 1854. The Code of 1859
applied to mofussil courts only. In 1862, the Supreme Court and the Courts of Sadder
Diwani Adalat in the Presidency towns were abolished by the High Courts Act, 1861 (24
and 25 Vic C 104) and the powers of those courts were vested in the chartered High
Courts. The Letters Patent of 1862 establishing the High Courts extended to them the
procedure of the Code of Civil Procedure 1859. The Charters of 1865, which empowered the
High Courts to make rules and orders regulating proceedings in civil cases required them
to be guided as far as possible by the provisions of the Code of 1859 and subsequent
Amending Act s.

Such Amending Acts were: Act 4 of 1860; 43 of 1860; 23 of 1861; 9 of 1863; 20 of 1867; 7
of 1870; 14 of 1870; 9 of 1871; 32 of 1871; and 7 of 1872.

The next Code was Act 10 of 1877, which repealed that of 1859. This was amended by Act
s 18 of 1878 and 12 of 1879; then superseded by the Code of 1882 (Act 14 of 1882). This
was amended by Acts 15 of 1882; 14 of 1885; 4 of 1886; 10 of 1886; 7 of 1887; 8 of 1887;
7 of 1888; 10 of 1888; 13 of 1889; 8 of 1890; 6 of 1892; 5 of 1894; 7 of 1895 and 13 of
1895, and then superseded by the present Code of Civil Procedure.

After that, there have been two important Amending Act s, Act 2 of 1951 and Act 66 of
1956 which mainly carried out certain changes necessitated by certain provisions of the
Constitution of India and the reorganization of certain States. In 1976, the Parliament enacted
the Civil Procedure (Amendment) Act 104 of 1976, which has carried out drastic changes
both in the sections and the rules. The Act received the assent of the President on the 9
September 1976. In exercise of powers conferred by sub-s (2) of s 1, the Central
Government issued a Notification, GSR 15 (E) dated the 14 January 1977, which
appointed 1 February 1977 as the date on which the provisions of the new Act except ss
12, 13 and 50 would come into force and 1 May 1977, as the date when ss 12 and 50 would
come into force. A notification GSR 416 (E) dated 27 June 1977, fixed 1 July 1977 as the
date when s 13 would come into force.
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Since then there have been two very important Amending Acts, the Code of Civil Procedure
(Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002. Infact the
Code of Civil Procedure (Amendment) Act, 1999 was passed by the Parliament inserting
various amendments for speedy disposal and curtailing delays at various stages of the suit
and appeals. These drastic changes made did not find favour with majority of bar
associations who were of the opinion that due to these rigorous changes the litigants
would suffer injustice. Before the act ion for enforcement of Code of Civil Procedure
(Amendment) Act, 1999 could be taken, various representations were received and the Bar
Council of India and various bar associations requested the government to reconsider the
provisions of the Code of Civil Procedure (Amendment) Act, 1999. The matter was
reconsidered and after consulting all concerned, the Code of Civil Procedure was further
amended vide Code of Civil Procedure (Amendment) Act, 2002 and the effects of drastic
changes made in the Code of Civil Procedure (Amendment) Act, 1999 were diluted.

In exercise of the powers conferred by sub-s (2) of s 1 of the Code of Civil Procedure
(Amendment) Act, 1999 (46 of 1999), the Central Government appointed the 1st day of
July 2002, as the date on which all provisions [except cl (iii) of s 16, cl (iii) of s 18 so far as
it relates to rr 9 and 10 of O VIII of the First Schedule to the Code of Civil Procedure 1908 (5
of 1908) and s 30 ] of the said Act came into force vide SO 603(E), dated 6 June 2002,
published in the Gazette of India, Pt II, s 3 (ii), dated 6 June 2002. Further, vide SO
604(E), dated 6 June 2002, published in the Gazette of India, Pt II, s 3 (ii), dated 6 June
2002, in exercise of the powers conferred by sub-s (2) of s 1 of the Code of Civil Procedure
(Amendment) Act, 2002 (22 of 2002), the Central Government appointed 1 day of July
2002, as the date on which the provisions of the said Act came into force.

2. Consolidate and Amend. Since the object of the Act, as stated in the preamble is both
to consolidate and amend, the Act has to be construed as forming a Code, exhaustive of
the matters dealt with therein.1 To consolidate a law means to collect the statutory law
relating to a particular subject and to bring it down to date in order that it may form a
useful Code applicable to the circumstances existing at the time when the consolidation
Act is enacted.2 The provisions of the Act have accordingly to be construed with reference
to the circumstances existing at the time of its enactment.3 If the language is plain and
unambiguous, resort need not be had to the earlier law; but if it is capable of more than
one meaning, it is permissible to refer to the previous state of law to fix the meaning of the
provision under construction.4 This is so because a consolidating Act raises the
presumption that it does not intend to alter the earlier law.5 Yet, the House of Lords spelt
out a change in the law from the Companies Consolidation Act, 1908 and one of the Law
Lords refused to look into the history of the clauses of the Act.6 The better view, however,
seems to be that when substantial changes have been made, the previous Acts may be
looked into in order to find out whether a different construction is required on the same
word in different provisions.7 Since the Code of Civil Procedure is both, a consolidating and an
amending enactment, where it plainly amends, resort cannot be had to the earlier law.
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It has been observed by the Patna High Court that CPC is a complete code in itself. Once
proceedings are initiated under the Code, rights and remedies have to be looked
thereunder. All other manner and/or procedure are impliedly prohibited.8

3. Interpretation of the Act. A statute is an edict of the Legislature. The language

employed in a statute is the determinative factor of legislative intent. The first and primary
rule of construction is that the intention of the legislature must be found in the words used
by the Legislature itself.9 In RMD Chamarbaugwala v. Union of India,10 the Supreme Court
observed that a statute is to be construed according to the intention of them that make it.
The duty of the judicature is to act upon the true intention of the Legislaturethe mens or
sententia legis.11

If a statutory provision is open to more than one interpretation, the court has to choose
that interpretation which represents the true intention of the Legislature.12

The task is often not an easy one and the difficulties arise because of various reasons. To
mention a few of them: words in any language are not scientific symbols having any
precise or definite meaning, and language is but an imperfect medium to convey ones
thought, much less of a large assembly consisting of various shades of opinion.13

The Supreme Court explained it thus:

The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the
language can be approached for clarification, the legislature cannot be approached as the Legislature, after enacting a law or Act,
becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it.14

Quoting Frankfurther with approval, Pasayat, J., observed in State of Jharkhand v. Govind
Singh,15 as follows:

Where, however, the words were clear, there is no ambiguity and the intention of the Legislature is clearly conveyed, there is no scope
for the Court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the Judges
should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to remember
that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be
vouchsafed by an alert recognition of the necessity not to cross it an instinctive, as well as trained reluctance to do so.

The courts are therefore, held as finishers, refiners, and polishers of legislatures which give
them in a state requiring varying degrees of further processing.16 However, it must be
borne in mind that it is impossible even for the most imaginative legislature to forestall
exhaustively situations and circumstances that may emerge after enacting a statute where
its application may be called for. It is in such a situation the Courts duty to expound arises
with a caution that the Court should not try to legislate.17
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The process of construction, therefore, combines both literal and purposive approaches.
In other words, the legislative intention, i.e., the true or legal meaning of an enactment is
derived by considering the meaning of the words used in the enactment in the light of the
discernible purpose or object which comprehends the mischief and its remedy to which
the enactment is directed.18

The following are some of the leading rules for the construction of statutes:

(a) Literal and Grammatical Construction. The golden rule for the interpretation of this as well
as other Acts is to consider the plain meaning of the words used.19 The courts function is
not to say what the legislature meant but to ascertain what the legislature has said it
meant.20

The court cannot proceed on the assumption that the legislature has made a mistake. Even
if there is a defect, it is not for the court to add to or amend the words of a statute or to
supply a casus omissus. That is for the legislature.21 It is always dangerous to paraphrase an
Act.22 When the language is clear, it is the duty of the court to give effect to it23 without
calling in aid outside considerations to ascertain the intentions of the legislature.24 Statutory
provisions cannot be whittled down by general principles of equity, justice and good
conscience.25 Nor can they be avoided on the ground of hardship or inconvenience when
the meaning is clear on the face of the statute;26 nor is the court concerned with the motive
of Parliament in enacting the statute27 or its wisdom.28 It is also well-settled that the true
import of provisions which are explicit cannot be limited or controlled by recourse to what
is said to be the spirit of the legislation.29

Where, however, the language of a provision is of doubtful import, that which advances
the object of the statute30 or its validity has to be preferred.31 It is then permissible to call
in aid the well-settled rules of construction and in particular, the history of the legislation,
the mischief intended to be remedied, the scheme of the Act and the consequences which
may flow from accepting one or the other of the interpretations, since no legislative body
is presumed to confer a power which is capable of misuse.32 When two constructions are
possible, the one which makes the provision legal33 or which avoids injustice,34 or
absurdity,35 is to be preferred. In interpreting the provision of a statute, that construction
should be adopted which would give effect to all parts thereof and would not render any
of them meaningless or inoperative.36 It is not a sound principle of construction to brush
aside words in a statute as being inapposite surplussage if they can have appropriate
application in circumstances conceivably within the statute.37

(b) Logical Construction. While the duty of the court is to ascertain the intention of the
legislature from the words act ually used, it does not mean that the decision should rest on
a literal interpretation of the words used in disregard of all other materials, to arrive at the
real meaning. It would be legitimate to consider what was the law before the Act was
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passed and what was the mischief or defect for which the law had not provided and what
remedy the Parliament had appointed and the reasons for the remedy.38 The grammatical
construction of the words cannot always be treated as invariable and it must yield to the
context when that is required.39

(c) Harmonious Construction. The Code of Civil Procedure 1908 is one continuous whole, the
sections being enacted simultaneously;40 and therefore, in order to ascertain the true
legislative intent, the words and phrases are to be taken, not in an isolated and detached
manner dissociated from the context, but are to be read together and construed in the light
of the purpose and object of the Act itself.41 Hence, when two procedures or two remedies
are provided, one of them is not to be construed as in derogation of the other,42 and that
construction should be adopted which would give effect to all the provisions.43 The sub-
sections of a section must be read as parts of an integral whole and as interdependent, and
that construction should be adopted which would reconcile them and avoid repugnancy.44

As aptly observed, it should not be lightly assumed that Parliament had given with one
hand what it took away with the other.45 Venkatarama Aiyar, J., put it thus: The rule of
construction is well settled that when there are in an enactment two provisions which
cannot be reconciled with each other, they should be so interpreted that, if possible, effect
should be given to both. This is known as the rule of harmonious construction.46 It is a
cardinal principle of construction of a statute that effort should be made in construing the
different provisions so that each provision will have its play and in the event of any
conflict a harmonious construction should be given.47

(d) Liberal Construction of Procedure Codes. Procedure is mere machinery and its object is to
facilitate and not to obstruct the administration of justice.48 The Code of Civil Procedure
should therefore, be considered liberally and, as far as possible, technical objections should
not be allowed to defeat substantial justice.49 A technical construction of sections that
leaves no room for reasonable elasticity of interpretation should be guarded against.50 No
defence should be excluded except where to do so would be to negative the provision of a
rule of procedure. It is no longer the province of procedure to exclude defences.51 The
Code of Civil Procedure is a body of general law, designed to facilitate justice. It should not be
treated as an enactment providing for punishment and penalties. The law of justice should
be so constructed as to render justice where reasonably possible.52

A construction which reduces the statute to a futility has to be avoided. A statute or any
enacting provision therein must be so construed as to make it effective and operative on
the principle expressed in the maxim ut res magis valeat quam pereat, i.e., a liberal construction
should be put upon written instruments, so as to uphold them, if possible, and carry into
effect the intention of the parties.53

(e) Associated Words. When one or more words which are susceptible of analogous meaning
are coupled together noscitur a sociis, they are understood to be used in their cognate sense
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and accordingly, the more general is restricted to a sense analogous to the less general;54
but this rule of construction cannot be invoked where the intention of the legislature is
clear and unambiguous.55 Where general words follow particular and specific words of the
same nature, the general words must be confined to things of the same kind as those
specified.56

(f) Legal Fiction. Legal fiction is a statutory creation which helps assume the existence of a
fact or taking place of an event which neither exists in reality nor has actually happened.
According to dictionary meaning, a legal fiction presupposes the correctness of the state of
facts on which it is based and all the consequences which flow from that state of facts have
to be worked out to their logical conclusion.57 When a statute enacts that something shall
be deemed to have been done, which in fact and in truth was not done, the court is entitled
and bound to ascertain for what purposes and between what person the statutory fiction is
to be resorted to.58 Further, the Court is to assume all those facts and consequences which
are incidental or inevitable corollaries to the giving effect to the fiction.59 The Supreme
Court has held that the Legislature is quite competent to create a legal fiction, in other
words to enact a deeming provision for the purpose of assuming the existence of a fact
which does not really exist.60

In State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory,61 S.R. Das, J. (as he than
was) expressed the view that a thoughtful effect must be given to the legal fiction, it should
not be extended beyond the purpose for which it is created. Later on he re-affirmed the
above view, as Act ing C.J., in Bengal Immunity Co. Ltd. v. State of Bihar,62 wherein he stated
that legal fictions are created only for some definite purpose, and proceeded to add that a
legal fiction is to be limited to the purpose for which it was created and should not be
extended beyond that legitimate field.

The general rule is that a legal fiction cannot be extended beyond the specific purpose for
which it is enacted; but in construing its scope, it will be proper and even necessary to
assume all those facts on which alone the legal fiction can operate.63

(g) Judicial Precedents. In procedure, uniformity of decision is important,64 and if a judge finds
a principle laid down by competent authority, it is better to apply it even if his own mind is
not satisfied, than to fritter it away in its application to cases which manifestly come within
it.65 This rule, however, will not apply in case of conflicting decision of Benches of equal
jurisdiction.66 It has been observed by the Supreme Court that in cases of conflict among
Bench decisions of the same court, the better course for the Bench hearing the case is to
refer the question to a Full Bench.67

(h) Proceedings of the Legislature. The proceedings of the legislature in passing an Act are to be
excluded in the consideration of the judicial construction of the Act. That was laid down
by the Privy Council in Administrator General v. Premlal Mullick,68 and also by the Supreme
Court in Ashvini Kumar’s case.69 These proceedings include reports of the select committee,
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statements of objects and reasons attached to bills and debates of the legislature.70 Thus,
the report of the Law Commissioner on which the Indian Penal Code 1860 was based was
held to be inadmissible for construing its provisions, though valuable as a piece of
history.71 It has, however, been held by the federal court that the White Paper and the
report of the joint select committee on which the Government of India Act, 1935, was
based could be referred to as the historical facts in construing Item 48 of List II of the said
Act.72 It has likewise been held that the report of the drafting committee of the
Constituent Assembly may be referred to when there is ambiguity in the meaning of the
article in the Constitution of India, but it cannot be read so as to control its meaning.73

Statements of Objects and Reasons are inadmissible for construing the plain words of a
statute;74 but it has been observed that they may be used for the limited purpose of
ascertaining the conditions which prevailed at the time of passing the legislation.75
Speeches made by members in the course of debates cannot be used for interpreting a
statute.76 Acceptance or rejection of amendments to a Bill is not admissible as forming
history of legislation77 nor can the fact of deletion of a word from the provisions of the Bill
in the course of the debates be relied on as an aid in the construction of the statute as
enacted.78

(i) Parts of the Statutepreamble. The preamble of a statute serves as a key to open the minds of
its makers and shows the general purposes for which they enacted its several provisions.79
It can be properly resorted to where doubts and ambiguities arise upon the words of the
enacting part80 and to expound in such a case, the nature, extent and application of powers
actually conferred, though it cannot be construed as substantively creating them.81 But,
where the language of the enactment is clear, the preamble cannot be used to cut down or
limit its operation.82 Likewise, the long title of an enactment cannot be used for restricting
the plain terms of an enactment,83 though it might throw light on the intent and design of
the legislature and the scope and purpose of the legislation.84 Headings prefixed to sections
are regarded as preambles to those sections and cannot control the plain words of the
statute, but they can be referred to for resolving doubts where the words of the enactment
are ambiguous.85

According to Sir John Nicholl: It is to preamble more specially that we are to look for the
reason or spirit of every statute, rehearsing this, as it ordinarily does, the evil sought to be
remedied, or the doubts purported to be removed by the statute, and so evidencing, in the
best and most satisfactory manner, the object or intention of the Legislature in making or
passing the statute itself.86 In the Sussex Peerage case,87 Tindal, C.J., while delivering the
opinion of the Judicial Committee of the House of Lords, stated as follows:

If any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention to call in
aid the ground and cause of making the statute, and to have recourse to the preamble. . .
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In the well-known case of Smith v. Hughes,88 Lord Parker, C.J., held that prostitutes who
attracted the attention of passers-by from balconies or windows were soliciting in a street
within the meaning of the Street Offences Act, 1959. It was stated (at p. 832): For my part,
I approach the matter by considering what is the mischief aimed at by this Act. Everybody
knows that this was an Act intended to clean up the streets, to enable people to walk along
the streets without being molested or solicited by common prostitutes. It was pointed out
that if the Act was intended to clean up the streets, the precise place from which a
prostitute addressed her solicitations to somebody walking in the street became irrelevant.

The words of a statute, when there is doubt about their meaning, are to be understood in
the sense in which they best harmonise with the subject of the enactment. According to
Maxwell, their meaning is found not so much in a strict grammatical or etymological
propriety of language, nor even in its popular use, as in the subject, or in the occasion on
which they are used and the object to be attained.89

Referring to the question as to how far the enacting provisions are controlled or restricted
by the Preamble, Lord Normand observed:

There may be no exact correspondence between preamble and the enactment, and the enactment may go beyond, or it may fall short
of, the indications that may be gathered from the preamble. Again the preamble cannot be of much, or any assistance in construing
provisions which embody qualifications or exceptions from the operation of the general purpose of the Act. It is only when it conveys a
clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately
prevail.1

N. Rajagopala Ayyangar, J., speaking for the three-Judge Bench of the Supreme Court
observed as follows:

The preamble may, no doubt, be used to solve any ambiguity or to fix the meaning of words which may have more than one meaning,
but it can, however, not be used to eliminate as redundant or unintended, the operative provisions of a statute.2

Marginal Notes. Marginal notes to the sections of an Act are not to be referred to for the
purpose of construing the Act.3

Illustrations. Illustrations in Acts of legislature, although not part of the sections, are helpful
in the working and application of the Act s, and it is the duty of the court of law to accept
them if they can be done as being both relevant and of value in the construction of the
text. The illustrations should, in no case, be rejected because they do not square with the
ideas possibly derived from another system of jurisprudence as to the law with which the
sections deal; and it would require a very special case to warrant their rejection on the
ground of their assumed repugnancy to the sections themselves. It is not to be readily
assumed that an illustration to a section is repugnant to it and rejected.4 Infact, it would be
the very last resort of construction to make any such assumption.5 An illustration can be
used, unless it goes beyond the clear language of the section, as in an explanation of it;6
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but, it cannot be allowed to control the plain meaning of a section.7 An illustration does
not exhaust the full content of the section nor does curtail or expand its ambit.8

Explanation. The true purpose of an explanation is to clarify the section. It should not be
construed so as to destroy the meaning of or render nugatory the section of law, which it
seeks to explain.9 Though the description of a provision as an explanation may not be
decisive of its true meaning, where two interpretations are possible, that should be adopted
which will fit in with the description of the provision as an explanation.10

Proviso. The proper function of a proviso is to except and deal with a case which would
otherwise fall within the language of the main enactment.11 It cannot be construed as
excluding from it by implication whatever clearly falls within its express terms. It is a
cardinal rule of interpretation that a proviso to a particular provision of statute only
embraces the field which is covered by the main provision. It carves out an exception to
the main provision to which it has been enacted as a proviso.12 It is foreign to the proper
function of a proviso to read it as providing something by way of an addendum or dealing
with a subject which is foreign to the main enactment.13 A proviso may be construed in the
light of the section but not a section in the light of a proviso14 for, a proviso is subservient
to the main provision.15 However, a proviso need not necessarily be read as a limitation.
The clear language of the substantive provision as well as the proviso may establish that
the proviso is not a limitation but a substantive provision.16

A proviso is of necessitylimited in the scope to the ambit of the section which it qualifies.17

According to Lord Russel, although a proviso may well be incapable of putting upon
preceding words a construction which they cannot possibly bear, it may without doubt
operate to explain which of the possible two meanings is the right one to attribute to them.
One must, however, read the whole clause before attempting to construe any portion of it
and a perusal of the proviso fixes the meaning of the words which precede it.18 However,
Lord Watson cautioned that it is a very dangerous and certainly unusual course to import
legislation from a proviso wholesale into the body of the statute.19

Ayyangar, J., speaking for the Bench, observed in the case of State of Rajasthan v. Leela Jain,20
as follows:

So far as a general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to
limit the main part of the section and carve out something which but for the proviso would have been within the operative part.

In S. Sundaram Pillai v. V.R. Pattabhiraman,21 Fazal Ali, J., observed as follows:

the well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant
to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be
within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to
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nullify or set at naught the real object of the main enactment.

However, if a proviso cannot reasonably be construed otherwise than as contradicting the

main enactment, then the proviso will prevail on the principle that it speaks the last
intention of the makers.22

Punctuation. Punctuation in a statute cannot invariably be relied on in construing its

provision23 and should not be used for controlling the plain meaning of the enactment.24

(j) Code Exhaustive. The essence of a Code is to be exhaustive of the matters in respect of
which it declares the law and it is not the province of the judge to disregard or go outside
the letter of the enactment according to its true construction.25 Where there is no specific
provision in the Code, the court has the power and it would seem it is its duty to act
according to justice, equity and good conscience.26

(k) Retrospective Operation. Every statute which takes away or impairs vested rights acquired
under the existing law must be presumed to be intended not to have retrospective
operation,27 but this presumption does not apply to enactments affecting procedure or
practice, such as the Code of Civil Procedure. The reason is that no person has a vested right
in any course of procedure. The general principle indeed seems to be that alterations in the
procedure are always retrospective unless there be some good reasons against it,28 but an
appellate court cannot reverse an order made under an old Code on the ground that the
new Code has enacted a different rule.29 The right of appeal however, is in the nature of a
vested right.30 Hence, the provision in s 154 of the Code of Civil Procedure declares that
nothing in this Code shall affect any present right of appeal which shall have accrued to
any party at its commencement. Thus, the amendment of a statutory rule made by a High
Court giving a right of appeal to a bench of two judges cannot take away a vested right of
appeal to the Supreme Court.31 Though matters relating to limitation and forum are
regarded as matters relating to procedure and are governed by the law in force at the date
of the institution of the act ion, where limitation prescribed by a statute makes it
impossible to enforce a claim which has arisen prior to the coming into force of the
statute, the statute must be construed as inapplicable to such an action.32 The Code of Civil
Procedure is thus not retrospective so as to affect vested rights except where the amendment
has been expressly or by necessary implication been made retrospective.33

A thing for which provision is made in the Code of Civil Procedure must be done in the
prescribed way or not at all.34

The statement of law given by Maxwell in this regard is stated thus:

Perhaps no rule of construction is more firmly established than thisthat a retrospective operation is not to be given to a statute so as to
impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing
violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it
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ought to be construed as prospective only.35

As laid down by the Supreme Court, the golden rule of construction is that, in the absence
of anything in the enactment to show that it is to have retrospective operation, it cannot be
construed as to have the effect of altering the law applicable to a claim in litigation at the
time when the Act was passed.36 In another case, the Supreme Court held that Courts have
looked with disfavour upon laws which take away vested rights or affect pending cases.
Matter of procedure are, however, different and the law affecting procedure is always
retrospective.37

In Hitendra Vishnu Thakur v. State of Maharashtra,38 the Supreme Court laid down the ambit
and scope of an Amending Act and its retrospective operation and gave five broad
guidelines for construing a statute one way or the other.

While dealing with the Punjab Pre-emption Act, 1913, the Supreme Court held that the
new provision substituted by an Amending Act was not retrospective.39

The Halsburys Law of England states the law on retrospective operation of statutes thus:

The general rule is that all statutes, other than those which are merely declaratory, or which relate only to matters of procedure or of
evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary
implication, it appears that this was the intention of the legislature. Similarly, the courts will construe a provision as conferring power to
act retrospectively only when clear words are used.40

Francis Bennion states thus:

The true principle is that lex prospicit non respicit (law looks forward not back). Retrospective legislation is contrary to the general
principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with
future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law. The basis of
the principle against retrospectivity is no more than simple fairness, which ought to be the basis of every legal rule.41

4. Courts of Civil Judicature. The Code of Civil Procedure applies to all the proceedings in
courts of civil judicature except that it does not affect any special or local law; or any
special jurisdiction or power conferred; or any special form of procedure prescribed by or
under any other law for the time being in force.42 It applies to High Courts except where
otherwise provided by Letters Patent or the rules for the exercise of original jurisdiction.43
Insolvency courts are courts of civil judicature, but their procedure both in the mofussil
and in presidency towns is regulated by special Act s.44 The Code of Civil Procedure applies to
proceedings on the admiralty side of the High Court.45 It also applies to proceedings in the
testamentary and intestate jurisdiction of the High Courts and mofussil courts except as
otherwise provided by the Indian Succession Act, 192546 and, subject to the provisions of the
Indian Divorce Act, to proceedings under it. It applies to proceedings under the Hindu
Marriage Act, 1955, subject to the other provisions of that Act and to such rules as may be
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made by the High Courts.47 As to small cause courts, there is a special provision in ss 7 and
8. Revenue Courts are civil courts and it has been held that they are governed by the Code
of Civil Procedure except in matters where a special procedure is enacted by a local Act.48
Special provision is made in s 5 for such courts in order to preserve the summary character
of rent litigation under local laws. The controller of patents is not a court and the Code of
Civil Procedure is not applicable to proceedings before him.49 Income-tax proceedings are
not civil proceedings. Hence, rules relating to suits and appeals are not applicable to those
proceedings.50 The Code of Civil Procedure also does not apply to proceedings under the
Commissions of Inquiry Act, 1952,51 nor to proceedings before the rent controller under the
rent Act s.52

The State Legislature of Maharashtra, by amending s 34 (1) of the Maharashtra Industrial

Development Act, 1961 (the Amendment Act of 1974), made its intention clear that the
provisions of Part III of the Land Acquisition Act shall mutatis mutandi apply to the
proceedings of reference to District Courts under s 34 (1). The state legislature was fully
conscious that the decision of the court would be a decree under the Code of Civil Procedure
and that the grounds for the award would be a judgment under the Code of Civil Procedure.
Such award for judgment would be appealable under s 96 of the Code of Civil Procedure, if
delivered by a District Court. It would fall under cl 15 of the Letters Patent (if delivered by
a single judge of the High Court). The reference under s 34 (1) was to be made to the
court, as defined in the Land Acquisition Act and that meant a principal civil court of
original jurisdiction. The expression decision of the court in s 34 (2) cannot be restricted
only to the principal civil court of original jurisdiction, but must be extended to the
decision of the court in accordance with the hierarchy of courts.53

5. Extent Clause. Prior to its amendment by Act II of 1951, s 1, cl 3, stood as follows:

(3). This section and sections 155 to 158 extend to the whole of British India, the rest of the Code extends to the whole of Britsh India
except the Scheduled Districts.

Under this section the Code of Civil Procedure was applicable to the whole of British India
except the Scheduled Districts to which area sections 155 to 158 were made applicable.

By the Adaptation of Laws Order, 1950, the following was substituted for Section 1(3) :

(3). This section and sections 155 to 158 extend to the whole of India except Part B States; the rest of the Code extends to the whole of
India except Part B States and the Scheduled Districts.

The change introduced by this section was formal. The word India was substituted for
British India but the operation of the Act was limited to Part A and Part C States which
correspond to British India and the Scheduled Districts were as before outside the Code
excepting Sections 155 to 158.
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Then came the Amendment Act II of 1951 which repealed s 1 (3) and substituted the
following:

(3) It extends to the whole of India except

(a) the tribal Areas in the State of Assam,

(b) save as hereinafter provided, the Scheduled areas in the State of Madras,

(c) the State of Jammu and Kashmir,

(d) the State of Manipur.

Provided that ss 36 to 43 and O 34 in the First Schedule shall extend also to the Amindivi Islands and the East Godavari, West
Godavari and Vishakapatnam Agencies in the State of Madras, and s 48 shall extend also to the said Agencies

As a result of this amendment, the Code came into force over the whole of Indian Union
consisting of Part A, Part B and Part C States excepting Jammu and Kashmir, the State of
Manipur, the Tribal Areas in Assam, and Scheduled Areas in Madras.

Section 20 of Act II of 1951 contained a saving as regards

The previous operation of the law, previously in force in those States or anything duly
done or suffered thereunder or any right, privilege, obligation or liability acquired, accrued,
or incurred thereunder.

After the enactment of the States Reorganization Act in 1956, the words State of Andhra
Pradesh were introduced by the Adaptation of Laws Order, 1956. By an amendment Act
(68 of 1956) clause d excluding the State of Manipur was repealed. In view of s 1 (3)(b), it
has been held that s 115 has no application to orders passed by the Courts in the Agency
Tracts in Andhra Pradesh.54 It has been held that the law in force in the Kolhan Area in
Singhbum District, Bihar, is not the Code of Civil Procedure but Wilkinsons Rules for
Administration of Civil Justice.55

The rules of Civil Procedure which were in force in Part B States were repealed with the
usual savings mentioned in s 20 of Act II of 1951, that is to say, the previous operation of
the law hitherto in force in those States or anything duly done or suffered thereunder or
any right, privilege, obligation or liability acquired, accrued, or incurred thereunder have
been saved.

The Amendment Act, 1976 has substituted new sub-ss (3) and (4) in place of the old sub-s
(3). Sub-s (3) as it stood before its amendment read as follows:

(3) It (ie the Code) extends to the whole of India except

(a) the tribal areas in the State of Assam;

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(b) save as hereinafter provided, the Scheduled Areas in the State of Andhra as it existed
immediately before 1 November 1956, and in the State of Madras;

(c) the State of Jammu and Kashmir;

Provided that ss 3643 and O 34 in the First Schedule shall extend also to the Amindivi
Islands and the East Godavari, West Godavari and Vishakapatnam Agencies in the State
of Andhra Pradesh and s 48 shall extend also to the said agencies.

Now the entire Code of Civil Procedure has been made applicable to the scheduled areas, viz;
the Amindivi Islands, the East Godavari, West Godavari and Vishakapatnam agencies. The
state of Nagaland includes the Naga Hills District and the Naga Tribal Areas.
Administration of civil justice in the Naga Hills District is governed by the rules made by
the Governor of Assam. Therefore, it has been provided that the Code of Civil Procedure will
not initially apply to the state of Nagaland or the tribal areas as defined in para 20 of the
sixth schedule to the Constitution of India as in force before the 21 January 1972. Power has,
however, been reserved to the concerned state government to extend the Code of Civil
Procedure to the state of Nagaland or the tribal areas with such supplemental, incidental and
consequential modifications as that government may think fit.

There are in force the Laccadive, Minicoy and Amindivi Islands (Laws) Regulation 1956
and the Laccadive, Minicoy and Amindivi Islands (Civil Courts) Regulation 1965
promulgated by the President, under which the Code of Civil Procedure applies to these
islands subject to certain conditions. It has therefore, been made clear that the application
of the Code of Civil Procedure to these islands shall be without prejudice to the provisions
contained in those regulations for the time being in force.

The Andhra Pradesh Agency Rules do not bar jurisdiction of the civil courts in respect of
disputes between non-tribals even though they reside in or these disputes relate to lands
situated in scheduled areas.56

Rules for the administration of justice and police in the Nagaland Hills District 1937,
govern civil disputes in Nagaland. Provisions of the Code of Civil Procedure are not applicable
in all their force and vigour. Provisions in Code of Civil Procedure as to the abatement of
appeal was not applied to the appeal in question.57

S. 2. Definitions.
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In this Act, unless there is anything repugnant in the subject or context,

Code includes rules;

HIGH COURT AMENDMENT

Calcutta. In clause (1) after the words includes rules add the words and, in its application
to Courts other than the Court of Small Causes of Calcutta, means the Code of Civil
Procedure, 1908; and, in its application to that Court, means the provisions of the Code of
Civil Procedure, 1908, as adopted, modified and extended by the provisions of notifications
issued from time to time under the provisions of Section 8 of that Code vide Cal. Gaz., Pt
I, dated April 20, 1967.

decree means the formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either preliminary or final. It shall be
deemed to include the rejection of a plaint and the determination of any question within
58[* * *] Section 144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation. A decree is preliminary when further proceedings have to be taken before the
suit can be completely disposed of. It is final when such adjudication completely disposes
of the suit. It may be partly preliminary and partly final;

HIGH COURT AMENDMENT

Calcutta. In clause (2) insert a fullstop after matters in controversy in the suit; substitute.
In Courts other than the Court of Small Causes of Calcutta it for and after matters in
controversy in the suit; insert a semi-colon and the word and in place of the fullstop after
preliminary or final vide Cal. Gaz., Pt I, dated April 20, 1967.

decree-holder means any person in whose favour a decree has been passed or an order
capable of execution has been made;

district means the local limits of the jurisdiction of a principal Civil Court of original
jurisdiction (hereinafter called a District Court), and includes the local limits of the
ordinary original civil jurisdiction of a High Court;
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59[foreignCourt means a Court situate outside India and not established or continued by
the authority of the Central Government;]

Foreign judgment means the judgment of a foreign Court;

Government Pleader includes any officer appointed by the 60[State Government] to

perform all or any of the functions expressly imposed by this Code on the Government
Pleader and also any pleader acting under the directions of the Government Pleader;
61[(7A)High Court, in relation to the Andaman and Nicobar Islands, means the High
Court in Calcutta;

(7B) India, except in Sections 1, 29, 43, 44,62[44A], 78, 79, 82, 83 and 87A, means the
territory of India excluding the State of Jammu & Kashmir;]

Judge means the presiding officer of a Civil Court;

Judgment means the statement given by the Judge of the grounds of a decree or order;

judgment-debtor means any person against whom a decree has been passed or an order
capable of execution has been made;

legal representative means a person who in law represents the estate of a deceased person,
and includes any person who intermeddles with the estate of the deceased and where a
party sues or is sued in a representative character the person on whom the estate devolves
on the death of the party so suing or sued;

mesne profits of property means those profits which the person in wrongful possession of
such property act ually received or might with ordinary diligence have received therefrom,
together with interest on such profits, but shall not include profits due to improvements
made by the person in wrongful possession;

movable property includes growing crops;

HIGH COURT AMENDMENT

Calcutta. In clause (13) insert the words except in suits or proceedings in the Court of
Small Causes of Calcutta after the words growing crops vide Cal. Gaz., Pt I, dated April 20,
1967.

order means the formal expression of any decision of a Civil Court which is not a decree;
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pleader means any person entitled to appear and plead for another in Court, and includes
an advocate, a vakil and an attorney of a High Court;

prescribed means prescribed by rules;

public officer means a person falling under any of the following descriptions, namely:
(a) every Judge;
(b) every member of 63[an All India Service];
(c) every commissioned or gazetted officer in the military, 64[naval or air] forces of
65[the Union], 66[* * *] while serving under the Government;

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or
report on any matter of law or fact, or to make, authenticate or keep any document,
or to take charge or dispose of any property, or to execute any judicial process, or
to administer any oath, or to interpret, or to preserve order, in the Court, and every
person especially authorised by a Court of Justice to perform any of such duties;
(e) every person who holds any office by virtue of which he is empowered to place or
keep any person in confinement;
(f) every officer of the Government whose duty it is, as such officer, to prevent
offences, to give information of offences, to bring offenders to justice, or to protect
the public health, safety or convenience;
(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any
property on behalf of the Government, or to make any survey, assessment or
contract on behalf of the Government, or to execute any revenue-process, or to
investigate, or to report on, any matter affecting the pecuniary interests of the
Government or to make, authenticate or keep any document relating to the
pecuniary interests of the Government, or to prevent the infraction of any law for
the protection of the pecuniary interests of the Government; and
(h) every officer in the service or pay of the Government, or remunerated by fees or
commission for the performance of any public duty;

rules means rules and forms contained in the First Schedule or made under Section 122 or
Section 125 ;

HIGH COURT AMENDMENT

Calcutta. In clause (18) insert the words in its application to Courts other than the Court
of Small Causes of Calcutta after the word rules and before the words means rules and
forms; and the words of the Code of Civil Procedure, 1908, and, in its application to that court
means the Rules of Practice and Procedure of that Court made under Section 9 of the
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Presidency Small Cause Courts Act, 1882, and includes the rules and forms contained in
the First Schedule of that Code which are made applicable to that court by virtue of the
provisions of Order LI of that schedule after the words Section 122 or Section 125 vide
Cal. Gaz., Pt I, dated April 20, 1967.

share in a corporation shall be deemed to include stock, debenture stock, debentures or

bonds; and

signed save in the case of judgment or decree, includes stamped.

67[* * *]

Definition clause: meaning, object and interpretation. It is common for all statutes to
contain a small dictionary of their own in the form of a definition clause to endeavour to
interpret, define and explain important terms used therein. The definition clause serves
two-fold purpose. Firstly, it provides for proper interpretation of an enactment and
secondly, it shortens the language of the enacting part and helps avoid repetition of the
same words and expressions whenever the legislature wants to use that term. The object of
the definition clause is to declare that the words and expressions used in the Act have the
meaning assigned to them by their definition.

According to Craies, there are two modes of defining a word in a statute, restrictive or
extensive. Where the word means is used it is restrictive way and where the word includes
is used it is an extensive way.1 The Legislature uses the word means where it wants to
exhaust the significance of the term defined and the word includes where it intends that
while the term defined should retain its ordinary meaning, its scope should be widened by
specific enumeration of certain matters which its ordinary meaning may or may not
comprise, so as to make the definition enumerative but not exhaustive.2 Sometimes, it is
provided that a word shall mean what the definition says it shall mean and in that case, the
word is restricted to the scope indicated in the definition section.3 Sometimes, however,
the word include is used in order to enlarge the meaning of words or phrases occurring in
the body of the statute; and when it is so used these words or phrases must be construed
as comprehending, not only such things as they signify according to their natural import,
but also those things which the interpretation clause declares they shall include.4

Justice G.P. Singh, in his book on interpretation,5 has explained it thus:

A definition section may borrow definitions from an earlier Act and the definition so borrowed may not necessarily be in the definition
section but may be in some other provisions of the earlier Act. A definition borrowed by incorporation or reference may be sometimes
found in the rules made under the referred statute. For example, Article 366(1) of the Constitution defines agricultural income to mean
agricultural income as defined for the purpose of enactments relating to Indian Income-tax.
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In a recent decision, the Supreme Court, while dealing with a case under the West Bengal
Government Premises (Tenancy Regulation) Act, 1976, observed that any is a word of very
wide meaning and prima facie the use of it in definition clause excludes limitation.6

1. Code: Section 2(1) Code includes rules;

HIGH COURT AMENDMENT

Calcutta. In clause (1) after the words includes rules add the words and, in its application
to Courts other than the Court of Small Causes of Calcutta, means the Code of Civil
Procedure, 1908; and, in its application to that Court, means the provisions of the Code of
Civil Procedure, 1908, as adopted, modified and extended by the provisions of notifications
issued from time to time under the provisions of Section 8 of that Code vide Cal. Gaz., Pt
I, dated April 20, 1967.

The chief feature of this Act is its division into two parts on the lines of the Judicature Act
s, the body of the Code of Civil Procedure 1908 (Code of Civil Procedure) and rules framed under
the Act. The main body of the Code of Civil Procedure is in the sections and the rules refer to
matters of mere machinery which the High Court may adapt to local conditions.

Explaining the nature and scope of this distinction, it was observed in Sesha Giridas Sambhog
v. Sunder7 that:

The Code consists

(i) of that which is termed the body of the Code; and

(ii) of the rules.

The body of the Code of Civil Procedure is fundamental and is unalterable except by the
legislature and the rules are concerned with the details and machinery and can be more
readily altered. Thus, it will be found that the body of the Code of Civil Procedure creates
jurisdiction while the rules indicate the mode in which it is to be exercised.8 It follows that
the body of the Code of Civil Procedure is expressed in more general terms and it has to be
read in conjunction with the more particular provisions of the rules.9 The Code of Civil
Procedure includes not only the sections of the Code of Civil Procedure but also the orders and
rules contained in Sch 1 and also the civil rules of practice framed by the High Court under
s 122 by virtue of the definitions in s 2 (1) and 2(18).10 The rules should, by reason of this
provision, be deemed to be enacted in the body of the Code of Civil Procedure itself and that
construction should be adopted which would reconcile both, the body of the Act and
rules.11Section 73 should accordingly be read subject to O 21, r 89;12 but, where there is
clear conflict between the body of the Code of Civil Procedure and the rules, the former must
prevail13 and it has likewise been held that the form appended to the Code of Civil Procedure
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should not be allowed to extend the meaning of the sections and the rules in the Code of
Civil Procedure.14 The scheme of ss 2(1), 12122, 126 and 127 makes it clear that the
alterations by the High Court in the rules become part of the Code of Civil Procedure.15

2. Decree: Section 2(2). decree means the formal expression of an adjudication which, so
far as regards the Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be either preliminary
or final. It shall be deemed to include the rejection of a plaint and the determination of any
question within 16[* * *] Section 144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation. A decree is preliminary when further proceedings have to be taken before the
suit can be completely disposed of. It is final when such adjudication completely disposes
of the suit. It may be partly preliminary and partly final;

HIGH COURT AMENDMENT

Calcutta. In clause (2) insert a fullstop after matters in controversy in the suit; substitute.
In Courts other than the Court of Small Causes of Calcutta it for and after matters in
controversy in the suit; insert a semi-colon and the word and in place of the fullstop after
preliminary or final vide Cal. Gaz., Pt I, dated April 20, 1967.

(a) Scope. It matters not that the judgment is headed an order, for, if it in fact fulfils the
conditions of the definition under s 2 (2), it is a decree and an appeal lies.17

In the definition, some orders which otherwise do not constitute decree are also included
and certain orders which constitute decree have been excluded from it. Merely because
there exists some order captioned as a decree drawn up even in the form of decree, it
would not make such an order decree unless the court satisfied the requirement of s 2 (2) of
the Code of Civil Procedure.18 A decree or order becomes enforceable from its date, but in
appropriate cases, the court passing the decree may prescribe the time wherefrom the
decree becomes enforceable on a future date.In a case where the language of the decree is
capable of two interpretations, one of which assists the decree-holder to obtain the fruits
of the decree and the other prevents him from taking the benefits of the decree, the
interpretation which assists the decree-holder should be accepted. The policy of law is to
give a fair and liberal, and not a technical construction, enabling the decree-holder to reap
the fruits of his decree.19

(b) Essentials. It is evident from a bare reading of the definition that decree has the
following essential elements:
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(i) there should be an adjudication;

(ii) (ii) the adjudication should determine the rights of parties regarding the matter in
controversy;
(iii) the adjudication should be in a suit and the adjudication should be formal and
conclusive so far as that court is concerned.20

For determining the question as to whether an order passed by a Court is a decree or not,
it must satisfy the following tests:

(i) there must be an adjudication;

(ii) such adjudication must have been given in a suit;
(iii) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit;
(iv) such determination must be of a conclusive nature; and
(v) there must be a formal expression of such adjudication.21

In paragraph 14 of the judgment in the above case,22 S.B. Sinha, J., (speaking for the
Bench), observed as follows:

A decree is defined in section 2(2) of the Code of Civil Procedure to mean the formal expression of an adjudication which, so far as regards,
the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit.
It may either be preliminary or final. It may be partly preliminary and partly be final. The Court with a view to determine whether an
order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading up to the
passing of an order. The circumstances under which an order had been made would also be relevant.

(c) Judgment, Order and Decree. Judgment stands on a different footing from the order and the
decree. The legislature has avoided the use of words formal expression in the definition of
judgment, though the words formal expression have been used in the definition of order in
s 2 (14). Conversely, it is not necessary that in a decree, there should be a statement of
reasons given by the judge. Statement of reasons is to be given by the judge, only in the
judgment. The decree is the formal expression of conclusions arrived at in the judgment.
So, a formal expression of the order in the judgment is not necessary, though it is
desirable.23

However, the Supreme Court has laid down that an order admitting a second appeal is
neither a final order nor an interlocutory/interim order. It does not amount to a judgment,
decree, determination, sentence or even order in the traditional sense. It does not decide
any issue but merely entertains an appeal for hearing.24

An order disposing of a suit deciding the question of maintainability, hearing only the
defendant in absence of the plaintiff is to be treated as dismissal for default and is not a
decree.25

(d) Formal Expression. All requirements of form must be complied with. Accordingly, it was
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said that if no decree has been drawn up, no appeal will lie from the judgment.26 It has
however, been held that the right of a party to prefer an appeal is not affected by the
failure to draw up a decree as that is only formal.27 In some courts, the practice is not to
draw up a decree embodying an adjudication under s 47. In such a case, the decision is
both, a judgment and a decree and filing the certified copy of the decision is sufficient
compliance of O 41, r 1.28 It has also been held that a party in whose favour a final
adjudication has been made is entitled to apply for its enforcement in execution even
though no formal decree has been drawn up.29 Where an order has been made dismissing a
suit and a formal decree has been drawn up, it does not cease to be a decree merely
because reasons for the dismissal have not been given and the provisions of O 20, rr 4(2)
and 4(5) have not been complied with.30

An order must satisfy the requirements of s 2 (2) in order to become a decree. Merely
labelling it as a decree does not make it a decree.31

When a decree is challenged in appeal, the appellate hearing is a re-hearing of the subject
matter. The lower court decree is merged in the appellate decree.32

When an appeal is declared as having abated, there is no question of drawing up a decree.

There is no adjudication of any question in such a case.33

The concept of judgment in s 2 (2) of the Code of Civil Procedure is narrow and cannot be
applied for interpreting the word judgment in the Letters Patent.34

(e) Conclusively Determines. This expression implies that the decision must be one which is
complete and final as regards the court which passed it. The decree may conclusively
determine the rights of the parties although it does not completely dispose off the suit.35

When any order decides only the question of limitation, such an order will not be a decree
within the meaning of s 2 (2) of the Code of Civil Procedure because such an order does not
result in conclusive determination of the right of the parties envisaged by s 2 (2) with
regard to all or any matter in controversy in a suit.36

An order allowing withdrawal of suit, without liberty to file fresh suit and without
adjudication, does not constitute a decree.37

An order dismissing an application under O 22 of the Code on the ground that the
adoption deed was not executed in accordance with the Hindu Adoption and Maintenance
Act, 1956, does not amount to a decree as defined in the Code, since it does not determine
the question finally as to who is the legal representative of the deceased.38

In a suit for permanent prohibitory injunction, an order of dismissal directing the plaintiff
to remove unauthorised construction on the suit property put up during the pendency of
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the suit does not amount to a decree, as defined in the Code, but it certainly amounts to an
executable order in favour of the defendant.39

(f) Rights of Parties With Regards to All/Any of Matters in Controversy. There must have been an
adjudication on the rights of the parties.40 Any adjudication which conclusively determines
the rights of the parties with regard to any of the matters in controversy in the suit, is a
decree within the meaning of s 2 (2) of the Code of Civil Procedure and an appeal lies against it
under s 96. The judgment and decree rendered inter partes is binding on inter partes.41 The
expression matter in controversy in the suit means such matter as has been brought up for
adjudication by the court through the pleadings. Hence, the conclusive determination, in
order to amount to a decree must be on matters in controversy in the suit. A compromise
collateral to a suit offered by one party and accepted by the other, where the document of
compromise is not recorded through a decree but is merely drawn up, cannot attract the
provisions of O 23, r 3 of the Code of Civil Procedure and the court should not make a decree.
An order refusing to record a compromise cannot be tantamount to a decree within the
meaning of s 2 (2) and is not therefore, appealable under s 96. The order cannot be held to
be an adjudication which conclusively determines the rights of the parties with regard to
any of the matters in controversy in the suit.42

Where redemption was claimed by certain plaintiffs (as heirs of mortgagors) and others, on
the application for substitution by legal representatives of one of the deceased original
plaintiffs, the trial court directed that all the other plaintiffs except the sons of the
mortgagor were not necessary parties to the suit and, therefore, their names were struck
out. After this, the suit proceeded in the absence of those plaintiffs and ended in a decree.
The rights of those plaintiffs were not determined. It was held that the order directing
striking out the names of parties was not a decree. All that the order means is, that those
plaintiffs were improperly joined in the suit and their names were struck out. This order
contains a mere finding that those persons were not necessary parties to the suit and
hence, is not a decree. Consequently, they could not appeal against it.43 Thus, a decision on
the question of possession as between the landlord and his tenant in a suit under the Rent
Act is a decision on the rights of the parties and is a decree.44 An order of dismissal for
default of appearance is no determination of the rights of the parties and, therefore, is not
a decree.45 So also, an order under O 9, r 2, dismissing a suit when summons is not served
in consequence of plaintiffs failure to pay court-fee.46 Special provision is made in the
definition of a decree for orders of dismissal for default, apparently because the previous
cases were not uniform. An order rejecting an appeal under O 41, r 10 for failure to
furnish security is not a decree as it does not determine the rights of the parties in
controversy in the appeal.47 An order granting leave to withdraw a suit with leave to file a
fresh suit is not a decree, for the rights of the parties are left open for determination in the
subsequent suit.48 Also, dismissal of a suit as withdrawn under O 23, r 3, is not a decree;49
but an order dismissing the appeal on a prayer for withdrawal is a decree, for the appeal is
brought before the court and finally, disposed off.50 The right in controversy must be a
substantive right and not merely a processual right, for a finding on a processual right is
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only to enable the court to inquire into the rights in controversy in the suit.51 Thus, an
order that a plaint should be stamped with a higher court-fee is not a decree.52 It is only an
order which may be open to revision.53 An order directing stay of a suit is not a decree;54
nor an order refusing stay in an appeal under O 41, r 5;55 nor an order remanding a suit for
fresh disposal.56

A divorce petition under s 13 of the Hindu Marriage Act, 1955 cannot be treated as a plaint
and the proceeding a suit and an order passed thereunder is not a decree under the Code.57
However, an order dismissing a suit under the Hindu Marriage Act on the ground of res
judicata is a decree and is appealable.58

When an application for the grant of probate or letter of administration is contested, such
application is automatically converted into a regular suit and a final decision thereon results
in the form of a decree.59

Where an attachment of perishable goods was ordered, an order directing the party to
furnish security for raising attachment cannot be treated as an order adjudicating rights of
the parties and as such cannot be called a decree.60

Where in a suit for partition, directions are given for issuance of final decree on production
of stamp paper, an adjudication on objections raised in relation to process of engrossment
cannot be said to be determination of rights of parties leading to a decree.61

Suit for partition was decreed by the High Court on second appeal by the plaintiff. The
question of arrears of rent and mesne profit was not raised. This question was also not
raised in first appeal or before the trial court. It was held that it could not be said that the
High Court had passed a decree for rent and mesne profits. The trial court could not grant
relief in that respect. The High Court observed as under:

I am, therefore, of the opinion that the High Court passed the decree for partition of the
two shops only and by implication, the other reliefs were denied. The execution application
filed by the decree-holders for arrears of rent and mesne profit was clearly in excess of the
decree passed by this court and the trial court could not have granted any relief in this
respect.62

(g) In the Suit. Every suit is commenced by a plaint,63 and when there is no civil suit there is
no decree.64 Some proceedings commenced by an application are statutory suits so that the
decision is a decree, e.g. a contentious probate proceeding65 or an application to file an
agreement to refer to arbitration.66 It has been held in Bewri v. Suwalal67 that the decision in
an application for probate cannot be held to be a decree by virtue of s 295 of the Indian
Succession Act, 1925, which enacts that an application for probate is to be regarded, where
contested, as a regular suit, as it is only an adjudication given in a suit, commencing with
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the presentation of a plaint that is a decree under s 2 (2). A contrary view has been taken
by the Allahabad and Madras High Courts.68

(h) Preliminary and final Decree. The explanation in s 2 (2) of the present Code of Civil Procedure
(Act No 5 of 1908) has been newly added and so also, the provision in the main definition
that a decree may be either preliminary or final. In a preliminary decree, certain rights are
conclusively determined and unless the preliminary decree is challenged in appeal, the
rights so determined become final and conclusive and cannot be questioned in the final
decree.69 A preliminary decree is one which declares the rights and liabilities of the parties
leaving the act ual result to be worked out in further proceedings. Then, as a result of the
further inquiries conducted pursuant to the preliminary decree, the rights of the parties are
finally determined and a decree is passed in accordance with such determination. That is
the final decree. Both the decrees are in the same suit and if the preliminary decree is set
aside, the final decree is superseded.70 Final decree may be said to become final in two
ways:
(i) when the time for appeal has expired without any appeal being filed against the
preliminary decree or a matter has been decided by the highest court;
(ii) (ii) when as regards the court passing the decree, the same stand completely
disposed off.

It is in the latter sense that the word decree is used in s 2 (2) of the Code of Civil Procedure. The
appealability of the decree will, therefore, not affect its character as a final decree. The final
decree merely carries into fulfillment the preliminary decree.71 It has been further observed
in the above case that final decree may be said to become final in two ways: (i) when the
time for appeal has expired without any appeal being filed against the preliminary decree or
the matter has been decided by the highest court; (ii) when, as regards the court passing the
decree, the same stands completely disposed of. In the case of Hasham Abbas Sayyad v.
Usman Abbas Sayyad,72 the Supreme Court has explained that preliminary decree declares
the rights and liabilities of parties; however, in a given case a decree may be both
preliminary and final. There can be more than one final decree. A decree may be partly
preliminary and party final, but what can be executed is a final decree and not a preliminary
decree, unless final decree is a part of the preliminary decree. Preliminary decree is a decree
within the meaning of s 2 (2) of the Code of Civil Procedure, but it is not capable of execution,
normally, till a final decree is passed.73 Order 20 enumerates the classes of suits in which
preliminary decrees are to be passed but this is not exhaustive and does not preclude the
court from passing a preliminary decree in cases not expressly provided for in the Code of
Civil Procedure.74 Even in suits of the nature mentioned in O 20, if the matters in dispute are
simple and do not involve elaborate scrutiny of accounts, the court is not bound to pass a
preliminary decree and may proceed straightaway to pass a decree for the amount
determined as due.75 The question has sometimes arisen for decision whether there can be
more than one preliminary decree and one final decree in a suit. On that, judicial opinion
was divided; some decisions took the view that there could be only one preliminary decree
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and one final decree,76 while others held that there was nothing in the Code of Civil Procedure
prohibiting the passing of more than one preliminary or final decree.77

In accordance with this view, where the plaintiff was found to be entitled to contribution
but the amount was left to be determined later on, it was held that the order was a
preliminary decree.78

(i) Preliminary decree in partition suit. Where the preliminary decree in a suit for partition, while
declaring the shares to which the parties were entitled, failed to give any direction as to
profits after the institution of the suit, it was held that it was competent for the court in a
subsequent application to pass an order directing inquiry into such profits and that it was,
in substance, a preliminary decree.79 Likewise, a supplemental order determining the period
for which the party is liable for mesne profits was held to be a preliminary decree.80 In a
suit for partition, a preliminary decree was passed declaring the plaintiff entitled to one-
eighth share and thereafter, one of the parties having died, an application was put in by the
plaintiff claiming that his share had become thereby augmented to one-seventh. An
adjudication of that question was held to be a further preliminary decree.81 It has also been
held that whether an order is a preliminary decree or is merely an interlocutory order, must
depend upon its substance and not the form.82

S.B. Sinha, J., speaking for the Supreme Court Bench observed as follows:

A decree therefore may denote final adjudication between the parties and against which an appeal lies, but only when a suit is
completely disposed of thereby a final decree would come into being. There cannot be any doubt whatsoever that a decree may be
partly preliminary and partly final.83

The Bench went on to observe further as follows:

It is now well settled that for the purposes of construing the nature of the decree one has to look to the terms thereof rather than
speculate upon the Courts intentions.84

The conflict of view has been set at rest by the Supreme Court at least as regards partition
suits. The court has observed that there is nothing in the Code of Civil Procedure prohibiting
the passing of more than one preliminary decree, if circumstances so justify. In some cases
it may even be necessary so to do, particularly in partition suits where after a preliminary
decree has been passed, some parties die resulting in the shares of the other parties being
augmented. In such an event, the court can and indeed should pass a second preliminary
decree correcting the shares. If there is a dispute in that regard, the order of the court
deciding that dispute and altering the shares set out in the previously passed preliminary
decree is a decree in itself which is subject to an appeal.85

See also notes under O 20, r 18.

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(j) Partly preliminary/final decree and more than one preliminary/final decrees. The explanation to the
sub-section makes it clear that a decree is preliminary when further proceedings have to be
taken before the suit can be completely disposed of. It is final when such adjudication
completely disposes of the suit. A decree may be partly preliminary and partly final.

It is settled law that there can be more than one preliminary decrees in a suit. Similarly,
there can be more than one final decree in a suit.86

(k) Order of Company Law Board as preliminary decree. Where the dispute between parties was
resolved with the persuation of company law board and a family settlement was executed
by parties, terms of which were set down in Memorandum of Family Arrangement and
transfer document which provided for transfer of some of properties of Company to one
of the groups on its paying certain amount and that the other group would retain
remaining assets and the order of the company law board which was passed on consent of
parties, recorded that the said Memorandum of Family arrangement and transfer
document would form integral part of the order, the order could not be refused to be
executed on application by one of parties under s 634 A. It was not an interim order but a
final one because operative portion of the order directed the execution of the
Memorandum and transfer document by the parties after completion of the schedules
thereto. Moreover, the word any order used in the opening of s 634 A, indicates that all
orders made by the company law board on an application under ss. 397 and 398 are
enforceable like decrees without any limit on the nature of the order passed by the
company law board. Moreover, the order was in fact a preliminary decree. Final disposal of
the matter or the final decree would be after full implementation of the terms of the
Memorandum and transfer document. Further, since the company law board when it deals
with an application under s 634 A sits as an executing court it is subject to all the
limitations to which a court executing a decree is subject.87

(l) Deemed Decree. Order made under r 58(2) of O 21 of the amended Code of Civil Procedure
adjudicating the claim made against attachment of property in execution, therefore, has
only the status of deemed decree and not a decree by itself. Such orders are not covered by
the definition under s 2 (2) namely, of decree so as to attract the provisions of s 96 of the
Code of Civil Procedure. Only a miscellaneous appeal lies against such order and not a regular
appeal.88

Where, in a case under the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interests Act, 2002, the borrower approached the Lok Adalat and
an award was passed with the consent of the Bank, no further act ion under the Act can be
taken as the award is a deemed decree.89

An award rendered under the Arbitration and Conciliation Act, 1996, is a deemed decree only
for the purpose of enforcement under s 36 of the Act. The enforcement is done by taking
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steps under Code of Civil Procedure for the realisation of money. The use of the words as if in
s 36 of the Act demonstrates that it is a decree only by a legal fiction and the said legal
fiction is created only for the purpose of its enforcement as decree cannot be extended
beyond the purpose for which it was created.90

By virtue of the deeming provision in s 26 (2) of the Land Acquisition Act, an award made
either under s 18, s 28 A or s 30 is deemed to be a decree as defined in the Code and the
reasons for such decree constitute judgment for the purpose of s 2 (9) of the Code.91

A Division bench of the Andhra Pradesh High Court has held that an arbitral award is not
a decree within the meaning of s 2 (2) of the Code, but for the purpose of
execution/enforcement it shall be deemed to be decree.92 When in a case of theft of
electrical energy, civil liability against consumer is determined by the Special Court, that by
itself is not a decree and it is only by a fiction of law that such a liability would be
recovered as if it were a decree of Civil Court.93

A full bench of the Patna High Court has held that appeals filed under s 19 of the Family
Courts Act, 1984 cannot be treated as appeals against a decree having been passed in
exercise of original jurisdiction as the omission of the word decreein s 19 is deliberate and
intention.94 Speaking for the full bench, Shiva Kirti Singh, Act ing C.J., in the above case,
explained it as follows:

The word decree is conspicuous by its absence in Section 19(1) of the Act and the non obstante clause noticed above clearly means that
the distinction made in the Code of Civil Procedure between appeals from original and those from Orders have been done away with. As a
result, the provision for appeal under Section 19 of the Act is meant to take care of all kinds of judgments and orders of the Family
Courts, not being interlocutory in nature, regardless of the fact whether such judgments and orders amount to a decree as defined under
the Code of Civil Procedure or not.

(m) Orders which are decree. The following have been held to be decrees within this sub-
section:

(a) An order under s 24 of the Bombay Money Lenders Act, 1946 granting or refusing to
grant instalments for payment of the decretal amount;1

(b) an order rejecting the application of tenants under s 6 of the West Bengal Premises
Rent Control (Amendment) Act, 1950, for rescission of a decree in ejectment;2

(c) an order under s 14 of the Religious and Charitable Endowments Act, 1863;3

(d) an order transmitting a decree to the collector for execution under s 19 of the UP
Encumbered Estates Act, 1934 with the information that the debt is reduced;4

(e) an order declaring the defendant a debtor under s 3 (c) of the Karnataka Debt Reliefact,
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1976, with the consequence that the debt advanced to him stood discharged under s 4 (a)
of the Act is a decree.5

(f) a modification in a decree is also a decree.6

(g) An award under Pt III of the Land Acquisition Act by a civil court is by reason of s 26 of
that Act, a decree.7

(h) An order made in winding up proceedings under the Indian Companies Act, 1956;8

(i) An order setting aside an ex-parte decree is a decree and the plaintiff aggrieved by such
an order can appeal against it.9

(j) The determination of a question under s 47 was expressly included in the definition of a
decree, although such determination was not made in a suit and sometimes not drawn up
in the form of a decree.10

(k) It is no longer so in view of deletion of the words s 47 or. A right of appeal had been
provided to a party litigant to go up in appeal against an order passed under s 47, before
the Amending Act of 1976, by virtue of the legal fiction introduced in the definition of the
term decree as including any order passed in the execution proceedings. This right had
been taken away by a valid enactment and it no longer survived after the execution was
levied on 4 January, 1979, as the Amending Act had already come into force with effect
from 1 February, 1977. No appeal would lie against any order passed under s 47 of the Code
of Civil Procedure.11

(l) An order modifying a scheme under s 92 of the Code of Civil Procedure 1908, which is part
of a decree, constitutes an amendment in decree against which an appeal would lie;12

(m) An order rejecting an application for modification of such a scheme.13

(n) An adjudication under s 5 (2) of the Malabar Tenancy Amendment Act, 1956, is in
substance the final adjudication of a matter in controversy and is a decree, although the
proceedings thereunder were initiated by an application.14

(o) The High Courts of Gujarat and Punjab have taken the view, that adjudications under
ss 911 and 13 of the Hindu Marriage Act, 1955, are decrees for the purposes of those
provisions only, but are not decrees within the meaning of this sub-section as they are not
passed in a suit.15 But, a contrary view was earlier taken by the High Court of Allahabad.16

The Jammu and Kashmir High Court has held that where the husbands petition for
divorce is dismissed for default, it will not amount to a decree and hence no independent
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application under s 33 of the J&K Hindu Marriage Act is maintainable for recovering
Streedhan.17

(p) An order rejecting a plaint is a decree and is not revisable under s 115 of the Code but
appealable under s 96 of CPC.18

(q) When a criminal case is referred by a criminal court and is settled by the Lok Adalat, its
award cannot be executed as a decree passed by a civil court. The reason behind this view
is that when a reference is made to Lok Adalat, that authority is exercising the powers
enjoyed by the reference court and can only pass such order which the reference court was
competent to pass.19

(n) Orders which are not decree. The following are instances of orders which are not decrees:

(a) An order rejecting an application for leave to sue in forma pauperis for no suit has till then
been filed;20

(b) An order refusing leave to institute a suit for accounts of religious endowments;21

(c) An order on a petition to appoint a new member on the committee of a religious

endowment;22

(d) An order under the Indian Trusts Act, 1882 dismissing an application for the removal of
a trustee;23

(e) An order on a settlement case under s 104 (2) of the Bengal Tenancy Act 3 of 1898 as
the proceeding is instituted not by a plaint but by an application;24

(f) An order made on an application to the District Court under s 84 (2) of the Madras
Hindu Religious Endowments Act 2 of 1927;25

(g) An order for ejectment in a proceeding under Ch-VII of the Presidency Small Cause
Court Act, 1882;26

(h) An Award by the Calcutta Improvement Trust Tribunal;27

(i) An order rejecting a petition on the ground that the Madras Act IV of 1938 is not
appealable;28

(j) An order under s 7 of the Guardian and Wards Act, 1890 on an application under s 10
of that Act;29

(k) An order under s 10 of the Disabled Persons Act, 1951;30

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(l) An order passed on an application made to the Insolvency Court under s s 53 and 54 of
the Provincial Insolvency Act, 1920;31

(m) An order granting interim relief under s 24 of the Hindu Marriage Act, 1955;32

(n) An order passed on an application for restitution of conjugal rights, judicial separation,
declaration of nullity of marriage or divorce under ss 9 to 12 respectively of the said Act ;33

(o) An order under s 34 of the Malabar Tenancy Act ;34

(p) An order under s 17 (1) of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947, directing the landlord to restore possession of the premises to the tenant;35

(q) An order passed under s 52 of the Malabar Tenancy Act 33 of 1951 for restoration of a
holding;36

(r) An award by the Debt Board under the Hydrabad Agricultural Debtors Relief Act,
1956;37

(s) An order passed in proceedings under s 25 of the Guardian and Wards Act ;38

(t) The award given by the motor accident claim tribunal does not have the status of a
judgment, decree or order as contemplated by the Code of Civil Procedure;39

(u) An order refusing to wind up a company is not decree, since such an order does not
adjudicate upon any right of a party;40

(v) A decision on a reference under s 49 (1) of the Land Acquisition Act;41

(w) Rejection of application for condonation of delay and consequent dismissal of appeal
as time barred;42

(x) Decision of water disputes tribunal as notified;43

(y) Order passed by High Court under contempt proceedings on consent terms;44

(z) Order of dismissal of suit for default or non prosecution is not appealable as a decree;45

(o) Some other important orders. Under this synopsis we are considering some other important
orders which are generally passed by the civil courts while dealing with the suits:

(p) Order as to costs. It has been held in some cases that an order for costs is not a decree as
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defined in s 2 (2). It is said in support of this view that an order involves no adjudication of
any of the matters in controversy in the suit and that further, no party has a vested right to
costs.46 As a broad statement of the law, this proposition is open to question. A suit for
costs alone, it is true, is not maintainable, but a claim for costs is incidental to the
enforcement of substantive claims in a suit and therefore, an adjudication as to costs must
stand in the same position as a decision on those claims. If the adjudication in a suit is a
decree within s 2 (2), the order for costs being part of the same, must likewise be a decree;
but, if the adjudication is an order not amounting to a decree, the order for costs
comprised therein must also amount to an order. This is so for the purpose of appealvide
commentary under s 35. Therefore, whether an order for costs is a decree must depend
upon whether the adjudication of which it is a part is a decree or not. Reviewing the
authorities in the light of the above, an order directing the defendants to pay the costs of
the day in a pending suit was rightly held to be not a decree.47 Where the court granted
permission to the plaintiffs to withdraw a suit with liberty to file a fresh one and as a part
of the same order directed their costs to come out of the temple funds, the order as to
costs would not amount to a decree and so, it was held.48 Likewise, when an order was
made permitting the appellants to withdraw the appeal, the order for costs which was
incidental to that order was held to be not a decree;49 but, where an order in appeal was
not one of withdrawal but of dismissal, the order for costs made therein would amount to
a decree.50 In Rustomji v. Fezel Rahim,51 it was held that a provision for costs embodied in a
consent decree was itself a decree. In Dhudhewala Co v. Govindram Rameswarlal,52 the order
for costs was part of the order disposing off the revision petition itself and it is submitted
that on the principles stated above, there is no reason why that portion of the order should
be treated differently from the rest of the order. Again, the fact that no party has a vested
right to costs is not a ground for holding that what would otherwise be a decree is not a
decree. On this reasoning, an adjudication in a suit for specific relief must be held not to
be a decree. It is indeed well-settled that a party is entitled to file an appeal against a decree
for costs even though the superior court might be slow to interfere with the exercise of
discretion by the lower court.53

An application in the Civil Court for executing an order of costs passed by the High Court
in a writ petition is not maintainable because such order is neither a decree under s 2 (2)
nor an order under s 2 (14).54 Similarly, an order dismissing a suit for non-payment of costs
is essentially an order of dismissal for non-prosecution and as such it would not amount to
a decree.55

(q) Finding on issue. It was at one time held by the High Court of Bombay that a finding on a
preliminary issue that a suit was not bad for misjoinder or that it was not barred by
limitation or that the court had jurisdiction to entertain a suit was in the nature of a
preliminary decree and appealable as such.56 These decisions have since been overruled by
a full bench of the same High Court, and it has been held that a finding on an issue cannot
be the subject of an appeal until it has been embodied in the judgment and decree. It was
accordingly held in that case that a finding that the questions in dispute were not caste
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questions and were not, therefore, outside the jurisdiction of civil courts, did not amount
to a preliminary decree and that no appeal lay from such a finding.57 It has similarly been
held that a finding that the matter is not res judicata,58 or that the plaintiff can maintain the
suit59 or that the defendant is not an agriculturist under the Deccan Agriculturist Relief
Act, 1879,60 and that the trial can proceed, or that the court has jurisdiction to try the suit,61
is not a preliminary decree. A finding that the defendant is an agriculturist under that Act is
not by itself an adjudication, and so not a decree, though it may result in the plaint being
returned for presentation to the proper court under O 7, r 10.62

Again, no appeal lies from a finding that an execution application is not barred by
limitation and the execution proceedings are to go on till the final determination.63 Where
it was found on a preliminary issue that some defendants were not liable for the plaintiffs
claim and upon this finding the court discharged those defendants from the suit, and the
suit proceeded against the remaining defendants alone, it was held that the order was a
decree.64

(r) Rejection of plaint. The definition of decree provides that the rejection of a plaint shall be
deemed to be a decree. Such adjudication, therefore, is appealable as a decree.65 An order
rejecting a plaint for failure to pay additional court fee as required by the court, is a
decree66 and the court has no power to set it aside except on review or under s 152 of the
Code of Civil Procedure.67 Where a plaintiff was dispaupered and ordered to pay court fees
and on failure to comply with the order, the suit was dismissed, it was held that the order
was one of dismissal for default under s 2 (2)(b) and therefore, not a decree.68 The ground
of this decision is that there is a distinction under the Code of Civil Procedure between
rejection of a plaint and dismissal of a suit and that while the rejection of a plaint for non-
payment of additional court fees falls under O 7, r 11, and would be a decree, the dismissal
of a suit under O 22, r 11, would not be covered by it and would be an order within s 2
(2)(b). It is submitted that there is on principle, no distinction between rejection of a plaint
for non-payment of additional court fee under O 7, r 11, and dismissal of a suit under O
33, r 11 for nonpayment of court-fees, and that the rejection of a plaint will be a decree
even though it is not under O 7, r 11, provided it is authorised by the Code of Civil
Procedure69 and that the decision aforesaid, requires reconsideration.

(s) Order returning plaint. A plaint may be returned for amendment (O 6, r 17) or for
presentation to the proper court (O 7, r 10). In either case, the decision returning the plaint
is an order as distinguished from a decree. An order returning a plaint is appealable under
this Code of Civil Procedure(O 43, r 1, cl (a)). An order returning a plaint for amendment was
appealable under the Code of Civil Procedure 1882; it is no longer appealable under this Code of
Civil Procedure 1908.70

(t) Rejection of Memorandum of Appeal. On the question whether an order rejecting a

Memorandum of Appeal is a decree, the decisions are conflicting. The controversy centers
round the express inclusion of rejection of plaint in the definition of decree. One view is
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that on a reading of O 7, r 11, with s 107 (2), an order rejecting a plaint must include an
order rejecting an appeal; and, that further, the latter order would be a decree on the terms
of the definition, for it has the effect of finally disposing off the proceedings.71 As against
this, it is said that an order rejecting a plaint will not, but for its inclusion in the definition,
be a decree and that the words shall be deemed to include rejection of plaint imports a
legal fiction which could not be extended to an order rejecting the appeal.72 The Calcutta
High Court has held that an order rejecting a Memorandum of Appeal as insufficiently
stamped, is not appealable as a decree, and that the effect of O 7, r 13 read with s 107 (2) is
that the appellant may present a fresh Memorandum of Appeal.73 An order rejecting a
Memorandum of Appeal or dismissing an appeal following the rejection of an application
under s 5 of the Limitation Act, 1963 (for condonation of delay in preferring the appeal) is
not a decree within the meaning of s 2 (2) of the Code of Civil Procedure. It is only an order
against which an application in revision under s 115 of the Code of Civil Procedure 1908 may
lie.74 The Allahabad High Court has held that an order rejecting a Memorandum of Appeal
for reasons for which rejection is not prescribed by the Code of Civil Procedure, is not a
decree;75 but, there have been decisions allowing an appeal when the Memorandum of
Appeal was rejected as not duly presented,76 or as scandalous,77 or as insufficiently
stamped.78 A Memorandum of Appeal which is time-barred is dismissed under the
Limitation Act, 1963 and such dismissal disposes off the appeal and is appealable as a
decree.79 When an appeal is rejected under O 41, r 10(2) for failure to furnish security for
costs, there is no appeal, the order does not determine the rights of the parties.80 An order
dismissing an appeal on the ground that it is barred by limitation is a decree;81 so also, an
order dismissing an appeal in limine under O 41, r 11.82 An order that a suit abates, is a
decree. Similarly, an order directing that an appeal or a cross-objection abates is also a
decree.83

(u) Order returning Memorandum of Appeal. No appeal lies from an order returning a
Memorandum of Appeal to be presented to the proper court.84 Nor does an appeal lie
from an order returning a Memorandum of Appeal for amendment.

(v) Omission of the words section 47 or: Effect of. An execution proceeding, though a proceeding
in a suit, is not a suit.85 Therefore an order passed in such a proceeding was treated as a
decree from which an appeal would lie; but, under the definition of decree as it stood when
this sub-section contained the words under s 47 or, the expression decree included an
order passed in execution proceedings under s 47 if : (i) the executing court therein
conclusively determined a question; (ii) it arose between the parties to the suit in which the
decree was passed, or their representatives; and (iii) it related to the execution of the
decree.86 If it decided a question relating to the rights and liabilities of the parties with
reference to the relief granted by the decree, it fell within the scope of s 47 and was
tantamount to a decree; but orders which were merely incidental and referred to the
conduct of the proceedings were held not to be within the section.87 Thus, a decision
refusing to recognise the transferee of a decree,88 or on the question whether a person was
a representative of a party under s 47 (1),89 or to record an adjustment of a decree,90 fell
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within s 47 and was appealable as a decree. An order directing an execution application to

be converted into a suit was held to be in substance an order refusing to execute the decree
and therefore, appealable as such a decree;91 but an order refusing leave to bid at an
execution sale was treated as a mere interlocutory order and therefore

not appealable.1 The Bombay High Court accordingly held an order staying execution of a
decree on security being furnished to be an interlocutory order.2 On the other hand, the
Lahore High Court after a review of authorities, had found that such an order fell under s
47 and was appealable.3 An order refusing to stay execution was held to be an interlocutory
order;4 so also, an order refusing execution on the ground that it had been attached.5 But,
an order that certain property was liable to attachment and sold in execution, was held to
be a decree.6

These controversies, whether an order passed in execution proceedings was tantamount to

a decree or was only an interlocutory order, arose by reason of the words Section 47
occurring in the definition of a decree. The omission of these words by the Amendment
Act, 1976, means that such orders, even though they are made under s 47, are not decrees7
and are therefore, not appealable. A party aggrieved by an order passed in execution
proceedings can challenge its correctness only by a revision, provided such an order
satisfies the conditions prescribed by s 115.

Where all defendants submit to the jurisdiction of a court, the decree of that court cannot
be treated as a nullity.8

Order passed under s 47 by the executing court is not appealable as a decree, unless it is
expressly provided for in other provisions of the Code of Civil Procedure.9

A plea that the decree is contrary to law is not the same thing as a decree that is a nullity.
To render a decree a nullity, it must be shown that the court lacked inherent jurisdiction in
the sense that it was incompetent to try the suit.10

Adjudication in execution is not a decree.11 The omission of the words s 47 or from s 2 (2)
(in 1976), clearly shows that an order under s 47 is not longer appealable as a decree as
held by the Bombay High Court.12

The Bombay view points out that but for the words s 47 or occurring (prior to 1976) in s 2
(2), an order under s 47 would not have been a decree. These words gave an extended
connotation to decree; but that extension itself has now been deleted. As a result, orders
under s 47 are not decrees and are not subject to appeal under s 9.

The High Courts enumerated hereinafter, have taken the same view, namely, that there is
(after 1976), no appeal against an order in execution under s 47 :
(i) Allahabad;13
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(ii) Andhra Pradesh;14

(iii) Gauhati;15
(iv) Gujarat;16
(v) Kerala;17
(vi) Orissa;18 and,
(vii) Rajasthan;19

A Patna judgment, however, takes a different view.20

(w) Section 144 : Restitution. An order passed on an appeal setting aside the sale of a
judgment-debtors property is a decree and s 144 is wide enough to cover such an order.21
An order for restitution of costs is a decree.22

(x) Order of Dismissal for default. A suit may be dismissed for default of appearance under O
9, r 8. Such a dismissal is not a decree and is not appealable. Under the Code of Civil
Procedure 1882, there was a conflict of decisions. The Madras High Court held that the
order was not appealable23 while the other High Courts held that it was appealable.24 An
appeal may be dismissed for default of appearance under O 41, r 11(2) or r 17. Such an
order of dismissal is not a decree and is not appealable.25

There may also be a dismissal for default under O 9, r 3, if neither party appears when the
suit is called on for hearing. This is also excluded from the definition of decree. It has been
held that the expression dismissal for default includes not only dismissal for default of
appearance but also for default in the prosecution of a suit or appeal.26 An order
dismissing a suit for failure by the plaintiff to furnish particulars has been held to amount
to dismissal on default and therefore, not a decree.27

(y) Non-Appealable Orders. Orders that are not appealable are, generally speaking, orders that
are processual; that is, interlocutory or incidental orders regulating procedure but not
deciding any of the matters in controversy in the suit. Such orders occur both, in suits and
in execution proceedings. Their number is legion and the following are cited merely by way
of illustration:

In suits. Under s 148 for enlargement of time;28 under s 152 for amendment of a clerical
error in a judgment;29 under O 9, r 9, granting an application for restoration of a suit;30
under O 9, r 13, granting an application to set aside an ex parte decree;31 O 14, r 9, refusing
to frame an issue.32

In execution proceedings. Under O 21, r 40, refusing an application to arrest a judgment-

debtor;33 under O 21, r 66, settling the terms of a sale proclamation34 or declining to set
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aside an ex parte order settling the terms of sale proclamation under O 21, r 66,35 or an
order holding on preliminary issues that the execution application was maintainable.36

An order passed by the court on an objection to the commissioners report is not a decree
and therefore, not appealable.37

3. Decree-Holder: Section 2(3). Decree-holder means any person in whose favour a

decree has been passed or an order capable of execution has been made.

The definition in the Code of Civil Procedure 1882, included a transferee of a decree; but this
was inconsistent with the provisions relating to execution whereby an oral transferee has
no locus standi; under the present section, a transferee is not a decree-holder unless he has
been recognised by the court. A decree for specific performance of an agreement for the
sale of immovable property may be executed either by the plaintiff or the defendant, either
party being a decree-holder in such a case.38 Where the defendant is a public officer and
the government undertakes his defence as provided in O 27, r 8(1), a decree for costs
passed in his favour might be executed by the government as a decree-holder.39 In short, a
decree-holder is one whose name is inscribed on the decree and in whose favour such
decree has been passed.40

Where a suit for permanent prohibitory injunction was dismissed directing the plaintiff to
remove the unauthorised construction on the property given in plaint put up during the
pendency of the suit, the said direction does not amount to a decree as defined in the
Code; but, it certainly amounts to an executable order in favour of the defendant, who
qualifies as a decree-holder within the meaning of the Code.41

4. District: Section 2(4). District means the local limits of the jurisdiction of a principal
Civil Court of original jurisdiction (hereinafter called a District Court), and includes the
local limits of the ordinary original civil jurisdiction of a High Court.

Following this definition, the expression District court, as used in the Inventions and
Designs Act 6 of 1888, has been held to include a High Court in the exercise of its ordinary
original civil jurisdiction;42 but it has since been held in Hyath v. Shake,43 that this is not
necessarily so. In a suit for infringement of copyright under the Copyright Act 1957, if the
subject matter is valued at less than Rs 50,000, it would be the City Civil Court of Calcutta
and not the High Court which would have jurisdiction.44 In the absence of such a court
having the jurisdiction, a High Court having the ordinary original civil jurisdiction would
be deemed to be the District Court.45 If a High Court does not possess the ordinary
original civil jurisdiction, it would not, though at the apex of the civil courts, be the District
Court for the purposes of the Trade and Merchandise Marks Act, 1958.46 The expression
District Court includes the court of the additional district judge.47

The original jurisdiction of the High Court of Madras in matters of appointment of

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guardian of a child is lost after the establishment of family courts under the Family Courts
Act, 1984. Therefore, the petition filed by foreign nationals for appointment of guardian to
an Indian female child, is not maintainable before the original side of the High Court and
has to be transferred to a proper court. Even assuming that the jurisdiction of the High
Court under cl 17 of Letters Patent 1865, still existed, it would be as per the appellants, a
jurisdiction of general nature applicable to all, then s 15 of the Code of Civil Procedure will
come into play, and the appellants should approach the lowest grade court competent,viz
the family court. The proper forum for the parties in the matter is the family court
wherever and whenever it is established and till then, the respective District Courts, with,
of course, the right of appeal before this court.48

5. Foreign Court: Section 2(5). 49[ Foreign Court means a Court situate outside India
and not established or continued by the authority of the Central Government].

This sub-section has been substituted by s 4 of the Code of Civil Procedure (Amendment) Act 2
of 1951, for the old sub-section which, after the Indian Independence (Adaptation of
Central Acts and Ordinances) Order, ran as follows:

Foreign Court means a Court situated beyond the limits of British India which has no
authority in British India and is not established or continued by the Central Government.

The Privy Council, which was not within the definition of a foreign court as it stood
originally,50 is now to be regarded so. The High Court of Justice in England, whether it be
the Chancery Division51 or the Kings Bench Division,52 is a foreign court. The Ceylon
Court also is a foreign court53 and so is the Supreme Court of Mauritius.54

6. Foreign Judgment: Section 2(6). Foreign judgment means the judgment of a foreign
court.

A foreign judgment as defined in this sub-section creates a new right in favour of the
creditor and a new obligation imposed by the foreign court on the debtor. A judgment
given by a foreign court does not cease to be so, when as a consequence of political
change, the territory where the court was situated at the time of the judgment becomes
part of India.

An interim order passed by a Court in USA directing the mother to hand over the interim
custody of minor child to the father until further orders, cannot assume the characteristic
of a foreign judgment as it is not a final order. More so, when such order was passed, the
wife had left the territorial jurisdiction of the Court.55

7. Government Pleader: Section 2(7). Government Pleader includes any officer

appointed by the 56[State Government] to perform all or any of the functions expressly
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imposed by this Code on the Government Pleader and also any pleader acting under the
directions of the Government Pleader.

A person appointed as a special government pleaders under O 27, r 8(B) to conduct a

particular case specified in the notification appointing him does not hold the office of the
government pleader.57

The government can have as many government pleaders as it likes. The definition is
inclusive. It must be read with O 27, rr 4 and 8B.

It is not obligatory to have only one government pleader. The government is also free to
put a particular government pleader in charge of a particular case or cases.58

8. India: Section 2 (7B). India except in sections 1, 29, 43,59[44A], 78, 79, 82, 83 and 87A,
means the territory of India excluding the State of Jammu and Kashmir.

These two sub-sections namely, (7A) and (7B), were inserted by s 4 of the Code of Civil
Procedure (Amendment) Act 2 of 1951.

By the Constitution (Seventh Amendment) Act, 1956, Jammu and Kashmir is a state and its
government, a state government. Therefore, notice under s 80 of the Code of Civil Procedure
would be necessary if a suit is filed against that state in a place where the Code applies. But,
if such a suit is filed within that state, the suit would be governed by the law prevailing
there and a notice may not become necessary.60

9. Judge: Section 2(8). Judge means the presiding officer of a Civil Court.

No judge can act in any matter in which he has any pecuniary interest, nor where he has
any interest, though not a pecuniary one, sufficient to create a real bias.61 An arbitrator is
neither a judge nor a court.62

The members of Administrative Tribunals cannot be considered to be Judges and their

statement cannot be treated as a decree.63

The word court is generic term and embraces a judge but the vice versa is not true. A court
is an agency created by the sovereign for the purpose of administrating justice. It is a place
where justice is judicially administered. It is tribunal presided over by one or more judges
on whom are conferred certain judicial powers for administrating justice in accordance
with law. When a judge takes a seat in the court, the court is set to have assembled for
administrating justice. Therefore, the word court and judge are frequently used
interchangeably because a judge is an essential constituent of the court since there can be
no dispensation of justice without a judge. But, that is not to say that, when a judge demits
office, the court ceases to exist. While the word court and judge are frequently used
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interchangeably, they are not stricto sensu synonyms for the simple reason that a judge by
himself does not constitute a court, being only an essential part of the court.64

10. Judgment: Section 2(9). Judgment means the statement given by the judge on the
grounds of a decree or order.

(a) Meaning. In England the word judgment is generally used in the same sense as a decree
in the Code of Civil Procedure. A judgment must contain the grounds of the decision.65

In the Chambers Dictionary (Deluxe Edition),66 the meaning of the word judgment given
is the act of judging; comparing of ideas to find out the truth, the faculty by which this is
done, an opinion formed; a legal verdict or sentence etc. In The New Shorter Oxford
English Dictionary,67 some of the meanings given are; the sentence of court of justice, a
judicial decision or order in court. One of the meanings given to the word judgment in
Websters Comprehensive Dictionary68 reads thus: the result of judging, the decision or
conclusion reached as after consideration or deliberation.69 In his concurring judgement,
S.B. Sinha, J. observed:

We however, need not go into the aforementioned question in view of the order proposed to be passed by us, in our opinion the
learned Tribunal failed to assign sufficient or cogent reasons in support of its findings. In relation to some issues, no reason has been
assigned. Some issues although noticed have not been adverted to. Some issues have even not been noticed. The impugned order of the
TDSAT, therefore, does not fulfil the criteria of a judgment.70

(b) Every order not judgment. An order passed by an appellate court calling for a finding on an
issue framed by it in an appeal is not a judgment; nor is a direction to pass a final decree
after the deficit court-fees are paid,71 nor an order summarily dismissing an appeal or a
revision.72

When a trial judge at the request of the parties sits extra cursum curiae, his decision is not
an award by an arbitrator but a judgment.73

The award given by the motor accident claim tribunal does not have the status of a
judgment, decree or order as contemplated by the Code of Civil Procedure.74

(c) Judgment, Order and Decree. Judgment stands on a different footing from the order and the
decree. The legislature has avoided the use of words formal expression in the definition of
judgment, though the words formal expression have been used in the definition of order in
s 2 (14). Conversely, it is not necessary that in a decree, there should be a statement of
reasons given by the judge. Statement of reasons is to be given by the judge, only in the
judgment. The decree is the formal expression of conclusions arrived at in the judgment.
So, a formal expression of the order in the judgment is not necessary, though it is
desirable.75
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(d) Decision at the back of a person. Any decision which has been given by any court or
authority behind the back of a person cannot be binding upon him being violative of the
principle of natural justice and a person, who has been put in such a disadvantageous
position by the judgment passed, beyond his back has a right to ignore the same.76

(e) Contradictory Judgments/Decisions. No learned judge would consciously author a judgment

which is self inconsistent or incorporates passages repugnant to each other.77

There can be only one judgment in a case. Two contradictory judgments or judgments in
variance with each other will not have the effect of deciding any question or issue in the
case or of deciding any of the rights of the parties. It is also plain that such judgments can
neither be enforced nor be given effect to. Therefore, if two judges constituting a division
bench give contradictory decisions or decisions in variance with each other, in law, such
decisions cannot be called as judgments as they do not decide any question or issue in the
case or proceeding nor do they decide any of the rights of the parties, the real test being
what is the effect of the two decisions on the case or proceedings in which it is made, the
language or phraseology used being wholly immaterial having no bearing. In such a
situation, the decisions so rendered will only amount to opinions of the respective judges.
This principle will, however, not apply where on account of some statutory provisions like
s 98 of the Code of Civil Procedure, contradictory decisions by their own force lead to decision
of any question or issue in the case or any of the rights of the parties.78

(f) Reasoning. What a judgment should contain is indicated in O 20 r 4 (2) which says that a
judgment shall contain a concise statement of the case, the points for determination, the
decision thereon, and the reasons for such decision. It should be a self-contained
document from which it should appear as to what were the facts of the case and what was
the controversy which was tried to be settled by the court and in what manner. The
process of reasoning by which the court came to the ultimate conclusion and decreed the
suit should be reflected clearly in the judgment.79

Dr. Pasayat, J., speaking for the Supreme Court Bench, expressed it in the following way in
the case of K.V. Rami Reddy v. Prema:80

11. The declaration by a Judge of his intention of what his judgment is going to be, or a declaration of his intention of what the final
result it is going to embody, is not a judgment until he had crystallised his intentions into a formal shape and pronounced it in open
court as the final expression of his mind.

12. The CPC does not envisage the writing of a judgment after deciding the case by an oral judgment and it must not be resorted to and
it would be against public policy to ascertain by evidence alone what the judgment of the Court was, where the final result was
announced orally but the judgment as defined in the CPC embodying a concise statement of the case, the points for determination, the
decision thereon and the reasons for such decision, was finalised lateron.
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The meaning, attributes and contents of a judgment have been explained by the Supreme
Court in the following words in Smt. Swaran Lata Ghosh v. Harendra Kumar Banerjee:81

Trial of a civil dispute in Court is intended to achieve, according to law and the procedure of the Court, a judicial determination
between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their
respective cases on question of law as well as fact, ascertainment of facts by means of evidence tendered by the parties and adjudication
by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are
essential attributes of a judicial trial. In a judicial trial, the judge not only must reach a conclusion which he regards as just, but, unless
otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental process leading from the dispute to its
resolution. A judicial determination of a disputed claim where substantial question of law or fact arise is satisfactorily reached, only if it
be supported by the most cogent reasons that suggest themselves to the Judge; a mere order deciding the matter in dispute but not
supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than
one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest, it is
also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is
ordinarily entitled to know the grounds on which the Court has decided against him, and more so, when the judgment is subject to
appeal. The Appellate court will then have adequate material on which it may determine whether the facts are properly ascertained, the
law has been correctly applied and the resultant decision is just. It is unfortunate that the learned trial Judge has recorded no reasons in
support of his conclusions, and the High Court in appeal merely recorded that they thought that the plaintiff had sufficiently provied
the case in the plaint.

The Bombay High Court has held that judgment should be reasoned. The facts of the case,
the matter in controversy and the manner in which it was settled by the Court must appear
from the judgment notwithstanding whether the case was proceeded ex parte or whether
written statement therein was filed or not.82

(g) Pronouncing Judgment. Before pronouncing judgment, the court has to apply its mind to
arrive at the conclusion whether there is any cause to modify or remit the award. Further
the phrase pronounce judgment would itself indicate judicial determination by reasoned
order for arriving at the conclusion that decree in terms of award be passed. One of the
meanings given to the word judgment in Websters Comprehensive Dictionary83 reads thus:
the result of judging; the decision or conclusion reached, as after consideration or
deliberation. Further, O 20 r 4 (2) Code of Civil Procedure in terms provides that judgment
shall contain a concise statement of case, the points for determination, the decision
thereon, and the reasons for such decision. This is antithesis to pronouncement of non-
speaking order.84

(h) Order of a Single Judge. Order of single judge is judgment if not decree. Against the
judgment of the learned single judge of the High Court under s 299 of Indian Succession Act,
1925 a letters patent appeal is maintainable. The orders passed under s 299 of the Indian
Succession Act, 1925 may be an interlocutory order determining the rights of the parties or a
final order. When a final order is passed in a contentious suit, as would be evident from
the provisions contained in s 295 of the Indian Succession Act, 1925, the procedures of the
Code of Civil Procedure are required to be followed. Therefore, a final order passed between
the parties adjudicating upon the rights and obligations which are binding between the
parties thereto and are enforceable, although may not be, stricto sensu a decree within the
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meaning of s 2 (2) of the Code of Civil Procedure but it is beyond any cavil that the same would
be a judgment within the meaning of s 2 (9) thereof.85

Order passed by a single Judge in an appeal under s 173 of the Motor Vehicle Act is a
judgement.86

(i) Words in Judgmentcannot be interpreted as statutes. Courts should not place reliance on
decisions without discussing as to how the factual situation fits in with the fact situation of
the decision on which reliance is placed. Observations of courts are not to be read as
Euclids theorems nor as provisions of the statute. These observations must be read in the
context in which they appear. Judgments of courts are not to be construed as statutes. To
interpret words, phrases and provisions of a statute, it may become necessary for judges to
embark into lengthy discussions, but the discussion is meant to explain and not to define.
Judges interpret statutes, they do not interpret judgments. They interpret words of statutes;
their words are not to be interpreted as statutes. Circumstantial flexibility, one additional or
different fact may make a world of difference between conclusions in two cases. Disposal
of cases by blindly placing reliance on a decision is not proper.87

In a recent decision, a Division Bench of the Jharkhand High Court has observed that
judgments should not be couched in a language which the ordinary people would find
difficult to comprehend. It was observed:

A common man cannot and shall not be able to understand the abbreviation and the words used in the impugned judgment. It is well
settled that the use of abbreviations or code words should be strictly avoided. It is equally well settled that the judgment should be so
precise and so clear that a common man or a litigant must understand the judgment. The language should be sober, temperate and
clear.88

(j) Ratio Decidendi. A judgment, it is trite, is not to be read as a statute. The ratio decidendi
of a judgment is its reasoning which can be deciphered only upon reading the same in its
entirety. The ratio decidendi of a case or the principles and reasons on which it is based is
distinct from the relief finally granted or the manner adopted for its disposal. Answers
given in judgment to the question is not the ratio to a judgment. The answers to the
questions are merely conclusions. They have to be interpreted, in a case of doubt or
dispute with the reasons assigned in support thereof in the body of the judgment,
wherefor, it would be essential to read the other paragraphs of the judgment also. It is also
permissible for this purpose to look to the pleadings of the parties.89

(k) Judgmentletters Patent. The concept of judgment in s 2 (2) of the Code of Civil Procedure is
narrow and cannot be applied for interpreting the word judgment in the letters patent.90
Definition of judgment in Code of Civil Procedure does not apply to the expression judgment
occuring in cl (10) of Letters Patent, Patna.91 To determine the question whether an
interlocutory order passed by one judge of a High Court falls within the meaning of
judgment for purposes of Letters Patent, the test is: whether the order is a final
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determination affecting vital and valuable rights and obligations of the parties concerned.
This has to be ascertained on the facts of each case. The order passed by the learned single
judge determines the entitlement of the workmen to receive benefits and imposes an
obligation on the appellant to pay such benefits provided in the said section. That order
cannot but be judgment within the meaning of cl (10) of Letters Patent, Patna. The order
of the learned single judge passed on application under s 17 B of the Industrial Disputes Act,
1947 on 26 April 1999 is judgment within the meaning of cl 10 of the Letters Patent of
Patna and is, therefore, appealable.92

11. Judgment-Debtor: Section 2(10). Judgment-debtor means any person against whom
a decree has been passed or an order capable of execution has been made.

The word judgment-debtor as used in this rule has been held not to include the legal
representative of a deceased judgment-debtor.93 A surety of a judgment-debtor is not
himself a judgment-debtor.94

12. Legal Representative: Section 2(11). Legal representative means a person who in law
represents the estate of a deceased person, and includes any person who intermeddles with
the estate of the deceased and where a party sues or is sued in a representative character
the person on whom the estate devolves on the death of the party so suing or sued.

(a) Scope. The definition of legal representative is inclusive in character and its scope is
wide. It is not confined to legal heirs only. It stipulates a person who may, or may not be
an heir if he is competent to inherit the property of the deceased, but he should represent
the estate of the deceased person. It includes heirs, those in possession bona fide, without
there being any fraud or collusion and are also entitled to represent the estate. Under the
Portuguese law of inheritance, the wife represents the estate of her deceased husband.
When a suit is filed against the husband of such Portuguese widow and after the death of
the husband, wherein the name of the widow is brought on the record within time, the
abatement of the suit would be liable to be set aside, and the suit would

proceed on the merits, notwithstanding the fact that the remaining legal representatives of
the deceased were brought on record at a subsequent stage.1

According to the definition given in the Code, legal representative means a person who in
law represents the estate of a deceased person, and includes any person who intermeddles
with the estate of the deceased and where a party sues or is sued in a representative
character the person on whom the estate devolves on the death of the party so suing or
sued.2

Where a person severed all connections with his natural family and became disciple of a
Guru, other disciples of the said Guru would be his spiritual brothers. Therefore, on his
death one of the spiritual brothers can maintain an application as his legal representative.3
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The Supreme Court has held that in the case of death of a person due to motor vehicle
accident, a legal representative is a person who suffers on account of death of that person
and need not be a wife, husband, parent and child.4 The Madhya Pradesh High Court has
held that the brother of the deceased, who was a handicapped person and was dependent
on him can be considered as a legal representative.5

The adjudication contemplated under O 22 of the Code does not finally determine the
question as to who is the legal representative of the deceased. This determination is only
for the purpose of continuing the proceeding that had already begun.6 While dealing with
an application under O 22 of the Code, the Courts are not required to delve into the
question of title. The Court is only required to see whether the person sought to be
substituted has any right or whether he is the legal representative of the heirs, as defined in
s 2 (11) of the Code. Thus, where a petitioner claimed to be legal representaive of the
deceased plaintiff on the basis of a registered adoption deed, it was held that for the
purposes of O 22 it was sufficient to allow the prayer.7

The decision as to who is the legal representative for the purpose of proceedings is
necessarily limited for the purpose of carrying on the proceedings and cannot have the
effect of conferring of any right of heirship to the estate of the deceased. It is true that all
legal heirs are ordinarily also legal representatives but the converse is not true. All legal
representatives are not necessarily legal heirs at will.8

A legal representative in a given case need not be a surviving spouse, son, daughter, father
or mother of a deceased tenant living with the tenant in the petition schedule property up
to the death of the tenant. Legal representative, ordinarily means, a person who in law,
represents the estate of the deceased persons or persons on whom the said estate devolves
on the death of the individual.9

Of many heirs, those in possession bona fide without any element of fraud or collusion
represent the estate of the deceased.10 It has been held by the Supreme Court that legatees
of portions of estate are legal representatives.11

In a suit by a benamidar, the real owner is not the legal representative on his death.12 Even
if the real owner is in possession, he is not the legal representative of the benamidar, as he is
in possession in his own right. There is no question of any estate of the benamidar
devolving upon him or his representing it. A benamidar, on the other hand, represents the
real owner. During an act ion between a benamidar and a third party, the benamidar died and
his heirs were brought on record. An application by the real owner for being brought on
record was dismissed. The decree passed against the heirs of the benamidar was held to be
binding on the real owner since the benamidar, and after his death, his heirs, represent the
real owner.13 It has been held that to decide whether a person is a legal representative or
not, it is not unnecessary to inquire whether the deceased had left the estate.14 Where the
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assessee had individual income from business and properties, and on his death, his eldest
son voluntarily filed returns on behalf of the deceased assessees, the return filed by the
eldest son were scrutinised by the Income-tax officer, who also issued notice to him to
appear and produce certain documents and other material. The deceased left behind 10
legal representatives. Except the eldest son who filed the returns, no notices were served
on the remaining nine representatives. It was held in the circumstances that it could not be
said that the assessment orders are null and void on account of non-service of notice on
nine out of 10 legal representatives of the assessee.15

(b) Strictest sense. The expression legal representative in its strictest sense was limited to
executors and administrators only,16 and in cases under the Indian Succession Act, 1925 that is
still the case.17 But, its meaning was extended after many conflicting decisions to include
heirs and also persons who, without title either as executors, administrators or heirs, were
in possession of the estate of the deceased. All these earlier cases are reviewed in Dinamoni
v. Elahadut Khan,18 and the definition settles the meaning of the term as explained there.19
Universal legatee under a will executed by the deceased is his legal representative.20 Under
the Portuguese law of inheritance, the widow acquires meeira rights, according to which she
gets one-half share in the estate left by her deceased husband. She therefore, represents her
husbands estate. If, in a suit against a male governed by Portuguese law, on his death, his
widow is substituted within time, the suit can proceed on the merits, even if other
representatives are brought later.21 A suit was filed for declaration of title and recovery of
possession. The defendants constituted a joint Hindu family. One minor defendant died,
leaving his mother and father. The father was already on record as Karta, but the mother
was not substituted. It was held that by virtue of s 6, Hindu Succession Act, 1956, the minors
interest in the joint family property devolved on his mother. If a person is survived by a
female relative specified in the sch 1 to the Hindu Succession Act, 1956, (the mother, in this
case), then the coparcenary, to the extent of the interest of the deceased minor, ceased to
exist immediately upon his death. Hence, the minors interest devolved upon his mother. If
the mother is not substituted, the suit would abate.22

The Gauhati High Court has held that brothers of a deceased in a motor accident are
entitled to share in compensation along with widow of the deceased, irrespective of the
fact that they are not dependent on the deceased.23 This point has been clarified by the
Supreme Court in Manjuri Beras case,24 that a claim petition filed by a married daughter of
a motor accident victim is maintainable regardless of the fact that she is not dependent on
him.

Where the husband and wife along with their son died simultaneously in a motor accident,
it was held by the Himachal Pradesh High Court that the son being the youngest of all, by
virtue of the presumption under s 21 of the Hindu Succession Act, 1956, would be deemed to
survive his parents on the principles of Commorientes. Thus, the son being the only legal
heir, his maternal grandmother would be the legal representative.25
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A legatee under a Will executed by a deceased landlord is competent to maintain an

application for execution of a decree as he is covered under the definition of legal
representative of the deceased decree-holder. It is not mandatory for him to obtain a
probate certificate before enabling him to file an execution petition.26

This view has been approved and confirmed by a recent decision of the Supreme Court. It
has been held that in an eviction proceeding, when a legatee under a Will intends to
represent the interests of the estate of the deceased, he will be a legal representative within
the meaning of s 2 (11) of the Code for which it is not necessary to decide whether the
Will is genuine or not.27

(c) Finding of fact. Finding of fact as to whether property is or is not ancestral, is essentially a
question of fact. It cannot be interfered with in second appeal.28 A person on whom the
estate of the deceased devolves would be his legal representative even if he is not in act ual
possession of the estate.29

(d) Persons not Legal Representatives. A mere trespasser, however, cannot be said to be the legal
representative of the deceased as he holds adversely to him and does not intermeddle with
the intention of representing the estate.30

In case of a joint family property, minors interest, who was survived by mother (female
relatives) specified in sch I to Hindu Succession Act, 1956, if the mother is not substituted,
the suit would abate.31 The father is not an intermeddler and cannot be regarded as a legal
representative.

The expression legal representative has not been defined in the Motor Vehicles Act, 1988 but
in ordinary parlance it is understood in the same way it has been defined in the Code.
Ordinarily, heirs of the deceased are the persons who represent the estate of the deceased,
but where parents of the deceased, who are preferential heirs, are alive, brothers and sisters
of the deceased cannot be considered as legal representatives.32

The Andhra Pradesh High Court has held that though the married sister may be the legal
representative of the deceased/injured, she is not entitled to claim compensation in terms
of r 2(g) of the Andhra Pradesh M.V. Rules.33

The matters in relation to tenancy and rent control are different as cases relating to tenancy
and eviction are governed by special enactments and the rules framed thereunder. Even
though tenancy rights are heritable, unless the person claiming to be legal representative of
a deceased tenant was carrying on business with the deceased tenant, he cannot fall within
the definition of tenant.34

This issue has been further clarified by the Supreme Court. It was held that for substitution
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as legal representative it is not enough that the persons seeking impleadment are legal heirs
of the deceased tenant, but it has to be seen whether they were carrying on business with
the deceased tenant till the time of his death or had separated from the joint family.35

The Karnataka High Court held that when the sole plaintiff or sole surviving plaintiff dies
and the right to sue survives on class I legal heirs, the action brought about by the
deceased plaintiff devolves on them when they acquire that right to sue and it is this right
which clothes them with the power to continue the suit/appeal which the
plaintiff/appellant possessed against the defendant respondent. Where it was brought on
record that one of the legal representatives was act ing against the interests of other legal
representatives, it was held that she does not possess a right to sue or the right to
prosecute the claim of the plaintiff.36

(e) Deceased Parties Name cannot be Washed off. The judgment should contain full particulars of
the parties and decree has to follow the judgment. In case name of a deceased party
(originally impleaded) is washed off while substituting legal representatives it is likely to
mislead as it shall not be possible in future to ascertain extent of rights to be determined
with respect to the estate of a deceased party. It may be reiterated that when a person dies,
right of substitution is not on the basis of succession, but a person, who is competent to
represent the estate of a deceased party and has no interest adverse to the deceaseds estate
will be permitted to be substituted as his legal representative.37

To keep the record straight and to avoid misconception and/or ambiguity in future,
statutory provisions specifically provide that when a party to a suit/ proceeding dies, a note
be made to that effect against said party and legal representatives be brought on record as
per r 37, general rules (civil) and Allahabad High Court Rules.38

It, therefore, naturally follows that in an application for substitution of legal representatives
prayer for deletion/striking off/or washing off/to erase/removal of the name of deceased
party on record, is misconceived, untenable and not approved in law, prayer to the above
effect in the amendment application for substitution of legal representatives is totally
misconceived and cannot be legally allowed. It is not permissible in law to erase the name
of original deceased party and to do the contrary is also being uncalled for.39

Once party is impleaded and/or brought on record, proceedings started must be

concluded with their names and continue till perpetuity. In the matter of death of any such
party, in case of substitution of legal representative on an application made in that behalf,
court shall cause legal representative of the deceased, plaintiff/defendant to be made a
party to proceed with the suit and if legal representatives are not be substituted, then a
note shall be made against a party of his death, but in no case name of deceased party shall
be deleted or removed or struck-off.40

(f) Party in a Representative Character. Where a person is a party in a representative character,

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the legal representative is the person who, after his death, represents the estate that is the
subject matter of the suit.41 Thus, where the owner of an ancestral impartible estate is sued
as representing the estate, his successor taking by survivorship is his legal representative; so
also, where the manager of a joint Hindu family dies, the next manager is his legal
representative and where there is no such manager, all the coparceners are his legal
representatives.42 Thus, on the death of a trustee, or of a shebait of a muth, his successor in
office and not his executor or heir is the legal representative, and the suit would be
continued by or against the successor under O 22, r 3 or r 4. A reversioner sues in a
representative character as representing the reversionary right to the estate of the last male
owner. The legal representative of such a reversioner is the next reversioner; and a suit by a
reversioner to set aside an adoption by widow may be continued on his death by the next
reversioner.43 Where pending a suit for specific performance of an agreement to sell by a
party, the latter died and the reversioner sought to raise the question of the binding
character of the agreement, it was held that he was entitled to do so as he was the legal
representative of the last full owner and not of the limited owner.44 A suit by a Hindu
daughter,45 or by a Hindu widow46 to recover the fathers or husbands estate is continued
after her death by the next heirs entitled to come in after her, except in Bombay where the
daughter takes an absolute estate. It has been held that a coparcener leaves no estate in the
coparcenary property at his death and so, the surviving coparcener is not his legal
representative with reference to that property;47 but, a son who has inherited the property
of his father is his legal representative against whom the decree can be executed under s 50
of the Code of Civil Procedure.48 The correctness of the decision that a surviving coparcener is
not a legal representative has been doubted and it has been said that the son who takes the
joint family estate by survivorship should be regarded as a person who in law represents
the estate of the deceased person.49 The widow of a coparcener is also his legal
representative under the Hindu Womens Right to Property Act, 1937,50 and that would
also be the position under Hindu Succession Act, 1956.51 The official assignee has been held
to be the legal representative of the insolvent judgment-debtor within the meaning of O
21, r 22 of the Code of Civil Procedure.52 Where a lunatic whose estate had been taken over by
the court of wards died, it was held that the person competent to represent the estate
thereafter was not the manager appointed previously but the court of wards.53

(g) Intermeddles with the Estate. One who intermeddles with the estate of a deceased person,
even though it may be with part thereof, is a legal representative within the meaning of this
clause and is liable to the extent of the property taken in possession by him.54 He would,
however, not be a legal representative in respect of properties not in his possession.55
However, it has been held that a mere trespasser is not a legal representative as he has not
intermeddled with the intention of representing the estate.56 If a person, who is not the
heir, wrongly brings himself on the record of a suit after the death of a party, he does not
become a legal representative, unless he in fact takes possession and so, intermeddles with
the estate of the deceased.57

The averment in a plaint filed by a bank for the recovery of a loan advanced to a sole
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proprietary concern was that certain relations of the proprietor (since deceased) were
intermeddling with the estate of the deceased, and that is why the intermeddlers were made
parties. It was held that their names could not be struck off.58

In a suit for partition filed by the father and a minor, the suit was decreed, but during the
pendency of the appeal by defendants, the minor died and his mother, who was a class I
heir was not brought on the record within time. A Full Bench of Patna High Court held
that the appeal did not abate as father became his legal representative as intermeddler on
the minors death and as such the mother was allowed to be brought on the record.59
Where, in an appeal arising out of a decree passed in a suit for obtaining possession by
ejecting trespassers, one of the co-owners died during pendency of the appeal, another Full
Bench of the same High Court reiterated the above view and held that since other co-
owners, apart from being brothers were intermeddlers to the estate, the whole appeal
would not abate. It was observed that the definition of legal representative in s 2 (11) of
the Code includes intermeddlers.60

In a case before the Karnataka High Court, where on the death of the plaintiff the suit had
abated, some person claiming to be trustees of a trust constituted through a Will executed
by the deceased plaintiff moved for substitution as legal representatives and for setting
aside abatement. The High Court held that the definition in s 2 (11) of the Code includes
intermeddlers and the prayer of substitution cannot be refused simply because they were
strangers.61

The Supreme Court has held that the term legal representative is wide and inclusive of not
only the heirs but also intermeddlers of the estate of the deceased as well as the persons
who in law represent the estate of the deceased. The executor, administrators, assignees or
persons acquiring interest by devolution under O 22, r 10 or legatees under a Will are legal
representatives.62

In a recent decision, the Supreme Court has confirmed the above view. It has been
observed by Raveendran, J., as follows:

8. Legal representative according to its definition in section 2(11) of the CPC, means a person who in law represents the estate of a
deceased person, and includes any person who intermeddles with the estate of the deceased person. Thus a legatee under a Will, who
intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal
representative.63

13. Mesne Profits: Section 2(12). Mesne profits of property means those profits which
the person in wrongful possession of such property actually received or might with
ordinary diligence have received therefrom, together with interest on such profits, but shall
not include profits due to improvements made by the person in wrongful possession.

The Code of Civil Procedure 1882, for the first time, included interest in the definition of
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mesne profits. It was rightly done because interest is an integral part of mesne profits and
has therefore, to be allowed while computing items.64

The main object of awarding mesne profits is to compensate the person entitled to be in
possession of the property. The very foundation of a cause of act ion for mesne profits is
the wrongful possession of the defendant. Mesne profits are actually in the nature of
damages which can be claimed by a landlord at reasonable letting out value of suit
premises.65

The expression mesne profits as defined in s 2 (12) of the Code means those profits which
a person in wrongful possession of such property either act ually received or might have
received with due diligence. It is not always necessary that there should be proof of actual
receipt.66

For entitling him to grant of mesne profits, the plaintiff must lead evidence to prove what
would be the compensation the defendant might have received with due diligence for his
wrongful possession. Where the plaintiff did not lead any evidence, it was held that he was
not entitled to claim mesne profits.67

The observations made in the above case,68 are worth nothing:

However, the concept of mesne profits appear to be different. Section 2(12) of Civil Procedure Code, defines mesne profits to mean those
profits which the person in wrongful possession of such property act ually received or might with ordinary dilegence have received
therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful
possession. The words Mesne Profits suggest value of house for occupation of land during the time it was held by one in wrongful
possession and is commonly measured in terms of rent and profits (See Blacks Law Dictionary). The Apex Court in the case of Fateh
Chand v. Balkrishna Dass, AIR 1963 SC 1405 [LNIND 1963 SC 20] observed that the normal measure of mesne profits is the value of
the user of the land to the person in wrongful possession.

The criteria for calculation of mesne profits is not what the owner loses by reason of
deprivation from possession but what the trespasser received or might have received with
ordinary diligence.69 Where sale deed in respect of half portion of a property was declared
void, the vendee cannot be said to be in wrongful or unlawful possession and as such
mesne profits cannot be claimed.70

In Thammana Nukiah Shetti v. Velapa Appalaraju,71 a Division Bench of the Andhra Pradesh
High Court, relying on the decision of the Supreme Court in Siddeshwar Mukherjee v.
Bhubaneshwar Prasad Narain,72 observed as follows:

Going by the principle, a purchaser of an undivided share will not be entitled to possession until he is allotted a specific share in the
property. Mesne profits can be claimed by him only from the date when he is deprived of his lawful possession. Section 2(12) of CPC
defines mesne profits of property as profits which the person in wrongful possession of such property actually received or might have
received with ordinary diligence from it. A person is said to be in wrongful possession when he enjoys such possession despite, another
person is entitled to it under law. A purchaser is entitled to lawful possession only when allotment of a specified portion is made to him.
In this case, the finding is that there was a division in status, but there was no division by metes and bounds. A mere division in status
does not bring about the consequences of the different sharers being entitled to specific portion of property. The only legal
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consequence of a division in status of a joint Hindu family is that the erstwhile coparceners become tenants in common without any
member becoming entitled to a spcific portion or item of the properties that belonged to the joint family. In the absence of a specified
allotment, no member is entitled to claim possession of any item of the property or any specified portion of the property of the joint
family. He will have to file a suit to enforce that right, a purchaser from such a member cannot have a higher right than the member of
such a family.

Where in a suit for declaration of title and recovery of possession of immovable properties,
the plaintiff did not claim either past or future mesne profits or rent, but the preliminary
decree directed an enquiry to be made under O 20, r 12, the Supreme Court held that the
High Court was in error in awarding mesne profits when they had not been claimed in the
plaint.73

In a later decision, the Supreme Court clarified that though the plaintiff must plead in
order to enable him to get a decree for past mesne profits, with regard to future mesne
profits, since the plaintiff would have no cause of act ion on the date of the institution of
the suit it was not necessary for him to plead in the plaint and in all cases where there is a
prayer for past mesne profits, the Court had ample jurisdiction to direct an enquiry to be
made into future mesne profits in the preliminary decree.74

The possession of a co-sharer can never be wrongful within the meaning of s 2 (12) as he
has a right and interest in every inch of the undivided property. Therefore, one co-sharer
cannot claim mesne profits against the other, on the ground that the latter was in wrongful
possession.75

Having regard to the definition of mesne profits in s 2 (12), the grant of interest is implicit
in mesne profits. Where the court did not grant interest while passing the order for
payment of mesne profits and, did not take into consideration the question of ordering
payment of interest at all, a review petition for the grant of interest on mesne profits would
be maintainable. Non-award of interest is a patent and glaring mistake. That the applicant
did not make a claim for interest or did not agitate the point during the course of the
hearing, is not a valid argument against review.76

The criterion for assessing mesne profits is not what the plaintiff might have got had he
been in possession, but the value of the user of the tenement to the defendant after
termination of his tenancy.77

Wherein partition suit was filed where the co-sharer was admittedly in possession of
disputed premises, he is accountable for the receipt of profits during the disputed period.
Claim for profits in that period by other co-sharers cannot be regarded as a claim for
mesne profits as defined in s 2 (12) or O 20, r 12. Possession by the co-owner cannot be
termed as unlawful possession and therefore, s 2 (12) of the Code of Civil Procedure, can have
no application. So understood, future mesne profits mentioned in the preliminary decree
could only mean the actual profits received by the person in possession.78
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It cannot be said that mesne profits can be calculated only on the basis of the maximum
rent that the premises could have fetched if let out.79

Mesne profits can be claimed only when there is wrongful possession of the defendant.
But, where dispossession is a joint or concerted act of several persons, each of them who
participates in the commission of that act would be liable for mesne profits even though he
was not in possession and the profits were received not by him but by some of his
confederates.80

Measure of mesne profits is the value of wrongful possession. Rent could be a relevant
factor for considering such a value, but not a decisive matter.81 In terms of the definition
of mesne profits under s 2 (12) of the Code of Civil Procedure, the question of proprietary of
the valuation on account of the same can be decided at the time of trial on evidence where
the court can pass a decree for mesne profits or can direct the inquiry, or, can reject a
prayer of mesne profits.82

The reservation as to profits due to improvements made by the person in wrongful

possession is new.83

14. Movable property: Growing Crops: Section 2(13). Movable property includes
growing crops.

HIGH COURT AMENDMENT

Calcutta. In clause (13) insert the words except in suits or proceedings in the Court of
Small Causes of Calcutta after the words growing crops vide Cal. Gaz. Pt I, dated April 20,
1967.

Growing crops are now movable property and cases in which crops were held to be
immovable property until reaped, are obsolete. The definition must be limited to the Code
of Civil Procedure, for under s 3 (26) of the General Clauses Act, 1897, standing crops are
immovable property.

15. Order: Section 2(14). Order means the formal expression of any decision of a civil
court which is not a decree.

Order in contempt proceedings is an order within the meaning of this section.84 But it may
be noted that contempt is a matter essentially between the court and condemner. The party
filing an application seeking act ion against the contemner is only informant. Once the
court admits the contempt petition, then the petitioner has really no effective role to play
though usually he is given a hearing in such a petition. The contempt alleged may be a
contempt of civil nature but by exercising its jurisdiction to deal with the alleged contempt,
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the court does not become a civil court within the meaning of s 2 (2) and s 2 (14) of the Code
of Civil Procedure. It remains as a court exercising contempt jurisdiction. The court either
punishes the condemner or discharges him or remedies punishment of apology being
made to its satisfaction. No other order is contemplated in such a proceedings. If in such a
proceedings the parties file certain consent terms, they do not form the part of the final
order which is contemplated in contempt proceedings. Filing of the consent terms by the
parties is only a consideration which prompts the court not to proceed further in the
matter and terminate the proceedings by disposing of the petition. Therefore, it can hardly
be said that the consent terms in terms of which the petition is disposed of form the part
of the final order of the court. The court, in exercise of its contempt jurisdiction, does not
decide any issue or question much less on merits. Therefore, the consent terms
incorporated in the final order passed in contempt petition do not amount to a decision
within the meaning of the term as used in s 2 (14) of the Code of Civil Procedure and therefore,
it is not an order within the meaning of that section. Consequently, such an order cannot
be said to be executable under O 21 read with s 36 of the Code of Civil Procedure.85 The award
given by the motor accident claims tribunal does not have the status of a judgment, decree
or order as contemplated by the Code of Civil Procedure.86

16. Pleader: Section 2(15). Pleader means any person entitled to appear and plead for
another in Court and includes an advocate, a vakil and an attorney of a High Court.

(a) Advocate.An advocate is defined in s 22 (a) of the Bar Councils Act, 1926, as one
whose name is entered on the rolls of an advocate of the High Court. An advocate whose
name has been removed from the roll is not within this definition.87 The position would be
the same under s 2 of the Advocates Act, 1961, wherein an advocate is defined as one whose
name is entered in any roll under the provisions of this Act.

(b) Pleader.Pleader means any person entitled to appear and plead for another in court and
includes an advocate, a vakil and an attorney of a High Court.

The term pleader is, here, used in a much larger sense than its ordinary signification as a
convenient term to designate all persons who are entitled to plead for others in court.
Pleader, in its ordinary sense, is synonymous with vakil.88

(c) Authority to Compromise. The extent of the implied authority to compromise varies with
the different grades of legal practitioners.

(i) Counsel and Advocate. Counsel and advocates have an implied authority to compromise in
all matters connected with the action and not merely collateral to it.89 In Sourendra Nath v.
Tarubala,90 the Privy Council said that their Lordships regard the power to compromise a
suit as inherent in the position of an advocate in India. The Rangoon High Court has,
however, held that a barrister in Burma has no power to compromise without the express
consent of his client;91 but, the correct view is that counsel and advocates derive their
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authority from their retainer by reason of being briefed in the suit.92 Therefore, the consent
of a client is not needed for a matter which is within the implied authority of his counsel or
advocate.93 The authority of counsel or advocate may, however, be expressly limited by the
client. If such limitation is communicated to the other side, the consent of counsel outside
the limits of his authority is of no effect.94

Difficult questions, however, arise if the limitation has not been communicated to the
other side and counsel consents in spite of dissent or on terms different from those his
client authorised.95

In some cases, courts have refused to inquire if there is such a limitation,96 and have
refused to set aside a compromise entered into by counsel;97 but, the true rule seems to be
that the court has power to interfere, and the House of Lords has held that the court is not
prevented by agreement of counsel from setting aside or refusing to enforce a

compromise, that it is a matter for the discretion of the court and that, when in the
particular circumstances of the case grave injustice would be done by allowing the
compromise to stand, the compromise may be set aside even though the limitation of
counsels authority was unknown to the other side.1 Similarly, if the consent is given under
a misapprehension or mistake and the other party acts on the ostensible authority of
counsel, the client will be bound; but in such a case the consent given under a
misapprehension may be withdrawn and the compromise set aside if the application is
made before the order is actually drawn up and perfected.2 The application to have the suit
restored to the list should be made before the decree is sealed.3 If the client is present in
court at the time of the compromise, it is not open to him to say that he did not consent;
for if he desires the case to go on and the counsel refuses, and if after that, he does not
withdraw his authority from counsel to act for him, he must be taken to have agreed.4

The implied authority of counsel is limited to the issues in the suit. A compromise will not,
therefore, be binding, if it extends to matters outside the scope of the suit.5 The
appointment of a receiver of debtors property in a partition suit is a collateral matter and
not within the scope of counsels authority; and an arrangement for the appointment of a
partys attorney as receiver interrupts the relationship of attorney and client and will be set
aside.6

The implied authority of counsel is limited to acts and admissions coram judice or in court,
and a compromise effected out of court is not binding upon a client;7 but a compromise is
not vitiated merely because counsel considered the matter in the corridor of the court or in
the Bar library.8

(ii) Attorney or Solicitor. An attorney or solicitor is entitled in the exercise of his discretion, to
enter into a compromise on behalf of his client, if he does so in a bona fide manner.9 A
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solicitor has implied authority by virtue of his position as agent in relation to his client,10
and his authority is limited to the issues in the suit.

(iii) Pleader. Different considerations apply in the case of a pleader who derives his authority
from an express writing, the vakalatnama.11 A pleader cannot enter into a compromise on
behalf of his client without his clients express authority.12

(d) Power to Refer to Arbitration. The law is the same as regards reference to arbitration.
Counsel has an implied power to consent to a reference and so has a solicitor on the
record,13 but, the authority does not extend to referring the case to arbitration on terms
different from those which the client has authorised.14 A pleader or vakil has no power to
refer a case without the express authority of his client;15 nor to settle a case by the oath of
the opposite party.16 It has however, been held by the Allahabad High Court that a power
to settle the case by oath can be implied when the vakalat is in wide and general terms.17

(e) Authority to Withdraw Suit. Counsel has an implied power to withdraw an act ion.18 As
regards vakils or pleaders, it has been held that a vakalatnama couched in general terms
suffices prima facie to authorise him to apply on behalf of his client for leave to withdraw
a suit, and in the absence of anything to show that the vakil had acted contrary to the
clients instructions, or otherwise was guilty of misconduct in making the application, the
client is bound by the act of his vakil.19 Neither an advocate nor an attorney who has
entered appearance on behalf of a client in a cause is entitled to withdraw from it on the
ground that he had not been put in possession of funds by the client unless the warrant of
authority authorises him to do so. In the absence of such authorisation, the attorney or
advocate can only move to get himself discharged and until that is done, he is bound to
appear for the client and to take the necessary steps to protect his interests.20

(f) Power to Bind Client by Admission. Counsel,21 solicitors,22 and pleaders or vakils,23 have an
implied authority to bind their clients by admissions of fact, provided such admissions are
made during the actual progress of the litigation and not in mere conversation.24 A verbal
admission by a pleader must be taken as a whole and must not be unduly pressed;25 but an
admission of liability by a vakil is sufficient to warrant a decree against his client in the
suit.26 The result is that the client will be bound by the admission even though it may be
erroneous; but, counsel, solicitor, or vakil cannot bind his client by an admission on a point
of law. Hence, if the admission be erroneous, the client is free to repudiate it.27 It may here
be observed that the omission of a pleader or counsel to argue a question of law, or his
abandoning a question of law, does not preclude the court from dealing with the
question.28

(g) Power to Abandon Issue. A pleaders general powers in the conduct of a suit include the
power to abandon an issue which, in his discretion, he thinks it inadvisable to press.29

17. Prescribed: Section 2(16). Prescribed means prescribed by rules.

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18. Public Officer: Section 2(17). Public officer means a person falling under any of the
following descriptions, namely:
(a) every Judge;
(b) every member of 30[an All India Service];
(c) every commissioned or gazetted officer in the military, 31[naval or air] forces of
32[the Union], 33[* * *] while serving under the Government;

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or
report on any matter of law or fact, or to make, authenticate or keep any document,
or to take charge or dispose of any property, or to execute any judicial process, or
to administer any oath, or to interpret, or to preserve order, in the Court, and every
person especially authorised by a Court of Justice to perform any of such duties;
(e) every person who holds any office by virtue of which he is empowered to place or
keep any person in confinement;
(f) every officer of the Government whose duty it is, as such officer, to prevent
offences, to give information of offences, to bring offenders to justice, or to protect
the public health, safety or convenience;
(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any
property on behalf of the Government, or to make any survey, assessment or
contract on behalf of the Government, or to execute any revenue-process, or to
investigate, or to report on, any matter affecting the pecuniary interests of the
Government or to make, authenticate or keep any document relating to the
pecuniary interests of the Government, or to prevent the infraction of any law for
the protection of the pecuniary interests of the Government; and
(h) every officer in the service or pay of the Government, or remunerated by fees or
commission for the performance of any public duty.

The definition very nearly corresponds to that of a public servant in the Indian Penal Code
1860, but a person may be a public servant and not a public officer,e.g., a municipal
commissioner and engineer.34 The following have been held to be public officers: a
collector and agent for the court of wards;35 the Official Trustee of Bengal;36 an officer of
the Indian Staff Corps;37 an officer in the Indian Army;38 an Official Assignee;39 the
Administrator-General of Bengal;40 a cantonment committee;41 a receiver in insolvency;42 a
receiver appointed in a suit;43 a Wakf Commissioner of Bengal;44 a village panchayat for a
limited purpose,45 a manager of the estate of a deceased in an administration suit,46 but a
liquidator appointed by registrar of a co-operative society is not a public officer.47 A public
officer on deputation to other work does not cease to be a public officer.48 The
commissioner of the corporation under the Calcutta Municipal Act 33 of 1951, is a public
officer,49 and so also an officer constituting the Board under s 18 of the Bihar Land
Reforms Act, 1950.50 A sarpanch of a mandal panchayat is not a public officer.51
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The word service in s 2 (17)(h) must necessarily mean something more than being merely
subject to the orders of the government or control of the government. To serve means to
perform function; do what is required for. The coal mines provident fund commissioner
appointed by the government performs the functions as envisaged in the Coal Mines
Provident Fund and Miscellaneous Provisions Act, 1948 and the scheme thereunder. When he is
act ually acting in the capacity of provident fund commissioner, he does not cease to be an
officer in the service of the government. The coal mines provident fund commissioner is a
public officer. A suit filed against such officer without notice under s 80 of the Code of Civil
Procedure is not maintainable.52

19. Rules: Section 2(18). Rules means rules and forms contained in the First Schedule or
made under section 122 or section 125.

HIGH COURT AMENDMENT

Calcutta. In clause (18) insert the words in its application to Courts other than the Court
of Small Causes of Calcutta after the word rules and before the words means rules and
forms; and the words of the Code of Civil Procedure, 1908, and, in its application to that court
means the Rules of Practice and Procedure of that Court made under Section 9 of the
Presidency Small Cause Courts Act, 1882, and includes the rules and forms contained in
the First Schedule of that Code which are made applicable to that court by virtue of the
provisions of Order LI of that schedule after the words Section 122 or Section 125 vide
Cal. Gaz., Pt I, dated April 20, 1967.

The civil rules of practice framed under ss 122 or 125 would by reason of this provision
read along with s 2 (1) fall within the definition of the Code of Civil Procedure.53 Not only
rules in First Schedule but also the rules made by the High Court amending rules in the
First Schedule.54

On the question that the Letters Patent, and the rules made thereunder by the High Court
for regulating its procedure on the original side, were subordinate legislation and,
therefore, must give way to the superior legislation, namely, the substantive provisions of
the Code of Civil Procedure. There are two difficulties in accepting this argument. In the first
place, s 2 (18) of the Code of Civil Procedure defines rules to mean rules and forms contained in
the First Schedule or made under section 122 or section 125. The conspicuous absence of
reference to the rules regulating the procedure to be followed on the original side of a
Chartered High Court makes it clear that those rules are not rules as defined in the Code of
Civil Procedure 1908. Secondly, it is not possible to accept that the Letters Patent and rules
made thereunder, which are recognised and specifically protected by s 129, are relegated to
a subordinate status.55
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20. Share in a Corporation: Section 2(19). Share in a corporation shall be deemed to

include stock, debenture stock, debentures or bonds.

21. Signed: Section 2(20). Signed, save in the case of a judgment or decree, includes
stamped.

The definition is wider than in the General Clauses Act, 1897. Indians of rank sometimes use
a stamp instead of signing, and the inability to write is not a condition precedent to the use
of a stamp.56 The Madras High Court has observed that there is no provision that initials
may be made by a stamp.57

S. 3. Subordination of Courts.

For the purposes of this Code, the District Court is subordinate to the High Court, and
every Civil Court of a grade inferior to that of a District Court and every Court of Small
Causes is subordinate to the High Court and District Court.

HIGH COURT AMENDMENT

Calcutta. Insert the words and the Court of Small Causes of Calcutta. after the words
District Court. and before the words are subordinate to; and the words other than the
Court of Small Causes of Calcutta. after the words Court of Small Causes. and before the
words is subordinate; substitute are. for the word is.. before the words subordinate to the
High Court, and every Civil Court ; vide Cal. Gaz. Pt I, dated April 20, 1967.

1. Subordination of Courts. The High Court with reference to civil proceedings is the
highest court of appeal in the part of India in which the Act or regulation containing the
expression operates.58 The enumeration of subordinate courts is not exhaustive and a
collector exercising judicial functions under the Mamlatdars Courts Act, 1906 is subject to
the superintendence and control of the High Court.59 The expression civil court includes
revenue courts.60 A collector acting under s 18 of the Land Acquisition Act, 1894, is not a civil
court;61 nor a tribunal constituted under the Displaced Persons Debt Adjustment Act 70 of
1951.62 An arbitrator for settling compensation payable under s 19 of the Defence of India
Act, 1962 is not a civil court, although he is deemed to be a court and a decree passed by
him is enforceable in the same manner as a decree of a civil court.63 The court of additional
district judge cannot be said to be subordinate to the District Court under this section.64
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The subordination of courts as specified in s 3 is only for the purpose of the Code and not
for the purpose of a special Act. A court of Subordinate Judge in relation to a proceeding
under the Land Acquisition Act is not subordinate to the District Judge. Therefore, an
inquiry conducted by the District Judge under s 340 of the Cr.P.C. for offences under s 195
in relation to payment of compensation under the Land Acquisition Act, was held to be
impermissible.65

2. Different rulings of different High Courts. Where there are different rulings of
different High Courts on a particular point, a subordinate judge should follow the decision
in law of a bench of the High Court to which he is subordinate unless the decision of the
bench has been overruled by a decision of a full bench of that court or unless it has been
over-ruled expressly or impliedly on an appeal to his majesty in council, or by the Federal
or the Supreme Court or unless the law has been altered by a subsequent Act of the
legislature.66

3. Supreme Court. Article 141 of the Constitution of India enacts that the law declared by the
Supreme Court shall be binding on all courts within the territory of India. The courts of
India are therefore bound to follow the decisions of the Supreme Court even though they
are opposed to the decisions of the Privy Council or the House of Lords.67 The Supreme
Court is not bound by the decisions of the Privy Council or the Federal Court.68 It is also
free to reconsider its own decisions;69 but, before a previous decision is pronounced to be
erroneous, the court would satisfy itself with a fair amount of unanimity among its
members that a revision of its view is necessary. Such satisfaction would be firstly, as to the
error in the earlier decision and secondly of its baneful effect on the general interest of the
public.70

4. Courts and tribunalsdistinction. According to the decision in Associated Cement

Companies Ltd. case,71 the word court and tribunal are not synonymous. It is well settled
that the word court is used to designate those forums which are set up in an organised
state to exercise judicial powers of the state to maintain and uphold rights and punish
wrongs that is for administration of justice and the word court would denote ordinary
courts of civil judicature. The judicial power of the government is exercised by
establishment of hierarchy of courts, to decide disputes between its subjects and the
subjects and state. The powers, which these courts exercise, are judicial powers; the
functions, which they discharge, are the judicial functions; and the decision, which they
reach and pronounce, are judicial decisions. However, with the growth of civilisation and
problems of modern life and to avoid delay caused in disposal of cases by ordinary courts
due to heavy pendency and wrangles of procedure in the Code of Civil Procedure and
provision for appeals and revision under the Code of Civil Procedure and to decide disputes
requiring specialised justice several tribunals have been established under various Acts, to
implement administrative policy or determine controversies arising out of some
administrative law. These tribunals have also been invested with judicial power of state by
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divesting ordinary civil courts of the power to decide these matters which are required to
be decided by the tribunal. The distinction between court and tribunal is well known and
their composition and formation is distinct and separate, though both of them have similar
functions to perform as tribunals are clothed with trappings of the court. Though all the
courts are tribunals all the tribunals are not courts. The distinguishing feature between the
courts and tribunal or special forum is that the court is constituted by a state as a part of
the normal hierarchy of courts of civil judicature maintained by the state under its
Constitution exercising judicial power of the state except those which are excluded by law
from their jurisdiction, whereas tribunal is constituted under the special Act to exercise
special jurisdiction in order to decide certain controversy arising under special laws.72

The District Judge who functions as a Claims Tribunal is not only within the
administrative control of the High Court, but also subordinate to it under s 115 of the CPC.
Therefore, the order passed by the Tribunal is revisable under s 115.73

It follows from the above that wherever special statute confers or clothes any authority
with powers of a civil court for decision of civil disputes in general, the orders passed by
such authorities would be revisable in the absence of any provision for appeal against the
same. What is important is that the authority exercising the power must be constituted as a
civil court for decision of civil disputes in general and not for decision of only special
category of civil disputes. The tribunals in the instant case are meant to deal with only
specific class of cases arising out of special enactments. They do not and cannot exercise
powers vested in a civil court for decision of civil disputes in general within the meaning of
s 9 of the Code of Civil Procedure. Such tribunals cannot therefore be termed as civil courts
subordinate to the High Court within the meaning of s 115 of Code of Civil Procedure.74

S. 4. Savings.

(1) In the absence of any specific provision to the contrary nothing in this Code shall
be deemed to limit or otherwise affect any special or local law now in force or any
special jurisdiction or power conferred, or any special form of procedure
prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition contained in
sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect
any remedy which a landholder or landlord may have under any law for the time
being in force for the recovery of rent of agricultural land from the produce of such
land.
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1. Special or local law. The section does not mean that the Code of Civil Procedure does not
apply to proceedings under special or local laws, but only enacts that where there is an
inconsistency, the rules of the Code of Civil Procedure do not prevail.75 There is no
inconsistency between the Code of Civil Procedure and s 77 of the Railways Act 9 of 1890; and if
a railway is owned by the secretary of state in council, notice of a claim to the railway
administration under s 77 of the Railways Act 1890 will not dispense with the necessity of a
notice under s 80 of the Code of Civil Procedure.76 The same rule will apply when the railway is
owned by the government. For instances of such inconsistencies, the undermentioned
cases77 may be referred to. The Mamlatdars Courts Act, 1906 enacts its own special
procedure which excludes that of the Code of Civil Procedure.78

The provisions of the Code of Civil Procedure will apply to all matters on which the special or
local law is silent. Therefore, O 9, r 13, is applicable to proceedings under the Bengal
Premises Rent Act 17 of 1950, and an order passed on such an application is appealable
under s 104 (1) of the Code of Civil Procedure.79

The Arbitration and Conciliation Act (26 of 1996) is a special statute and it provides for a
complete machinery for the resolution of disputes. Therefore, provisions of the Code of
Civil Procedure would not apply to any proceeding under the Act. When the remedy of
appeal is provided under the Act, revision under the Code would not be maintainable.80

Rules framed by the Supreme Court with reference to appeals to it are a special law within
this section and should take precedence over s 114 or O 47 of the Code of Civil Procedure.81

The section gives a local Act local validity and the special procedure therein prescribed
validity within its own sphere. By virtue of sub-s (1), the provisions of the Punjab Courts
Act, 1918, are saved and are not affected by the Code of Civil Procedure. Therefore, the
provisions as to second appeal in s 41 of the Punjab Courts Act, 1918 are not affected by s
100 as now amended.82 No local legislature can prescribe procedure for any court beyond
its own jurisdiction.83

Letters patent as applicable to the High Court of Gujarat is a special law in force which
confers special jurisdiction or power and lays down special form of procedure prescribed
therein for governing the cases where the two judges forming the division bench of the
High Court deferred on a question of law or fact. In view of the provisions of s 4 (1) of the
Code of Civil Procedure 1908, therefore, cl 36 of the letters patent laying down the special
procedure for meeting such a contingency was required to be followed without in any way
being impeded or restricted or being cut across by the procedural requirement laid down
by O 47, r 6 of the Code of Civil Procedure.84 On the question that the Letters Patent, and the
rules made thereunder by the High Court for regulating its procedure on the original side,
were subordinate legislation and, therefore, must give way to the superior legislation,
namely, the substantive provisions of the Code of Civil Procedure. There are two difficulties in
accepting this argument.
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In the first place, s 2 (18) of the Code of Civil Procedure defines rules to mean rules and forms
contained in the First Schedule or made under section 122 or section 125. The
conspicuous absence of reference to the rules regulating the procedure to be followed on
the original side of a Chartered High Court makes it clear that those rules are not rules as
defined in the Code of Civil Procedure 1908. Secondly, it is not possible to accept that the
Letters Patent and rules made thereunder, which are recognised and specifically protected
by s 129, are relegated to a subordinate status.85

Even if s 46 (B) of the State Financial Corporation Act, 1951 was not there, the provisions of
Code of Civil Procedure for the execution of a decree against a surety who had given only
personal guarantee would, in the absence of any provision to the contrary in the State
Financial Corporation Act, 1951, be applicable. Since the term used in s 31 (1) of the State
Financial Corporation Act, 1951 Act, that is, District Judge, is not a persona designata but a
court of ordinary civil jurisdiction, while exercising jurisdiction under ss 31 and 32,
therefore, the ordinary rules of procedure, orders and decrees under Code of Civil Procedure
will apply to such court.86

It is for the party who asserts that the procedural law applicable to a particular proceeding
as something different from that contained in the Code of Civil Procedure to affirmatively
establish it.87 When the special or local law is not in force at the relevant time, this section
cannot apply.88

2. Any special form of procedure. It has been held, having regard to these words, that
where two judges differ in an appeal from the original side of the High Court, the special
procedure laid down in cl 36 of the Letters Patent should be followed, and not the rule laid
down in s 98 of the Code of Civil Procedure.89Section 98(3) was added by the Act 18 of 1929,
and gives effect to these decisions.

S. 5. Application of the Code to Revenue Courts.

(1) Where any Revenue Courts are governed by the provisions of this Code in those
matters of procedure upon which any special enactment applicable to them is silent,
the 90[State Government] 91[***] may, by notification in the official Gazette, declare
that any portions of those provisions which are not expressly made applicable by
this Code shall not apply to those Courts, or shall only apply to them with such
modifications as the 92[State Government] 93[***] may prescribe.
(2)
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Revenue Court in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other
proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil
Court having original jurisdiction under this Code to try such suits or proceedings a as being suits or proceedings of a
civil nature.

Object of the Section. The object of this section is to preserve the summary character of
rent litigation under local laws.

S. 6. Pecuniary jurisdiction.

Save in so far as is otherwise expressly provided, nothing herein contained shall operate to
give any Court jurisdiction over suits the amount or value of the subject-matter of which
exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

1. Otherwise expressly provided. The expression subject matter means not the property
involved in the suit but the relief claimed and it is its value that determines the
jurisdiction.1 The Suits Valuation Act 7 of 1887, prescribes the mode of valuing certain suits
for purposes of determining jurisdiction and the present section must be read subject to its
provisions. Under s 8 of Suits Valuation Act, 1887 the valuation for court fees and the
valuation for jurisdiction in certain suits is the same. Under s 7 cl (iv)(f) of the Court Fees
Act, 1870, the valuation for purposes of court fees in a suit for accounts lies in the
discretion of the plaintiff. Therefore, in a suit for accounts, the plaintiffs valuation in the
plaint fixes the jurisdiction of the court.2 In a suit for unsettled accounts, fixed court fee is
payable and for jurisdictional purposes, such a suit can be valued in terms of valuation as
fixed by the plaintiff.3 In a suit for partition, the value for the purpose of jurisdiction is the
value of the share claimed by the plaintiff and not the value of the entire estate in which
the partition is sought.4 In a suit for recovery of property from the tenant whose tenancy
has been terminated, the valuation of suit for jurisdictional purposes should be on the basis
of annual rent or profit. Suit so valued along with the claim of damage exceeding pecuniary
jurisdiction of the court is liable to be returned for prosecution before the proper court.5

2. Pecuniary limits of jurisdiction. Pecuniary jurisdiction of a court-suit valued less than

Rs 50,000 is to be instituted before the court of the lowest grade competent to try, that is,
additional district judge. The subsequent amendment increasing pecuniary jurisdiction of
civil judge (class I) from Rs 20,000 to Rs 50,000. It cannot be said that the additional
district judge who discharges powers of District Court are not varied and pecuniary
jurisdiction of the district judge was not registered.6
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The exercise of option by a plaintiff to value his claim for the purpose of court-fees,
determines the value for the purpose of pecuniary jurisdiction.7

A subsequent increase in the value of the property takes away the pecuniary jurisdiction of
the Court.8

3. Court may pass a decree in excess of its pecuniary jurisdiction. Section 6 refers to
the courts power to entertain a suit. It is the plaintiffs valuation in his plaint which prima
facie determines the jurisdiction of the court and not the amount which may be found or
decreed by the court.9 If the plaintiffs valuation in his plaint in a suit for accounts is within
the pecuniary limits of the courts jurisdiction, the court may pass a decree for the sum in
excess of the pecuniary limits of its jurisdiction.10 The court has no jurisdiction to grant
reliefs not claimed in the plaint if by reason of their inclusion, the suit would be beyond
the pecuniary jurisdiction of the court.11 Where different suits which are severally within
the jurisdiction of the court are consolidated for hearing, the court does not lose its
jurisdiction to hear it by reason of the value of all the suits exceeding its jurisdiction if
taken together.12

The Bombay High Court has held that in a case of damages, the amount of damage which
the Court can award is limited to the pecuniary jurisdiction of the Court.13

ILLUSTRATION

A sues B in the court of second class subordinate judge for an account and values his suit
for a court fee at Rs 130. Under s 8 of the Suits Valuation Act, 1887, the value of the subject
matter of the suit is Rs 130. The parties arrive at a compromise whereby the first defendant
is to pay Rs 6,000 and the second defendant Rs 5,000 to the plaintiff. The court may pass a
decree in terms of the compromise, although it has jurisdiction limited to suits of which
the value of the subject matter does not exceed Rs 5,000.14

The forum of appeal also is determined by the value of the suit and not by the amount
decreed.15

4. Mesne profits after suit do not affect pecuniary jurisdiction. The value of a suit for
the recovery of possession and mesne profits is the value of the immovable property plus
mesne profits up to the date of the suit. Mesne profits after suit do not form part of the
cause of act ion even though there be a prayer in the plaint for mesne profits after suit. If
the suit is properly brought in the court of a munsiff for the recovery of possession of land
and mesne profits prior to the date of the suit, and there is also a prayer for mesne profits
from the date of the institution of the suit, which are claimed or assessed at a sum beyond
the pecuniary jurisdiction of the munsiff, the munsiff has jurisdiction to fix the mesne
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profits from and after the date of the institution of the suit and to pass a decree therefore
although the amount may be beyond his pecuniary jurisdiction.16

A sues B for possession of land valued at Rs 686 and for the mesne profits up to the date
of the suit valued approximately at Rs 200 and for mesne profits subsequent to the date of
the suit not valued at all. The suit is brought in the court of a munsiff whose pecuniary
jurisdiction is limited to Rs 1,000. A decree is passed in the suit for the plaintiff for
possession and for mesne profits upto the date of the suit. Subsequently, the plaintiff
applies to the munsiff for assessment of mesne profits after the date of the suit claiming Rs
60,000 for such profits. The munsiff can pass a decree for Rs 60,000 though the amount
exceeds his pecuniary jurisdiction.

5. Section applicable only to suits. This section has no application to proceedings other
than suits.17 But proceedings in execution are included in the word suit and will be
governed by the provisions of the Code of Civil Procedure.18

S. 7. Provincial Small Cause Courts.

The following provisions shall not extend to Courts constituted under the Provincial Small
Cause Courts Act, 1887 (9 of 1887),19[or under the Berar Small Cause Courts Law, 1905], or
to Courts exercising the jurisdiction of a Court of Small Causes 20[under the said Act or
Law] 21[or to Courts in 22[any part of India to which the said Act does not extend]
exercising a corresponding jurisdiction], that is to say.

(a) so much of the body of the Code as relates to

(i) suits excepted from the cognizance of a Court of Small Causes;
(ii) the execution of decrees in such suits;
(iii) the execution of decrees against immovable property; and
(b) the following sections, that is to say,

section 9,

sections 91 and 92,

sections 94 and 95 23[so far as they authorise or relate to

(i) orders for the attachment of immovable property,

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(ii) injunctions,
(iii) the appointment of a receiver of immovable property, or
(iv) the interlocutory orders referred to in clause (e) of section 94 ], and

sections 96 to 112 and 115.

1. Changes in the section. The words or under the Berar Small Cause Courts Law 1905,
were inserted after 1887 and the words the said Act or Law were substituted in place of the
words that Act by the Act 4 of 1941, sch 3. The words or to courts in Part B States
exercising a corresponding jurisdiction have been inserted after the words the said Act or
law by the Code of Civil Procedure Amendment Act 2 of 1951. The words in sub-cl (b) from
so far as they authorize or relate to upto the words of s 94 were substituted by Act 1 of
1926, for the words so far as they relate to injunctions and interlocutory orders which
occurred in cl (b) of the original section after the words and figures ss 94 and 95. Act 1 of
1926 is the Small Cause Courts (Attachment of immovable property) Act, 1926, but
Adaptation Laws Order No 2 of 1956, the words any part of India to which the said Act
does not extend were substituted for the words Part B States.

2. Attachment before judgment by Small Cause Court. By reason of cl (a)(iii) of this

section read with O 50, r 1, cl (a)(ii), the small cause courts do not have the power to
execute decrees against immovable property in accordance with the provisions of the Code
of Civil Procedure and the rules.24 A provincial small cause court has, however, jurisdiction to
attach movable property before judgment. An attachment before judgment is not one of
the interlocutory orders referred to in cl (b) of the section.25

As regards immovable property, there were conflicting decisions of the Calcutta High
Court on the question whether a provincial small cause court had jurisdiction to order an
attachment of such property before judgment. The whole question was considered by a
full bench of that High Court in the undermentioned case,26 and it was held by a majority
that a court of small causes has such jurisdiction, but expressed a doubt as to the intention
of the legislature in the matter when the Code of Civil Procedure was passed in 1908. To
resolve that doubt, the abovestated words were substituted by Act 1 of 1926, for the words
so far as they relate to injunctions and interlocutory orders, which occurred in cl (b) of the
original section after the words ss 94 and 95. To make the matter clearer, a new rule, being
r 13, was added to O 38 by the same Act.

Under s 37 (2) of the Delhi Rent Control Act, 1958, the rent controller appointed under that
Act has to follow the practice and procedure of a court of small causes as prescribed by
the Code of Civil Procedure and the Provincial Small Cause Courts Act, 1887. Therefore, if any of
the provisions of the Code of Civil Procedure are not applicable to a court of small causes, the
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same will not be applicable to proceedings before the rent controller. Under s 15 (1) of the
Provincial Small Cause Courts Act, 1887 read with Art. 4 of sch 2 thereto, a suit for possession
of immovable property or for recovery of an interest in such property is excepted from the
cognisance of a court of small causes. An application under s 14 of the Delhi Rent Control Act,
1958 is in the nature of a suit for possession of immovable property. Therefore, O 23, r 3
of the Code of Civil Procedure, providing for recording a compromise in so far as it relates to
a suit for possession of immovable property, cannot apply to an application under the
proviso to s 14 of the Delhi Rent Control Act, 1958. Such an application is not maintainable.27

A suit instituted on the original side and subsequently transferred to the small cause court
retains its character as an original suit and it is competent to the court to order attachment
before judgment of immovable property.28

The provisions of O 23, r 3 of the Code of Civil Procedure are applicable to revisions under s
25 of the Provincial Small Causes Courts Act, 1887, also. The court must see that if the
parties have entered into a lawful compromise which is not otherwise forbidden by any
law, the case is decided in terms of the compromise.29

A final decree was passed in a suit for partition. Subsequently, there was interference with
the plaintiffs possession over the allotted portion. It was held that the suit filed by the
plaintiff for injunction to restrain the defendant from interference with possession was not
barred. Subsequent acts of the defendant give rise to a fresh cause of action.30

S. 8. Presidency Small Cause Courts.

Save as provided in Sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76, 31[77, 157 and 158],
and by the Presidency Small Cause Courts Act, 1882 (15 of 1882), the provisions in the
body of this Code shall not extend to any suit or proceeding in any Court of Small Causes
established in the towns of Calcutta, Madras and Bombay:
32[Provided that

(1) the High Courts of Judicature at Fort William, Madras and Bombay, as the case may
be, from time to time, by notification in the [official Gazette, direct]33 that any such
provisions not inconsistent with the express provisions of the Presidency Small
Cause Courts Act, 1882 (15 of 1882), and with such modifications and adaptations
as may be specified in the notification, shall extend to suits or proceedings or any
class of suits or proceedings in such Court;
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(2) all rules heretofore made by any of the said High Courts under section 9 of the
Presidency Small Cause Courts Act, 1882 (15 of 1882), shall be deemed to have
been validly made.]

STATE AMENDMENT

Gujarat. In s 8, in the opening para, after the words Calcutta, Madras and Bombay, insert
the words and in the city of Ahmedabadgujarat Act XIX of 1961 as amended by Gujarat
Act XXXII of 1961, s 21 and Schedule (w.e.f. 1 November, 1961).

The Gujarat Act 19 of 1961 as amended by Gujarat Act 32 of 1961, has inserted the words
and in the City of Ahmedabad after the words Calcutta, Madras and Bombay.

The proviso was inserted in the section by s 2 of the Code of Civil Procedure Amendment Act 1
of 1914. The words official gazette, were substituted for the words local official gazette by
the Government of India (Adaptation of Indian Laws) Order 1937.

The word suit in the expression shall not extend to any suit or proceeding includes any
decree that may be passed in such a suit.34 The court of small causes has jurisdiction to
pass a garnishee order and to set it aside when passed ex parte of proper reasons,35 but
such an order would not be appealable.36 The presidency small cause court has no
jurisdiction to execute the decree of a foreign court.37 The period of 12 years prescribed in
s 48 for execution of a decree has no application to a decree passed by the presidency small
cause court.38Section 48 has been deleted by the Limitation Act, 1963.

On account of extension by the High Court of certain provisions of the Code of Civil
Procedure to the Small Causes Court of Bombay, O 9 with certain modifications is
applicable to that court but not s 104 or O 43, r 1 of the Code of Civil Procedure. An appeal
against an order refusing to set aside an ex parte decree against a tenant for possession
passed under s 28 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act,
1947, is not maintainable under O 43, r 1 of the Code of Civil Procedure; but such an appeal is
maintainable under s 29 of the Rent Act as the impugned order was passed under s 28 of
the Act.39 Similarly, the small causes court at Calcutta can grant interim injunction in cases
provided by the rules framed by the High Court empowering it to do so, but not under O
39, r 2 of the Code of Civil Procedure, which does not apply.40

1 Subs. by CPC (Amendment) Act, 104 of 1976, s 2, for sub-s. (3) (w.e.f. 1-2-1977).
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1 . Ravula Subba Rao v. CIT, AIR 1956 SC 604 [LNIND 1956 SC 49]: (1956) SCR 577 [LNIND 1956 SC 49] : (1956) SCJ 591 [LNIND
1956 SC 49] : (1956) SCA 1025 [LNIND 1956 SC 49].
2 . AG of Bengal v. Premlal Mullick, (1895) ILR 22 Cal 788 (PC); Shantha Nand Gir Chela v. Basu Devnand, AIR 1930 All 225 [LNIND 1930
ALL 3], 230 (FB).
3 . AG of Bengal v. Premlal Mullick, (1895) ILR 22 Cal 788; Gulabchand Gambhirmal v. Kudilal Govindram Seksaria, AIR 1951 MB 1, p. 5.
4 . Venkateswara v. Venkatesh, AIR 1941 Mad 449: (1941) ILR Mad 559; Jiban Krishna v. Sailendra, AIR 1946 Cal 272: (1946) ILR Cal 250 :
(1946) 50 Cal WN 129; Krishna Ayyangar v. Nalla Perumal Pillai, (1920) ILR 43 Mad 550, pp. 559, 565 : 47 IA 33, p. 42 : (1895) ILR 22 Cal
788 : 22 IA 107; Narendra v. Kamal Basini, (1896) ILR 23 Cal 563 : 23 IA 18; Kondayya v. Narasimhulu, (1897) ILR 20 Mad 97, p. 103; Lala
Suraj Prasad v. Golab Chand, (1901) ILR 28 Cal 517; Gulab Chand v. Kudilal, AIR 1952 MB 1(FB) : (1952) ILR MB 15; Hari Charan v. Ulipur
Bank, AIR 1942 Cal 442: (1942) 46 Cal WN 634 : (1942) 75 Cal LJ 203.

5 . Gilbert v. Gilbert and Boucher, [1928] p. 1; Re Turners Will Trusts, (1937) 1 Ch 15 ; Poonamchand v. Municipal Board, Jhalawar, AIR 1965 Raj
98, p. 102 : (1964) Raj LR 620.
6 . Food Controller v. Cork, AIR 1923 Cal 647.
7 . R v. Burt, ex p Preburg, (1960) 1 QB 625.
8 . Kapildeo Prasad v. Ramanand Prasad, AIR 2007 Pat 1: 2007 (2) AIR Jhar R 231.
9 . Padmasundara Rao v. State of T.N., AIR 2002 SC 1334 [LNIND 2002 SC 201], p. 1340 : (2002) 3 SCC 533 [LNIND 2002 SC 201].
10 . AIR 1957 SC 628 [LNIND 1957 SC 37], p. 631 : 1957 SCR 930.
11 . SALMOND : Jurisprudence, 11th Ed., p. 152.
12 . District Mining Officer v. Tata Iron and Steel Co., AIR 2001 SC 3134 [LNIND 2001 SC 1542], p. 3152 : (2001) 7 SCC 358 [LNIND 2001
SC 1542].
13 . Justice G.P. Singh: Principles of Statutory Interpretation, (Twelfth Ed., 2010), p. 3.
14 . J.P. Bansal v. State of Rajasthan, AIR 2003 SC 1405 [LNIND 2003 SC 322], p. 1409 : (2003) 4 SCC 134.
15 . AIR 2005 SC 294 [LNIND 2004 SC 1208], p. 297 (See: Frankfurther, Some Reflections on the Reading of Statutes in Essays on
Jurisprudence, Columbia Law Review, p. 51).
16 . See Corrocraft Ltd. v. Pan American Airways, (1968) 3 WLR 714, p. 732.
17 . Bhatia International v. Bulk Trading S.A., AIR 2002 SC 1432 [LNIND 2002 SC 1441], p. 1437 : (2002) 4 SCC 105 [LNIND 2002 SC
1441].
18 . Justice G.P. Singh: Principles of Statutory Interpretation (Twelfth Ed., 2010), p. 12.
19 . Udebhan v. Kapoor Chand, AIR 1967 Punj 53, 59 : (1966) 68 Punj LR 591; Moolji Jaitha v. Khandesh Spinning and Weaving Mills, AIR 1950 FC
83, 116; Om Prakash v. Emperor, AIR 1948 Nag 199: (1947) ILR Nag 579; Joseph DSILVA v. Emperor, AIR 1947 Bom 310: (1946) ILR
Bom 1069; Sales-tax Officer v. Kanhayalal, AIR 1959 SC 135 [LNIND 1958 SC 107]: [1959] SCR 1350 [LNIND 1958 SC 107] : (1959) SCJ
53 [LNIND 1958 SC 107].
20 . Tukino v. Actea District Mooriland Board, AIR 1941 PC 109; Salish v. Sudhir, AIR 1942 Cal 429: (1942) 46 Cal WN 541, p. 543; Lala Suraj v.
Golab Chand, (1900) ILR 27 Cal 724.
21 . Nalinkya v. Sham Sundar, AIR 1953 SC 148 [LNIND 1953 SC 11]: [1953] SCR 533 [LNIND 1953 SC 11]; British India General Insurance
Co. Ltd. v. Itbar Singh, AIR 1959 SC 1331 [LNIND 1959 SC 112]: [1960] 1 SCR 168 [LNIND 1959 SC 112].
22 . Durga Chowdhrani v. Jawahar Singh, (1890) ILR 18 Cal 23.
23 . Sales-tax Officer v. Kanhaya Lal, AIR 1959 SC 135 [LNIND 1958 SC 107]; K.M. Viswanatha Pillai v. K.M.S. Pillai, AIR 1969 SC 493
[LNIND 1968 SC 394]: (1969) 1 SCC 88; Nandlal More v. Ramchandran Mirchandani, AIR 1968 Bom 208 [LNIND 1966 BOM 43]: (1966)
68 Bom LR 871; Bharat Sarvodaya Mills Co. Ltd. v. Mohata Bros., AIR 1969 Guj 178 [LNIND 1968 GUJ 116], 186 : (1969) 10 Guj LR 457;
Gram Panchayat, Murthal v. Land Acquisition Collector, AIR 1972 Punj 36; Union of India v. Authority under the Minimum Wages Act, AIR 1969
Bom 310 [LNIND 1968 BOM 40]; Khusilal v. Board of Revenue, AIR 1967 MP 201 [LNIND 1967 MP 22].
24 . New Piece Goods Bazaar Co. Ltd., Bombay v. Commissioner of Income-tax, Bombay, AIR 1950 SC 115: [1950] SCR 513 : (1950) SCJ 437
[LNIND 1950 SC 28].
25 . Jayachand v. Doli Govinda, AIR 1944 Cal 272: (1944) 48 Cal WN 454.
26 . Commissioner of Income-tax, WB v. Sri Kishab Chandra Mandal, AIR 1950 SC 265 [LNIND 1950 SC 21]: [1950] SCR 435 [LNIND 1950 SC
21] : (1950) SCJ 364 [LNIND 1950 SC 21].
27 . RMDC v. State of Mysore, AIR 1962 SC 594 [LNIND 1961 SC 496]; Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375 [LNIND
1953 SC 70]: [1954] SCR 1 [LNIND 1953 SC 70] : (1953) SCJ 592 [LNIND 1953 SC 70].
28 . Srinivasamurthy v. State of Mysore, AIR 1959 SC 894 [LNIND 1959 SC 388].
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29 . Kesavan Madhava Menon v. State of Bombay, AIR 1951 SC 128 [LNIND 1951 SC 3]: [1951] SCR 228 [LNIND 1951 SC 3] : (1951) SCJ
182; Rananjaya Singh v. Baijnath Singh, AIR 1954 SC 749 [LNIND 1954 SC 119]: [1955] 1 SCR 671 [LNIND 1954 SC 119] : (1954) SCJ
838 [LNIND 1954 SC 119].
30 . Kanai Lal v. Paramnidhi, AIR 1957 SC 907 [LNIND 1957 SC 83]: [1958] SCR 360 [LNIND 1957 SC 83]; Ganpat Ragho v. Maharashtra
Revenue Tribunal, AIR 1970 Bom 86 [LNIND 1968 BOM 127]: (1970) ILR Bom 626 : (1969) 71 Bom LR 815.
31 . State of Rajasthan v. Mewar Sugar Mills Ltd., AIR 1969 SC 880; Corpn. of Calcutta v. Liberty Cinema, AIR 1965 SC 1107 [LNIND 1964 SC
354].
32 . Keshavananda v. State of Kerala, AIR 1973 SC 1461 [LNIND 1973 SC 154], pp. 1619, 1934.
33 . Sushil v. Emperor, AIR 1943 Cal 489: (1943) 47 Cal WN 757.
34 . Manindra v. Gopi Ballav, AIR 1941 Cal 353: (1941) 45 Cal WN 44, p. 48.
35 . Parulekar v. District Magistrate, Thane, AIR 1952 SC 324 [LNIND 1952 SC 38]: [1952] SCR 683 [LNIND 1952 SC 38] : (1952) SCJ 476;
State of Punjab v. Ajaib Singh, AIR 1953 SC 10 [LNIND 1952 SC 68]: [1953] SCR 204 : (1952) SCJ 664 [LNIND 1952 SC 68].
36 . Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 SC 394 [LNIND 1953 SC 68]: [1953] SCR 1189 : (1953) SCJ 563 [LNIND 1953
SC 68]; Venkataramana v. State of Mysore, AIR 1958 SC 255 [LNIND 1957 SC 119]: [1958] SCR 895 [LNIND 1957 SC 119] : (1958) SCJ
382 [LNIND 1957 SC 119]; Sirajul Haq v. SC Board of Wakf, AIR 1959 SC 198 [LNIND 1958 SC 102]: [1959] SCR 1287 [LNIND 1958
SC 102] : (1959) SCJ 367 [LNIND 1958 SC 102].
37 . Aswini Kumar v. Arabinda Bose, AIR 1952 SC 369 [LNIND 1952 SC 94]: [1953] SCR 1 [LNIND 1952 SC 94] : (1952) SCJ 568.
38 . RMDC v. Union of India, [1957] SCR 930 : (1957) SCJ 593 : (1957) SCA 912; Bipal Beni v. Sawarkar, AIR 1962 Bom 167 [LNIND 1961
BOM 38].
39 . Regional Provident Fund Commr. v. Sri Krishna Metal Mfg. Co., AIR 1962 SC 1536 [LNIND 1962 SC 113].
40 . Arjun Rantara v. Krishna Chandra, AIR 1942 Pat 1; Janardhan v. Ramdhone, (1896) ILR 23 Cal 738, 743.
41 . Dharshan Singh v. State of Punjab, AIR 1953 SC 83 [LNIND 1952 SC 83]: [1953] SCR 319 : (1953) SCJ 48; Poppatlal Shaw v. State of
Madras, AIR 1953 SC 274 [LNIND 1953 SC 38]: [1953] SCR 677 [LNIND 1953 SC 38] : (1953) SCJ 369 [LNIND 1953 SC 38].
42 . Gaur Chand v. Pradyamma, AIR 1945 Cal 6: (1943) ILR 2 Cal 485; Ram Lakan v. Bisweswar, AIR 1948 Nag 214: (1948) ILR Nag 85; Kishan
v. Habibullah, AIR 1946 All 448: (1947) ILR All 63; Ayodhya Prasad v. Bala Mukund, (1886) ILR 8 All 354.
43 . C.V. Rama Rao v. E. Narayana, AIR 1963 AP 168 [LNIND 1962 AP 115] (FB).
44 . Madan Lal v. Shree Changdeo Sugar Mills, AIR 1962 SC 1543 [LNIND 1962 SC 125]; Turabuddin v. Commissioner, Meerut Division, AIR 1972
All 146.
45 . Dormer v. Newcastle-on-Tyne Corpn., (1940) 2 All ER 521 p. 527 (CA) [Goddard. L.J.].
46 . Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 [LNIND 1957 SC 119], p. 268 : 1958 SCR 895 [LNIND 1957 SC 119].
47 . British Airways Plc. v. Union of India, AIR 2002 SC 391 [LNIND 2001 SC 2534] p. 393 : (2002) 2 SCC 95 [LNIND 2001 SC 2534].
48 . Indrajit Pratap v. Amar Singh, (1923) ILR Pat 676, p. 684 : 50 IA 183, p. 191; Johuram Bibi v. Howrah Jute Mills, AIR 1948 Cal 134: (1948)
ILR 2 Cal 1; Jyoti Bhusan v. BN Sarkar, AIR 1945 All 311: (1945) ILR All 165; Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425
[LNIND 1955 SC 2], p. 429 : [1955] 2 SCR 1 [LNIND 1955 SC 2].
49 . Jyoti Bhusan v. BN Sarkar, AIR 1945 All 311; Bhala v. Ranrati, AIR 1946 All 425: (1946) ILR All 615; Ashraj v. Karim Bux, AIR 1949 All
198; Punjab Co-op. Bank Ltd. v. Bikram Lal, AIR 1959 Punj 71.
50 . Sangram Singh v. Election Tribunal, AIR 1955 SC 425 [LNIND 1955 SC 2]: [1955] 2 SCR 1 [LNIND 1955 SC 2] : (1955) SCJ 431
[LNIND 1955 SC 2] : (1955) SCA 545 [LNIND 1955 SC 2]; Ramachandra v. Gopi Krishna, AIR 1957 Pat 260; Binda Prasad v. United Bank
Ltd., AIR 1961 Pat 152.
51 . Chhatto Lal v. Narayan Das, AIR 1930 Cal 53: (1929) ILR 56 Cal 704.
52 . Chinnammal v. P. Arumugham, (1990) 1 SCC 513 [LNIND 1990 SC 21].
53 . Commissioner of Income-tax v. Hindustan Bulk Carriers, AIR 2003 SC 3942 [LNIND 2002 SC 823]: (2003) 3 SCC 57.
54 . Chana Lal v. State of Gujarat, AIR 1961 Guj 27 [LNIND 1960 GUJ 66].
55 . Nagpur Corporation v. Its Employees, AIR 1960 SC 675 [LNIND 1960 SC 32]: [1960] 2 SCR 942 [LNIND 1960 SC 32] : (1961) 2 SCJ 134
: (1960) 1 SCA 596.
56 . Kochunni v. States of Madras and Kerala, AIR 1960 SC 1080 [LNIND 1960 SC 436]: [1960] 3 SCR 887 [LNIND 1960 SC 436] : (1961) 2
SCJ 443 [LNIND 1960 SC 436] : (1960) 2 SCA 412 [LNIND 1960 SC 436].
57 . P. Ramanatha Aiyars Law Lexicon, (2nd Ed., 1997), p. 1099.
58 . Ex parte, Walton, In re Ley, (1881) 17 Ch D 746, p. 756.
59 . East End Dwelling Co. Ltd. v. Finbury Borough Council, (1951) 2 All ER 587, p. 599.
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60 . J.K. Cotton Spinning & Weaving Mills Ltd. v. Union of India, AIR 1988 SC 191 [LNIND 1987 SC 728], p. 202 : 1987 Supp SCC 350.
61 . AIR 1953 SC 333 [LNIND 1953 SC 58], p. 343 : 1954 SCR 53 [LNIND 1953 SC 58].
62 . AIR 1955 SC 661 [LNIND 1955 SC 122], p. 680.
63 . Commissioner of Income-tax v. Teja Singh, AIR 1959 SC 352 [LNIND 1958 SC 138]: (1959) Supp 1 SCR 394 : (1959) SCJ 425; Jumrati v.
Bannerjee, AIR 1962 Cal 525 [LNIND 1962 CAL 57] (FB).
64 . Sadasivan v. Ramalinga, 2 IA 219 : 15 Beng LR 383; Ful Kumari v. Ghanshyam, (1903) ILR 31 Cal 511.
65 . Usil v. Hailes, (1877) 3 CPD 327; Harrow Chander v. Surodhoni, (1868) 9 WR 402.
66 . Peramanayagam v. Sivaraman, AIR 1952 Mad 419 [LNIND 1951 MAD 94].
67 . Jaisri Sahu v. Raj Dewan Debey, (1962) 1 SCJ 578 [LNIND 1961 SC 223].
68 . 22 IA 107.
69 . AIR 1952 SC 369 [LNIND 1952 SC 94]: [1953] SCR 1 [LNIND 1952 SC 94] : (1952) SCJ 568.
70 . Administrator General v. Premlal Mullick, (1895) ILR 22 Cal 788 : 22 IA 107; Krishna Ayyangar v. Nallaperumal, 47 IA 33; Midnapur Zamindary
v. Chandra Singh Dhudhuia, AIR 1943 Cal 544: (1943) ILR 2 Cal 245 : (1943) 47 Cal WN 733; Queen Empress v. Shri Churn, (1895) ILR 22
Cal 1017; Queen Empress v. Tilak, (1898) ILR 22 Bom 112; Maharaj Tewari v. Har Charan, (1903) ILR 26 All 144.
71 . Mobarik Ali v. State of Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81]: [1958] SCR 328 [LNIND 1957 SC 81] : (1958) SCJ 111
[LNIND 1957 SC 81] : (1958) SCA 665 [LNIND 1957 SC 81].
72 . Re CP and Berar Motor Spirit Taxation Act, (1939) 1 FCR 18.
73 . A.K. Gopalan’s case, AIR 1950 SC 27 [LNIND 1950 SC 22]: [1950] SCR 88 [LNIND 1950 SC 22] : (1950) SCJ 174 [LNIND 1950 SC
22].
74 . Ashvini Kumar v. Arvind Bose, AIR 1952 SC 369 [LNIND 1952 SC 94].
75 . State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92 [LNIND 1953 SC 118]: [1954] SCR 587 [LNIND 1953 SC 118] : (1954) SCJ
127 [LNIND 1953 SC 118]; Ranganathan v. Govt of Madras, AIR 1955 SC 604 [LNIND 1955 SC 41]: [1955] 2 SCR 374 [LNIND 1955 SC
41] : (1955) SCJ 515 [LNIND 1955 SC 41] : 1955 SCA 841 [LNIND 1955 SC 41]; Kanga Valley State Co. v. Kidarnath, AIR 1961 Punj
540(FB); Re Oriental Gas Co., AIR 1961 Cal 267 [LNIND 1960 CAL 196]; Jai Lal v. Delhi Administration, AIR 1962 SC 1781 [LNIND
1962 SC 213].
76 . State of Travancore Cochin v. Bombay Co. Ltd., AIR 1952 SC 366 [LNIND 1952 SC 52]: [1952] SCR 1112 [LNIND 1952 SC 52] : (1952)
SCJ 527; AG of Bengal v. Premnath Mullick, 22 IA 107, p. 118; Gopalan v. State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22]: [1950]
SCR 88 [LNIND 1950 SC 22]; Keshavananda v. State of Kerala, AIR 1973 SC 1461 [LNIND 1973 SC 154], p. 1633; US v. Trans-Missouri
Freight Assn., (1897) 109 US 290, 318.
77 . Ashvini Kumar v. Arvind Bose, AIR 1952 SC 369 [LNIND 1952 SC 94].
78 . Express Newspapers v. Union of India, AIR 1958 SC 578 [LNIND 1958 SC 25]: [1959] SCR 12 [LNIND 1958 SC 25] : (1958) SCJ 1113 :
(1958) SCA 952.
79 . Re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845: [1960] 3 SCR 250.
80 . Att-Gen. v. Prince Ernest Augustus of Honover, (1957) 1 All ER 49 : [1957] AC 436 (HL).
81 . Keshavananda v. State of Kerala, AIR 1973 SC 1461 [LNIND 1973 SC 154].
82 . Burrakur Cool Co. v. Union of India, AIR 1961 SC 954 [LNIND 1961 SC 55]: (1961) 2 SCA 523 [LNIND 1961 SC 55]; Kochunni v. States
of Kerala and Madras, AIR 1960 SC 1080 [LNIND 1960 SC 436]; Re Kerala Education Bill, AIR 1958 SC 956: (1959) SCJ 321; Thangal
Kunju Musaliar v. Venkatachalam, AIR 1956 SC 246 [LNIND 1955 SC 116]: [1955] 2 SCR 1196 [LNIND 1955 SC 116] : (1956) SCJ 323
[LNIND 1955 SC 116] : (1956) SCA 259 [LNIND 1955 SC 116]; Biswambhar Singh v. State of Orissa, AIR 1954 SC 139 [LNIND 1953 SC
122]: [1954] SCR 842 [LNIND 1953 SC 122] : (1954) SCJ 219; Ashvini Kumar v. Arvind Bose, AIR 1952 SC 369 [LNIND 1952 SC 94];
Siddhi Vinappa v. Sivalingappa, AIR 1951 Bom 137 [LNIND 1951 BOM 16] (FB); Commr. of Income-tax v. Ahmed Bhai Umar Bhai and Co.,
AIR 1950 SC 134 [LNIND 1950 SC 16]: [1950] SCR 333 : (1950) SCJ 374; Harishankar v. State of Madhya Pradesh, AIR 1954 SC 465
[LNIND 1954 SC 93]: [1955] 1 SCR 380 [LNIND 1954 SC 93] : (1954) SCJ 637 [LNIND 1954 SC 93]; Bhatnagors v. Union of India, AIR
1957 SC 478 [LNIND 1957 SC 22]: [1957] SCR 700 [LNIND 1957 SC 22] : (1957) SCJ 546 [LNIND 1957 SC 22] : (1957) SCA 810
[LNIND 1957 SC 22]; Motipur Zamindary Co. v. State of Bihar, AIR 1962 SC 660 [LNIND 1961 SC 358]; Venkataswami v. Narasram, AIR
1966 SC 361 [LNIND 1965 SC 152], 365.
83 . Manoharlal v. State of Punjab, AIR 1961 SC 418 [LNIND 1960 SC 265]: [1961] 2 SCR 343 [LNIND 1960 SC 265] : (1961) 2 SCJ 17.
84 . Poppatlal Shah v. State of Madras, AIR 1953 SC 274 [LNIND 1953 SC 38]: [1953] SCR 677 [LNIND 1953 SC 38] : (1953) SCJ 369
[LNIND 1953 SC 38].
85 . Bhinks v. Charan Singh, AIR 1959 SC 960 [LNIND 1959 SC 77]: (1960) SCJ 892 [LNIND 1959 SC 77].
86 . Brett v. Brett, (1826) 3 Adams 210 : (1826) 162 ER 456.
87 . (1844) 11 Cl & F 85 : 8 ER 1034 (HL).
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88 . [1960] 1 WLR 830.

89 . Maxwell on Interpretation of Statutes, (12th. Ed.), p. 76.
1 . AG v. HRH Prince Ernest Augustus of Hanover, (1957) 1 All ER 49, p. 57, 58 : [1957] AC 436 (HL).
2 . State of Rajasthan v. Leela Jain, AIR 1965 SC 1296 [LNIND 1964 SC 228]: (1965) 1 SCR 276 [LNIND 1964 SC 228], p. 282.
3 . Commr. of Income-tax v. Ahmedbhai Umarbhai, AIR 1950 SC 134 [LNIND 1950 SC 16]; Bengal Immunity Co. v. State of Bihar, AIR 1955 SC
661 [LNIND 1955 SC 122]: [1955] 2 SCR 603 [LNIND 1955 SC 122] : (1955) SCJ 672 : (1955) SCA 1140; WI Theatres v. Municipal
Corpn., Poona, AIR 1959 SC 586 [LNIND 1958 SC 204]: (1959) SCJ 390 : (1959) 2 SCA 145; Nalinakya v. Shyam Sundar, AIR 1953 SC
148 [LNIND 1953 SC 11]; Balraj Kanwar v. Jagatpal Singh, (1904) ILR 26 All 393 : 31 IA 132; Dukkimala v. Halway, (1896) ILR 23 Cal 55;
Punardeo v. Ram Sarup, ILR 25 Cal 858; Haridas Mundra v. National and Grindlays Bank Ltd., AIR 1963 Cal 132 [LNIND 1962 CAL 122]:
(1963) 67 Cal WN 58.
4 . Jumma Masjid v. Kodimaniandra Deviah, AIR 1962 SC 847 [LNIND 1962 SC 4]; Mahomed Syedol Ariffin v. Yeoh Ooi Gark, AIR 1916 PC
242: 43 IA 256 : [1916] 2 AC 275 .
5 . Jadarkumar v. Pushpabai, AIR 1944 Bom 29: 45 BLR 924; Mahomed v. Yeoh, 43 IA 256, p. 263; Mulraj Khatau v. Vishvanath Prabhuram,
(1913) 37 Bom 198 : 40 IA 24, p. 30.
6 . Ramaswami v. Lakshmi, AIR 1962 Ker 313 [LNIND 1961 KER 343]: (1962) ILR Ker 130.
7 . Jadarkumar v. Pushpabai, supra; Koylesh Chundar v. Sonatun, (1880) ILR 7 Cal 132.
8 . Shambunath v. State of Ajmer, AIR 1956 SC 404 [LNIND 1956 SC 23], 406 : [1956] SCR 199 [LNIND 1956 SC 23].
9 . South India Co-op. Insurance Society v. Bapiraju, AIR 1955 Mad 694 [LNIND 1955 MAD 69]: (1956) ILR Mad 547.
10 . State of Bombay v. United Motors Ltd., AIR 1953 SC 252 [LNIND 1953 SC 42]: [1953] SCR 1069 [LNIND 1953 SC 42] : (1953) SCJ 373
[LNIND 1953 SC 42].
11 . MSM Rly. Co. v. Bezwada Municipality, AIR 1944 PC 71: (1945) ILR Mad 91 : 71 IA 13; Kedarnath Jute Mfg. Co. v. CTO, AIR 1966 SC 12
[LNIND 1961 CAL 142].
12 . Ram Narain Sons Ltd. v. Asst. Commr. of Sales-tax, AIR 1955 SC 765 [LNIND 1955 SC 60]: [1955] SCR 483 : (1955) SCJ 808 : (1955)
SCA 111.
13 . Commr. of Income-tax v. Indo Mercantile Bank Ltd., AIR 1959 SC 713 [LNIND 1959 SC 23]: (1959) SCJ 655 [LNIND 1959 SC 23] : (1960)
1 SCA 12 [LNIND 1959 SC 23].
14 . Shankar Iranna v. CIT, AIR 1956 Bom 280 [LNIND 1955 BOM 118].
15 . South Asia Industries v. Sarup Singh, AIR 1966 SC 346 [LNIND 1965 SC 137], p. 350.
16 . CIT, Kerala v. P. Krishna, AIR 1965 SC 59 [LNIND 1964 SC 164].
17 . Lloyds & Scottish Finance Ltd. v. Modern Cars and Caravans (Kingston) Ltd., (1966) 1 QB 764 : [1964] 2 All ER 732 per Edmund Davies, J.
18 . Jennings v. Kelly, [1939] 4 All ER 464.
19 . West Derby v. Metropolitan Life Assurance, 1897 AC 647.
20 . AIR 1965 SC 1296 [LNIND 1964 SC 228]: 1965 (1) SCR 276 [LNIND 1964 SC 228], p. 283. See also Nagar Palika Nigam v. Krishi Upaj
Mandi Samiti, AIR 2009 SC 187 [LNIND 2008 SC 2011], para 8 : (2008) 12 SCC 364 [LNIND 2008 SC 2011].
21 . AIR 1985 SC 582 [LNIND 1985 SC 20]: (1985) 1 SCC 591 [LNIND 1985 SC 20].
22 . Maxwell on Interpretation of Statutes, (12th Ed.), p. 190-191.
23 . Maharani of Burdwan v. Krishna Kamini Dasi, (1887) ILR 14 Cal 365; Louis Pugh v. Asitosh Sen, AIR 1929 PC 69: (1929) ILR 8 Pat 516 : 56
IA 93.
24 . Mukherjee and Dass JJ. in Ashvini Kumars case, AIR 1952 SC 369 [LNIND 1952 SC 94].
25 . Gupteswara Missir v. Chaturnand Missir, AIR 1950 Pat 309: (1950) ILR 29 Pat 381; Gokul Mandar v. Pundmanund, (1902) 29 ILR Cal 707, p.
715 : 29 IA 196, p. 202; Shibo v. Baban, (1908) 35 ILR Cal 353.
26 . Gupteswar Missir v. Chaturnand Missir, AIR 1950 Pat 309; Hukumchand v. Kamalanand, (1906) 33 ILR Cal 927, pp. 931-32, 948; Abdul
Rahman v. Shana, (1920) ILR 1 Lah 339, 341; Rasik Lall v. Bidhu Muki, (1906) ILR 33 Cal 1094; Panchanan v. Dwarkanath, (1905) 3 Cal LJ
29; Murahari v. Bapayya, AIR 1949 Mad 743. See s 151.
27 . Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128 [LNIND 1951 SC 3]: [1951] SCR 228 [LNIND 1951 SC 3] : (1951) SCJ
182; Madhavalal v. Administrator of West Bengal, AIR 1960 SC 936 [LNIND 1960 SC 128]: [1960] 3 SCR 578 [LNIND 1960 SC 128] :
(1960) 1 SCJ 15; ITO, Tuticorin v. T.S. Devinatha Nadar, AIR 1968 SC 623 [LNIND 1967 SC 305], p. 628 : (1967) 1 SCJ 733.
28 . Saratchandra v. Santosh Kumar, AIR 1944 Cal 145: (1943) 47 Cal WN 544; Hajrat Akramnissa v. Valilunnissa, (1894) ILR 18 Bom 429;
Balakrishna v. Bapu, (1895) ILR 19 Bom 204; Girish Chandra v. Apurba, (1894) ILR 21 Cal 940, 955; Bisweswar v. Jasoda Lal, (1913) ILR 40
Cal 704.
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29 . Shyam Sundar v. Ramdas, AIR 1951 Pat 52(FB); Gurumurthi Naidu v. Varadappa Chetti, (1911) 2 Mad WN 386; Nani Gopal Mitra v. State of
Bihar, AIR 1970 SC 1636 [LNIND 1968 SC 309].
30 . See commentary under s 96.
31 . Gordhan Das v. Governor-General in Council, AIR 1952 Punj 103; Mahendra v. Darsan, AIR 1952 Pat 341.
32 . Natwarlal B Shah v. Thakorda Khodaji, (1967) ILR Guj 495.
33 . Chhabildas v. Luhar Kohan, AIR 1967 Guj 7 [LNIND 1965 GUJ 136]; Mohanlal v. Sawai Mansinghji, AIR 1962 SC 73, 76; Gokaldas v.
Parmanand, AIR 1967 MP 265 [LNIND 1967 MP 50].
34 . Nazir Ahmed v. King Emperor, 63 IA 372; Ballabhdas Agarwala v. J.C. Chakravarty, AIR 1960 SC 576 [LNIND 1960 SC 12]; Shri Krishna
Gupta v. Ram Babu, AIR 1967 All 136, 140 : (1966) All LJ 990.
35 . Maxwell on Interpretation of Statutes, 12th Ed., p. 216.
36 . Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 [LNIND 1957 SC 10]: 1957 SCR 488 [LNIND 1957 SC 10].
37 . Dayawati v. Inderjit, (1966) 3 SCR 275 [LNIND 1966 SC 15] : AIR 1966 SC 1423 [LNIND 1966 SC 15].
38 . AIR 1994 SC 2623 [LNIND 1994 SC 572]: (1994) 4 SCC 602 [LNIND 1994 SC 572].
39 . Shyam Sundar v. Ram Kumar, AIR 2001 SC 2472 [LNIND 2001 SC 1541]: (2001) 8 SCC 24 [LNIND 2001 SC 1541].
40 . Halsburys Laws of England, 4th Ed., Vol. 44, para 922.
41 . Bennion on Statutory Interpretation, 5th Ed., p. 316.
42 . Savitri Thakurani v. Savi, AIR 1921 PC 80.
43 . Ashoka Marketing v. Rothas Kumar, AIR 1966 Cal 591 [LNIND 1966 CAL 62], p. 594; Kamalamma v. Ismail Ispahani, AIR 1951 Mad 895
[LNIND 1951 MAD 60].
44 . See Provincial Insolvency Act 1920, s 5, and Presidency-towns Insolvency Act 1909, s 90.
45 . Bombay and Persia SN Co. v. Shepphard, (1887) 12 ILR Bom 237, p. 240.
46 . Raoji Ranchod v. Vishnu, (1884) ILR 9 Bom 241; Esoof Hasshim v. Fatima, (1896) ILR 24 Cal 30.
47 . Section 21 of the Hindu Marriage Act 1955.
48 . Nilmoni v. Taranath, (1883) ILR 9 Cal 295.
49 . Re National Carbon Co., AIR 1934 Cal 725: (1935) ILR 61 Cal 450.
50 . Amalgamated Commercial Traders Pvt. Ltd. v. A.C.K. Krishnaswami, AIR 1967 Mad 337 [LNIND 1965 MAD 122], p. 340 : (1965) 2 Mad LJ
275.
51 . Allem Berry and Co. v. Vivian Bose, AIR 1960 Punj 86, p. 94.
52 . Rayala Corpn. v. SB and Co., AIR 1957 Mad 385 [LNIND 1957 MAD 32]: (1975) ILR Mad 856.
53 . State of Maharashtra v. Chandrakant Pomaji Vasudev Somshelli, AIR 1991 Bom 245 [LNIND 1990 BOM 666] (DB).
54 . Lakshmi Devi v. Venkatakrishnan, (1958) (1) And. WR 213.
55 . Dulichand v. State of Bihar, 1958 AP 366; Mahendra Singh v. Commissioner of Chota Nagpur Division, (1958) AP 603.
56 . Ashifaquddin v. Mohd. Azizuddin, AIR 1978 AP 354 [LNIND 1978 AP 25].
57 . Changki Village v. Tibreigba, AIR 1960 SC 73.
58 . The words and figures section 47 or omitted by CPC (Amendment) Act 104 of 1976, s 3 (w.e.f. 1-2-1977).
59 . Subs. by CPC (Amendment) Act 2 of 1951, s 4, for the original clause.
60 . Subs. for Provincial Government by AO 1950.
61 . Ins. by Act 2 of 1951, s 4.
62 . Ins. by the Repealing and Amending Act 42 of 1953, Sch III and s 4.
63 . Subs. for the Indian Civil Service by s 3 Act 104 of 1976 (w.e.f. 1-2-1977).
64 . Subs. for or naval by Act 35 of 1934, s 2 and Sch.
65 . Subs. for His Majesty by AO 1950.
66 . The words including His Majestys Indian Marine Service, omitted by s 2 Act 35 of 1934.
67 . Cl. (21) ins. by AO 1950, omitted by Act 2 of 1951, s 4.
1 . Chandi Charan Das v. Susila Bala Dasi, AIR 1955 Cal 144 [LNIND 1954 CAL 156]: (1955) 59 Cal WN 606.
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2 . Ganpatrao v. Sham Rao, AIR 1941 Nag 138: (1941) ILR Nag 194; Ishwarappa v. Dhanji, AIR 1932 Bom 111: (1932) ILR 56 Bom 23.
3 . PM Diesels Ltd. v. Patel Field Marshal Industries, AIR 1998 Del 225 [LNIND 1998 DEL 184].
4 . Bhairab v. Narain, AIR 1953 Pat 342.
5 . Narender Kumar Soni v. Sunshine Roadways, AIR 1999 Del 189 [LNIND 1999 DEL 113].
6 . Gopalkrishna Sharma v. Bhagirath Prasad Sharma, AIR 1998 MP 264 [LNIND 1997 MP 111]. See note to s 15 under the head Court of
Lowest Grade Competent to Try a Suit.
7 . Jhari Mahto v. Sagar Mahto, AIR 2009 (NOC) 913(Jhar).
8 . Ramesh Goel v. Dwinderpal Singh, AIR 2008 (NOC) 889(Cal).
9 . Lakshman v. Babaji, (1883) ILR 8 Bom 31; Mahabir Singh v. Behari Lal, (1891) ILR 13 All 320; Madho Das v. Ramji, (1894) 16 ILR All 286;
Ishwarappa v. Dhanji, AIR 1932 Bom 111: (1932) ILR 56 Bom 23.
10 . Ishwarappa v. Dhanji; Kalyan Das v. Ganga Bai, AIR 1961 MP 67.
11 . Nain Singh v. Mahendra, AIR 1952 All 196 [LNIND 1951 ALL 58].
12 . Jaya Krishna v Bajrang Lal, (1961) ILR Raj 1173.
13 . Shaikh Gafoor v. State of Maharashtra, AIR 2008 (NOC) 1637(BomAurangabad Bench).
14 . Ishwarappa v. Dhanji, AIR 1932 Bom 111: (1932) ILR 56 Bom 23 : 137 IC 702.
15 . See notes to s 38, Jurisdiction of court executing decree and notes to s 96, Forum of Appeal.
16 . Ganeshilal v. Snehalata, AIR 1947 Cal 68: (1947) 51 Cal WN 136; Bidyadhar v. Manindra Nath, AIR 1925 Cal 1076: (1926) ILR 53 Cal 14;
Sundarshan Das v. Ram Prasad, (1911) ILR 33 All 97; Madho Das v. Ramji, (1894) ILR 16 All 286; Arogya v. Appachi, (1902) ILR 25 Mad 543;
Kannayya v. Venkata, (1917) ILR 40 Mad 1, pp. 78; Sheikh Mohammad v. Mahtab, (1917) 2 Pat LJ 394; Dinanath v. Mayawati, AIR 1921 Pat
118: (1921) 6 Pat LJ 54.
17 . Nandlal v. Nritya Kali, (1927) 31 Cal WN 142.
18 . Code of Civil Procedure 1908.
19 . Ins. by Act, 4 of 1941, s 2 and Sch. III.
20 . Subs. ibid for under that Act.
21 . Ins. by CPC (Amendment) Act 2 of 1951, s 5.
22 . Subs. for Part B States by ALO No 2 of 1956.
23 . Subs. by Act 1 of 1926, s 3 for certain words.
24 . Sarjoo Prasad v. Second Addl District Judge, Kanpur, AIR 1975 All 13.
25 . Kumud v. Hari, (1919) ILR 46 Cal 717.
26 . Barada Kanta Saha Roy v. Sheikh Moijuddin, AIR 1925 Cal 1: (1925) ILR 52 Cal 275 (FB); approving Sadek Ali v. Samad Ali, AIR 1924 Cal
193: (1923) 28 Cal WN 16; overruling Kararnath v. Hem Nath, AIR 1923 Cal 176: (1922) ILR 49 Cal 994.
27 . Springdales School v. S. Tahilramani, AIR 1969 Del 7 [LNIND 1967 DEL 83], p. 10.
28 . Venkateswara v. Sriramamurtho 1952 AP LT 558.
29 . Naresh Kumar Gupta v. Third Addl. District Judge, Bulundshahar, AIR 1990 All 23 [LNIND 1989 ALL 215].
30 . Ramlakhan Tewari v. Ram Samju Tewari, AIR 1981 All 211.
31 . Subs. by CPC (Amendment) Act 104 of 1976 (w.e.f. 1-2-1977), for 77 and 155 to 158.
32 . Ins. by CPC (Amendment) Act 1 of 1914.
33 . For instance of such direction, see Cal. Gaz., 1910, Pt 1, p. 814.
34 . Ranganathan v. Poonacharamma, AIR 1942 Pat 128.
35 . Bank of Jeypore v. Davey, AIR 1957 Mad 353 [LNIND 1956 MAD 160].
36 . Sankaran Nair v. Krishna Pillai, AIR 1962 Ker 233 [LNIND 1962 KER 36].
37 . Subramanyam v. Srinivasan, AIR 1951 Mad 289 [LNIND 1950 MAD 98].
38 . Bava C. Gopalaswamy v. Abhisheka Kattalai, AIR 1950 Mad 504 [LNIND 1949 MAD 340]: (1951) ILR Mad 1.
39 . Hemchand v. Subhkaran, AIR 1967 Bom 361 [LNIND 1966 BOM 23]: (1966) 68 Bom LR 857.
40 . Rameshwar Dubey v. Jogindra Lal Saha, AIR 1968 Cal 234 [LNIND 1966 CAL 164], p. 237.
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1 . Craies on Statute Law, 6th Ed., p. 212.

2 . Province of Bengal v. Hingul Kumari, AIR 1946 Cal 217.
3 . R. v. Britton, [1967] 2 QB 51.
4 . Dilworth v. Commissioner of Stamps, [1899] AC 99 at p. 105, 106 (Per Lord Watson).
5 . Justice G.P. Singh: Principles of Statutory Interpretation, 12th Ed. 2010, p. 179.
6 . Associated Indem Mechanical (P.) Ltd. v. West Bengal Small Scale Industries Development Corpn., Ltd., AIR 2007 SC 788 [LNIND 2007 SC 13]:
(2007) 3 SCC 607 [LNIND 2007 SC 13].
7 . AIR 1946 Bom 361: (1946) ILR Bom 756 : (1946) 48 Bom LR 252.
8 . Menkabai Manohar v. M. Deshpande, AIR 1971 Bom 21 [LNIND 1970 BOM 3]: (1971) 73 Bom LR 473.
9 . Karam Singh v. Kunwar Sen, AIR 1942 All 387: (1942) ILR All 862; Mani Mohan v. Ram Taran, (1916) ILR 43 Cal 148, p. 152 per Jenkins
CJ; Nabin Chandra v. Pran Krishna De, (1914) ILR 41 Cal 108; Ghuznavi v. Allahabad Bank Ltd., AIR 1917 Cal 44(FB) : (1917) ILR 44 Cal
929; Satyanarayana v. Venkata, AIR 1957 AP 172(FB); Lakshmi Kumar v. Krishna Ram, AIR 1950 MB 156.
10 . Papathi Ammal v. Sivagnanam, AIR 1954 TC 526; Manikyam v. Narasimhan, AIR 1956 AP 108.
11 . Mani Mohan v. Ramanarain, (1916) ILR 43 Cal 148, p. 52; Ghuznavi v. Allahabad Bank Ltd., (1917) ILR 44 Cal 929 (FB).
12 . Pannalal v. Lakshmi Sona, AIR 1952 Cal 840 [LNIND 1952 CAL 91].
13 . Basavayya v. Venkatappiah, AIR 1926 Mad 676 [LNIND 1926 MAD 58]; Ram Dayal v. Shiv Dayal, AIR 1939 Nag 186: (1939) ILR Nag
250 (FB); Karan v. Kanwar, AIR 1942 All 387.
14 . Somasundaram Chettiar v. Arunachalam Chettiar, AIR 1932 Mad 523 [LNIND 1932 MAD 53]: (1932) ILR 55 Mad 982 : (1932) 63 Mad LJ
28.
15 . State of Uttar Pradesh v. Chandra Bhusan Misra, AIR 1980 SC 591 [LNIND 1979 SC 438]: (1980) 1 SCC 198 [LNIND 1979 SC 438] :
[1980] 1 SCR 113.
16 . The words and figures section 47 or omitted by CPC (Amendment) Act 104 of 1976, s 3 (w.e.f. 1-2-1977).
17 . Adinarayan v. Narasimha, AIR 1931 Mad 471 [LNIND 1930 MAD 183]: (1931) ILR 54 Mad 337.
18 . Chelaram v. Manak, AIR 1997 Raj 284.
19 . Deep Chand v. Mohal Lal, [2000] 4 LRI 875.
20 . Dewan Brothers v. Central Bank of India, AIR 1976 SC 1503 [LNIND 1976 SC 224]: (1976) 3 SCC 800 [LNIND 1976 SC 224]; R.
Rathinavel Chettiar v. V. Sivaraman, (1999) 4 SCC 89 [LNIND 1999 SC 323]; Ratansingh v. Vijaysingh, AIR 2001 SC 279 [LNIND 2000 SC
1831]: (2001) 1 SCC 469 [LNIND 2000 SC 1831].
21 . S. Satnam Singh v. Surender Kaur, AIR 2009 SC 1089 [LNIND 2008 SC 2345]: (2008) 2 SCC 562 : 2009 (1) Civil Court Cases 597 (SC).
22 . Ibid, See also Parayya Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari, 2008 (1) Civil Court Cases 172 (SC).
23 . Boards & Boards Pvt. Ltd., Jaipur v. Himalaya Paper Pvt. Ltd., New Delhi, AIR 1990 Raj 120(DL Mehta, J).
24 . SB Minerals v. MSPL Ltd., AIR 2010 SC 1137 [LNIND 2009 SC 2022]: (2010) 2 SCC 24.
25 . Smt. Purabil Dasgupta (Sarkar) v. Arun Kumar, AIR 2010 Gau 66 [LNIND 2010 GAU 410] (Agartala Bench).
26 . Mt Chauli Subhadra Devi v. Mt Meghoo, AIR 1945 All 268: (1945) ILR All 798; Baliram Ganpatrao v. Monohar Damodur, AIR 1943 Nag 204:
(1943) ILR Nag 241; Bai Divali v. Shah Vishnu, (1910) ILR 34 Bom 182; Sakharam v. Sadashiv, (1913) ILR 37 Bom 480; Jothi Prasad v.
Ganeshi Lal, AIR 1961 Punj 120.
27 . Parasuram v. Heera Bai, AIR 1957 Bom 59 [LNIND 1956 BOM 146].
28 . Shakuntala Devi v. Kuntal Kumari, AIR 1969 SC 575: [1969] 1 SCR 1006.
29 . Rajeswara Rai v. Sohanlal, AIR 1957 Pat 398.
30 . Peethambar v. Sohanlal, AIR 1957 All 107 [LNIND 1956 ALL 13].
31 . Bal Kishan v. Tulasi Bai, AIR 1987 MP 120 [LNIND 1986 MP 67].
32 . Sadhu Singh v. Dharam Dev, AIR 1980 SC 1654: (1981) 1 SCC 510.
33 . Madan Naik v. Hansubala Devi, AIR 1983 SC 676: (1983) 3 SCC 15.
34 . Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1986: (1981) 1 SCC 8 : [1982] 1 SCR 87.
35 . Srijib v. Dandi Swami Jagganath Asram, AIR 1941 Cal 618. See note below Preliminary Decree.
36 . Chelaram v. Manak, AIR 1997 Raj 284.
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37 . Kandapazha Nadar v. Chitraganiammal, AIR 2007 SC 1575: (2007) 7 SCC 65.

38 . Ashwani Kumar v. Smt. Vidya, AIR 2007 All 105.
39 . K.M. Basheer v. Trie-Tee Trading Co. Ltd., AIR 2007 Ker 291 [LNIND 2007 KER 569]: 2007 (4) Ker LT 113 [LNIND 2007 KER 569].
40 . Ma Chon v. Maung Myint, AIR 1927 Rang 148(PC) : (1927) ILR 5 Rang 838.
41 . MS University v. Kumara Gurubara Swamigal Arts College, AIR 1997 Mad 386 [LNIND 1997 MAD 589].
42 . Gopupeddireddi v. Gopu Tirupathy Reddy, AIR 1991 AP 362.
43 . Anjeeni Prasad v. Ishwardin, AIR 1982 MP 10 [LNIND 1980 MP 99].
44 . Kanji Hirji v. Jivraj Dharamshi, AIR 1976 Guj 152 [LNIND 1974 GUJ 16].
45 . Gauhati Bank Ltd. v. Baliram, AIR 1950 Assam 169; Rulaninimayi v. Chandra, (1912) ILR Cal 341; Shyam Mandal v. Satinath, (1917) ILR 44
Cal 954; Gajrap Mati v. Shami Nath, (1916) ILR 39 All 13; Suraj Deo v. Pratap Rai, AIR 1923 Pat 514: (1923) 2 Pat 739; Abdul Majid v.
Jawahir, (1914) ILR 36 All 350, contra Balaramdas v. Harak Chand, AIR 1949 All 754.
46 . Lachmi Narain v. Darbari Lal, (1916) ILR 38 All 357; Lucky Chum v. Budurunnissa, (1883) ILR 9 Cal 627.
47 . Lekha v. Bhauna, (1896) ILR 18 All 101; Ramesh v. Moindra, AIR 1922 Cal 246: (1921) ILR 49 Cal 355; Nazim v. Abdul, AIR 1922 Lah 87:
(1922) ILR 3 Lah 30.
48 . Genda Mal v. Pirbhu Lal, (1895) ILR 17 All 97; Jogodindro v. Sarup Sundari, (1801) ILR 18 Cal 322; Abdul Hossein v. Kasi Sahu, (1900) ILR
27 Cal 362; Patloji v. Ganu, (1891) ILR 15 Bom 370.
49 . Devenssi v. Anthoni, AIR 1969 Ker 78 [LNIND 1968 KER 34].
50 . Mahapatrao v. Magata Patrao, AIR 1933 Mad 442 [LNIND 1932 MAD 269]: (1933) ILR 56 Mad 520.
51 . Dattatraya v. Radhabai, AIR 1921 Bom 220: (1921) ILR 45 Bom 627, 634; Danduppa v. SG Motor Transport Co., (1966) 1 Mys LJ 786.
52 . Mir Umar Ali v. Nasib-un-nissa, (1911) PR 82.
53 . Murthi Raju v. Subbaraju, (1944) ILR Mad 626.
54 . Narayana v. Rama, AIR 1953 TC 367.
55 . Rangasami Chettiar v. Ishwaramurthi Gounder, AIR 1954 Mad 1053 [LNIND 1954 MAD 115]: (1953) ILR Mad 1104.
56 . Sivalal v. Jugal Kishore, AIR 1940 Nag 340: (1940) ILR Nag 538; Zanab Bi v. Wajahat Husen, AIR 1959 MB 384; but see Paras Das v.
Premchand, AIR 1935 Pat 456.
57 . Smt. Baby Deb v. Ajit Deb, AIR 2008 Gau 49.
58 . Bimalendu Ghose v. Smt. Mukti Ghosh, AIR 2008 (NOC) 1461(Cal).
59 . Miss Pressy Pinto v. Rony Maxim Pinto, AIR 2009 Kant. 157 [LNIND 2008 KANT 447] (DB).
60 . Siddaganga Oil Extraction Pvt. Ltd., Tumkur v. Pioneer Foods and Paultry Products Pvt. Ltd., AIR 2009 (NOC) 344(Kar).
61 . Arun Kumar Singh v. Col. Hari Singh, AIR 2009 Raj 18 [LNIND 2008 RAJ 294]: 2009 (1) Raj LW 18.
62 . Ummed Mal v. Kundan Mal, AIR 1981 Raj 202 [LNIND 1981 RAJ 46].
63 . Venkata v. Venkatarama, (1899) ILR 22 Mad 256; Upadhya v. Peridh Singh, (1896) ILR 23 Cal 723; Ram Kirpal v. Rup Kuari, (1884) ILR 6
All 269, 274 : 11 IA 37; Jagdishwar Sahai v. Surjan Singh Pal, AIR 1977 All 554.
64 . Minakshi v. Subramanaya, (1888) ILR 11 Mad 26, 35 : 14 IA 160.
65 . Umrao Chand v. Bindraban Chand, (1895) ILR 17 All 475, p. 477.
66 . Guru Charan v. Uma Charan, (1921) 26 Cal WN 940; contra Rajmal v. Maruti, (1920) 22 Bom LR 1377 [LNIND 1920 BOM 125];
Satishchandra v. Paliram, AIR 1921 Pat 161: (1921) 6 Pat LJ 287 submitted to be incorrect.
67 . AIR 1951 Raj 1919.
68 . E. Moah Stephens v. H.G. Orme, 35 All 448; Rodriguez v. Mathews, (1911) 21 Mad LJ 431.
69 . Parvathamma v. A. Muniyappa, AIR 1997 Ker 37.
70 . S. Talabali v. Abdul Aziz, AIR 1920 Cal 689: (1930) ILR 57 Cal 1013.
71 . S Balwant Lokhande v. Chandrakant Shankar Lokhande, (1995) 3 SCC 413 [LNIND 1995 SC 375] : AIR 1995 SC 1211 [LNIND 1995 SC
375].
72 . AIR 2007 SC 1077 [LNIND 2006 SC 1127]: 2007 (3) Civil Court Cases 793 : (2007) 2 SCC 355 [LNIND 2006 SC 1127].
73 . A. Akkukamma v. G. Papi Reddy, AIR 1995 AP 166 [LNIND 1994 AP 469].
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74 . Dattatreya v. Radhabai, AIR 1921 Bom 220: (1921) ILR 45 Bom 627, 633; Raja Peary Mohan v. Manohar, AIR 1924 Cal 160: (1923) 27 Cal
WN pp. 989, 99293; Abdul Shukur v. Abdul Rehman, AIR 1923 Mad 284 [LNIND 1922 MAD 159]: (1928) ILR 46 Mad 148; U Ba Pe v. U
Pe Seon, AIR 1928 Rang 168: (1928) ILR 6 Rang 97; Narayanan Thampi v. Lakshmi Narayana, AIR 1953 TC 220: (1953) ILR TC 89 (FB);
Union of India v. Khetra Mohan, AIR 1960 Cal 190 [LNIND 1959 CAL 110].
75 . Purushotam Haridas v. Amruth Ghee Co. Ltd., Guntur, (1960) Andh LT 524 [LNIND 1956 AP 134] : (1960) 2 Andh WR 115.
76 . Rudhra Pratap Singh v. Sarada Mahesh Prasad Singh, AIR 1925 All 588: (1925) 47 All 543; Bharat Indo v. Yakub Hassan, (1913) ILR 35 All
159; Banwarilal v. Beni Prasad, AIR 1937 All 694; Kedernath v. Pattu Lal, (1945) ILR 20 Luck 557.
77 . Kasi v. Ramanathan, (1947) 2 Mad LJ 523; Basavayya v. Gunuvayya, AIR 1953 Mad 938: (1952) ILR Mad 173; overruling Ghulusma Bibi v.
Ahmedsa Rowther, (1919) ILR 42 Mad 296; Visanna v. Viswabrahman, AIR 1957 Pat 25; Nallaswami v. Avadayammal, AIR 1958 Mad 462;
Raja Peary Mohan Mookerjee v. Manohar Mookerjee, (1923) 27 Cal WN 989.
78 . Nawab Mirza Md. Sadiq Ali Khan v. Nawab Fakir Jahan Begum, 9 Luck 701.
79 . Basavayya v. Guruvayya, (1952) ILR Mad 173.
80 . Pulwa v. Brijnandan Prasad, AIR 1959 Pat 397.
81 . Parasuram v. Heera Bai, AIR 1957 Bom 59 [LNIND 1956 BOM 146].
82 . Kasi v. Ramanathan, (1947) 2 Mad LJ 523.
83 . Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare, 2008 (3) Civil Court Cases 310 (SC).
84 . Ibid, para 11.
85 . Phoolchand v. Gopal Lal, AIR 1967 SC 1470 [LNIND 1967 SC 69]: (1967) 3 SCC 153; Mayimu v. Chariya Malayammal Mayimu, AIR 1968
Ker 282; Ram Kishore v. Kesho Ram, AIR 1972 All 336. See also O 20, r 18.
86 . Rachakonda Venkat Rao v. R. Satya Bai, AIR 2003 SC 3322 [LNIND 2003 SC 775].
87 . Manish Mohan Sharma v. Ram Bahadur Thakur Ltd., AIR 2006 SC 1690 [LNIND 2006 SC 194].
88 . B. Nookaraju v. MSN Charities, AIR 1994 AP 334 [LNIND 1994 AP 68].
89 . Rajan Kakar v. Vijaya Bank, AIR 2008 Del 17 [LNIND 2007 DEL 694]. See also United India Insurance Co. Ltd. v. Master Imran Khan,
AIR 2008 Del 26 [LNIND 2007 DEL 691]: 2007 (144) DLT 406 [LNIND 2007 DEL 691].
90 . Paramjeet Singh Patheja v. ICDS Ltd., AIR 2009 SC 168.
91 . Fertilisers and Chemical Travancore Ltd. v. Kumaran, AIR 2009 Ker 182: 2009 (2) Ker LT 936.
92 . Lakhamraju Sujatha v. Yuvraj Finance Pvt. Ltd., AIR 2010 (NOC) 276(APDB).
93 . BSES Rajdhani Power Ltd. v. State, NCT of Delhi, AIR 2010 Del 91 [LNIND 2009 DEL 1508]: (2011) 121 DRJ 34 [LNIND 2009 DEL
1508].
94 . Sunita Kumari v. Prem Kumar, AIR 2009 Pat 183 [LNIND 2009 PAT 68]: (2010) II DMC 264 (FB).
1 . State of Bombay v. Narayan Pure, AIR 1960 Bom 334 [LNIND 1959 BOM 80]; Mohan Lal v. Bunshi Lal, AIR 1961 Raj 13 [LNIND 1960
RAJ 227]; dissenting from Danuk Dhari Singh v. Ram Ratan Singh, AIR 1941 Pat 1: (1940) ILR 8 Pat 862.
2 . Gobardan Dutta v. Pramoda, AIR 1953 Cal 412 [LNIND 1952 CAL 177]; Radharani v. Sisir Kumar, AIR 1953 Cal 524.
3 . Ram Narain v. Jai Narain, AIR 1961 All 125 [LNIND 1960 ALL 78].
4 . Chief Inspector of Stamps v. Uggar Sen, AIR 1965 All 298: (1964) All LJ 977.
5 . Kariyaiah v. Puttathayamma, AIR 1977 Kant 32 [LNIND 1976 KANT 125]: (1976) ILR Kant 1294.
6 . Panneshwar Lal v. Gokula Nandan Prasad, AIR 1984 Pat 344, pp. 346-47.
7 . Louis Pascal v. Spl. Land Acq. Officer, (1970) 72 Bom LR 703.
8 . Pushpabai v. Offl. Liquidator, AIR 1970 Bom 271 [LNIND 1970 BOM 36], 274 : (1969) 71 Bom LR 372.
9 . Bhim Rao v. Laxmibai, AIR 1966 Mys 112: (1965) 1 Mys LJ 786.
10 . Shakuntala Devi v. Kantal Kumar, AIR 1969 SC 575: [1969] 1 SCR 1006.
11 . Babulal v. Ramesh Babu Gupta, AIR 1990 MP 317 [LNIND 1990 MP 14] (FB).
12 . Bhogaraju v. J. Rama Rao v. Board of Commrs for Hindu Religious Endowments, AIR 1965 SC 231 [LNIND 1963 SC 245]: [1964] 5 SCR 270
[LNIND 1963 SC 245].
13 . Shree Kalimata v. R.C. Chatterjee, AIR 1970 Cal 373 [LNIND 1969 CAL 189], 376 : (1971) 75 Cal WN 1.
14 . Vamanan Nambudiri v. Narayan, AIR 1965 Ker 1 [LNIND 1964 KER 143]: (1964) Ker LT 516.
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15 . Bai Umiyaben v. Ambalal, AIR 1966 Guj 139 [LNIND 1965 GUJ 87]; Daljit Singh v. Shamsher Kaur, AIR 1969 Punj 69; Gurbachan Kaur v.
Swaran Singh, AIR 1978 All 255.
16 . Kusumlata v. Kamta Prasad, AIR 1965 All 280, p. 283.
17 . Jai Krishna Pandita v. Nana Kumari, AIR 2008 J&K 21.
18 . Meera Sinha v. Girja Sinha, AIR 2009 Pat 19 [LNIND 2008 PAT 371] (DB); Sonama Devi v. Urmila Devi, AIR 2009 Pat 71 [LNINDORD
2009 PAT 586].
19 . K.N .Govindan Kutty Menon v. C.D. Shaji, AIR 2010 Ker 97 [LNIND 2009 KER 935].
20 . Secretary of State v. Jillo, (1899) ILR 21 All 133; Narasinga Das v. Ratiram Gupta, AIR 1965 Hyd 41.
21 . Mozaffer Ali v. Hedayet, (1907) ILR 34 Cal 584; Kazem Ali v. Azim Ali, (1891) ILR 18 Cal 382; Protab v. Brojanath, (1892) ILR 19 Cal 275,
p. 288; Re Venkateswara, (1886) ILR 10 Mad 98.
22 . Minakshi v. Subramanya, (1888) ILR 11 Mad 26, p. 35 : 14 IA 160; Somasundara v. Vythilinga, (1896) ILR 19 Mad 285; Habibun Rahman v.
Saideursa, (1923) 38 Cal LJ 358; Santappa v. Gobinda Swamy, (1916) ILR 40 Mad 791; Srijib v. Dandi Swami Jagganath Asram, AIR 1941 Cal
618: (1941) 73 Cal LJ 532, p. 536.
23 . Nathu Wilson v. Mcafee, (1897) ILR 19 All 131.
24 . Upadhya Thakur v. Persidh Singh, (1896) ILR 23 Cal 723, p. 729; Lala Kirut v. Palukdhari, (1890) ILR 17 Cal 326.
25 . Rajagopala v. Hindu Religious Endowments Board, AIR 1934 Mad 103 [LNIND 1933 MAD 114] (FB) : (1934) ILR 57 Mad 271.
26 . Madhav Prasad v. SG Chandravarkar, AIR 1949 Bom 104: (1950) ILR Bom 326 : (1948) 50 Bom LR 747.
27 . A.K. Hossin v. Province of Bengal, AIR 1942 Cal 569: (1942) ILR 2 Cal 528 : (1942) 46 Cal WN 927.
28 . Lakshmi Devi v. Raja Rao, (1954) 2 Mad LJ 192.
29 . Wahid v. Jabida Begum, AIR 1952 Nag 190: (1951) ILR Nag 780.
30 . Punjab National Bank v. Firm of Iswardas Kaluram, AIR 1957 Raj 146 [LNIND 1956 RAJ 74].
31 . Lakshmi Devi v. Varada Reddi 1958 Andh LT 896.
32 . Mansingh v. Siva Prabakumari, AIR 1960 Bom 315 [LNIND 1956 BOM 123].
33 . Varalakshmi v. Veera Reddy, AIR 1961 AP 359 [LNIND 1959 AP 245].
34 . Nicholas v. Yasamma, AIR 1961 AP 359 [LNIND 1959 AP 245].
35 . Vishnumurthi v. Lakshminarayana, (1961) 63 Bom LR 106.
36 . Choyikutty v. Vasu, (1962) Ker LJ 517.
37 . Dattu Apparao v. D.G. Shengde, AIR 1968 Bom 361 [LNIND 1967 BOM 52].
38 . Kiran Devi v. Abdul Wahid, AIR 1996 All 105.
39 . Oriental Insurance Co. Ltd. v. Sardar Sadhu Singh, AIR 1994 Raj 44.
40 . Dundappa v. SG Motor Transport Co., (1966) 1 Mys LJ 786.
41 . Deepchand v. LA Officer, AIR 1975 MP 55 [LNIND 1974 MP 66].
42 . Ratansingh v. Vijaysingh, AIR 2001 SC 279 [LNIND 2000 SC 1831].
43 . State of Andhra Pradesh v. State of Karnataka, AIR 2001 SC 1560 [LNIND 2000 SC 727].
44 . In Re:Siddharth Srivastava, AIR 2002 Bom 494.
45 . Firdous Omer v. Bankim Chandra Daw, AIR 2006 SC 2759 [LNIND 2006 SC 567].
46 . Dhudhewala and Co. Ltd. v. Govindram Rameswarlal, AIR 1953 Cal 13 [LNIND 1952 CAL 98]: (1954) ILR 1 [LNIND 1953 RAJ 83] Cal
438; Golab v. Janki Kuer, AIR 1920 Pat 622: (1920) 5 Pat LJ 472 (FB).
47 . Shanks v. Secy of State for India in Council, ILR 12 Mad 120.
48 . Ramakissor Dossji v. Srirangacharlu, ILR 21 Mad 421.
49 . Mathura Lal v. Chiranji Lal, AIR 1962 Raj 109: (1962) ILR Raj 933.
50 . Jujitsu Mahapatrao v. Kora Magatapatro, AIR 1933 Mad 442 [LNIND 1932 MAD 269]: (1933) ILR 56 Mad 520; (1933) 64 Mad LJ 695.
51 . AIR 1932 Bom 378.
52 . AIR 1953 Cal 13 [LNIND 1952 CAL 98]: (1954) ILR 1 [LNIND 1953 RAJ 83] Cal 438.
53 . See commentary under s 35.
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54 . Manoj Pandarakathil v. Kollamthodi Narayanan, AIR 2008 Ker 132 [LNIND 2008 KER 99]: 2008 (1) Ker LT 810.
55 . Piaro Devi v. Anant Ram, AIR 2008 HP 107 [LNIND 2008 HP 37].
56 . Sidhnath v. Ganesh, (1913) ILR 37 Bom 60; Narayan v. Gopal, (1914) ILR 38 Bom 392.
57 . Chanmalswari v. Gangadharappa, (1915) ILR 39 Bom 339; Mst Chauli v. Mst Meghoo, AIR 1945 All 268.
58 . Bhama v. Bhimagavda, (1915) ILR 39 Bom 421.
59 . Kamini Devi v. Promotha, (1914) 19 Cal WN 751.
60 . Rupchand v. Bhogilal, AIR 1926 Bom 237: (1926) 28 Bom LR 307.
61 . Manash Ranjan v. Tropical Accumulations Ltd., AIR 1957 Cal 135 [LNIND 1955 CAL 35].
62 . Dattatraya v. Radhabai, AIR 1921 Bom 220: (1921) ILR 45 Bom 627; Gulab v. Baliram, (1915) ILR 39 Bom 423; Vamanacharya v. Govind,
AIR 1924 Bom 33: (1923) 25 Bom LR 826 [LNIND 1923 BOM 95], 834; Murali Panda v. Khoshi Naiko, AIR 1947 Pat 255: (1946) 12 Cut
LT 85.
63 . Barkat Ram v. Bhagwan Singh, AIR 1949 EP 222; Kamaraja Pandia v. Kamaraja Pandia, AIR 1933 Mad 500: (1933) 64 Mad LJ 735.
64 . Nand Kumar v. Parupati, AIR 1941 Pat 385: (1940) ILR 20 Pat 417; Chitanlal Purshottam v. GS Gupta, AIR 1938 Nag 233; Mt Phool Sundri
v. Gurban Singh, AIR 1957 Raj 97 [LNIND 1956 RAJ 130]: (1956) ILR Raj 1104.
65 . Nand Kumar v. Pashupati, AIR 1941 Pat 385: (1940) ILR 20 Pat 417; Sada Kaur v. Buta Singh, (1914) PR 80; Saratchandra v. Murtyunjay, AIR
1935 Cal 336: (1935) ILR 62 Cal 61; Puranmasi Yadav v. Narbadeshwar Tripathi, AIR 1998 All 260 [LNIND 1998 ALL 96].
66 . Shamrao Janrao v. Amolak, AIR 1949 Nag 373: (1949) ILR Nag 391; Ganpathi v. Venkatesh, AIR 1938 Nag 83(FB); Satyanarayana v.
Ramalinga, AIR 1952 Mad 86 [LNIND 1951 MAD 13]: (1952) ILR Mad 77 : (1951) 2 Mad LJ 74; Re Ramayamma, AIR 1954 Mad 888:
(1953) 1 Mad LJ 544; Kamalamma v. Batchi Marianna, AIR 1960 Mys 140; Bilas Mohan v. Haricharan, AIR 1961 Cal 491 [LNIND 1955
CAL 183]; Kadar Bai v. Husenali, AIR 1962 Guj 59 [LNIND 1961 GUJ 34].
67 . Kishorelal v. Surajmal, AIR 1956 Raj 164 [LNIND 1956 RAJ 227]: (1956) ILR Raj 736; Md. Yunus v. Sangra Begum, AIR 1955 Hyd 156:
(1956) ILR Hyd 56.
68 . Re Subrahmanyam, AIR 1955 AP 75.
69 . Harihar Baksh Singh v. Jagannath Singh, AIR 1924 Oudh 413; Badrinath v. State of Pepsu, AIR 1957 Pepsu 14.
70 . Gurdas v. Bhag, (1911) PR 96.
71 . Kanthimathi v. Ganesa Iyer, AIR 1936 Mad 101 [LNIND 1935 MAD 259]; Ram Savari Jovar v. Duleem Muthuraj Kovar, AIR 1939 Pat 83: 17
Pat 687; Mt Burket v. Nasseer 1942 Lah 64; Lachayya v. Veeriah, AIR 1961 AP 112 [LNIND 1960 AP 35]; Raghunath v. Nilkantji 9 Bom
453; Ramdhari v. Khader, AIR 1938 Pat 461: (1938) 17 Pat 245.
72 . Lekha v. Bowna, (1896) 18 All 111 (FB); Chausila v. Abhiles, AIR 1936 Cal 804: (1937) ILR 1 Cal 103; Balaji Dhumraji v. Muktha Bai, AIR
1938 Nag 122: (1938) ILR Nag 106; Re Kayambu Pillai, AIR 1941 Mad 836: (1941) ILR Mad 954; Gyasiram v. Brij Bhushan Das, AIR 1962
MP 237 [LNIND 1961 MP 75].
73 . Jnanasundari v. Madhab Chandra, AIR 1932 Cal 482: (1932) ILR 59 Cal 388; dissenting from Rupsing v. Mukhraj Singh, (1885) ILR 7 All
887.
74 . Ainthu Charan Parida v. Sitaram Jayanarayan, AIR 1984 Ori 230 [LNIND 1984 ORI 26] (FB).
75 . Amba Shankar v. Mt Sheoti, AIR 1937 All 280: (1937) All LJ 171; Rajballam Singh v. Madhu Sudan, AIR 1950 Pat 443.
76 . Ayyanna v. Nagabhooshanam, (1893) ILR 16 Mad 285.
77 . Zamindar of Tuni v. Bennayya, (1899) ILR 22 Mad 155.
78 . Abdul Majid v. Amina Khatun, AIR 1942 Cal 539: (1942) ILR 2 Cal 253 : (1942) 75 Cal LJ 393 : (1942) 46 Cal WN 697; Rupsing v.
Mukhraj Singh, (1885) ILR 7 All 887; Mela Mal v. Harbhaj, (1884) PR 115.
79 . Gulab Rai v. Mangli Lal, (1885) ILR 7 All 42; Raghunath v. Nilo, (1885) ILR 9 Bom 52; Ganga Dass v. Ramjoy, (1880) ILR 12 Cal 30;
Saminatha v. Venkatasubha, (1903) ILR 27 Mad 21; Rakhal v. Ashutosh, (1913) 17 Cal WN 807.
80 . Rakhal v. Ashutosh, (1913) 17 Cal WN 807; Lekha v. Bhauna, (1896) ILR 18 All 101; Romesh v. Monindra, AIR 1922 Cal 246: (1921) ILR 49
Cal 355.
81 . Somba Keshao v. Rodrigues, AIR 1938 Nag 322.
82 . Hakam Singh v. Jaswant Singh, AIR 1974 P&H 235.
83 . Purushottamdas v. Devkaran Keshaoji, AIR 1939 Nag 39.
84 . Raghunath v. Shamo Joeri, (1904) ILR 31 Cal 344; Mahabir v. Behari, (1891) ILR 13 All 320.
85 . Venkata v. Venkatarama, (1898) ILR 22 Mad 256, 258.
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86 . RMARA Adaikappa Chettiar v. R. Chandra Sekhara, AIR 1948 PC 12 [LNIND 1947 PC 52]: (1948) ILR Mad 505 : 74 IA 264; Mst Durga
Devi v. Hansraj, AIR 1930 Lah 187: (1930) ILR 11 Lah 402; Sarasvati v. Moti, (1913) ILR 41 Cal 160.
87 . Kedarnath v. Pattu Lal, AIR 1945 Oudh 312: (1945) ILR 20 Luck 557; Jogodishury v. Kailash, (1897) ILR 24 Cal 725, 729; Sivagami v.
Subrahmania, (1904) ILR 27 Mad 259 (FB); Deoki v. Bansi, (1912) 16 Cal WN 124; Mukhtar v. Muqurrah, (1912) ILR 34 All 530; Srinivas v.
Kesho, (1911) ILR 38 Cal 160; Hussain Bhai v. Batul Shah, AIR 1924 All 808: (1924) ILR 46 All 733, p. 737; Sardarni v. Ram Rattan, (1920) 2
Lah LJ 398; Surendra Nath v. Mritunjay, (1920) 5 Pat LJ 270; Tipan Raut v. Raj Kumar, AIR 1977 Pat 53.
88 . Badri Narain v. Jai Kishen, (1894) ILR 16 All 483; Tameshar v. Thakur, (1903) ILR 25 All 3; Ganga Das v. Yakub, (1900) ILR 27 Cal 670;
Subbuthayammal v. Chidambaram, (1902) ILR 25 Mad 383; Hariditta v. Nigahia, AIR 1922 Lah 396: (1922) 4 Lah LJ 259; Run Bahadur v.
Bajrangi, AIR 1925 Pat 16: (1924) ILR 3 Pat 344.
89 . Ghanshiam Singh v. Har Piarey, AIR 1974 All 229: (1974) All WR 194.
90 . Jamna v. Mathura, (1894) ILR 16 All 129; Ranji v. Bhaiji, (1887) ILR 11 Bom 57; Guruvayya v. Vudayappa, (1895) ILR 18 Mad 26;
Jadunandan v. Sheonandan, AIR 1922 Pat 276: (1922) ILR 1 Pat 644.
91 . Mani Shankar v. Niranjan Sarup, AIR 1955 All 686 [LNIND 1954 ALL 146].
1 . Jodoonath v. Brojo Mohun, (1886) ILR 13 Cal 174; Ko Tha Hayin v. Ma Hnin, (1911) ILR 38 Cal 717 : 38 IA 126.
2 . Janardhan v. Martand, AIR 1921 Bom 208: (1921) ILR 45 Bom 241.
3 . Mst Durga Devi v. Hansraj, AIR 1939 Lah 187: (1930) ILR 11 Lah 402; dissenting from Janardan v. Martand, AIR 1921 Bom 208;
distinguishing Saraswati v. Moti, (1914) ILR 41 Cal 160.
4 . Rajendra Kishore v. Mathura Mohan, (1919) 25 Cal WN 555.
5 . Lala Narotam Dass v. Thakurain Sri Ram Kunwar, AIR 1936 Oudh 272: (1936) 11 Luck 26.
6 . Bhagwat Prasad v. Abdul Basit, AIR 1962 Punj 379; S. Appanna v. R. Narsinga Rao, AIR 1975 AP 304 [LNIND 1975 AP 223].
7 . Md. Khan v. State Bank of Travancore, AIR 1978 Ker 201 [LNIND 1978 KER 1]; Mohan Das v. Kamala Devi, AIR 1978 Raj 127.
8 . Re Soumitra Kumar De, AIR 1982 Cal 34 [LNIND 1981 CAL 254], pp. 3738.
9 . Hasumatiben v. Ambalal Krishanlal Parikh, AIR 1982 Guj 324 [LNIND 1981 GUJ 112] (DB)
10 . Director, Railway Movement v. Akashwani Works, AIR 1985 All 314 [LNIND 1985 ALL 77], p. 320, para 1718.
11 . Ramamurthy v. P. Adinarayanan & Sons, AIR 1985 AP 42 [LNIND 1983 AP 128], p. 45, para 79 (DB).
12 . R.S. Sancheti v. R.V. Batwal, AIR 1983 Bom 378 [LNIND 1983 BOM 38] (DB).
13 . Pratap Narain v. Ram Narain, AIR 1980 All 42 [LNIND 1979 SC 364] (FB).
14 . M. Janakiamma v. Pardesi Sanna, AIR 1980 AP 209 [LNIND 1979 AP 278].
15 . Tapan Chandra v. Dulal Chandra, AIR 1980 Gau 3.
16 . Hasumatiben v. Ambalal, AIR 1982 Guj 324 [LNIND 1981 GUJ 112].
17 . Kuraikose v. P.K. Narayana, AIR 1981 Ker 18 [LNIND 1980 KER 221].
18 . Sarabai Agarwalla v. Haradhan Mohapatra, AIR 1982 Ori 9 [LNIND 1981 ORI 68].
19 . Mohan Das v. Kamla Devi, AIR 1978 Raj 127.
20 . Parshwa Properties v. A.K. Bose, AIR 1979 Pat 308.
21 . Baldevdas v. Vallabdas, AIR 1947 Bom 462: 49 BLR 306; contra where the order for restitution does not strictly fall within s 144; Sayyed
Usman v. Vegisena, AIR 1950 Mad 463 [LNIND 1949 MAD 332]: (1950) Mad WN 196; Telu v. Raja Ram, AIR 1938 Lah 456.
22 . Suryanarayana v. Lakshminarayana, AIR 1960 AP 544 [LNIND 1959 AP 173].
23 . Gilkinson v. Subramania, (1899) ILR 9 All 427.
24 . Gosto Behari v. Hari Mohan, (1903) 8 Cal WN 313; Ramchandra v. Madhav, (1892) ILR 16 Bom 23; Ablakh v. Bhagirathi, (1887) ILR 9 All
427.
25 . Rukminimayi v. Paran Chandra, (1912) ILR 39 Cal 341; Surujdev v. Partap, AIR 1923 Pat 514: (1923) ILR 2 Pat 739.
26 . Re Subramaniam, (1955) ILR Andhra 75; Re Kayambu Pillai, AIR 1941 Mad 836: (1941) ILR Mad 954; Tufasal v. Shah Mahamad, AIR 1949
All 261.
27 . Chamarin v. Bhudhiyarin, AIR 1975 MP 75 [LNIND 2015 MP 4372]: (1975) MP LJ 82. See also Rights of Parties.
28 . Suranjan v. Ram Bahal, (1913) ILR 35 All 582.
29 . Nalinakshya v. Matakshar, (1900) ILR 28 Cal 177; Narayanasami v. Natesa, (1892) ILR 16 Mad 424; Bai Shri Vakuba v. Agarsangji, (1907)
ILR 31 Bom 447; Bava Singh v. Lachman Singh, (1911) PR 24.
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30 . Hirdaman v. Jinghoo, (1880) ILR 5 Cal 711; Fazal v. Hashmati, (1916) PR 40 and under O 9, r 4; Alwar v. Seshmma, (1887) ILR 10 Mad 270;
Wahidunnissa v. Kundan Lal, (1913) ILR 35 All 427.
31 . Shama Dass v. Hurbuns, (1889) ILR 16 Cal 426.
32 . Tulijaram v. Alagappa, (1912) ILR 35 Mad 1; Ebrahim v. Fuckrunnissa, (1879) 4 ILR Cal 531.
33 . Lala Das v. Mina Mal, AIR 1922 Lah 259: (1922) 4 Lah LJ 266; Abdul Rahiman v. Mahomed, (1808) 21 ILR Mad 29.
34 . Sivagami v. Subramania, (1904) 27 ILR Mad 259; Indrani v. Babu Bimla, AIR 1930 Oudh 81: (1930) ILR 5 Luck 481; Ramanathan v.
Venkatachala, AIR 1923 Mad 619 [LNIND 1923 MAD 25]: (1923) 44 Mad LJ 599; Panch v. Mani, (1912) 16 Cal WN 970.
35 . Premavathi v. Satyavathi, AIR 1953 Nag 55.
36 . Sivanarayan v. Khemraj, AIR 1954 Nag 31.
37 . M. Damodaran v. M. Kesavankutty, (1973), AIR 1975 Ker 16 [LNIND 1973 KER 135]: ILR 2 Ker 472.
38 . Bai Karimabibi v. Abderehman, AIR 1923 Bom 26: (1922) ILR 46 Bom 990; Heramba Chandra v. Jyotish Chandra, AIR 1932 Cal 579: (1932)
ILR 59 Cal 501.
39 . Ajudhia v. Government of Uttar Pradesh, (1947) ILR All 390.
40 . Bajirao v. Kashirao, AIR 1978 Bom 350 [LNIND 1978 BOM 17].
41 . K.M. Basheer v. Trie-Tee Trading Co. Ltd., AIR 2007 Ker 291 [LNIND 2007 KER 569]: 2007 (4) Ker LT 113 [LNIND 2007 KER 569].
42 . Kedarnath v. Ganesh, (1907) 12 Cal WN 446.
43 . AIR 1927 Cal 290: [1927] AC 290.
44 . Maheswar Swain v. Bidyut Prabha Art Press, AIR 1971 Cal 455 [LNIND 1970 CAL 242].
45 . Daily Calendar Supplying Bureau v. United Concern, AIR 1967 Mad 381.
46 . Raja Soap Factory v. Shantharaj, AIR 1965 SC 1449 [LNIND 1965 SC 12].
47 . Bezharva v. State of Assam, AIR 1954 Ass 161; Munshi v. Evankhan, (1961) Jab LJ 1431.
48 . Re Patrick Martin, AIR 1989 Mad 231 [LNIND 1989 MAD 130].
49 . Subs. by CPC (Amendment) Act 2 of 1951, s 4, for the original clause.
50 . Bowles v. Bowles, (1884) ILR 8 Bom 571.
51 . London Bank v. Hormasji, (1871) 8 BHC 200.
52 . See Deep Narain v. Dietert, (1904) ILR 31 Cal 274.
53 . Shaik Atham v. Davud, (1909) ILR 32 Mad 469, p. 471.
54 . Kassim v. Isuf, (1904) ILR 29 Cal 509. As to suit on judgments of the High Court of Justice in England, see notes to s 13, An Indian
court will not give effect to a foreign judgment, etc..
55 . Ramakrishna Balasubramanian v. Priya Ganeshan, AIR 2007 Mad 210 [LNIND 2007 MAD 996] (DB) : 2007 (5) ALJ (NOC) 790.
56 . Subs. for Provincial Government by AO 1950.
57 . Kanta Kathuria v. Manak, AIR 1970 SC 694 [LNIND 1969 SC 407], p. 700.
58 . Mundrika Prasad Sinha v. State of Bihar, AIR 1979 SC 1871 [LNIND 1979 SC 383]: (1979) 4 SCC 701 [LNIND 1979 SC 383] : [1980] 1
SCR 759 [LNIND 1979 SC 383].
59 . Ins. by the Repealing and Amending Act 42 of 1953, Sch III and s 4.
60 . State of Jammu & Kashmir v. Lucky Glass Works, AIR 1969 Cal 11 [LNIND 1966 CAL 76], p. 12.
61 . Aloo v. Gagubha, (1895) ILR 19 Bom 608; Frome United Breweries Co. v. Borth Justices, AIR 1926 Cal 596.
62 . Anand Prakash v. Asst. Registrar Co-op. Societies, AIR 1968 All 22 [LNIND 1966 ALL 107].
63 . State of Tamil Nadu v. S. Thangavel, AIR 1997 SC 2283 [LNIND 1996 SC 2021]: (1997) 2 SCC 349 [LNIND 1996 SC 2021].
64 . Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, (1994) 6 SCC 37.
65 . Vidyacharan v. Khulachand, AIR 1964 SC 1099 [LNIND 1963 SC 311]: [1964] 6 SCR 129 [LNIND 1963 SC 311]; Arajan Dass v.
Jagannath, AIR 1966 Punj 227.
66 . Chambers Dictionery (Deluxe Edition), Sixth reprint, p. 905.
67 . New Shorter Oxford English Dictionary 1993 edn, p. 1459.
68 . Websters Comprehensive Dictionary, International Ed., Vol. 1, 1984.
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69 . Cellular Operators Association of India v. UOI, AIR 2003 SC 899 [LNIND 2002 SC 822]: AIR 2003 SCW 366.
70 . Ibid, para 21.
71 . Kamala Mining Corpn. v. Rameshwarlal, AIR 1968 AP 138 [LNIND 1966 AP 264].
72 . V. Gokul v. State of Gujarat, (1966) ILR Guj 1189.
73 . Arati Paul v. Registrar, High Court, AIR 1965 Cal 3 [LNIND 1964 CAL 169].
74 . Oriental Insurance Co. Ltd. v. Sardar Sadhu Singh, AIR 1994 Raj 44.
75 . Boards & Boards Pvt. Ltd., Jaipur v. Himalaya Paper Pvt. Ltd., New Delhi, AIR 1990 Raj 120.
76 . Temple of Thakurji v. State of Rajasthan, AIR 1998 Raj 85 [LNIND 1963 RAJ 94].
77 . State of West Bengal v. Kesoram Industries Ltd., AIR 2005 SC 1646 [LNIND 2004 SC 63].
78 . Shriram Industrial Enterprise v. Union of India, AIR 1996 All 135 [LNIND 1995 ALL 926].
79 . Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381 [LNIND 1999 SC 781]: AIR 1999 SCW 3345: (1999) 8 SCC 396 [LNIND 1999 SC
781]; See also Cellular Operators Association of India v. UOI, AIR 2003 SC 899 [LNIND 2002 SC 822]: AIR 2003 SCW 366.
80 . 2008 (3) Civil Court Cases 012 (SC). See also AIR 1954 SC 194 [LNIND 1953 SC 99].
81 . AIR 1969 SC 1167 [LNIND 1969 SC 119]: (1969) 1 SCC 709 [LNIND 1969 SC 119].
82 . Meditronics Corporation of India v. Salima A Rais, AIR 2007 (NOC) 735(Bom).
83 . Websters Comprehensive Dictionary, International Ed., Vol. 1, 1984.
84 . UOI v. Manager, Jain & Associates, AIR 2001 SC 3381: AIR 1999 SCW 3345: (2001) 3 SCC 277 [LNIND 2001 SC 330]; See also Cellular
Operators Association of India v. UOI, AIR 2003 SC 899 [LNIND 2002 SC 822]: AIR 2003 SCW 366.
85 . Subal Paul v. Malina Paul, AIR 2003 SC 1928 [LNIND 2003 SC 189]: AIR 2003 SCW 1412.
86 . RSRTC v. Vaibhav Kumar, AIR 2007 Raj 147: RLW 2007 (4) Raj 3022 (DBJaipur Bench).
87 . Ashwani Kumar Singh v. Uttar Pradesh Public Service Commission, AIR 2003 SC 2661 [LNIND 2003 SC 551] (para 11, 13).
88 . Smt. Hina Singh v. Satya Kumar Singth, AIR 2007 Jhar 34 [LNIND 2006 JHAR 119] (DB) : AIR Bom R 370 (NOC).
89 . Islamic Academy of Education v. State of Karnataka, AIR 2003 SC 3724 [LNIND 2003 SC 667].
90 . Shah Babulal Khimji v. Jayaben D Kaine, AIR 1981 SC 1986: (1981) 1 SCC 8 : [1982] 1 SCR 87.
91 . Mine Planning & Design Institute Ltd. v. UOI, AIR 2001 SC 883 [LNIND 2001 SC 225].
92 . Ibid.
93 . Iaq v. Ramji, (1952) ILR All 618.
94 . Vijay Raj v. Lal Chand, (1966) ILR Raj 194.
1 . Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, AIR 1989 SC 1589 [LNIND 1989 SC 267]; Indira Vinayak
Sawant v. Vijayendra Umakan Shety, AIR 2007 Bom 87 [LNIND 2006 GOA 158].
2 . Manjuri Bera v. Oriental Insurance Co. Ltd., AIR 2007 SC 1474 [LNIND 2007 SC 400]: (2007) 10 SCC 643 [LNIND 2007 SC 400].
3 . Mahant Shyamdas Guru Mohandas v. Lalaram M. Kori, AIR 2008 MP 47 [LNIND 2007 MP 410] (DB).
4 . Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690 [LNIND 1987 SC 472]: (1987) 3 SCC 234 [LNIND
1987 SC 472].
5 . Smt. Amma v. Royal Transport Services, AIR 2008 MP 213 [LNIND 2007 MP 669].
6 . Ashwani Kumar v. Smt. Vidya, AIR 2007 All 105.
7 . Brijesh Kumar v. District Judge, Azamgarh, 2010 (1) Civil Court Cases 072 (All).
8 . Kaluram v. Chaman Singh, AIR 1994 Raj 31.
9 . Vrishendramani v. K. Venugopal Rai, AIR 1995 Kar 230; Sarada v. Chakunny, AIR 1992 Ker 249.
10 . Manranjan v. Rani Brigaraj, AIR 1947 Pat 365: (1946) ILR Pat 550.
11 . Andhra Bank v. Srinivasan, AIR 1962 SC 232 [LNIND 1961 SC 292]; overruling Natesa v. Alamelu, AIR 1950 Mad 541 [LNIND 1950
MAD 43]; Natesa v. Sundaram, AIR 1953 Mad 622; where Natesa v. Alamelu, AIR 1950 Mad 541 [LNIND 1950 MAD 43] is discussed.
12 . Shakuntala Bai v. Shankar Rao, AIR 1949 Nag 176; Navaneetham v. Gangan, AIR 1961 Mad 376 [LNIND 1960 MAD 171].
13 . Ragho Prasad Gupta v. Krishna, AIR 1969 SC 316: [1969] 1 SCR 884.
14 . Dhool Chand v. Ganpat Lal, AIR 1957 Raj 283 [LNIND 1956 RAJ 122]: (1957) ILR Raj 543 : (1957) Raj LW 187.
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15 . Commissioner of Income-tax, Shilong v. Jai Prakash Singh, AIR 1996 SC 1303 [LNIND 1996 SC 574]. See also notes to ss 50, 52 and O 22 r
3
16 . Price v. Strange, (1882) ILR 6 Mad 159.
17 . Framji v. Adarji, (1894) ILR 18 Bom 377; Barnett Bros v. Fowle, AIR 1925 Rang 186: (1925) 3 Rang 46.
18 . (1904) 8 Cal WN 843.
19 . Shakuntala Bai v. Shanker Rao, AIR 1949 Nag 176: (1904) 8 Cal WN 843, p. 858; Abdul Jabbar v. Manomani Pictures, AIR 1976 Mad 368
[LNIND 1976 MAD 352].
20 . Shantha v. Natarajan, (1960) 1 MLJ 318 [LNIND 1959 MAD 267]; L. Sreenivasulu v. D. Muniratnam, AIR 1978 AP 173 [LNIND 1977
AP 216].
21 . Custodian of Branches of BANCO National Ultramarino v. Walini Bai Naique, AIR 1989 SC 1589 [LNIND 1989 SC 267].
22 . Jiba Devi v. Satya Nand Roy, AIR 1982 Pat 177(DB).
23 . Hafizun Begum v. Member, Motor Vehicle Claim Tribunal, AIR 2009 Gau 4 [LNIND 2008 GAU 157] (DB) : 2009 (5) Gau LR 823.
24 . Manjuri Bera v. Oriental Insurance Co. Ltd., AIR 2007 SC 1474 [LNIND 2007 SC 400]: (2007) 10 SCC 643 [LNIND 2007 SC 400].
25 . Raman Khanna v. Sham Kishore Khanna, AIR 2009 HP 42: 2009 91) Shim LC 200.
26 . Smt. Gauri Bahu v. Gopaldas Potoram Jaiswani, AIR 20078 (NOC) 1708 (MP).
27 . Suresh Kumar Bansal v. Krishna Bansal, AIR 2010 SC 344 [LNIND 2009 SC 2100]: (2010) 2 SCC 162 [LNIND 2009 SC 2100]. See also
Jaladi Suguna deceased through L.Rs. v. Satya Central Trust, AIR 2008 SC 2866: (2008) 8 SCC 521.
28 . Ram Sarup v. Patto, AIR 1981 P&H 68.
29 . Javarimal v. Mangilal, (1961) Raj LW 132.
30 . Satyanarayana v. Sarat Chandra, AIR 1926 Cal 825: (1926) 30 Cal WN 565; Nagendranath v. Hyat, AIR 1933 Cal 865: (1933) 37 Cal WN
758.
31 . Jiba Devi v. Satya Nand Roy, AIR 1982 Pat 177(DB).
32 . P.N. Unni v. Baby John, AIR 2008 Ker 157 [LNIND 2008 KER 121]: 2008 (2) Ker LT 78 (DB).
33 . Seshapu Ramulamma v. Doppalapudi Raju, AIR 2009 (NOC) 1336(AP).
34 . L.Rs. of Tribuvan Dutt v. Jai Narayan, AIR 2009 Raj 174 [LNINDU 2009 RAJ 485].
35 . Kanhiya Singh Santok Singh v. Kartar Singh, AIR 2009 SC 1600 [LNIND 2009 SC 521]: (2009) 4 SCC 155.
36 . Chandralekha v. B.V. Sujatha, AIR 2010 Kar 104.
37 . New Okhla Industrial Development Authority v. Pooran Singh, AIR 2004 All 218.
38 . Ibid.
39 . Ibid.
40 . New Okhla Industrial Development Authority v. Pooran Singh, AIR 2004 All 218.
41 . Rao Bhimsingh v. Sher Singh, AIR 1948 PC 1: (1947) ILR Nag 820 : 74 IA 247 : (1948) 52 Cal WN 109; Lala Radharaman v. Anant Singh,
AIR 1945 Oudh 196: (1945) ILR 20 Luck 305.
42 . Alek Chandra v. Krishna Chandra, AIR 1941 Pat 596: (1941) ILR 20 Pat 755, p. 763.
43 . Venkatanarayana v. Subhammal, (1915) ILR 38 Mad 406 : 42 IA 125.
44 . Kailas v. Sheo Pujan, AIR 1952 Pat 380.
45 . Mahadeo v. Sheo Karan, (1913) ILR 35 All 481; Jadubansi v. Mahpal Singh, (1916) ILR 38 All 111; Rama Swami v. Podamunayya, (1916) ILR
39 Mad 382.
46 . Premmoyi v. Preonath, (1896) ILR 23 Cal 636; Tribhuwan v. Sri Narain, (1898) ILR 20 All 341; Rikhai Rai v. Sheo Pujan, (1910) ILR 33 All
15.
47 . Chunilal v. Bai Mani, (1918) ILR 42 Bom 504; Dwarka Das v. Krishnan, AIR 1921 Lah 34: (1921) 2 Lah 114.
48 . Jambirao v. Annapa, AIR 1941 Bom 23: (1941) ILR Bom 177 (FB); Sakarlal v. Parvatibai, (1902) ILR 26 Bom 283.
49 . Alekh Chandra v. Krishna Chandra, AIR 1941 Pat 596: (1941) ILR 20 Pat 755; Ganesh v. Narayan, AIR 1931 Bom 484: (1931) ILR 55 Bom
709.
50 . Bishan Narayan v. Om Prakash, AIR 1952 Punj 167.
51 . See note Legal Representative under O 22, r 3.
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52 . Raghunath Das v. Sundar Das, AIR 1914 PC 129: (1915) ILR 42 Cal 72, p. 83 : (1914) 41 IA 251, p. 257.
53 . Kutty Kunhunniraja v. Kuthiravattathu Nairs Estate, AIR 1960 Ker 288 [LNIND 1959 KER 348].
54 . Woomesh v. Jabed Ali, AIR 1944 Cal 42: (1950) ILR Cut 413 : (1943) 77 Cal LJ 155; Daropdi v. Sada Kuar, (1913) PR No 115, p. 436; Ram
Singh v. Saryan Singh, AIR 1924 Lah 251: (1923) 5 Lah LJ 459, (no intermeddling); Chacko v. Iype, AIR 1956 TC 147; Andhra Bank Ltd. v.
Srinivasan, AIR 1962 SC 232 [LNIND 1961 SC 292]: (1962) 2 SCR 391.
55 . Ram Prasad v. Jumna Prasad, AIR 1952 MB 153.
56 . Chockalingam v. Karuppan, AIR 1948 Mad 386; Satya Ranjan v. Sarat Chandra, AIR 1926 Cal 825(1926) 30 Cal WN 565; Nagendra Nath v.
Haran Chandra, AIR 1933 Cal 865: (1933) 37 Cal WN 758; Ram Prasad v. Jumna Prasad, AIR 1952 MB 153; Kalyanmal Mills Ltd. v.
Volimohammad, AIR 1965 MP 72 [LNIND 1962 MP 184]: (1965) MPLJ 452.
57 . Natesa Sastrigal v. Alamemachi, AIR 1951 Mad 541; Baliram v. Mukinda, AIR 1951 Nag 145; Manikya v. Lakshminarasimha, AIR 1933 Mad
43 [LNIND 1932 MAD 101].
58 . State Bank of India v. Indian Apparel Industries, AIR 1989 Del 299 [LNIND 1989 HP 79] 300.
59 . Sudama Devi v. Jogendra Chaudhary, AIR 1987 Pat 239: 1987 BLJR 724 (FB).
60 . Yogendra Bhagata v. Pritlal Yadava, AIR 2009 Pat 168 [LNIND 2009 PAT 44] (FB).
61 . K. Shankarappa v. K.G. Gangadharaiah, AIR 2001 Kant 203 [LNIND 2001 KANT 675]: 2001 (3) Kant LJ 647. See also Baikunth Nath
Das v. VII ADJ, Gorakhpur, AIR 2004 All 382: 2004 All LJ 3288.
62 . Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507 [LNIND 1993 SC 234] : (1993) 50 Del LT 266.
63 . Jaladi Suguna (Dead) through L.Rs. v. Satya Sai Central Trust, AIR 2008 SC 2866: (2008) 8 SCC 521.
64 . N. Dasji v. Tirupathi Devasthanam, AIR 1965 SC 1231.
65 . Kamakhya Singhdeo v. Modula India, AIR 2008 (NOC) 2582(Cal).
66 . Mohadei v. Kaliji Birajman, 1969 All LJ 896.
67 . Kishen Kumar Narandas Jobanputra v. Purushottam Mathuradas Raithatha, 2006 (2) Civil Court Cases 600 (Bom).
68 . Ibid, p. 603.
69 . P.L. Kapur v. Jia Rani, AIR 1973 Del 186 [LNIND 1972 DEL 44]; Dwaraka Rai v. Lakshmi Narayan, AIR 1979 Pat 11.
70 . Neeraj Lunawat v. Gyanchand Chawrdia, 2007 (3) Civil Court Cases 340 (Raj).
71 . AIR 1975 AP 208 [LNIND 1974 AP 145] (DB).
72 . AIR 1953 SC 487 [LNIND 1953 SC 78]: 1954 SCR 177 [LNIND 1953 SC 78].
73 . Md. Amin v. Vakil Ahmad, AIR 1952 SC 358 [LNIND 1952 SC 55]: 1952 SCR 1133 [LNIND 1952 SC 55].
74 . Gopal Krishna Pillai v. Meenakshi Aval, AIR 1967 SC 155 [LNIND 1966 SC 109]: 1966 Supp SCR 128.
75 . Shambhu Dayal Khetan v. Motilal Murarka, AIR 1980 Pat 106.
76 . Tarquino Raul Henriques v. Damodar Mongalji & Co. Pvt. Ltd., AIR 1989 Bom 309 [LNIND 1988 BOM 22].
77 . Kesardeo v. Nathmal, AIR 1966 Bom 226.
78 . Muhammed Hanifa Rowther v. Sara Umma, AIR 1991 Ker 94 [LNIND 1990 KER 466].
79 . Purificacao v. Hugo, AIR 1985 Bom 202 [LNIND 1984 BOM 357].
80 . Luaj Kochuvareed v. P. Mariappa Govinder, AIR 1979 SC 1214 [LNIND 1979 SC 103]: (1979) 3 SCC 150 [LNIND 1979 SC 103] : (1979) 3
Mah LR 229.
81 . Ratilal v. Vithaldas, AIR 1985 Bom 134 [LNIND 1984 BOM 364], p. 136, para 8.
82 . Surender Kumar Grover v. Jayanta Roy, AIR 1996 Cal 88 [LNIND 1995 CAL 252].
83 . See s 144 and notes to O 20, r 12.
84 . Onkermull v. Padampat, AIR 1994 Raj 44: (1944) 53 Cal WN 310. See notes under cl (3) of this section.
85 . Re Siddharth Srivastava, AIR 2002 Bom 494 [LNIND 2002 BOM 336].
86 . Ibid.
87 . Jethanand v. Honble Judges of the Punjab High Court, AIR 1962 SC 742 [LNIND 1961 SC 546].
88 . Re Pleaders of the High Court, (1884) ILR 8 Bom 145.
89 . Jivibai v. Ram Kumar, AIR 1947 Nag 17: (1946) ILR Nag 824; Sourendra Nath v. Tarubala, AIR 1930 PC 158: (1930) ILR 57 Cal 1311 :
(1930) 57 IA 133; reversing Taru Bala v. Sourendra Nath, AIR 1925 Cal 866: (1925) 41 Cal LJ 213; Shepherd v. Robinson, [1919] 1 KB 474;
 Page 87 of 90
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Jang Bahadur v. Shankar, (1891) ILR 13 All 272; Nundo Lal v. Nistarini, (1900) ILR 27 Cal 428; Nilmoni v. Kedar Nath, AIR 1922 Pat 232:
(1922) ILR 1 Pat 489.
90 . AIR 1930 PC 158: (1930) 57 IA 133, p. 139 : (1930) ILR 57 Cal 1311.
91 . Desram v. Baswa, AIR 1930 Rang 313: (1930) 8 Rang 290.
92 . Sourendra Nath v. Tarubala, AIR 1930 PC 158: (1930) ILR 57 Cal 1311 : (1930) 57 IA 133; Matthews v. Munster, (1888) 20 QBD 141;
Surendra v. Lakshmia Singh, AIR 1960 Bom 20 [LNIND 1958 BOM 172]; Lakshmi Das v. Savitha Bai, AIR 1956 Bom 54 [LNIND 1955
BOM 35].
93 . Jiwabai v. Ram Kumar, AIR 1947 Nag 17: (1946) ILR Nag 824; Bholanath v. Pannalal, AIR 1947 All 382: (1947) ILR All 706; Matthews v.
Munster, (1888) 20 QBD 141; Jang Bahadur v. Shankar, (1891) ILR 13 All 272; Carrison v. Rodrigues, (1886) ILR 14 Cal 115; BN Sen & Sons v.
Chunilal, AIR 1924 Cal 651: (1924) ILR 51 Cal 385; Muthiah Chettiar v. Karuppan Chetti, AIR 1927 Mad 852 [LNIND 1927 MAD 44]:
(1927) ILR 50 Mad 786.
94 . Jiwabai v. Ram Kumar, AIR 1947 Nag 17: (1946) ILR Nag 824; Ramappayya v. Subbamma, (1948) ILR Mad 647; Strauss v. Francis, [1866] LR
1 QB 379, p. 382.
95 . Shepherd v. Robinson, [1919] 1 KB 474.
96 . Re Hobler, (1844) Beav 101; Mole v. Smith, (1820) 1 Jac & W per Lord Eldon, LC at p. 673.
97 . Strauss v. Francis, (1866) LR 1 QB 379; Rumsey v. King, (1876) 33 LT 728.
1 . Neale v. Gordon Lennox, [1902] AC 465, p. 470; Chunilal v. Hiralal, AIR 1928 Cal 378: (1927) 32 Cal WN 44.
2 . Hickman v. Berens, (1895) 2 Ch 638; Wilding v. Sanderson, (1897) 2 Ch 534; Huddersfield Banking Co. v. Lister, (1895) 2 Ch 273; Bibee Solomon v.
Abdool Azeez, (1881) ILR 6 Cal 687, p. 706; Kyone Hoe Twee v. Kyon Soon Sun, AIR 1925 Rang 314: (1925) 3 Rang 261.
3 . Berry v. Mullen, (1971) 5 Ir Rep 368; Jang Bahadur v. Shankar, (1891) ILR 13 All 272; Carrison v. Rodrigues, (1886) ILR 13 Cal 115.
4 . Ibid.
5 . Ambalal v. Somabhai, AIR 1944 Bom 46: (1943) 45 Bom LR 1045; Nundo Lal v. Nistarini, (1800) ILR 27 Cal 428; Swinfein v. Lord
Chelmsford, (1859) 29 LJ (Ex) 382.
6 . Johurmull v. Kedar Nath, AIR 1927 Cal 714: (1927) ILR 55 Cal 113.
7 . Askaram v. EI Rly. Co., AIR 1925 Cal 696: (1925) ILR 52 Cal 386.
8 . Johurmull v. Kedar Nath, AIR 1927 Cal 714: (1927) ILR 55 Cal 113.
9 . Fray v. Voules, (1859) 1 E&E 839; Jaganathdas v. Ramdas, (1870) 7 HCOC 79; Re Newen, (1903) 1 Ch 812; Little v. Spreadburg, [1910] 2 KB
658 (apparent authority but misunderstanding on part of client as to terms of compromise).
10 . Matthews v. Munster, (1888) 20 QBD 141; Jang Bahadur v. Shankar, (1891) ILR 13 All 272.
11 . Sourendra Nath v. Tarubala, AIR 1930 PC 158: (1930) 57 Cal 1311 : (1930) 57 IA 133.
12 . Ramappayya v. Subbamma, AIR 1949 Mad 98 [LNIND 1947 MAD 277]: (1948) ILR Mad 647; contra Jiwabai v. Ram Kumar, AIR 1947
Nag 17: (1946) ILR Nag 824; Jagapati v. Ekambara, (1898) ILR 21 Mad 274; Thenal v. Sokkammal, (1918) ILR 41 Mad 223; Ramasamy
Chettiar v. Jai Hind Talkies, AIR 1956 Mad 596 [LNIND 1964 MAD 76]; Govindammal v. Marimuthu, AIR 1959 Mad 7 [LNIND 1957
MAD 39].
13 . Jiwibai v. Ram Kumar, AIR 1947 Nag 17: (1946) ILR Nag 824; Smith v. Tromp, (1849) 7 CB 757; Faviell v. Eastern Countries Ry Co., (1848) 2
Ex 344.
14 . Neale v. Gordon Lennox, AIR 1902 Cal 465.
15 . Thekur Persad v. Kalka, (1874) 6 NWP 210 ; contra Jiwibai v. Ram Kumar, AIR 1947 Nag 17: (1946) ILR Nag 824.
16 . Sadashiv v. Maruti, (1890) ILR 14 Bom 455; contra Jiwibai v. Ram Kumar, AIR 1947 Nag 17: (1946) ILR Nag 824; Bunzi Lal v. Jasraj, AIR
1961 Raj 209.
17 . Hemalatha v. Jambu Prasad, AIR 1959 All 383.
18 . Chambers v. Mason, (1858) 5 CBNS 59; Strauss v. Francis [1866] LR 1 QB 379.
19 . Ram Coomar v. Collector of Beerbhoom, (1866) 5 WR 80.
20 . Re An Attorney, AIR 1955 Cal 113 [LNIND 1954 CAL 114]; Re Mahboob Ali Khan, AIR 1958 AP 116; Ali Mahomed v. An Advocate, AIR
1960 All 660.
21 . Haller v. Worman, (1860) 2 F&F 165; Stracy v. Blake, (1836) 1 M & W 168.

22 . Wagstaff v. Watson, (1883) 4 B&Ad 339; Patch v. Lyon (1846) 9 QB 147 .

23 . Kower Narain v. Sreenath, (1868) 9 WR 485; Rajunder v. Bijai, (1839) 2 MIA 253; Hingan Lan v. Mansa Ram, (1896) ILR 18 All 384; Venkata
v. Bhashyakarlu, (1899) ILR 22 Mad 538.
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24 . Markanda v. Varada Kameshwar, AIR 1949 Pat 197: (1947) ILR 26 Pat 717; Young v. Wright, (1807) 1 Cam 139; Parkins v. Hawkshaw,
(1817) 2 St 239; Patch v. Lyon (1846) 9 QB 147 .
25 . Natha v. Jodha, (1884) ILR 6 All 406.
26 . Sreemutty Dossee v. Pitamber, (1874) 21 WR 332.
27 . Markanda v. Varada Kameshwar, AIR 1949 Pat 197: (1947) ILR 26 Pat 717; Pearylal v. Bhaman Lal, AIR 1950 All 433 [LNIND 1950
ALL 6]; Dwar Bux v. Fatik, (1898) 3 Cal WN 222 (pleader); Beni Pershad v. Dudhnath, (1900) ILR 27 Cal 156 : 26 IA 216 (counsel);
Krishnaji v. Rajmal, (1899) ILR 24 Bom 360, p. 363; Narayan v. Venkatacharya, (1904) ILR 28 Bom 408; Moranmar Basilias Catholicas v. Most
Rev Pulerus, AIR 1954 SC 526 [LNIND 1954 SC 100].
28 . Beni Pershad v. Dudhnath, (1900) ILR 27 Cal 156.
29 . Venkata v. Bhashyakarlu, (1902) ILR 25 Mad 367, p. 377 (PC); Mallapa v. Shivappa, AIR 1962 Mys 140.
30 . Subs. for the Indian Civil Service by s 3 Act 104 of 1976 (w.e.f. 1-2-1977).
31 . Subs. for or naval by s 2 and Sch. by Act 35 of 1934.
32 . Subs. for His Majesty by AO 1950.
33 . The words including His Majestys Indian Marine Service, omitted by s 2 Act 35 of 1934.
34 . Narendra v. Jankikuer, AIR 1947 Pat 385: (1946) ILR 25 Pat 739, p. 741; Reg v. Nantamram, (1869) 6 Bom HCR 64 (Cr Cas).
35 . Gokulchandra v. Manager, Baniachong Mozumdari Estate, AIR 1939 Cal 720: (1940) ILR 1 Cal 73 : (1939) 43 Cal WN 1212 : (1942) 76 Cal
LJ 11; Charu Chandra v. Snigdhendra, AIR 1948 Cal 150: (1948) ILR 2 Cal 77 : (1930) 52 Cal WN 212; Collector of Bijnor v. Munuwar, (1880)
ILR 3 All 20; Narsingrav v. Lakshmanrao, (1876) ILR 1 Bom 318; Bhau v. Nana, (1888) ILR 13 Bom 343.
36 . Shahebzadde v. Ferguson, (1881) ILR 7 Cal 499; Abdul v. Doutre, (1889) 12 ILR Mad 250; Muthu Ramalinga v. Shanmuga, AIR 1928 Mad 175
[LNIND 1927 MAD 392]: (1928) ILR 51 Mad 242.
37 . Watson v. Lloyd, (1901) ILR 25 Mad 402.
38 . Shingarao v. Callaghan, AIR 1946 Lah 247: (1947) ILR Lah 22 (FB); Kering v. Murray, (1919) ILR 42 Bom 716; Husain Baksh v. Brigen Shaw,
AIR 1933 All 597: (1933) ILR 55 All 648.
39 . Joosub v. Kemp, (1902) ILR 26 Bom 809.
40 . Bholaram v. Administrator-General, (1904) 8 Cal WN 913.
41 . Cecil Gray v. Cantonment Committee, (1910) ILR 34 Bom 583.
42 . De Silva v. Govind, (1920) ILR 44 Bom 895.
43 . Prasaddas v. K.S. Bannerjee, AIR 1931 Cal 61: (1930) ILR 57 Cal 1127; Radharam v. Purna Chandra, AIR 1930 Cal 737: (1930) 34 Cal WN
671.
44 . Commissioner of Wakf, Bengal v. Shaheb Zada Md Zahangir Shah, AIR 1944 Cal 206: (1928) 48 Cal WN 157.
45 . Mukunda Rao Ganpat Rao v. Durga Prasad, AIR 1944 Nag 130: (1944) ILR Nag 687.
46 . Hiralal v. Mangtulal, AIR 1947 Cal 221: (1944) ILR 2 Cal 513.
47 . Abdul Ghani v. Imdad, AIR 1942 Lah 287: (1943) ILR Lah 389.
48 . Vishnu Wasudeo v. TLH Smith Pearse, AIR 1949 Nag 362: (1949) ILR Nag 232.
49 . Sivanandam v. Corpn. of Calcutta, (1960) 64 Cal WN 60.
50 . Re Court-fee Matter under BLR Act , AIR 1958 Pat 235.
51 . Mata Prasad v. Mandal Panchayat, AIR 1959 MP 342 [LNIND 1958 MP 61].
52 . Coal Mines Provident Fund Commissioner v. Ramesh Chander Jha, AIR 1990 SC 648 [LNIND 1990 SC 52]: (1990) 1 SCC 589 [LNIND 1990
SC 52].
53 . Manickam v. Narasimhan, AIR 1956 AP 108; Menkabai v. M.M. Deshpande, AIR 1971 Bom 21 [LNIND 1970 BOM 3]: (1971) 73 Bom LR
473. As to the relation of the body of the Code of Civil Procedure to the rules, see notes to s 2(1).
54 . State of Uttar Pradesh v. Chander Bhushan Mishra, (1980) 1 SCC 198 [LNIND 1979 SC 438].
55 . Iridium India Telecom Ltd. v. Motorola Incorporated, AIR 2005 SC 514 [LNIND 2005 SC 15]: AIR 2005 SCW 138.
56 . Maharaja of Benaras v. Debi Dayal, (1881) ILR 3 All 575; Nirmal v. Sarathamani, (1898) ILR 25 Cal 911.
57 . Venkanna v. Parasuram, AIR 1929 Mad 522 [LNIND 1929 MAD 24]: (1929) 56 Mad LJ 633, p. 720.
58 . See s 3(24) of the General Clauses Act 1897.
59 . Purshottam v. Mahadu, (1912) ILR 37 Bom 114; Narayan N Hegde v. Shankar Narasimha Bhatt, AIR 1966 Mys 5.
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60 . Raja of Venkatagiri v. Sheik, AIR 1944 Mad 139 [LNIND 1943 MAD 256]: (1944) ILR Mad 595.
61 . Re Kosi Prasad, (1932) ILR 54 All 282 (FB).
62 . Sundara Das v. Lachman, AIR 1957 All 352 [LNIND 1957 ALL 10].
63 . Sailaja Kanta v. State of West Bengal, AIR 1971 Cal 137 [LNIND 1970 CAL 137].
64 . Gauri Shankar v. Firm Dulichand, AIR 1959 MP 188 [LNIND 1958 MP 70].
65 . State of Andhra Pradesh v. V. Sarma Rao, AIR 2007 SC 137 [LNIND 2006 SC 951]: (2007) 5 SCC 510 [LNIND 2007 SC 296] : (2007) 1
MLJ (Cri) 591 (SC).
66 . Puttu Lal v. Parbati, (1915) ILR 37 All 359, p. 366 : (1915) 42 IA 155, p. 160; Korban Ally v. Sharoda Proshad, (1884) ILR 10 Cal 82;
Swamirao v. Kashinath, (1891) ILR 15 Bom 419; Balaji v. Sakharam, (1893) ILR 17 Bom 555; Kamla Prasad v. Pandey Ram, (1919) 4 Pat LJ
565.
67 . Punjabi v. Shama Rao, AIR 1955 Nag 293; ITC v. Shirinibai, AIR 1956 Bom 586 [LNIND 1956 BOM 71].
68 . Srinivasa v. Narain, AIR 1954 SC 379 [LNIND 1954 SC 52]: (1955) 1 SCR 1 [LNIND 1954 SC 52] : (1954) SCJ 408 [LNIND 1954 SC
52].
69 . Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661 [LNIND 1955 SC 122]: (1955) 2 SCR 603 [LNIND 1955 SC 122] : (1955) SCJ
672 : (1955) SCA 1140.
70 . Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 [LNIND 1965 SC 28]: (1965) 2 SCR 908 [LNIND 1965 SC 28]; Supdt and Legal
Remembrancer, State of West Bengal v. Corporation of Calcutta, AIR 1967 SC 997 [LNIND 1966 SC 341]; Golak Nath v. State of Punjab, AIR
1967 SC 1643 [LNIND 1967 SC 49], p. 1670.
71 . Associated Cement Co. Ltd. v. P.N. Sharma, AIR 1965 SC 1595 [LNIND 1964 SC 346].
72 . UOI v. Mysore Paper Mills Ltd., AIR 2004 Kar 1.
73 . Darshan Singh v. Ghewarchand, AIR 1993 Raj 126(DB); see also Noveen v. L. Dasarath, AIR 1985 Kar 208: (1985) 1 Kar LJ 278 (DB).
74 . UOI v. Mysore Paper Mills Ltd., AIR 2004 Karnt 1.
75 . Abdul Alim v. Mohd Saeed, AIR 1951 Punj 43; Aga Mahomed v. Cohen, (1887) ILR 13 Cal 221, 223.
76 . Ali Asmat v. GIP Railway, AIR 1930 All 476: (1930) ILR 52 All 837; Hirachand v. GIP Railway, AIR 1928 Bom 421: (1928) ILR 52 Bom
548.
77 . Velli v. Moidin, (1886) ILR 9 Mad 332; Appandai v. Srihari, (1890) ILR 16 Mad 451; Venkatanarasimha v. Suranna, (1891) ILR 17 Mad 298;
Gadhavi v. Shivuba, AIR 1956 Sau 29; Allen Berry & Co. v. Vivian Bose, AIR 1960 Punj 86: (1960) ILR 1 Punj 416; Seetharam Rao v. Raj
Kumar, AIR 1961 AP 399 [LNIND 1960 AP 210]; Chaboo Devi v. Ram Sarup, AIR 1965 All 79; Ram Abhilakh v. Ram Jas, AIR 1966 All
218 [LNIND 1965 ALL 49], p. 220; Chandmal v. State of Rajasthan, AIR 1968 Raj 20.
78 . Kasam v. Maruti, (1889) ILR 13 Bom 552.
79 . Sahadat Khan v. Md Husain, AIR 1954 Cal 347 [LNIND 1953 CAL 160]: (1953) 57 Cal WN 948; Sunanda v. Gundapart, AIR 1961 Bom
225 [LNIND 1960 BOM 74]; Ram Singh v. State, AIR 1969 Raj 41, p. 48; Sardar Begum v. J.C. Bhandari, AIR 1967 Del 61 [LNIND 1966
DEL 108].
80 . Ashok Kumar Singh v. Shanti Devi, AIR 2010 Pat 1 [LNINDORD 2009 PAT 6808].
81 . Deities v. Hanumanthacharlu, AIR 1962 AP 245 [LNIND 1961 AP 140]; Abdul Aleem v. Sheikh Mahomed, AIR 1951 Punj 42.
82 . Ganpat v. Rama Devi, AIR 1978 P&H 137 (FB).
83 . Chhatto Lal v. Naraindas, AIR 1930 Cal 53: (1929) ILR 56 Cal 704.
84 . Reliance Industries Ltd. v. Praveen Bhai Jas Bhai Patel, (1997) 7 SCC 300 [LNIND 1997 SC 1138].
85 . Iridium India Telecom Ltd. v. Motorola Inc., AIR 2005 SC 514 [LNIND 2005 SC 15]: AIR 2005 SCW 139.
86 . Maharashtra State Financial Corpn. v. Jaycee Drugs and Pharmaceuticals Pvt. Ltd., (1991) 2 SCC 637 [LNIND 1991 SC 973].
87 . Girdharlal v. Krishna Dutt, AIR 1960 Punj 575.
88 . Jalejr Hormasji v. State of Andhra Pradesh, AIR 1965 AP 288 [LNIND 1964 AP 199].
89 . Bhaidas v. Bai Gulab, AIR 1921 PC 6: (1921) ILR 45 Bom 718 : (1921) 48 IA 181; Suraimal v. Horniman, (1918) 20 Bom LR 185 [LNIND
1917 BOM 113], p. 217; Empress v. Protab Chandra, AIR 1924 Cal 668: (1924) ILR 51 Cal 504.
90 . Subs. for Provincial Government by AO 1950.
91 . The words with the previous sanction of the CGMC omitted by Act 38 of 1920, s 2 and Sch. I, Pt. 1.
92 . Subs. for Provincial Government by AO 195.
93 . The words with the previous sanction aforesaid omitted by Act 38 of 1920, s 2 and Sch. I, Pt. 1.
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 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
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Volume 1 > PART I SUITS IN GENERAL

PART I SUITS IN GENERAL

Jurisdiction of the Courts and Res Judicata

S. 9. Courts to try all civil suits unless barred.

The courts shall (subject to the provisions herein contained) have jurisdiction to try all
suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred.
*[Explanation I.] A suit in which the right to property or to an office is contested is a suit of
a civil nature, notwithstanding that such right may depend entirely on the decision of
questions as to religious rites or ceremonies.
**[Explanation II. For the purposes of this section, it is immaterial whether or not any fees
are attached to the office referred to in Explanation I or whether or not such office is
attached to a particular place.]

STATE AMENDMENT

Maharashtra. Section 9 has been inserted by Mah. Act 65 of 1977. For text of
Amendment and Commentary thereon, see Notes at the end of commentary of s 9, post.

1. Alterations in the section. The words either expressly or impliedly barred were
substituted in 1908 for the words barred by any enactment for the time being in force
which occurred in s 11 of the Code of Civil Procedure 1882. The latter words were held to mean
expressly barred.1 The Amendment Act, 1976, has renumbered the existing explanation as
explanation I and added a new explanation as explanation II.

2. Scope. The test of jurisdiction over the subject matter is whether the court or tribunal
can decide the case at all and not whether the court has authority to issue a particular kind
of order in the course of deciding the same. A court is said to have jurisdiction of the
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subject matter of a particular controversy if the court has authority to hear and decide
causes of a class to which the particular controversy belongs. In defining jurisdiction of the
subject matter in these terms, the courts have emphasised that the jurisdiction of a court
depends upon the right to decide the case and not upon the merits of its decision.2 It is
well-settled law that jurisdiction of the court is to be determined on the basis of allegations
made in the plaint. The pith and substance of the plaint allegations have to be kept in
mind; so also, the pith and substance of the relief sought. It is the choice of the plaintiff to
choose his forum. It is another thing that the plaintiff fails to establish his case before such
forum. The plea of lack of jurisdiction can be raised at any time even in second appeal, so
also on the execution side.3 There is no denying the fact that the allegations made in the
plaint decide the forum. The jurisdiction does not depend upon the defence taken by the
defendants in the written statement.4 A litigant having a grievance of civil nature has,
independently of any statute, a right to institute a suit in the civil court unless its
cognizance is either expressly or impliedly barred. Exclusion of jurisdiction of civil court is
not to be readily inferred and such exclusion must be either express or implied.5 In all
types of civil disputes, civil court has inherent jurisdiction as per s 9, unless a part of that
jurisdiction is curbed out from such jurisdiction, expressly or by necessary implication, by
any statutory provision and conferred on any other tribunal or authority.6 It is no doubt
true that the jurisdiction of the civil court cannot be easily excluded in every case, but the
jurisdiction of the civil court is excluded where the statute gives finality to the orders and
to find the same, the scheme of the Act has to be necessarily taken into consideration. The
second thing to be considered is, if under the statute a liability is created, then it is
necessary to find out as to whether the statute creates an effective machinery for the
redressal of the grievances pertaining to any law and facts arising therein.7Section 9 of the
Code of Civil Procedure provides that whenever a question arises before the civil court
whether its jurisdiction is excluded expressly or by necessary implication, the court
naturally feels inclined to consider whether the remedy afforded by an alternative provision
prescribed by a special statute is sufficient or adequate. In cases, where inclusion of civil
courts jurisdiction is expressly provided for, the consideration as to the scheme of the
statute in question and the adequacy or sufficiency of the remedy provided for by it, may
be relevant, but it cannot be decisive. Where exclusion is pleaded as a matter of necessary
implication, such consideration would be very important and inconceivable and it might
become even decisive.8 In this case, sub-s 2 of ss 10, 12 and 13 of AP Buildings (Lease,
Rent and Eviction ) Control Act, 1960 gave exclusive jurisdiction to the rent controller
under the Act in the matter of eviction of a tenant from any premises by a landlord.
However, by virtue of s 32 (b) of the said Rent Act, the provisions of the Act were not
made applicable to any building constructed on or after 26 August 1956. In the instant
case, the house was constructed after 26 August 1957 and the provisions of s 32 (b) of the
Rent Act existed on the statute book on the date of the suit, hence, the present suit for
eviction and arrears of rent was filed in the civil court. During the pendency of the suit, the
provisions of s 32 (b) of the Rent Act was struck down by the Supreme Court as violating
of 14 of the Constitution of India. With the result that all buildings, in respective of the date
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of their construction, came within the purview of the said Act. Accordingly, the
jurisdiction of the civil court from entertaining a suit for eviction of a tenant was ousted.

The Andhra Pradesh High Court took a contrary view in Yadamma v. K Mallesh,9 wherein it
was held that when on the date of filing of the suit, particular right which is available to a
party would be continued to be available till the disposal of the suit, though such benefits
is taken away later, hence, it was held that the civil court shall have the jurisdiction to
entertain the suit for eviction.10

Where a suit was filed by a minor against his father for restraining the father from
alienating family property and other reliefs and a question arose whether the mother of the
minor act as his guardian without the permission of the Court, it was held by Delhi High
Court that there was no clash of interest between the minor and his mother and she can
become next friend of minor by virtue of O 32, r 4 of CPC. It was also held that the
provisions of s 50 (4) of the Delhi Rent Control Act, 1958 does not bar the jurisdiction of civil
court.11

Where the subscriber under the Telecom Department did not raise any objection to bills
issued by the Telecom Department and the bills remained unpaid for nearly two years, it
was held that the civil suit for recovery of amount covered under the bills of the
Department would not be barred. The Department would have referred the matter for
arbitration under s 7 -B of the Telegraph Act, 1885 only if the consumer had objected to
the bills.12

Where the sum in respect of which the Zila Panchayat issued a recovery certificate to the
collector, was not a tax or rent as referred to in s 150 (2) or s 159 of the Code of Civil
Procedure nor it was a sum of the nature mentioned in s 148 (1)(a)(b), such sum could not
be recovered as land revenue by resorting to a term in agreement between the parties,
specially when there was dispute between the parties as to question whether infact there
was such agreement between the parties. Filing of a civil suit in such cases, for recovery of
the sum due, is the only remedy.13 Intricate questions of cancellation of sale deed are to be
decided by judicially trained minds of civil courts, it cannot be left to be decided by the
revenue courts which are obviously not well-acquainted to try such intricate questions of
law.14 If the document is treated as void, the suit for cancellation of such deed will lie in a
civil court and the civil court will have jurisdiction to try the suit.15 A suit for declaration
on grounds that the sale deed of the agricultural land was non est was instituted before the
civil court. In the suit no relief other than declaration was sought. It was held that the civil
court and not the revenue court has the jurisdiction to try the suit.16 In this case, an earlier
judgment of the High Court, that the jurisdiction of the civil court to decide disputed
question of title was not barred under ss 163 and 171 of the Himachal Pradesh Land
Revenue Act, 1953, was challenged. It was held that the jurisdiction of the civil court
cannot be challenged in the subsequent proceedings on the same ground.17 In this case, a
suit for recovery of arrears of land revenue was filed. In the suit, no declaration was
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claimed in respect of land, that it be declared as bhumidhari land or abadi land. It was held
that the civil court should have the jurisdiction to try this suit and the bar of Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950 shall not be applicable.18 Sometimes, it
does happen that an application is filed under a particular provision of a statute and it is
found to be non-maintainable thereunder, or the court or tribunal has no power to grant
the relief asked for thereunder, but the said application is maintainable under some other
provisions of the statute before the same court or tribunal and it has power to grant the
relief asked for. In such cases, it has always been held that the label or the nomenclature of
the application or petition should not matter and after seeing the substance or content of
the application, if it is possible to grant the relief under some other provisions of the
statute, such a relief should not be denied to a party. Such a recourse can be taken only
when it is found that the relief asked for cannot be granted under the provision under
which the jurisdiction of the court or tribunal is invoked, much less when the result would
be to deprive the party of a right of an appeal provided against the order passed under
such a provision.19 The Code of Civil Procedure is not applicable under Bombay Public Trusts
Act, 1950. Reference of Code of Civil Procedure in s 6 of Presidency Small Cause Courts Act,
1882 is also for limited purpose of indicating that a small cause court is to be a court
within the meaning of the Code of Civil Procedure.20 In view of s s 11 and 17 of the Hindu
Marriage Act, 1955, there is no remedy in case a husband marries another woman.
However, in common law, a wife has a right to file a suit for declaration that the marriage
of her husband with the second wife is illegal and void.21

In a suit for declaring Marriage Certificate under the Special Marriage Act, 1956 as null and
void, the marriage itself was denied and the Marriage Certificate was challenged on the
ground of being obtained by practising fraud. It was held by the Orissa High Court that
there being no provision on the Act to decide such dispute, the civil courts jurisdiction
cannot be ousted. The question of applicability of section 24 of the Act dealing with
grounds for declaring the marriage void arises only if the solemnisation of marriage is
admitted.22

3. Section 9 and Section 115. A revision petition under s 115 of the Civil Procedure Code lies
to the High Court as against an order made by a civil court in an appeal preferred under s
37 of the Arbitration and Conciliation Act 26 of 1996. The fact that a second appeal is
statutorily barred under the Act and the Code of Civil Procedure is not specifically made
applicable, notwithstanding.23

4. Bar of jurisdictionascertainment. The question as regards ouster of a jurisdiction of a

civil court must be construed having regard to the scheme of the Act as also the object it
seeks to achieve. The law in this regard is no longer res integra.

A plea of bar to jurisdiction of a civil court must be considered having regard to the
contentions raised in the plaint. For the said purpose, averments disclosing cause of action
and the reliefs sought for therein must be considered in their entirety. The court may not
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be justified in determining the question, one way or the other, only having regard to the
reliefs claimed de hors the factual averments made in the plaint. The rules of pleadings
postulate that a plaint must contain material facts.24

In a suit, where there are several reliefs claimed in the plaint. If the main relief is
cognizable by civil court, the suit would be maintainable. Thus, where the main relief of
the plaintiff of injunction and protection against demolition, it was held that such relief can
be granted only by civil court, the relief of possession being merely ancillary relief which
civil court could grant after taking cognizance of the suit for injunction and demolition.25
Where the property in suit is situated within the limits of the city and the land was not
agricultural land which required to be declared abadi land, it was held that civil court will
have jurisdiction to grant relief of possession in respect of suit property.26

In a suit for declaration and injunction and for other incidental relief, issue was framed as
to whether the jurisdcition of civil court to entertain the suit was barred under the Delhi
Land Reforms Act, 1954. The High Court found that s 185 of the Act could not be applied
to the suit in view of the nature of relief claimed in the plaint and therefore, the suit should
be heard on merit. On appeal the Supreme Court held that considering the facts and
circumstances and allegations in the plaint, the trial court should decide the suit not only
on other issues on merits but also on issue regarding jurisdiction of civil court to entertain
the suit in view of s 185 of the Delhi Land Reforms Act.27

It has been held by the Supreme Court that it is a well-settled principle of law that
mentioning of a wrong provision or non-mentioning of any provision of law would, by
itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it
by law.28

Section 9 of the Code of Civil Procedure provides that a civil court shall have jurisdiction to try
all suits of a civil nature excepting suits of which their cognizance is either expressly or
impliedly barred. It is no doubt true that ordinarily the averments in the plaint will have to
be taken into consideration to find out that the suit is cognizable by a regular civil court.29

5. Choice of forum. We have to keep in mind that there is difference between inherent
lack of jurisdiction of any court on account of some statute and the other where parties
through agreement bind themselves to have their dispute decided by any one of the courts
having jurisdiction. Thus the question is not whether the Orissa courts have the
jurisdiction to decide respondents suit but whether the respondent could have invoked the
jurisdiction of that court in view of the aforesaid cl 34. A party is bound either by the
provisions of the Constitution of India, statutory provisions or any rule or under terms of any
contract which is not against the public policy. It is open for a party for his convenience to
fix the jurisdiction of any competent court to have their dispute adjudicated by that court
alone. In other words if one or more court has the jurisdiction to try any suit, it is open for
the parties to choose any one of the two competent courts to decide their disputes. In case
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parties under their own agreement expressly agree that their dispute shall be tried by only
one of them then the party can only file the suit in that court alone to which they have so
agreed. Once parties bound themselves as such it is not open for them to choose a
different jurisdiction. Such a suit if filed would be in violation of the said agreement.30

6. Order of Court lacking jurisdiction to be respected till set aside. A judicial order,
not invalid on its face, must be given effect entailing all consequences, till it is declared
void in a duly constituted judicial proceedings. It cannot be said that a civil court cannot
under any circumstances entertain a civil suit in respect of proceedings pending before the
registrar, cooperative society. Even where exclusion of jurisdiction of the civil court is
statutorily provided still on availability of requisite grounds, the civil court can entertain a
civil suit on well defined parameters settled by Constitution Bench of the Supreme Court in
Dhula Bhai v. State of MP.31 The registrar of cooperative society should not ignore the order
of the civil court as not binding on him in view of the provisions contained in ss 93(3),
93(1)(c) and 60 of the Delhi Co-operative Societies Act, 1972 (35 of 1972). It will be a
dangerous proposition to be laid down as one of the law that any individual or authority
can ignore the order of the civil court by assuming authority upon itself to decide that the
order of civil court is one by coram non-judice. The appropriate course in such cases for the
person aggrieved is first to approach the civil court inviting its attention to the relevant
provisions of law and call it to adjudicate upon the question of its own jurisdiction and to
vacate or recall its order if it be one which it did not have jurisdiction in law to make. So
long as this is not done, the order of competent court must be obeyed and respected by all
concerned.32

7. Suits of a Civil nature. Suits fall under two categories: those which are of a civil nature
and those which are not. Suits falling under the first category only can be entertained by
civil courts. Explanation I clarifies as to what a suit of a civil nature is. If the principal or
the only question in the suit is a question relating to a caste or one relating to religious rites
or ceremonies, the suits does not deal with the rights of the citizen but with matters which
are either social or religious. On the other hand, if: (i) the question relating to a caste or
religious rites or ceremonies is not the principal question in the suit but only a subsidiary
or an incidental one; (ii) the principal question is one relating to a right to property or
office or any other civil right; and (iii) such a question cannot be decided without
determining the question relating to the caste or religious rites or ceremonies, the court can
decide the question as to the caste, religious rites or ceremonies to enable it to adjudicate
the principal question.33 Accordingly, a suit is of a civil nature if the principal question
therein relates to a civil right. The fact that the determination of such a question depends
upon the decision of a caste question or a question as regards religious rites or ceremonies,
does not take out the suit from the category of civil suits. Thus, where one sect of a
religious community alleged certain acts of the other sect of the same community as acts of
desecration, it was held that whether such acts were sacrilegious or not was a matter for
the community to decide and that a court would only be concerned with such a question to
the extent only of its being relevant to questions of a civil right, e.g., the right of worship.
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The issue would be not whether the alleged acts were in accordance with the orthodox
tenets or with the previous practice, but whether they interfered with the plaintiffs right of
practice.34 Courts will refuse to try suits where the main question is a caste question or one
relating to religious rites or ceremonies. An apprehension that exhibition of a film certified
by the board of censors will hurt the religious feelings of the plaintiff and his co-
religionists, does not give rise to a legal right.35

Where no customary right or easement of privacy is pleaded or proved, the plaintiff cannot
get an injunction against the opening of a window by the defendant in the latters wall, on
the basis of a natural right of privacy. There is no natural right of privacy. The further fact
that a municipal bye-law is violated, does not give a cause of act ion, where there is no
right of the plaintiff infringed.36

Where the High Court in a writ petition transferred two suits and appeals involving similar
issues, to itself and application for recall of the said order of transfer was made by the
appellant pointing out that in appeals arguments had been heard and order was to be
pronounced therein, however, in the meantime the High Court withdrew the appeal to
itself and then without passing any order on the recall application, dismissed the suits on
the ground that the issues raised in the suits were being examined in the writ petition, it
was held by the Supreme Court that the procedure adopted by the High Court was
unknown to law.37 D.K. Jain, J., speaking for the Bench in the above case, observed as
follows:

We are conscious of the fact that the object of filing of the suits could be a dubious and indirect attempt on the part of Tekchand,
respondent No. 4, to derive some undue advantage in connivance with the plaintiffs, yet that was no ground to dismiss the suits
summarily in the aforenoted manner. It must be kept in mind that one of the fundamental norms of judicial process is that arguable
questions either legal or factual, should not be summarily dismissed without recording a reasoned order. A mere entertainment of the
Writ Petition, to which appellants herein were not parties, even if it involved determination of similar issues, in our opinion, was not a
good ground to dismiss the two suits without granting opportunity to the parties to prove their respective stands. Moreover, the scope
of the writ petition and the two suits also seem to be different. 38

In the above case, the Supreme Court quoted its observation from an earlier decision in
Smt. Ganga Bais case,39 wherein it was observed as follows:

There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at ones peril,
bring a suit of ones choice. It is no anwser to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for
its maintainability requires no authority of law and it is enough that no statute bars the suit.

In another earlier decision quoted by the Division Bench, Lahoti, J., (as he then was),
observed as follows:

Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action.
In case of conflict of jurisdiction the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule
of law excluding access to a forum of plaintiffs choice or permitting recourse to a forum will be opposed to public policy or will be an
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abuse of the process of law.40

Where a suit was filed for compensation for breach of contract and a contract had been
entered into in Tamil Nadu, it was held that the same is enforceable in Tamil Nadu.
Provisions relating to arbitration in s 69, Kerala Co-operative Societies Act, 1969, are not
attracted. Suit filed in Tamil Nadu was not without jurisdiction.41 In a contract; there is
offer and acceptance. If offer and acceptance were complete earlier and placing of order is
only a formality, jurisdiction of courts would be where the agreement was complete by
acceptance. Offer having been sent by post, place of acceptance is the place of contract.
Court at the place of contract, can entertain a suit for recovery of consideration money.42

A suit for correcting the date of birth in the record would be maintainable in a civil court.
In fact, asking for a correction of that type may be for various purposes and need not be
confined to the question of claiming the relief (superannuation as per corrected date of
birth in the instant case) available under the Industrial Disputes Act, 1947. Where the suit for
correction of date of birth filed before an employee is superannuated on the basis of the
date of birth on record, one of the situations contemplated under s 2 A of the Industrial
Disputes Act, 1947 gives the employee a cause of act ion to approach the industrial court.
The maintainability of the suit has to be decided with reference to the date of institution of
the proceedings; and since, on the date when the civil suit was filed, none of the
eventualities covered by s 2 A of the Industrial Disputes Act, 1947 had happened, he could not
have approached the forum under the Industrial Disputes Act, 1947 for relief. Thus, the civil
suit would not be barred by s 2 A of the Industrial Disputes Act, 1947.43

When the suit for maintenance is not filed under any provision of Hindu Marriage Act,
1955, it is a suit of a civil nature. The civil court has jurisdiction to entertain and try the suit
under s 9. The prayer for interim maintenance in such a suit cannot be one under s 24 of the
Hindu Marriage Act, 1955.44 Since no forum is prescribed under the Hindu Adoption and
Maintenance Act, 1956 to enforce the right recognised under s 18 of the said Act, the only
forum available to enforce the said right is the civil court, where a suit cannot as such be
instituted for enforcement of the said right, though the civil court in exercise of its
inherent powers can grant interim maintenance.45 The provisions of s 19 of the Family Courts
Act, 1984, provides specific remedy by way of appeal from every judgment or order to the
High Court, both on facts and law, and without exhausting the remedy as provided under
the statute, the proceedings instituted challenging the order passed by the family court,ipso
facto the proceedings are not tenable. The petitioner is not entitled to file a civil suit for
declaration without setting aside the decree or order passed by the family court. Similarly,
the petitioner cannot bring any hurdle or raise any objection to the execution of the decree,
which is in force.46

Civil courts cannot issue injunction order in respect of the act ion already taken in the
matter of grant of permit by the regional transport authority or preventive orders in
connection therewith. The only situation in which the civil court can interfere in the matter
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of grant of such permission is when the transport authorities, which had granted the
permit or likely to grant permit are not duly constituted. If the decree of the civil court is
implemented despite the express provisions of the Motor Vehicles Act, 1988, the transport
authorities can never grant permanent and temporary permit in future till eternity. Such a
decree is absolutely without jurisdiction and outside the scope of the powers of the civil
court.47 Where facts on record, clearly demonstrate that a prima facie case has been made
out which requires investigation and consideration towards jurisdictional issue on the
question of competence of the committee to decide the question of expulsion of members.
The question of mala fide and violation and natural justice were also there. Therefore, at the
stage of decision of application under O 39, rr 1 and 2, it cannot be said that the court has
no jurisdiction to interfere in the case of expulsion of the appellant.48

The ouster of jurisdiction of civil court under s 125 (1) of the Kerala Land Reforms Act (1
of 1964) does not extend to the question relating to fraud or/and collusion. It is limited
only to matters which are by or under the Act required to be settled, decided or dealt with
by the land tribunal or the appellate authority. Those questions which fall outside the same,
naturally should be decided by civil court as s 9 of the Code of Civil Procedure. In other words,
civil court will be competent to decide disputes which cannot be decided by the statutory
tribunals.49 Where the extent of shares of evacuee and non-evacuee property in a
composite property were specified and the property was sold, the jurisdiction of civil court
would not be barred to decide the question as to what was the extent of property that was
sold. This question was not one to be determined by any of the authorities under Evacuee
Property Act, 1950. Moreover, r 92 also cannot be invoked in such a case to challenge the
jurisdiction of civil court.50

Application was made by the creditor for attachment, before judgment, or movable
property (car, in the instant case). An undertaking was given by the judgment-debtor, that
he would not alienate it. Conditional order to furnish security and to produce the car was
passed. Evidence disclosed that the judgment-debtor had sold the car prior to the passing
of attachment order to another person, who, in turn, had sold it to a third party.
Application was made by the third party to raise the attachment. It was held that the
application should be allowed, since the third party had no knowledge of the undertaking
given by the judgment-debtor and was guided by entries in the registration certificate of
the car. Course open to the creditor was, to take act ion against the judgment-debtor for
disobedience of the undertaking given by him to the court.51

The prayer for disbursal of interest free sales tax loan, either in whole or in part cannot be
enforced by issue of a writ of mandamus in a proceedings under Art. 226 of the Constitution of
India. Normally, a civil suit is the remedy in such situation. The purpose of Art. 226 of the
Constitution of India is not to supersede the normal remedy available under law by way of a
suit.52 Where the dispute between the contractor and a corporation, assumed to be a state
within the meaning of Art. 12 of the Constitution of India has arisen from general law of
contract i.e. where relief is claimed on the basis of general law of contract, and neither any
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fundamental right of the contractor is claimed to have been violated nor Constitutionality
of any statute or statutory is involved for determination, the writ court would not be a
proper forum for adjudication of the disputes. The dispute between the contractor and the
respondent being one arising out of a contract/qua-contract can be adjudicated either in a
properly constituted civil suit or by resort to arbitration.53

Where it was alleged that the permanent tenant allegedly transferred the land, a
controversy involving pretender tenant was not beyond the jurisdiction of the civil court.54
Where it is only an acquisition of the property by two members of the joint family,
certainly the civil court has the jurisdiction to decide the same.55 In any event, the relief of
injunction cannot be granted by the revenue authority constituted under the record of
Tenancy Act and it could be granted only by the civil court.56

Civil court has jurisdiction to examine whether act ion or decision of an administrative
authority was intra vires the relevant rules even if the rules are in the nature of
administrative or departmental instructions.57 The payment of the money claimed under
the insurance policies in a petition filed under Art. 226 is not maintainable. The only
remedy available in such a case is institution of a suit before civil court.58 In the light of the
Constitutional scheme provided in Constitution (Scheduled Caste) Order 1950, the civil
court has no jurisdiction under s 9 of Code of Civil Procedure, to entertain the suit for
declarations.59 The suit in civil court challenging the order of termination by the services of
an employee of a regional rural bank is maintainable.60

8. Caste question. A caste is any well-defined community, be it Hindu or Mohammedan,

governed for certain internal purposes by its own rules and regulations.61 A caste question
is one which relates to matters affecting the internal autonomy of the caste and its social
relations.62 If a court does not have jurisdiction, it does not have jurisdiction, regardless of
the fact that one of the parties involved, is a gram panchayat or the period involved is very
short, or the amount involved is very small.63

To determine whether a question is a caste question or not, the test is whether its
cognizance constitutes interference with the castes autonomy. In other words, it is a
question which the caste as a self-governing body is entitled to decide for itself and not the
court.64

9. Caste Certificate. In view of the legal position emerging from the various judgments, it
is clear that the judgment rendered in Madhuri Patils case65 being the law laid down by the
Supreme Court is binding on all the persons under Art. 141 of the Constitution of India. In
revisional jurisdiction, this Court is entitled to take into consideration any change in law as
held in Gummolapura Taggina Matada Kotturuswami v. Selra Veeravva.66 In appeal and/or
revision, the court can take judicial notice of the law prevailing on the date of the order or
judgment and mould the relief accordingly taking judicial notice of change in law during
pendency of appeal and/or revision as laid down by the Supreme Court in Karansing v.
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Bhagwansing 67 and P. Venkateswarlu v. Motor and General Traders 68 the civil court had no
jurisdiction to entertain and try the suit in question.69

The question as to who is a member of the Scheduled Caste or Scheduled Tribe is

governed by the Presidents Order issued under Articles 341 and 342 of the Constitution. A
person is a member of the Scheduled Caste if the caste to which he belongs is included in
the list contained in the Constitution (Scheduled Castes) Order 1950 as amended from time
to time. Similarly a person is a member of the Scheduled Tribe if the tribe to which he
belongs is included in the Constitution (Scheduled Tribes) Order 1950 as amended from
time to time. The Constitution imparts finality and exhaustiveness to these Orders and it is
the Presidents notification issued under these Articles which is to determine who is
deemed to be a member of a Scheduled Caste or Scheduled Tribe. The Courts have no
power to go beyond the Orders and a three-Judge Bench of the Supreme Court has held
that the courts cannot hold any inquiry or to let in any evidence to determine whether or
not any particular community falls within the Order or not.70

In the undernoted cases,71 it has been held that such questions do not fall within the
domain of civil courts.

10. Suits in which the principal question is a caste question, are not suits of a civil
nature. A resolution by a caste depriving its members of man-pan invitation or an invitation
to the caste dinner or to munj or other ceremonies for an alleged breach of a caste rule does
not entitle the excluded member to seek a remedy from a civil court.72 Neither can a court
compel barbers attached to the caste to shave a casteman,73 nor can it compel other
castemen to go to the house of a casteman on the occasion of death in his family and assist
him in the removal of the dead body, though in doing so they may break a caste rule;74 nor
can it compel a defaulting member to pay to the caste a contribution levied by a caste
resolution on certain auspicious occasions.75 The reason is that these are social privileges as
against legal rights and as such are matters of caste autonomy which the caste can deny or
enforce. The question as to the status of a caste also is not one of the court to decide.
Hence, the question whether bhumidars are brahmins or not is one which has to be decided
by the bhumidars themselves and relatively by the other sections of the Hindu society and
not by the court.76

11. Expulsion from caste. Exclusion from social privileges such as caste dinners, etc. and
expulsion from the caste are two different concepts and involve different considerations.
The former deprives the aggrieved person of a social privilege, the latter a legal right which
forms part of his status. Hence, a suit will lie for a declaration that the plaintiff is entitled
to be re-admitted into the caste and also for damages for expulsion from the caste.77 The
general principles applicable to the expulsion of members from a club govern cases of
expulsion of persons from caste, and those principles, so far as relevant, require that the
expulsion must be in accordance with rules of natural justice.78 The important question is
whether there has been due inquiry.79 A suit for a declaration that the plaintiffs were
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wrongfully excluded from the membership of a community by the chief priest, and for a
declaration of their rights to property and other privileges is a suit of a civil nature;80 but,
to entitle the plaintiff to a decree, it must be shown that his ex-communication was
wrongful, and the court will in such cases enquire into the validity of the sentence of ex-
communication. Ex-communication is wrongful, if a member is expelled from the caste
without opportunity of explanation being offered to him.81 It is also wrongful if a member
is expelled for an alleged breach of a caste rule which, as a matter of fact, he has not
broken.82 In the mofussil of Bombay, however, a suit does not lie for restoration to caste,
the cognizance of such a suit being expressly barred by Bombay Regulation Act 2 of 1827,
s 21 ;83 but, a suit is maintainable for damages on account of an alleged injury to the caste
and character of the plaintiff arising from some illegal act or unjustifiable conduct of the
other party.84

12. Suits in which the principal question relates to religious rites or ceremonies are
not suits of a civil nature. Accordingly, a suit will not lie to establish a right to parade
bullocks on certain days;85 but, a declaratory suit in respect of a right to run a customary
bull race during the thaimasi month in front of a temple and for an injunction restraining
the defendants from interfering with that right, even though such a right is not one of any
office or in relation to the right of worship in the temple has been held to be maintainable
on the ground that it deals with a right of a civil nature.86 A suit to compel pujaris to adorn
an idol at certain seasons,87 or to install it in a particular temple instead of in another88 is
not maintainable. There is no right of a civil nature involved in these cases, and the court
will not pronounce on any religious doctrine unless it is necessary to do so in order to
determine rights of property.89 Where the right of worship was not in dispute but the area
of controversy relates to the rituals of following baptism by immersion on personal
confession of faith and breaking of bread on the first day of the week in the
commemoration of Lords death, the dispute related merely to the performance of rituals,
and the suit in civil court was not maintainable, as performance of mere rituals is not a civil
right enforceable in civil court. The civil court has no jurisdiction to decide the question of
rituals in temple except in so far as decision of such question is incidental to decision of
civil rights.90 A suit to have it decided whether the satpanth cult is within the Vedic religion,
or not, or is abhorrent to the feelings of the leva patidar community as a whole is not a suit
of a civil nature.91

13. Suits for vindication of mere dignity attached to an office are not suits of a civil
nature. A claim by a swami (arch-priest) that he is entitled to be carried on a high road of a
town or village in a palanquin on ceremonial occasions will not be entertained by a civil
court.92 What is claimed by the plaintiff in such a case is a mere mark of honour appended
to the office of a swami. Civil courts should discourage as much as possible claims of so
unsubstantial and objectionable a nature and they ought not to get involved in the
determination of trivial questions of dignity and privilege although connected with an
office. For the same reason, a suit will not lie for a declaration that the plaintiff as gurukkal
or spiritual leader is entitled to be received at a pagoda by the wardens of the pagoda with the
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honours and emoluments due to his rank on the occasion of the annual festival of the
pagoda. The duty of individuals to submit to and perform certain religious observations in
accordance with the ritual or conventional practices of their race or sect is, in the absence
of express legal recognition and provisions, an imperfect obligation of a moral and not a
civil nature. Of such obligations the present civil court cannot take cognizance.93 Following
this rule, the courts have declined to entertain claims made by holders of religious office to
precedence in worship, such as a claim to be the first to worship the deity and to receive
gifts of rice and coconuts on certain public religious ceremonies.94 They have likewise
declined to decide disputes as to precedence or privilege between purely religious
functionaries.95 It is important to note that the suit in each of the above cases was not to
establish a right to an office, but for a declaration that the plaintiff was, by virtue of his
office, entitled to certain tokens of dignity or to votive offerings. In other

words, the suit was not for a claim to an office but to vindicate an alleged dignity attached
to an office. A suit for an office is of a civil nature, but a suit for vindication of a mere
dignity though connected with an office, is not; but, if honours be attached to an office by
way of remuneration, in other words, as part of its emoluments, a civil court can entertain
a suit for such honours.1 The expression right to property does not only mean right to
ownership of property. The right to have the offerings in a durgah distributed among
certain families, according to custom, is a right to property.2

14. Office. Suits in which the principal question is as to a civil or legal right are suits of a
civil nature. The right to an office is a right of a civil nature. Therefore, suits in which the
principal question relates to the right to an office are suits of a civil nature; and they are
not less so because the right claimed may depend on the decision of the caste questions or
questions as to religious rites or ceremonies or even religious tenets.3

Explanation II makes it clear that a suit to recover an office is maintainable even though no
fees are attached to it. It was so held in a number of decisions long before explanation II
was added to the section.4 To constitute an office there must be duties attached to it which
the holder can be compelled to perform. It has accordingly been held that the right which
a person claims to lead a horse in a religious procession was not an office but merely an
honour because he could not be compelled to do so.5 So also, the right to hold a lighted
torch inside the chariot during a rathothsavam was a mere dignity not attached to an office as
there was no obligation to perform the service.6 A suit for declaration of the right to
receive prasadam while the image of the deity was taken in procession was held to be barred
under this section.7 The law on the subject was considered by the Supreme Court in Sri
Sinna Ramanuja Jeer v. Sri Ranga Ramanuja Jeer 8 and summed up as below:
(i) A suit for a declaration with respect to religious honours and privileges simpliciter
will not lie in a civil court;
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(ii) but, a suit to establish ones right to an office in a temple and to honours, privileges,
remuneration or perquisites attached to the said office is maintainable in a civil
court;
(iii) the essential condition for the existence of an office is that the holder of the alleged
office shall be under legal obligation to discharge the duties attached to the said
office and for the non-observance of which he may be visited with penalties.

It was accordingly held that a thirthakar who had no obligations to perform did not hold an
office and a suit by him for honours was not maintainable.

15. Suits for secular offices. When no remuneration attaches to the office of the secretary
of an association (registered under Act 21 of 1860), a suit for a declaration that the plaintiff
is the secretary of the association and that his dismissal from the office was not justified by
the rules of the association is not maintainable in a civil court, especially if the association
has the power to alter its rules from time to time. The reason is that in such a case no
decree which a civil court may pass in plaintiffs favour could prevent the association from
altering its rules and then dispensing with the plaintiffs services and employing some one
else.9

16. Suits for religious office. Quaere whether every suit for a religious office is a suit of a
civil nature? Explanation I to the section stated that a suit in which the right to an office is
contested is a suit of a civil nature. A suit for the removal of the defendant as a de facto
mutawalli and for substitution of the plaintiff in his place and for accounts is clearly one of
a civil nature and therefore maintainable.10 An office may be either secular or religious in
its character. The prime concern here is to focus on an office of a religious character, for
the question as to religious rites and ceremonies contemplated by explanation I can only
arise when the right to a religious office is contested. Religious offices may be divided into
two classes namely viz:

(i) Those to which fees are appurtenant as of right; such as the office of the kazi of
Bombay, or of the joshi of a village, or the upadhyaya of a caste.

(ii) Those to which no fees are attached, but which entitle the holder thereof to receive
such gratuities as may be paid to him; such as the office of pujari or of an officiating priest in
a temple, or of the aya of a math.

Fees are to be distinguished from gratuities. When fees are attached to an office the holder
of the office is entitled on performance of the services to the stipulated or customary fees.
Thus, a kazi or a joshi is entitled on performing a marriage ceremony to the marriage fee,
and if the fee is not paid to him, he may enforce payment by a suit. In fact, a fee is a sum
which the holder of an office is entitled to demand as payment for the execution of
functions attached to the office. Besides, the fee paid to a kazi or to a joshi on the occasion
of a marriage, there may be gratuities paid to him which are entirely voluntary in their
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character. If a person invites a joshi for performing a marriage ceremony at his place and
pays him the fee but no gratuity, a suit will not lie at the instance of the joshi for payment to
him of any sum by way of gratuity though it may be usual to pay gratuities on such
occasions. The reason is that there is no obligation in law on the part of the person inviting
a joshi to make any payment by way of gratuity.11 The same remark applies to holders of
religious offices referred to in class II above.

Before explanation II was added to the section by the Amendment Act, 1976, a distinction
was sometimes made between an office to which fees were attached and an office to which
they were not. As regards offices of class I, there was no doubt that a suit did lie against an
intruder disturbing the holder of such office in the exercise of his office for a declaration
that he was entitled to the office and the fees attached to it. Such a suit was held to be a
suit of a civil nature and therefore maintainable under this section.12 As regards an office to
which fees were not attached, there used to be a difference of opinion between different
courts. The Calcutta High Court held that a suit by a person claiming to be entitled to a
religious office against a usurper for a declaration of the right to such office was a suit of a
civil nature though no emoluments were attached to it. The reason given for such a
conclusion was that a religious office, though no fees were attached to it, was an office
within the meaning of the explanation (now explanation I) and that the section assumed that a
suit for an office was a suit of a civil nature. The office in that case was that of musicians
who chanted holy songs in a satra at a village.13 The same High Court in another case,
where the office was that of a shebait and the suit was by a member of the family against
another member for a declaration of a hereditary right to officiate as a shebait at the
worship performed by the votaries at the foot of a particular tree, held that the suit was of
a civil nature within this section and was maintainable. In this case also there were no fees
attached to the office but voluntary offerings used to be made by the votaries.14 In yet
another case the right claimed by the plaintiff was one of worship of Saradiya Haragouri
Thakurani and to make certain offerings to the image installed in the place of worship. It
was held that the plaintiff was entitled to maintain the suit against the usurper.15 In all these
cases the office in respect of which the suit was instituted was the office attached to a place
as distinguished from an absolutely personal office.

The Madras High Court, on the other hand, took the view that a suit would not lie in
respect of a religious office to which no fees were attached and that such an office was not
an office within the meaning of this section.16 The office in one of these cases was that of
the priest of samayacharm, whose duty was to exercise spiritual and moral supervision of a
certain class of persons. In a later case, however, the High Court followed the Calcutta
decisions and held that the right to lead a horse at religious processions was an office and
that a suit was maintainable though no fees were attached to it.17 The Bombay decisions
were so conflicting that if an attempt were to be made to reconcile them, it would be
necessary to divide them, though no such distinction is made in those decisions, into two
categories:
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(i) those in which the religious office was attached to a place, such as a temple or a
sacred place; and
(ii) those in which the office was entirely personal in character. As regards offices
which were attached to a place there was no difficulty or doubt, that a suit would lie
though no fees were appurtenant to the office, such as the office of an officiating
priest in a temple or of the aya of a math;18 but, as regards an office to which no fees
were attached and was personal in character, such as the office of chalwady.19 (Bearer
of the insignia of a caste on public occasions) or the office of guru,20 the view taken
was that it was not an office within this section and a suit in respect of it was not
maintainable; but, in a later case such a distinction was in fact approved of where it
was held that a right to perform urus ceremonies and to collect offerings at the
shrine of a saint appertained to a religious office and was enforceable by a suit.21

In one case, however, this distinction was not observed by the High Court where the
office was personal and no fees were attached to it and yet the High Court held that a suit
would lie in respect of such an office.22 The question there was whether a suit would lie for
the office of Khatib (preacher) regard being had to the fact that no fees were attached to it.
It was held that such a suit did lie. The High Court observed: Had it been the intention of
the Legislature that such a suit should not lie, the same would have been clearly provided
for. But if it was a question of intention of the Legislature, it may be said that the
Explanation (now Explanation I), which did not occur in the Code of 1877, appears to
have been suggested directly by a passage in a Madras decision decided in 1871,23 which
was approved by the Privy Council in a later decision24 and the religious office in both the
cases was one to which fees were attached. The Bombay High Court also held in another
case that a suit would not lie for recovery of monies paid as haks or babs to watandars on
the occasion of a fair and which were not connected with any office or performance of any
function at a fair.25

The Allahabad High Court took the view that a mere right to perform Ram Lila (religious
pageants) which did not carry with it any right to emoluments nor was attached to a shrine
or temple or a sacred spot was not enforceable at law.26 A similar view was also taken by
the Patna High Court in a case where it held that a right to officiate at funeral ceremonies
performed on the banks of the Ganges between certain points but which did not carry any
fees with it but only gratuities could not be enforced in a civil suit.27 The Hyderabad High
Court took the view that a suit would not lie for a declaration of the right to perform
Purohit service in a village to the exclusion of others.28

The conflict of opinion between different High Courts on the question of religious offices
to which fees are attached or not and the distinction amongst them made by the Bombay
High Court between offices being attached to a sacred place or not have been done away
with by the new explanation II which declares that it is immaterial whether or not any fees
are attached to a religious office or whether or not such an office is attached to a particular
place or spot.
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17. Wakf. As per s 85 of the Wakf Act (43 of 1995) no suit or other legal proceedings shall
lie in any civil court in respect of any dispute, question or other matter relating to any wakf,
wakf property or other matter which is required by or under this Act to be determined by a
tribunal. Therefore, it is only to those matters which are required, by or under this Act to
be determined by a tribunal that the bar under s 85 applies. It could also be seen from the
scheme of the Act that the jurisdiction of the civil court is not completely ousted. Even a
matter which may otherwise fall under the purview of any authority other than the tribunal
is not taken away from the jurisdiction of the civil court. On a careful analysis of the
provisions of the Wakf Act it can be seen that a dispute which relates to the management
of the affairs of the mosque is not specifically dealt with in any of the provisions of the Act
to be adjudicated upon by the tribunal. Further, an injunction is a relief which can be
granted by the civil court and that power is not conferred on the tribunal.29

The words used in s 85 of the Wakf Act, no suit shall lie, means no fresh suit can be filed
in the civil court in relation to Wakf property and the pending suits will not be affected,
particularly when there is no provision in the Act for transferring existing pending suits to
Wakf Tribunal.30

Where suit property had been declared to be Wakf property and proceedings in respect of
the same were already pending before the Wakf Tribunal, a suit for bare injunction to
restrain the defendants from interfering with possession cannot be filed in civil court.31

However, it has been held by the Punjab and Haryana High Court that where suit in
respect of Wakf property was pending in civil court and the notification constituting the
Wakf Tribunal and ousting the jurisdiction of civil court was issued later on, the order of
civil court transferring the case to Court of competent jurisdiction was proper.32

The Allahabad High Court has held that the bar created by s 85 of the Wakf Act, 1995
does not apply to a suit for ejectment of a tenant as tenancy/lease is not covered under the
provisions of the Act.33

However, a Division Bench of the Kerala High Court has held that the Wakf Tribunal has
jurisdiction not only on matters specifically conferred on Tribunal by the provisions of the
Act but also on matters relating to Wakf or Wakf property34 The observations of the
Division Bench in the above case deserve notice:

We are therefore, of the considered view that the words any dispute, question or other matters relating to Wakf or Wakf property under
section 85 are wide enough to take in within its sweep not only matters which are specifically conferred on the Tribunal by the various
provisions of the Act but also any dispute, question or any other matter relating to any Wakf or Wakf property since those powers have
also been conferred on the Tribunal by the Wakf Act itself. On examining the scheme of the Act and various provisions we are of the
view that the intention of the legislature is to resolve all disputes by one machinery and forum provided in the Act itself, that is, the
Wakf Tribunal and not by the civil courts in the State.35
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The Division Bench went on to hold that the Tribunal was justified in holding that it has
got jurisdiction and rightly granted a decree to the plaintiff to evict the defendant.36

Similar view has been expressed by a Division Bench of the Madhya Pradesh High Court
wherein it has been held that a suit for the ejectment of a tenant from Wakf property is
maintainable before the Wakf Tribunal and not the civil court.37 It has been observed by
the Division Bench as follows:

The Legislative intention is clear from reading of section 83 and 85 the Tribunal is deemed to be a civil court and exercises similar
powers as may be exercised by the civil court under the CPC while trying a suit, execute a decree or order. We cannot confine the bar
created by section 85 with respect to dispute as to title of the Wakf property or with respect possession based on title of the Wakf
Property as suggested by the learned counsel. The word any qualifies the dispute which would include suit for ejectment of a tenant
from Wakf premises. In any view of the matter such a suit for ejectment would be covered under the phrase other matter relating to
Wakf property.38

But in a suit where the question was whether the property in dispute was Wakf property or
private trust property and whether civil court has jurisdiction to entertain the suit, the
Madras High Court held that before settling all other issues, the issue regarding
maintainability of the suit should be framed by the Court and that issue should be decided
by the Court as a preliminary issue by allowing the parties to place evidence on record.39

Under s 36 -B of the Wakf Act, 1952 (as amended by Act 34 of 1964) the jurisdiction of
civil court is barred and its provides an alternative remedy providing for Wakf Board to get
possession of property unauthorisedly alienated. But the Madras High Court has held that
it does not bar the jurisdiction of civil court to entertain suit for possession.40

In a case under the Wakf Act, 1995, the Madras High Court held that all the Wakf
properties in the State vest with the Wakf Board. It is for the Board to decide as to how
the properties should be managed. The civil court has no jurisdiction to entertain and
decide disputes relating to Wakf properties. Any person aggrieved by the Order of the
Board can approach only the Tribunal constituted under the Act and the jurisdiction of
civil court in such matters is ousted.41

Wakf tribunals are constituted to try the suit and other proceedings relating to the wakf.
Naturally, the bar of jurisdiction provided for under s 84 of the Wakf Act (43 of 1995) will
be in respect of such suits and proceedings which are pending. It cannot have any effect
on the appellate jurisdiction exercised by the district court in terms of the Code of Civil
Procedure. The Wakf Act does not in any way affect the appellate jurisdiction exercised by
the district court.42

Where the dispute between the parties in the suit was whether the property was wakf
property or private trust property as well as with respect to rendition of accounts regarding
trust and further as to whether civil court had jurisdiction to entertain the suit, it was held
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that before settling all other issues the issue regarding maintainability of suits should be
framed and decided as preliminary issue.43

18. Suits for recovery of fee attached to an office are suits of a civil nature, but not
suits for recovery of gratuities. It is settled law that if a person usurps an office to which
another person is entitled and receives the fees of the office, he is bound to account to the
rightful owner for them, and the rightful owner may sue the usurper to recover the fees
properly payable to him; but, the case is different where the payments are merely
voluntary, and a suit will not lie to recover voluntary gratuities that may have been received
by the usurper.44 The reason is that where voluntary offerings are made, they must be
taken to have been intended for the very person who was then act ually performing the
ceremony, whether rightfully or wrongfully, and, further, that it is quite possible that no
gratuities would have been given at all if the rightful owner officiated at the ceremony
instead of the usurper.45 The same principles apply when a suit is brought by the lawful
holder of an office against a member of the caste for employing the usurper for
performing ceremonies which the rightful holder was entitled to perform. Thus, a village
priest may be entitled by hereditary right to officiate and take fees in the families of a
particular caste in the village, and if a member of the caste employs an intruder in the
office to perform the ceremonies, the village priest is entitled to recover from the casteman
the fee which would properly be payable to him if he had been employed to perform those
ceremonies.46 On this principle, it has been held that a right to officiate as priest during
certain festivals could be enforced in a court, where such services were remunerated from
the temple funds but that a claim to be declared guru of the archakas in the temple could
not be entertained;47 but, a suit will not lie against a casteman for a gratuity which the party
might have refused to give.48 If for determining the plaintiffs right to the fees claimed it
becomes necessary to determine incidentally the right to perform the ceremonies, the
courts should try and decide that right.49 The above principles have been held to apply to
vatandar barbers who are entitled to render services as barbers on ceremonial occasions and
to receive the customary fees.50

The cases in which a suit by the rightful owner of a religious office against an usurper for
recovery of voluntary gratuities has been held not to be maintainable must be distinguished
from those where a suit is brought by a sharer in a religious office against his co-sharers
for recovery of his share of the voluntary gratuities. In the latter class of cases, it has been
held that a suit will lie, for the basis of the claim in such cases in an agreement. Expressed
or implied, that all the sharers should have a share in the gratuities.51 If the sharer is a
woman, she is not disqualified from suing to enforce her right to a share of the offerings.52

Dues paid by baqqals and shopkeepers to chowdhris of bazars are in the nature of voluntary
payments; hence a suit will not lie to recover such dues or for a declaration of the right to
recover them.53

19. Suits relating to caste property. Where the question at issue is not a matter relating
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to the internal administration and affairs of a caste, but to the property of the caste, the
civil court has jurisdiction to interfere, although there has been a division of opinion in the
caste.54 Suppose that a caste is divided into two factions, F1 and F2, and that F1 owns
certain property which stands in the names of some of its members. If these members
secede from faction F1 and go over to faction F2, a suit will lie to recover the property
from them at the instance of faction F1.55 Here, the subject matter of the suit is property
belonging to one section of the caste, and the claim is against persons outside that section.
Suppose, next, that a caste owns a property purchased out of the caste funds, and that it is
subsequently divided into two factions, F1 and F2. If faction F2 happens at the time of the
division to be in possession of the caste property, faction F1 cannot maintain a suit against
faction F2 for recovery of one half of the caste property or its value.56 Here, the subject
matter of the suit is caste property, and the claim is not against an outsider, but against
another section of the caste.

As regards user of caste property, it has been laid down that the majority of a caste has the
right to regulate the use of the property, and the minority is bound by the resolution of the
majority, provided the resolution is not so subversive of the interests of the minority as to
amount to a complete denial of their rights. Thus, if the majority of a caste passes a
resolution that the oart should not be used for feasting any brahmans, and the minority
invites brahmans to a feast in the oart, a suit will lie to restrain the minority from using the
oart in contravention of the resolution.57

20. Suits for inspection of accounts of caste property. Every member of a caste is, at all
reasonable times and on proper demand, entitled to full and free inspection of all account
books, papers and vouchers relating to the management of a caste property. This is a legal
right which does not interfere with the autonomy of the castes. It is preliminary to a right
to assert a claim to property and is incidental to the right to recover property which may be
lost to the caste by misuse or misappropriation. A suit to enforce such a right is
maintainable.58

21. Insurance. The dispute was in regard to the consent of the deceased for dating back
the policy. Such a question cannot be decided by affidavits or the records alone. The same
has to depend upon the evidence that has to be let in by the respective parties for the
purpose of finding out as to whether there is such a consent. Even the plea that there was
no notice as required under s 50 of the Insurance Act could be agitated before the civil court.
Simply because a defect is alleged in non-issuance of the notice, the same cannot be a
subject matter of writ proceedings under Art. 226 of the Constitution of India. Such a question,
on the facts and circumstances of the case, can, as well, be agitated before the civil court,
when the main issues are contested before the civil court.59

The claim made by the heir of the deceased for payment of the amount under the life
insurance policies taken out by the deceased, after his death, was repudiated or denied by
the Life Insurance Corporation of India on the ground that the deceased while filling up
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the proposal form for the policies was guilty of fraudulent behaviour, misrepresentation
and suppression of material facts, with regard to his health. The matter involved serious
questions of disputed facts, which cannot be decided in the writ jurisdiction and they have
to be examined on the basis of the evidence to be adduced by the parties at a trial. No
question of violation of any statutory duty on the part of insurer is involved. It cannot be
said that the claim made by the heir of the deceased is either misconceived or untenable,
but since it involves disputed questions of facts, writ court cannot go into the question of
disputed facts. It could only be decided in a regularly drawn trial between the parties
before a competent civil court.60

The term cause of act ion used in s 20 (c) of the Code of Civil Procedure denotes the whole
bundle of material facts based on which the plaintiff claims the relief as prayed for. The
term cause of action, therefore, indicates not a piece of evidence on events, but a bundle of
events. It has no relation to the evidence set up by the defendant nor does it depend upon
the character of the relief prayed for. In the instant case, the first plaintiff entrusted the suit
consignment to the defendant, to transport the same from Bangalore to Calicut, only after
insuring the same.61

That apart, pursuant to the appointment of the surveyor (P-W2) by the second plaintiff
and the report of the surveyor (ex A4), a sum of Rs 56,307.55 p was paid by the second
plaintiff on 14 March 1983 at Madras, in consideration of which a letter of subrogation (ex
A8) was executed by the first plaintiff in favour of the second plaintiff to lay the above
suit. It is, therefore, evident that part of the cause of act ion arose within the jurisdiction of
the trial court.62

Under such circumstances, the trial court has got jurisdiction to deal with the suit.63

22. Marine Insurance. Where there was a breach of contract of marine insurance, the suit
for damages against Bombay Port Trust and the clearing agent before the Delhi High
Court was found maintainable as the contract of insurance was entered at Delhi and the
jurisdiction of the Delhi High Court was invoked against two of the defendants solely on
the basis of the correspondence made by them with the plaintiff.64

23. Interference with temple property. Removal or alteration of nemams or religious

marks in a temple, which are recognised as the badges of a particular religious
denomination, amounts to an interference with property, and is a ground of action in civil
courts.65

By ss 5 and 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 22 of
1959, the jurisdiction which would otherwise have vested in the civil courts to grant relief
under s 92 of the Code of Civil Procedure in respect of public, religious or charitable trusts has
been taken away and vested in authorities constituted under the Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959.66 Where the properties were recorded in
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settlement register in the name of temple, the pattas were granted under TN Minor Inam
(Abolition and Conversion into Ryotwari) Act, 1963 in the name of temple till the year
1968 and thereafter, the pattas were granted to the defendants in settlement proceedings on
impression that the properties were originally given to them and they were in possession of
the same in view of the services rendered, the plea that the proceedings under TN Minor
Inam (Abolition and Conversion into Ryotwari) Act, 1963 had become final and civil court
had no jurisdiction to go into question of title, cannot be allowed.67

24. Interference with right of worship. Suits for a declaration of the right to worship or
to offer prayers at a certain place are suits of a civil nature.68 It often happens that the
members of a particular class are alone entitled to worship in the sanctuary of a temple,
and to perform certain portions of the religious worship. Such a right is one of a civil
nature, and it may be enforced by a suit in a civil court.69 It is the right of every citizen to
carry on the worship in such methods as he likes so long as he does not invade the rights
of other persons. A suit is accordingly maintainable for declaration that plaintiff is entitled
to carry on worship bareheaded and for an injunction restraining the authorities of a
mandir from interfering with such a right.70 Where the members of a sect have the right to
worship the idol in a particular temple, the members of the rival sect cannot interfere with
that right by making alterations or additions to the idol, such as fixing chakshus (eyes) on it
or by affixing dwajadand (flagstaff) or kalash over the temple as if the temple was a
Swetambari Jain temple.71 Similarly, members of the Bees Panthi Amnai, who constructed a
temple and worshipped there according to their mode of worship, can maintain a suit
where such right is denied or interfered with, notwithstanding that adjudication of such
right involves questions relating to religious rites and ceremonies.72 The right to worship in
a temple includes the right to take assistance of a panda or other persons, even if such
assistance is given for consideration. However, the temple authorities are at liberty to make
proper regulation regarding the exercise of these rights.73

Where a suit was filed for declaration that the suit property was an old Hindu
Hemadpanthi temple of Shri Mahadeo, i.e., a shivalaya which was also known in the past as
Siddeshwar temple in which Hindus have right to worship Shri Mahadeo and other deities
in that temple, and founded on that relief was the relief claimed against the defendants for
not to interfere or disturb Hindus of village in general and the plaintiffs in particular in
their vahivat and worship of all the deities in the Hindu temple described in the suit, and
there was also a prayer for alternative relief to the effect that the Muslims of that village in
general and the defendants in particular be ordered to deliver possession of the said
property in suit to the plaintiffs as representatives of deity and of the Hindus of village, in
the event, court finds that the plaintiffs were not in possession of the suit property on the
date of institution of the suit by virtue of s 19 read with ss 79 and 80 of the Bombay Public
Trusts Act (29 of 1950), the suit as filed is clearly barred by law, because the reliefs claimed
by the plaintiffs would require the court to examine as to whether the trust exists and
whether such trust is a public trust and whether suit property is the property of such trust,
and it was not only suit for declaration of title of suit property.74
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Suit claimed right to appoint competent persons for recitation of Divya Prabandam in
Adyabaga Goshti before the deity. Right was neither attached to any office in temple, nor
was its non-performance liable to any punishment. The claim was not for a civil right. The
suit was not maintainable.75 A public mosque belonged to Sunnis. Defendants (State and
Police Superintendent) restrained the plaintiffs (Muslim members belonging to another
community) from entering the mosque through the main gate and offering their prayers,
by illegally locking the gate. Infringement of fundamental right to worship was involved.
Suit by the plaintiff for restraining the defendants from interfering with their right to enter
into the mosque, is maintainable.76

25. Date of Birth. A suit for declaration of correct date of birth and for rectifying the date
of birth, is maintainable, according to a Division Bench of the Karnataka High Court,77
overruling the single judge ruling in State of Karnataka v. Vishwanath Rao.78 The division
bench dissented from the contrary view of the Patna High Court.79 The Patna High Court
had held that date of birth was merely an event in a persons life and did not constitute his
legal character within the meaning of s 34, Specific Relief Act, 1963. Dissenting from this
view, the Karnataka High Court further held that in s 9, Code of Civil Procedure, the words
suits of a civil nature are comprehensive enough to include relief of this nature, since a
declaration that a person was born on a particular date, clothes him with various legal
rights, immunities, privileges and powers and refusal of such a declaration may visit him
with certain duties, liabilities and disabilities. Date of birth is not merely an event.
Declaration of date of birth is a declaration of legal status. Whether a person is a major or
minor is a matter of status under the Indian Majority Act, 1875. In such a dispute, the
incidental question will always be the persons age in relation to his statuswhether he is a
major or minor under to exclude its jurisdiction for making a declaration as to a persons
age with a view seeking other consequential reliefs.

A connected question with the date of birth is the question of registration of birth. Where
a suit was filed under the Registration of Births and Deaths Act, 1969 for cancellation of the
birth certificate registering the appellant in a particular village, it was held by the Madras
High Court that the order of the Magistrate directing registration of birth can bind only the
Registrar and not others. Thus, the suit is not maintainable as there is no cause of action.80.

26. Rights of burial. Right of burial is a civil right. Interference with the right of the
relatives of a deceased Mohammedan to recite prayers over his body before burial in front
of a particular mosque, is an invasion of a civil right and can be enforced by suit.81 It is not
sufficient for the plaintiff to show that the members of their family have always been
buried in the first row of the church cemetery but it is also necessary for them to show that
search right had been denied to others though not for so long that memory of man
runneth not to be contrary but for sufficiently long to prove that same has acquired the
force of a custom.82
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27. Deities. Right to take a deity from one temple to another and to worship at the latter
temple is a civil right (customary right). The word ritual means pertaining or relating to,
connected with rites. The word rites is a formal procedure or act, in a religious or other
solemn observance. Suits relating to rites or rituals in temple are not of a civil nature.
However, a civil right can be agitated in civil court. There is no ritual in carrying or taking
of a deity from one temple to another.83

28. Religious and other processions. Members of a religious body possess the right to
conduct a religious procession with its appropriate observances along a highway and a suit
will lie against those who prevent the procession with its observance.84 The worshippers in
a mosque or temple which abuts on a high road cannot compel the processionists to
intermit their worship while passing the mosque or temple on the ground that there is
continuous worship there; but, no one sect can claim the exclusive use of the highway for
their worship.85 The right to take out a procession along a highway is not limited to
religious processions but extends to all processions. A suit, therefore for a declaration of a
right to take funeral procession through a public street is maintainable.86

29. Education. A suit can lie to challenge an appointment in a school (orders of education
authorities regarding an aided school), provided it can be established that the orders are
unsustainable in law.87 On the question of jurisdiction, one must give regard to the
substance and not to the form.88

Appellant appeared at an examination pursuant to an interim order passed by the court in a

civil suit. However, interim orders are always subject to final outcome of the suit. Thus,
where the suit itself was discussed no direction can be given by court to the University to
publish the result.89

30. Arbitration. A suit to challenge the validity of a contract is within the cognizance of a
civil court. Not being a suit to challenge the arbitration clause as such, it is not barred by s
32 of the Arbitration Act, 1940 (now replaced by the Arbitration and Conciliation Act, 1996).90

No two parties are bound to provide for arbitration; but, if they choose to provide for the
forum of arbitration and, in breach of the arbitration agreement, one party rushes to the
court, the court must, if the conditions of s 34 of the Arbitration Act, 1940 (now replaced by
the Arbitration and Conciliation Act, 1996), are satisfied, hold the parties to the bargain, unless
a clear case is made out to the contrary.91 Therefore, even a civil suit challenging the
correctness of the bills so raised would not be maintainable in a civil court.92 The civil
court has necessarily got the jurisdiction to enforce the right of a subscriber under s 7 B of
the Indian Telegraph Act, 1885. There is no provision in the Indian Telegraph Act, 1885, which
ousts the jurisdiction of the civil court. It may be possible to contend that when an award
is passed, the award cannot be questioned in a civil court; but, in case the central
government fails to appoint the arbitrator under s 7 B of the Indian Telegraph Act, 1885, the
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civil court does have the jurisdiction to direct appointment of an arbitrator.93 An arbitrator
has no jurisdiction to arbitrate, if there is no written agreement of arbitration as required
by s 2 (a), Arbitration Act, 1940 (now replaced by the Arbitration and Conciliation Act, 1996).
Acquiescence or admission of liability by a party cannot confer jurisdiction on the
arbitrator. Hence, where the arbitration is invalid for the above reason, a suit can lie.94

Where the property of the judgment-debtor is auctioned by the bank in realisation of the
debt and is purchased by a stranger auction-purchaser, the dispute between the judgment-
debtor on one hand and the bank and the auction-purchaser on the other hand, will be out
of the purview of arbitration proceedings under s 70 of the UP Co-operative Societies Act,
1966, as no dispute between the society and the stranger is referable, nor can it be decided
by the registrar or his nominee as arbitrator. Thus, the suit by the judgment-debtor
challenging the validity of the auction would be maintainable in the civil court.95

The Arbitration and Conciliation Act (26 of 1996) Act, which is a special Act, does not oust
the jurisdiction of the civil court to decide the dispute in a case where parties to the
arbitration agreement do not take appropriate steps as contemplated under sub-ss 1 and 2
of s 8 ; that there is also no provision in the Act that the subject-matter of the suit includes
the subject-matter of the arbitration agreement as well as other disputes; that the matter is
required to be referred to arbitration and there is also no provision for splitting the causes
of act ion or parties and referring the subject-matter of the suit to the arbitrator and that
there is also no provision as to what is required to be done in a case where some parties to
the suit are not parties to the arbitration agreement, as it has been ruled by the Supreme
Court in its latest decision.96

The Gujarat High Court has held that where there is an arbitration clause in the agreement
between the plaintiff and defendant, any dispute and claim between the parties is required
to be referred to arbitration and then s 8 of the Arbitration and Conciliation Act, 1996 would be
applicable. However, merely because there is an arbitration clause and/or the bye-laws
provide for referring the dispute and claim to arbitration, the civil courts jurisdiction is not
barred but the same is subject to s 8 of the Act of 1996. Thus, the defendant filed an
application for dismissing the suit under O 7, r 11 of the CPC in view of the arbitration
clause, it was held that the court below did not act illegally because reference to arbitration
is subject to fulfilment of conditions laid down in s 8 of the Act.97

31. Societies. Disputes touching the business of a society were, by statute, excluded from
the civil courts jurisdiction. Co-operative societies for fisheries were engaged in catching
and selling fish. A suit was filed by one such society, for restraining another from catching
fish from a particular water reservoir. It was held that the dispute was one touching the
business of a society. The civil court was not competent to entertain the suit. Dispute
touching the business need not arise out of a transaction between the parties. It can be
even regarding their respective civil rights.98 Disputes based on a contract entered into by
the society with contractor in the course of its essential business of dealing in forest
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produce is a dispute which clearly touches the business of the society, which is referable to
registrar of society and jurisdiction of civil court is barred.99

It cannot be held that the registrar or the arbitrator is not possessed with the expertise of a
civil court to determine complicated questions arising out of a civil claim for specific
performance of the contract. When a special statute, i.e., West Bengal Co-operative Societies
Act (45 of 1983) provides a bar and creates a special forum for settlement of such matters,
in such cases it is in its wisdom that the legislature has provided for such bar. Such wisdom
cannot be questioned by the courts. Neither the court is concerned to find out the
consequences. It has to leave the matter at that. It is not for the court to determine the
inability or incapacity of the registrar or the arbitrator and the court is not concerned with
the same. The court cannot presume incapacity or inability.100 In the Hebron Housing
Cooperative Society case101 it was held as under:

In the dispute of alleged sale of plot by a member of a co-operative society to a non-

member, it is crystal clear that the dispute raised by the present appellant can be resolved
by only the board of nominees which squarely falls under section 96(1) (b) of the Gujarat
Co-operative Societies Act (10 of 1962). In the same way, when any dispute is to be decided by
the board of nominees, the trial court also has no power to pass any order under
application Exh 30 or any application given thereunder. Therefore, I do not find any
illegality, perverseness or otherwise in the order passed by the learned trial court judge and
both the appeals deserve to be dismissed with cost of Rs. 1,000/- each. Accordingly both
the appeals are dismissed. Civil Appeal also stands dismissed. Ad-interim relief granted
earlier, if any stands vacated. Cost of Rs 4,000/- to be paid in each of the appeals, making a
total amount of Rs. 2,000/-.

By operation of the non obstante clause in s 60 of the Delhi Co-operative Societies Act, 1972, the
bar of the suit is attracted only if the dispute falls within the parameters of cll (a)(d) thereof
and the bar of the jurisdiction of the court under s 93 gets attracted in respect of the
specified subject in sub-s (1) of s 93 thereof, therefore, the plea, of the bar of ss 60 and 93
of Delhi Co-operative Societies Act, 1972, is devoid of substance.102

In a case under the Punjab and Haryana Co-operative Socities Act, 1961, where an order
passed by Recovery Officer under the Act cancelling auction was challenged, it was held
that in view of the specific bar contained in s 82 (3) of the Act, the mere fact that the
Recovery Officer may have committed an error in the exercise of powers, would not
confer jurisdiction on the civil court to scrutinise the legality of the order.103 The
observation of the High Court in the above case, is as follows:

A statutory clause that seeks to rush the jurisdiction of a civil court shall be construed strictly but shall not operate where the authority
exercising powers appropriates or assumes to itself jurisdiction where there is none or to put it differently, the order impugned discloses
an inherent lack of jurisdiction as opposed to a mere erroneous, incorrect or illegal exercise of jurisdiction. An order that discloses an
inherent lack of jurisdiction or an illegal assumption thereof would necessarily be void and therefore, subject to challenge before a civil
court.104
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Where, under the Tamil Nadu Societies Registration Act, 1975, the District Registrar set aside
the election of office bearers of the petitioner Association, it was held by the High Court
that challenging election to the society is not permitted by any specific provision in the Act
and as such the impugned order is illegal and without jurisdiction. The remedy is to file
civil suit challenging the validity of the said election.105

In a suit for declaration, where the plaintiff claimed that he continued to be the Secretary
of the Society and prayed for injunction, it was contended that the suit was barred under s
36 of the Tamil Nadu Societies Registration Act, 1975. It was held by the High Court that the
presumption is in favour of civil courts jurisdiction unless specifically barred. However, s
36 of the Act is an enabling provision and there is no express or implied bar to civil courts
jurisdiction.106

In another case under the Societies Registration Act, 1960, where a suit for permanent
injunction against a Society registered under the Act had been filed, it was held that s 36 of
the Act does not bar institution of such suit before civil court.107

In a case relating to sale of plot by Co-operative Society, it was held by the Rajasthan High
Court that dispute with regard to sale or size of plot amongst members is a dispute which
touches the business of a Co-operative Society and is covered by s 75 of the Rajasthan Co-
operative Societies Act, 1965. Such dispute is required to be referred to the Registrar under s
137 of the Act. The Act bars the jurisdiction of civil court to try such disputes.108

32. Removal of an executor. A suit will not lie for the removal of an executor. The
procedure in such a case is by way of an application to the High Court under s 302 of the
Indian Succession Act, 1925;109 but, a suit for the administration of the estate of the deceased
testator in accordance with the terms of his will is maintainable as it is of a civil nature and
is not barred by any provision of law.110

33. Election matters. A person aggrieved in respect of election to the Parliament or to a

state legislature can seek remedy provided in the Constitution of India, i.e., before the election
tribunal.111 The same is the position as regards election to local bodies,112 and gram
panchayats.113

When a district magistrate, act ing ultra vires sets aside a municipal election, it was held that
a suit would lie to declare the election valid.114

34. Suit to set aside election of directors. Such a suit is of a civil nature and the court is
entitled to take cognizance of it. The matters involved in such a suit are not matters of
internal management of the company.115

35. Tax. For challenging the validity of assessment of profession tax on individual
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partners, special remedy is provided in s 86, Punjab Municipal Act, 1911. Civil suit is
barred.116 A Division Bench of the Delhi High Court in Sobha Singh and Sons Pvt. Ltd. v. New
Delhi Municipal Committee,117 had an occasion to consider the question of maintainability of a
civil suit challenging the assessment and levy of property tax by the NDMC. Sections 84
and 86 of the Act came in for consideration. It was held that the provision of appeal
contained in s 84 (1) of the Act provided a complete remedy to a party aggrieved against
the assessment and levy of tax. Section 86 provides that the remedy of appeal is the only
remedy to a party to challenge assessment for purposes of property tax. No other remedy
was available to a party in such circumstances. It follows that the remedy of a civil suit is
barred.118

In view of the aforesaid position in law it is clear that the civil suit filed, challenging the
assessment and demand of property tax by the appellant is clearly barred and not
maintainable.119

In determining the question of jurisdiction of the civil court, what has to be seen is the
substance of the plaint and the true nature of the object of the suit. The case was
concerned with the question whether the revenue court or the civil court would have
jurisdiction to determine a suit for declaration and possession.120

When the plaintiff was enabled to get the release of the seized gold ornaments, allegedly
belonging to her mother, under the provisions of the Income Tax Act, she could not, by
filing a partition suit indirectly, get a decree to have a finding that the gold ornaments
belong to her mother and that she had a right to claim her share therein. If she succeeded
in her claim, this would have the effect of getting the order of the Income Tax officer
under s 132 (5) of the Act set aside or to modify to that extent, which is impermissible
under s 293.121 The proceeding and the orders as contemplated in s 293 of the Income Tax
Act (43 of 1995) envisages lawful proceedings and orders within the provisions of the Act
itself. If such proceedings or orders without any authority or jurisdiction are taken, then
the bar to file suit cannot be applicable and in that case the person aggrieved has a right to
approach before the appropriate civil court or before the superior court for judicial review
of such act ion.122

The law declared by the Supreme Court in Dhula Bhais case123 shows that if the statute
gives finality to the orders of a special tribunal, civil courts jurisdiction is excluded except
where the provisions of the Act have not been complied with or the statutory tribunal has
not act ed in conformity with the fundamental principles of judicial procedure. But if there
is an express prohibition in a particular Act, a civil suit challenging the correctness of the
orders passed by the authorities does not lie. Therefore, the assessment of the annual value
of the property for the purpose of levy of house tax under the Adhiniyam cannot be called
in question in the civil suit. Since the Jal Sansthan has not made any assessment of its own,
which it was empowered to do under s 53 (2) of Water Supply and Sewarage Act, 1975, it
is entitled to levy water tax and sewerage tax on the basis of the assessment of the annual
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value made by nagar nigam by virtue of s 53 (4) of the Act. Therefore, the levy of water tax
and sewerage tax cannot be challenged in the civil suit.124

The question whether a suit to claim interest on the refunds of excess profit-tax is
maintainable was considered by the Supreme Court. It was held that generally speaking, the
broad guiding considerations are that wherever a right, not pre-existing in common law, is
created by a statute and that statute itself provided a machinery for the enforcement of the
right, both the right and the remedy having been created uno flatu and a finality is intended
to the result of statutory proceedings, then even in the absence of an exclusionary
provisions the civil courts jurisdiction is impliedly barred. If, however, a right pre-existing
in common law is recognised by the statute and a new statutory remedy for its
enforcement is provided without expressly excluding the civil court jurisdiction, then both
the common law and the statutory remedy might become concurrent remedies leaving
open an element of election to the persons of inherence.125

36. Suit for administration of estate of a living Hindu debtor. Such a suit is not
cognizable by a civil court not because it is not a suit of a civil nature but because a suit for
administration does not lie in respect of the estate of a living person.126

37. Suits expressly barred. When a legal right and its infringement are alleged, a suit
would lie, and unless there is a bar against entertainment of such a suit, civil courts are
bound to take cognizance of it.127 This, in substance, is the rule laid down in this section.
The expression expressly barred means barred by any enactment for the time being in
force. Thus, s 11 of the Code of Civil Procedure bars a court from trying a suit in which the
matter in issue is res judicata. Likewise, s 47 bars a decree-holder from filing a suit when he
can file execution proceedings.128Section 67 of the Income Tax Act, 1922 (now replaced by
Income Tax Act, 1961), now s 293 of the 1961 Act, provides that no suit shall be brought in
any civil court to set aside or modify any assessment made under that Act.129 A plea that a
transaction assessed to tax under the Madras General Sales Tax Act, 1939, is in
contravention of Art. 286 of the Constitution of India cannot be the subject matter of a suit.130
Similarly, s 4 of the Pensions Act, 1871, enacts that except as provided therein, no civil court
shall entertain any suit relating to any pension or grant of money or land revenue conferred
or made by the British or any former government.131 The High Court of Madhya Pradesh
also has taken the view that claims for pension arising under the Pensions Act, 1871, are not
justiciable in civil courts by reason of its s 4.132 Such a view has also been accepted by the
High Court of Allahabad133 and the High Court of Tamil Nadu.134 The High Court of
Punjab, on the other hand, has ruled that such a claim would no longer be non-justiciable
after the commencement of the Constitution of India and rules made under Art. 309 thereof,
relating to pensions.135 It is submitted that the Punjab view that pensions are basically
statutory and non-gratuitous and form part of the conditions of service, is the better view.
The fact that such rules can be unilaterally altered by the government does not make any
difference. A suit to set aside an award made under the Bombay Co-operative Societies Act,
1925, is expressly barred by s 57 of that Act;136 and the validity of an award made under a
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rule framed under s 43 of the Co-operative Societies Act, 1912, cannot also be challenged by a
suit.137 Accordingly, a suit questioning the decision of an arbitrator and the order of the
registrar under that Act is barred by r 134 of the Uttar Pradesh Co-operative Societies
Rules 1936;138 but, the jurisdiction of a civil court is not barred where the appointment of
the arbitrator is challenged as illegal or that he had abused his powers.139 Further, an invalid
award does not bar a suit on the original cause of action;140 but, a suit in which the
existence or validity of a reference to arbitration and award passed thereon are questioned
is barred under s 32 of the Arbitration Act, 1940 (now replaced by Arbitration and Conciliation
Act, 1996).141 A suit by one member against another member of a co-operative society is
not barred by reason only of its subject matter having referred to an arbitrator so long as
no award has been made. The remedy against such a suit is a motion to stay under s 34 of
the Arbitration Act.142 An act ion for damages for tort by a member of a co-operative society
is not barred as it is not one touching the business of the society.143 Illegal seizure of
property by officers of a co-operative society is not an act done under the Madras Co-
operative Societies Act, 1932. A suit challenging such seizure is not excluded.144 However, a
suit to set aside an order of contribution made by the liquidator under the Bihar and Orissa
Co-operative Societies Act, 1935, on the ground that the amount determined is not due, is
barred.145 So also, a suit challenging sale in execution of an award of an arbitrator under a
Co-operative Societies Act either on the ground of fraud or irregularity in the conduct of such
a sale.146 A suit by a student of the university calling in question an order of the Vice-
chancellor rusticating him for delinquency is barred under the East Punjab University
Act.147 So too, a suit challenging the validity of an order with respect to promotion of a
student passed by the college authorities.148

Section 4 of the Pensions Act, 1871, bars jurisdiction of civil court to entertain any suit relating
to pension. It has been held by the Guahati High Court that s 12 of the Pensions Act makes
an agreement with regard to pension null and void. A compromise decree obtained in a
suit in violation of s 4 of the Act is null and void.149

As held by the Patna High Court, the object of s 12 of the Pensions Act is to prevent traffic in
pension as it is opposed to public policy and if by a compromise decree a division has been
made between the parties with respect to the amount of pension, it would amount to
traffic in pension and will come under the mischief of s 23 of the Contract Act.150

Regarding the effect of a decree passed by a civil court in the face of statutory bar, a
Three-Judge Bench of the Supreme Court has observed as follows:

The main question which arises for our consideration is whether the decree passed by the trial court can be said to be null and void. In
our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect,
irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or
making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of
jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order.
Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no
jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.151
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Under the Administration of Evacuees Property Act, 1950, the custodian has exclusive
jurisdiction to decide whether certain property is or is not evacuee property.152 In view of s
46 of that Act, a civil court has no jurisdiction to decide whether a certain mortgage right is
evacuee property;153 nor can it entertain a suit questioning the validity of an order passed
by the custodian.154 The effect of ss 28, 46 and 7(1) of the Act is that even if the custodian
decides wrongly that a property is evacuee property, no suit can lie for a declaration that
such a decision is void; but, if such a decision is arrived at without the conditions of s 7 (1)
having been complied with, the decision would be without jurisdiction and can be
challenged by means of a suit.155 In view of s 43 (2) of the Act, the custodians decision can
ordinarily be challenged by way of appeal or revision provided by ss 24, 27 and 28.156 The
custodian, however, has no power to decide which of the two sets of heirs is entitled to the
property allotted in lieu of property left in West Pakistan, because that is a matter for the
civil court to decide.157

Section 19 of the Public Debt Act, 1944 bars a suit questioning the validity of an order passed
by the Reserve Bank under s 11 (2) of that Act.158

Section 26 of the Haryana Ceiling on Land Holdings Act, 1972, bar jurisdiction of civil
court. Therefore, the validity of an order declaring surplus area under the Act could be
challenged only before the forum provided under the Act. Thus, a suit for declaration that
the plaintiffs are owners and in possession of the suit land and the order declaring it as
surplus was ineffective, inoperative and violative of natural justice is not maintainable.159
Arijit Pasayat, J., speaking for the Division Bench in the above case, observed as follows:

The principles culled out from various decisions of this Court are that even when the statute has given finality to the orders of the
special tribunal, the civil courts jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the civil
court would normally do in a suit. Section 26(1) (d) on the other hand specifically excludes jurisdiction of the civil court so far as
matters which are required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, Collector or
Prescribed Authority. The entitlement, choice of land and the allotment are matters which are to be dealt with specifically by the
authorities under the Act. Additionally, Section 18 provides a forum to ventilate the grievances under the Act in respect of several
matters. This is a case of exclusion of the remedy in certain contingencies. It is not a case where the controversy cannot be resolved by
the forum provided under the Act. Further in case of any grievance, the validity of the order could have been questioned before the
forum provided.160

A suit under s 70 of the Bombay Tenancy and Agricultural Lands Act, 1948, raising the
question whether a tenant was a protected tenant under the Act is barred.161 Indeed, s 85 A
of the Act bars the jurisdiction of civil courts in all matters to be decided by the mamlatdar
and other authorities under the Act.162Sections 3(4) and 16 of the UP (Temporary) Control
of Rent and Eviction Act, 1947, bar the jurisdiction of the civil courts in matters dealt with
under those provisions.163 A suit for eviction of a tenant is similarly barred by s 242 read
with s 180 of the Uttar Pradesh Tenancy Act, 1939.164Section 16 of Karnataka Public
Premises (Eviction of Unauthorised Occupants) Act, 1974, bars the jurisdiction of civil court to
determine whether there are any unauthorised occupants and as such are not liable to be
evicted.165 Disputes as regards recovery of arrears of rents due from a tenant are, likewise,
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excluded from the jurisdiction of civil courts by ss 9(1) and (2) of the Orissa Tenants Relief
Act, 1955.166Section 50 of the Delhi Rent Control Act, 1958, expressly provides that no civil
court shall entertain any suit in respect of matters which the controller is empowered by or
under the Act to decide. Since the controller can decide the dispute in respect of a claim by
a sub-tenant to a statutory tenancy, a suit by such a sub-tenant for injunction restraining
the landlord or the tenant from taking possession of the premise in his possession, cannot
lie in a civil court.167 Likewise, a tenants suit for an injunction restraining the landlord from
forcibly taking possession of part of the leased premises is in effect a suit for recovery of
possession and is barred under s 28 of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947.168 That section infact bars the civil courts jurisdiction in all cases where
the dispute is between a landlord and a tenant.169 Under the Delhi Rent Control Act, 1958, a
suit for ejectment of a tenant lies before the controller and not before a civil
court.170Section 16 of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act,
1947, bars a suit challenging an order passed under it either by the state government or the
district magistrate.171 A suit for arrears of rent or for sums recoverable under s 14 of the
Punjab Tenancy Act, 1887, is exclusively triable by revenue courts under its s 77 (3).172

The position under the Rajasthan Tenancy Act, 1955 is the same.173 In view of the fifth
amendment to Goa, Daman and Diu, Agricultural Tenancy Act, 1964, the civil courts
jurisdiction would stand ousted by virtue of s 58 (2) and its decree is liable to be set
aside.174 The plaintiff cannot, by drawing their plaint cleverly, by not claiming a declaration
that the land in question was not shamlatdeh, confer jurisdiction on the civil court when by
virtue of s 13 of Punjab Village, Common Lands (Regulations) Act, 1961, the jurisdiction
of the civil court to try such suits had been taken away.175

Section 189 of the Madras Estates Land Act, 1908, bars the civil courts jurisdiction in
respect of proceedings of the nature specified in Parts A and B of the Schedule to the
Act.176 Similarly, ss 209 and 311 of the UP Zamindari Abolition and Land Reforms Act,
1951, expressly exclude the civil courts jurisdiction in proceedings for possession of
land.177Section 331 of the Act also bars the civil courts from taking cognizance of
proceedings relating to matters set out therein.178 Under the Orissa Estate Abolition Act,
1952, the collectors finding that an intermediary was in possession at the relevant date,
cannot be questioned in a civil court.179Section 4 (d) of the Bihar Land Reforms Act, 1950,
excludes the civil courts jurisdiction in matters relating to properties vested in government
under that Act.180 A suit involving the question as to title to a grove land would not lie
since such a suit is barred by s 49 of the UP Consolidation Act, 1954.181 Similarly, s 3
A(4)(b) of the Madras Estates Land (Reduction of Rent) Act, 1947, bars the jurisdiction of
the civil courts to decide the question whether a particular land is private or ryoti land and
vests exclusive jurisdiction on that question, is a special tribunal.182Section 49 of the UP
Consolidation of Holdings Act, 1954, bars the jurisdiction of civil courts to entertain suits
in matters in respect of which proceedings can and ought to be taken under the Act.183
Also, by virtue of s 257 of the Madhya Pradesh Land Revenue Code 1959, a suit is not
maintainable in respect of matters covered by its s 131 (1).184Section 36A of Bombay
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Prevention of Fragmentation and Consolidation of Holding Act 1947, clearly bars

jurisdiction of the civil court to settle, decide or deal with any question which is by or
under the Act required to be settled, decided or dealt with by the state government or any
officer or authority.185Section 46 of Madhya Pradesh Ceiling on Agricultural Holding Act,
1960 creates a bar to any civil suit. The legislative intention is that the proceedings initiated
under the provision of the Madhya Pradesh Act shall be pursued only in the manner
provided thereunder, namely, right of appeal and right of revision, and the jurisdiction of
the civil court has been barred to impugn any question settled or decision made or matter
dealt with by the competent authority under the Act.186Section 6C of Madhya Pradesh
Ceiling on Agricultural Holding Act, 1960, as amended by the Second Amendment Act of
1984, bars jurisdiction of civil court, where s 6 B of the Act applies and mandates that civil
courts jurisdiction could be taken away in respect of title of suit to which s 6 B applies.
Thus, the jurisdiction of civil court is barred only in respect of those cases where s 6 B of
the Act applies.187 Since there is a special procedure provided in the Land Acquisition Act, by
necessary implication, the civil court under s 9 of the Code of Civil Procedure has been
prohibited to take cognizance of the objections arising under the Act for determination of
the compensation for the land acquired under the Act.188

Where the plaintiff filed a suit for declaration of his right title over the suit land, recovery
of possession after evicting the defendants therefrom and for a declaration that the orders
passed by the Tehsildar are illegal and not binding on the plaintiff, a question arose
whether the suit is barred in view of s 67 of the Orissa Land Reforms Act. The Orissa
High Court observed in the case as follows:

The normal rule of law is that the civil courts have jurisdiction to try all suits of a civil nature except those of which cognizance by them
is either expressly or impliedly excluded. Such exclusion is not to be readily inferred, the rule of construction being that every
presumption should be made in favour of the existence rather than the exclusion of jurisdiction of the civil courts. Under that principle
the burden to prove exclusion of jurisdiction is on the party who so contends. In the present case, the appellants pleaded that the suit
was not maintainable in view of the bar provided under Section 67 of the OLR Act. Orissa Land Reforms Act is a Special Revenue Act
where authorities have been contemplated to decide matters relating to the said Act and, therefore, a provision in Section 67 of the
OLR Act has been created putting a bar on the jurisdiction of the civil court to try and decide matters, which are within the competency
of the OLR courts. However, it has been settled through judicial pronouncements that where only a part of the relief claimed can be
granted by the tribunal situated under the Special Act, the civil court would have jurisdiction to entertain the suit for the rest of the
reliefs. It has also been settled that even if jurisdiction is excluded, the civil courts have jurisdiction to examine into cases where the
provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental
principles of judicial procedure.189

A civil court cannot entertain a suit whereby a person alleging to be the proprietor of land
claims bhumidari rights therein in view of s 185 (1) of the Delhi Land Reforms Act,
1954.190Section 21 of the West Bengal Land Reforms Act, 1956, bars the civil court from
entertaining suits relating to matters mentioned in ss 17 and 18 of the Act.191 Suits relating
to the administration or management of a religious and charitable trust are barred by ss 93
and 57 of the Madras Religious and Charitable Endowments Act, 1951;192 but, a suit by the

trustees against a stranger to the trust is not.1 A suit by a trustee against another trustee
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who has been removed from trusteeship for possession of trust property is not barred
under s 93 of the Madras Act.2 A civil court has no jurisdiction to determine under the
Madras Town Planning Act, 1920, the liability of properties to betterment charges.3 A civil
court cannot entertain a suit for setting aside or modifying assessment under the Madras
General Sales Tax Act, 1939.4 A civil court has no jurisdiction to decide under which item
in the schedule to the Punjab Municipalities Act, 1911, octroi duty is leviable, that power
being with the authorities constituted under the Act.5 A suit for injunction against the
municipality praying for restraint from recovering taxes is not maintainable before the civil
court, since the special remedy is provided under the Maharashtra Municipalities Act, 1965.
The very object of the special machinery or forum in a taxing statute is to have summary
and quick disposal of the matters so that the government or local body can collect taxes
according to law without being forced to file a suit against the tax-payer.6 The jurisdiction
of civil courts to try matters for which provision is made under the Hindu Marriage Act,
1955, is taken away by ss 4 and 9 of the Act.7 A civil court also cannot entertain a suit
challenging the correctness of the decision of the authority constituted under s 20 of the
Minimum Wages Act, 1948.8 Having regard to s s 22(d) and 15(2) of the Payment of Wages Act,
1936, a civil court cannot entertain a suit by an employee for his wages after expiry of the
period of limitation prescribed by s 15 (2) or after the authority has declined to condone
the delay.9Section 110 (f) of the Motor Vehicles Act, 1939, ousts the jurisdiction of civil courts
to entertain claims of compensation triable by the tribunals appointed thereunder.10Section
19 of the Workmens Compensation Act, 1923, bars a suit in respect of matters to be dealt
with thereunder by the commissioner appointed under the Act.11

Under some enactments the bar imposed on the jurisdiction of civil court is not total but
partial. Sub-section (4) of Section 3 of the Gujarat Public Moneys (Recovery of Dues) Act,
1979 imposes a bar on civil suits but only to the extent of any dues under the Act. In effect
it is an embarge against the creditor rather than the debtor. However, the second part of
the above noted sub-section provides that no injunction shall be granted by the civil court
to restrain the act ion taken or intended to be taken under the Act.12 Explaining the point,
R. S. Garg, J., observed as follows:

The intention of the legislature was not to put an absolute ban on the rights of a debtor to approach to the civil court. This intention of
the legislature, from the language employed in the later part of sub-section (4) simply says that a civil court even if it assumes
jurisdiction and the suit is held to be maintainable, then too, such civil court would not be entitled to grant an injunction in favour of
such plaintiff. The intention of the legislature behind using such language was that let debtor go to the civil court, have his litigation,
enjoy luxury of the litigation, but he shall not be entitled to an injunction. Because of the non-grant of the injunction, the Collector, on
the other hand, shall be entitled to proceed with the recovery which is the main object of the Act.13

The cognizance of a suit by a civil court may also be impliedly barred. Thus, a suit by a
proclaimed person, whose property has been attached and sold under s s 87 and 88 of the
Code of Criminal Procedure, 1898 (now replaced with Civil Procedure Code, 1908), against the
auction purchaser for its restoration is impliedly barred by the provisions of that Code, the
remedies of such a proclaimed person being limited to those provided for in the Code.14
The mere fact, however, that an enactment provides a summary remedy in certain cases
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does not constitute a bar to a regular suit. Thus, the provisions of Act 1 of 1871, do not
bar a suit for compensation for wrongful seizure of cattle.15 Again, a guardian may apply to
the court for possession of his ward under s 25 of the Act, but this does not exclude a suit
for that purpose.16 Another instance is O 21, r 95 (Code of 1882, s 318 ). That rule
provides a summary remedy to which a purchaser at a sale in execution of a decree may
resort to recover possession from a judgment-debtor; but, it does not say that no suit shall
lie to recover possession. The purchaser, therefore, may resort to the remedy provided by
that section or he may at his option bring a regular suit.17Section 92 of the Code of Civil
Procedure does not bar a suit for a claim for administration of private trusts18 and the court
can interfere in such cases and see that no breaches of trust are committed.19 A person
who claims to be the transferee of a share in a company registered under the Companies Act
is entitled to file a suit to establish his rights. His remedy is not limited to proceedings
under s 38 of the Companies Act, 1913 (now replaced with the Companies Act, 1956).20

The jurisdiction of the civil court in the matter of cancellation of registration has been
impliedly taken away under s s 46 and 47 of the Trade and Merchandise Marks Act, 1958. The
forum for relief is the High Court or the registrar.21

Section 58 of the Water (Prevention and Control of Pollution) Act, 1974, does not bar the
jurisdiction of civil courts to entertain a suit for permanent injunction to restrain the
defendant from letting noxious fluids into a river. The section reads as under:

58. Bar of jurisdiction. No civil court shall have jurisdiction to entertain any suit or
proceeding in respect of any matter which an appellate authority constituted under this Act
is empowered by or under this Act to determine and no injunction shall be granted by any
court or other authority in respect of any action taken or to be taken in pursuance of any
power conferred under this Act.

The defendant in the instant case did not seek to annul any orders passed by any authority
constituted under the Water (Prevention and Control of Pollution) Act, 1974.22

The plaintiff purchased some materials from a foreign company situated in West Germany.
Consignment was shipped from Germany under a marine insurance policy. The bill of
lading was executed in Germany. The insurance company was also situated in Germany.
The contract of insurance covered the risk of transit upto place S, where the plaintiff
resided. The consignment was short of 779 Kg. The plaintiff filed suit in the court at K,
having jurisdiction over the place S. It was contended that as per Art. 12 of the insurance
conditions read with Art. 48 of VVC (stated to be law relating to insurance matters), the
suit could be filed only in Germany. Shortage in goods was noticed only at the time of
delivery. It was held that the court at the place of delivery had jurisdiction in the matter.23

In a Gujarat case, plaintiffs case was, that government, having acquired land A, was (from
that land) encroaching upon land B, which the plaintiff claimed as his own. The suit was to
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prevent encroachment upon land B, regarding which the plaintiff claimed title. It was
objected by the defendant that the civil court cannot entertain a suit regarding acquisition.
It was held that the suit was maintainable. Plaintiff was not suing regarding the acquired
land, but regarding the adjoining land.24

The Industrial Disputes Act, 1947 not only confers on a worker the right to re-instatement
and back wages if the order to termination or dismissal is not in accordance with the
standing orders, but also provides detailed procedure and machinery for obtaining this
relief. Under these circumstances, there is an apparent implied exclusion of the jurisdiction
of the civil court to grant such relief. The remedy under the Industrial Disputes Act, 1947
cannot be said to be discretionary. The suit for: (i) a declaration that dismissal of the
plaintiff from service was bad and void; (ii) for back wages; and (iii) for injunction
preventing the employer from giving effect to the order of dismissal is, in substance, a suit
for the relief of re-instatement and back wages and is, therefore, not maintainable before a
civil court.25

Decree declared that a particular date was the correct date of birth of the plaintiff
employee, defendant-employer (public authority), cannot ignore the decree, on the ground
of absence of direction for rectification of service record. The suit was instituted against
the director of Post-Graduate Centre, Anantapur, who was the plaintiff petitioners
employer, for correcting the date of birth of the petitioner. It was held that reasonably and
realistically speaking, there could have been no purpose behind the suit, except to bind the
respondent with the declaration, and thereby obtain the benefit of extended service. The
plaint allegations made the objective clear. So long as the decree stood, the respondent
could not say that the petitioners date of birth was not 29 December 1921, but 1 June
1919. The stand taken by the director, that as there was no further direction to him to
correct the service record, therefore he would still act upon the entries in the service
record as they stood, and retire the petitioner, was an unjustifiable one, which a public
authority could not be permitted to take.26 The scheme of the Industrial Disputes Act, 1947,
clearly excludes the jurisdiction of the civil court by implication in respect of the remedies
which are available under this Act and for which a complete procedure and machinery has
been provided in the Act.27

Difference lies in the nature of jurisdiction, one conferred by s 9 of the Code of Civil Procedure
and the other by Art. 226 of the Constitution of India. Both the jurisdictions are different and
are governed by different principles. Article 226 provides a Constitutional remedy. It
confers the power of judicial review of High Courts. The finality clause in a statute is not a
bar to the exercise of this Constitutional power. Whereas the jurisdiction of civil court
arises from s 9 of the Code of Civil Procedure. In such a case, the bar arising from an express
provision or arising by necessary intendment can be over ridden only in cases and
situations pointed out in Dhula Bhai v. State of Madhya Pradesh.28 It is not correct to say that
whatever is good for Art. 226 is good for suit as well.29
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38. Exclusion of jurisdiction of civil courts. Under s 9 of the Code of Civil Procedure, the
court shall subject to provisions contained therein, have jurisdiction to try all suits of civil
nature excepting suits, cognizance of which is either expressly or impliedly barred. When a
legal right is infringed, a suit would lie, unless there is a bar against entertainment of such
civil suit and the civil courts have jurisdiction to try all suits of civil nature except those of
which cognizance is either expressly or by necessary implication excluded. The rule of
construction being that every presumption would be made in favour of the existence of a
right and remedy in a democratic set-up governed by rule of law and jurisdiction of the
civil courts is assumed. The exclusion would, therefore, normally be an exception. Courts
generally construe the provisions strictly when jurisdiction of the civil courts is claimed to
be excluded. Where there is no express exclusion, the examination of the remedies and the
scheme of the particular Act to find out the intendment becomes necessary and the result
of the inquiry may be decisive. In the latter case, it is necessary that the statute creates a
special right or liability and provides procedure for the determination of the right or
liability and further lays down that all question about the said right or liability shall be
determined by the tribunal so constituted and whether remedies are normally associated
with the act ion in civil courts or prescribed by the statutes or not. Therefore, each case
requires examination whether the statute provides right and remedies and whether the
scheme of the Act is that the procedure provided will be conclusive and thereby excludes
the jurisdiction of the civil court in respect thereof.30

The normal rule of law is that civil courts have jurisdiction to try all suits of a civil nature
except those of which cognizance by them is either expressly or impliedly excluded.31 Such
exclusion is not to be readily inferred, the rule of construction being that every
presumption should be made in favour of the existence rather than the exclusion of
jurisdiction of the civil courts.32 Consequently, statutes, ousting the jurisdiction of civil
courts must be strictly constructed.33 The burden to prove the exclusion is on the party
who so contends.34 Where such a contention is raised it has to be determined in the light
of the words used in the statute, the scheme of its relevant provisions, their object and
purpose.35 Further, the jurisdiction of the civil court is not excluded unless the cognizance
of the entire suit as brought is barred.36 Where the statute itself does not bar the
jurisdiction of civil courts but the rules made thereunder do, the rules are ultra vires the
statute and cannot by themselves bar the civil courts jurisdiction.37 In any case, it is the
civil court which has the power to decide its jurisdiction to try a suit or a proceeding
pending before it is barred or not, although it may turn out on investigation that it has no
jurisdiction.38

In a suit it was urged before the Bombay High Court that the Mamlatdar Court Act, 1906
gives powers to Mamlatdar Court to adjudicate all disputes as specified thereunder. It was
urged the law being a special enactment, the right to adjudicate dispute under common law
is barred. Repelling the contention, the High Court observed as follows:

Court has perused entire Mamlatdars Courts Act, 1906. It is seen that Mamlatdars Courts Act presupposes and recognises the existence
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and continuation of powers and jurisdiction of civil court. The scheme provides for a summary jurisdiction and powers and a bar of
suits to make orders of Mamlatdar or Collector etc., to be immune from scrutiny in a civil suit.
It is seen that there is no express bar of suit. According to Mr. Bhattad, bar is implied. There is no room left by virtue of totality of
provisions and scheme as to how implied bar should be inferred. Argument of learned Advocate Mr. Bhattad that implied bar can be
read from the provision to clause (b) of sub-section (1) of Section 5 amounts to reading in a provision of legislation, such words and
such scheme which is totally non-existent.
The court cannot forget the wide compass of Section 9 of Civil Procedure Code. Exclusion and bar of jurisdiction cannot be read or inferred
just for the sake of asking in the manner in which present petitioner wants. Existence of jurisdiction has to be presumed and not the
bar.39

In matter of enforcement of security interest under the Securitisation and Reconstruction

of Financial Assets and Enforcement of Securityinterest Act, 2002, the jurisdiction of civil
court is barred when act ion under the Act was taken or could be taken in future if notice
under s 13 (2) (3) of the Act is issued.40

In another case relating to the Securitisation Act, 2002 where the property had been
mortgaged in favour of the Bank and a suit for partition had been filed in respect of the
said property, it was held by the Karnataka High Court that the Bank had already taken
proceedings in respect of the property under the Securitisation Act and had taken
possession of the very property and as such s 34 of the Securitisation and Reconstruction
of Financial Act, 2002 would not be attracted to oust the jurisdiction of civil court. It was
observed that the property remains mortgaged with the Bank but the title resides in the
plaintiff and even if the plaintiff succeeds in the suit, his share would still be subject to the
mortgage in favour of the Bank.41

Section 34 of the Securitisation Act, 2002 ousts the jurisdiction of the civil court. Thus, where
enforcement proceedings are initiated by Bank under s 13 of the Act, no relief of
injunction can be granted by civil court. Section 17 of the Act provides that any person
(including borrower), aggrieved by any of the measures referred to in s 13 (4) by the
secured creditor may make an application to the Debt Recovery Tribunal having
jurisdiction. Section 18 of the Act prescribes right of appeal to the Appellate Tribunal by
any person aggrieved by the order of the DRT. It was held by a Division Bench of the
Kerala High Court that alternative and efficacious remedy is provided under the Act of
2002.42

However, the Madras High Court has held that though s 34 of the Securitisation Act, 2002
debar the civil court from entertaining any suit in respect of matters which fall within the
jurisdiction of the Debt Recovery Tribunal or the Appellate Tribunal, but as regards the
allegation of fraud in obtaining certain orders depriving the valuable right of a third party,
it is only the civil court which has jurisdiction to deal with it.43

The Rajasthan High Court has held that the bar to the jurisdiction of civil courts contained
in s 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of
Securityinterest Act, 2002 is not absolute. The Securitisation Act, 2002 does not bar the
jurisdiction of civil courts to decide inter se rights between third parties, including the
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borrowers in the cases of partition, cancellation of gift deed and sale deed, right of pre-
emption, redemption of mortgage etc. But no suit or injunction in any civil court can be
allowed to prohibit and debar the measures taken by Banks and Financial Institutions
under the Securitisation Act, 2002 or the Recovery of Debts Due to Banks and Financial Institutions
Act, 1993. However, in cases of partition of joint Hindu Family property, coparceners can
claim injunction against Banks or Financial Institutions insofar as their share in the
property is concerned.44

It has been observed in the above case as follows:

In cases of partition suits of ancestral property owned by a Hindu Undivided Family which has been mortgaged by one or more of the
coparceners, without other coparceners being guarantors or borrowers of the bank or financial institution, the Bank, financial
institution or Debt Recovery Tribunal cannot proceed to take over and sell, transfer or otherwise alienate the said ancestral undivided
property unless and until the share of the particular borrower-coparcener is determined at the instance of such borrower-coparcener or
the bank itself.45

It has been held by the Orissa High Court that after the formation of the Debt Recovery
Tribunals when suits relating to Bank dues stand transferred to the Tribunals, such
Tribunals also have jurisdiction to hear and decide petitions for setting aside ex parte decree
passed by the civil court earlier to the transfer of the suits to Tribunals.46 Explaining the
provisions of Sections 19, 31 and 22 (2)(g) of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 and the scheme of the enactment, A.K. Ganguly, J. (as he then was),
observed as follows:

This difference in phraseology is of considerable importance. This difference means that after the appointed day and after the
establishment of the Tribunal, proceeding by banks/financial institutions for recovery of their debts cannot be termed, as suits, but it
will be called an application, which has been defined under Section 2 (b) of RDB Act as an application made to a Tribunal under Section
19. Thus, Section 22 of the RDB Act only refers to those applications under Section 2 (b) of RDB Act and it does not refer to any pending
case. The entire gamut of procedure referred to Section 22 would therefore apply to the applications, which were filed before the
Tribunal after the appointed day and after it was set up. So far as the jurisdiction of the Tribunal over pending cases by transfer
concerned, the Tribunal may, on receipt of such records, proceed to deal with such suit or other proceeding, so far as may be, in the
same manner as in the case of an application under Section 19 from the stage which was reached before such transfer or from an earlier
stage as the Tribunal may deem fit. This has been made clear in Section 31 (2)(b) of the RDB Act. The exercise of jurisdiction by the DRT
in pending cases and which have come to it on transfer is not controlled by Section 22 but by Section 19. That is why under Section 19,
the Tribunal has been conferred with the authority to make such orders and give such directions as may be necessary or expedient to
give effect to its order or to prevent abuse of its process or to secure the ends of justice. Thus a very wide jurisdiction has been given to
the DRT to deal with pending cases which have come to it on transfer. There are very good reasons for conferring such wide powers
on the DRT which has to deal with pending cases on transfer. A case which was filed and pending before the civil court may, over the
years, have developed unforeseen facets and may be covered with a thicket of controversy which is unknown to the structure of an
application filed before the DRT after its establishment. To deal with such contingency, the DRT has been designedly empowered with
such broad jurisdiction as has been mandated under Section 19 (25) and Section 13 (2)(b) of the RDB Act.47

The language of s 56 of Andhra Pradesh (Andhra Area) Estates Abolition and Conversion
into Ryotwari Act, 1948, more specially the provisions in sub-s (1) which makes the order
of settlement officer final and which cannot be questioned in any court leaves no room for
doubt that the issues set out in sub-s (1) of s 56 could be decided by settlement officer only
and in respect of them the jurisdiction of the civil court is ousted.48Section 13 (a)(i), of
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Punjab Village Common Lands (Regulation) Act, 1961, takes away the jurisdiction of the
civil court to entertain or adjudicate upon any question whether any land or removable
property is or is not Shamilat deh. 49 Once the order under the Orissa Public Premises (Eviction
of unauthorised Occupants) Act of 1972, attains finality, s 14 of the said Act oust the
jurisdiction of the civil court to entertain the disputes which can be decided by the estate
officer.50Section 65 of Tamil Nadu Slum Clearance Board Act, 1975, bars the jurisdiction
of the civil court.51 The scheme of Maharashtra Municipal Council, Nagar Panchayat and
Industrial Townships Act, 1965, provide a complete procedure right from the stage and
taking into consideration the basis for the assessment to the stage of appeal and revision.
In such circumstances, the jurisdiction of the civil court is barred.52 A bare reading of s 46
of Madhya Pradesh Ceiling on Agricultural Holding Act indicates that the jurisdiction of
the civil court has been expressly barred except with regard to two cases regarding which
exception have been carved out.53 Because of the non obstante clause contained in s 41 (1) of
Presidency Small Causes Courts Act, 1882, even if a suit may otherwise lie before any
other court, if such suits falls within the sweep of s 41 (1) it can be entertained only by the
court of small causes. For applicability of s 41 (1), the following conditions must be
satisfied before taking the view that jurisdiction of regular competent civil court like City
Civil Court is ousted:
(i) it must be a suit or proceedings between the licensee and licensor; or
(ii) between a landlord and a tenant;
(iii) such suit or proceedings must relate to the recovery of possession of any property
situated in greater Bombay; or
(iv) relating to recovery of the licensee fee or charge or rent thereof.54

39. Tribunals and jurisdiction of civil courts. Section 9 of the Code of Civil Procedure confers
jurisdiction upon the civil courts to determine all disputes of a civil nature unless the same
is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of
a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of civil
court requires strict interpretation. The court, it is well-settled, would normally lean in
favour of construction, which would uphold retention of jurisdiction of the civil court. The
burden of proof in this behalf shall be on the party who asserts that the civil courts
jurisdiction is ousted. Even otherwise, the civil courts jurisdiction is not completely ousted
under the Companies Act, 1956.55

In the Premier Automobiles case,56 N.L. Untwalia, J., speaking for a Three-Judge Bench of the
Supreme Court, observed as follows:

The principles applicable to the jurisdiction of the civil court in relation to an industrial dispute are:
If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the
civil court.
If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the
jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is
competent to be granted in a particular remedy.
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If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to
the suitor is to get an adjudication under the Act.
If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is
either Section 33C or the raising of an industrial dispute, as the case may be.

In Rajasthan State Road Transport Corporation v. Krishna Kant,57 Jeevan Reddy, J., speaking for a
three-judge bench of the Supreme Court, summarised the principles as follows:
(1) Where the dispute arises from the general law of contract, i.e., where reliefs are
claimed on the basis of the general law of contract, a suit filed in civil court cannot
be said to be not maintainable, even though such a dispute may also constitute an
industrial dispute within the meaning of Section 2 (k) or Section 2 -A of the
Industrial Disputes Act, 1947.
(2) Where, however, the dispute involves recognition, observance or enforcement of
any of the rights or obligations created by the Industrial Disputes Act, the only remedy
is to approach the forums created by the said Act.
(3) Similarly, where the dispute involves the recognition, observance or enforcement of
rights and obligations created by enactments like Industrial Employment (Standing
Orders) Act, 1946 which can be called sister enactments to Industrial Disputes Act and
which do not provide a forum for resolution of such disputes, the only remedy shall
be to approach the forums created by the Industrial Disputes Act provided they
constitute industrial disputes within the meaning of Section 2 (k) and Section 2 -A
of Industrial Disputes Act or where such enactment says that such dispute shall be
either treated as an industrial dispute or says that it shall be adjudicated by any of
the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is
open.
(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are
not equally effective for the reason that access to the forum depends upon a
reference being made by the appropriate Government. The power to make a
reference conferred upon the Government is to be exercised to effectuate the
object of the enactment and hence not unguided. The rule is to make a reference
unless, of course, the dispute raised is a totally frivolous one Ex facie. The power
conferred is the power to refer and not the power to decide, though it may be that
the Government is entitled to examine whether the dispute is Ex facie frivolous, not
meriting an adjudication.
(5) Consistent with the policy of law aforesaid, we commend to Parliament and the
State Legislatures to make a provision enabling a workman to approach the Labour
Court/Industrial Tribunal directlyi.e., without the requirement of a reference by the
Governmentin case of industrial disputes covered by Section 2 -A of the Industrial
Disputes Act. This would go a long way in removing the misgivings with respect to
the effectiveness of the remedies provided by the Industrial Disputes Act.
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(6) The certified Standing Orders framed under and in accordance with the Industrial
Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service
and are binding both upon the employers and employees, though they do not
amount to statutory provisions. Any violation of these Standing Orders entitles an
employee to appropriate relief either before the forums created by the Industrial
Disputes Act or the civil court where recourse to civil court is open according to the
principles indicated herein.
(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to
provide an alternative dispute resolution mechanism to the workmen, a mechanism
which is speedy, inexpensive, informal and un-encumbered by the plethora of
procedural laws and appeals upon appeals and revisions applicable to civil courts.
Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are
far more extensive in the sense that they can grant such relief as they think
appropriate in the circumstances for putting an end to an industrial dispute.

Reiterating the law laid down in Krishna Kants case (supra), another three-Judge Bench of
the Supreme Court held the jurisdiction of the civil court to be impliedly barred where a
workman had challenged the order of dismissal passed by the Municipal Corporation. It
was also held that the appropriate forum for resolution of such disputes is the forum
constituted under the Industrial Disputes Act.58 Speaking for the Bench, Pattanaik, J. (as he
then was) observed as follows:

It may be borne in mind that the Industrial Disputes Act was enacted by the Parliament to provide speedy, inexpensive and effective
forum for resolution of disputes arising between workmen and the employers, the underlying idea being to ensure that the workmen
does not get caught in the labyrinth of civil courts which the workmen could ill-afford, as has been stated by this court in Rajasthan
State Road Transport Corpn. case (supra). It cannot be disputed that the procedure followed by civil courts are too lengthy and
consequently, is not an efficacious forum for resolving Industrial Disputes speedily. The power of Industrial Courts also is wide and
such forums are empowered to grant adequate relief as they think just and appropriate. It is in the interest of the workmen that their
disputes, including the dispute of illegal termination are adjudicated upon by an industrial forum.59

Views expressed by Willes, J., in Wolverhampton case,60 how Section 9 of the Code operates
is illustrated by referring to the category of cases

One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar
form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by
necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy.
The second class of cases is, where the statute gives the right to sue merely, but provides no particular remedy: there the party can only
proceed by act ion at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute
which at the same time gives a special and particular remedy for enforcing it ..The remedy .. provided by the statute must be followed
and it is not competent to the party to pursue the course applicable to cases of the second class.

Another three-Judge Bench of Supreme Court, in the case of Balmukund Bairwa,61 held
that where civil courts jurisdiction is barred by statute, even then the civil court has
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jurisdiction when the statutory authority or Tribunal acts without jurisdiction. S.B. Sinha,
J., speaking for the Bench obserrved as follows:

The civil court, furthermore, being a court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering the
averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest
jurisdiction on the civil court although it otherwise may not possess. For the said purpose, the court in given cases would be entitled to
decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact. It is also well
settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil courts jurisdiction is not to be readily
inferred. A person taking the plea contra must establish the same.62

The question as to what extent the jurisdiction of the civil court is taken away with respect
of matters entrusted to tribunals constituted by the legislature has been the subject matter
of a number of decisions.63 Whether a suit is or is not cognizable by a civil court depends
on the cause of act ion pleaded and not on the form in which the relief is prayed for.64

The Motor Accidents Claims Tribunal, constituted under the provisions of the Motor
Vehicles Act, 1988, is a Court for all intents and purposes, including the enforcement of its
award, and therefore, it can exercise powers under sections 9, 47 and Order 21, CPC. It
cannot be said that since the jurisdiction of civil court is barred by section 75 of the Act,
the Tribunal would not be justified in assuming and exercising the powers of the civil court
by resorting, and applying, the Code of Civil Procedure 1908. The Motor Accident Claims
Tribunal is vested with jurisdiction over cases of motor accident claims arising out of
vehicular accidents. Obviously, no such claim proceedings for which the special motor
accident claims tribunals are constituted, can lie before the civil court.65

Two tests are applied for the purpose of determining the exclusion of jurisdiction of the
civil court:

(i) whether the legislative intent to exclude is expressed explicitly or by necessary

implication;66 and

(ii) whether the statute in question provides for an adequate and satisfactory alternative
remedy to a party aggrieved by an order made under it.67

Even where these tests are satisfied, a civil court would have jurisdiction to entertain a suit
where the statutory provision under which the tribunal acts is challenged as being ultra vires
the Constitution.68 The bar created by the statutory provision excluding the civil courts
jurisdiction cannot also operate where the plea raised goes to the root of the matter, and if
upheld, would render the impugned order a nullity.69 Where the special tribunal or
authority acts ultra vires or illegally, the civil court has by virtue of s 9 of the Code, power to
infer and set matters right. If the provisions of the statute has not been complied with or
the statutory tribunal has not acted in conformity with the fundamental principles of
judicial procedure, the civil court has jurisdiction to examine the case.70 Likewise, non-
compliance by such a tribunal of the provisions of the statute conferring jurisdiction on it
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would vitiate the entire proceedings as being without jurisdiction;71 but, so long as such a
tribunal acts within and in exercise of jurisdiction conferred on it, its decision, however
erroneous, is not a nullity and does not give jurisdiction to a civil court to entertain a suit
challenging it. The principle is that whether such a decision is correct or not, it is one
arrived at in exercise of the exclusive jurisdiction conferred upon it by the statute which
sets it up.72 Even a writ of certiorari would not issue except on the grounds that the
impugned order was made without or in excess of jurisdiction or in violation of the
principles of natural justice,73 or that there was an error apparent on the fact of the
record.74

In Dhulabhai v. State of Madhya Pradesh,75 the Supreme Court considered its earlier decisions
on that aspect and laid down the following propositions:
(i) Where the statute gives finality to the orders of the special tribunals, the civil courts
jurisdiction must be held to be excluded, if there is adequate remedy to do what the
civil courts would normally do in a suit. Such a provision, however, does not
exclude those cases where the provisions of the particular Act have not been
complied with or the statutory tribunal has not act ed in conformity with the
fundamental principles of judicial procedure.
(ii) Where there is an express bar of jurisdiction of the court, an examination of the
scheme of the particular Act to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the jurisdiction of the civil
court. Where there is no express exclusion, the examination of the remedies and the
scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive. In the latter case, it is necessary if the statute
creates a special right or liability and provides for the determination of the right or
liability and further lays down that all questions about the said right or liability shall
be determined by the Tribunals so constituted, and whether remedies normally
associated with action in civil courts are prescribed by the said statute or not.
(iii) Challenge to the provisions of the particular Act as ultra vires cannot be brought
before tribunals constituted under the Act. Even the High Court cannot go into
that question on a revision or reference from the decision of the tribunals.
(iv) When a provision is already declared unconstitutional or Constitutionality of any
provision is to be challenged, a suit is open. A writ of certiorari may include a
direction for refund if the claim is within the time prescribed by the Limitation Act
but it is not a compulsory remedy to replace a suit.
(v) Where the particular Act contains no machinery for refund of tax collected in
excess of Constitutional limits or illegally collected, a suit lies.
(vi) Questions of the correctness of the assessment apart from its Constitutionality are
for the decision of the authorities and a civil suit does not lie if the orders of the
authorities are declared to be final or there is an express prohibition in the particular
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Act. In either case, the scheme of the particular Act must be examined because it is
a relevant inquiry.
(vii) An exclusion of the jurisdiction of the civil court is not readily to be inferred
unless the conditions above set out apply.

Though the rule generally expressed is that it is only where a tribunal acts without or in
excess of its jurisdiction that its decision becomes a nullity, it has to be noted that the word
jurisdiction has both a wide and a narrow meaning. There would be many cases where
although the tribunal had jurisdiction to enter upon an inquiry, it has done or failed to do
something in the course of such inquiry which is of such a nature that its decision is a
nullity, eg, giving its decision in bad faith, or a decision which it had no power to make, or
failing to comply with the principles of natural justice, or failing to decide the question
entrusted to it and deciding some other question or refusing to take into account or basing
its decision on something it could not take into account, etc. The word jurisdiction thus,
has to be taken in its narrow and not wide meaning.76 Determination of a question other
than the one which the statute directs the tribunal to decide would be one in excess of or
without jurisdiction.77

The allegation was, that certain act ion of the Electricity Board and its officers was mala fide
and without authority. Suit was for mandatory injunction against it. It was held that such a
suit cannot be dismissed at the threshold, without considering the merits. A statute can
make provision, expressly, or by necessary implication, for barring the jurisdiction of the
civil courts in respect of a particular matter. But the mere conferment of special
jurisdiction on a tribunal in regard to certain specified matters does not, in itself, exclude
the jurisdiction of the civil courts. Thus, when it is alleged that certain action taken by the
Electricity Board and its officers is mala fide and without proper authority, a suit for
mandatory and prohibitory injunction would be maintainable against the Electricity Board,
in order to restrain it from drawing up an electric line through the plaintiffs property and
for removing the pole already fixed.78 Where the claim of a person to compensation for
land acquisition is not adjudicated upon in the land acquisition proceedings, he can sue
separately the person who had act ually received the compensation, to recover his share.79

Under section 443 of the Calcutta Corporation Act, 1951, the Corporation is entitled to
issue licences against the payment of fees to theatres, circuses, cinema houses, dancing
halls and other similar places of public resort, recreation or amusement, but not to other
establishments. A restaurant which provides items of amusement occasionally or
incidentally in its main business to its customers, is not a place of public resort, recreation
or amusement similar to a theatre etc. which form a class by themselves and it does not fall
within the mischief of section 443. The mere fact that a person had applied and obtained a
licence earlier, will not confer jurisdiction on the authority concerned, to require a
licence.80

R, who had virtually settled in Trivandrum, for over a long time, had a wife (the plaintiff),
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for whom he had much attachment. He had a friend (defendant) with whom he had
extraordinary intimacy. R used to make available to the defendant (friend of R) substantial
amounts from time to time. Under the operative provisions of his will, R bequeathed his
entire assets in favour of the two, with equal rights of ownership and enforcement. The
defendant started harassing the plaintiff after R's death. Hence she filed a suit for accounts.
It was held that the background of antecedents conducted between the parties and the
intimate relationship between them even during Rs lifetime, the position of confidence and
trust which the defendant had occupied vis--vis R and the arrangement which R made for
the right to, and enjoyment of, his assets, showed a clear case of strong fiduciary
relationship. In such fiduciary relationship, a right of accounting would certainly arise, as
between the defendant and the widow of R. 81

A person aggrieved in respect of election to Parliament or to a State Legislature can seek

remedy provided in the Constitution, that is before the Election Tribunal.82 The same is the
position as regards election to local bodies,83 and Gram Panchayats.84 The principles above
cited are also applicable when jurisdiction of civil courts is invoked against decision of
domestic tribunals.85

In the Mask & Co.s case,86 the sole question before the Privy Council was the jurisdiction
of the civil court to entertain a suit to recover an excess amount of cutoms duty from the
company, and it was dealing with the effect of Sea Customs Act, 1878, section 188. It was
held by the Privy Council that it is well settled law that the exclusion of the jurisdiction of
the civil court is not to be readily inferred, but that such exclusion must either be explicitly
expressed or clearly implied.87 Lord Thankerton, who delivered the opinion of the Board,
however, proceeded to add that it is also well settled that even if jurisdiction is so excluded,
the civil courts have jurisdiction to examine into cases where the provisions of the Act
have not been complied with, or the statutory tribunal has not act ed in conformity with
the fundamental principles of judicial procedure.88

In Illury Subbayya Chettys case,89 the Supreme Court accepted the observations made by the
Judicial Committee in Masks case (supra). In that case a matter relating to s 18 -A of the
Madras Sales Tax Act, 1939 was under consideration which provided a bar to civil suits. It
was held that the bar to jurisdiction of civil courts under s 18 -A would apply as an
alternative remedy is provided under the Act.90 However, referring to the observations of
the Privy Council in Masks case (supra), Gajendragadkar, J. (as he then was), speaking for
the five-Judge Bench in the above case stated that the own-compliance with the provisions
of the statute to which reference was made by the Privy Council, must be meant to be
non-compliance with such fundamental provisions of the statute as would make the entire
proceedings before the appropriate authority illegal and without jurisdiction.91

In another case, Releigh Investment Co.,92 the Privy Council considered the effect of s 67 of the
Income-tax Act, where the words used were exactly similar to the words used in the Madras
Sales Tax Act, 1939. It was observed that the phrase made under this Act describes the
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provenance of the assessment: it does not relate to its accuracy in point of law. The use of
the machinery provided by the Act, not the result of that use is the test.

Under the Madhya Bharat Sales Tax Act, 1950, the State Government issued a notification
imposing sales-tax and collected it. The assessees filed suits for refund on the ground that
the tax was illegal. In the meantime the notification was declared Constitutional. It was
held by the Supreme Court in Dhulabhai v. State of Madhya Pradesh, 93 that when the
notifications were declared void, the remedy by way of civil suit was open.

The civil court does not suffer from any inherent lack of jurisdiction. Where there is a
special tribunal conferred with jurisdiction or exclusive jurisdiction to try particular class of
cases even then the civil court can entertain a civil suit of that class on availability of a few
grounds. An exclusion of jurisdiction of civil court is not to be readily inferred. See
Dhulabhai v. State of Madhya Pradesh. 94 An objection as to the exclusion of civil courts
jurisdiction for availability of alternative forum should be taken before the trial court and
at the earliest failing which the higher court may refuse to entertain the plea in the absence
of proof of prejudice.95

A Division Bench of the Karnataka High Court has held that Karnataka Public Moneys
(Recovery of Dues) Act, 1980 does not oust the jurisdiction of the civil court. The bar
created by s 3 (5) of the Act is of a very limited nature. The above provision bars suits in
civil court for recovery of debt, therefore, the bar is against the creditor and not the
borrower. Thus, where a guarantor claimed the declaratory relief and injunction that his
guarantee stands extinguished, the jurisdiction of civil court cannot be barred as that
question cannot be decided before the Special Tribunal provided under the Karnataka Act,
1980.96

In a case under the Securitisation and Reconstruction of Financial Assets and Enforcement
of Securityinterest Act, 2002 it was held by the Calcutta High Court that the ouster of the
civil courts jurisdiction applies only to matters which either of the tribunals referred to in s
34 of the Act is authorised to entertain and determine. If it is the petitioners case that in
view of the scope of the tribunals authority under s 17 (3) of the Act, the grievance that
has been brought here cannot be determined by the tribunal, then Section 34 would not
come into play and there is nothing to bar the jurisdiction of civil court.1

40. Tribunals of limited AND specified jurisdictionjurisdiction of civil court barred.

In the following cases, the jurisdiction of civil court was found barred as the subject matter
of the dispute was found within the limited jurisdiction of the tribunal concerned:
(a) The Motor Accidents Claims Tribunal, constituted under the provisions of the
Motor Vehicles Act, 1988, is a court for all intents and purposes, including the
enforcement of its award, and therefore, it can exercise powers under ss 9, 47 and
O 21 of the Code of Civil Procedure. It cannot be said that since the jurisdiction of civil
court is barred by s 75 of the Act, the tribunal would not be justified in assuming
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and exercising the powers of the civil court by resorting, and applying, the Code of
Civil Procedure 1908. The motor accident claims tribunal is vested with jurisdiction
over cases of motor accident claims arising out of vehicular accidents. Obviously,
no such claim proceedings for which the special motor accident claims tribunals are
constituted, can lie before the civil court.2
(b) The damage to any property of a third party as contemplated under s 165 of the
Motor Vehicles Act, 1988 would mean the direct damage caused to the property of
the third party. Where the injury claimed is that sickness has been caused on
account of pollution being caused in the water drain, consequent to capsizing of
phenol carrying tanker, the injury claimed has no direct or proximate connection
with the vehicle involved in the accident, consequently the civil court alone would
have jurisdiction to entertain in such case to determine the damages.3 The claims
tribunal under the Railway Claims Tribunal Act, 1987, is a tribunal of limited and
specified jurisdiction. It can exercise jurisdiction and power as conferred upon it
under the said Act only. Section 13(1) of the Claims Tribunal Act provide by
jurisdiction, power and authority to the claims tribunal and by virtue of the express
provisions contained in s 15 thereof, the jurisdiction of the civil court or any other
authority is barred only in regards to the matters specified in s 13 (1). Therefore, in
regard to matters other than the matters covered under s 13 (1) of the said Act, the
civil court will have jurisdiction to entertain a civil suit.4 Where a suit filed by a
company to which siding facility was given by railways, on ground that railways
were demanding excess transportation charges from the company, for loading
wagons and additional charges for empty wagons which was not envisaged by the
agreement between the parties and claim also was made for refund for excess
charge already made, it was held that it was a subject matter which fell within the
exclusive jurisdiction of the tribunal. It could not be held that the suit was founded
purely on contract and required to be filed in the civil court to interpret its terms
and conditions.5 Cases claming compensation on account of non-delivery by the
railways, will be entertained by the claims tribunal established in view of the
provision of Railway Claims Tribunal Act, 1987, and not the civil court.6
(c) Section 15 of Haryana Public Premises and Land (Eviction and Land Recovery)
Act, 1972, bars the jurisdiction of the civil court in relation to the proceedings taken
under the 1972 Act for eviction of a person in unauthorised occupation of public
premises. Whether the premises in question is a public premise or not, is a matter
which is required to be determined by the collector while exercising the power
conferred on him under s 25 of the Act, the jurisdiction of the civil court in this
respect is barred.7
(d) The land and acquisition court is a specially constituted court, and if there is any
mis-description either in the identity in the property or in its measurement, the
plaintiff can get them rectified by approaching that court, which has a special
machinery for that purpose.8
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(e) In cases where the liability of the erstwhile Hindustan Co-operative Insurance
Societies Limited is alleged, their liability became the liabilities of Central
Government and later on of Life Insurance Corporation of India. It being so, only
the tribunal created under the Act and not any civil court including the High Court,
shall have the power to entertain and adjudicate upon the dispute raised by the
plaintiff. 9
(f) In case of eviction of occupants from public premises, the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 provides the mode and forum. The Estate Officer
appointed under the Act, though an executive officer, is required to decide the
matter judiciously by reasoned order after giving the person affected reasonable
opportunity of presenting his case and an appeal against his order is provided
before the District Judge. Thus, s 15 of the Act has taken away the complete
jurisdiction of the civil court to entertain suit for eviction of any person who is in
unauthorised possession of public premises.10
(g) The Insolvency Act (5 of 1920) provides for Administration of property of the
debtor. The Court may appoint an interim receiver and/or a receiver. The
Insolvency Act also provides for distribution of property of the insolvent. The
scheme of the Act shows that it is a complete Code in itself. A complete and
effective remedy is provided under the Act. Therefore, the creditor is not entitled to
file an administration suit before the civil court.11

41. Civil courts jurisdiction not found barredinstances. In the following cases the
jurisdiction of civil court was not found barred despite jurisdiction of special tribunal,
empowered to deal with the subject matter of the dispute:
(a) Appellant insured a consignment of gold with the respondent-insurance company.
The delivery of the gold was to be made to a consignee in Kuwait. Due to the
invasion of Kuwait by the Iraqi forces, the consignment was lost from the strong
room at the Kuwait Airport. The appellants claim before the National Commission
was dismissed as no deficiency in service was found, however, the right of the
appellant to approach the civil court remained alive.12
(b) Even where finality is accorded to the orders passed by the special tribunal, one will
have to see whether such special tribunal has power to grant relief which civil court
would normally grant in a suit and if the answer is in negative, it would be difficult
to imply or infer the exclusion of civil courts jurisdiction.13
(c) The allegation was, that certain act ion of the electricity board and its officers was
mala fide and without authority. Suit was for mandatory injunction against it. It was
held that such a suit cannot be dismissed at the threshold, without considering the
merits. A statute can make provision, expressly, or by necessary implication, for
barring the jurisdiction of the civil courts in respect of a particular matter; but, the
mere conferment of special jurisdiction on a tribunal in regard to certain specified
matters does not, in itself, exclude the jurisdiction of the civil courts. Thus, when it
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is alleged that certain action taken by the electricity board and its officers is mala
fide and without proper authority, a suit for mandatory and prohibitory injunction
would be maintainable against the electricity board, in order to restrain it from
drawing up an electric line through the plaintiffs property and for removing the
pole already fixed.14
(d) Where the claim of a person to compensation for land acquisition is not adjudicated
upon in the land acquisition proceedings, he can sue separately the person who had
act ually received the compensation, to recover his share.15
(e) In the absence of assessment, no appeal is provided under s 139 of Rajasthan
Municipalities Act, 1959, as there was nothing on record to show that there was an
assessment of tax against the company or that there was a notice of demand made
under s 149 for payment of octroi duty, remedy is not provided under s 149 of the
said Act to oust the jurisdiction of the civil court as barred by necessary
implication.16
(f) Under s 443 of the Calcutta Corporation Act, 1951, the Corporation is entitled to
issue licences against the payment of fees to theatres, circuses, cinema houses,
dancing halls and other similar places of public resort, recreation or amusement, but
not to other establishments. A restaurant which provides items of amusement
occasionally or incidentally in its main business to its customers, is not a place of
public resort, recreation or amusement similar to a theatre, etc, which form a class
by themselves and it does not fall within the mischief of s 443. The mere fact that a
person had applied and obtained a licence earlier, will not confer jurisdiction on the
authority concerned, to require a licence.17
(g) Where, there was a dispute as to nature of land and board of revenue held it to be
grove in appeal, the possession of the land was given to the claimant which affected
rights of the village people, subsequent suit for declaration of title, permanent
injunction and possession by villagers in representative capacity, by alleging that the
land was grazing land and not grove, was found maintainable, since, it was the only
remedy available to the villagers and not barred by s 257 of the Madhya Pradesh
Land Revenue Code (20 of 1959).18
(h) Right to pre-emption under s 22 (2) of the Hindu Succession Act, 1956 can be enforced
by filing an application and not by a regular suit. The Court before whom the
application lies is the one within whose territorial limits the immovable property is
situated or business is carried on. However, if the transfer has already taken place,
the purchaser acquires joint right in the property subject to the right of pre-emption
of other Class-I heirs. Thus, the procedure prescribed in s 22 (2) of the Act which is
meant for proposed or intended transfer would not be applicable and the pre-
emptor can enforce the right by filing a suit under s 9 of the Code.19
(i) Where under Mysore Religious and Charitable Institution Act, 1927, suit alleging
mismanagement of Trust Property is filed, the bar to jurisdiction of civil court
would not apply in view of serious allegations of fraud/forgery. Such serious
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allegations can never be inquired into in a summary manner by a Muzrai Officer in

the type of enquiry contemplated under s 17 of the Act. Therefore, provisions of s
18 are not meant to be a substitute for judicial proceedings.20
(j) When there is a dispute between parties regarding establishment of title over the
suit property on the basis of decree of pre-emption, it cannot be said that there was
any challenge to the land acquisition proeedings or to the amount of compensation
determined under the Land Acquisition Act, 1894. If the plaintiffs succeed in the suit
in proving their title over the suit property, they would be entitled to the declaration
sought for. The civil court would have jurisdiction to try and entertain suit. The
award announced by the Collector in respect of acquisition of land is conclusive as
between the persons interested and the Collector in respect of the amount of
compensation. But the jurisdiction of civil court to entertain dispute regarding the
entitlement of the said compensation is not barred.21
(k) Where a suit is filed against Bank for recovery of amount towards damages based
on unauthorised deduction of certain amount by Bank from the account of the
plaintiff, it was held by the Madras High Court that the suit is not barred by the
Recovery of Debt Due to Banks and Financial Institutions Act, 1993. In the instant
case the suit was not only against Bank but also against third party on whose
complaint the deduction was made by the Bank. Moreover, the claim in the suit was
not a counter-claim against the Bank and the cause of act ion alleged against the
third party could not be decided by the Debt Recovery Tribunal.22

42. Decision of Tribunals on question of jurisdiction. When a tribunal has jurisdiction,

under a statute, to decide a dispute, if and when certain facts exist, its decision can be
attacked in civil courts on the ground that those facts do not exist, the fact that the tribunal
has held that they exist would not alter the position, because no tribunal with limited
authority can, by its erroneous decision, usurp jurisdiction which it does not possess;23 but,
when the statute has, in addition, conferred on the tribunal authority to decide whether
those jurisdictional facts exist, then its decision on that question is final and not open to
review by civil courts.24

43. Bar with respect to Revenue Matters. There is in general a bar to civil courts dealing
with matters affecting government revenue. It is well recognised that where a revenue
statute provides for a person aggrieved by an assessment thereunder, a particular remedy to
be sought in a particular forum, in a particular way, it must be sought in that forum and in
that manner, and all other forums and modes of seeking it are excluded. Construed in the
light of this principle, it is clear that ss 84 and 86 of the Punjab Municipalities Act, 1911,
bar, by inevitable implication, the jurisdiction of the civil court where the grievance of the
party relates to an assessment or the principle of assessment under this Act ;25 but, the
jurisdiction of civil courts to try suits brought by superior holders to recover their dues
from inferior holders is not barred by s 85 of the Bombay Land Revenue Code
1879.26Section 4 (c) of the Bombay Revenue Jurisdiction Act likewise is not a bar to a suit in which
there is a claim arising out of the alleged illegality of proceedings taken for the realisation
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of land revenue.27 Language of s 56 of Andhra Pradesh (Andhra Area) Estate Abolition

and Conversion into Ryotwari Act of 1948, more specially the provisions of sub-s (1)
makes the order of settlement officer final and which can not be questioned in any court.
The jurisdiction of the civil court in this respect is ousted.28

The suit of the plaintiffs is not for the partition of the agricultural holding, but the
plaintiffs, after getting order of partition from the revenue court under s 178 of the
Madhya Pradesh Land Revenue Code 1959 and also symbolic possession of allotment of
specific area and the defendant in spite of dismissal of his suit, has not handed over the
possession and is occupying the field wrongfully and illegally without any interest,
therefore, such a suit for possession and mesne profits, based on title is under s s 250 and
257 of the Code of Civil Procedure. That is the settled view.29 Where, there was a dispute as to
nature of land and board of revenue held it to be grove, in appeal, the possession of the
land was given to the claimant which affected rights of the village people, subsequent suit
for decaration of title, permanent injunction and possession by villagers in representative
capacity, by alleging that the land was grazing land and not grove, was found maintainable
since it was the only remedy available to the villagers and not barred by s 257 of the
Madhya Pradesh Land Revenue Code (20 of 1959).30 The determination of question of
bhumi-swami rights lies within the province of the civil court except the cases falling within
the ambit of those specified under s 257 of the Madhya Pradesh Land Revenue Code (20
of 1959). For determination of any dispute in respect of cultivatory right or any other right
in respect of the land which stand excluded from the preview of s 57 (1) of the Code of Civil
Procedure, the jurisdiction of the civil court to adjudicate upon the dispute is expressly
protected under s 111 of the Code of Civil Procedure, subject to the exceptions carved out in s
257 of the Code of Civil Procedure. Moreover, although in s 111 of the Code of Civil Procedure
it is provided that the civil courts shall have jurisdiction to decide any dispute to which
state government is not a party relating to any right which is recorded in the record of
rights set by virtue of the provisions contained in O1, r 3-B of the Code of Civil Procedure
1908 as applicable for the State of Madhya Pradesh (vide Madhya Pradesh Act No 2984),
the implement of the same in any proceedings effecting the interest of the state in any
manner has been made mandatory.31 The civil court had jurisdiction to try the suit for
injunction when the title arose only incidentally. The objection to the jurisdiction of the
civil court to try the suit on the ground that revenue court had exclusive jurisdiction is not
sustainable, the suit being one for permanent injunction and the question of title arising
only incidentally.32 Some municipal Acts expressly bar suits relating to the assessment and
levy of municipal rates and taxes, but the civil courts have, nevertheless, jurisdiction to
entertain such suits if it is shown that the assessment is mala fide or perverse33 or made on a
wrong basis and ultra vires 34 or that the procedure enjoined by the Act has not been
followed.35 The Privy Council has observed that on principle it is for the civil court to
determine in the last resort the limits of the powers of a court of special jurisdiction.36 In a
suit to restrain the municipal authority from recovering the assessed sum on the ground
that the assessment was illegal and ultra vires, the Lahore High Court held that the suit was
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not cognizable by the civil courts.37 This decision, it is submitted is contrary to the
observations of the Privy Council in the case mentioned below.38

It is settled law that the exclusion of the jurisdiction of the civil court is not to be readily
inferred, but such exclusion must either be explicitly expressed or clearly implied. The
provisions of law which seeks to oust the jurisdiction of civil court need to be strictly
construed. It is true that the question of jurisdiction depends upon the allegations in the
plaint and not the merits or the result of the suit. However, in order to determine the
precise nature of act ion, the pleadings should be taken as a whole. The real point is not
the stray or loose expression which abounds inartistically drafted plaints, but the real
substance of the case gathered by confusing pleadings as a whole.39

Under the Himachal Pradesh Consolidation of Holdings Act (43 of 1995) consolidation
proceedings remain in operation till the parties are put in possession of the lands which
have fallen to their shares under the consolidation scheme. It is the duty of the authorities
under the Act to put the parties in the physical possession of the lands in accordance with
the Act and Rules. No symbolic possession has been envisaged, nor can the same be
inferred, being totally foreign to the object and implementation of the scheme for
consolidation of holdings. Therefore, the assertion of the plaintiffs that they were put in
possession of the property and immediately dispossessed by the defendants, cannot be
considered to be without any substance.40 In a matter falling within the scope of
adjudicatory function assigned to the consolidation authorities under the Uttar Pradesh
Consolidation of Holdings Act, the jurisdiction of the civil court to entertain the suit in
respect of said matters was expressly barred by s 49 of the Act.41 When the appellant and
respondent both were allottees under the consolidation scheme, the question as to who
should be in possession of any portion of land which is covered by the consolidation
scheme is a question which can be only decided by consolidation officer under s 21 (3) of
Bombay Prevention of Fragmentation and Consolidation of Holdings Act (43 of 1995)
The jurisdiction of civil courts is barred by s 36 A of the said Act.42 The bar to the
jurisdiction of the civil court is not applicable to a suit between two contenders to the title
of the land, not in any way affecting the scheme of consolidation under MP Land Revenue
Code 1959.43Section 242 of Uttar Pradesh Tenancy Act, 1939, prohibits the jurisdiction of
civil courts only in respect of the rights given and claims arising under the Tenancy Act.
The relief for declaration and the decree granted under s 59 of the Act was vitiated by
fraud and collusion. Such a relief cannot be given by a revenue court, hence, the suit
became maintainable under s 9 of Code of Civil Procedure.44

In view of the express bar under s 106 of the Maharashtra Land Revenue Code, no
directions can be given to a collector in a decree to amend the Survey Records.45 The civil
court has no jurisdiction to go into the question of conferment of proprietary rights under
tenancy law. Thus, the question whether the possession of land by a tenant as tenant at will
on payment of rent had been converted into full ownership cannot be decided by civil
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court because of the ouster of civil courts jurisdiction under s 101 of the H.P. Tenancy and
Land Reforms Act, 1974.46

The Karnataka High Court has held that the jurisdiction of civil court is not excluded
either expressly or implied by the provisions of the Karnataka Land Revenue Act, 1964 or
by the State Financial Corporation Act, 1951.47

In a case under the Mines and Minerals (Regulation and Development) Act, 1967 and U.P.
Minor Minerals (Concession) Rules 1963 there was a demand for payment of royalty. The
order of demand was not challenged and became final. Under notification issued by the
State Government arrears of are liable to be recovered as arrears of land revenue. Under
the U.P. Zamindari Abolition and Land Reforms Act, 1951, section 330 (c) civil suits in
respect of land revenue are barred. Thus, the consequential recovery of the amount of
royalty so demanded become recoverable as arrears of land revenue and civil suit in respect
of it would be barred.48

On the question, whether persons who succeeded the recorded tenants were rightly
recorded as tenants or not, the Supreme Court has held that this is a question which is
determinable by revenue authority and civil court has no jurisdiction.49

In cases where s 331 A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act
are applicable, the matter has to be decided by the assistant collector and not the civil
court.50

Where the tenure-holder in possession of land has filed suit for cancellation of the sale
deed simpliciter, with no other relief, the civil courts jurisdiction would not be barred by
invoking s 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act (1 of 1951).
Suit for cancellation of a void document will generally lie in the civil court and party
cannot be deprived of his right for getting this relief under the law except when a
declaration of title or status of a tenure-holder is necessarily involved, where relief of
cancellation of sale-deed is surplus. Thus, so far as suit for cancellation of void sale-deed is
concerned, the suit filed before the civil court is legally maintainable specifically in view of
s 31 of the Specific Relief Act, 1963, which declares that relief for cancellation of the sale-deed
can be granted by the civil court only.51

A recorded tenure holder can institute suit for cancellation of sale deed, if alleged to be
void in view of plaint allegations, in a civil court. An executant of deed or his successor
could file suit in civil court for cancellation of void document/instrument. But a third
person who is not recorded tenure holder or executant of the sale deed or his
predecessor/successor is not competent to institute suit in civil court in view of the fact
that his claim necessarily involves declaration of his right, and the remedy lies in revenue
courts only. It is left open to the plaintiff to choose whether his rights would be insulated
by seeking cancellation of sale deed in civil court or by filing a suit for declaration of his
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rights as tenure holders. In case, he chooses that due to existence of a registered sale deed
which according to the plaint allegations is valid, the hurdles come into play and rights are
impugned upon though the document is void, he is fully competent and has every
justification to institute a civil suit in a civil court seeking cancellation of document for the
relief of adjudging and declaring the document as void. It is consequent upon
declaration/cancellation of the document that the correction in the revenue records would
be effected accordingly and he would not be subjected to seeking fresh declaration of his
rights as bhumidhar in any suit under s 229 -B/209 of Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1951 and it is the civil court which would be vested with the
jurisdiction to entertain the suit. Where the plaintiff is neither executant of the instrument
nor successor and happens to be a third party, notwithstanding the fact that a deed is
cancelled on the basis of a civil court, the name of the plaintiff cannot be entered in the
revenue record unless the plaintiff files a suit for declaration of his bhumidhari rights on the
basis of so-called sale deed executed by the bhumidhar and this necessarily entails
declaration of rights by the revenue court and plaintiff cannot claim any relief unless
declaration is made in his favour, of his right as bhumidhar. Before entering into the
question of cancellation of the void document, the civil court has to adjudicate upon and
make declaration whether the sale deed in favour of the plaintiff is a valid one and this
necessarily entails declaration of the title of the plaintiff as bhumidhar. It is not simply a
denial of the title of the defendant itself on the basis of the deed but it is a declaration of
title in favour of the plaintiff. Therefore, in such a case, it is only the revenue court which
has jurisdiction to entertain the suit and the civil court has no jurisdiction.52

Declaration and adjudication of rights of tenure holders in respect of land lying in an area
for which a notification has been issued under s 4 (2) of the Uttar Pradesh Consolidation
of Holdings Act, 1954, and adjudication of any other right arising out of consolidation
proceedings and in regard to which a proceeding could or ought to have been taken under
the Act, must be done in accordance with the provision of the Act only. In the instant
case, the son was claiming an interest in the land lying in the area covered by a notification
issued under s 4 (2). The claim was made on the basis that he was the son of C, brother of
N, and the lands were recorded in the name of N in a representative capacity on behalf of
himself and his other brother. The claim was disputed by the appellants and other
members of the family. This claim had to be adjudicated by the authorities constituted
under the Act, since it was a matter falling within the scope of the adjudicatory functions
assigned to the consolidation authorities under the Act. Jurisdiction of the civil court to
entertain the suit was barred.53 When the panchayat does not dispute the title, it will not be
open for the respondent to say that the jurisdiction of the civil court is barred in view of s
13 of Punjab Village Common Lands (Regulation) Act.54

Civil courts jurisdiction would not be barred in the following cases:

(i) where the order under r 18 of the settlement rules is patently illegal or without
jurisdiction;
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(ii) where the remedy provided by the regulation to adjudge the objection raised, is not
sufficient;
(iii) where complicated questions relating to title are involved; or
(iv) where the plaintiff seeks declaration of his title over the land from which he is
sought to be evicted.

As to points (iii) and (iv) above, the assertion of title must be genuine and must not be a
mere pretext. A bona fide claim of having title and not having only a husk of title should be
made.55 Kerala Land Reforms Act (1 of 1964) ss 31 and 32 bar the jurisdiction of the civil
court. Application was filed by the tenant under s 31 of the Act before the tribunal, for
fixation of fair rent. Suit for his eviction from disputed holding is barred by s 32, during
the pendency of the application. When such an application is pending, suit by the landlord
for his eviction is not maintainable.56

It can be safely said that the legal position is well settled that civil court has the jurisdiction
to agitate upon the matter relating to title over the property. It is correct that if any claim is
made as regards perfect partition, no civil court shall exercise its jurisdiction as envisaged
under s 154 (1)(d) of the Assam Land and Revenue Regulations Act (1 of 1886). Section
154 of the Regulation provides that except where otherwise expressly provided in this
Regulation or in Rule framed thereunder, no civil court shall exercise the jurisdiction in any
matter mentioned in the various clauses under the section including cl (d) which relates to
claim of person to perfect partition. Revenue court has been vested with the power to
effect the partition whether perfect or imperfect, of the revenue paying properties. But at
the same time, jurisdiction of the civil court to determine the right of the parties to the
properties in dispute as well as the shares of which they are entitled to has not been taken
away by the Regulation. In the instant case though the matter was earlier agitated before
the revenue court for effecting perfect partition, the petitioners, having failed to get
adequate relief, approached the civil court by filing suit in question for declaration of right,
title and interest over the suit land. In such premises I do not find any reason how this s
154 can debar the petitioners claiming to the title of the land in question from approaching
the civil court. Section 62 also clearly vests a right upon the person to prefer a suit to the
civil court for declaration of his right to any property. Therefore, the civil court is the
absolute authority to adjudicate a dispute relating to the title and interest over the
immovable property.57

Under Orissa Land Reforms Act (43 of 1995) ss 15 and 67, suit for declaration of Sikmi
tenancy falls within jurisdiction of revenue court. Jurisdiction of the civil court to decide
the dispute is barred under s 67. Where one party to the dispute claims to be a tenant
under the other party and there is a dispute of such relationship, either on account of
factual position or on account of legal position, such dispute is to be decided by the
revenue officer having exclusive jurisdiction. Jurisdiction of the civil court to try and
decide such a matter is barred.58 A suit for declaration of the title by the land owner, in
case where the name of the land owner was deleted and the state had incorporated his own
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name in the rent abatement proceedings, the civil court shall have the jurisdiction to decide
such questions.59

When only a part of the relief claimed can be granted by a tenancy court, the civil court has
jurisdiction to entertain the suit for the rest of the relief. Hence, where the tenancy court
cannot grant relief for damages and can grant only a relief of eviction, the civil court has
jurisdiction to entertain the suit for damages.60 The order passed by the authority under
Himachal Pradesh Land Revenue Act (6 of 1954) can be challenged before civil court.61

In the light of s 63 of the Karnataka Land Revenue Act (43 of 1995) and s 9 of the Code of
Civil Procedure, the civil courts jurisdiction under s 63 of the Karnataka Land Revenue Act,
1964 is expressly barred in respect of the proceedings against the state government on
account of any act or omission of the state government or any revenue officer. Unless the
plaintiff first proves that prior to the institution of the suit he exhausted the remedy of
appeal as provided in law for the time being in force, within the period of limitation
prescribed in the statute, it is not possible in law for the plaintiff to institute the original
suit challenging the orders referred to above passed by the second defendant. Against the
orders dated 10 February1993 and 16 May1995 of the second defendant, the plaintiff had a
right of statutory appeal to the Karnataka Appellate Tribunal under s 49 (c) of the
Karnataka Land Revenue Act, 1964. Undisputedly, the statutory appeal was not presented
by the plaintiff before the Karnataka Appellate Tribunal within the period prescribed
under the provisions of s 51 of the Karnataka Land Revenue Act, 1964 against those
orders. The plaintiff had the right to urge all the grounds in the appeal, including the
ground that the second defendant passed by the orders dated 10 February1993 and 16
May1995 against the plaintiff without complying with the mandatory provisions of the Act
or rules and in compliance with the principles of natural justice in respect of the land in
question. In view of the clear bar under s 63 of Karnataka Land Revenue Act, 1964 suit
filed by the plaintiff was not maintainable. It follows that s 9, of the Code of Civil Procedure
will not come to the rescue of the plaintiff.62

In a Gujarat case, a government servant filed a suit challenging his dismissal from service,
on the plea that finding of the disciplinary authority was based on no evidence. It was held
that civil court had jurisdiction to go into the evidence and ascertain whether the decision
of disciplinary authority was based on no evidence and if so, to quash order of dismissal.63

The Telegraph Act (43 of 1995) s 7 B, creates a bar regarding civil courts jurisdiction to
modify, remit and set aside an award or make it a rule of court. Civil court still has
jurisdiction to refer the dispute between the parties to the Central Government, for the
appointment of an arbitrator. Section 7B does not, in any manner, oust that jurisdiction of
the civil court.64

Where plaintiff sues on the basis of trespass, civil courts have jurisdiction and revenue
courts do not have jurisdiction.65 The scheme of the Land Acquisition Act, is complete in
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itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising
under the Land Acquisition Act, by necessary implication stood barred. The civil court
thereby is devoid of jurisdiction to give declarations on the invalidity of the procedure
contemplated under the Land Acquisition Act.66 Under the AP Inam Abolition and
Conversion into Ryotwari Act, after the Act has come into the force, the jurisdiction of
civil court to declare title to the Inam Land, by necessary implication stood excluded.67

44. Title Watan Land. When the matter pertaining to title to watan lands was pending
before competent authority under Bombay Paragana and Kulkaroni Watans Abolition Act
(43 of 1995) which has exclusive jurisdiction to deal with the matter, the civil court has no
jurisdiction to decide title to such land.68

However, in a case relating to the Bombay Hereditary Offices Act, 1874 and Bombay
Inferior Village Watan Abolition Act, 1959, the Supreme Court held that claim for
hereditary interest or rights in respect of Watan property based on adoption cannot be
decided by Collector and the jurisdiction of civil court is not excluded. Therefore a suit for
declaration before civil court is maintainable, as the question of adoption involves issues
regarding the legal status and character of a person which can be decided only by civil
court.69 H.L. Duttu, J., speaking for the Bench in the above case observed as follows:

As regards whether there is valid adoption or not, that question pertains to the status and legal character of an individual, which falls
within the purview of Section 34 of the Specific Relief Act, 1963, and a suit for declaration before a civil court is maintainable. Therefore, the
question whether a particular person has been given in adoption or not is different from whether a person has hereditary interest or
rights in respect of a Watan property. If this distinction is drawn, there is no exclusion of civil courts jurisdiction under the Act. When a
person claims on the basis of adoption, such an adoption cannot be decided by the Collector as the same involves legal status/character
of a person which can only be decided by the civil court.70

45. Trust Matters. The question whether the suit filed by the appellants is barred by the
provisions of s 80 of the Bombay Public Trust Act (43 of 1995) has to be examined in the
light of the relevant provisions. Section 9 of Code of Civil Procedure clearly lays down that the
civil court shall have jurisdiction to try all suits of a civil nature except suits of which their
cognizance is either expressly or impliedly barred. It is well settled that the civil court has
jurisdiction to try all suits of civil nature and the exclusion of jurisdiction of the civil court
is not to be rightly inferred. Such exclusion must be either explicitly expressed or clearly
implied. In Musamia Imam Haider Bax Razvi v. Rabri Govindbhai Ratrabhai ,71 Supreme Court
observed that it is necessary to bear in mind the important principle of construction which
is that if a statute purports to exclude the ordinary jurisdiction of a civil court it must do so
either by express terms or by the use of such terms as would necessarily lead to the
inference of such exclusion. This principle was reiterated in Dewaji v. Ganpatlal.72

While dealing with a case relating to the bar to the maintainability of suits by section 93 of
the Madras Hindu Religious and Charitable Endowments Act, 1951, the Supreme Court held
that section 93 is not a bar to the maintainability of civil suit. The section only imposes a
restriction on suits, or other legal proceedings in respect of matters for which a provision
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has been made in the Act.73 Subba Rao, C.J., speaking for the Division Bench observed as
follows:

Under s 9 of the Code of Civil Procedure, the courts shall have jurisdiction to try all suits of a civil nature expecting suits of which their
cognizance is either expressly or impliedly barred. It is a well settled principle that a party seeking to oust the jurisdiction of an ordinary
civil court shall establish the right to do so. Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil
court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act ; that is to
say a suit or other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way. It therefore,
imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein. Now, what are those
matters? They are: (1) administration or management of religious institutions; and (2) any other matter or dispute for determining or
deciding which provision, is made in the Act. The clause determining or deciding which a provision is made in this Act, on a reasonable
construction, cannot be made to qualify the administration or management but must be confined only to any other matter or dispute.
Even so, the expression administration or management cannot be construed widely so as to take in any matter however remotedly
connected with the administration or management. The limitation on the said words is found in the phrase except under and in
conformity with the provisions of this Act. To state it differently, the said phrase does not impose a total bar on a suit in a civil court
but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision is made in the Act. Any
other construction would lead to an incongruity, namely, there will be a vacuum in many areas not covered by the Act and the general
remedies would be displaced without replacing them by new remedies.74

A three-Judge Bench of the Supreme Court while considering section 40 of the Mysore
Religious and Charitable Institutions Act, 1927 which barred institution of civil suits in
matters relating to religious trusts, held that bar to jurisdiction of civil court does not apply
where serious allegations of fraud/forgery are made in the management of the Trust.75
S.N. Variava, J., speaking for the Bench in the above case, observed as follows:

An enquiry contemplated under Section 17 is a summary enquiry of the type held under the various Land Revenue Code s. That it
would be a summary enquiry is clear from section 17 of the Mysore Act. Such summary enquiries do not bar jurisdictions of civil
courts. Even otherwise, we are unable to accept the submission that section 18(5) allows the Muzrai Officer to deal with cases where
serious allegations of fraud and/or forgery are made. Section 18(5) merely enables the Muzrai Officer to pass ancillary or necessary
orders in respect of matters covered by sub-sections (1) to (4) of the Section. The enquiry has to be in respect of matters laid down in
sub-sections (1) to (4) of section 18. Further an order under section 18 can only be passed by the Muzrai Officer with previous sanction
of the Government. This also shows that these provisions are not meant to be a substitute for judicial proceedings.76

In a case relating to the Hindu Religious and Charitable Endowments Act, 1959, where the
worshippers filed a suit in representative capacity claiming that suit property belonged to
temple and sought permanent injunction, the Madras High Court held that sale in favour
of the defendant without the permission of the Commissioner was sham and nominal and
the suit filed by worshippers was maintainable.77

Section 73 of the Rajasthan Public Trusts Act, 1959 bar jurisdiction of civil court. But
where in a litigation the question was whether it was public trust or private trust and it was
held to be a private trust and the decision became final, there was no question of applying
the Rajasthan Public Trusts Act. It was held that inter se disputes could only be decided by
civil suits filed under s 9 of the Code.78

The allegations made in the plaint show that the only right claimed by the appellants is that
of being ancestral pujaris of the temple. The appellants do not claim themselves to be the
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trustees of any trust as defined under s 2 (18) of the Charitable and Religious Trusts Act, 1920.
No declaration regarding the existence or otherwise of a trust or that any particular
property is the property of such trust which comes within the purview of the Deputy or
Assistant Charity Commissioner under s 79 of the Charitable and Religious Trusts Act,
1920 has been claimed. The only relief claimed is a declaration regarding the right of the
appellants to function as hereditary pujaris or their pujariki rights of performing puja in the
temple and a consequential decree for injunction for restraining the respondents from
interfering with the aforesaid rights of the appellants. The reliefs so claimed do not at all
come within the ambit of s 19 or s 79 of the Charitable and Religious Trusts Act, 1920 on
which the deputy or assistant charity commissioner has the jurisdiction to hold an inquiry
and give a decision. Therefore, the bar of s 80 of the Act which by the express language
used is confined to any question which is by or under this Act be decided or dealt with by
any officer or authority under this Act and in respect of which the decision or order of
such officer or authority has been made final and conclusive would not apply.79

46. Suits between landlords and tenants. A suit for eviction or possession under the
general law can be filed only in a civil court. If such suit is in respect of open land the suit
for possession will always lie in the civil court. If the suit is in respect of accommodation,
viz, building where no relationship of landlord and tenant is alleged, the suit will lie in the
civil court. If some unauthorised person committed trespass in the building owned by the
plaintiff he can file suit for possession against such trespassers in the civil court. If,
however, relationship of landlord and tenant between the parties is admitted and the
disputed property is building and the relief sought is possession by eviction of the tenant
and for recovery of rent such suit will be triable by the rent court.80

In relation to a case under the W.B. Premises Tenancy Act, 1997, it has been held by the
Calcutta High Court that an application for repair of suit premises would not come under
the bar imposed by Section 44 of the Act. Such an application, being in the nature of an
interlocutory proceeding, would not come within the ambit of proceedings as defined in s
44. As such, civil court is competent to decide the application in accordance with law.81

The question has often come up before the courts as to ouster of their jurisdiction in
disputes between landlords and tenants when special courts are constituted for settling
them. It has been held in accordance with the principles stated above that courts would
have jurisdiction to interfere with the decisions of the tribunals only if they had act ed in
excess of the jurisdiction conferred by the statute or in contravention of the rules of
natural justice. Thus, where a decision of the tribunal under the Orissa Tenants Protection
Act, 1948, was assailed on the ground that the parties did not stand in the relationship of
landlord and tenant, it was held that as the Act postulated such a relationship as the
foundation for the exclusive jurisdiction of the tribunal, its decision was open to review by
the civil court;82 but, when the legislature made the decision of the tribunal on that
question final, the correctness of that decision could not be questioned in the civil courts.83
Though it is true serious question of title cannot be decided by the revenue court and
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where basic relationships of landlord and tenant has been challenged, the same ought to be
decided by the civil court; but where a person has accepted the other parties as landlord by
attornment and does not claim title and in himself, such question may be decided by the
authority as they do not involve serious question of title.84 Since no jural relationship of
landlord and tenant existed between the respondent and the appellant, mamlatdar was not
competent to decide the dispute and civil court alone had jurisdiction to decide the
matter.85 When concurrent findings by the courts of fact were that the respondent was the
owner of the premises and the appellants were in unauthorised occupants thereof, in such
circumstances only civil court and no other court will have the jurisdiction to order
eviction.86

The tenancy of a shop presupposes a property in existence and there cannot be subsisting
tenancy where the property is not in existence. When the tenanted shop has been
completely destroyed by fire the tenancy right stands extinguished as the demise must have
a subject matter and if the same is no longer in existence, there is an end of the tenancy.
Section 108 (B)(e) of the Transfer of Property Act, 1882 has no application in case of premises
governed by the State Rent Act. Therefore, when the tenanted premises is completely
destroyed by natural calamities, tenant cannot resist dispossession on strength of s 108
(B)(e) of Transfer of Property Act, 1882.87

Since the words parts of building used in definition of word building under state rent Act
do not refer to land on which building is constructed, but refers to any other super
structure, which is part of that main building and tenancy of the shop, which was let out,
was a superstructure and what is protected by the Act is occupation of tenant in super
structure, the tenancy no longer continues under State Rent Act. The subject matter of
tenancy having been completely destroyed, the tenant can no longer use the said shop and
in fact he has ceased to occupy the said shop. Section 11 of the state rent Act does not
provide for eviction of the tenant on the ground of destruction of the building or the super
structure. Thus, when there is no super structure in existence the landlord cannot claim
recovery of possession of vacant site under the state rent Act. The Act is not intended to
govern vacant land. The only remedy available to him is to file a suit in a civil court for
recovery of possession of land. In view of the matter, the civil court was competent to
entertain and try the suit filed by the respondent landlord.88

A land lady filed a suit for eviction on different grounds including bona fide requirement for
personal use. The averments in the plaint did not show that the suit was filed in the
capacity of specified landlord under the M.P. Accommodation Control Act, 1961. It was
held by the Supreme Court that the jurisdiction of civil court does not stand excluded,
more so when the title of the land lady was disputed.89 Explaining the definition of
specified landlord as contained in s 23 -J of the Act, S.B. Sinha, J., speaking for the Bench
in the above case, observed as follows:

16. Chapter III-A provides for special provisions. It is confined to eviction of tenants on grounds of bona fide requirement of different
classes of landlord specified therein. A summary procedure is provided for. Recourse thereto can be taken only by the specified
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landlord within the meaning of the provision of Section 23 -J of the Act which means a landlord who is a widow or divorced wife
amongst others. Amongst others a servant of any Government including a member of defence services, would also fall within the
purviews of the said definition. Only a landlord who comes within the purview of the said definition is entitled to file suit on the
ground of his or her bona fide requirement.90

On the question of jurisdiction of civil court, the judgment went on to state as follows:

36. The definition of specified landlord as contained in section 23 -J of the Act is not as broad as the definition of the same term as
contained in Section 2 (b) thereof. A statute must be read, keeping in view the Constitutional scheme of equality as adumbrated in
Article 14 of the Constitution of India. Once a special benefit has been conferred on a special category of landlord, the same must receive
strict construction. Even otherwise, it is well settled, that an exclusion provision must be construed strictly. A statute ousting the
jurisdiction of civil court should also be strictly construed.91

A perusal of s 108 (B)(e) of the Transfer of Property Act, 1882 shows that where a premise has
fallen down under the circumstances mentioned therein, the destruction of the shop itself
does not amount to determination of tenancy under s 111 of the Transfer of Property Act,
1882. In other words there is no automatic determination of tenancy and it continues to
exist. If the tenancy continues, the tenant can only squat on the vacant land but cannot use
the shop for carrying on business as it is destroyed and further he cannot construct any
shop on the vacant land. Under such circumstances it is the tenant who is to suffer as he is
unable to enjoy the fruits of the tenancy but he is saddled with the liability to pay monthly
rent to the landlord. It is for such a situation that the tenant has been given an option
under s 108 (B)(e) of the Transfer of Property Act, 1882 to render the lease of the premises as
void and avoid the liability to pay monthly rent to the landlord. Section 108 (B)(e) cannot
be interpreted to mean that the tenant is entitled to squat on the open land in the hope that
in future if any shop is constructed on the site, where the old shop existed he would have
right to occupy the newly constructed premises on the strength of original contract of
tenancy.92

One co-owner inducted a tenant without the consent of other co-owners. The tenant ran a
workshop without licence from the municipal corporation (as was then required under the
law). It was held that a co-owner can sue for a declaration that the tenant had no right to
run the workshop and for permanent injunction.93 The suit for ejectment and recovery of
possession from legal heirs of deceased statutory tenant who continued to be in possession
of premises beyond the period of one year from the date of death of the deceased tenant
and thereby lost protection available to them in Delhi Rent Control Act (59 of 1958) and
became unauthorised occupants, is maintainable before the civil court and not barred
under s 111 of Transfer of Property Act (4 of 1882).94

A dispute regarding identification of boundaries between two adjacent land owners is a

dispute of a civil nature, which can be entertained by a civil court.95 Where an occupancy
tenant has challenged the validity of the sale deed by way of which the land occupied by
him was sold by a third person and the sale deed clearly showed that it was a
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small piece of land surrounded by the houses of different people and has been sold for
construction of a house and the land in question was not established as an agrarian land,
the jurisdiction of the civil court would not be barred.1 On a proper construction of Tamil
Nadu Rent Control Act, the question on which the jurisdiction of civil court is excluded is
only the determination as to the fair rent of the premises. It will not be open to the civil
court to re-determine the rent payable by the tenant to the landlord because that is a
matter squarely and exclusively within the jurisdiction of the rent controller and, therefore,
impliedly excluded from the purview of the civil court; but, his decision is not final on the
issue that opens up his jurisdiction and cannot preclude an owner from contending in a
civil court, that he should not be asked to pay rent for his own property to someone else.2

An analysis of s 91 read with s 93 Madhya Bharat Land Revenue and Tenancy Act (43 of
1995) shows that the recourse to a civil court is not available to a pakka tenant who has
been dispossessed unless he exhausts the remedy under s 91 of the Act. In this connection
the use of the expression in s 93 of the Act that no order passed under ss 91 and 92 shall
preclude any person from establishing such rights shows that a pakka tenant who has been
dispossessed and claims recovery of possession is first required to take recourse to the
remedy available under s 91 of the Act.3

The civil court cannot pass a decree for possession against a tenant, from the premises to
which provisions of the Rent Control Act apply. Mere disclaimer of owners title does not
result in automatic termination of tenancy and hence decree cannot be passed against such
a tenant also.4Section 13 of Haryana Urban (Control of Rent and Eviction ) Act 1973,
gives the rights to the landlord to seek eviction of the tenant for default in the payment of
rent, it provides that the remedy and the forum and the decree of ejectment passed by the
controller or the appellant authority or the revisional authority or conformation either in
appeal or revision is final under the Act. Thereby, by necessary implication the jurisdiction
of the civil court under s 9 is excluded.5

In a Madras case, the defendants agreed to pay a monthly rent of Rs 50. The plaintiff issued
one months notice, terminating the tenancy which was from month to month with
reference to the Tamil month. The original lease of the entire property could not be
sustained, by reason of the purchase by the defendants of the three-fourth share belonging
to the three brothers of the plaintiff. Therefore, the plaintiff filed a suit praying for a
decree: (i) for partition and separate possession of one-fourth of the share of the property
after removing the superstructure and machinery; and (ii) for passing a decree for eviction
of the defendants from plaintiffs one-fourth share of the property and for costs. It was
held that the suit as framed was maintainable and both the reliefs, namely, partition and
separate possession and eviction, could be prayed for in the same suit. The plaintiff could
not file a suit for eviction of the defendants from the entirety of the property, as the
plaintiff was entitled to one-fourth share only. The only way the plaintiff could get
possession of his one-fourth share in the property was to file a suit and combine, in one
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suit, the prayers relating to eviction as also for partition and separate possession. That was
what he had done in this case and he was entitled to the reliefs prayed for.6

An amendment to the Bombay Tenancy and Agricultural Lands Act, 1948, became
applicable to the suit and the defendants status as a protected tenant got revived by the
time civil court was seized of the matter. Consequently, the civil court ceased to have the
jurisdiction over the matter.7 The civil court has no jurisdiction to determine whether the
person who succeeded the recorded tenant rightly is recorded as tenants. This
determination can only be made by the revenue authorities.8 A relief for act ual possession
under Bombay Tenancy Act, 1939, from the defendants who claimed to be the protected
tenants could be granted only by the revenue court and not by the civil court.9 It was after
amendment to the Goa, Daman and Diu Agricultural Tenancy Act, 1964, in 1975, that the
civil court lost jurisdiction to try the issue of tenancy relating to suit plots which are bagayat
(garden) lands, as well as the question of nature of land. Therefore, civil court is precluded
from deciding even incidentally, questions falling within the ambit of s 7 of the said Act,
and, as such, it is necessary that the issue of tenancy raised by the respondent be referred
to the mamlatdar for decision.10

The sole question that possessed itself for consideration before the Honble Supreme Court
in Parvati v. Fatehsinhrao Pratapsinhrao Gaekwad 11 was whether the issuance of notification
under sub-s (1)(6) of s 88 of Act 30 of 1956, on 21 May 1958, making the provisions of the
Bombay Tenancy and Agricultural Land Act, 1948, inapplicable to the lands reserved for
non-agricultural or industrial development of the municipal limit of the city of Baroda,
retrospectively. It was held, that if the Act does not at all apply then the determination of
the rent of the suit land was made by the mamlatdar under the provisions of ss 8 and 9 of
the Bombay Tenancy and Agricultural Land Act, will be of no avail and the civil court will
be competent to determine the rent payable by the tenant in respect of this land.12 The
Mamlatdar is a tribunal of limited jurisdiction and the Bombay Tenancy and Agricultural
Land Act itself contemplates that a negative declaration can be given by the Mamlatdar in
an application under s 4. This would contemplate that the legislature expressly conferred
power on the Mamlatdar to grant a negative declaration in limited cases. If s 7 of the Goa,
Daman and Diu Agricultural Tenancy Act (7 of 1964) was all embracing and the
Mamlatdar could decide the issue of both positive and negative declarations, there would
be no need to provide for negative declaration under s 4. No part of the Act or, for that
matter language of a statute, can be said to be otiose. That is a cardinal principle of
interpretation. It is the duty, of the court, to give effect to the intent of the legislature.
Once the legislature has expressly provided for grant of negative declaration in limited
cases, it would contemplate ouster of jurisdiction in matter other than s 4. This would also
be a harmonious construction as the jurisdiction of the civil court would not be ousted and
there would be no conflicting judgments. The language of the Tenancy Act, therefore,
contemplates that no negative declaration can be granted by the mamlatdar. Of course when
the issue arises before the mamlatdar he can always decide whether the person who claims
the right has so proved or not. This is the jurisdiction inherent in deciding an issue. That
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does not mean that because the mamlatdar could decide the issue either on a reference by a
civil court or on application before him, he can assume jurisdiction not vested in him.13

47. Civil courts jurisdiction barred by Rent Actcounter claim if maintainable. It is

now well-settled that a decree passed by a court having no jurisdiction is a nullity. The civil
court had no jurisdiction to pass a decree for eviction only on the basis that the tenant has
denied their title. The matter might have been different if the civil court has otherwise
jurisdiction to entertain a suit. The legislature has created new rights and liabilities for both
the landlord and tenant in terms of the provisions of the said Act and provided a forum
therefor. The jurisdiction of the civil court having been barred except in a situation where
the proviso appended to sub-s (1) of s 10 would be attracted, the civil court has no
jurisdiction to entertain a suit for eviction on a ground envisaged under s 10 (2)(vi) of the
Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The civil court,
thus, had no jurisdiction to entertain the counter-claim.14

In suit for injunction filed by the appellant tenant against landlord, the landlord filed a
counter-claim under O 7, r 6 of the Code of Civil Procedure claiming eviction of appellants,
inter alia, under cl(e) of s 12 (1) of the Madhya Pradesh Accommodation Control Act (43
of 1995) In view of ch 3-A and s 23 -A, which were inserted in the Act in 1983, was later
amended and confined to specified landlord defined in s 23 -J thereunder, the civil court
has jurisdiction to entertain counter claim with regard to eviction of tenant on ground of
bona fide need for occupation as residence and decree for eviction passed by civil court is
not vitiated for want of jurisdiction.15

48. Ownership Certificate issued by Rent Tribunalcivil courts decree not

executable. A civil court does not have jurisdiction to decide matters which are required
to be dealt with by the tribunal under the said Bombay Tenancy and Agricultural Lands
Act (43 of 1995) Thus, it is only the tribunal which can decide whether a person is deemed
to be a tenant and whether he is entitled to purchase the land held by him. The civil court
has no jurisdiction to decide such a question. Even if such a question was to be raised in a
proceeding before it, the civil court would have to refer the issue to the authority under the
said Act. The suit would then have to be disposed of in accordance with the decision of
the authority. Thus, if the tribunal fixes a purchase price, and issues a certificate, then that
certificate would be conclusive proof of purchase. The civil court would then be bound to
give effect to the certificate and cannot ignore it. In passing the decree and holding the
appellant to be trespasser the civil court has not considered the provisions of the said Act.
The conclusion that the appellant is a trespasser is de hors rights of the appellant under the
said Act. The appellant had already made an application under s 32 -O before the suit was
filed by the respondents. Respondents were aware that the appellant had made such an
application. The appellant was pursuing her remedy under the said Act before the
appropriate authority. Respondents were also parties to those proceedings and were
contesting those proceedings. These are not questions which could be raised before a civil
court. Therefore rightly neither respondents nor the appellant took up this question before
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the civil court. Even if the question had been raised the civil court could not have decided
it. The civil court would have had to refer the issues to the appropriate authority and then
abide by its decision. A decree passed without the consideration of the provisions of the
said Act must be subject to orders of the appropriate authority in proceedings under the
said Act.16

Thus, so long as the certificate stands, the decree cannot be executed against the appellant.
It is only if respondents succeed in getting the certificate set aside, in their pending
revision, that they can execute the decree.17

49. Suits impliedly barred. Besides suits of which the cognizance is expressly barred
there are suits which are barred by general principles of law such as suits relating to acts of
state and public policy (vide notes below.) No suit will lie to recover costs incurred in a
criminal court.18 Again, a suit will not lie for damages for defamatory statements made in
the course of a judicial proceeding by a party or by a witness. The ground of this principle
is, that it concerns the public and the administration of justice that witnesses giving their
evidence on oath in a court of justice should not have before their eyes the fear of being
harassed by suits for damages but that the only penalty which they should incur if they give
evidence falsely should be an indictment for perjury.19 A suit by a military servant alleging
that his discharge from service was illegal is barred by implication.20 Suit by a legatee
claiming allotment of property during pendency of administration of estate during
pendency of administration suit as per probate Will is impliedly barred, and the plaint is
liable to be rejected.21

The Orissa Development Authorities Act, 1982 has provided for adequate efficacious
remedy for redressal of the grievance of a citizen who undertakes development/
construction over his land in the shape of appeal to the state government or to the official
designated by the state government and thereafter he can approach the High Court
invoking its certiorari jurisdiction. Similarly, the person aggrieved by an order of
demolition passed under s 91 of the Orissa Development Authorities Act, 1982, has
adequate and efficacious remedy in the shape of appeal before the state government. The
legislature in its wisdom has made the decisions under the Act conclusive and final with a
further stipulation that same shall not be questioned in any court of law and it is not for
the High Court to question that wisdom. Thus, the conclusion is irresistible that without
exhausting the remedies stipulated under the special statute, i.e., Orissa Development
Authorities Act, 1982, a person cannot knock at the doors of a civil court and that the civil
court has no jurisdiction to entertain such a suit. Therefore, the jurisdiction of the civil
courts is impliedly barred, so far as the redressal of the grievance for which adequate
provisions have been enacted under the Orissa Development Authorities Act, 1982. The
civil court has also no jurisdiction to grant interim injunctions restraining the statutory
authorities from exercising the statutory powers conferred upon them. But then the civil
courts shall have jurisdiction to examine cases where there are allegations that the
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provisions of the Act have not been complied with or the statutory authorities have not act
ed in conformity with the fundamental principles of judicial procedure.22

Where the agreement and the rules framed under the Electricity Act provides complete
remedy, no suit is maintainable under s 9 of the Code of Civil Procedure being impliedly barred.
It is true that ordinarily, the civil court has jurisdiction to go into and try the disputed
questions of civil nature, where the fundamental fairness of the procedure has been
violated. A suit seeking injunction restraining the board from proceedings in accordance
with law, cannot be maintained. Such suit is not maintainable because of its being impliedly
barred under s 9.23 The mortgage being outside the scope of the Rajasthan Tenancy Act,
1955, the view that the mortgage was excluded in pursuance to s 43 of the Act and
therefore, the residuary Entry 35 of Schedule 3 was attracted, is untenable. Thus, ss 207
and 256 of the Rajasthan Tenancy Act, 1955, conferring exclusive jurisdiction on the
revenue court is also inapplicable. The civil court has, therefore, jurisdiction to entertain
the suit filed by the bank. On the question of jurisdiction, one must always have regard to
the substance of the matter and not to the form of the suit.24 Where a statute gives a
finality to the orders of the special tribunal the civil courts jurisdiction must be held to be
excluded if there is adequate remedy to do what the civil courts would normally do in a
suit. Where, however, there is an express bar of the jurisdiction of the court, an
examination of the scheme of the particular act to find out the adequacy or the sufficiency
of the remedies provided may be relevant.25

50. Family Courts. If the main dispute is between the parties to the marriage, then in view
of s 8 of the Family Courts Act (66 of 1984), the jurisdiction of civil court is barred and the
Family Court has to try the suit.26

The Supreme Court has held that the words suit or proceeding between the parties to a
marriage contained in Explanation (c) to Section 7(1) of the Family Courts Act, 1984 cannot be
read as parties to subsisting marriage, because divorce does not take it beyond the
jurisdiction of family court.27 Sinha, J., speaking for the three-Judge Bench of the Supreme
Court in the above case, observed as follows:

The statement of Objects and Reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of the Family Court
extends, inter alia, in relation to properties of spouses or either of them which would clearly mean that the properties claimed by the
parties thereto as a spouse of other, irrespective of the claim whether property is claimed during the subsistence of a marriage or
otherwise.28

The Kerala High Court has held that the expression with respect to the property of the
parties contained in Explanation (c) to Section 7(1) of the Family Court Act, 1984 means
property of either the husband or the wife or both, but it excludes any other person who
has independent rights in the property. Thus, a suit for partition between husband and
wife where son is a party is maintainable before civil court. It was observed that the words
or of either of them following the expression with respect to the property of the parties in
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Explanation (c) to Secion 7(1) of the Act would unmistakably lead to the conclusion that
the expression refers to parties to a marriage and not parties to the proceedings.29

Where in a suit for partition an application under Section 19 of the Hindu Adoption and
Maintenance Act, 1956, it was held by the Gauhati High Court that Family Court has
exclusive jurisdiction to deal with suits or proceedings referred to in s 7 (1) of the Family
Courts Act, 1984.30

51. Chit Fund. The Chit Funds Act (40 of 1982) came into force in the State of Karnataka
wef 2 January 1984. If that is so the suit filed on the basis of the chit which commenced in
the year 1982 is not barred and is maintainable before civil court.31

52. Code of Criminal Procedure 1898. An order made by a magistrate under s 137 of the
Code of Criminal Procedure cannot be called into question in a civil court, but a suit will lie for
a declaration of exclusive ownership of land which a magistrate has declared to be a public
highway;32 but not a suit to close the road.33 No suit lies by a proclaimed person against an
auction-purchaser to recover from him property sold under s s 87 and 88 of the Code of
Criminal Procedure;34 but, a suit will lie to set aside an irregular sale under s 88,35 and a civil
court has jurisdiction to entertain a suit for the recovery from the government of the
proceeds of the sale of property attached and sold under s s 523 and 524 of the Code of
Criminal Procedure.36

Where the same issues arises for decision in the civil suit and in the criminal proceedings
between the same parties, and involve complicated questions of fact and mixed questions
of fact and law, proper forum will be the civil court. The civil suit was for the recovery of
balance sale price and, the criminal proceeding related to alleged cheating. The defence of
the purchaser was, that the goods supplied were sub-standard, entitling him to a claim for
damages. Except for a blank statement that the defendant had cheated the complainant,
the complaint did not disclose the ingredients of the offence. The criminal proceeding was
quashed.37 The same set of events may give rise at times to civil rights as well as to a
criminal offence and merely because provisions are specifically included in the Act dealing
with criminal liability, the civil liability does not disappear.38

Under the Jammu and Kashmir (Government Servants) Prevention of Corruption Act, 1962,
supply of copy of enquiry proceedings to the public servant is mandatory. Thus, where the
enquiry was held without complying with the mandatory provisions of the Act, it was held
by the Supreme Court that the order in such enquiry was without jurisdiction and the
jurisdiction of civil court in such matters is not barred.39

53. Electricity Cases. Where the agreement and the rules framed under the Electricity Act,
1989 provides complete remedy, no suit is maintainable under s 9 of the Code of Civil
Procedure being impliedly barred. It is true that ordinarily, the civil court has jurisdiction to
go into and try the disputed questions of civil nature, where the fundamental fairness of
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the procedure has been violated. A suit seeking injunction restraining the board from
proceedings in accordance with law, cannot be maintained. Such suit is not maintainable
because of its being impliedly barred under s 9.40

Where a workman employed in the Electricity Board, Tamil Nadu filed a suit for
declaration that the show cause notice issued to him was violative of the principles of
natural justice, it was held by the Madras High Court that the civil courts jurisdiction was
not barred.41

However, the matter is quite different where there is question of theft of electrical energy
and excess billing. Where the Electricity Board authorities issued notice to the consumer to
disconnect service connection for alleged theft of power, the suit for injunction filed by
the consumer without availing of the remedy provided in terms and conditions of
agreement, was held to be not maintainable.42 In another case, where the Electricity Board
had levied extra charges for alleged theft of electrical energy, it was held that although
there was no express bar for filing suit in such matters, but civil courts jurisdiction would
be impliedly barred since effective remedy of appeal is provided in the Indian Electricity Act,
1910.43

In the undernoted cases44 it has been held that civil court has no jurisdiction to entertain
suits challenging electricity theft bills where the plaintiff has not availed of the remedy
contemplated under the Electricity Act. In Punjab State Electricity Board v. Ashwani Kumar 45 the
Supreme Court has observed as follows:

Section 9 of the CPC provides that the civil court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance
is expressly or by necessary implication barred. Such suit would not be maintainable. It is true that ordinarily, the civil court has
jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated.
The statutory circulars adumbrated above do indicate that a fundamental fairness of procedure has been prescribed in the rules and is
being followed. By necessary implication, the cognizance of the civil cause has been excluded. As a consequence, the civil court shall
not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the
Indian Electricity Act and the Indian Electricity (Supply) Act and the Instructions issued by the Board in that behalf from time to time as
stated above.

Where a demand notice is issued for recovery of electricity dues and the consumer
questions the correctness of the demand, it was held that an alternative remedy is provided
in s 3 (2)(a) of the Tamil Nadu Electricity Board (Recovery of Dues) Act 1978 and as such
civil suit is not maintainable.46 Where the plaintiff was issued a show cause notice to pay a
sum of Rs. 6,255/- by the Electricity Board, Tamil Nadu, it was held that the suit for
declaration and permanent injunction filed by him was premature and not maintainable
because he neither filed appeal provided by the Rules nor gave any valid reason for not
doing so.47

However, in a case relating to damages caused due to works undertaken under Section 67 of
the Electricity Act, 2003, the Himachal Pradesh High Court held that though the Act speaks
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about the powers of the Regulatory Commission to determine payment of compensation,

there is no provision in the Act where there is a stipulation about the manner or the
method of enforcement of the Commissions order. No provision lays down that the order
of the Commission has the force of law or the force of decree of a civil court and
therefore the absence of enforceability creates a void. Hence civil courts jurisdiction is not
barred.48

Suit for mandatory injunction directing Power Corporation uninterrupted supply of energy
to plaintiff consumer, through poles erected against roadside, instead of poles passing
through forest, is maintainable before civil court.49 Where, by notification issued by
Secretary, Bihar State Electricity Board, the demand charges and guaranteed energy charges
are levied, the claim for remission of the amount on account of interrupted supply of
electricity being not a proceeding before court, the limitation period of three years under
Art. 137 of the Limitation Act, 1963, would not apply. The limitation fixed by the
notification issued by the board was found justified and limitation period fixed was found
not arbitrary.50 Under Regulation 46 of Electricity Supply Regulations (1988), the suit by
the consumer challenging such claims before civil court was not barred, more so, when s 5
of Karnataka Electricity Board (Recovery of Dues) Act (43 of 1995) does not bar suit
against the Board by consumer.51 Where, in the case of sanction for high cost electrical
energy, the demand was made by the electricity board from consumer, for quota allotted
for whole month, though, he did not consume the same, on the ground that he did not
surrender sanction, further claim for utilisation of temporary power by the consumer was
made without there being written agreement and without depositing advanced
consumption charges. On these facts it was held that such claims did not constitute
supplemental claims and the appeal against claims was not maintainable.

54. Acts of State. An act of the executive as a matter of policy performed in the course of
its relations with another state including its relation with the subjects of that state is an act
of state. Typical acts of state are making and performing of treaties, the seizure or
annexation of land or goods in right of conquest or the declaration of war or of blockade.52
The expression act of state, however, has been used in different senses and its meaning has
varied from time to time. At one time, the expression meant primarily acts done by
governmental authorities in exercise of sovereign authority as contrasted with other kinds
of acts done in the course of activities not pertaining to sovereign functions, such as
trading.53 In recent years, the expression has been defined to mean an act done by the
sovereign of one state in relation to the sovereign or subjects of another state. It is a
sovereign act which is neither grounded in law, nor does it pretend to be so. Stated in
different words, it is a catastrophic change constituting a new departure.54 The precise
import of the expression act of state has been considered by the Supreme Court in a
number of decisions.55 The result of those may thus, be summed up:
(i) An act of state is the taking over of sovereign powers by a state over a territory
which did not previously form part of it;
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(ii) such taking-over may be by conquest, treaty, cession or otherwise;

(iii) acquisition of a right to administer territories belonging to another state and to
enact legislation therefore, is also an act of state, even though those territories do
not merge in the acquiring state;
(iv) the acquisition may be by a single act or it may be a gradual process spread over a
number of years;
(v) it is not within the competence of municipal courts to go into the question of the
validity of an act of state;
(vi) no right possessed by the citizen within the acquired territory prior to its being
taken over could be enforced in the courts and it makes no difference that the
treaty between the high contracting parties under which the territory is taken over,
provides for the recognition of those rights;
(vii) where, however, those rights have been recognised by the new state after it
assumes sovereignty, they are capable of enforcement in the municipal courts,
because there is no such thing as an act of state between a sovereign and its
subjects.56

When an act of state is pleaded, the question which would arise isdid the State or its agents
purport to act catastrophically or subject to the ordinary course of law.57 If the act is of the
latter kind, it is not an act of state.58 The closure of the Air Transport Service of
Portuguese India run by the former Portuguese Administration by the military governor of
Goa after its acquisition by India through conquest was an act of state. So too, the
termination of service by him of the employees, till then engaged by it. A municipal court
has no jurisdiction to examine the propriety or the legality of such termination of service
or the closure of the concern.59

55. Political questions. Besides, cases comprised in the expression act of state there is
another class of cases termed facts of state. It consists of matters and questions, the
determination of which is solely in the hands of government. Illustrative of these are such
acts as a declaration by government as to whether a state of war exists or whether a
particular territory is hostile or whether a particular government is to be recognised as an
independent state and the like.60 These are declarations or decisions of the government on
questions having a bearing on its relations with other governments and are properly
characterised as political questions. A civil court has no jurisdiction to go into them.
Accordingly, disputes as to boundaries between two independent states cannot be the
subject of examination by the municipal courts exercising jurisdiction in either state.61
Thus, where the real object of a suit is to settle the right of succession to a throne and the
property right involved is only contingent, the court should decline jurisdiction.62

The power of a Raj Pramukh to recognise as heir a claimant to the gaddi of a deceased
jagirdar is an incident of sovereignty and is political in character and cannot form the
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subject of adjudication in court.63 The Supreme Court, however, has now held that
recognising or de-recognising a person as a Ruler as defined in Art. 366(22) of the
Constitution is not an exercise of political power which is a sovereign power. Such a power
can be exercised for an adequate reason and its exercise is amenable to scrutiny by the
court.64 It has also been held that courts in British India were entitled to determine the title
to property situated within their jurisdiction belonging to an Indian Prince though a
political question was involved in such determination.65

56. Encroachment on statutory right. Under the Maharashtra Agricultural Produce

Marketing (Regulation) Act, 1964, licence is required for working as commission agent
within the market area defined in the Act and Rules thereunder. Therefore, if a person
establishes an office as a commission agent within the market area, then the committee
constituted under the above-mentioned Act has the right to file a suit to restrain such
persons from recovering, from the cultivators, commission in excess of the rate prescribed
under the licence. Such persons are regarded as encroaching upon the statutory right of the
committee to regulate the marketing of agricultural produce in the area. The fact that a
criminal prosecution can be instituted under such Act, does not bar the jurisdiction of the
civil courts.66 Amongst the decisions relied upon for this conclusion, were those
mentioned below:
(i) Firm Kishore Chand v. Badaun Electric Supply.67
(ii) Bhudeb Mookherjee v. Kalu Chand Malik.68
(iii) Dhulabhai v. State of Madhya Pradesh.69

The well-known judgment of Willes J. in Wolverhampton New Water Works Co. v. Hawkes
Ford,70 was also considered.

57. Debt Relief. The civil court cannot decide a question arising under the Maharashtra
Debt Relief Act, 1976, because the jurisdiction of the civil court is barred by s 7 (1) and s 7
(6) of the Act. Under these provisions, if a creditor raises a question that a person who
claims to be his debtor is not a marginal farmer, rural artisan, rural labourer or worker, etc.
the matter has to be decided by the revenue officer appointed by the district magistrate,
called the authorised officer.71

However, in a case, where the plaintiff, an agriculturist, sought redemption of mortgage

without payment, availing the benefit under the T.N. Debt Relief Act (50 of 1982), it was
held by the Madras High Court that right of redemption is a common law remedy and the
statute under which Special Tribunal has been established, neither expressly nor impliedly
bars the jurisdiction of civil court. It has been observed that the Act only provides
additional body to indebted agriculturists.72 In another case, it has been held that for
obtaining relief under the T.N. Debt Relief Act (13 of 1980), the jurisdiction of the civil
court is not barred.73
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From the provisions of the Tamil Nadu Debt Relief Act (13 of 1980) the legislative
scheme is clear that the scheme is not to allow interference by any court with
determination of the question of eligibility to receive benefit under the Act by the
applicant-debtor by the tahsildar and his order is made final subject to an appeal under s 8.
The legislative intent is to vest the jurisdiction to determine the question relating to
eligibility for the benefits under the Act in the statutory authorities, to the exclusion of the
court so that a debtor who is entitled to the benefits under the Act is able to enjoy such
benefit without a hassle of a protracted litigation in a civil court or revenue court. The view
taken by the High Court that if a civil suit for realisation of the amount or any other relief
based on the debt in question has been filed or on the filing of such a suit the tahsildar
would lose his jurisdiction to deal with the matter if accepted will defeat the very purpose
for which the legislature enacted the statute, that is, to grant relief to a certain class of
debtors. If the view taken by the High Court is accepted then it would be easy for a
creditor to prevent the debtor from getting benefits granted under the Act by filing civil
suit relating to the debt. On the other hand in s 4 (b) a declaration is made that any civil
court which entertain any suit or other proceeding against the debtor for recovery of any
amount of such debt (including interest, if any); all suits and other proceedings (including
appeals, revisions, attachments or execution proceedings) pending at the commencement
of the Tamil Nadu Debt Relief Act, 1980 against any debtor for the recovery of any such
debt, (including interest, if any) shall abate.74 The further question that arises for
consideration is what is the appropriate course to be followed in a suit which was filed by
the creditor against the debtor before the debtor made the application to the tahsildar
seeking relief under the Tamil Nadu Debt Relief Act, 1980, should it be dismissed
immediately on filing or should it be suspended/stayed till the tahsildar disposes of the
application filed by the debtor. In such a case the proper and reasonable course to be
followed is to stay the proceeding in the suit till the tahsildar/appellate authority disposes of
the proceeding under the statute. If it is held in that proceeding that the debtor is not
entitled to the benefit under the Act then the civil suit may be proceeded with, if on the
other hand it is held that the debtor is entitled to the benefits provided in the Tamil Nadu
Debt Relief Act, 1980 then the suit has to be dismissed under s 4. In no case can it be held
that by filing a civil suit for realisation of the mortgage amount the proceeding pending
before the tahsildar or the appellate authority is to be dismissed without adjudication.75 A
full reading of s 34 of Securitisation and Reconstruction of Financial Assets and
Enforcement of Securityinterest Act (54 of 2002) shows that the jurisdiction of the civil
court is barred in respect of matters which a debt recovery tribunal or appellate tribunal is
empowered to determine in respect of any action taken or to be taken in pursuance of any
power conferred under this Act. That is to say prohibition covers even matters which can
be taken cognizance of by the debt recovery tribunal though no measure in that direction
has so far been taken under sub-s (4) of s 13. It is further to be noted that the bar of
jurisdiction is in respect of a proceeding which matter may be taken to the tribunal.
Therefore, any matter in respect of which an action may be taken even later, the civil court
shall have no jurisdiction to entertain any proceeding thereof. The bar of civil court thus
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applies to all such matters which may be taken cognizance of by the Debt Recovery
Tribunal, apart from those matters in which measures have already been taken under sub-s
(4) of s 13. Therefore it is incorrect to say that before any action or measure is taken under
sub-s (4) of s 13 there would be no bar to approach the civil court.76

On the factual score, a civil suit stands filed and thereafter the claim was preferred before
the Commissioner of Payments in terms of the Sick Textiles Undertaking (Nationalisation)
Act (43 of 1995) The right of a claimant to proceed before the commissioner and to file a
suit to recover the amount due to him cannot, on a perusal of the statute, be taken away,
though the claimant would not be entitled to recover any amount at both the ends. The
amount paid by the commissioner would stand reduced to the extent of payment by the
commissioner. The filing of the civil suit, thus, is not barred. Once the claim stands paid,
though partially, question of proceeding with the suit would not arise. It is in this context,
Supreme Court concurred with the findings of the Bombay High Court in Oriental Coal Co.
Ltd., Calcutta v. Mohanlal Kisanlal,77 and recorded its approval and similar concurrence also
went to the decision of the Calcutta High Court in Barakar Coal Co. Ltd. v. N.C. Mehta. 78

The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 has been enacted with a
view to provide a special procedure for recovery of debts due to the banks and the
financial institutions. There is hierarchy of appeal provided in the Act, namely, filing of an
appeal under s 20 against order passed by debt recovery tribunal directing sale of
mortgaged property and this fast track procedure cannot be allowed to be derailed either
by taking recourse to proceedings under 226 and 227 of the Constitution of India or by filing
a civil suit, which is expressly barred. Even though a provision under an Act cannot
expressly oust the jurisdiction of the court under Arts. 226 and 227 of the Constitution of
India, nevertheless when there is an alternative remedy available judicial prudence demands
that the court refrains from exercising its jurisdiction under the said Constitutional
provisions. The High Court should not entertain the petition under Art. 227 of the
Constitution of India and should direct the party to take recourse to the appeal mechanism
provided by the Act.79

An application was filed by Bank under the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 before the Tribunal for recovery against borrower company. During
the pendency of the said application before Tribunal, the borrower company filed civil suit
against the Bank alleging breach by Bank in not releasing sanctioned loans. It was held by
the Supreme Court that the suit of the borrower company and Banks application before
the Tribunal are not inextricably connected and as such the provisions of s 31 of the Act
are not applicable. Further, the suit was not counter-claim to the application filed by the
Bank. Thus, the application filed by Bank for transfer of the suit to Tribunal was not
maintainable.80 R.V. Raveendran, J., speaking for the Division Bench in the above case,
observed as follows:

9. The issues that arose in the Banks application was whether the borrower failed to repay the sums borrowed and whether the Bank
was entitled to the amounts claimed. On the other hand, the issues that arose in the borrower suit were whether the Bank had
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promised/agreed to advance certain monies; whether the Bank committed breach in refusing to release such loans in terms of the
sanction letter; whether the borrower failed to fulfil the terms and conditions of sanction and therefore, the Banks refusal to advance
was justified; and even if there was breach, whether the borrower suffered any loss on account of such non-disbursement and if so
whether the borrower was entitled to the amounts claimed. While the claim of the Bank was for an ascertained sum due from the
borrower, the claim of the borrower was for damages which required firstly a determination by the court as to whether the Bank was
liable to pay damages and thereafter assessment of quantum of such damages. Thus there is absolutely no connection between the
subject-matter of the two suits and they are in no way connected. A decision in one does not depend on the other. Nor could there be
any apprehension of different and inconsistent results if the suit and the application are tried and decided separately by different
forums. In the circumstances, it cannot be said that the borrowers suit and the Banks application were inextricably connected.81

58. Debt Recovery Tribunal not subordinate to High Court. Section 41(b) of the Specific
Relief Act (43 of 1995) provides that there cannot be any injunction restraining a person
from instituting or prosecuting any proceeding in a court not subordinate to that from
which the injunction is sought. But, here it is not a case, which falls under s 41 (b). The
injunction restraining the respondents from proceeding with the case before the debts
recovery tribunal, does not fall within the scope of s 41 (b). On the other hand, it is a
question as to whether the High Court had jurisdiction or not. If the debt recovery tribunal
has exclusive jurisdiction and the High Court ceases to have jurisdiction, in that event, it is
not a question of granting injunction restraining the respondents from proceeding with the
same. But it is a case whether the High Court has jurisdiction to proceed with or not, if it
has jurisdiction, in that event, it can very much grant the injunction. If it has no
jurisdiction, it cannot do so. Even if it is assumed that s 41 (b) applies, still then debt
recovery tribunal as such is not a court subordinate to the High Court. It does not fall
within the hierarchy of the courts as provided in the Bengal, Agra and Assam Civil Courts
Act, 1887. The tribunal constituted under the Debts Recovery Tribunal Rules 1994 is not a
court. It is a tribunal having the trappings of a court. A tribunal with trappings of court
cannot be equated with a court as is understood from the expression Court. Subordination
under 226 of the Constitution of India does not make debt recovery tribunal a court
subordinate to the High Court within the meaning of s 41 (b) or for the purpose of appeal
or revision as the case may be. So far as 227 is concerned, it is a power conferred on the
High Court by the Constitution of India, for exercising superintendence over all courts and
tribunals subordinate to it. It makes a distinction between courts and tribunals and brings
within its sweep both courts and tribunals. Therefore, subordination of tribunal under Art.
227 of the Constitution of India subject to power of superintendence is not a subordination of
a court within the meaning of s 41 (b). Therefore, the High Court cannot stay further
proceedings pending before a tribunal in exercise of its jurisdiction envisaged under s 9 of
the Code of Civil Procedure and/or by reason of cl 12 of the Letters Patent. Therefore, debt
recovery tribunal is not a court subordinate to the High Court exercising co-ordinate
jurisdiction under cl 12, as contemplated in s 41 (b). This suit for injunction would not be
maintainable before the High Court by reason of s 18 of the Debt Recovery Tribunal Act.
This suit is maintainable before the debt recovery tribunal. Thus, so far as the High Court
exercising original side jurisdiction is nothing more than a court of co-ordinate jurisdiction.
Inasmuch as, the same suit is sought to be proceeded with before the High Court as a
court of trial. Under s 31, the records of this suit are to be transmitted to the debt recovery
tribunal. Whereas out of the same cause of action, the respondents have initiated the
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proceeding in the debt recovery tribunal. Therefore, in relation to these proceedings, the
debt recovery tribunal and the High Court cannot be placed at a level higher than court of
co-ordinate jurisdiction.82

The petition filed by the bank before the debt recovery tribunal under s 17 of the Recovery of
Debts Due to Banks and Financial Institutions Act (51 of 1993) can only be adjudicated by the
debt recovery tribunal constituted under the Special Act, namely the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993. Therefore, by the introduction of the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993, there cannot be any dispute that the
High Court or any civil court cannot adjudicate the claim of the bank to recover debts due
under s 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and it is the
debt recovery tribunal which alone has the exclusive jurisdiction to try such claims.
Accordingly, the High Court cannot have any jurisdiction to try and adjudicate the
application filed by the Bank to recover its dues from the company even if the said
application can be transferred to the High Court because the application filed by the bank
before the debt recovery tribunal can only be decided by the debt recovery tribunal under
the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Therefore, the question
of trying the same by the High Court after transfer cannot arise at all. If such a suit is tried
after transfer, the judgment and decree that would be passed by the High Court would be a
nullity and without jurisdiction. Therefore, the question of jurisdiction readily comes into
play, that is to say, the High Court has no jurisdiction or cannot have any jurisdiction to try
the pending application filed by the bank before the debt recovery tribunal under the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and such being the position
in law, the question of entertaining a petition under cl (13) of the Letters Patent to transfer
the application filed under s 17 by the bank against the company from the tribunal to the
High Court cannot arise at all. Similarly the High Court also cannot grant stay against
proceedings pending before the debt recovery tribunal.83

59. Finality. The fact that a provision in a statute declared a certain order to be final, does
not apply where the provisions of this Act have not been complied with, or the statutory
tribunal has not act ed as per fundamental principles of judicial procedure. Several other
aspects, like the scheme of the Act, adequacy and sufficiency of remedies provided, etc,
have to be considered.84

Whenever a right is created by a statute and that statute provides a machinery for the
enforcement of the right, the civil courts jurisdiction is barred; but, if the right is a pre-
existing one at common law and the statute provides only a new remedy for its
enforcement, then a civil suit is not barred.85

Under the Rajasthan Municipalities Act (43 of 1995) ss 139 and 143, the Municipal Council
sent a letter to inform the company that the agreement between them was terminated and
octroi duty would be charged. No assessment or alteration of assessment was made by this
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letter. Nor was it a notice of demand. The civil courts jurisdiction is not ousted in such
matters.86

60. Partition. The plaintiff and his three brothers owned a property. The vacant site was
leased by these four brothers to the defendants, under a lease deed dated 28 October 1955,
for the purpose of construction of a rice mill. The monthly rent agreed to was Rs. 200/-.
The defendant-lessees were permitted to put up a building to install machinery and to
remove the same at the end of the lease period of 10 years. There was a clause that, at the
end of the 10 years period, the defendants shall hand over vacant possession, after
removing the super-structure and the machinery. In September 1957, the defendant lessees
purchased the three-fourth share of the three brothers of the plaintiff. Consequently, there
was a fresh agreement between the plaintiff and the defendants in relation to the undivided
one-fourth share of the plaintiff, for which the defendants agreed to pay a monthly rent of
Rs 50/-. The plaintiff filed a suit for partition and separate possession of one-fourth share
of the suit property. It was held that the suit as framed was maintainable and both the
reliefs, namely, partition and separate possession and eviction could be prayed for in the
same suit.87

61. Amalgamation of plots. Where the dispute between the parties is as to whether any
permission was granted by the plaintiff to the defendants for the purpose of amalgamation
of two plots or not and the plaintiffs specific case was that no such permission was given
to the defendants either in the Development Agreement or in the Power of Attorney
which was executed in their favour. The question which falls for consideration is as to
whether the suit filed by the plaintiff can be tried in civil court or not. In order to
appreciate the rival contentions, it would be necessary to examine relevant provisions.
Section 149 of the Maharahtra Regional and Town Planning Act, 1966 reads as under:

From the perusal of the said s 149, Maharashtra Regional and Town Planning Act [37 of
1966], it is apparent that every order passed or direction issued by the state government or
order passed or notice issued by any regional board, planning authority or development
authority under the Act shall be final and shall not be questioned in any suit or legal
proceedings. The Maharashtra Regional and Town Planning Act, 1966 empowers the
government to issue various orders or directions regarding numerous matters pertaining to
either reservation or preparation of development plan, etc. The civil courts jurisdiction is
ousted in respect of such matters where state government or its authorities alone are
empowered under the Act to adjudicate or decide any matter. In the present case, dispute
is regarding the question as to whether the plaintiff had permitted the defendants to apply
for amalgamation for the two plots or not. The dispute therefore is one which is arising
out of the terms and conditions of the contract or the terms and conditions in the power
of attorney which is executed by the plaintiff. Therefore, bar of s 149 would not be
applicable to the facts of the present case. Moreover, a Division Bench of the Bombay
High Court in a recent judgment in the case of Raja Bahadur Motilal,88 in para 12 has
observed as under:
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What is necessary under section 149 to acquire finality and invite the bar of civil suit is, it
should be an order passed or direction issued by the State Government or it should be an
order passed or notice issued by any regional board, planning authority or development
authority under this Act. It is provided by this section that no such order shall be
questioned in any suit or in any legal proceedings. It is obvious therefore that a suit or legal
proceeding for quashing a deemed permission under section 45(5) is maintainable. Even
otherwise under section 149 what is barred is questioning of an order made under the Act
in the civil suit. It does not bar any suit whereby a party to it can be prevented from act ing
on an action and order made under the Act. The bar spelt out by section 149 is therefore
very limited.89

62. Deemed sanction of construction. Where the building was constructed by the
plaintiff on the basis of deemed sanction under s 31 (5) of the Himachal Pradesh Town
and Country Planning Act (43 of 1995) the notices issued by the authority that the
construction was without sanction and liable for demolition, the suit filed by the plaintiff
that the notices were illegal and void was found maintained before civil court.90

63. Restrictive Covenant. A company incorporated in Germany entered into contract

with an Indian company. The Indian company was to sell certain goods in India. There
was a negative covenant, restraining the company from selling goods after termination of
the contract. It was held that this covenant was not enforceable.91

64. Assignment. A contract was in the name of an individual. The suit was filed in the
name of the company. There was no assignment from the individual, Ludwig

Taprogge, to the company, Taprogge Gesseleschaft MBH, as per pleadings. It was held
that the company did not have any right to sue on the contract.1

65. Special Statutes. Where a special statute creates a special right or liability and provides
for its determination by a special forum, the jurisdiction of ordinary courts is still not
ousted where:
(i) the relevant section in the special statute provides that the finality is for the
purposes of this Act (and not generally or for all other purpose);
(ii) the statute does not lay down that all questions about the special right, etc. shall be
determined by the special forum; or
(iii) if the remedy provided is not adequate to do all which a civil court can do.

(Dhulabhai’s case2 applied, as regards situations (i) and (ii) above).3

If the remedy provided by the special statute is not adequate, then the jurisdiction of the
ordinary courts is not ousted. The use of the expression finality in s 2 (1)(a), Bombay
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Personal Inams Abolition Act, 1952, is not intended to bar the jurisdiction of civil courts.4
The jurisdiction of the civil court to adjudicate title of the parties, is not barred by the
virtue of the provisions of Tamil Nadu Minor Inmas (Abolition and Conversion into
Ryotwari) Act, 1963.5 The decision of a tahsildar under s 3 of AP (AA) Inams (Abolition
and Conversion into Ryotwari ) Act, 1956, that the property was not a wakf property was
not within jurisdiction. In such circumstances, the bar of s 14 of the Act will not apply as it
pre-supposes an order passed within jurisdiction.6 No suit or proceedings shall lie before
the civil court against the decision of the wakf board to include property in the register of
wakf. 7

Under the Christian Marriage Act, 1872, maintenance to neglected christian wife and
children can be awarded even though there is no provision for such relief in the said Act.
A civil suit for maintenance can be instituted as taking cognizance of such a suit is neither
expressly or impliedly barred.8 A.S. Pachhapure, J., in the above case observed as follows:

12. Law cannot be made to meet any sort of eventuality and in such circumstances, if the provisions of the Indian Christian Marriage Act,
1872, (hereinafter called as the Act 1872 for short) is perused, it provides the procedure regarding the performance of marriage, but at
the same time does not contain any such provision as to the relief that has to be provided, in case, if the wife and children are neglected
by the husband. Even if the marriage under the Indian Christian Act, 1872 is a contract, when a breach occurs, there are certain
obligations on the part of the spouses. If the facts are looked into in the context of the provisions of the Act 1872, there is no
prohibition so far as the award of maintenance, in case, if the wife or children do not have their own economic provision or source of
income for their survival. Thereby, under the provisions of Section 9 of CPC, all the civil suits can be tried by the courts unless there is
any specific bar.9

In the above decision a passage from the decision of the Supreme Court in M.V. Elisabeth
v. Harwan Investment and Trading Pvt. Ltd.10 was quoted, wherein it has been observed as
follows:

87. The judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the
provisions of the Constitution and the laws and is exercised by courts empowered to exercise it. It is absurd to confine that power to the
provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence
of the power of the court to render justice according to law. Where statute is silent and judicial intervention is required, courts strive to
redress grievances according to what is perceived to be principles of justice, equity and good conscience.

A suit for declaration and permanent injunction was filed for restraining cancellation of
Patta granted under the U.D.R. Scheme. It was held by the Madras High Court that the
provisions relating to abolition and vesting of property under the Tamil Nadu Minor
Inams (Abolition and Conversion into Ryotwari) Act, 1963, do not have the effect of
obliterating or destroying any pre-existing right. Since the statutory authorities have
exercised their jurisdiction in a summary manner, the jurisdiction of civil court is not
barred in respect of adjudication of claims of title and issues which are not required to be
adjudicated for the purpose of enforcement of the laws, which intends to implement
ryotwari settlement. It was further held that even where finality is accorded civil court is
entitled to nullify such order.11
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In a case, where Inam land had been granted to Temple and the Inam Tehsildar granted
Ryotwari Patta to the defendant, it was held by the Madras High Court that the suit filed
by the Temple for declaration of title is maintainable and civil court has jurisdiction to
adjudicate.12

In another case, it was held by the Madras High Court that Ryotwari Patta granted by the
Tribunal Constituted under the T.N. Minor Inams (Abolition and Conversion in Ryotwari)
Act, 1963, could be question before a civil court. Orders passed and decisions rendered
under the Act being given finality, does not have the effect of ousting the jurisdiction of
civil court.13

A civil court can interfere, if the statutory authority acts in violation of rules, or acts in
abuse of its authority or in violation of fundamental principles of judicial procedure.
Where fresh interview was held for the post of assistant teacher in violation of the order of
the court and in contravention of the statutory rules of recruitment, the civil court can
interfere. Application under Art. 227 of the Constitution of India challenging maintainability of
a civil suit, is liable to be dismissed.14 If a right or liability is created by statute, two
situations may arise:

(i) The statute may create a specific forum for its enforcement.

In such a case, the question whether the civil courts jurisdiction is impliedly excluded
within the meaning of s 9 of the Code of Civil Procedure, is one of statutory construction. If the
right is new one, ouster may be inferred.

(ii) If, while creating a liability, no machinery is provided for enforcement, civil courts can
entertain the suits, besides the suit of which the cognizance is expressly barred.

These are suits which are barred by general principles of law.

To ensure expeditious settlements of consumer disputes, the Electricity Board issued a

commercial circular which provided settlement of all consumer dispute by Circle Level
Committee constituted by the Board for that purpose. Where the consumer challenged the
clubbing of two metres and demands of common bills, by way of civil suit, such suit was
not maintainable as only the committed had the jurisdiction to entertain the petition.15 A
bare perusal of s 330 (c) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950, read with proviso to r 285K framed thereunder, is sufficient to indicate that the
institution of a suit in the civil court for the purpose of setting aside a sale on the ground
of fraud is not barred.16

Where an order was passed by the collector for confiscation of goods under s 6 A of the
Act, the aggrieved person has remedy of filing an appeal against that order under s 4 C and
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civil suit filed against the order would not be maintainable as the civil courts jurisdiction is
expressly barred under s 6 E in case of seizure or any other order under the Act in relation
to essential commodities.17

66. Mines and Minerals. Forum under s 23 of the Coking Coal Mines (Nationalisation) Act (43
of 1995) is an additional forum. It does not oust the jurisdiction of the civil court under
the general law and the suit before the civil court is maintainable. Besides that the liability
of the erstwhile owner of a coal mine does not cease due to vesting of coal mines.18

67. Hard Coke Plant. An authority under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 has a very limited jurisdiction and it has to determine only a dispute
that may arise, viz-a-viz a public premise. Upon an application made before it, it has to
proceed in a summary disposal thereto. The question, as to whether the area formed part
of the Royal Tisra Colliery or not, consequently making it a public premise is a question
that becomes the focal point of the instant case and it, therefore, obviously involve
determination/finding of fact. Undoubtedly, while attempting to come to such finding, the
authority may be faced with complicated question of title as is involved in the instant case.
The authority in the aforementioned case cannot be said to have the jurisdiction to embark
upon the domain of the civil court for the purposes of adjudicating on a question of a
complicated title, which can only be done by a civil court. It would be extremely
unreasonable to allow a court vested with summary procedure to give a finding which can
only be arrived at by a civil court having the necessary judicial competence.19

68. Service Matters. The broad guiding consideration for determining whether
jurisdiction of civil court is excluded, is this:

(a) If a right, not pre-existing in common law, is created by a statute and that statute itself
has provided a machinery for the enforcement of the right, both the right and the remedy
having been created by that statute, a finality is intended. The civil courts jurisdiction is
impliedly barred;

(b) if, however, a right pre-existing in common law, is recognised by the statute and a new
statutory remedy for its enforcement provided, without expressly excluding the civil courts
jurisdiction, then both the common law remedy and the statutory remedy might become
concurrent remedies, leaving open an element of election to the persons entitled to sue in
the civil court or in the statutory tribunal.20

In a suit based on wrongful dismissal, the civil court cannot grant re-instatement, but can
grant compensation.21

Where at the hearing of application relating to interim relief in a suit, objection of

jurisdiction is taken, such issue is to be decided by the court as a preliminary issue.
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The Central Civil Services (Classification, Control and Appeal) Rules (1965) neither
expressly nor by necessary implication takes away the jurisdiction of the civil courts to deal
with service matters. Thus, where a Central Government employee, dismissed from
service, filed a suit for re-instatement and the matter was litigated for more than 5 years, it
was held by the Supreme Court that the High Court in second appeal cannot hold that civil
court has no jurisdiction in the matter.22 Elaborating on the point it was observed that it is
an erroneous view that civil court does not have jurisdiction to adjudicate on an order
passed by disciplinary authority, and that only writ application can be filed after exhausting
departmental remedies. Provisions of CCS (CCA) Rules 1965 do not oust the jurisdiction
of civil courts. It is a different matter to insist that departmental remedies should be
exhausted before a person approaches the civil court but it is not proper for the Single
Judge of the High Court to hold after five years, while hearing second appeal, that civil
court has no jurisdiction. The case should have been decided on merits. The appellant
could not be non-suited on the ground that he had failed to take recourse to proceedings
under the CCS (CCA) Rules 1965 against the order of dismmissal. It was further held in
the case that it is also an erroneous view that jurisdiction of civil court under s 34 of the
Specific Relief Act, 1963 is also ousted. Service rules neither expressly nor by implication
have taken away jurisdiction of civil court to deal with service matters.23

An employee of the Life Insurance Corporation was dismissed from service and the
employee challenged his dismissal in the civil court. A departmental inquiry had been
conducted in the case but the copy of the inquiry report was not made available to the
plaintiff. Even the show-cause notice did not disclose as to on what premise a finding of
guit was recorded by the inquiry officer or by disciplinary authority. It was held by a
Division Bench of the Rajasthan High Court that there has been a violation of principles
of natural justice and where principles of natural justice and Service Regulations are
violated the civil court will have jurisdiction. It was further held that if the dispute is not an
industrial dispute and it does not relate to enforcement of any right under the Industrial
Disputes Act, the remedy lies only in civil court.24

Where an individual workman filed a suit against his employer seeking relief in respect of
grant of selection scale or with holding of increment as a measure of punishment, the
dispute is not covered by s 2 -A of the Industrial Disputes Act, 1947. Since the cause of the
workman is not espoused by the union or the body of workmen and the dispute is not
industrial dispute, it was held that the jurisdiction of civil court is not barred.25

In the case of dismissal of an employee of an Insurance Company on the basis of domestic

enquiry, it was held by the Supreme Court that if the findings of the departmental
proceedings are based on no evidence, the civil court can interfere in the matter.26 In the
above case the Supreme Court laid down guidelines to be followed where the findings of a
domestic enquiry is challenged before civil court or a Writ Court. Speaking for the Bench
in the above case, S.B. Sinha, J., observed as follows
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26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the
correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a
case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a
Writ Court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the
following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry.27 (2)
In a domestic enquiry fairness in the procedure is a part of the principles of natural justice.28 (3) Exercise of discretionary power involve
two elements(i) objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for the
exercise of the subjective element.29(4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on
the facts and circumstances of each case but the concept of fair play in act ion is the basis.30 (5) The enquiry officer is not permitted to
travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is
wholly illegal.31 (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The Writ Court is entitled to
interfere with the findings of the fact of any tribunal or authority in certain circumstances.32

69. Service matters between workmen and Management. The appellant, Rajasthan
State Road Transport Corporation, constituted under the Road Transport Corporation
Act, 1950, contended that the suits filed by the respondent-employees impugning the
termination of their services for misconduct on the ground of contravention of standing
orders were barred and that the only remedy available to the respondents was a reference
of the dispute for adjudication to a labour court.

The instant cases are governed by the decision in Jitendra Nath Biswas case and in
accordance with the said decision, it must be held that the jurisdiction of the civil courts is
excluded. It may be stated that from the point of view of the workmen also, the remedy of
adjudication available under the Act would be more beneficial to them than that of a civil
suit inasmuch as the civil court cannot grant the relief of reinstatement which relief can be
granted by the labour court or the industrial tribunal.33 On the date of filing the suit, none
of the situations contemplated under s 2 A of the Industrial Disputes Act, 1947 had happened
so as to give the appellant a cause of act ion to approach the industrial court. It cannot be
doubted that the maintainability of the suit has to be decided with reference to the date of
institution of the proceeding and since on the day when the civil suit was filed, none of the
eventualities covered by s 2 A had happened, the appellant could not have approached the
forum under the 1947 Act for relief.34

In a case relating to employment on the work charge basis till the completion of project,
the plaintiffs services were terminated on the completion of the project. The plaintiff
challenged the termination as null and void in a civil suit. The claim of the employer was
that the termination simpliciter was effected in the light of Rules under the Certified
Standing Orders. On the other hand the plaintiff claimed that the said Rules were
completely ignored and highly arbitrary approach was adopted by the employer by picking
and choosing plaintiffs for the purpose of termination. It was held by the Supreme Court
that the dispute fell under the premise of Industrial Disputes Act and the Jurisdiction of civil
court stood barred.35 V.S. Sirpurkar, J., speaking for the Bench in the above case, observed
as follows:
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. .. there is no doubt that the dispute and the main issue fell squarely under the premise of Industrial Disputes Act. Further as specifically
held in Krishna Kants case36 that where the Certified Standing Orders were applicable and where the breach thereof is complained of,
such issues fell in the exclusive area of the machinery provided by the Industrial Disputes Act and as such the civil courts jurisdiction was
specifically barred. We are left with no doubt that the situation is identical in the present case.

In service matters between workman and management the civil court has limited
jurisdiction. The Supreme Court has held that the jurisdiction of civil court is not totally
excluded. Thus, if a right is claimed under the Industrial Disputes Act or the sister laws, the
jurisdiction of civil court would be barred, but if no such right is claimed and the order of
the management is claimed to be against the principles of natural justice, such matters are
not beyond the jurisdiction of civil court.37 S.B. Sinha, J., speaking for the bench in the
above case, observed as follows

11. The civil court may have a limited jurisdiction in service matters but it cannot be said to have no jurisdiction at all to entertain a suit.
It may not be entitled to sit in appeal over the order passed in the disciplinary proceedings or on the quantum of punishment imposed.
It may not in a given case direct reinstatement in service having regard to Section 14 (1)(b) of the Specific Relief Act, 1963 but, it is a trite law
that where the right is claimed by the plaintiff in terms of common law or under a statute other than the one which created a new right
for the first time and when a forum has also been created for enforcing the said right, the civil court shall also have jurisdiction to
entertain a suit where the plaintiff claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution of India or
mandatory provisions of statute or statutory rules governing the terms and conditions of service.38

Where the respondent, who was a daily wages employee, was removed from service by his
employer, he filed a civil suit for his reinstatement and the suit was decreed by the lower
courts. It was held by the Supreme Court that the respondent being a worker and the
dispute being an industrial dispute, the civil court had no jurisdiction to try the case. The
only remedy available to him is a reference under the Industrial Disputes Act and not by way
of a civil suit.39

The disputes involving rights or obligations created by the Industrial Disputes Act, 1947 do
not fall within the jurisdiction of the civil court.

In a case from Haryana, a conductor was dismissed from service by the State Roadways. In
the suit filed by the conductor, the civil court framed issues including the issue whether it
had jurisdiction to try the suit against the order of dismissal. However, without recording
any finding on the issue of jurisdiction the civil court decreed the suit. It was held by the
Supreme Court that such a suit is beyond the jurisdiction of civil court and hence the
decree is a nullity.40

Recently, a three-Judge Bench of the Supreme Court has rendered a decision which is of
far-reaching consequence in regard to workmen and management, the rights of workmen
and the powers and jurisdiction of the civil courts vis--vis the Tribunals established under
the Industrial Disputes Act. S.B. Sinha, J., speaking for the three-Judge Bench in Bal Mukund
Bairwas case,41 has observed as follows
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Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus Ibi remedium. A litigant,
thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either
expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless barred by
statute either expressly or by necessary implication.
10. The civil court, furthermore, being a court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering
the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest
jurisdiction on the civil court although it otherwise may not possess. For the said purpose, the court in given cases would be entitled to
decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact. It is also well
settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil courts jurisdiction is not to be readily
inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred
under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or
Tribunal acts without jurisdiction.

Explaining the point that the nature of the dispute, the reliefs claimed by the plaintiff and
pleadings are important factors in determining the question of jurisdiction, it was further
observed in the above case as follows:

21. A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to
or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulation framed thereunder,
and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or
different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil
court must, therefore, be addressed having regard to the fact as to which right or obligations are sought to be enforced for the purpose
of invoking or excluding the jurisdiction of a civil court.42

It was further observed in the above case as follows:

23. If an employee intends to enforce his Constitutional rights or a right under a statutory regulation, the civil court will have the
necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the
Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it
would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of
the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the
civil court will have no jurisdiction.43

The appellant, a probationer, fitter on daily basis was terminated from service on ground
of unsatisfactory work. The appellant did invoke the provisions of the Industrial Disputes
Act, 1947 for getting the dispute referred to an appropriate forum under the said Act for
an adjudication but he failed and he did not pursue the remedy any further though such
refusal could have been challenged by way of a writ petition. He having failed to do so, he
cannot then resort to a remedy by way of a civil suit, which is otherwise not maintainable
in law.44

The Industrial Disputes Act, 1947 is enacted by the Parliament to provide speedy,
inexpensive and effective forum for resolution of disputes arising between workmen and
the employers, the underlying idea being to ensure that the workmen does not get caught
in the labyrinth of civil courts which the workmen can ill-afford. The procedure followed
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by civil courts are too lengthy and consequently, is not an efficacious forum for resolving
industrial disputes speedily. The power of industrial courts also is wide and such forums
are empowered to grant adequate relief as they think just and appropriate. It is in the
interest of the workmen that their disputes, including the dispute of illegal termination are
adjudicated upon by an industrial dispute within the meaning of s 2 (k) and under s 17 of the
Industrial Disputes Act, 1947, every award of labour court, industrial tribunal or national
tribunal is required to be published by the appropriate government within a period of 30
days from the date of its receipt and such award published under s 17 (1) is held to be
final.45

The workmen of the Ahmedabad Municipal Corporation challenged the orders of

dismissal/removal from service, by filing a civil suit. Relief sought was whether the orders
of termination of services were null and void, having been passed by an authority who had
no competence to pass the same.

It was held by Supreme Court having regard to the relief sought for in the suits filed in the
civil court, jurisdiction of the civil court is impliedly barred and the appropriate forum for
resolution of such dispute is the forum constituted under the Industrial Disputes Act, 1947.46

70. Consumer Protection Matters. The provisions of the Consumer Protection Act, 1986 do
not strike at the independence of the judiciary. By reason of the provisions of s 3 of the
Consumer Protection Act, 1986, it is evident that remedies provided thereunder are not in
derogation of those provided under other laws. The said Act supplements and not
supplants the jurisdiction of the civil courts or other statutory authorities. The said Act
provides for a further safeguard to the effect that in the event a complaint involving
complicated issues requiring recording of evidence of experts, the complainant would be at
liberty to approach the civil court for appropriate relief. The right of the consumer to
approach the civil court for necessary relief has, therefore, been provided under the Act
itself. The provisions of the said Act are required to be interpreted as broadly as possible.
It has jurisdiction to entertain a complaint despite the fact that other fora/courts would
also have jurisdiction to adjudicate upon the lis.47

The proceedings under the Consumer Protection Act, 1986 and in a civil court can
simultaneously go on, even if the issues involved in the two proceedings are substantially
similar. The existence of parallel or other adjudicatory forums cannot take away or exclude
the jurisdiction created under the Act. Thus, where the proceedings in the civil court and
those in the Consumer Forum have been initiated by two different parties, and their
grievances relate to the same incident, it was held that in fact they are independent and
separate proceedings.48

Where given the nature of the claim in the complaint and the prayer for damages in the
sum of Rs 15 crores and for an additional sum of Rs 60 lakhs for covering the cost of
travelling and other expenses incurred by the appellant, it is obvious that very detailed
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evidence would have to be led, both to prove the claim and thereafter to prove the
damages and expenses. It is, therefore, in any event, not an appropriate case to be heard
and disposed of in a summary fashion. The National Consumer Disputes Redressal
Commission was right in giving to the appellant liberty to move the civil court. This is an
appropriate claim for a civil court to decide and, obviously, was not filed before a civil
court to start with because, before the consumer forum, any figure in damages can be
claimed without having to pay court-fees. This, in that sense, is an abuse of the process of
the consumer forum.49

71. Corporate.U nless jurisdiction is expressly or implicitly barred under a statute, for
violation or redress of any such right the civil court would have jurisdiction. There is
nothing under the Companies Act expressly barring the jurisdiction of the civil court, but the
jurisdiction of the Court as defined under the Act, exercising its power under various
sections where it has been invested with exclusive jurisdiction, the jurisdiction of civil court
is impliedly barred. The jurisdiction of Court under s 155, to the extent it has exclusive
jurisdiction, the jurisdiction of the civil court is impliedly barred. For what is not covered
as aforesaid, the civil court would have jurisdiction. Similarly, even under s 446 (1), its
words itself indicate the jurisdiction of the civil court is not excluded, the words except by
leave of the court itself indicate on leave, given the civil court would have jurisdiction to
adjudicate ones right.50 A bare perusal of the provisions leave no manner of doubt that
thereby the jurisdiction of the civil court has not been ousted completely, when the civil
court of the Indian Companies Act, 1956 was concerned with the rival claims of the parties
as to whether one party has illegally been dispossessed by the other or not. Such a suit,
apart from the general law, would also be maintainable in terms of s 6 of the Specific Relief
Act, 1963. In such matters the court would not be concerned even with the question as to
title/ownership of the property.51 The right to approach a civil court by a shareholder in a
circumstance where there is a clear standing rift between the Company Secretary and the
Chairman and Managing Director, which can be saved only by conducting an urgent
general meeting, is not taken away though there is a specific provision under s 397 and 398
of the Indian Companies Act, 1956.52 Where in a suit for injunction the plaintiff claimed that
there was violation of provisions of Securities Contracts (Regulation) Act 1956 by the
defendants, the suits would be maintainable in the civil court. Since the Act did not even
provide a machinery through which the said remedy could be obtained, there was no
ouster of the jurisdiction of the civil court to entertain a complaint that the provisions of
Securities Contracts (Regulation) Act, 1956 were being violated by the defendants and that they
were liable to be prevented from violation that statute. In such a case, the mere fact that
the plaintiff could complaint to the authorities created by that Act and hope that the
authorities under that Act would take action cannot be said to bar the rights of the plaintiff
to approach the civil court for redressal of its grievances. Moreover, even assuming that
the plaintiff was seeking to enforce a right created by the Act, this would be a case where
the statute gives the right to sue but provides no particular form of remedy, thus relegating
the aggrieved party to the civil court.53 The relief claimed by the plaintiff was that he
should be declared to be the owner of 300 shares and duplicate shares be issued to him
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cancelling the transfer of these shares in favour of the transferees. All other reliefs were
consequential. In the circumstances of the case, when the plaintiff himself has stated that
he had signed the transfer deeds and kept them along with the share certificates and
ultimately it is found that some one has come to possess the transfer deeds and original
shares and put them up before the company for the shares being registered in their names,
it is clearly a case of cancellation of such registration of shares in the name of the
transferees obtained by misrepresentation or fraud or any other reason. There is no
question of declaration, because when the register is rectified, automatically, the shares
would revert back to the plaintiff. Moreover, the transferees would be necessary parties to
suit for any such declaration and they are not impleaded.54

In the aforesaid circumstances, the case is clearly congnisable by the Company Law Board
and not by the civil court under s 9 of the Code of Civil Procedure.

72. Land grabbing. If the appellants could have availed the remedies of review under s 17
-A of the Act and the suit for declaration of title and right, in our view, the learned single
judge ought not to have expressed any opinion on the merits of the case because after the
High Court has put its seal of approval on the judgment and order of the special court, the
result of the review application and the suit would become a foregone conclusion. In
regard to the remedy of the suit, having regard to the provisions of s 8 (2) read with s 15 of
the Andhra Pradesh Land Grabbing (Protection) Act (43 of 1995) no suit for title in
respect of the disputed land which is alleged to be a land grabbed by the first appellant,
could be entertained by the civil court. It may be apt to point out that under s 8 (8) in any
case, pending before any court or other authority immediately before the Constitution of a
special court, as would have been within the jurisdiction of such special court, stood
transferred to the special court as if the cause of action on which the suits or proceeding is
based had arisen after the Constitution of the special court. In other words the suit for
declaration of title by the appellants would not be maintainable.55

The Special Court constituted under the Andhra Pradesh Land Grabbing (Prohibition)
Act, 1982 gets jurisdiction to try a case of land grabbing only when it is alleged specifically
that an act of land grabbing had been committed as otherwise it will not have any
jurisdiction. To maintain a petition before the Special Court it must be specifically averred
in the application that an act of land grabbing has been committed by a land grabber
without any lawful entitlement to the land and with a view to taking illegal possession of
such land or to construct unauthorised structures or to perform any other acts as
enumerated inter alia in clause (e) of s 2 of the Act. It was held by a Division Bench of the
Andhra Pradesh High Court that in the absence any such averments in the application, the
jurisdiction of the Special Court or the Special Tribunal, as the case may be, is not attracted
although the question of title or right to or possession over the land in dispute is
involved.56

The Supreme Court has held that under the A.P. Act 12 1982, the tribunal constituted
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under it derives jurisdiction only when jurisdictional facts are disclosed in the petition. For
invoking the jurisdiction of the Court under the Act, it is necessary not only to allege the
act of land grabbing within the meaning of the Act but also a prima facie case must be found
out by the Special Court.57 Sinha, J., speaking for the bench observed thus:

Ordinary disputes with regard to a title of property are not within the exclusive jurisdiction of the Special Court or the Tribunal. They
have to be determined in ordinary civil courts. The Special Courts and the Tribunals are not substitutes for the civil courts in the
litigations involving a civil dispute relating to immovable property within the meaning of Section 9 of the Code of Civil Procedure. It has the
exclusive jurisdiction where land grabbing is alleged or appeared from the application filed before it.58

In another case under the A.P. Land Grabbing (Prohibition) Act, 1982, the Supreme Court
held that in a proceeding before the Special Court the only issue which fall for decision is
whether there has been an act of land grabbing as alleged and who is the guilty party. The
Special Court has no jurisdiction to decide questions relating to acquisition of title by
adverse possession under the Act as the same would fall within the domain of the civil
courts.59

73. Constitutional matters. The declaration of the President of India, under Arts. 341
and 342 of the Constitution of India with respect to lists of scheduled tribes in relation to a
state, that a particular caste or tribe as defined in Arts. 366 (24) or (25) respectively, is
conclusive subject to an amendment by Parliament. By necessary implication, the
jurisdiction of the civil court to take cognizance of and give a declaration stands
prohibited.60 In view of provisions of Art. 363(1) of the Constitution any dispute arising out
of the merger agreement or the instrument of accession of Jammu and Kashmir is beyond
the competence of the courts to inquire into.61

A decision by the Government of India that a certain property does not belong to ex-ruler
of an erstwhile state as his private property cannot be challenged by a suit in the civil court,
in view of specific bar under Art. 363 of the Constitution of India. The issue as to whether the
Government of India was obliged to recognise the private property of the ex-ruler and
whether, under the terms of the covenant executed in 1948 (art 12 of the covenant), the
said ex-ruler of Kapurthala was entitled to have it thus recognised, are disputes which are
clearly barred by Art. 363 and the court had no jurisdiction to decide the said issues. By the
covenant, all rights, authority and jurisdiction of erstwhile rulers were vested in the Patiala
and East Punjab State Union (Pepsu) and all assets and liabilities of the covenanting state
becomes the assets and liabilities of the Union. It is only Art. 12 which ensured certain
rights to the ruler with regard to full ownership, use and enjoyment of all private properties
(as distinct from state properties) belonging to him on the date of his making over the
administration of the state to the Raj Pramukh. Consequently, he was also required to
furnish to the Raj Pramukh, before the deadline of the inventory of all the immovable
properties, securities and cash balances held by him as such private property. This was
obviously done so that the Government of India could ascertain the correctness of the
claim. No doubt, cl (3) of Art. 12 provides that a dispute arising as to whether any item of
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property was the private property of the ruler or state property was referable to a nominee
of the Government of India and such nominees decision would be final and binding on all
the parties concerned, provided that such dispute was to be referred by the deadline of 31
December1948. Interpreting the said cl (3) it cannot be said that, under the treaty the
Government of India could not unilaterally refuse to recognise any property as private
property of the ruler, and, if it did, it was obliged to refer it to a person contemplated by cl
(3) and that failure to do so would imply recognition of the claim as to private property.
Such a view would be erroneous on two counts. In the first place, this interpretation
ignores the true nature of the covenant. The covenant is a political document resulting
from an act of state. Once the Government of India decides to takeover all the properties
of the ruler, except the properties, which it recognises as private properties there is no
question of implied recognition of any property as private property. On the other hand, cl
(3) of the covenant merely means that, if the ruler of the covenanting state claimed
property to be his private property and the Government of India did not agree, it was open
to the ruler to have this issue decided in the manner contemplated by cl (3). Clause (3) of
Art. XII does not mean that the Government was obliged to refer to the dispute upon its
failure to recognise it as private property. Secondly, the dispute as to whether a particular
property was or was not recognised as private property of the ruler was itself a dispute
arising out of the terms of the covenant and, therefore, not adjudicable by municipal
courts as being beyond the jurisdiction of the municipal courts by reason of Art. 363 of the
Constitution of India.62

74. Equity Jurisdictionadjudicatory Fact-Jurisdictional Fact. A court of law cannot

exercise its discretionary jurisdiction de hors the statutory law. Its discretion must be
exercised in terms of the existing statute.63 S.B. Sinha, J., speaking for the Supreme Court
Bench in the above case, observed as follows:

In England, the Court of Equity exercises jurisdiction in equity. The courts of India do not possess any such exclusive jurisdiction. The
courts in India exercise jurisdiction both in equity as well as law but exercise of equity jurisdiction is always subject to the provisions of
law. If exercise of equity jurisdiction would violate the express provisions contained in law, the same cannot be done. Equity
jurisdiction can be exercised only when no law operates in the field.64

In Shamsu Suhara Beevi v. G. Alex,65 the Supreme Court while dealing with a matter relating
to grant of compensation by the High Court under s 21 of the Specific Relief Act in addition to
the relief of specific performance in the absence of prayer made to that effect, observed as
follows:

Grant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible. On equitable consideration
court cannot ignore or overlook the provisions of the statute. Equity must yield to law.

Referring to judicial flexibility to impart justice based on equity, Krishna Iyer, J. stated as
follows:
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It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal
proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising
after the lis has come to court and has fundamental impact on the right to relief or the manner of moulding it, is brought diligently to
the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies
bending the rules of procedure, where no specific provision or fair play is not violated, with a view to promote substantial justice . . .66

While dealing with the exemption granted under s 3 (1)(b) of the Maharashtra Rent
Control Act, 2000, to Public Limited Companies on the basis of paid-up share capital, the
Supreme Court held that eviction proceedings against such companies are not barred
under s 22 of the Sick Industrial Companies (Special Provisions) Act, 1985.67 C.K. Thakker,
speaking for the Bench in the above case, pointed out the distinction between
jurisdictional fact and adjudicatory fact in the following words:

Stated simply, the fact or facts upon which the jurisdiction of a Court, a tribunal or an authority depends can be said to be a
jurisdictional fact. If the jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does
not exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of
jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional
fact, a subordinate Court or an inferior tribunal cannot confer upon itself jurisdiction which it otherwise does not possess.68

Elaborating on the point and holding that the existence of a jurisdictional fact is the sine
qua non or condition precedent to the assumption of jurisdiction by a Court or Tribunal,
Thakker, J., further observed:

But there is distinction between jurisdictional fact and adjudicatory fact which cannot be ignored. An adjudicatory fact is a fact in issue
and can be determined by a court, Tribunal or Authority on merits, on the basis of evidence adduced by the parties. It is no doubt true
that it is very difficult to distinguish jurisdictional fact and fact in issue or adjudicatory fact. Nonetheless the difference between the two
cannot be overlooked.69

The above judgment quoted with approval, a passage from Halsburys Laws of England,
wherein it has been stated:

Where the jurisdiction of a tribunal is dependent upon the existence of a particular state of affairs, that state of affairs may be described
as preliminary to, or collateral to the merits of the issue. If, at the inception of an inquiry by an inferior tribunal, a challange is made to
its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue;
but that ruling is not conclusive.70

75. Land Acquisition Matters. The Land Acquisition Act, 1894 (1 of 1894) is a law of
exceptional character. While on the one hand it aims at promoting important public
interests by making available land for Government for executing projects for public
purposes, on the other hand it protects individual private interests by providing for
adequate compensation to land owners. The Act is a complete code by itself.

It has been held by the Bombay High Court that the question of validity of notification
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under Section 4 and the declaration of public purpose under Section 6 cannot be gone into
by civil court. The issue can be decided only by writ Court under Article 226 of the
Constitution.71

In another case it was held that where the challenge is neither with respect to the
acquisition proceedings nor the amount of compensation but as to the entitlement who
should receive the compensation, it was held by the Punjab and Haryana High Court that
civil court has jurisdiction to entertain suit.72

Where notification was issued under s 4 (1) of the Land Acquisition Act, 1894 and declaration
made about public purpose under s 6 of the Act, civil court has no jurisdiction to take
cognizance of the matter. Thus, application for injunction for restraining the land owner
from alienating the land or plea seeking injunction against government from proceeding
with acquisition proceedings are not maintainable.73

In another case it was held by the Madras High Court that after issuance of notification
under Section 4 of the Act and declaration under s 6, the civil court cannot declare that
acquisition proceedings are void.74

STATE AMENDMENT

* Re-numbered as Explanation I thereof by Act 104 of 1976, s 5 (w.e.f. 1-2-1977).

** Ins. by CPC (Amendment) Act 104 of 1976, s 5 (w.e.f. 1-2-1977).
1 . Kishori Mohun v. Chundra Nath, (1887) ILR 14 Cal 644, 648.
2 . Pankaj Bhargav v. Mahendra Nath, (1991) 1 SCC 556 [LNIND 1990 SC 923].
3 .Bharvad Chotta Bhaga v. Bharvad Jagadahya, AIR 1999 Guj 17 [LNIND 1998 GUJ 213].
4 .Abdullah Bin Ali v. Galappa, (1985) 2 SCC 54.
5 .Nagri Pracharini Sabha v. Fifth Addl District and Sessions Judge, Varanasi, (1991) Supp 2 SCC 36.
6 . Sanker Naryan Potti v. K. Sreedevi, (1998) 3 SCC 751 [LNIND 1998 SC 358].
7 . Dr. Devidas Lotu Bhirud v. Pachora Municipal Council, AIR 1998 Bom 363 [LNIND 1998 BOM 515].
8 . Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu, (1991) Supp 2 SCC 228.
9 . AIR 1994 AP 272 [LNIND 1994 AP 173].
10 . Jaya P. Hemarajani v. Rose Elvina Dsouza, AIR 1995 AP 189 [LNIND 1994 AP 512].
11 . Rajendra Kumar v. Deepak Makwana, AIR 2008 Del 92.
12 . Smt. Tulasi Yellappa Pawaskar v. Deptt. of Telecommunication, AIR 2008 Kar 3: 2008 (1) Kar LJ 582.
13 . Mahesh Chandra v. Zila Panchayat, Mainpuri, AIR 1997 All 248 [LNIND 1996 ALL 649] (DB).
14 . Khema v. Shri Bhagwan, AIR 1995 Raj 94.
15 . Vishram Singh v. District Judge, Etawah, AIR 1996 All 90 [LNIND 1995 ALL 584].
16 . Dwarika Singh v. District Judge, AIR 1996 All 325 [LNIND 1996 ALL 1].
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17 . Hari Nath v. Raghu Nath, AIR 1998 HP 28 [LNIND 1997 HP 28].

18 . Jyoti Ram v. District Judge, Saharanpur, AIR 1996 All 28 [LNIND 1994 ALL 592].
19 . Jagdish Balwant Rao v. State of Maharashtra, AIR 1994 Bom 141 [LNIND 1993 BOM 303] (FB).
20 . Saiyad Mohmed Bakar El. Edroos v. Abdulhabib Hassan Arab, (1988) 4 SCC 343.
21 . Birendra Bikram Singh v. Kamala Devi, AIR 1995 All 243 [LNIND 1994 ALL 61].
22 . Suresh Chandra Nayak v. Shantilata Bhoi, AIR 2009 Orissa 14.
23 . ITI Ltd. v. Siemens Public Communications Network Ltd., AIR 2002 SC 2308 [LNIND 2002 SC 404].
24 . Church of North India v. Lavajibhai Ratanjibhai, AIR 2005 SC 2544 [LNIND 2005 SC 457].
25 . Shankar v. Surendra Singh Rawat, AIR 2007 Uttr 15: (2007) 1 AWC 125 [LNIND 2006 UTTAR 81].
26 . Chandra Shekhar Joshi v. Chandra Ballabh Pant, AIR 2007 Uttr 25 [LNIND 2006 UTTAR 81]: 2007 (3) ALJ 624.
27 . Rajender Singh v. Vijay Pal alias Jai Pal, AIR 2008 SC 1691 [LNINDU 2008 SC 6]: (2008) 4 SCC 36 [LNINDU 2008 SC 6].
28 . J. Kumaradasan Nair v. IRTC Sohan, AIR 2009 SC 1333 [LNIND 2009 SC 321]: (2009) 12 SCC 175 [LNIND 2009 SC 321].
29 . Laxminarayana Rao, Mangalore v. Janardhana Shettigara, AIR 1994 Kant 105 [LNIND 1993 KANT 171].
30 . Shriram City Union Finance Corpn. Ltd. v. Rama Mishra, AIR 2002 SC 2402.
31 . AIR 1969 SC 78 [LNIND 1968 SC 99].
32 . Prakash Narain Sharma v. Burmah Shell CHS Ltd., AIR 2002 SC 3062 [LNIND 2002 SC 513]: (2002) 7 SCC 46 [LNIND 2002 SC 513].
33 . Sarda Kunwar v. Gajanand, AIR 1942 All 320: (1942) ILR All 821; Thiruvenkata Ramanuja v. Venkatacharlu, AIR 1947 PC 53: (1947) ILR
Mad 436 : 73 IA 156; Lalji v. Walji, (1895) ILR 19 Bom 507; Pragji v. Govind, (1887) ILR 11 Bom 534; Ramakrishna v. Gangadhar, AIR 1958
Ori 26; P.N. Nair v. E.A. Nair, AIR 1974 Ker 51: (1972) Ker LJ 769 : (1973) Ker LT 297.
34 . Hukumchand v. Maharaj Bhadur, AIR 1933 PC 193: (1933) ILR 12 Pat 681 : 60 IA 313.
35 . Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13 [LNIND 1976 GUJ 51].
36 . I.C. Krishnamurthy v. U. Rajlingam, AIR 1980 AP 69.
37 . Abdul Gafur v. State of Uttarakhand, AIR 2009 SC 413 [LNIND 2008 SC 1612]: (2008) 10 SCC 97 [LNIND 2008 SC 1612].
38 . Ibid, para 18 at p. 417 (of AIR).
39 . Smt. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126 [LNIND 1974 SC 142]: (1974) 2 SCC 393 [LNIND 1974 SC 142].
40 . Dhannalal v. Kalawatibai, AIR 2002 SC 2572 [LNIND 2002 SC 412]: (2002) 6 SCC 16 [LNIND 2002 SC 412], para 23 at p. 2580 (of
AIR).
41 . I.T.K. Sundaram v. Co-op. Sugars Ltd., Chittor, AIR 1988 Mad 167 [LNIND 1987 MAD 72].
42 . State of Orissa v. Prathiba Prakash Bhavan, AIR 1995 Ori 62 [LNIND 1994 ORI 197].
43 . Ishar Singh v. National Fertilizer, AIR 1991 SC 1546.
44 . Khadal Penthi v. Hulash Dei, AIR 1989 Ori 137 [LNIND 1989 ORI 107] (FB).
45 . Purusottam Mahakud v. Annapurna Mahakud, AIR 1997 Ori 73.
46 . Shahnaz Shaharyari v. Dr. Vijay Yashwant Gawande, AIR 1995 Bom 30 [LNIND 1994 BOM 247].
47 . Omkar Singh v. Regional Transport Authority, Bareilly, AIR 1991 All 239 [LNIND 1991 ALL 120].
48 . Kalayan Kumar Dutta Gupta v. B.M. Verma, AIR 1995 Cal 140 [LNIND 1994 CAL 98] (DB).
49 . Maickan v. Kanakam, AIR 1991 Ker 316 [LNIND 1990 KER 459].
50 . Jamil Ahmed v. Kumud Rajdeo Singh, AIR 1997 All 374 [LNIND 1996 ALL 944].
51 . A.C. Thrugnanamurthy v. Jamuna Bail, AIR 1990 Mad 242 [LNIND 1989 MAD 154].
52 . Shakti Tubes Ltd v. State of Bihar, AIR 1994 Pat 162(FB).
53 . Padmavathi Constructions v. AP Industrial Infrastructure Corpn. Ltd., AIR 1997 AP 1 [LNIND 1996 AP 554].
54 . N. Sudershan Reddy v. Kannamma, AIR 1994 AP 116 [LNIND 1993 AP 442].
55 . Veerabhadrappam v. Virupaxappa Totappa Bilebal, AIR 1998 Kant 346 [LNIND 1998 KANT 109].
56 . Kousalya Ammam v. Valliammai Ammal, AIR 1998 Mad 287 [LNIND 1997 MAD 823].
57 . Anne Besant National Girls High School v. Deputy Director of Public Instruction, (1983) 1 SCC 200.
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58 . LIC of India v. Kiran Sinha, (1986) 2 SCC 553.

59 . S. Swvigaradoss v. Zonal Manager, FCI, AIR 1996 SC 1182 [LNIND 1996 SC 200].
60 . Prathama Bank, Head Office, Moradabad v. Vijay Kumar Goel, (1989) 4 SCC 441 [LNIND 1989 SC 407].
61 . Abdul Kadir v. Dharma, (1896) ILR 20 Bom 190.
62 . Appaya v. Padappa, (1899) ILR 23 Bom 122, 130; Nagindas v. Somnath, AIR 1932 Bom 122: (1932) ILR 56 Bom 242.
63 . State of Gujarat v. Rajesh Kumar, AIR 1996 SC 2664 [LNIND 1996 SC 2298].
64 . Murari v. Suba, (1882) ILR 6 Bom 725, 727.
65 . AIR 1995 SC 94 [LNIND 1994 SC 779].
66 . AIR 1959 SC 577 [LNIND 1958 SC 172].
67 . (1965) 7 SCC 559.
68 . AIR 1975 SC 1409 [LNIND 1975 SC 120].
69 . Pralhad Banduji Lodhi v. Collector & the Disrict. Magistrate, AIR 2001 Bom 416 [LNIND 2001 BOM 543].
70 . Palghat v. State of Kerala, (1994) 1 SCC 359.
71 . Marimuthu v. Savarimuthu, (1999) 1 MLJ 480 [LNIND 1998 MAD 1454] (Mad); Union of India v. Registrar, CAT, Chennai, (2001) 2 MLJ
110 [LNIND 2001 MAD 174] (Mad); P. Maragathamani v. General Manager, BHEL, Tiruchirapalli, (2006) 1 MLJ 480 [LNIND 2006 MAD
250] (Mad) F.B.
72 . Raghunath v. Janardan, (1891) ILR 15 Bom 599; Mayashankar v. Hari Shankar, (1886) ILR 10 Bom 661.
73 . Raj Kisto v. Nobaee, (1864) 1 WR 351.
74 . Kanji v. Arjun, (1894) ILR 18 Bom 115.
75 . Abdul Kadir v. Dharma, (1896) ILR 20 Bom 190.
76 . Ram Dulari Saran v. Yogeshwar, (1969) Cri LJ 133.
77 . Jagganath v. Akali, (1894) ILR 21 Cal 463.
78 . Ratansey v. Meghji, AIR 1934 Bom 43: (1934) ILR 36 Bom LR 901; Abdul Rajak v. Adam Usman, AIR 1935 Bom 35: (1935) 37 Bom LR
603.
79 . Ambalal Sarabhai v. Phiroz, AIR 1939 Bom 35: (1938) 40 Bom LR 1213.
80 . Mansoorali v. Taiyabali, AIR 1935 Nag 156.
81 . Appaya v. Padappa, (1899) ILR 23 Bom 122; Keshavlal v. Bai Girja, (1900) ILR 24 Bom 13, 2223; Vallabha v. Madhusudanan, (1889) ILR 12
Mad 495; Ganapati v. Bharati, (1894) ILR 17 Mad 222.
82 . Krishnasami v. Virasami, (1887) ILR 10 Mad 133.
83 . Nathu v. Keshawji, (1902) ILR 26 Bom 174.
84 . As to defamation for expulsion from caste, see the cases : Raghunath v. Janardan, (1891) ILR 15 Bom 599; Nathu v. Keshawji, (1902) ILR
26 Bom 174; Gobind Das v. Bishamber Das, AIR 1917 PC 203: (1917) ILR 39 All 561 : 44 IA 192.
85 . Rama v. Shivram, (1882) ILR 6 Bom 116.
86 . Srinivasalu Naidu v. K. Munnuswami Naidu, AIR 1967 Mad 451 [LNIND 1966 MAD 136].
87 . Vasudev v. Vamnaji, (1881) ILR 5 Bom 80.
88 . Radha Krishna Das v. Ramana Swami, AIR 1949 Ori 1; Loke Nath v. Dasarathi, (1905) ILR 32 Cal 1072.
89 . Advocate-General of Bombay v. Yusuf Ali, AIR 1921 Bom 338: (1922) 24 Bom LR 1060 [LNIND 1921 BOM 51].
90 . Koil Pillai v. Territorial Commander, Territorial Head Quarters, Salvation Army, AIR 1994 Mad 27 [LNIND 1992 MAD 460].
91 . Devchand v. Ghanashyam, AIR 1935 Bom 361: (1935) 37 Bom LR 417.
92 . Sri Sunkar v. Sidha, (1843) 3 MIA 198; Shankara v. Hanma, (1878) ILR 2 Bom 470; Andaniswami v. Todadswami, AIR 1921 Bom 140:
(1921) ILR 45 Bom 590, pp 595-96.
93 . Striman Sadagopa v. Kristna, (1863) 1 Mad HC 301, p. 308.
94 . Narayan v. Krishnaji, (1886) ILR 10 Bom 233; Karuppa v. Kolanthayan, (1884) ILR 7 Mad 91; Sangapa v. Gangapa, (1878) ILR 2 Bom 476;
Babu v. Thukra, (1921) 41 Mad LJ 287.
95 . Madhusudan v. Shankaracharya, (1909) ILR 33 Bom 278.
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1 . Rungacharyar v. Rungasami, (1909) ILR 32 Mad 291.

2 . Sardruddin v. H.P.S.M.S. Durga, AIR 1977 Bom 38 [LNIND 1976 BOM 148].
3 . Ramachandra Tripathy v. Maguni Tripathy, AIR 1951 Ori 64; Krishnasami v. Krishnamacharyar, (1882) ILR 5 Mad 313; Srinivasa v. Thiruvengada,
(1888) ILR 11 Mad 450. See explanation I to the section.
4 . Mamat Ram v. Bapuram, (1888) ILR 15 Cal 159; Dinonath v. Pratap Choudhry, (1900) ILR 27 Cal 30; Debendra v. Satyacharan, AIR 1927 Cal
783: (1927) ILR 54 Cal 614; Sayad Hasheem v. Husai Sha, (1889) ILR 13 Bom 429; Tolapala v. Venkata, (1896) ILR 19 Mad 62; Subba Raju
v. Venkatachariar, (1905) ILR 28 Mad 23; Hira v. Bachu, AIR 1916 Pat 215; Luton v. Prayag 4 Pat LJ 531.
5 . Ramaswamy v. Lakshman, AIR 1939 Mad 886 [LNIND 1939 MAD 109]: (1940) ILR Mad 40.
6 . Suryanarayana v. Rama Rao, AIR 1953 Mad 701 [LNIND 1952 MAD 195]; Sarvar Lal v. Ram Narain, AIR 1959 AP 307 [LNIND 1958
AP 45]; Ramaswamy v. Lakshmanan, AIR 1939 Mad 886 [LNIND 1939 MAD 109].
7 . Sivagnana v. Chidambara, (1954) ILR 1338.
8 . AIR 1961 SC 1720 [LNIND 1961 SC 217]: [1962] 2 SCR 509 [LNIND 1961 SC 217]; G. Naik v. Hazania Temple of Shri Maya Quelbai,
AIR 1976 Goa 20.
9 . Maharaj Narain v. Shashi, (1915) ILR 37 All 331; Shridhar Misra v. Jaichandra Vidyalankar, AIR 1959 All 598 [LNIND 1958 ALL 176].
10 . Khalil Ahmed v. Siddiq Ahmad, AIR 1974 All 382 [LNIND 1964 ALL 20].
11 . Muhammad v. Sayad Ahmed, (1861) 1 Bomb HC App xviii.
12 . Muhammad v. Sayad Ahmed, (1861) 1 BHC App xviii; Ghelabhai v. Hargowan, (1912) ILR 36 Bom 94; Girjashankar v. Murlidhar, AIR 1921
Bom 209: (1921) ILR 45 Bom 234.
13 . Mamat Ram v. Bapu Ram, (1888) ILR 15 Cal 159.
14 . Dino Nath v. Pratap Chandra, (1900) ILR 27 Cal 30; Gadadhar v. Puna Bewa, AIR 1971 Ori 155 [LNIND 1970 ORI 29].
15 . Debendra v. Satya Charan, AIR 1927 Cal 783: (1927) ILR 54 Cal 614.
16 . Tholappala v. Venkata, (1896) ILR 19 Mad 62; Subbaraya v. Vedantachariar, (1905) ILR 28 Mad 23.
17 . Ramlingachi v. Elayyaperuma, AIR 1937 Mad 403 [LNIND 1937 MAD 13]: (1937) Mad WN 143.
18 . Lima v. Rama, (1889) ILR 13 Bom 548; Gursangaya v. Tamana, (1892) ILR 16 Bom 281.
19 . Shankara v. Hanma, (1878) ILR 2 Bom 470.
20 . Murari v. Suba, (1882) ILR 6 Bom 725; Gadigeya v. Basaya, (1910) ILR 34 Bom 455.
21 . Kasam Khan v. Kaji Isub, AIR 1926 Bom 161: (1926) ILR 50 Bom 148; Debendra v. Satya Charan, AIR 1927 Cal 783: (1927) ILR 54 Cal
614, 623; Sayad Hashim v. Husseinsha, (1889) ILR 13 Bom 429, 433; Narasimma v. Kristna, (1871) 6 MHC 449; Krishnama v. Krishnasami,
(1879) ILR 2 Mad 62 : 656 IA 120; Shankar v. Malhar, AIR 1931 Bom 273: (1931) ILR 33 Bom LR 479; Chunnu Dat v. Babu Nandan,
(1910) ILR 30 All 527; Hira v. Bachu, (1916) 1 Pat LJ 381; Lutan v. Prayag, (1919) 4 Pat LJ 53; Gopal Rao v. W. Siva Ramiah, AIR 1953 Hyd
1: (1952) ILR Hyd 481.
22 . Sayad Hashim v. Husseinsha, (1889) 13 Bom 429, 433.
23 . Narasimma v. Kristna, (1871) 6 MHC 449.
24 . Krishnama v. Krishnasami, (1879) 2 Mad 62 : 656 IA 120.
25 . Shankar v. Malhar, (1931) 33 Bom LR 479 : (31) AB 273.
26 . Chumu Dat v. Babu Nandan, (1910) 30 All 527.
27 . Hira v. Bachu, (1916) 1 Pat. LJ 381; Lutan v. Prayag, (1919) 4 Pat LJ 53.
28 . Gopal Rao v. W. Siva Ramiah, 1952 Hyd 481 : (1953) A Hyd. 1.
29 . Abdul Rahiman Musaliar v. T.K. Muhammed Sahib, AIR 2003 Ker 84 [LNIND 2002 KER 446].
30 . T.M. Muhammad Sahib v. Arakkal Mohammad Ibrahim, AIR 2007 (NOC) 1104(Ker) : 2007 (2) Ker LT 56 (DB).
31 . Abdul Suban v. Syed Tharu Hussain, AIR 2007 (NOC) 817(Mad) (Madurai Bench) : (2007) 1 MLJ 138 [LNIND 2006 BMM 63] (Mad).
32 . Punjab Wakf Board v. Satish Kumar, AIR 2007 P&H 141 : (2008) 149 PLR 201 [LNIND 2007 PNH 39].
33 . Yashpal Lala Shiv Narain v. Allatala Tala Malik Wakf Ajakhan Mus, AIR 2006 All 115: 2006 (2) ALJ 204.
34 . Aliyathammada Beethathabiyyapura Pookoya Haji v. Pattakkal Cheriyakoya, AIR 2003 Ker 366 [LNIND 2003 KER 341] (DB).
35 . Ibid, at page 372.
36 . Ibid, at page 373.
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37 . Wakf Imambara Imlipura, Khandwa v. Smt. Khursheeda Bi, AIR 2009 MP 238(DB).
38 . Ibid, at page 340.
39 . Sheik Mohammed v. Shah Abdul Aul Aulad Family Charitable Trust, AIR 2004 Mad 287 [LNIND 2003 MAD 1528]: 2004 (1) Mad LJ 477.
40 . Tamil Nadu Wakf Board v. S.A. Syed Massod, (1995) 2 MLJ 514 [LNIND 1995 MAD 182] : 2 LW 308.
41 . Janab Dr. Hisamuddin Papa Saheb v. E. Niyamathulla, (2007) 2 MLJ 1069 [LNIND 2007 MAD 546] (Mad).
42 . Abdul Majeed Musliyar v. MT Mammad Koya, AIR 2002 Ker 71 [LNIND 2001 KER 164].
43 . S. Mohammed v. Shah Abdul Anl Anlad Family Charitable Trust, AIR 2004 Mad 287 [LNIND 2003 MAD 1528].
44 . Sitaram Bhat v. Sitaram Ganesh, (1869) 6 BHC 250; Raja Valad v. Krishnabhat, (1879) ILR 3 Bom 232; Hira v. Bachu, (1916) 1 Pat LJ 381;
Chunnu v. Babu, (1910) ILR 32 All 527.
45 . Kashi Chandra v. Kailash Chandra, (1899) ILR 26 Cal 356.
46 . Ramchandra Tripathy v. Maguni Tripathi, AIR 1951 Ori 64; Dinanath v. Sadashiv, (1879) ILR 3 Bom 9; Ghelabhai v. Hargowan, (1912) ILR 36
Bom 94; Kali Kanta v. Gouri, (1890) ILR 17 Cal 806.
47 . Tripathy v. Tripathy, (1950) ILR Cut 337.
48 . Murari v. Suba, (1882) ILR 6 Bom 725; Dhadphale v. Gurav, (1882) ILR 6 Bom 122.
49 . Krishnama v. Krishnasami, (1879) ILR 2 Mad 62 : 6 IA 120.
50 . Bhagoji v. Babu, (1920) ILR 44 Bom 733 : (1920) 22 Bom LR 410 [LNIND 1919 BOM 223]; Chandi v. Rampratap, (1953) ILR Raj 144;
Khairathi v. Devi Sahai, (1974) ILR Raj 131 : 1974 Raj LW 99.
51 . Dino Nath v. Pratap Chandra, (1900) ILR 27 Cal 30; Bheema Charyulu v. Kothakota, (1907) 17 Mad LJ 493; Durga Charn v. Rajbala, (1906) 4
Cal LJ 469; Re Venkata Rao, AIR 1954 Mad 346 [LNIND 1953 MAD 65].
52 . Kunj Behari v. Mst Naraini, AIR 1923 All 425: (1923) ILR 45 All 437.
53 . Barsati v. Chamru, (1907) ILR 29 All 683.
54 . Fulchand v. Harilal, AIR 1926 Bom 69: (1926) ILR 50 Bom 124.
55 . Mehta Jethalal v. Jamiatram, (1888) ILR 12 Bom 225; Pragji v. Govind, (1887) ILR 11 Bom 534.
56 . Girdhar v. Kalya, (1881) ILR 5 Bom 83; Nemchand v. Savaichand, (1866) ILR 5 Bom 84.
57 . Lalji v. Walji, (1895) ILR 19 Bom 507.
58 . Nagindas v. Somnath, AIR 1932 Bom 122: (1932) ILR 56 Bom 242.
59 . Shardaben Kantilal Panchal v. Life Insurance Corporation of India, AIR 1989 Guj 1 [LNIND 1988 GUJ 83] (DB); LIC of India v. Kiran Sinha,
(1986) 2 SCC 553.
60 . LIC v. Ajit Gangadhar Shanbhag, AIR 1997 Kant 157 [LNIND 1996 KANT 12] (DB).
61 . Bond Food Products Pvt. Ltd. v. Planters, Airways Ltd., AIR 2004 Mad 538 [LNIND 2004 MAD 592].
62 . Ibid.
63 . Ibid.
64 . General Commerce Ltd v. National Insurance Co. Ltd., AIR 2003 Del 419 [LNIND 2003 DEL 450].
65 . Krishnasami v. Samaram, (1907) ILR 30 Mad 158.
66 . AVGP Chettiar & Sons v. T. Palanisamy Gounder, AIR 2002 SC 2171 [LNIND 2002 SC 390].
67 . Chinnasamy Naidu v. K.S. Sengoda Gounder, AIR 2004 Mad 370.
68 . Ratan Singh v. Bailey Ram, AIR 1952 Punj 163; Mana Gobinda v. Sachidanandaswami, AIR 1953 Ori 151, (1953) ILR Cut 423; Kuber
Mohapatra v. Nilakantheswar Deb, AIR 1974 Ori 21 [LNIND 1973 ORI 30]; District Council of UBMC v. Salvador N. Mathias, (1988) 2 SCC
31 [LNIND 1988 SC 43].
69 . Thiruvenkata Ramanuja v. Venkatacharlu, AIR 1947 PC 53: (1947) ILR Mad 436 : 73 IA 156; Anandrao v. Shankar, (1883) ILR 7 Bom 323;
Krishnasami v. Krishanama, (1882) ILR 5 Mad 313; Vengamuthu v. Pandaveswara, (1883) ILR 6 Mad 151; Venkatachalapat v. Subbarayudu,
(1890) ILR 13 Mad 293; Kalidas v. Gor Parjaram, (1891) ILR 15 Bom 309.
70 . Ratan Singh v. Bailey Ram, AIR 1952 Punj 163.
71 . Ugam Singh v. Kesrimal, AIR 1971 SC 2540 [LNIND 1970 SC 461], p. 2544.
72 . Dayalal v. Pyarchand, (1972) ILR Raj 149, 151.
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73 . Narahari v. Badrinath Temple Committee, AIR 1952 SC 245 [LNIND 1952 SC 32]: (1952) SCR 849 [LNIND 1952 SC 32] : (1952) SCJ
313.
74 . Bashir Abbas Kudale v. Shri Mahadeo, the main deity in temple, AIR 2003 Bom 224 [LNIND 2002 BOM 988]: 2003 (2) Mh LJ 246.
75 . Sadhu Sri Vaishnavar Nambi Srinivasa Iyengar v. K.K.V. Annah Srinivasachariar, AIR 1990 Mad 375 [LNIND 1989 MAD 11] (Ratnam J.).
76 . Shah Abdul Bagi v. State, AIR 1988 All 1 [LNIND 1987 ALL 117].
77 . State of Karnataka v. T. Srinivas, AIR 1988 Kant 67 [LNIND 1987 KANT 78] (DB); See also State of Karnataka v. Shivanand Fakirappa
Naik, AIR 2003 Kant 185 [LNIND 2003 KANT 83].
78 . (1985) ILR Kant 2460.
79 . Tata Iron & Steel Co. Ltd. v. Padala Appanna, (1984) 48 Fac LR 202 : (1984) BLJR 26.
80 . Harikrishan v. James Trinite, (2001) 3 MLJ 291 [LNIND 2001 MAD 533] (Mad).
81 . Kooni Meera v. Mahomed, (1907) ILR 30 Mad 15; Ram Rao v. Rustumkhan, (1902) ILR 26 Bom 198.
82 . Varkey v. St. Marys Catholic Church, AIR 1997 Kant 337.
83 . Muriandikone v. Shri Ramatha Sethupathi, AIR 1982 Mad 170 [LNIND 1981 MAD 196] (Sethuraman, J).
84 . Radhamohan v. Praharaja, (1959) ILR Cut 437.
85 . Chandu Sajan Patel v. Nyahal Chand, AIR 1950 Bom 192 [LNIND 1948 BOM 136]: 52 BLR 214; Sangabasavaswami v. Mahanta Swami, AIR
1946 Bom 353: (1946) ILR Bom 437 : 48 BLR 100; Manzur Hasan v. Muhammad Zaman, AIR 1925 PC 36: (1925) ILR 47 All 151 : 52 IA
61; in app from, AIR 1921 All 146: (1921) ILR 43 All 692; Sundram v. The Queen, (1883) ILR 6 Mad 203 (FB); Parthasaradi v. Chinnakrishna,
(1882) ILR 5 Mad 304; Sadagopachariar v. Rama Rao, (1903) ILR 26 Mad 376; Mohamed Abdul Hafiz v. Latif Husein, (1897) ILR 24 Cal 524;
Baslingappa v. Dharmappa, (1910) ILR 34 Bom 571; Waman v. Balu, (1920) ILR 44 Bom 410.
86 . Palvannam Pillai v. Ganapathi Ayyar, AIR 1954 Mad 179 [LNIND 1952 MAD 17]: (1952) 1 Mad LJ 552.
87 .Anne Besant National Girls High School v. Deputy Director, Public Instruction, AIR 1983 SC 526 [LNIND 1982 SC 207], (1983) 1 SCC 200
[LNIND 1982 SC 207].
88 . Bank of Baroda v. Moti Bhai, AIR 1985 SC 545 [LNIND 1985 SC 28].
89 . M. Mohana v. Bharathiyar University, (2000) 3 MLJ 536 [LNIND 2000 MAD 766] (Mad).
90 . Orient Transport Co. v. Bharat Credit & Investment, (1987) 4 SCC 421 [LNIND 1987 SC 630] : 1987 AIR 2289.
91 . Food Corporation of India v. Yadav Engineer and Contractor, AIR 1982 SC 1302 [LNIND 1982 SC 116]: (1982) 2 SCC 499 [LNIND 1982 SC
116].
92 . Govindbhai Premji Bhai v. Chief General Manager, Gujarat Telecome Circle, Ahemdabad, AIR 1996 Guj 153.
93 . Union of India v. S. Sasi, AIR 1999 Ker 336.
94 . Gangaram Ratanlal v. Simplex Mills Co. Ltd., AIR 1982 Bom 72 73, para 4.
95 . Sripal v. UP Rajya Sahkari Vikas Bank, AIR 1997 All 114.
96 . Manoharamma H&I Pvt. Ltd. v. Aruna Hotels Ltd., AIR 2004 Mad 344 [LNIND 2004 MAD 238]. See also AIR 2003 SC 2252 [LNIND
2003 SC 430]: (2003) 5 SCC 531 [LNIND 2003 SC 430].
97 . Marwadi Shares & Finance Pvt. Ltd. Company, v. Kishor Kumar Naggi bhai Mavani, AIR 2009 Guj 81 [LNIND 2008 GUJ 355]: 2009 (1) Guj
LH 381 See also Mahesh Kumar v. Rajasthan S.R.T.C., AIR 2006 Raj 56: 2006 (1) Arbi LR 615.
98 . Dharoi Jalashya MUS Mandi Ltd. v. Gujarat KMV Sanstha, AIR 1988 Guj 193 [LNIND 1988 GUJ 73].
99 . Baldeo Kumar Aggarwal v. Managing Director, MP Rajya Laghu Upaj Sahkari Sangh, AIR 1997 MP 147 [LNIND 1996 MP 103]; Kusum Verma
v. Pritam Singh Gulati, AIR 1998 MP 199 [LNIND 1998 MP 441].
100 . Sisir Kana Guhe S. v. Ayakar Grihanirman Samabaya Samity Ltd., AIR 2002 Cal 247 [LNIND 2002 CAL 290].
101 . Hebron Cooperative Housing Society Ltd. v. M.A. Macwan, AIR 2002 Guj 163 [LNIND 2001 GUJ 724].
102 . See also Supreme Co-op. Group Housing Society v. HS Nag and Associates Pvt. Ltd., AIR 1996 SC 2443 [LNINDORD 1996 SC 109].
103 . Ram Murti v. Registrar, Co-operative Societies, Haryana, AIR 2009 Pun & Har 111 : 2009 (1) Rec Civ R 662 : (2009) 3 PLR 775.
104 . Ibid.
105 . S. Thamil Arasan v. R. Narayanan, (2007) 7 MLJ, (Supp) 425 (Mad).
106 . D. Dhanpal v. D. David Livingstone, (2003) 3 MLJ 668 [LNIND 2003 MAD 1649] (Mad).
107 . Victoria Edwar Hall, through Secretary v. M. Samraj, (2001) 3 MLJ 39 [LNIND 2001 MAD 508] (Mad).
108 . Hanuman Meena v. Chandra Singh, AIR 2007 Raj 76(Jaipur Bench).
 Page 98 of 110
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109 . Karam Devi v. Radha Kishan, AIR 1935 Lah 406: (1935) ILR 16 Lah 975.
110 . Goswami Rameshpuri v. Madhukar, AIR 1953 Nag 276.
111 . Ponnusami v. Returning Officer, AIR 1952 SC 64 [LNIND 1952 SC 2]: (1952) SCR 218 [LNIND 1952 SC 2]; Durga Shankar Mehta v.
Raghuraj Singh, AIR 1954 SC 520 [LNIND 1954 SC 97]: (1955) 1 SCR 267 [LNIND 1954 SC 97].
112 . Mahedar Rahaman v. Kanti Chandra, AIR 1935 Cal 10: (1934) ILR 61 Cal 980; Ghulam Nazamuddin v. Akhtar Hussain, AIR 1933 All 765:
(1933) ILR 55 All 1008; Tarachand v. Abdul Kasem, AIR 1938 Cal 359: (1938) 42 Cal WN 441.
113 . Jodhi Singh v. Vedabarat Sarma, AIR 1956 Pat 205; Re Industrial Disputes see Premier Automobiles Ltd. v. Wadke, AIR 1975 SC 2238
[LNIND 1975 SC 299].
114 . Maijuddin v. Janakiballao, AIR 1933 Cal 492: (1933) ILR 60 Cal 438.
115 . Sarat Chandra v. Tarak Chandra, AIR 1924 Cal 982: (1924) ILR 51 Cal 916.
116 . Munshi Ram v. Municipal Committee, AIR 1979 SC 1250 [LNIND 1979 SC 174]: (1979) 3 SCR 463 [LNIND 1979 SC 174] : (1979) 2 SCJ
111 [LNIND 1979 SC 174].
117 . (1988) Delhi Law Times 91.
118 . NDMC v. Satish Chand, AIR 2003 SC 3187 [LNIND 2003 SC 773].
119 . Ibid.
120 . Gurcharan Singh v. Gurdial Kaur, AIR 1982 Raj 91, p. 93 (DB).
121 . Commr of Income-tax, Bhuvneshwar v. Parmeshwari Devi Sultania, (1998) 3 SCC 481 [LNIND 1998 SC 310].
122 . Deepak Prakash v. Jayanta Kumar Bose, AIR 2003 Cal 153 [LNIND 2002 CAL 375].
123 . Dhula Bhai v. State of MP, AIR 1969 SC 78 [LNIND 1968 SC 99].
124 . Som Datta Bukders Ltd. v. Kanpur Jal Sansthan, AIR 2002 All 249 [LNIND 2002 ALL 627].
125 . Raja Ram Kumar Bhargava v. Union of India, (1988) 1 SCC 681 [LNIND 1987 SC 1064].
126 . Gangaram v. Nagindas, (1908) ILR 32 Bom 381.
127 . State of Bombay v. Adamjee Hajee Dawood, AIR 1951 Cal 147 [LNIND 1951 CAL 59]; Valli v. Corpn. of Madras, (1915) ILR 38 Mad 41;
Gangabai v. Vijay Kumar, AIR 1974 SC 1126 [LNIND 1974 SC 142]: (1974) 2 SCC 393 [LNIND 1974 SC 142] : (1974) Mah LJ 602
[LNIND 1974 SC 142]; Gurucharan Singh v. Kamla Singh, AIR 1977 SC 5 [LNIND 1975 SC 333]: (1976) 1 SCR 739 [LNIND 1975 SC
333].
128 . Sadananda v. Union of India, AIR 1956 Cal 317 [LNIND 1955 CAL 10].
129 . Raleigh Investment v. GG in Council, 74 IA 50 : 51 Cal WN 762; Forbes v. Secretary of State, (1915) ILR 42 Cal 151; Kamkhya Narain Singh v.
Union of India, AIR 1966 Pat 305, 312.
130 . State of Madras v. Sri Ramakrishna Mills, AIR 1970 Mad 316 [LNIND 1969 MAD 62].
131 . Balkrishna v. Dattaraya, (1918) ILR 42 Bom 257.
132 . State of Madhya Pradesh v. Lalita Shankar, AIR 1966 MP 327 [LNIND 1964 MP 32].
133 . Shaukat Hussain Beg v. State of Uttar Pradesh, AIR 1959 All 769 [LNIND 1959 ALL 30].
134 . M. Sajjanan v. State of Madras, AIR 1963 Mad 49 [LNIND 1962 MAD 50].
135 . S. Gurudip Singh v. Union of India, AIR 1962 Punj 8.
136 . Cooverji v. Vasant Theosophical Society, AIR 1935 Bom 91: (1934) 36 Bom LR 1245.
137 . Bharmakka v. Mallappa, AIR 1926 Bom 352; Charan Singh v. ICCD Union, AIR 1975 All 111.
138 . Basti Sahkari Ganna Samiti Ltd. v. Suraj N. Upadhavay, AIR 1967 All 218 [LNIND 1965 ALL 106].
139 . Decca Co-op. v. Decca Co-op, AIR 1934 Cal 23: (1933) ILR 60 Cal 1207.
140 . Chandra Bhaga v. Bhika Chand, AIR 1959 Bom 549 [LNIND 1958 BOM 127].
141 . Mulchand v. Rashid Jamshad, AIR 1946 Mad 346 [LNIND 1945 MAD 309]: (1946) ILR Mad 840; Ratanji v. Dhiraj Lal, (1942) ILR Bom
452; but see V. Nanhalal v. Singh Gulab, (1944) ILR Nag 340.
142 . Harnam Singh v. Man Singh, AIR 1961 Punj 133.
143 . Himangshu Bhusan v. Nirmal Kumar, AIR 1962 Cal 488 [LNIND 1961 CAL 102].
144 . Kakinda Co-op. Urban Bank v. Chunnilal, AIR 1966 AP 240 [LNIND 1964 AP 158].
145 . Liquidator of Dauleshwar Co-op. Society v. Hadibandabehara, AIR 1953 Ori 300 [LNIND 1951 ORI 42].
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146 . Krishnaswami Gounder v. JK Co-op, Society, AIR 1976 Mad 1 [LNIND 1974 MAD 248].
147 . EP University v. Trolok Nath, AIR 1953 Punj 3.
148 . Shanker v. Principal, SM College, AIR 1962 All 207 [LNIND 1961 ALL 99].
149 . Smt. Chongtuokhawi v. Union of India, AIR 2008 Gau 6 [LNIND 2007 GAU 239]: 2008 (1) Gau LT 396 (Shillong Bench).
150 . Baldeo Jha v. Ganga Prasad, AIR 1959 Pat 17.
151 . Balwant N. Viswamitra v. Yadav Sadashiv, AIR 2004 SC 4377 [LNIND 2004 SC 797]: (2004) 8 SCC 706 [LNIND 2004 SC 797]. [C.K.
Thakker, J., speaking for the Bench].
152 . Ram Gopal Reddy v. Addl Custodian, AIR 1966 SC 1438 [LNIND 1966 SC 4], 1440; Bibi Abeda Khatoon v. Assisantt Custodian, AIR 1966
Pat 29; Manji Ram Ram Rekh v. Union of India, AIR 1969 Punj 365; Abdul Satar v. Manilal, AIR 1970 Guj 12 [LNIND 1968 GUJ 40], 18;
Nasiban v. Managing Officer, Evacuee Property, AIR 1972 Pat 248.
153 . Custodian General, Delhi v. Rakhi Ram, AIR 1960 Punj 163; Zakiuddin v. Deputy Asst. Custodian, AIR 1963 Pat 11.
154 . Zakhi v. State of Bihar, AIR 1953 Pat 112.
155 . Bibi Abeda Khatoon v. Asst. Custodian, AIR 1966 Pat 29.
156 . Union of India v. Raghav Rao, AIR 1965 AP 337 [LNIND 1965 AP 7].
157 . Faqir Singh v. Gurbachan Kaur, AIR 1961 Punj 16.
158 . Vasudev v. National Savings Bank, AIR 1953 Bom 209 [LNIND 1951 BOM 94].
159 . Devinder Singh v. State of Haryana, AIR 2006 SC 2850 [LNIND 2006 SC 462]: (2006) 5 SCC 720 [LNIND 2006 SC 462].
160 . Ibid., para 17 at p. 2855 (of AIR).
161 . Trimbak v. Gangaram, AIR 1953 Bom 241 [LNIND 1952 BOM 60].
162 . Bhimaji Shankar Kulkarni v. Dundappa, AIR 1966 SC 166 [LNIND 1965 SC 160]; AAA Dadabhai v. Hiralal, AIR 1965 Guj 131 [LNIND
1964 GUJ 83]; Uttamchand v. Vishwanath, AIR 1974 Bom 28 [LNIND 1972 BOM 83]: 75 Bom LR 512; Noor Mohd. v. Fakirappa, AIR
1978 SC 1217 [LNIND 1978 SC 143].
163 . Ram Swarup v. Shikar Chand, AIR 1966 SC 893 [LNIND 1965 SC 305], 897; Mangal Prasad v. Tara Singh, AIR 1971 All 378; Ramji Das v.
Trilok Chand, (1970) 1 SCC 566.
164 . Kedarnath v. Jamuna, AIR 1965 All 116, 120.
165 . B. Sharma Rao H. Ganeshmal v. Head Quarters Asst., (1998) 9 SCC 577.
166 . Gajendra Kumari Devi v. Guru Gadaba, AIR 1966 Ori 198 [LNIND 1966 ORI 67].
167 . Nand Kishore v. Ram Kishan, AIR 1967 SC 1196 [LNIND 1966 SC 159].
168 . Bombay Grain Dealers Assn v. Lakhmichand Vassanji & Co., AIR 1969 Bom 342 [LNIND 1968 BOM 91].
169 . Mirabelle Hotel Co. v. Manu Subedar, AIR 1971 Bom 38 [LNIND 1969 BOM 51].
170 . Sangat Singh v. Perma Nand Bahl, AIR 1970 SC 812.
171 . Munni Devi v. Gokal Chand, AIR 1970 SC 1727 [LNIND 1969 SC 331]; Asharafi Lal v. Mohan Lal, AIR 1970 All 125.
172 . Faquir Singh v. Gurbachan Singh, AIR 1971 Punj 399.
173 . Mohanlal v. Ratna, AIR 1971 Raj 164.
174 . Judith Fernandes v. Conceicao Antonio Fernandes, AIR 1996 SC 2821.
175 . Ram Singh & ors v. Gram Panchayat Mehal Kalan, (1986) 4 Supp SCC 364.
176 . C.V. Subbayya v. P. Anjayya, AIR 1972 SC 1421 [LNIND 1972 SC 49], 1427.
177 . Bankey Singh v. Ram Sabad, AIR 1966 All 367 [LNIND 1965 ALL 15].
178 . Ram Awalamb v. Jata Shankar, AIR 1969 All 526(FB) : (1968) All LJ 1108.
179 . Krishna Chandra v. Hemamani, AIR 1971 Ori 140 [LNIND 1970 ORI 78].
180 . Raj Kishore Prasad v. Ram Pratap Pandey, AIR 1967 SC 801 [LNIND 1966 SC 289].
181 . Dalel v. Baroo, AIR 1967 All 59, 61 (FB).
182 . Govindasami Pillai v. T.M. Srinivasa Chettiar, AIR 1969 Mad 172 [LNIND 1968 MAD 11].
183 . Bikrama Singh v. State of Uttar Pradesh, AIR 1970 All 344 [LNIND 1969 ALL 39] (FB) : (1969) All LJ 748.
184 . Nathuram Arjun v. Siyasharan Harprasad, AIR 1970 MP 79 [LNIND 1968 MP 20], 81.
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185 . Shevantabai Maruti Kalhatkar v. Ramu Rakhamaji Kalhatkar, (1998) 8 SCC 76 [LNIND 1998 SC 958].
186 . Sooraj v. SDO Delhi, (1995) 2 SCC 45.
187 . Kashiram v. State of Madhya Pradesh, AIR 1996 MP 247 [LNIND 1996 MP 65].
188 . State of Mizoram v. Biakchhawna, (1995) 1 SCC 156 [LNINDORD 1994 SC 49].
189 . Raghunath Jena v. Adkikanda Panda, 2008 (4) Civil Court C 126 (Orissa).
190 . Hatti v. Sunder Singh, AIR 1971 SC 2320 [LNIND 1970 SC 360].
191 . Laxmi Devi v. Akul Mahato, AIR 1972 Cal 104 [LNIND 1971 CAL 172].
192 . State of Madras v. K. Melamatam, AIR 1965 SC 1570 [LNIND 1965 SC 45].
1 . SNP Nadar v. Tillai Yadi Pillavar Temple Charity, AIR 1971 Mad 253 [LNIND 1970 MAD 17], p. 257; Gadadhar v. Puna Bewa, AIR 1971
Ori 155 [LNIND 1970 ORI 29].
2 . M. Venkata Ramana v. Sri Rama Mandiram, AIR 1966 AP 197 [LNIND 1964 AP 121].
3 . Bala Krishna Mehta v. Corpn. of Madras, AIR 1962 Mad 7 [LNIND 1961 MAD 58].
4 . Palanisami v. State of Madras, AIR 1960 Mad 8 [LNIND 1958 MAD 107]; see also s 20, Bombay Sales Tax Act 1946; Kamala Mills v. State
of Bombay, AIR 1965 SC 1942 [LNIND 1965 SC 147].
5 . Kalash Nath v. Batala Municipality, AIR 1962 Punj 389(FB).
6 . Gandhi Agencies v. Municipal Council, Barshi, AIR 1995 Bom 169 [LNIND 1995 BOM 90].
7 . Bootan Bai v. Durga Prasad, AIR 1959 MP 410 [LNIND 1959 MP 135]; Bharawan Bai v. Lila Ram, AIR 1963 Punj 118; DCG Mills Co. v.
Kota Municipality, AIR 1978 Raj 177 [LNIND 1978 RAJ 27].
8 . Pabhajan Tea Co. v. Dy. Commr., AIR 1963 Assam 62(FB).
9 . Kewalram v. R. Manohardas, AIR 1965 Bom 185 [LNIND 1964 BOM 47].
10 . Thomas v. Hotz Hotels Ltd., AIR 1969 Del 3 [LNIND 1967 DEL 142].
11 . Trustees of Port of Madras v. Bombay Co., AIR 1967 Mad 318 [LNIND 1966 MAD 35], 325.
12 . Azad Ice Factory v. Gujarat Industrial Investment Corporation, AIR 2007 Guj 29 [LNIND 2006 GUJ 466]: 2007 (2) Guj LH 243.
13 . Ibid., para 8 at pp. 3132 (of AIR).
14 . Dewa Singh v. Fazal Dad, AIR 1928 Lah 562: (1929) 10 Lah 338.
15 . Shuttrughon v. Hokna, (1890) ILR 16 Cal 159.
16 . Sharifa v. Munekhan, (1901) ILR 6 Bom 574.
17 . Kishori v. Chunder Nath, (1887) ILR 14 Cal 644; Naginlal v. Official Assignee, (1911) ILR 35 Bom 473; Duni Chand v. Muhammad, (1917) PR
No 22 p. 83 : 40 IC 220 (suits against Official Assignee); Parsha v. Lagmya, (1889) ILR 13 Bom 83; Bhiva v. Vithya, (1901) ILR 25 Bom
186; Mahadu v. Krishna, AIR 1922 Bom 410: (1927) ILR 47 Bom 95.
18 . Sri Mahadev Jew v. Balkrishna, AIR 1952 Cal 763 [LNIND 1951 CAL 226].
19 . Narayyanaswami v. Balasundaram, AIR 1953 Mad 750 [LNIND 1951 MAD 242].
20 . Mahadeolal v. New Darjeeling Union Tea Co., AIR 1952 Cal 58 [LNIND 1951 CAL 52]; Ramachandra v. Joshi Mohini, AIR 1920 Cal 789:
(1920) ILR 47 Cal 901; Mohinuddin v. Tinnevelly Mills Ltd., AIR 1928 Mad 571 [LNIND 1927 MAD 394].
21 . ITC Ltd. v. Rakesh Behari Srivastava, AIR 1997 All 323 [LNIND 1997 ALL 12].
22 . Sreenivasa Distilleries v. S.R. Thyagarajan, AIR 1986 AP 328 [LNIND 1985 AP 258] 29.
23 . Wuwttem Bergische Und Badshee Vereinighe Verisicherung Sgesell Schaften Aktiengeselischaft v. Coromandel Crucibles Industry, Samalkota, AIR 1990
AP 97 [LNIND 1989 AP 213] (DB).
24 . Hiraben v. State of Gujarat, AIR 1987 Guj 225 [LNIND 1986 GUJ 139] (DB).
25 . Jitendra Nath Biswas v. Empire of India and Ceylon Tea Co., AIR 1990 SC 225 [LNIND 1989 SC 413].
26 . K. Mahadeva Sastri v. Director, Post-Graduate Centre, Anantapur, AIR 1982 AP 176(DB).
27 . Jitendra Nath Biswas v. Empire of India and Ceylone Tea Co., (1984) 3 SCC 582.
28 . AIR 1969 SC 78 [LNIND 1968 SC 99].
29 . Srikant Kashinath Jituri v. Municipal Corpn. Belgaum, (1994) 6 SCC 572 [LNIND 1994 SC 1445].
30 . Vankamamidi Venkata Subbarao v. Chatlaplli Seetharamaratna, (1997) 5 SCC 460 [LNIND 1997 SC 592]; S. Vanathan Muthuraja v.
Ramalingam, (1997) 6 SCC 143 [LNIND 1997 SC 2022].
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31 . Kamala Mills Ltd. v. State of Bombay, AIR 1965 SC 1942 [LNIND 1965 SC 147]: (1966) 1 SCR 64 [LNIND 1965 SC 147]; State v. Manish
Maity, AIR 1971 Cal 281 [LNIND 1970 CAL 237], 283.
32 . Bharat Kala Bhandar v. Muni Committee, Dhamangaon, AIR 1966 SC 249 [LNIND 1965 SC 105]: (1965) 3 SCR 199; Secy of State v. Mask &
Co., 67 IA 222, AIR 1940 PC 105 [LNIND 1940 PC 9]; Umesh Jha v. State, AIR 1956 Pat 425; Magiti Sasmal v. Pandab Bissori, AIR 1962
SC 547 [LNIND 1961 SC 305]; Sudhan Chandra v. Kshetra Mohan, AIR 1958 Cal 65 [LNIND 1956 CAL 133]; Kundan v. Sardar Ramji Lal,
AIR 1959 Punj 206; Lalithamma v. Kannan, AIR 1966 Mys 178; Tirumalaisami v. Villagers of Kadambur, AIR 1969 Mad 108 [LNIND 1967
MAD 137]; Kul Bhushan v. Faquira, AIR 1976 P&H 341; CN Co-op. HB Society v. Ashok, AIR 1976 Del 299 [LNIND 1975 DEL 151]; MP
Electricity Board, Jabalpur v. Vijaya Timber Co., (1997) 1 SCC 68 [LNIND 1996 SC 2063].
33 . Luthra Union v. Samua Uraon, AIR 1948 Pat 49: (1947) ILR 26 Pat 377; Manager, Court of Wards v. Moolchand, AIR 1949 Nag 226: (1941)
ILR Nag 279; Ramkaran v. Surajmal, AIR 1938 Nag 80, (1938) ILR Nag 268.
34 . Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718 [LNIND 1966 SC 56]: (1966) 3 SCR 617 [LNIND 1966 SC 56].
35 . Kamala Mills Ltd. v. State of Bombay, AIR 1965 SC 1942 [LNIND 1965 SC 147].
36 . Maya Devi v. Inder Narain, AIR 1947 All 118, 120; Mewa v. Baldeo, AIR 1967 All 358; Shanti Swarup v. Ashrafe, AIR 1941 All 61: (1941)
ILR All 250; Parameshari v. Krishna Kumar, AIR 1944 All 1947: (1944) ILR All 330; Antu v. Ghulam, (1884) ILR 6 All 110.
37 . Satyanarayana v. Narayan, AIR 1952 Mad 106 [LNIND 1951 MAD 377].
38 . Bhattiya Co. Hsg Society v. Patel, AIR 1953 SC 16 [LNIND 1952 SC 64]: (1953) SCR 185 [LNIND 1952 SC 64] : (1953) SCJ 642.
39 . Rajendra Sheshrao Shengde v. Shobhatai S. Ravate, AIR 2007 Bom 90 [LNIND 2007 NGP 22]: 2007 (3) Mah LJ 431 [LNIND 2007 NGP
22] (Nagpur Bench).
40 . Yuth Development Co-operative Bank Ltd., Kolhapur v. Balasaheb Dinkarrao Salokhe, AIR 2008 Bom 167 [LNIND 2008 BOM 339]: 2008 (5)
Mah LJ 326 [LNIND 2008 BOM 339].
41 . Vysya Co-operative Bank Ltd. v. G. Keerthana, AIR 2008 Kar 25: 2008 (2) Knt LJ 380.
42 . V.P. Fakrudheen Haji v. State Bank of India, AIR 2009 Ker 78 [LNIND 2008 KER 696]: 2009 (1) Ker LT 227 [LNIND 2008 KER 696]
(DB).
43 . M/s Cambridge Solutions Ltd., Bangalore, v. Global Software Ltd., AIR 2009 Mad 74 [LNIND 2008 MAD 3304].
44 . Mohan Lal v. Dwarka Prasad, AIR 2007 Raj 129 [LNIND 2007 RAJ 92]: 2007 (3) Raj LW 2656 (Jaipur Bench).
45 . Ibid., para 27 at p. 143 (of AIR). (Per Dr. V. Kothari, J.).
46 . Ch. Ranganath Raju v. Bank of India, AIR 2007 Ori 43 [LNIND 2006 ORI 81] (DB).
47 . Ibid., para 24 at pp. 4748.
48 . Annamreddi Bodayyar v. Lokanarapu Ramaswamy, (deceased), (1984) (Supp) SCC 391.
49 . Babu Ram v. Gram Sabha Buhavi, (1988) Supp SCC 485.
50 . Bidyadhar Roul v. State, AIR 1994 Ori 156 [LNIND 1993 ORI 76].
51 . Ponnurangam v. Chairman, Slum Clearance Board of Tamil Nadu, Madras, AIR 1996 Mad 274 [LNIND 1996 MAD 52].
52 . Dr. Devi Dass v. Pachora Municipal Council, AIR 1998 Bom 363 [LNIND 1998 BOM 515] (DB).
53 . Bhaiyalal v. State of Madhya Pradesh, AIR 1998 MP 234 [LNIND 1997 MP 255].
54 . Mansukh Lal Dhanraj Jain v. Eknath Vitthal Ogale, (1995) 2 SCC 665 [LNIND 1995 SC 218].
55 . Dwarka Prasad Agarwal v. Ramesh Chandra Agarwala, AIR 2003 SC 2696 [LNIND 2003 SC 539]; See also Sahebgonda v. Ogeppa, AIR 2003
SCW 3088.
56 . Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, (1976) 1 SCC 496 [LNIND 1975 SC 299] : AIR 1975 SC 2238 [LNIND 1975 SC
299].
57 . AIR 1995 SC 1715 [LNIND 1995 SC 618]: (1995) 5 SCC 75 [LNIND 1995 SC 618].
58 . Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmadabad, AIR 2002 SC 997 [LNIND 2002 SC 103]: (2002) 2 SCC 542
[LNIND 2002 SC 103] : 2002 (2) Mah LR 823.
59 . Ibid., at page 1003 (of AIR).
60 . Wolverhampton New Waterworks Co. v. Hawkesford, [1859] 6 CB, (NS) 336.
61 . Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa, (2010) 4 SCC 299 : 2010 (1) Civil CC 545 (SC).
62 . Ibid., at page 548 (of Civil CC).
63 . Secretary of State v. Mask & Co., 67 IA 222 : AIR 1940 PC 105 [LNIND 1940 PC 9]; Brij Raj Krishna v. S.K. Shaw, AIR 1951 SC 115
[LNIND 1951 SC 7]: (1951) SCR 145 [LNIND 1951 SC 7] : 1951 SCJ 238 [LNIND 1951 SC 7]; Magiti Sasmal v. Pandab Bissoi, AIR 1962
SC 547 [LNIND 1961 SC 305]; Jagadish v. Ganga Prasad, AIR 1959 SC 492 [LNIND 1958 SC 156]: (1959) SCJ 495 [LNIND 1958 SC
 Page 102 of 110
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156]; Ujjambhai v. State of Uttar Pradesh, AIR 1962 SC 1621 [LNIND 1962 SC 584]; Wolverhampton New Waterworks Co. v. Hawkesford,
(1859) 6 CB, (NS) 336; Neville v. London Express Newspaper Ltd., AIR 1919 Cal 368; Liquidator, Janda Rubber Works v. Collector of Bombay,
AIR 1950 EP 204; Municipal Board, Bareilly v. Abdul Aziz, AIR 1934 All 795: (1934) All LJ 739; Manager, Court of Wards v. Moolchand, AIR
1949 Nag 226; State of Bombay v. Maharashtra Sugar Mills Ltd., AIR 1951 Bom 68 [LNIND 1950 BOM 96]; Bhaishankar v. Municipal Corpn.
of Bombay, (1907) ILR 31 Bom 604; Jyoti Prasad v. Amba Prasad, AIR 1933 All 358: (1933) 55 All 406; Mawal Kishore v. Municipal Board, AIR
1937 All 365: (1937) All LJ 336; Hamid Baig v. Aresh Balda, AIR 1956 Hyd 10: (1955) ILR Hyd 737 (FB); State Medical Faculty v. Kshetra
Bhusan, AIR 1961 Cal 31 [LNIND 1960 CAL 84]: (1960) 64 CWN 842; Ranga Singh v. Gurban Singh, AIR 1961 Punj 166: (1960) ILR 1
Punj 126; Balakrishna Mehta v. Corpn. of Madras, AIR 1962 Mad 7 [LNIND 1961 MAD 58]: (1962) ILR Mad 137 : (1962) 1 MLJ 92
[LNIND 1961 SC 192], (FB); Patna Municipality v. Ram Bachan, AIR 1961 Pat 142: (1961) ILR 40 Patna 121 : (1960) Pat LR 269 (FB);
Kishun Sah v. Harinandan Prasad Sah, AIR 1963 Pat 79(FB).
64 . Chhedi v. Smt. Indrapati, AIR 1972 All 446.
65 . Hirabhai Nanubhai Desai v. The State of Gujarat, AIR 1991 Guj 1 [LNIND 1990 GUJ 62] (DB).
66 . Dewaji v. Ganpatlal, AIR 1969 SC 560 [LNIND 1968 SC 195]: (1969) 1 SCR 573 [LNIND 1968 SC 195].
67 . Ram Swarup v. Shikarchand, AIR 1966 SC 893 [LNIND 1965 SC 305]: (1966) 2 SCR 553 [LNIND 1965 SC 305]; State of West Bengal v.
Indian Iron and Steel Co. Ltd., AIR 1970 SC 1298 [LNIND 1970 SC 207]: (1970) 2 SCC 39 [LNIND 1970 SC 207].
68 . Bharat Kala Bhandar v. Municipal Committee, Dhamangaon, AIR 1966 SC 249 [LNIND 1965 SC 105]; State of Madhya Pradesh v. Khoda Bai
Patel, AIR 1971 MP 254 [LNIND 1968 MP 110].
69 . Ram Swarup v. Shikar Chand, AIR 1966 SC 893 [LNIND 1965 SC 305]; Kalachand v. D. Chakraborty, AIR 1967 Cal 172 [LNIND 1965
CAL 87]; Sahakari Ganna Samiti v. Mahendra, AIR 1967 All 134 [LNIND 1966 ALL 15].
70 . Gurbax Singh Chanda Singh v. Financial Commr, (1991) Supp 1 SCC 167; Sardara Singh v. Sardara Singh, (1990) 4 SCC 90.
71 . Srinivasa Panthulu v. State of Andhra Pradesh, AIR 1971 SC 71 [LNIND 1969 SC 387]: (1970) SCR 714; Union of India v. Tarachand Gupta
& Bros., AIR 1971 SC 1558 [LNIND 1971 SC 79]; Desika Charryulu v. State of Andhra Pradesh, AIR 1964 SC 807 [LNIND 1963 SC 404];
Nityanand v. Basudeb, AIR 1971 Ori 80 [LNIND 1970 ORI 22]; Jai Singh v. Gram Panchayat, AIR 1961 Punj 232; Nani Gopal v. State, AIR
1966 Cal 42 [LNIND 1964 CAL 111]; Vizinagaram Municipality v. Bhaskara Rao, AIR 1965 AP 326 [LNIND 1964 AP 226]; State of
Kerala v. Ramaswami Iyer, AIR 1966 SC 1738 [LNIND 1966 SC 51]; M. Jal v. Bhai, AIR 1975 Ori 219 [LNIND 1975 ORI 22]: (1975) ILR
Cut 798; Hrishikesh v. State, AIR 1978 Cal 556 [LNIND 1978 CAL 339].
72 . Firm Illuri Subbayya Chetty & Sons v. State of Andhra Pradesh, AIR 1964 SC 322 [LNIND 1963 SC 336]: (1964) 1 SCR 752 [LNIND 1963
SC 336]; Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 [LNIND 1962 SC 584]; Kunheema Umma v. Balkrishnan, AIR 1967 Ker 97
[LNIND 1966 KER 114].
73 . Ebrahim Aboobakar v. Custodian General, AIR 1952 SC 319 [LNIND 1952 SC 39].
74 . Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 [LNIND 1962 SC 584]; Thangamani v. Govt of Madras, AIR 1965 Mad 225
[LNIND 1963 MAD 123], 232.
75 . AIR 1969 SC 78 [LNIND 1968 SC 99]: (1968) 3 SCR 662 [LNIND 1968 SC 99]; S. Venkatramaiah v. K. Venkataswamy, AIR 1976 AP
402 [LNIND 1975 AP 253].
76 . Anisminic Ltd. v. Foreign Compensation Commission, (1969) 1 All ER 208, 213; R v. Fulham, Hammersmith and Kensington Rent Tribunal, (1953) 2
All ER 4.
77 . Union of India v. Tarachand Gupta & Bros., AIR 1971 SC 1558 [LNIND 1971 SC 79].
78 . Secretary, K.S.E.B. Trivandrum v. M. Sainaba, AIR 1990 Ker 50(Varghese Kallinath, J.).
79 . Hira Singh v. Saini, AIR 1987 Delhi 168 [LNIND 1986 DEL 340].
80 . East India Hotels Ltd. v. Corporation of Calcutta, AIR 1988 Cal 105.
81 . A. Vasudevan Pillai v. K. Malathy Amma, AIR 1988 Ker 300 [LNIND 1987 KER 457].
82 . Ponnusami v. Returning Officer, 1952 SCR 218 [LNIND 1952 SC 2] : 1952 SC 64; Durga Shankar Mehta v. Raghuraj Singh, (1955) 1 SCR 267
[LNIND 1954 SC 97] : 1954 SC 520.

83 . Mahedar Rahaman v. Kanti Chandra, (1934) 61 Cal 980 : 1935 AC 10 ; Ghulam Nazamuddin v. Aktar Hussain, (1933) 55 All 1008 : 1933
AA 765; Tarachand v. Abdul Kasem, (1938) 42 CWN 441 : 1938 AC 359 .
84 . Jodhi Singh v. Vedabarat Sarma, 1956 AP 205, Re Industrial Disputes see Premier Automobiles Ltd. v. Wadke, 1975 SC 2238.
85 . State Medical Facility v. Kshite Bhusan, 1961 AC 31.
86 . Secretary of State v. Mask & Co., (1940) 67 IA 222 : AIR 1940 PC 105 [LNIND 1940 PC 9].
87 . Ibid, at page 236.
88 . Ibid.
89 . Firm Illuri Subbayya Chetty & Sons v. State of Andhra Pradesh, (1964) 1 SCR 752 [LNIND 1963 SC 336] : AIR 1964 SC 322 [LNIND 1963
SC 336].
 Page 103 of 110
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90 . Ibid.
91 . Ibid, at page 763 (of SCR).
92 . Releigh Investment Co. Ltd. v. Governor-General in Council, (1947) 74 IA 50.
93 . Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78 [LNIND 1968 SC 99]: [1968] 3 SCR 662 [LNIND 1968 SC 99] (Five-Judge
Bench).
94 . (1968) 3 SCR 662 [LNIND 1968 SC 99].
95 . Ramesh Chand Ardanatiya v. Anil Panjwani, AIR 2003 SC 2508 [LNIND 2003 SC 504].
96 . R. Gopalakrishna v. Karnataka State Financial Corporation, Bangalore, AIR 2008 Kar 77: ILR, (Kant) 2008 KAR 2034 (DB).
1 . Smt. Annapurna v. State of West Bengal, AIR 2009 Cal 236 [LNIND 2009 CAL 351].
2 . Hirabhai Nanubhai Desai v. State of Gujarat, AIR 1991 Guj 1 [LNIND 1990 GUJ 62] (DB); Anwar v. First Addl District Judge, (1986) 4 SCC
21.
3 . United India Insurance Co. Ltd. v. P.N. Thomas, AIR 1999 Ker 174 [LNIND 1998 KER 449] (DB).
4 . Ratnakar Tanbaji Itankar v. Union of India, AIR 1994 Bom 132 [LNIND 1993 BOM 673].
5 . Gwalior Sugar Co. Ltd. v. Union of India, AIR 1996 MP 219 [LNIND 1996 MP 246] (DB).
6 . MP State Co-op. Mktg. Federation Ltd. v. Union of India, AIR 1998 MP 143 [LNIND 1997 MP 363].
7 . State of Haryana v. Khalsa Motors Ltd., (1990) 4 SCC 659.
8 . Union of India v. Krishnaswamy, AIR 1996 Mad 238 [LNIND 1996 MAD 49].
9 . Nirupama Sarkar v. Life Insurance Corporation of India, AIR 1996 Cal 417 [LNIND 1995 CAL 214].
10 . Kaikhosrou, (Chick) Kavasji Framji of Indian Inhabitant v. Union of India, AIR 2009 (NOC) 2981(Bom) : 2009 (4) AIR Bom R 808 (DB).
11 . K. Vijayarajan v. D.K. Kalavathy, AIR 2007 Ker 25 [LNIND 2006 KER 388]: 2006 (2) Ker LJ 670 (DB).
12 . Jewellers Narandas & Sons v. Oriental Insurance Co. Ltd., (1995) Supp 3 SCC 406.
13 . State of Tamil Nadu v. Ramalinga Samigal Madam, (1985) 4 SCC 10 [LNIND 1985 SC 163].
14 . Secretary, KSEB, Trivandrum v. M. Sainaba, AIR 1990 Ker 50.
15 . Hira Singh v. Saini, AIR 1987 Del 168 [LNIND 1986 DEL 340].
16 . JK Industries Ltd., Kankroli v. Municipal Board, Rajasthan, AIR 1997 Raj 42.
17 . East India Hotels Ltd. v. Corpn. of Calcutta, AIR 1988 Cal 105.
18 . Madho Singh v. Moin Singh, AIR 2004 SC 4316 [LNIND 2004 SC 1542].
19 . Arati Das v. Bharati Sarkar, AIR 2009 Cal 8 [LNIND 2008 CAL 1713]: 2008 (3) Cal LT 470 (DB).
20 . Sudhir G. Angur v. M. Sanjeev, AIR 2006 SC 351 [LNIND 2005 SC 862]: (2006) 1 SCC 141 [LNIND 2005 SC 862].
21 . Shyam Lal v. Sham Lal, AIR 2007 P&H 89 : 2007 (2) Rec Civ R 484.
22 . Bank of Baroda v. Mars Overseas Textiles, (2007) 1 CTC 683 [LNIND 2006 BMM 211] (Madurai Bench).
23 . State of Madhya Pradesh v. Shiv Kunwarbai, AIR 1971 SC 1477 [LNIND 1971 SC 243]; Munni Devi v. Gokalchand, AIR 1970 SC 1727
[LNIND 1969 SC 331]; Srinivasa v. State of Andhra Pradesh, AIR 1971 SC 71 [LNIND 1969 SC 387]; D. Venkata Reddy v. B. Bushi Reddy,
AIR 1971 AP 87 [LNIND 1970 AP 54].
24 . Brij Raj Krishna v. SK Shaw, AIR 1951 SC 115 [LNIND 1951 SC 7]; Chambe Jagadish Prasad v. Ganga Prasad, AIR 1959 SC 492 [LNIND
1958 SC 156]: (1959) Supp 1 SCR 733; Zaki v. State of Bihar, AIR 1953 Pat 112; Babu Rao v. Dalsukh, AIR 1955 Bom 89 [LNIND 1954
BOM 10]; Prakash Textile Mills Ltd. v. Manilal, AIR 1955 Punj 197: (1955) ILR Punj 988.
25 . Munshi Ram v. Municipal Committee, Chheharta, (1980) Supp SCC 781.
26 . Vishwanath v. Kondaji, (1918) ILR 42 Bom 49 : 43 IC 995.
27 . Gangaram v. Dinkar, (1913) ILR 37 Bom 542.
28 . Annamreddi Bodayya v. Lokanarapu Ramaswamy, (deceased), (1984) Supp SCC 391.
29 . Bhagwati Prasad v. Union of India, AIR 1995 MP 205 [LNIND 1994 MP 91].
30 . Madho Singh v. Moin Singh, AIR 2004 SC 4316 [LNIND 2004 SC 1542].
31 . State of M.P. v. Balveer Singh, AIR 2001 MP 268 [LNIND 2001 MP 180] (FB). See also Ram Dayal v. State of Madhya Pradesh, AIR 2006
MP 172 [LNIND 2005 MP 618].
 Page 104 of 110
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32 . Hira Lal v. Gajjan, (1990) 3 SCC 285 [LNIND 1990 SC 48].

33 . Kasandas v. Ankleshwar, (1902) 26 ILR Bom 294.
34 . Manager Court of Wards v. Moolchand, AIR 1949 Nag 226; Dhuplal v. Ramdhani, AIR 1943 Pat 353; Chairman, Giridit Municipality v. Srish
Chandra, (1910) ILR 35 Cal 859; Deb Narain v. Chairman Banipur, (1914) ILR 41 Cal 168; Chairman Municipality, Chapra v. Basdeo, (1912)
ILR 37 Cal 374; Secretary of State v. Hughes, (1914) ILR 38 Bom 293.
35 . Municipal Council of Tanjore v. Umanala, (1900) ILR 23 Mad 523; Joshi v. Dakor, (1883) ILR 7 Bom 399.
36 . Mohammad Nawaz v. Bhagata Nand, AIR 1938 PC 219: 65 IA 301.
37 . Nanbahar Hussain v. Municipal Committee, AIR 1935 Lah 970: (1935) 16 Lah 529.
38 . Mohammad Nawaz v. Bhagata Nand, AIR 1938 PC 219: (1938) Lah 65 IA 301.
39 . Bismillah v. Janeshwar Prasad, (1990) 1 SCC 207.
40 . Bhup Singh v. Tulsi Ram, AIR 1991 HP 29 [LNIND 1989 HP 75].
41 . Sita Ram v. Chhota Bhondey, (1991) Supp 1 SCC 556.
42 . Yashwant Ramachandra Dhumal v. Shri Shanker Maruti Dhumal, AIR 2001 Bom 384 [LNIND 2001 BOM 52].
43 . Beni Madhav Singh v. Ram Naresh, (1998) 8 SCC 751.
44 . Ram Prasad (deceased) v. Assistant Director of Consolidation, (1994) Supp 2 SCC 228.
45 . Narendra Vaikunt Raikar v. Amaral Pareira, 2007 (2) AIR Bom R 503 (Goa Bench).
46 . Bishan Singh v. Smt. Swantantar Devi, AIR 2007 HP 50 [LNIND 2007 HP 56]: 2007 (1) Shim LC 404.
47 . R. Gopalakrishna v. Karnataka State Financial Corporation, Bangalore, AIR 2008 Kar 77: ILR (Kant) 2008 KAR 2034 (DB).
48 . Hindalco Industries Ltd. v. State of U.P., AIR 2010 All 94: 2010 (2) ALJ 545.
49 . Azhar Hassan v. Distt. Judge, Saharanpur, AIR 1998 SC 2960 [LNIND 1998 SC 97]: (1998) 3 SCC 246 [LNIND 1998 SC 97] : (1998) 2
MLJ 126 [LNIND 1998 SC 97] (SC).
50 . Chandrika Singh v. Raja Vishwanath Pratap Singh, (1992) 3 SCC 90 [LNIND 1992 SC 340].
51 . Barkhu v. Fifth Addl Distt Judge, Basti, AIR 2004 All 418.
52 .Kishori Prasad v. Third Addl. Distt. Judge, Varanasi, AIR 2003 All 58.
53 . Sita Ram v. Chota Bhoudey, AIR 1991 SC 249 [LNIND 1990 SC 590].
54 . Mohinder Singh v. Pirthipal Singh, AIR 1997 P&H 13.
55 . Daulatram Lakhani v. State of Assam, AIR 1990 Gau 17 [LNIND 1988 GAU 28] (FB).
56 . Nanu Vasudevan v. Kali Karthiayania, AIR 1991 Ker 253 [LNIND 1991 KER 17] (DB).
57 . Thanda Bala Chaudhury v. Birendra Kumar Chaudhury, AIR 2003 Gau 32 [LNIND 2002 GAU 142].
58 . Bhikari Nayak v. Brajabandhu Nayak, AIR 1991 Ori 191 [LNIND 1990 ORI 75] (DB). See also Champabati Devi v. Duryodhan Swain, AIR
2006 (NOC) 1337(Ori).
59 . State of Orissa v. Bhanu Mali, AIR 1996 Ori 199.
60 . Satya Pramoda Thirthaswawama Pavaru v. Mula Gunnaya, AIR 1982 AP 24 [LNIND 1981 AP 114] (DB).
61 . Kashi Ram v. Harbhajan Singh Bhajji, AIR 2002 HP 154 [LNIND 2002 HP 63].
62 . State of Karnataka v. M. Muniraju, AIR 2002 Kant 287 [LNIND 2002 KANT 135].
63 . Badridan Bheravandan Gadhavi v. State of Gujarat, AIR 1985 NOC 185(Guj).
64 . Prithvi Raj Kohli v. Union of India, AIR 1988 J&K 17.
65 . Abdulla Bin Ali v. Galappa, AIR 1985 SC 571 [LNIND 1985 SC 56]: (1985) 2 SCC 54.
66 . Laxmichand v. Gram Panchayat, Kararia, AIR 1996 SC 523 [LNIND 1995 SC 1068].
67 . Pushpagiri Math v. Kopparaju Veerabhadra Rao, AIR 1996 SC 2225 [LNINDORD 1996 SC 55].
68 . Subhan Rao v. Parvathi Bai, AIR 2002 Kant 134 [LNIND 2001 KANT 552].
69 . Ramchandra Dagdu Sonavane v. Vithu Hira Mahar, AIR 2010 SC 818 [LNINDORD 2009 SC 220]: (2009) 10 SCC 273 [LNINDORD
2009 SC 220].
70 . Ibid, para 30 at p. 827-828 (of AIR).
71 . AIR 1969 SC 439 [LNIND 1968 SC 225].
 Page 105 of 110
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72 . AIR 1969 SC 560 [LNIND 1968 SC 195].

73 . Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddy, AIR 1967 SC 781 [LNIND 1966 SC 175]: (1967) 1 SCR 280
[LNIND 1966 SC 175].
74 . Ibid, at page No. 287.
75 . Sudhir G. Angur v. M. Sanjeev, AIR 2006 SC 351 [LNIND 2005 SC 862]: (2006) 1 SCC 141 [LNIND 2005 SC 862].
76 . Ibid, at page 354.
77 . Basha Sahib v. Valikandapuram Village Kasi Viswanathasamy Koil, (2003) 1 MLJ 563 [LNIND 2003 MAD 153] (Mad) : (2003) 1 CTC 519
[LNIND 2003 MAD 153].
78 . Dinesh Chandra Swami v. Manesh Chandra Swami, 2007 (1) Raj LR 654 (Jaipur Bench).
79 . Sahebgouda v. Ogeppa, AIR 2003 SC 2743 [LNIND 2003 SC 363]: AIR 2003 SCW 3088.
80 . Bharvad Chhota Bhaga v. Bharvad Jaga Dahya, AIR 1999 Guj 17 [LNIND 1998 GUJ 213].
81 . Kartick Chandra Bhandari v. Ashim Kumar Samanta, AIR 2008 Cal 279 [LNIND 2007 CAL 644]: 2008 (2) Cal LJ 20 [LNIND 2007 CAL
644].
82 . Magiti Sasmal v. Pandab Bissoi, AIR 1962 SC 547 [LNIND 1961 SC 305].
83 . Brij Raj Krishna v. S.K. Shaw, AIR 1951 SC 115 [LNIND 1951 SC 7].
84 . Pyarelal Sakseria v. Devishankar Parashar, AIR 1994 MP 115 [LNIND 2006 SC 638].
85 . Somabhai Kanjibhai Baria v. Patel Parshottam Das Jamna Das, (1995) 3 SCC 282 [LNIND 1995 SC 1346].
86 . Ram Singh v. Ajay Chawala, (1988) 1 SCC 364.
87 . Vannattankandy Ibrayi v. Kunhabdulla Hajee, AIR 2003 SC 4453 [LNIND 2000 SC 2128].
88 . Vannattankandy Ibrayi v. Kunhabdulla Hajee, AIR 2003 SC 4453 [LNIND 2000 SC 2128].
89 . Sulochana v. Rajendra Singh, AIR 2008 SC 2611 [LNIND 2008 SC 1226]: (2008) 15 SCC 538 [LNIND 2008 SC 1226].
90 . Ibid, para 16, p. 2614.
91 . Ibid, para 36 at p. 2617.
92 . Ibid.
93 . Jadunath v. Mritunjoy, AIR 1986 Cal 416 [LNIND 1986 CAL 4].
94 . Krishna Prakash v. Dilip Harel Mitra Chenoy, AIR 2002 Del 81 [LNIND 2001 DEL 1032] (DB).
95 . Achyutan Nair v. P. Narayan Nair, (1987) 4 SCC 71.
1 . Sheel Kumar v. Prem Singh, AIR 1997 J&K 37.
2 . Life Insurance Corpn. of India v. India Automobiles, (1990) 4 SCC 286 [LNIND 1990 SC 959].
3 . Babu Khan v. Nazim Khan, AIR 2001 SC 1740 [LNIND 2001 SC 967].
4 . Govindamma v. Murugesh Mudaliar, AIR 1991 Kant 290 [LNIND 1990 KANT 219].
5 . Sushil Kumar Mehta v. Gobind Ram Bohra (deceased), (1990) 1 SCC 193 [LNIND 1989 SC 558].
6 . K.M.S.K. Rabindranath v. S. Bakyam Pillai, AIR 1988 Mad 358 [LNIND 1987 MAD 53].
7 . Dahiben (Widow of Ranchhodji Jivanji) v. Vasanji Kevalbhai (deceased), (1995) Supp 2 SCC 295.
8 . Azhar Hasan v. Dist. Judge, Saharanpur, (1998) 3 SCC 246 [LNIND 1998 SC 97].
9 . A.A. Shirdone v. Saheb H. Tajbhokhari, (1985) 2 SCC 477 [LNIND 1985 SC 97].
10 . Bhaskar Pandurang Prabhu Dessai v. Gajanan Arjun Salgaonkar, AIR 1997 Bom 177 [LNIND 1996 BOM 797].
11 . (1986) 4 SCC 319 [LNIND 1986 SC 328].
12 . Parvati v. Fatehsinhrao Pratapsinhrao Gaekwad, (1986) 4 SCC 319 [LNIND 1986 SC 328].
13 . Dattaram A. Arolkar v. Mamlatdar of Mormugao, Vasco da Gama, Goa, AIR 2001 Bom 74 [LNIND 2000 GOA 34].
14 . Deva Sahayam v. P. Savithramma, AIR 2006 SC 779 [LNIND 2005 SC 700].
15 . Ashok Kumar Gupta v. Vijay Kumar Agrawal, AIR 2002 SC 1310 [LNIND 2002 SC 158]: AIR 2002 SCW 1124.
16 . Saraswatibai Trimbale Gaikwad v. Damodar D. Motinale, AIR 2002 SC 1568 [LNIND 2002 SC 240].
17 . Ibid.
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18 . Fazal Imam v. Rasul, (1899) ILR 12 All 166; Mahomedali v. Bayamma, (1892) ILR 16 Bom 100; Churamoni v. Baidya Nath, (1907) 32 Cal 429.
19 . Baboo Ganesh Dutt v. Mungneeram, (1873) 41 BLR 321, 328; Mugnee Ram v. Ganesh, (1865) 5 WB 134; Chidambara v. Thirumani, (1887) ILR
10 Mad 87; Nathuji Lalbhai, (1890) ILR 14 Bom 97; Templeton v. Laurie, (1901) ILR 25 Bom 230; Dawan Singh v. Mahip Singh, (1888) ILR
10 All 425; Bikumbar v. Becharam, (1888) 15 Cal 264.
20 . Union of India v. Ramchand, AIR 1955 Punj 166.
21 . Himangsu Kumar Basu v. Sudhangsu Kumar Basu, AIR 2004 Cal 217.
22 . Puri Konark Development Authority v. Ratna Bhadra, AIR 2002 Ori 207 [LNIND 2002 ORI 171].
23 . Geeta Pump Pvt. Ltd. v. District Judge, Saharanpur, AIR 2000 All 58 [LNIND 1999 ALL 1661]; PSEB v. Ashwani Kumar, (1997) 5 SCC 120;
S.P. Subramanya Shetty v. KSRTC, AIR 1997 SC 2076 [LNIND 1997 SC 549]; Hyderabad Vanaspati Ltd. v. APSEB, (1998) 4 SCC 470
[LNIND 1998 SC 405].
24 . Bank of Baroda v. Moti Bhai, (1985) 1 SCC 475 [LNIND 1985 SC 28].
25 . Syyad Mohd Vaquir El-Edroos v. State of Gujarat, (1981) 4 SCC 383 [LNIND 1981 SC 405].
26 . H.P. Lakshmid Evaraje v. G.P. Asharani, AIR 2002 Kant 399 [LNIND 2002 KANT 332].
27 . K.A. Abdul Jaleel v. T.A. Shahida, AIR 2003 SC 2525 [LNIND 2003 SC 423]: 2003 (2) Ker LT 403 : (2003) 4 SCC 166 [LNIND 2003
SC 423].
28 . Ibid., at page No. 2527.
29 . Devaki Antharjanam v. Narayan Namboodiri, AIR 2007 Ker 38 [LNIND 2006 KER 284]: 2006 (44) All Ind Cas 637.
30 . Nishamoni Kalita v. Sarda Kalita, AIR 2009 Gau 62 [LNIND 2008 GAU 219]: 2009 (2) Cur CC 176.
31 . Visalam Chit Funds Ltd. v. S. Sugune, AIR 2001 Kant 251 [LNIND 2001 KANT 80].
32 . Chuni Lal v. Ram Kishen, (1888) ILR 15 Cal 60.
33 . Roope v. Pyaree Lal, (1869) 16 WR 434.
34 . Dewa Singh v. Fazal Dad, AIR 1928 Lah 562: (1929) 10 Lah 338.
35 . Mian Jan v. Abdul, (1905) ILR 27 All 572.
36 . Queen-Empress v. Tribhovan, (1885) ILR 9 Bom 131; Wasappa v. Secretary of State, (1916) ILR 40 Bom 200; Dayanand v. State, AIR 1976
P&H 190.
37 . Aldo Vogel v. Jimmy D. Nanavatty, AIR 1989 Bom 108 [LNIND 1986 BOM 390].
38 . Jiyajeerao Cotton Mills Ltd. v. MPEB, (1989) Supp 2 SCC 52.
39 . Krishnan Lal v. State of J&K, (1994) 4 SCC 422 [LNIND 1994 SC 277] : (1994) 2 MLJ 117 [LNIND 1994 SC 277] (SC).
40 . Geeta Pump Pvt. Ltd. v. District Judge, Saharanpur, AIR 2000 All 58 [LNIND 1999 ALL 1661]; PSEB v. Ashwani Kumar, (1997) 5 SCC 120;
SP Subramanya Shetty v. KSRTC, AIR 1997 SC 2076 [LNIND 1997 SC 549]; Hyderabad Vanaspati Ltd. v. APSEB, (1998) 4 SCC 470
[LNIND 1998 SC 405].
41 . Tamil Nadu Electricity Board v. D. Vasantha, (1998) MLJ (Supp) 33 (Mad).
42 . Superintending Engineer, Periyar Electricity Distribution Circle v. Pavathal, (2002) 1 MLJ 515 [LNIND 2001 MAD 1217] (Mad).
43 . Nahar Enterprises v. Chairman, T.N.E.B., (2007) 5 MLJ 58 [LNIND 2007 MAD 485] (Mad).
44 . T.N.E.B. v. Chakkravarthy, (2005) 2 MLJ 426 [LNIND 2005 MAD 82] (Mad); V. Kaliamoorthy v. Astt. Divisional Engineer, T.N.E.B.,
(2000) 1 MLJ 174 [LNIND 1999 MAD 490] (Mad); Superintending Engineer, Virudhunagar Electricity Distribution Circle v. Marali Raj, 2008 (4)
Civil Court Cases 172 (Madras).
45 . (1997) 5 SCC 120 : 1997 (Supp) CCC 1 (SC).
46 . Ponni Gounder v. Superintending Engineer, T.N.E.B., (2008) 1 MLJ 108 [LNIND 2007 MAD 2764] (Mad).
47 . Tamil Nadu Electricity Board v. K. Kamarudeen, (2001) MLJ (Supp) 602 (Mad).
48 . Jai Prakash Hydro Power Ltd. v. Occhu Ram, AIR 2007 HP 29 [LNIND 2006 HP 58]: 2006 (3) Shim LC 31.
49 . Executive Engineer KPTCL & v. C.B. Appachu, AIR 2003 Kant 61 [LNIND 2002 KANT 367].
50 . Rishi Cement Co. Ltd. v. BSE Board, AIR 2002 Jhar 1 [LNIND 2001 JHAR 122].
51 . Mangalore Chemicals & Fertilizers Ltd. v. KEB Bangalore, AIR 2001 Kant 30 [LNIND 2000 KANT 415].
52 . Halsburys Laws of England, third edn. Vol. 7, pp. 279, 281, paras 593, 597.
53 . P&OSN Co. v. Secy of State, (1861) ILR 5 Bom HC App 1; approved in Secy of State v. Moment, (1913) ILR 40 Cal 391 : 40 IA 48; Jehangir
v. Secy of State, (1903) ILR 27 Bom 189; Shivabhajan v. Secy. of State, (1904) ILR 28 Bom 314; Rose v. Secy of State, (1916) ILR 39 Mad 781;
 Page 107 of 110
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McInerny v. Secy. of State, (1911) ILR 38 Cal 797; Secy. of State v. Cockcraft, (1916) ILR 39 Mad 351; Om Prakash v. United Province, AIR 1951
All 205 [LNIND 1950 ALL 315]; but see Bhagabat Transport Service v. State of Himachal Pradesh, AIR 1951 HP 36 [LNIND 1951 HP 12].
54 . L.J. Salaman v. Secy. of State for India (1906) 1 KB 613.
55 . Thakur Amar Singhji v. State of Rajasthan, AIR 1955 SC 504 [LNIND 1955 SC 36]: (1955) 2 SCR 303 [LNIND 1955 SC 36] : (1955) SCJ
523 [LNIND 1955 SC 36] : 1955 SCA 766 [LNIND 1955 SC 36]; Rajendra Chand v. Mst Sukhi, AIR 1957 SC 286 [LNIND 1956 SC 83]:
(1956) SCR 889 [LNIND 1956 SC 83] : (1957) SCJ 119 [LNIND 1956 SC 83]; Dalmia Dadri Cement Co. v. Commr of Income-tax, AIR 1958
SC 816 [LNIND 1958 SC 65]: (1959) SCR 729 [LNIND 1958 SC 65] : (1958) SCJ 1041; State of Saurashtra v. Memon Haji, AIR 1959 SC
1383 [LNIND 1959 SC 139]: (1960) 1 SCR 537 [LNIND 1959 SC 139] : (1960) SCJ 394 [LNIND 1959 SC 139]; Jagannath v. State of
Orissa, AIR 1961 SC 1361 [LNIND 1961 SC 93]: (1962) 1 SCJ 179 [LNIND 1961 SC 93]; State of Saurashtra v. Muhamed Abdulla, AIR
1962 SC 445 [LNIND 1961 SC 466]: (1962) 3 SCR 970 [LNIND 1961 SC 466] : (1962) 2 SCJ 70 : (1962) 2 SCA 605; Pramod Chandra v.
State of Orissa, AIR 1962 SC 1288 [LNIND 1961 SC 467]; Amar Sarjit Singh v. State of Punjab, AIR 1962 SC 1305 [LNIND 1962 SC 80];
Jiwan Nath Zutshi v. State of Madhya Pradesh, AIR 1971 SC 744; State of Gujarat v. Vora Fiddali, AIR 1964 SC 1043 [LNIND 1964 SC 22]:
(1964) 6 SCR 461 [LNIND 1964 SC 22].
56 . Madhav Rao Scindia v. Union of India, AIR 1971 SC 530 [LNIND 1970 SC 481]. See also Secy. of State v. Bai Rajbai, (1915) ILR 39 Bom 65
: 42 IA 229; Vajid Singh v. Secy. of State, (1921) ILR 48 Bom 613 : 51 IA 357; Secy. of State v. Rustom Khan 68 IA 109; Arya Prathinidhi v. State
of Madhya Pradesh, AIR 1958 MP 97 [LNIND 1957 MP 187]: (1957) Jab LJ 909; Thailendran v. State of Uttar Pradesh, AIR 1959 MP 27
[LNIND 1958 MP 3]: (1958) Jab LJ 859; Jagannath v. State of Madhya Pradesh, AIR 1959 MP 136 [LNIND 1958 MP 18]: (1959) Jab LJ 1;
Subrao v. Bhupal Dasarath, AIR 1959 Mys 129; State of Rajasthan v. Madan Swarup, AIR 1960 Raj 138 [LNIND 1959 RAJ 53]: (1959) ILR
Raj 1217.
57 . Secy. of State v. Kamachee Boyce Saheba, (1959) 13 Moo PC 22.
58 . Prasanna v. Sri Jagannath, AIR 1971 Ori 246 [LNIND 1971 ORI 49], 253.
59 . Cipriano Negredo v. Union of India, AIR 1969 Goa 76.
60 . Halsburys Laws of England, third Edn. Vol 7, para 603, p. 285.
61 . Maganbhai v. Union of India, AIR 1969 SC 783 [LNIND 1969 SC 6], 795; Midnapore Zamindary Co. Ltd. v. Province of Bengal, AIR 1949 FC
143; Foster v. Globe Venture Syndicate Ltd., [1900] 1 Ch 811; Duff Development Co. v. Kilantan Government, AIR 1924 Cal 797.
62 . Samarendra v. Birendra, (1908) 12 Cal WN 777.
63 . Umrao Singh v. Bhagavathi Singh, AIR 1956 SC 15.
64 . Madhav Rao Scindia v. Union of India, AIR 1971 SC 530 [LNIND 1970 SC 481] at 564.
65 . Neel Kristo Dev v. Beer Chandra, (1869) 12 MIA 523.
66 .Taj Mohammad v. Agricultural Produce Market Committee, AIR 1982 Bom 553 [LNIND 1981 BOM 15], 556, 558.
67 . AIR 1944 All 66.
68 . AIR 1921 Cal 121.
69 . AIR 1969 SC 78 [LNIND 1968 SC 99].
70 . ( 1859) ER 486.
71 . Bhagwan Motiram Mali v. Jayant Shridhar Khare, AIR 1982 Bom 82 [LNIND 1980 BOM 248], 85, 90 para 26 (DB).
72 . Eswaramoorthy Velar v. Parvathammal, (2000) 1 MLJ 291 [LNIND 1999 MAD 797] (Mad).
73 . Ramaswamy v. Velliammal, (1998) MLJ (Supp) 314 (Mad).
74 . P. Nirathilingam v. Annaya Nadar, AIR 2002 SC 42 [LNIND 2001 SC 2468].
75 . Ibid.
76 . Mardia Chemicals Ltd. v. UOI, AIR 2004 SC 2371 [LNIND 2004 SC 458].
77 . AIR 1984 Bom 174; As cited in: IFCI Ltd. v. Cannahore Spg. & Wvg. Mills Ltd., AIR 2002 SC 1841 [LNIND 2002 SC 287].
78 . AIR 1984 Bom 174; As cited in: IFCI Ltd. v. Cannahore Spg. & Wvg. Mills Ltd., AIR 2002 SC 1841 [LNIND 2002 SC 287]..
79 . Punjab National Bank v. OC Krishnan, AIR 2001 SC 3208 [LNIND 2001 SC 1690].
80 . Indian Bank v. ABS Marine Products Pvt. Ltd., AIR 2006 SC 1899 [LNIND 2006 SC 279]: (2006) 5 SCC 72 [LNIND 2006 SC 279].
81 . Ibid., para 9 at p. 1903 (of AIR).
82 . State Bank of India v. Madhumita Construction Pvt. Ltd., AIR 2003 Cal 7 [LNIND 2002 CAL 303].
83 . Vysya Bank Ltd. v. Shankarlal Export Pvt. Ltd., AIR 2001 Cal 47 [LNIND 2000 CAL 284] (DB).
84 . Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC 752 [LNIND 1987 SC 1064]: (1988) 1 SCC 681 [LNIND 1987 SC 1064].
85 . Raja Ram Kumar v. Union of India, AIR 1988 SC 752 [LNIND 1987 SC 1064].
 Page 108 of 110
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86 . JK Synthetics v. Municipal Council Kota, AIR 1989 Raj 51.

87 . K.M.S.K. Rabindranath v. S. Bakyam Pillai, AIR 1988 Mad 358 [LNIND 1987 MAD 53].
88 . (2003) 1 Bom CR 251 [LNIND 2002 BOM 629].
89 . Gadre Constructions v. Sadashiv Keshav Sathe, AIR 2004 Bom 392 [LNIND 2004 BOM 295].
90 . Narain Singh Bramta v. State of Himachal Pradesh, AIR 2003 HP 81 [LNIND 2002 HP 128].
91 . Taprogge Gesseleschaft MBH v. IAEC India Ltd., AIR 1988 Bom 157 [LNIND 1987 BOM 464].
1 . Taprogge Gesseleschaft MBH v. IAEC India Ltd., AIR 1988 Bom 157 [LNIND 1987 BOM 464].
2 . AIR 1969 SC 78 [LNIND 1968 SC 99].
3 . State of Tamil Nadu v. Ramalinga Samigal Madam, (1985) 4 SCC 10 [LNIND 1985 SC 163].
4 . Sayed Mahomed v. State of Gujarat, AIR 1981 SC 2016 [LNIND 1981 SC 405]: (1981) 4 SCC 383 [LNIND 1981 SC 405].
5 . Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal v. T. Parvathi Ammal, (1998) 9 SCC 603 [LNIND 1996 SC 2314].
6 . Sayyad Ali v. AP Wakf Board, Hyderabad, (1998) 2 SCC 642 [LNIND 1998 SC 118].
7 . Subhan Shah v. MP Wakf Board, AIR 1997 MP 8 [LNIND 1996 MP 14].
8 . K. Kumar v. Smt. Leena, AIR 2010 Kar 75.
9 . Ibid., para 12 at p. 78.
10 . AIR 1993 SC 1014 [LNIND 1992 SC 194]: (1992) 2 JT 65 [LNIND 1992 SC 194] (per T.K. Thommen, J.).
11 . Ramakrishnan v. Mayilsamy, (2007) 1 MLJ 72 [LNIND 2006 MAD 2558] (Mad).
12 . Ramalingam v. Idol of Sri Thayumanaswamy, (1998) MLJ (Supp) 354 (Mad) : (1998) 3 CTC 665 [LNIND 1998 MAD 607].
13 . Srinivasan v. Sri Madhyarjuneswar Swami, Pattavaithalai, (1998) 2 MLJ 722 [LNIND 1998 MAD 608] : (1998) 1 CTC 630 [LNIND 1998
MAD 608].
14 . Binal Sahoo, Secretary, Basudevpur Girls High School v. Gouri Rani Pahari, AIR 1991 Cal 120 [LNIND 1990 CAL 234].
15 . PSEB v. Jeewan Kumar, AIR 1999 P&H 187.
16 . Roshan Prasad v. Shiv Pal, (1997) 8 SCC 167.
17 . State of Gujarat v. Mer Parbat Ramaji, (1991) ILR Guj 185.
18 . M.L. Harnarain v. Karamchand Thaper & Bros Pvt. Ltd., AIR 2004 Jhar 143 [LNIND 2004 JHAR 3].
19 . Shree Bajrang Hard Coke Manufacturing Corpn. v. Ramesh Prasad, AIR 2003 Jhar 17.
20 . Raja Ram Kunjar v. Union of India, AIR 1988 SC 752 [LNIND 1987 SC 1064].
21 . Sitaram v. Pigment Cakes, AIR 1980 SC 10: (1979) 4 SCC 12 [LNIND 1979 SC 301].
22 . Ramendra Kishore Biswas v. State of Tripura, AIR 1999 SC 294 [LNIND 1998 SC 1075]: (1999) 1 SCC 472 [LNIND 1998 SC 1075].
23 . Ibid.
24 . Life Insurance Corporation of India v. Rampal Singh, 2006 (2) Civil Court C 649 (Rajasthan) (D.B.).
25 . RSRTC v. Ramesh Kumar Sharma, 2008 (4) Civil Court C 81 (Rajasthan).
26 . Narinder Mohan Arya v. United India Insurance Co. Ltd., AIR 2006 SC 1748 [LNIND 2006 SC 255]: (2006) 4 SCC 713 [LNIND 2006 SC
255].
27 . See State of Assam V. Mahendra Kumar Das, (1970) 1 SCC 709 [LNIND 1970 SC 153] : AIR 1970 SC 1255 [LNIND 1970 SC 153].
28 . See Khem Chand v. Union of India, AIR 1958 SC 300 [LNIND 1957 SC 138] and State of Uttar Pradesh v. Om Prakash Gupta, (1969) 3 SCC
775 [LNIND 1957 SC 2].
29 . See K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43 [LNIND 1983 SC 283] : AIR 1984 SC 273 [LNIND 1983 SC 283].
30 . See Sawai Singh v. State of Rajasthan, AIR 1986 SC 995 [LNIND 1986 SC 163].
31 . See Director (Inspection & Quality Control) Export Inspection Council of India v. Kalyan Kumar Mitra, 1987 (2) CLJ 344.
32 . See Central Bank of India Ltd. v. Prakash Chand Jain, AIR 1969 SC 983 [LNIND 1968 SC 221]; Kuldeep Singh v. Commissioner of Police,
(1999) 2 SCC 110]. Ibid., para 26 at p. 1754 (of AIR).
33 . Rajasthan State Road Transport Corporation v. Ramesh Chandra Tailor, (1994) Supp 1 SCC 268; State of Haryana v. Randhir Singh, (1995) Supp 1
SCC 144.
34 . Ishar Singh v. National Fertiliser Ltd., (1991) Supp 2 SCC 649.
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35 . Chief Engineer, Hydel Project v. Ravinder Nath, AIR 2008 SC 1315 [LNIND 2008 SC 160]: (2008) 2 SCC 350 [LNIND 2008 SC 160].
36 . Rajasthan State Road Transport Corporation v. Krishna Kant, AIR 1995 SC 1715 [LNIND 1995 SC 618]: (1995) 5 SCC 75 [LNIND 1995 SC
618].
37 . Rajasthan S.R.T.C. v. Mohar Singh, AIR 2008 SC 2553 [LNIND 2008 SC 968]: (2008) 5 SCC 542 [LNIND 2008 SC 968].
38 . Ibid., para 11 at p. 2554 (of AIR).
39 . Rajasthan SRTC v. Ramdhara Indolia, (2006) 6 SCC 287 [LNIND 2006 SC 494] : (2006) 4 MLJ 1249 [LNIND 2006 SC 494].
40 . State of Haryana v. Bikar Singh, AIR 2006 SC 2473 [LNIND 2006 SC 200]: (2006) 9 SCC 450 [LNIND 2006 SC 200]. See also Rajasthan
State Road Transport Corpn. v. Zakir Hussain, (2005) 7 SCC 447; Rajasthan State Road Transport Corpn. v. Krishna Kant, AIR 1995 SCW 2683:
(1995) 5 SCC 75 [LNIND 1995 SC 618].
41 . Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa, (2010) 4 SCC 299 : 2010 (1) Civil Court C 545 (SC).
42 . Ibid., para 21 at p. 555 (of CCC).
43 . Ibid., para 23 at p. 555 (of CCC).
44 . B.S. Bharti v. IBP Co. Ltd., AIR 2004 SC 4355 [LNIND 2004 SC 844].
45 . C.T. Nikam v. Municipal Corpn. of Ahmedabad, AIR 2002 SC 997 [LNIND 2002 SC 103].
46 . Ibid.
47 . State of Karnataka v. Vishwabarathi House Building Cooperative Society, AIR 2003 SC 1043 [LNIND 2003 SC 60].
48 . Hindustan Motors Ltd. v. Amardeep Singh Wirk, AIR 2009 Del 122 [LNIND 2009 DEL 2161]: 2009 (161) DLT 88 [LNIND 2009 DEL
2161] (DB).
49 . Synco Industries v. State Bank of Bikaner and Jaipur, AIR 2002 SC 568 [LNIND 2002 SC 33].
50 . Ammonia Supplies Corpn. Pvt. Ltd. v. Modern Plastic Containers Pvt. Ltd. (1998) 7 SCC 105 [LNIND 1998 SC 1469].
51 . Dwarka Prasad Agarwal v. Ramesh Chandra Agarwala, AIR 2003 SC 2696 [LNIND 2003 SC 539].
52 . Jayanti R. Padukone v. ICDS Ltd., AIR 1994 Kant 354 [LNIND 1994 KANT 109].
53 . D.L. Walton v. Cochin Stock Exchange, AIR 1995 Kant 106.
54 . Eternit Avrest Ltd. v. Neelmani Bhartiya, AIR 1999 Raj 235.
55 . L.L. Sudhakar Reddy v. State of A.P., AIR 2001 SC 3205 [LNIND 2001 SC 1651].
56 . Basanthilal Aggarwal v. P.S. Bhamdari, AIR 2007 (NOC) 999(AP) (DB) : 2007 (3) Andh LD 805.
57 . Om Prakash Singh v. M. Lingamaiah, AIR 2009 SC 3091 [LNIND 2009 SC 855]: (2009) 12 SCC 613 [LNIND 2009 SC 855].
58 . Ibid., at page 3095 (of AIR).
59 . N. Srinivasa Rao v. Spl. Court under A.P. Land Grabbing (Prohibition) Act, AIR 2006 SC 3691 [LNIND 2006 SC 204]: (2006) 4 SCC 214
[LNIND 2006 SC 204]. See also A.P. Housing Board v. Mohd. Sadatullah, (2007) 6 SCC 566 [LNIND 2007 SC 475].
60 . State of Tamilnadu v. A. Guruswami, (1997) 3 SCC 542 [LNINDORD 1997 SC 91].
61 . State of Jammu and Kashmir v. Karan Singh, AIR 1997 J&K 132 (DB).
62 . Draupadi Devi v. UOI, AIR 2004 SC 4684 [LNIND 2004 SC 907].
63 . Shiv Kumar Sharma v. Santosh Kumari, AIR 2008 SC 171 [LNIND 2007 SC 1088]: (2007) 8 SCC 600 [LNIND 2007 SC 1088].
64 . Ibid., at page 174175.
65 . (2004) 8 SCC 569 [LNIND 2004 SC 1528].
66 . Pasupuleti Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409 [LNIND 1975 SC 120]: (1975) 1 SCC 770 [LNIND 1975 SC
120].
67 . Carona Ltd. v. M/s Parvathy Swaminathan, AIR 2008 SC 187 [LNIND 2007 SC 1165]: (2007) 8 SCC 559 [LNIND 2007 SC 1165].
68 . Ibid., at page 193.
69 . Ibid., at pp. 193-194.
70 . Halsburys Laws of England, (4th. Ed.) Vol I para 55, p. 61.
71 . Mahadeo Gopala Shinde v. Nivrutti Sripati Jadhav, 2007 (2) Mah LJ 362 : 2007 (3) All MR 110.
72 . Shyam Lal v. Sham Lal, AIR 2007 P&H 89 : 2007 (2) Rec Civ R 484. See also State of Tamil Nadu v. M. Balakrishnan, (1999) MLJ (Supp)
81 (Mad.).
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73 . Union of India v. Zurin Taj Begum, (1998) 1 MLJ 237 [LNIND 1997 MAD 47] (Mad) : (1997) 2 LW 845.
74 . State of Tamil Nadu v. Rajamanickam, (2000) 3 MLJ 753 [LNIND 2000 MAD 801] (Mad).

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

S. 9A (Maharashtra Amendment)75.

Where at the hearing of application relating to interim relief in a suit, objection to

jurisdiction is taken, such issue to be decided by the Court as a preliminary issue

(1) Notwithstanding anything contained in this Code or any other law for the time
being in force, if, at the hearing of any application for granting or setting aside an
order granting any interim relief, whether by way of stay, injunction, appointment
of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the
court to entertain such a suit is taken by any of the parties to the suit, the Court
shall proceed to determine at the hearing of such application the issue as to the
jurisdiction as a preliminary issue before granting or setting aside the order granting
the interim relief. Any such application shall be heard and disposed of by the Court
as expeditiously as possible and shall not in any case be adjourned to the hearing of
the suit.
(2) Notwithstanding anything contained in sub-s.(1), at the hearing of any such
application, the Court may grant such interim relief as it may consider necessary,
pending determination by it of the preliminary issue as to the jurisdiction.

1. Scope. Section 9A (Maharashtra Amendment of 1970), opens an umbrella, under which

there is provided a self-contained scheme with a definite object. The scheme indicates that
the court has to determine the objection to the jurisdiction as a preliminary issue, on a
consideration of all the aspects in which the said issue is enveloped. Determination of the
issue after hearing even at that stage would get a label of finality, in so far as all
proceedings of the suit is concerned.76

But, where interim injunction was granted and the defendant transferred his tenancy rights
in violation of the interim injunction, without raising any question of jurisdiction, it was
held by Bombay High Court that the purchaser of tenancy rights cannot seek setting aside
of injunction order on the ground that the court had no jurisdiction to grant interim
injunction.77
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2. Essence. The essence of the provision is that the issue of jurisdiction should not only
be decided at the interlocutory stage but at the threshold, before the court proceeds with
the matter on any other issue; for if it has no jurisdiction to try and entertain the suit as
presented, then obviously it should not dwell upon any other matter at all. The only
exception is provided by sub-s (2)to grant ad-interim relief, pending determination of the
preliminary issue of jurisdiction. A priori, the court is obliged to decide the question of
jurisdiction of the court at the interlocutory stage itself to avoid hearing of any other issue
or relief on merits. Thus, the appellate court while considering the appeal filed by the
respondents against the order passed by the trial court refusing to grant interim relief,
having prima facie observed that the suit as presented is barred by jurisdiction, ought to
have relegated the parties to the trial court to first resolve that issue.78

3. Stage. When the stage of filing written statement has been reached, then the only
option available to the defendants is to file their written statement raising therein their
objection regarding jurisdiction. There is no other stage which gives a right to defendants
to take out notice of motion taking objection to jurisdiction. If and when the defendants
file written statement and raise an objection to jurisdiction then the issue will have to be
framed on that point. The defendants will have to convince the court that the said issue
has to be decided as a preliminary issue and if that is done by the court, then only the
objection to jurisdiction can be decided. There is no intermediary stage for raising an
objection to jurisdiction except filing of written statement and taking that plea or unless
the matter is covered by s 9 A of the Code of Civil Procedure. Further the stage of first hearing
of the suit is after filing of the written statement and before framing of the issues.
Consequently, O 15, r 1 has no application in the present case, as a result, the only stage of
raising objection to jurisdiction, if the matter does not come under s 9 A of the Code of Civil
Procedure is by filing written statement and raising the objection therein.79

However, once parties and court have chosen not to try the issue regarding jurisdiction of
court as preliminary issue and evidence was led on all issues and the matter was fixed for
final order, the court has to record findings on all issues. If the court disposed of the
matter simply on the point of jurisdiction at that stage, the very purport of provisions of
O.14, R.2 of the Code would be defeated.80

4. Interim Orders. Section 9A lays down that where an objection to jurisdiction of a civil
court is raised to entertain a suit and to pass any interim orders therein, the court should
decide the question of jurisdiction in the first instance but that does not mean that pending
the decision on the question of jurisdiction, the court has no jurisdiction to pass interim
orders as may be called for in the facts and circumstances of the case. A mere objection to
jurisdiction does not instantly disable the court from passing any interim orders. It can yet
pass appropriate orders. At the same time, it should also decide the question of jurisdiction
at the earliest possible time. The interim orders so passed are orders within jurisdiction
when passed and effective till the court decides that it has no jurisdiction to entertain the
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suit. These interim orders undoubtedly come to an end with the decision that this court
had no jurisdiction. It is open to the court to modify these orders while holding that it has
no jurisdiction to try the suit.81

Providing for hearing of issue of jurisdiction first as preliminary issue in applications filed
for grant of ad interim relief in suits are not inconsistent with or repugnant to the provisions
of O.14, R.2 of the Central Act. Hence, s 9 -A cannot be said to be repeated as a result of
amendment of the Code by the Central Amendment Act of 1999 and 2002.82

5. Moulding the relief. Where the gravamen of the grievance made by the applicants
under s 9 -A, Code of Civil Procedure is that the Indian courts have no jurisdiction to try and
entertain the dispute between the parties, even though the relief in the application is
couched in such a way so as to pray for return of plaint, however, that would not denude
the petitioner or for that matter the court from dealing with the issue of jurisdiction of the
court. And if the court were to hold that it had no jurisdiction to try and decide the dispute
then it would be the bounden duty on the court to mould the relief and pass such order as
would be warranted in the fact situation of the case especially having regard to the mandate
of s 9 -A of the Code of Civil Procedure.83

6. Question of Limitation. Where the suit for specific performance of agreement to sell
and for perpetual injunction restraining the defendant from interferring the suit property
was filed after 29 years of the date of execution of the agreement with no time limit fixed
for performance thereof in the agreement, it was held that the suit for injunction would be
governed by Art. 113 of the Limitation Act, 1963, cause of action for the said reliefs arose
when right to sue accrued and dismissal of suit as barred by limitation by treating issue of
limitation as preliminary issue was found not proper as the said issue has to be decided on
the basis of the evidence of the parties.84

P.K. Balasubramanyan, J., speaking for the Supreme Court Bench in the above case
observed as follows:

It is seen that the suit was dismissed by the trial court on the finding that the claim for the relief of specific performance was barred by
limitation. The plaint contains not only a prayer for specific performance but also a prayer for perpetual injunction restraining the
defendants from interfering with the possession of the plaintiffs and from creating any documents or entering into any transaction in
respect of the suit property. Of course, the latter part of that prayer is directly linked to the claim for specific performance, but the suit
as regards the prayer for perpetual injunction to protect the possession of the plaintiff over the suit property on the claim that the
predecessor of the plaintiffs was put in possession of the property pursuant to the agreement for sale, on a subsequent date, could not
have been held to be not maintainable on any ground. Of course, the grant of the relief of injunction in a sense is discretionary and the
court ultimately might or might not have granted the relief to the plaintiffs. The defendants could have also shown that the relief of
injunction claimed is merely consequential to the relief of specific performance and was not an independent relief. But that is different
from saying that the suit could be dismissed merely on a finding that the prayer for specific performance of agreement was barred by
limitation.85

The Bench further went on to observe as follows:

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The question as to how long a plaintiff, even if he had performed the whole of his obligations under an agreement for sale, in which a
time for performance is not fixed, could keep alive his right to specific performance and to come to court after 29 years seeking to
enforce the agreement, may have also to be considered by the court especially in the context of the fact that the relief of specific
performance is discretionary and is governed by the relevant provisions of the Specific Relief Act. But again, these questions cannot be
decided as preliminary issues and they are not questions on the basis of which the suit could be dismissed as barred by limitation. The
question of limitation has to be decided only on the basis of Article 54 of the Limitation Act and when the case is not covered by the
first limb of that Article, normally, the question of limitation could be dealt with only after evidence is taken and not as a preliminary
issue unless, of course, it is admitted in the plaint that the plaintiff had notice that performance was refused by the defendants and it is
seen that the plaintiffs approached the court beyond three years of the date of notice. Such is not the case here.86

However, the Bombay High Court has held that where specific plea is taken by the
defendant that the suit claim was barred by limitation and the pleadings clearly showed that
the suit claim was barred by limitation, the order dismissing the suit on the preliminary
issue of limitation was proper.87

S. 10. Stay of suit.

No Court shall proceed with the trial of any suit in which the matter in issue is also directly
and substantially in issue in a previously instituted suit between the same parties, or
between parties under whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in 88[India] having jurisdiction to
grant the relief claimed, or in any Court beyond the limits of 89[India] established or
continued by the 90[Central Government] 91[***] and having like jurisdiction, or before
92[the Supreme Court].

Explanation. The pendency of a suit in a foreign Court does not preclude the Courts in
93[India] from trying a suit founded on the same cause of act ion.

1. Alterations in the section. The words proceed with the trial have been substituted for
the word try. The words except where a suit has been stayed under s 20, which occurred at
the commencement of the corresponding section of the Code of 1882, the words for the
same relief which occurred after the words previously instituted suit, and the words
whether superior or inferior which occurred after the words any other court, have been
omitted. The words litigating under the same title are new.

The words or the Crown Representative were omitted from this section by the Indian
Independence (Adaptation of Central Acts and Ordinances) Order 1948, and the words
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the Supreme Court were substituted for the words His Majesty in Council by the
Adaptation of Laws Order 1950.

2. Scope. The present section provides that where a suit is instituted in a court to which
the Code applies, the court shall not proceed with the trial of the suit, if

First, the matter in issue in the suit is directly and substantially in issue in a previously
instituted suit between the same parties;

Secondly, the previously instituted suit is pending

(i) in the same court in which the subsequent suit is brought; or
(ii) in any other court in India (whether superior, inferior or co-ordinate); or
(iii) in any court beyond the limits of India established or continued by the Central
Government; or
(iv) before the Supreme Court (formerly His Majesty in Council); and,

Thirdly, where the previously instituted suit is pending in any of the courts mentioned in cl
(b) or cl (c), such court is a court of jurisdiction competent to grant the relief claimed in
the subsequent suit.1

A plain reading of s 10 of the Code of Civil Procedure makes clear that where the subject matter
of the suit is one and the same and the parties are also the same, under such circumstances,
if there are two suits between the parties, it is the subsequent suit which has to be stayed
and not the previous one.2

Where execution proceeding is pending in a previously instituted suit and appeal against
the decree is also pending, s 10 will have no application. Although pendency of appeal
against the decree can be treated as pendency of suit, but once the suit is finally decided,
there is no question of applying s 10. However, if the matter in issue in the subsequent suit
was decided in the previous suit, the aggrieved party can take the plea of res judicata,
because s 10 lays down a procedure and it does not confer any substantive right upon
parties.3

The section does not of course empower one court to stay the proceedings of another
court. A district court exercising insolvency jurisdiction under the Provincial Insolvency Act 5
of 1920, cannot under this section stay a suit pending against the insolvent in a subordinate
court.4 Since however, the provisions of the section are mandatory the court before which
the subsequent suit is pending ought to stay it where all the conditions laid down in the
section exist.5

3. Object. The object underlying s 10 is to prevent courts of concurrent jurisdiction from

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simultaneously trying two parallel suits in respect of the same matter in issue. The object
underlying s 10 is to avoid two parallel trials on the same issue by two courts and to avoid
recording of conflicting findings on issues which are directly and substantially in issue in a
previously instituted suit.6 The basic object of s 10 is to protect a person from multiplicity
of proceedings between the same parties.7

B, residing in Calcutta, has an agent A at Calicut employed to sell his goods there. A sues B
in Calicut claiming a balance due upon an account in respect of dealings between him and
B. During the pendency of the suit in the Calicut Court, B institutes a suit against A in
Calcutta for an account and for damages caused by As alleged negligence. Here the matter
in issue in Bs suit is directly and substantially in issue in As suit: further both the suits are
between the same parties; therefore, if the Court at Calicut is a Court of jurisdiction
competent to grant the relief claimed in Bs suit, the Calcutta Court must not proceed with
the trial of Bs suit, and the suit in the Calicut Court, being the one instituted prior in point of
time, should alone be proceeded with.8 But if A was Bs agent at Pondicherry instead of at
Calicut, and the suit was brought by him in the Pondicherry Court, the Calicut Court,
would not be precluded from proceeding with the trial of Bs suit, the Pondicherry Court
being then a foreign Court. (See the Explanation to the section).

This section enacts merely a rule of procedure and a decree therefore passed in
contravention of it is not a nullity and cannot be disregarded in execution proceedings.9 It
can be waived, although the section is so worded as not to leave any discretion in the court
where its conditions are satisfied.10 Accordingly, even though the Representation of the
Peoples Act provides that the provisions of the Code shall as far as possible apply to
petitions filed under it, an election tribunal does not err in first taking up for hearing a
subsequently filed petition by reason of a discretion vested in it under s 87 of that Act and
also because of the parties to it having acquiesced.11

The section does not of course empower one Court to stay the proceedings of another
Court. A District Court exercising insolvency jurisdiction under the Provincial Insolvency Act
5 of 1920 cannot under this section stay a suit pending against the insolvent in a
subordinate Court.12 Since however the provisions of the section are mandatory the court
before which the subsequent suit is pending ought to stay it where all the conditions laid
down in the section exist.13

4. Section applies to legally maintainable suits. Generally help of s 10 of the Code of Civil
Procedure is taken in support of plea of maintainability of two or more suits by one plaintiff.
Section 10 of the Code of Civil Procedure is not the permissive provision, but is a restrictive
provision and cannot be interpreted to hold that since only proceeding with the trial of
issue or suit is restricted by s 10 of the Code of Civil Procedure, therefore, it impliedly accepts
maintainability of more than one suit by one plaintiff. Said plea is devoid of any force.
Section 10 of the Code of Civil Procedure applies only to those suits which are legally
maintainable. Section 10 cannot be invoked to make the subsequently filed suit
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maintainable. Other view will be just contrary to entire scheme of the procedure provided
for trial of suits in the Code of Civil Procedure. All relevant provisions of the Code of Civil
Procedure are aimed towards avoiding more suits than one by the plaintiff, which also
prohibits the plaintiff from even amending suit without leave of the court. Despite all
provisions to avoid more than one suit some unavoidable circumstances permits
involvement of same issues in two suits. Those suits are like cross suits or where law
permits second suit specifically like withdrawal of suit with permission to file fresh suit or
due to accrual of cause of action or entitlement for the relief/reliefs subsequent to filing of
earlier suit to the plaintiff and plaintiff had no right to claim relief at the time of filing of
earlier suit and where court either cannot grant relief after taking note of subsequent event
or the court refuses to entertain subsequent event for moulding the relief such suits are
maintainable and are permissible. Even where such suits are lawfully maintainable still law,
under s 10 prohibits simultaneous trial of issue and if, due to any reason, trial of suit
proceeded, the decision given on an issue which is earlier in time has been made final by s
11 of the Code of Civil Procedure when specific provisions of law prohibits trial of even
maintainable suit, then interpreting s s 10 and 11 of the Code of Civil Procedure as a
permissive provision making maintainable two suits simultaneously will be against the
legislative intention.14

5. This Section and Section 5 of TN Debt Relief Act (13 of 1980). The question that
arises for consideration is what is the appropriate course to be followed in a suit which was
filed by the creditor against the debtor before the debtor made the application to the
tahsildar seeking relief under the Act, should it be dismissed immediately on filing or
should it be suspended/stayed till the tahsildar disposes of the application filed by the
debtor. It is our view that in such a case the proper and reasonable course to be followed is
to stay the proceeding in the suit till the tahsildar/appellate authority disposes of the
proceeding under the statute. If it is held in that proceeding that the debtor is not entitled
to the benefit under the Act then the civil suit may beproceeded with, if on the other hand
it is held that the debtor is entitled to the benefits provided in the Act then the suit has to
be dismissed under s 4. In no case can it be held that by filing a civil suit for realisation of
the mortgage amount the proceeding pending before the tahsildar or the appellate authority
is to be dismissed without adjudication.15

6. Res judicata and Res sub judice distinction. The rule of res judicata is readily
distinguished from the rule in s 10 for the latter relates to a res sub judice, that is, a matter
which is pending judicial inquiry; while the rule in the present section relates to res judicata
that is, a matter adjudicated upon or a matter on which the judgment has been
pronounced. Section 10 bars the trial of a suit in which the matter directly and substantially
in issue is pending adjudication in a previous suit. The present section bars the trial of a
suit or an issue in which the matter directly and substantially in issue has already been
adjudicated upon in a previous suit. Moreover, public policy requires that there should be
an end of litigation. The question whether the decision is correct or erroneous has no
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bearing on the question whether it operates or does not operate as res judicata;16 otherwise,
every decision would be impugned as erroneous and there would be no finality.17

While s 10 relates to res sub judice, that is, a matter which is pending a judicial
adjudication, s 11 relates to res judicata, that is to say, a matter already adjudicated upon by a
competent court. Whereas s 10 bars the trial of a suit in which the matter directly and
substantially in issue is pending adjudication in a previous suit, s 11 bars the trial of a suit
or an issue in which the matter directly and substantially in issue has already been
adjudicated upon in a former suit. The object of both the sections is similar, namely, to
protect the parties from being vexed twice, for the trial of the same cause and to achieve
the public policy that there should be an end of litigation. Therefore, one of the objects of
s 10 is to prevent competent courts of concurrent jurisdiction from having to try parallel
suits in respect of the same matter in issue, and thereby to pave the way for the application
of the rule of res judicata contained in the next following section. So, what the court has
really to see is if the decision of the matter directly and substantially in issue in the former
suit will or will not lead to the decision of the matter directly and substantially in issue in
the subsequent suit, and if it is satisfied that it will, then it must stay the trial of the
subsequent suit and await the decision in the former suit.18

7. Fundamental Test. The fundamental test to attract s 10 is whether on final decision

being reached in the previous suit, such decision would operate as res judicata in the
subsequent suit.19

8. Suit. The word suit is important for our purpose. As per the provisions of O 4, r 1 of
the Code of Civil Procedure every suit shall be instituted by presenting a plaint to the court or
such officer as it appoints in its behalf. Therefore, the word suit ordinarily means a civil
proceeding instituted by presenting a plaint.20

A suit within the meaning of this section includes a pending appeal.21

9. Section applies only to suits filed in civil courts. The language of s 10 suggests that it
is referable to a suit instituted in the civil court and it cannot apply to proceedings of other
nature instituted under any other statute. The object of s 10 is to prevent courts of
concurrent jurisdiction from simultaneously trying two parallel suits between the same
parties in respect of the same matter in issue.22

Application under s 20 of the Arbitration Act, 1940 (now repealed by the Arbitration &
Conciliation Act, 1996) is not a suit within s 10 of the Code of Civil Procedure.23

Section 10 does not justify stay of a suit under rent control statute for the eviction of a
tenant on the ground that the tenant has filed a suit for specific performance against the
landlord on the basis of an alleged agreement of sale of the disputed premises in favour of
the tenant. The tenant cannot rely on s 53 A, Transfer of Property Act, 1882, by claiming
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adversary title by claiming that under the agreement he continued in possession as a

purchaser and not as a tenant.24

In a case from Madhya Pradesh, the plaintiff had filed a suit for declaration of title in
respect of the property in dispute wherein the defendant had denied his title. The plaintiff
filed another suit for ejectment of the defendant under the M.P. Accommodation Control
Act, 1961 wherein also the defendant denied the title of the plaintiff. The question of title
in the suit for ejectment is not directly and substantially in issue but is incidental and
collateral, because for getting a decree in ejectment suit, the plaintiff is not required to
prove his title but only that he is the landlord within the meaning of the Act. Hence s 10
will not be attracted.25

Thus, a suit for arrears of rent for a later year cannot be stayed because of the pendency in
revision of a suit for rent for a previous year.26 The Delhi High Court declined to apply
this section in an application under the Arbitration Act on the ground that whereas under s
33 of that Act the court can only declare as to the existence or otherwise of an arbitration
agreement, relief awardable under s 20 is more comprehensive in that the court cannot
only direct the agreement to be filed but also appoint an arbitrator.27

As stated above, s 10 of the Code of Civil Procedure is referable to a suit instituted in a civil
court. The proceedings before the labour court cannot be equated with the proceedings
before the civil court. They are not the courts of concurrent jurisdiction. In the
circumstances, s 10 of the Code of Civil Procedure has no application to the facts of this case.28

The Debt Recovery Tribunal is a Special Tribunal created under a Special Act and the
provisions of Act 51 of 1993 ousts the jurisdiction of civil court. The Tribunal cannot be
considered a civil court and an application filed by a financial institution for recovery of
debt cannot be considered a suit. Hence s 10 has no application.29

A proceeding for an interim measure under s 9 of the Arbitration and Conciliation Act, 1996 is
almost like an interlocutory application and hence such a proceeding cannot be construed
as a suit within the meaning of s 10 of the Code. Therefore, s 10 is not applicable to such
proceedings.30

In simultaneous prosecution of the defendant in the criminal case, the civil suit on the
same subject-matter can be stayed only under very exceptional and compelling
circumstances. There is no question to stay the civil suit instituted against defendants
during the pendency of the criminal case when they have filed their written statement in
the civil suit, no question of any embarrassment or premature disclosure of their defence
in the criminal case arises in this case.31

In a company proceedings, no plaint is presented and hence, it cannot be regarded as a

proceeding based on a suit. Therefore, when the proceedings are not based on a suit, they
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cannot be regarded as a trial of a suit and hence, the suit for recovery of money pending
before the trial court could not be stayed till disposal of company petition.32

On the basis of the precedent as well as the principle, it has become evident that the
proceedings in a regular suit and the proceedings which are summary in nature
contemplated by s 372 of the Indian Succession Act (39 of 1925) are entirely different and the
latter proceedings would not be covered by s 10 of the Act. The object of issuance of a
certificate and its effect is entirely different which would not deciding the issue finally
between the parties.33

Where in a suitapplication for stay of suit is filed on the ground that subject-matter of suit
and second appeal was same, however, applicants failed to discharge their onus by
establishing that both suits arose out of same cause of act ion, same subject-matter and
same relief. In fact, cause of action in subsequent suit arose when order in suit under
second appeal was passed. The application for stay of subsequent suit was found liable to
be dismissed.34

10. No bar to file second suit. Though, the heading of this section is stay of suit, it does
not operate as a bar to the institution of the subsequent suit. It is only the trial of the suit
that is not to be proceeded with.35

11. Stage. Normally, the application under s 10 of the Code of Civil Procedure is to be decided
after filing of the written statement, then the court is in a better position to know as to
whether the matter in issue in both the suits is directly and substantially the same or not.
However, that does not mean that the court has no jurisdiction to entertain the application
prior to filing of the written statement. In the given case, the court may decide the question
before filing of the written statement if the defendant makes available the copy of the
plaint of the earlier suit and the other documents which enables the court to decide as to
what the dispute between the parties is. In case, if the court is not in a position to decide as
to what dispute between the parties is on the basis of the plaint of previously instituted
suit, the court may postpone the petition till the filing of the written statement,36 because a
proceeding instituted first in time cannot be stayed and if anything in terms of s 10 of the
Code of Civil Procedure which is only a subsequent proceeding as between the parties that can
be stayed.37

However, the subsequent suit can be stayed only at the stage of trial. There cannot be any
application of s 10 at the appellate stage.38

For maintaining an application under s 10 the defendant in the suit concerned need not
first file his written statement; the s 10 application can be taken out even before filing the
written statement.39
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It is not necessary for the defendant to move the court under this section until he has filed
his written statement in the later case.40

12. Question of Jurisdiction. Jurisdiction with reference to the subject matter of a claim
depends upon the allegations in the plaint and not upon allegations in the written
statement. The question of jurisdiction raised by the defendant is a question that is virtually
between the plaintiff and the court itself. The plaintiff invokes the jurisdiction of the court
and the court has always jurisdiction to decide for itself whether it has jurisdiction to try
the suit before it. There is nothing in s 10 of the Code of Civil Procedure to show or suggest,
that, if an issue of jurisdiction has been raised in a previously instituted suit, the defendant
cannot invoke provision of s 10 of the Code of Civil Procedure in subsequent suit unless he
withdraws or waives that objection.41 Application cannot be dismissed as premature on
ground that copy of plaint was not produced or written statement was not filed in instant
suit.42

13. Decree passed disregarding this sectionvalidity. This section enacts merely a rule
of procedure and a decree therefore passed in contravention of it is not a nullity and
cannot be disregarded in execution proceedings.43 It can be waived, although the section is
so worded as not to leave any discretion in the court where its conditions are satisfied.44
Accordingly, even though the Representation of the Peoples Act, 1951 provides that the
provisions of the Code of Civil Procedure shall as far as possible apply to petitions filed under
it, an election tribunal does not err in first taking up for hearing a subsequently filed
petition by reason of a discretion vested in it under s 87 of that Act and also because of the
parties to it having acquiesced.45

The object of the section is to prevent courts of concurrent jurisdiction from

simultaneously trying two parallel suits in respect of the same matter in issue. The section
enacts merely a rule of procedure and a decree passed in contravention thereof is not a
nullity. It is not for a litigant to dictate to the court as to how the proceedings should be
conducted, it is for the court to decide what will be the best course to be adopted for
expeditious disposal of the case.46

14. Matter in issue. See notes under the heading plea of resjudicata cannot be raised for
the first time before Supreme Court under s 11.

15. Whether the subject matter of both suits must be the same. Section 10 applies
only in cases where the whole of the subject matter in both the suits is identical. The key
words in s 10 are the matter in issue is directly and substantially in issue in the previous
instituted suit. The words directly and substantially in issue are used in contradiction to the
words incidentally or collaterally in issue. Therefore, s 10 would apply only if there is
identity of the matter in issue in both the suits, meaning thereby, that the whole of subject
matter in both the proceedings is identical.47 The language used by the Apex Court in the
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above case is very significant. It has been stated that the words used in s 10 are the matter
in issue is directly and substantially in issue in the previous instituted suit. The words
directly and substantially in issue are used in contra-distinction to the words incidentally or
collaterally in issue. Thus, s 10 would apply only if there is identity of the matter in issue in
both the suits, meaning thereby, that the whole subject matter in both the proceedings is
identical.48 The provisions of s 10 would apply when decision in one suit would non-suit
the other suit. Only in that event it could be said that the matter in issue in both the suits
are directly and substantially the same. In case of two suits between the same parties when
the facts clearly disclose and also establish that the suit property in the subsequent suit is
absolutely distinct and separate from that of the earlier suit and there is no identity at all
with regard to the cause of action and also the reliefs that are sought in both the suits, the
subsequent suit between the same parties, was not liable to be stayed as provisions of s 10
of the Code of Civil Procedure were not applicable.49

Section 12 of the Code of Civil Procedure 1882 contained the words for the same relief after the
words previously instituted suit. Hence, it was necessary for the application of the section
not only that the matter in issue in the second suit should also be directly and substantially
in issue in the first suit, but that the second suit must be for the same relief as that claimed in
the first suit.50

It is not only the identical subject matter but also the relief claimed in both suits that
determine the applicability of s 10. The trial of subsequent suit can be stayed only when
the court trying the previously instituted suit had power to grant the relief claimed in the
subsequent suit. Thus, where the earlier suit was filed for the relief of partition of specific
share in property and the subsequent suit was filed in small cause court claiming ejectment
of tenant and recovery of rent, it was held that s 10 would not apply.51

Even if the cause of act ion and the relief prayed for or some of the issues in the former
and subsequent suits may differ, that will not be a ground for non-application of s 10 of the
Code of Civil Procedure if the Code of Civil Procedure finds that the final decision in the former
suit would operate as res judicata in the subsequent suit.52 The words for the same relief
have been omitted in the present section. The omission of these words, however, does not
materially alter the law. In a Calcutta case,53 Rankin CJ laid stress on the identity of the
subject matter. When the two suits were for the recovery of cesses due for different
periods, the learned Chief Justice said:

But it must be observed that a judgment for the recovery of subsequent cesses does not
differ merely as being for a different form of relief. It is the same kind of relief for an
entirely separate subject matter, namely, a debt which was not in existence at all at the time
of the previous suit. It does not follow, because the words the same relief are no longer in
the section, that s 10 is applicable to suits for recovery of successive rents.
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It has even been held that a suit cannot be stayed if the main issue in both the suits is the
same but the subject matter of the second suit is different from that of the first suit.54

Stay of subsequent suit cannot be ordered when one or some of the issues are identical.
There must be substantial identity of subject-matter in both suits. Thus, where the main
question involved in the previous suit related to the validity of termination of service of the
defendant, the subsequent suit, which related to termination of licence to occupy the
premises, cannot be stayed.55 To attract s 10, it has to be looked into whether the judgment
in the earlier suit would operate as res judicata in the subsequent suit. Therefore, where two
suits related to different transactions relating to supply of materials on different dates,
there cannot be said to be identity of cause of action and the matter in issue and as such s
10 would not apply because there cannot be any question of application of res judicata.56

The Indore Bench of the Madhya Pradesh High Court held that where parties in the
subsequent suit are litigating under the title which was claimed by the respondents in the
earlier suit there is identity of jurisdiction in view of Explanation VIII contained in s 11
and as such s 10 would be applicable.57

The Jammu and Kashmir High Court has held that s 10 of the CPC forbids trial of any suit
in which the matter in issue is also directly or substantially in issue in a previously instituted
suit between the same parties or between parties under whom they or any of them claim
under the same title where such suit is pending in the same or any other court in the state
having jurisdiction to grant the relief claimed. It has been further held in the same case that
addition of a new party in the subsequent suit does not oust the application of s 10 on the
ground that all the parties in the subsequent suit are not the same as in the earlier suit.58

Where the first suit was a title suit to declare a notice terminating leave and licence to be
void, second suit by the defendant to eject the first plaintiff (and for mesne profits) is not
barred.59 A suit was filed alleging infringement of plaintiff-companys right by defendant
company by using trade name of medicine and selling the same in wrapper and carton of
identical design with the same colour combination, etc, as that of plaintiff-company. A
subsequent suit was filed in a different court by the defendant company against plaintiff
company with same allegations. Held, subsequent suit should be stayed. A simultaneous
trial of two suits in different courts might result in conflicting decision as there was
complete identity of issue in the two suits.60 While in the first suit the question was only
regarding the authority of first plaintiff to create the settlement, the subsequent suit
questions the very legality of that settlement. The entitlement to create a document would
be one thing while its legality in law would be quite another. That is the difference in the
said suits. Thus, the subsequent suit could not be stayed under s 10, Code of Civil Procedure
till the decision of earlier suits.61

Main reliefs sought for in a company petition, filed after a civil suit, was on the basis of
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oppression, and prayer was for framing a scheme and appointment of directors. In the
earlier civil suit, the main relief sought was to restrain government nominated directors
from functioning. It was held that stay under s 10, Code of Civil Procedure in respect of the
company petition could not be granted.62

Two suits were filed between same parties, involving common question arising between
them. It was held that consolidation and simultaneous hearing of the suits is not barred
under section 10. Section 10 merely lays down a procedure and does not vest any
substantive right in the parties. The claim in the later suit, was his defence in earlier suit.
The Court had inherent power to consolidate the two suits and to direct analogous hearing
of the same, in the ends of justice.63

Suit was filed in a court at A, for the recovery of damages by a company from a bank.
Another suit was filed in a court at D for amount due to the bank on advance at D. Parties
to both the suits were different. It was held, that the suit in court at D could not be stayed
under s 10. Section 10 applies only where, on the final decision being reached in the
previous suit, such decision would operate as res judicata in the subsequent suit. In the
instant case, the reliefs in the two suits were different and so were the causes of act ion.
The object of s 10 is to prevent courts of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigations in respect of the same cause of
action, the same subject matter and the same relief.64

Section 10 would apply only if the whole of subject matter in both the suits is identical and
not where merely one of many issues in two suits is identical. The key words in s 10 are the
matter in issue is directly and substantially in issue in the previous instituted suit. The
words directly and substantially in issue are used in contra-distinction to the words
incidentally or collaterally in issue. That means that s 10 would apply, only if there is
identity of the matter in issue in both the suits meaning thereby, that the whole of subject
matter in both the proceedings is identical and not merely one of the many issues arising
for determination.65 Thus, where both suits, the earlier one and the subsequent one are not
entirely identical and all the findings recorded in the second suit would not operate as res
judicata in the first suit, Section 10 would not apply.66 However, in Pukhraj D. Jains case,67
the Supreme Court held that mere filing of application under Section 10 does not put an
embargo on the power of the Court to examine the merits of the suit. G.P. Mathur, J.,
speaking for the Bench, observed (at page no. 3507 of AIR):

In a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings and harassment of
parties. However, where subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to
the Court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause
harassment to the other side.68

Matters in issue in both the suits need not be identical. It is enough, if they are substantially
the same.69Section 10 of the Code of Civil Procedure contemplates substantial identity of matter
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in issue in the two suits. It is not the identity of main issue or all issues but the identity of
matter in issue which is the determining test. The decision in one suit must non-suit the
other suit. This must be the phraseology of answer, to win the question whether the matter
in issue in the two suits is directly and substantially the same.70

For determining whether the matter in issue in the subsequently instituted suit is directly
and substantially in issue in the previously instituted suit, absolute identity of the parties in
both the suits is not a consideration.71

Main reliefs sought for in a company petition, filed after a civil suit, was on the basis of
oppression, and the prayer was for framing a scheme and appointment of directors. In the
earlier civil suit, the main relief sought was to restrain the government nominated directors
from functioning. It was held that stay under s 10, the Code of Civil Procedure in respect of
the company petition could not be granted.72

Where the first suit was by A for specific performance against the original owner, the
second suit by B for the eviction of A, on the ground of personal necessity and default in
the payment of rent, does not attract s 10.73

The mere fact that one issue is identical in two suits is not enough to attract s 10. It does
not make the subject matter identical. As pointed out by Sir Ashutosh Mookerjee in Bipin
Behari v. Jogindra Chandra,74 the matter in issue in s 10 is not equivalent to any of the
questions in issue. It means the entire subject matter in controversy.75

Two suits by the plaintiff were filed before the subordinate court. Subsequent suit was filed
before the High Court. Neither the parties nor the issues in earlier suit were the same as
those in the subsequent suit. Subject matter in controversy was also not the same. It was
held that application for stay of suit under s 10 was not maintainable. Considering various
facts, including the position that the determination of the issues involved in the two earlier
suits would not put an end to the controversy between the parties with regard to the
several other issues that may be left in the subsequent suit, it was not a proper case where
such a discretion under s 151 should be exercised for the purpose of stay of the present
suit.76

Application under s 20, Arbitration Act, 1940 is not a suit within s 10, CPC (Now repealed
by the Arbitration & Conciliation Act, 1996).77

Section 10 does not justify stay of a suit under rent control statute for the eviction of a
tenant on the ground that the tenant has filed a suit for specific performance against the
landlord on the basis of an alleged agreement of sale of the disputed premises in favour of
the tenant. The tenant cannot rely on s 53 A, Transfer of Property Act by claiming adversary
title by claiming that under the agreement he continued in possession as a purchaser and
not as a tenant.78
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Where in one suit the question was regarding the authority of a person to create a
settlement and in the second suit the very legality of that settlement was questioned, it was
held by the Madras High Court that the issues involved in both the suits were not directly
and substantially the same and as such the stay of subsequent suit pending appeal against
decree in the first suit was improper.79

Where a cultivating tenant filed a suit for injunction restraining the landlord from ejecting
him from the suit land and then subsequently filed application before Tehsildar for
recording him as a tenant under the Tamil Nadu Agricultural Lands Record of Tenancy
Rights Act, 1969, it was held that s 10 was not applicable.80

But, the section will apply if the subject matter is the same, and the only difference is that
the second suit contains a prayer for a declaration that an interim order made in the first
suit is illegal, or for an injunction restraining the defendant from proceeding with the first
suit.81 In these cases, the words matter in issue have been construed as having reference to
the entire subject matter in controversy between the parties, and not merely one or more
of several issues.82 But, in Calcutta case it was pointed out that the section contains no
reference to the subject matter or to the cause of action and that one test for the
applicability of the section is whether on a final decree being reached in the previous suit,
such decree would operate as res judicata in the subsequent suit.83 This test was adopted
without comment in a Madras case84 but came in for criticism in an Allahabad case85
wherein it was held that as the matters directly and substantially in issue in both the suits
were not identical, s 10 did not apply. It has been held by the same court that to attract this
section, it was not necessary that there should be complete identity of the subject matter
and that it would be sufficient if a matter directly and substantially in issue in an earlier suit
is directly and substantially in issue in the subsequent suit.86 Again, in a Calcutta case
reported in 1912 where the first suit was for dissolution of partnership and for accounts,
and the subsequent suit was by one of the partners for the return of a deposit, the section
was held to apply.87 Where a suit was filed for damages for breach of contract and the
defendant filed a cross-suit claiming refund of monies paid under the contract on the
ground that the opposite party was in default, it was held that as the issues in both the suits
were substantially the same, s 10 was applicable.88 Again, where cross-suits arising out of
the same transaction were filed for different reliefs, it was held that s 10 was applicable
because the matters in issue were substantially the same and it did not matter that the cause
of act ion for the two suits and the reliefs claimed were not the same.89

16. Sections 10 and 25 of the Code of Civil Procedure. The suit at Nashik has been
instituted first in point of time. By reference to s 10 of the Code of Civil Procedure, the trial of
the suit at Delhi, being the latter suit, shall be liable to be stayed. For the exercise of its
discretionary jurisdiction under s 25 of the Code of Civil Procedure 1908 the only consideration
which is relevant is expediency for ends of justice. The court will have regard to and
respect for the rule enacted in s 10 of the Code of Civil Procedure. Of course, the considerations
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such as which is the place where most of the evidence is available, convenience of the
parties and witnesses, which one of the two places is more convenient to access and attend
and so on are also the factors to be kept in view and may in an appropriate case persuade
this court to direct a transfer of case in departure from the rule underlying s 10 of the Code of
Civil Procedure. All would depend on the facts and circumstances of a given case. So far as
the present case was concerned, the Supreme Court deemed it proper to transfer the suit at
Delhi to the court at Nashik for the purpose of hearing and decision thereat. In doing so
Supreme Court followed the ordinary rule as there was no factor or consideration relevant
for making a departure therefrom.90

Merely because plea under s 10 for stay of suit has been rejected, Supreme Court is not
denuded of exercise of power to transfer the suit if ends of justice call for exercise of such
power.91

17. Consolidation of Suits. Generally, the purpose of transfer of the suit by Supreme
Court under s 25 from one state to another or by the High Court or the district Judge
under s 24 from one subordinate court to another is that two or more suits pending
between the same parties on the same subject matter are tried jointly by one court by a
convenient method known as consolidation of suits. This method is convenient to the
litigants as the evidence is recorded in two or more suits and the deposition of the same
witness in different suits is avoided, saving the time of litigants, lawyers and the court.
However, it is to be noted that if the two suits pending between the parties are at different
stages of the trial, say, for example, one suit is pending at a pre-issue stage and the other at
the defendants evidence, there is no point in consolidation of these suits.

Where in a revision petition before the High Court the respondents had filed a suit for the
relief of permanent injunction in respect of property in suit no. 494/6 and the revision
petitioners had filed another suit for various reliefs against the respondents and their
mother in relation to the properties in the same suit no. 494/6, it was held that the
application for consolidation of suits should be allowed because the issue involved in both
the suits being conveyance of property, and as such s 10 was no bar to considering such
application.92

Two suits were filed between same parties, involving common question arising between
them. It was held that consolidation and simultaneous hearing of the suits is not barred
under s 10. Section 10 merely lays down a procedure and does not vest any substantive
right in the parties. The claim in the later suit, was his defence in earlier suit. The court had
inherent powers to consolidate the two suits and to direct analogous hearing of the same,
in the ends of justice.93

This section does not bar the power of the court to consolidate for the purpose of hearing
an earlier suit and a later suit.94
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18. Discretion of Court. The proceedings in the trial of a suit have to be conducted in
accordance with provisions of the Code of Civil Procedure. Section 10 of the Code of Civil Procedure
no doubt lays down that no court shall proceed with the trial of any suit in which the
matter in issue is also directly and substantially in issue in a previously instituted suit
between the same parties or between parties under whom they or any of them claim
litigating under the same title where such suit is pending in the same or any other court in
India having jurisdiction to grant the relief claimed. However, mere filing of an application
under s 10 of the Code of Civil Procedure does not in any manner put an embargo on the power
of the court to examine the merits of the matter. The object of the section is to prevent
courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of
the same matter in issue. The section enacts merely a rule of procedure and a decree
passed in contravention thereof is not a nullity. It is not for a litigant to dictate to the court
as to how the proceedings should be conducted, it is for the court to decide what will be
the best course to be adopted for expeditious disposal of the case. In a given case the stay
of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings
and harassment of parties. However, where subsequently instituted suit can be decided on
purely legal points without taking evidence, it is always open to the court to decide the
relevant issues and not to keep the suit pending which has been instituted with an oblique
motive and to cause harassment to the other side.95

In a case of stay against recovery of electricity dues under the M.P. Electricity Duty Act
(1949), it was held by the Madhya Pradesh High Court that the State was not prohibited
from recovering interest on delayed payment of dues after the vacation of the stay order
because the stay order will not provide a protective umbrella for a defaulting consumer. It
was observed by the Division Bench that equity and fair play provide that if a man secures
certain privileges or benefits flowing from an order passed by the court, then such a
person should be required to return the benefit after vacation or rejection of the order.96

Although pendency of a criminal case is no ground for stay of a civil suit under S.10,
Courts in its discretion have some times directed the stay of civil suit. Thus, where the civil
suit was sought to be stayed during the pendency of criminal case on the plea of defence
being disclosed the Andhra Pradesh High Court directed the Criminal Court to dispose of
the case within three months and further directed the civil court to postpone trial of the
suit till then.97

In this respect the observations of Vivian Bose, J., speaking for five-judge bench of the
Supreme Court, in M.S. Sheriff v. State of Madras,98 deserve to be noticed:

As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is
some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider
that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an
eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain
limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
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Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should
wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and
sure; that guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early
as is consistent with a fair and impartial trial. Another reason is that it
is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special
considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or
the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution
ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have
finished.

Even in cases where the issues may not be the same in both the suits, Courts can exercise
its discretion to stay the subsequent suit to secure the ends of justice. Thus, where divorce
petition was filed by the wife and thereafter the husband filed petition for restitution of
conjugal rights, the Calcutta High Court held as follows:

Although in strict sence the issues in both the suits are not directly same, but nevertheless in our conscious judicious consideration the
former suit to be tried and disposed of prior to the subsequent suit for the sake of natural justice in as much as in the former suit OP
wife has challenged the legality of her marriage with the present petitioner and if the former suit succeeds and the wife obtains decree in
that event there will be no need to proceed with the subsequent suit.1

A Division Bench of the Madhya Pradesh High Court has held that where the petitioners
case is based on a will in respect of which the plaintiff has made allegations of forgery and
fabrication and in that regard criminal proceedings are pending against the petitioner, the
proceedings in the civil suit deserve to be stayed.2

19. Previously Instituted Suit. It is the pendency of the previously instituted suit that
constitutes a bar to the trial of the subsequent suit. Though the word suit includes an
appeal, it does not include an application for leave to appeal to His Majesty in Council, or
the Supreme Court for the application may not be granted at all, and if granted, the
applicant may not prefer any appeal.3 It seems that it does not also include applications
under s 47.4 An application under s 19 of the Bombay Public Trusts Act, 1950, raising the
question whether the trust was a public trust cannot be stayed under this section as that is
a matter within the exclusive jurisdiction of the charity commissioner.5 Proceedings under s
18 of the Displaced Persons Debts Adjustment Act, 1951, cannot be stayed under this section.6
Application was made under the Arbitration Act, 1940, (Now repealed by the Arbitration &
Conciliation Act, 1996) s 20 for the appointment of an arbitrator. Application was made by
the non-petitioners under s 10, the Code of Civil Procedure for staying further proceedings. It
was held that s 10 Code of Civil Procedure, cannot apply and the arbitration proceedings
cannot be stayed merely because an application under s 20 is registered as a suit, it does not
become suit within the meaning of the Code of Civil Procedure.7 An application for
determining fair rent by the Rent Controller under the Orissa House Rent Control Act,
1958, not being a suit, a subsequent suit for recovery of arrears of suit is not liable to be
stayed.8 An eviction proceeding against a tenant under the Andhra Pradesh (Lease, Rent
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and Eviction) Control Act, 1960, is not a suit and therefore is not liable to be stayed on the
ground of a partition suit against the landlord being pending.9

In order that s 10 may apply, the court in the earlier suit must also have jurisdiction to
grant the relief claimed under the subsequent suit. It is not enough that the subject matter
in both the suits is the same. If the conditions of s 10 are not satisfied, the court cannot, in
its inherent jurisdiction order stay of suit.10

The jurisdiction for the removal of executor or administrator under a Will vests with the
High Court under s 301 of the Indian Succession Act, 1925 and that power is not affected by
the remedy provided under s 92 of the Code. Thus, a proceeding under s 92 of the Code
cannot be said to be pending before a Court competent to try the application for removal
of executor and an order dismissing application under s 92 of the Code for non-
prosecution cannot be said to be by a court competent to grant the relief for removal of
executor. In that view of the matter proceedings under s 301 of the Succession Act cannot
be said to be barred on the principle of res sub-judice under s 10 or on the principle of res
judicata under s 11.11

Pending stay of suit under s 10, court can still pass interlocutory orders (in this case orders
on an application for amendment and for appointment of a receiver). Passing of such
orders does not mean proceeding with the trial of the suit.12

Even where the reliefs are based on different causes of act ion, yet, if the subject matter in
the two suits is the same, the later suit should be stayed under s 10.13

20. Trial. The word trial is of wide import. In its widest sense it would include all the
proceedings right from the stage of institution of a plaint in a civil case to the stage of final
determination by a judgment and decree of the court. Whether the widest meaning should
be given to the word trial or that it should be construed narrowly must necessarily depend
upon the nature and object of the provision and the context in which it is used.14

In the above case, the Supreme Court observed as follows:

Therefore, the word trial in s 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and
the prohibition to proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously
instituted suit. The object of the provision contained in s 10 is to prevent the Courts of concurrent jurisdiction from simultaneously
trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of
procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive
right in the matter. It does not bar the institution of a suit. It has been construed by the courts as a bar to the passing of interlocutory
orders such as an order for consolidation of the latter suit with the earlier suit, or appointment of a receiver or injunction or attachment
before judgment. The course of action which the court has to follow according to s 10 is not to proceed with the trial of the suit but
that does not mean that it cannot deal with the subsequent suit any more or for any other purpose.15

Relying on the above judgment of the Supreme Court, the Gauhati High Court in the
undernoted case16 held that an application under s 10 of the Code can be decided even
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before the filing of the written statement and prior to framing of issue. It further held that
even if an application under s 10 is pending or accepted, that cannot preclude the Court
from disposing of an application under O 39, r 1 and 2 read with s 151 of the Code.

21. Shall not Proceed with the Trial. These words indicate the act ion to be taken by the
court under this section. The second suit is not to be dismissed as barred;17 it is only the
trial of the suit that is not to be proceeded with. That may render the institution of a
subsequent suit unnecessary in many cases but the section is no bar to the institution of
such suit. Nay, there are cases in which it is necessary for a party to institute a regular suit
to establish a right claimed by him, and failure to institute the suit within the period of
limitation may preclude the party from asserting the right in any other suit or proceedings.
Suits referred to in O 21, r 63 (Code of 1882 s 283 ) are suits of this character. This section
does not dispense with the necessity of instituting such suits.18 This is no longer the
position in view of the deletion of r 63 of O 21 by the Amendment Act, 1976. A suit may
be stayed under this section even after the hearing has commenced.19 The application for
stay of the suit should be made to the court which is seized of the case.20

Hearing of appeal is not part of trial of suit within s 10. If an objection that previous suit
was pending between the same parties with the same issues, was not taken in the trial
court, s 10 is not attracted in appeal.

Where there are similar contracts of the same date for rendering services entered into with
two different companies A and B, the stay of suit against B cannot be granted, merely for
the pendency of appeal in the suit filed against company A.

22. Between the Same Parties. For determining whether the matter in issue in the
subsequently instituted suit is directly and substantially in issue in the previously instituted
suit absolute identity of the parties in both the suits is not a consideration.21

The mere fact that the first suit is between Z and J as plaintiffs and W, X and Y, as
defendants, and the second suit is between W as plaintiff and Z, J and S (not a party to first
suit) as defendants, will not take the case out of the operation of this section, if the other
conditions of the section are satisfied.22 It is sufficient if there is a sufficient identity of
parties. If the additional defendants in the subsequent suit, who are all directors of the
plaintiff-company in the earlier suit do not raise any separate and substantial issue as
between them and the plaintiff in the subsequent suit, the addition of such defendants
does not make the subsequent suit any less a suit between the same parties.23 The
expression the same parties means the parties between whom the matter substantially in
issue has arisen and also has to be decided. It has accordingly been held that the section
does not become inapplicable by reason of there being in addition a party against whom
no separate and substantial issue is raised.24
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Where there are independent contracts with two different limited companies, the parties
are not the same, even though company B is subsidiary of company A.25

23. Interlocutory Orders Pending Stay. In cases where in a suit further proceedings are
stayed for some reason or the other, in order to carry on the process of the suit, certain
steps are to be taken in aid of proceedings to keep them alive. Thus, if the interlocutory
matters are decided and the suit is kept ready to proceed further as soon as the stay of
further proceedings ceases to be operative from a stage which could have arrived to ripen
the case, by disposing of interlocutory matters in between, without affecting the merit of
the case would be in aid of judicial process.26 A prayer to stay all further proceedings in the
suit cannot be allowed. The application under s 10 cannot bar the court from entertaining
interlocutory application.27 A stay order under this section does not take away the power of
the court in the stayed suit to make interlocutory orders, such as orders for a receiver or an
injunction, or an attachment before judgment.28 An order of stay under this section does
not take away the jurisdiction of the court to refer the suit to arbitration with the consent
of parties.29

When a suit is stayed by an order under s 10 of the Code, it does not take away the power
of the court to make an order on an interlocatory application for urgent relief. The Court
has to see whether there is a bar for entertaining such applications.30

Where a suit was stayed by appellate court and an interlocatory application was filed before
the trial court during the pendency of the stay, it was held that orders passed allowing the
commissioner to visit the property and submit report was valid even though the stay was
in operation.31

Consideration of applications for interlocutory reliefs, such as grant of injunction,

appointment of receiver, attachment before judgment, impleadment of a party,
amendment in the plaint etc., is not prohibited in spite of the stay, because such an order
cannot be taken to be a step in the trial of the suit.32

Before considering the question of the stay of the suit under s 10, the civil court is well
within its powers to consider the prayers for the issuance of the interim relief and a plea
raised under s 10 cannot preclude the court from disposing of an application under O 39,
rr 1 and 2 read with s 151 of the Code of Civil Procedure.33

24. Application under Section 10 to be filed where subsequent suit is pending.

Application for stay of suit under s 10 should be presented to the court in which the
subsequent suit is pending.34

25. Contract providing for place of suing. It is sometimes provided in a contract that
suits in respect of matters contained therein shall be instituted in a specified court. That
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such agreements are valid in law is well-settled.35 The question whether a suit instituted by
one of the parties in a forum agreed to by them is liable to be stayed under s 10 when the
opposite party has filed earlier a suit on the same agreement in a court different from that
mentioned in the agreement has often been discussed and the view largely held is that
there was nothing in the section to prevent the court from giving effect to the agreement.36
The controversy has now been set at rest by a decision of the Supreme Court wherein it
has been held that the language of s 10 was clear, definite and mandatory and prohibited
the trial of a subsequent suit and it did not make any difference that the earlier suit was in
violation of the agreement of parties or vexatious.37

The object of consolidation of suits is to avoid multiplicity of proceedings and unnecessary

delay and protraction of litigation. These objects are not in conflict with the principles of s
10, but are in aid of the object of that section. It was clear from the facts of the case that
the contesting parties in the case of the two suits were the same, the disputed property in
the suit filed earlier to it and the case of the plaintiff in the earlier suit was substantially his
defence in the later suit and the case of the plaintiff in the later suit was his defence in the
earlier suit. The court had inherent power to consolidate the two suits and to direct
analogous hearing of the same, in the ends of justice.38

26. Comprehensive latter suit cannot be stayed. The court would not stay the latter suit
if it is more comprehensive than the earlier one though both the suits are between the
same parties and the cause of act ion arises out of the same contract.39

27. Revision. There is practical unanimity of opinion among the High Courts that an
order under this section is revisable.40 (But see the proviso to s 115 ).

28. Conditional order. It has been held that where the conditions laid down in the section
are satisfied, the court should pass an unconditional order for stay and not impose
conditions.41

29. Letters Patent Appeal. An order staying a suit is a judgment under cl 15 of the
Letters Patent and an appeal lies therefrom.42 So also an order refusing to stay a suit.43 The
Madras High Court, however, has held in a full bench decision that an order under s 10 is
not a judgment within the letters patent.44 There is no question of a Letters Patent appeal
now as s 100 A inserted in the Code in 1976 bars it.

Even where the requirements of s 10 are not satisfied, court can grant injunction under its
inherent power, restraining a person from proceeding with another suit in the interests of
justice.45

Application was made under the Arbitration Act, 1940 (Now repealed by A&C Act, 1996), s
20, for the appointment of an arbitrator. Application was made by the non-petitioners
under s 10, Code of Civil Procedure for staying further proceedings. It was held that s 10, Code
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of Civil Procedure cannot apply and the arbitration proceedings cannot be stayed. Merely
because an application under s 20 is registered as a suit, it does not become suit within the
meaning of the Code of Civil Procedure.46

30. Inherent power to grant stay. In the case of Manohar Lal Chopra v. Rai Bahadur Rao
Seth Hiralal,47 it has been held that inherent jurisdiction of the court to make orders ex
debito justitiae is undoubtedly affirmed by s 151 of the Code of Civil Procedure but that
jurisdiction cannot be exercised so as to nullify the provisions of the Code of Civil Procedure.
Where the Code of Civil Procedure deals expressly with a particular matter, the provision
should normally be regarded as exhaustive. In the present case, as stated above, s 10 of the
Code of Civil Procedure has no application and consequently, it was not open to the High
Court to by-pass s 10 of the Code of Civil Procedure by invoking s 151, Code of Civil Procedure.48
It is only in cases where the proceedings are fraudulent, vexatious or for want of bona fide,
malicious and improper, then it comes within the meaning of abuse of the process of the
court.49

In cases not covered by the provisions of s 10 of the Code of Civil Procedure in terms, the court
may, in very exceptional circumstances, stay a suit under s 151 as the inherent jurisdiction
of the court to make orders ex debito justitiae is undoubtedly affirmed by s 151 ; but, the
court cannot overlook the well- settled principle of law governing the stay of suits. In such
cases also, there must be identity of the subject matter and field of controversy between
the parties in the two suits. Though subject matter contemplated and field of controversy
need not be identical in every particular suit, at least the court must be satisfied that to
allow the subsequent suit to continue would be oppressive or vexatious to the defendant
and that the stay would not cause injustice to the plaintiff in the subsequent suit.50

While laying down the principle regarding applicability of s s 10 and 151 of the Code of Civil
Procedure, the court observed that where a party claims interference of the court to stop
another action between the same parties, it lies upon him to show to the court that the
multiplicity of act ion is vexatious, and the whole burden of proof lies upon him. He does
not satisfy that burden of proof by merely showing that there is a multiplicity of actions, he
must go further. However, it was held that the inherent powers are to be exercised by the
court in very exceptional circumstances for which the Code lays down no procedure. It
was thereafter held that the provisions of s 10 are clear, definite and mandatory. A court in
which a subsequent suit has been filed is prohibited from proceeding with the trial of that
suit in certain specified circumstances. However, where two suits were filed in respect of
the properties of Math of Lord Jagannath, the plaintiff of one suit being the defendant in
the other and a third proceeding in the form of appeal dealing with the vesting of
intermediary interest in the State was pending before Collector, it was held by the Orissa
High Court that where s 10 has no application, the Court could exercise inherent
jurisdiction under s 151 of the Code for the ends of justice.51 When there is a special
provision in the Code for dealing with the contingency of two such suits being instituted,
recourse to the inherent powers under s 151 is not justified. The provisions of s 10 do not
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become inapplicable on a court holding that the previously instituted suit is a vexatious suit
or has been instituted in violation of the terms of the contract.52 It is true that the Code of
Civil Procedure does not provide for joint trial of the suits, but at the same time it is now a
well-accepted position of law that under s 151 of the Civil Procedure in appropriate cases,
an order for consolidation of the cases can be made. The courts have even ordered joint
trial of the cases. A court has inherent power ex debito justitiae to consolidate suits, where it
is in the ends of justice to do so to avoid needless expenses and inconvenience to parties.
Where it appears that there is sufficient unity, or similarity in the matter in issue in the
suits, and the determination of the suits rests mainly on common questions, it is
convenient to have them tried as analogous cases.

Ordinarily, since judgment in the probate proceeding is judgment in rem, it would be

appropriate for the court to direct the court to dispose off the probate proceeding first in
point of time and to stay the civil suit till the probate proceeding is decided. However, in
the facts and circumstances of this case, since the probate proceedings as well as special
civil suit are of the year 1982, and since the period of more than 11 years has already
elapsed, in the courts opinion, it would not be proper to interfere with the discretion
exercised by the trial court where the trial court has ordered consolidation of the two
proceedings.53 If the exigencies demand, cause of act ion or defence for both, civil and
criminal proceedings is the same and the defence of the defendant or accused is likely to
suffer; or the defendant or accused has to suffer serious prejudice because of particular or
peculiar facts of the case, the court can stay the civil proceedings. As a principle of law, it
cannot be laid down that whenever a criminal case is instituted, then the civil court on the
same cause of action must be stayed. The court may be guided by the attending
circumstances. Where a criminal act ion provides a cause of action for the civil act ion, then
the court may, if the facts so demand, stay proceedings in the civil suit.54

31. Summary Procedure. Section 10 is a general provision applicable to all categories of

cases. The provisions contained in O 37 applies to certain classes of suit. One provides a
bar against proceedings with the trial of the suit, the other provides for granting of quick
relief. Both these provisions have to be interpreted harmoniously so that the objects of
both are not frustrated. The words trial of any suit will have to be construed in the context
of provisions of O 37 of the Code. The scheme of summary procedure provided by O 37
is that a stage of determination of the matter in issue will arise in a summary suit only after
the defendant obtains leave. The trial would really begin only after leave is granted to the
defendant.

Considering the objects of the both the provisions, i.e. s 10 and O 37, wider interpretation
of the word trial is not called for. The word trial in s 10, in the context of a summary suit,
cannot be interpreted to be the entire proceedings starting with the institution of the suit
by lodging a plaint. In a summary suit, the trial really begins after the court or the judge
grants leave to the defendant to contest the suit. Therefore, the court or the judge dealing
with the summary suit can proceed upto the stage of hearing the summons for judgment
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and passing the judgment in favour of the plaintiff if : (i) the defendant has not applied for
leave to defend, or if such application has been made and refused; or if, (ii) the defendant
who is permitted to defend fails to comply with the conditions on which the leave to
defend is granted.55

32. Explanation I. The contention that the explanation 1 of s 11 permits second suit is
absolutely misconceived. The Explanation 1 of s 11 of the Code of Civil Procedure merely deals
with a situation where two suits are pending in court/courts of competent jurisdiction and
in a situation when any of the suit is decided by the court before another suit, then
decision given in that suit irrespective of the fact whether it was filed earlier or latter,
decision on the issue bars re-trial of the same issue.56

33. Probate Case and Partition Suit. It is well settled that in the probate proceedings the
only thing that the court does is declare upon the validity of the execution of Will in
respect of the properties mentioned therein. It does not declare or decide upon the
validity, legal disposition contained therein. For this purpose the jurisdiction of the High
Court and the District Judge under the provision of the, Succession Act, 1925 are original
and exclusive. No civil court can entertain any dispute with regard to validity or otherwise
of a Will. Once a Will is probated and letter of administration is issued if there be any
dispute as regard disposition made therein the parties can institute proceedings in civil
courts without impugning the execution of the Will which has already been decided in the
probate proceedings. It would thus be seen that the jurisdiction of two courts even in the
two proceedings are different and exclusive. In that view of the matter, it cannot be said
that one court can stay the proceeding pending decision of the other but as would
presently show it also cannot be said that the decision given in the probate case would not
have a material effect on the outcome of the partition suit.57

Be that as it may, the decision in the probate proceedings on the question of proof of the
Will will have a direct impact on the suit.58

So, the decision in probate case would have material effect on the suit.59

The Delhi High Court has held that a Civil Court hearing a civil suit cannot stay
proceedings in a Probate Court even though the probate petition was filed later in point of
time.60 It was observed by the High Court as follows:

The legal position which has emerged from the above decisions is that a Probate Court seized with a petition for grant of Probate of
Will or Letters of Administration is not a civil court within the meaning of the term under the provisions of the Code of Civil Procedure
though the proceedings of the Probate Court in relation to the granting of Probate and Letters of Administration is to be regulated, so
far as the circumstances of the case may permit, by the Code of Civil Procedure, 1908. Once a Probate Court is considering a petition for
grant of Probate or Letters of Administration in respect of a Will, that court alone is competent to decide on the question of execution
and/or validity or otherwise of the Will in question. In such a situation it is not open to the civil court to go into that question.61
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75 . Ins. by Maharashtra Act 65 of 1977, s 3 (w.e.f. 19-12-1977).

76 . Kranti Mohan v. Fatechand, AIR 1982 Bom 263 [LNIND 1981 BOM 82].
77 . Ghanshyam Jamnomal Shewakramani v. Lachmandas Tulsiram Nayar (HUF), 2010 (2) AIR Bom R 353 (DB).
78 . Arjun Dada Gadage v. Mallappa Gurappa Chongule, AIR 2003 Bom 441 [LNIND 2003 BOM 580].
79 . BSI Ltd. v. MV Cristian-C, AIR 1999 Bom 320 [LNIND 1999 BOM 276].
80 . Jagdish Hari Thatte v. Municipal Corporation of Greater Bombay, 2007 (2) AIR Bom R 256 (DB).
81 . M. Bagasarwalla v. Hind Rubber Industrial Pvt. Ltd., (1997) 3 SCC 443 [LNIND 1997 SC 301].
82 . Madhuri Prabhakar Potole v. Aruna Satischandra Gaikward, 2008 (5) AIR Bom R 378 (DB).
83 . Rhodia Ltd. v. Neon Laboratories Ltd., AIR 2002 Bom 502 [LNIND 2004 BOM 522].
84 . Gunvantbhai Mulchand Shah v. Anton Elis Farel, AIR 2006 SC 1556 [LNIND 2006 SC 159].
85 . Ibid., in para 8 at page 1559 (of AIR).
86 . Ibid., in para 11 at page 1560 (of AIR).
87 . Foreshore Co-operative Housing Society Ltd., Bombay v. Praveen D. Desai, AIR 2009 (NOC) 902(BomDB).
88 . Subs. by CPC (Amendment) Act 2 of 1951 for words the States.
89 . Ibid.
90 . Subs. by AO 1937 for the G.G. in C.
91 . The words or the Crown Representative omitted by A.O. 1948.
92 . Subs. for the words His Majesty in Council by AO 1950.
93 . Subs. by CPC (Amendment) Act 2 of 1951 for words the State.
1 . Nirmal Singh v. Om Prakash, AIR 1965 J&K 99; JT Republike v. Rungta & Sons, AIR 1966 Cal 382 [LNIND 1965 CAL 178]; Lekhraj
Diddi v. Sawan Singh, AIR 1971 MP 172; Channabasappa v. Kishanchand, AIR 1972 Mys 112; Paira Mal v. Rajnarain, (1919) PR 114, 298;
Troyloknath v. Macleod, (1900) ILR 28 Cal 28, 34; Kalipada v. Charubala, AIR 1933 Cal 887, (1933) ILR 60 Cal 1096; Tara Devi v. Kamla
Gupta, AIR 1999 Pat 103; Bijender Kumar v. Basant Kumar, AIR 1994 All 81 [LNIND 1993 ALL 262].
2 . M.V. Rajashekhar v. M.V. Rajamma, AIR 2004 Kant 280 [LNIND 2004 KANT 83].
3 . S. Kumar v. Sudhakaran, AIR 2009 Ker 170 [LNIND 2009 KER 112]: 2009 (2) Ker LT 298.
4 . Official Receiver v. Palaniswami, AIR 1925 Mad 1051 [LNIND 1925 MAD 2]: (1925) ILR 48 Mad 750.
5 . Sequeria v. P. Francisco, AIR 1976 Goa 48.
6 . National Institute of MH&NS v. C. Parameshwara, AIR 2005 SC 242 [LNIND 2004 SC 1236]; See also Indian Express Newspapers v.
Basumari Pvt. Ltd., AIR 1969 Bom 40 [LNIND 1967 BOM 116]; Naurati v. Mehma Singh, AIR 1972 Punj 421; Life Pharmaceuticals Pvt. Ltd.
v. Bengal Medical Hall, AIR 1971 Cal 345 [LNIND 1971 CAL 17]; Gujarat State Road Transport Corpn. v. Vimalaben L. Shah, AIR 1995 Guj
220 [LNIND 1995 GUJ 194]; Pukhraj D. Jain v. G. Gopalakrishna, AIR 2004 SC 3504 [LNIND 2004 SC 510].
7 . Munnilal v. Sarvajeet, AIR 1984 Raj 22.
8 . Padamsee v. Lakhamsee, (1916) 43 Cal. 144; Meckjee v. Kasowji(1879) 4 C.L.R. 282.
9 . Sheopat Rai v. Warak Chand, (1919) A.L. 294.
10 . Shanti Swaroop v. Abdul Rehman, 1965 A.M.P. 55, 59; Gangaprasad v. Mst. Banaspati, 1937 Nag 6 : 1937 AN 132.
11 . Shanti Swaroop v. Abdul Rehman, supra.
12 . The Official Receiver v. Palaniswami. (1925) 48 Mad 750 : (25) AM 1051.
13 . C.F. Sequeria v. P. Francisco, 1976 A Goa 48.
14 . Hari Ram v. Lichmahiye, AIR 2003 Raj 319.
15 . BALCO Employees Union v. UOI, AIR 2002 SC 350.
 Page 28 of 31
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16 . Tarini Charan v. Kedar Nath, AIR 1928 Cal 777: (1928) 33 Cal WN 126 (FB); Mohanlal v. Benoy Krishna, AIR 1953 SC 65 [LNIND 1952
SC 88]: (1953) SCR 377 [LNIND 1952 SC 88] ; M.S.M. Sarma v. Sri Krishna Sinha, AIR 1960 SC 1186 [LNIND 1960 SC 168]: (1961)
SCR 96 : (1961) 2 SCJ 73 [LNIND 1960 SC 168] : (1961) 2 SCA 582 [LNIND 1960 SC 168]; Govardanam Appalacharyulu v. Govardhanam
Rangacharyulu, AIR 1957 AP 1002 [LNIND 1956 AP 73]: (1956) Andh WR 954; Madathipathi v. Bhargavan, (1957) Ker LJ 857 : (1957)
Ker LT 1033; Dhirendranath v. Naresh Chandra, AIR 1958 Cal 453 [LNIND 1958 CAL 23]: (1958) 62 Cal WN 596; Jaljodhan Singh v. Kripa
Singh, AIR 1963 Punj 178: (1963) 65 Punj LR 26; Abdul Wasey v. State, AIR 1978 All 247.
17 . Behari v. Majid, (1901) ILR 24 All 138; Phundo v. Jangi Nath, (1893) ILR 15 All 327; Gowri Koer v. Audh Koer, (1884) ILR 10 Cal 1087;
Mohideen v. Syed Osman, (1918) Mad WN 580; Tani v. Tarachand, (1918) PR 82.
18 . Fulchand Motilal v. Manhar Lal, AIR 1973 Pat 196; See also Radhika Konel Parekh v. Konel Parekh, AIR 1993 Mad 90 [LNIND 1992 MAD
299].
19 . National Institute of MH & NS v. C. Parameshwara, AIR 2005 SC 242 [LNIND 2004 SC 1236]. See also Maharashtra State Co-op. Mktg
Federation Ltd. v. Indian Bank, AIR 1997 Bom 186 [LNIND 1996 BOM 695]; Mirta Line v. Finlay Mills, AIR 1982 Cal 41 [LNIND 1981
CAL 160].
20 . S.D. Dhandepani v. Branch Manager Indian Overseas Bank, AIR 2002 Mad 442 [LNIND 2002 MAD 331]: (2002) 2 MLJ 656 [LNIND 2002
MAD 331] (Mad).
21 . JT Republike v. Rungta & Sons, AIR 1966 Cal 382 [LNIND 1965 CAL 178]; Raj Spinning Mills v. AG King Ltd., AIR 1954 Punj 113;
Durgadass v. Gitan Devi, AIR 1977 HP 65 [LNIND 1977 HP 9].
22 . National Institute of MH & NS v. C. Parameshwara, AIR 2005 SC 242 [LNIND 2004 SC 1236].
23 . Usha Rani v. Indermal & Sons, AIR 1988 Raj 223.
24 . N.P. Tripathi (Dr) v. Dayawanti Devi, AIR 1988 Pat 123(DB).
25 . Rajesh Singh v. Manoj Kumar, AIR 2010 MP 16 [LNIND 2009 MP 640] (D.B.) (Gwalior Bench).
26 . Gillo Mal v. Ratan Kumar, (1953) ILR Raj 141.
27 . M. Malsters Pvt. Ltd. v. Allied Engineers, AIR 1975 Del 123 [LNIND 1975 DEL 44].
28 . National Institute of MH&NS v. C. Parameshwara, AIR 2005 SC 242 [LNIND 2004 SC 1236].
29 . Vee Cee Yes Granites v. Central Bank of India, Chennai, (2000) 2 MLJ 392 [LNIND 2000 MAD 371] (Mad).
30 . Sovereign Developers and Infrastructure Ltd. v. Paramount Vijetha Holding, A. Partnership Firm, AIR 2010 Kar 80.
31 . Peroonhayil Remotty v. Cheruvath Gangadharan, AIR 2001 Ker 276.
32 . S.D. Dhandapani v. Branch Manager Indian Overseas Bank, AIR 2002 Mad 442 [LNIND 2002 MAD 331].
33 . Monica Bibli Sood v. Kamal Seth, AIR 2004 P&H 366.
34 . Devanayagi Ammal v. Manicka Konar, AIR 2006 (NOC) 1429(Mad).
35 . Maharastra State Co-op. Mktg. Federation Ltd. v. Indian Bank, AIR 1997 Bom 186 [LNIND 1996 BOM 695].
36 . Shri Ram Tiwary v. Bholi Devi, AIR 1994 Pat 76.
37 . Chandra Madhav Mishra v. Kishore Mishra, AIR 2006 Pat 164.
38 . C. Arunachalam Pillai v. S. Krishnasamy, (2007) 2 MLJ 399 [LNIND 2006 BMM 210] (Mad) : (2007) 1 CTC 223 [LNIND 2006 BMM
210].
39 . Ashok Kumar Yadav v. Noble Designs Pvt. Ltd., AIR 2006 Cal 237 [LNIND 2006 CAL 321].
40 . Wahid-un-nissa v. Zamin, 42 All 290; Mulchand v. Gill & Co., (1920) ILR 44 Bom 283.
41 . Escorts Construction Equipment Ltd. v. Action Construction Equipment Pvt. Ltd., AIR 1999 Del 73 [LNIND 1998 DEL 832].
42 . V.P. Vrinda v. Indira Devi, AIR 1995 Ker 57 [LNIND 1994 KER 26].
43 . Sheopat Ravi v. Warak Chand, AIR 1919 Lah 294.
44 . Shanti Swaroop v. Abdul Rehman, AIR 1965 MP 55 [LNIND 1963 MP 58], 59; Gangaprasad v. Mst. Banaspati, AIR 1937 Nag 132, (1937)
ILR Nag 6.
45 . Shanti Swaroop v. Abdul Rehaman, AIR 1965 MP 55 [LNIND 1963 MP 58].
46 . Pukhraj D. Jain v. G. Gopalakrishna, AIR 2004 SC 3504 [LNIND 2004 SC 510].
47 . National Institute of MH & NS v. C. Parameshwara, AIR 2005 SC 242 [LNIND 2004 SC 1236].
48 . Ibid, Kapadia, J., (as he then was), speaking for the Bench.
49 . Ajit Singh v. Sadhu Singh, AIR 2004 Del 320 [LNIND 2004 DEL 45]; see also Spice Communication Pvt. Ltd. v. Lakwinder Singh, 2008 (2)
Civil Court Cases 441 (P&H).
 Page 29 of 31
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50 . Balkishen v. Kishanlal, (1889) ILR 11 All 148; Ramalinga v. Ragunatha, (1897) ILR 20 Mad 418, p. 420; Bissessur v. Gunpur, (1880) 8 CLR
113; Raja Ransgit Singha v. Bhagabutty, (1990) 7 Cal WN 720.
51 . Hashmat Ullah Khan v. Iqbal Ahmad, 2006 (6) All LJ 402 : AIR 2007 (NOC) 182(All).
52 . Shri Ram Tiwary v. Bholi Devi, AIR 1994 Pat 76.
53 . Chowdhury Jamini Nath v. Midnapur Zamindary Co., AIR 1923 Cal 716: (1923) 27 CWN 772 : 774; Bepen v. Jogendra, (1916) 24 Cal LJ 514;
Maharaja Kesho Prasad v. Shiva Saran, (1919) 4 Pat LJ 557 (pension); Ma kho U. v. Maung Ba sein, AIR 1929 Rang 67: (1928) 6 Rang 775;
Dinshaw v. Galstaun, AIR 1927 Bom 245: (1927) 29 Bom LR 382.
54 . Kuberan v. Koman, AIR 1925 Mad 574 [LNIND 1924 MAD 278]: (1925) 48 Mad LJ 251; Nasibanbi v. Iqbal Begum, AIR 1935 Lah 816.
55 . Madan Mohan Kukreti v. Geeta Bhawan, AIR 2007 Uttr. 32: 2007 (3) ALJ 632.
56 . Dwarka Trading Corporation, Allahabad v. Cheema Paper Mills (P) Ltd., Bazpur, AIR 2007 Uttr. 83.
57 . Poonamchand Mishrilalji Lunawat v. Murti Madan Mohanji, AIR 2007 (NOC) 1877(MP) (Indore Bench).
58 . Shashi Devi v. Raju Singh, 2008 (4) Civil Court Cases 062 (J.&K.).
59 . Mirta Line v. Finlay Mills, AIR 1982 Cal 41 [LNIND 1981 CAL 160].
60 . Wings Pharmaceuticals Pvt. Ltd. v. Swan Pharmaceuticals, AIR 1999 Pat 96.
61 . K.V. Subramaniam v. Pattabi Bhagavathar, AIR 1999 Mad 99 [LNIND 1998 MAD 869].
62 . Piyush Kanti Guha v. West Bengal Pharmaceuticals Ltd. Corpn., AIR 1982 Cal 94 [LNIND 1981 CAL 255].
63 . Dr. Guru Prasad Mohanty v. Bijay Kumar Das, AIR 1984 Orissa 209(D.P. Mohapatra, J.).
64 . Grindlays Bank Ltd. v. Hindustan Embroidery Mills Pvt. Ltd., AIR 1981 Del 332 [LNIND 1981 DEL 22].
65 . Sohal Engineering Works v. Rustam Jehangir Vakil Mills, AIR 1981 Guj 110.
66 . Spice Communications Pvt. Ltd. v. Lakhwinder Singh, 2008 (2) Civil Court Cases 441 (P&H).
67 . Pukhraj D. Jain v. G. Gopalakrishna, AIR 2004 SC 3504 [LNIND 2004 SC 510]: (2004) 3 MLJ 183 [LNIND 2004 SC 510] : (2004) 7
SCC 251 [LNIND 2004 SC 510].
68 . Ibid, (in para 4).
69 . Mehta Gandhi & Associates v. Shree Pipes Ltd., AIR 1990 Del 139 [LNIND 1989 DEL 35].
70 . Arjies Aluminium Udyog v. Sudhir Batra, AIR 1997 Del 232 [LNIND 1997 DEL 123].
71 . Ashok Kumar Yadav v. Noble Designs Pvt. Ltd., AIR 2006 Cal 237 [LNIND 2006 CAL 321].
72 . Piyush Kanti Guha v. West Bengal Pharmaceuticals Corpn. Ltd., AIR 1982 Cal 94 [LNIND 1981 CAL 255].
73 . Anant Ram v. Mahesh Prasad, AIR 1984 Pat 161.
74 . AIR 1917 Cal 248.
75 . Adhish Chandra v. Hindustan Gas and Industries Ltd., AIR 1985 Cal 154 [LNIND 1984 CAL 221].
76 . J.C. Roy Chowdhury v. Krishna Paper Board Mills, AIR 1988 Cal 183 [LNIND 1987 CAL 120].
77 . Usha Rani v. Indermal & Sons, AIR 1988 Raj. 223(M.B. Sharma, J.).
78 . Dr. N.P. Tripathi v. Dayawanti Devi, AIR 1988 Pat. 123 DB).
79 . K.V. Subramanian v. Pattabi Bhagavathar, AIR 1999 Mad 99 [LNIND 1998 MAD 869]: (1998) 3 MLJ 421 [LNIND 1998 MAD 869]
(Mad).
80 . S. Mani v. N.G. Mani, (1993) 2 MLJ 368 [LNIND 1993 MAD 288] (Mad).
81 . Durgaprasad v. Kantichandra, AIR 1935 Cal 1: (1935) ILR 61 Cal 670.
82 . Hariram v. Hazi Mahomed, AIR 1954 All 141 [LNIND 1953 ALL 57]; Munisami v. Raghupathi, AIR 1940 Mad 7 [LNIND 1938 MAD
137]; Kumarappa v. Ramaswami, AIR 1948 Mad 150 [LNIND 1947 MAD 101].
83 . Life Pharmaceuticals Pvt. Ltd. v. Bengal Medical Hall, AIR 1971 Cal 345 [LNIND 1971 CAL 17]; Durgaprasad v. K. Mukerji, AIR 1935 Cal 1;
Laxmi Bank v. Harikishan, AIR 1948 Nag 297; Naurati v. Mehma Singh, AIR 1972 Punj 421; Shaw Wallace & Co. v. Bholanath, AIR 1975 Cal
411 [LNIND 1975 CAL 66]: (1968) 72 Cal WN 830.
84 . Shankar Ejaman v. Venkappa Batta, AIR 1954 Mad 320 [LNIND 1953 MAD 46].
85 . Nemkumar v. Nemakumar, AIR 1958 All 207 [LNIND 1957 ALL 145]: (1957) All LJ 734.
86 . Ram Narain v. Ram Swarup, AIR 1962 All 108.
87 . Mahadev v. Gajadhar, (1912) 16 Cal WN 897.
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88 . Jai Hind Iron Mart v. Tulsi Ram, AIR 1953 Bom 117 [LNIND 1952 BOM 65].
89 . Shorab Merwanji v. Mansata Film Distributors, AIR 1957 Cal 727 [LNIND 1957 CAL 43]: (1957) 61 Cal WN 559.
90 . GC Care Centre and Hospital v. OP Care Pvt. Ltd., AIR 2004 SC 2339 [LNIND 2004 SC 443].
91 . Chitivalase Jute Mills v. Jaypee Rewa Cement, AIR 2004 SC 1687 [LNIND 2004 SC 149].
92 . Sellammal v. Mookan, (2000) MLJ (Supp) 363 (Mad).
93 . Guru Prasad Mohanty v. Bijay Kumar Das, AIR 1984 Ori 209 [LNIND 1984 ORI 122].
94 . Gupta v. East Asiatic Co., AIR 1960 All 184 [LNIND 1959 ALL 114].
95 . Pukhraj D. Jain v. G. Gopalakrishna, AIR 2004 SC 3504 [LNIND 2004 SC 510].
96 . Vikram Cement, a Unit of Grasim Industries Ltd. v. State of Madhya Pradesh, AIR 2008 MP 316 [LNIND 2008 MP 147] (DB).
97 . K. Vasudeva Reddy v. Kambala Sivanageswarappa, 2009 (3) Civil Court Cases 214 (AP).
98 . AIR 1954 SC 397 [LNIND 1954 SC 47]: 1954 SCR 1144 [LNIND 1954 SC 47] (at p. 11481149 of SCR).
1 . Biswajit Sharma v. Deblina Panja, 2010 (2) Civil Court Cases 618 (Cal).
2 . Ved Prakash v. Guru Granth Saheb Sthan, Meerghat Town, AIR 2009 MP 134 [LNIND 2008 MP 846] (DB).
3 . Nainappa v. Chidambaran, (1898) ILR 21 Mad 18.
4 . Venkata v. Venkatarama, (1899) ILR 22 Mad 256.
5 . T.B. Parikh v. Charity Commr, (1955) 57 Bom LR 1069.
6 . Pratab Krishna v. Stirling General Insurance Co., AIR 1953 Punj 226.
7 . Usha Rani v. Indermal & Sons, AIR 1988 Raj 223.
8 . Khalli Panda v. Dharam Gouda, AIR 1967 Ori 172 [LNIND 1967 ORI 34].
9 . M. Subbaramayya v. B. Narasimha Swamy, AIR 1972 AP 186 [LNIND 1971 AP 118].
10 . Minocher Behramji v. Hema Dadachanji, AIR 1982 Bom 151 [LNIND 1981 BOM 94].
11 . Tara Chand Sharma v. Smt. Uma Aggarwal, AIR 2010 P&H 30 (DB).
12 . V.R. Balakrishnan Nadar v. R. Velayudhan Nadar, AIR 1980 Ker 161 [LNIND 1979 KER 121].
13 . Challapalli Sugars v. Swadeshi Sugar Supply, AIR 1983 Cal 199 [LNIND 1982 CAL 206].
14 . Indian Bank v. Maharashtra State Co-op. Mktg. Federation Ltd., (1998) 5 SCC 69 [LNIND 1998 SC 537] : AIR 1998 SC 1952 [LNIND
1998 SC 537].
15 . Ibid, in para 8.
16 . Smt. Gomti Devi Sharma v. Smt. Chanda Devi Kar, AIR 2009 Gau 31 [LNIND 2008 GAU 200]: 2009 (2) Gau LR 94 (Shillong Bench).
17 . Firm Asharflal v. Firm Ganeshram, AIR 1952 All 546 [LNIND 1951 ALL 143].
18 . Nemagauda v. Paresha(1898) 22 Bom. 640.
19 . Wahid-un-nissa v. Zamin, (1920) ILR 42 All 290.
20 . Nagappa v. Ramsing, AIR 1941 Bom 160: (1941) ILR Bom 325.
21 . Ashok Kumar Yadav v. Noble Designs Pvt. Ltd., AIR 2006 Cal 237 [LNIND 2006 CAL 321].
22 . SK Rungta & Co. v. Naval Kishore Debi Prasad, AIR 1964 Cal 373 [LNIND 1964 CAL 73]; Rup Chand v. Basant Lal, AIR 1975 P&H 171.
23 . Arun General Indust Ltd. v. Rishabh Manufacturers Pvt. Ltd., AIR 1972 Cal 128 [LNIND 1971 CAL 171].
24 . Shorab Merwanji v. Mansata Film Distributors, AIR 1957 Cal 727 [LNIND 1957 CAL 43]; but see Radha Shyam v. Kashinath, AIR 1960 MP
169 [LNIND 1959 MP 111]; Mahanju Prasad v. Prayag, AIR 1975 Gau 40.
25 . N. Dutta v. Jardin Victor Ltd., AIR 1984 Pat 7.
26 . Rameshwar v. Fifth Addl Disrict Judge, Basti, AIR 1999 All 1 [LNIND 1998 ALL 498].
27 . V.P. Vrinda v. Indira Devi, AIR 1995 Ker 57 [LNIND 1994 KER 26].
28 . Sennaji v. Pannaji, AIR 1922 Bom 276: (1922) ILR 46 Bom 431; Kulsumum Nisan v. Mahommad Farooq, AIR 1969 All 479 [LNIND 1967
ALL 63].
29 . Jawarlal v. Jagadish, AIR 1951 All 335 [LNIND 1950 ALL 199].
30 . K. Balu v. Madasamy, (1999) 2 MLJ 521 [LNIND 1999 MAD 52] (Mad).
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31 . A. Subramania Mudaliar v. V.G. Subramania Battar, (2000) 2 MLJ 702 [LNIND 2000 MAD 311] (Mad).
32 . Surendra Sawhney v. Murlidhar, AIR 2008 (NOC) 652(Raj) (Jaipur Bench) (DB).
33 . Sneh Lata Mathur v. Brij Raj Bahadur, AIR 2003 Del 259 [LNIND 2002 DEL 1673]. See also Baburao Vithalrao Sulunke v. Kaderappa
Prasappa, Dabbanhavar, AIR 1974 Mys 63; V.R. Balakrishman Nader v. R. Velayudhan Nader, AIR 1980 Ker 161 [LNIND 1979 KER 121];
Jagdamba Oil Agency v. State of M.P., 2006 (3) Civil Court Cases 282 (M.P.).
34 . Ambika Sahu v. Sumitra Sahu, AIR 1990 Ori 127 [LNIND 1989 ORI 132].
35 . See notes to s 20: Agreement as to choice of court.
36 . Tilakram v. Kodumal, AIR 1928 Bom 175: (1928) 30 Bom LR 546; Bhagat Singh v. Jagbir Sauhney, AIR 1941 Cal 670: (1941) ILR 1 Cal 490;
Ram Bahadur Thakur Co. v. Devidayal, AIR 1954 Bom 176 [LNIND 1953 BOM 84]: (1954) ILR Bom 334; Becharam v. Baldev Sahai, AIR
1940 All 241: (1940) ILR All 232 in which an injunction was issued restraining the defendant from proceeding on with the suit instituted
earlier.
37 . Manoharlal v. Seth Hiralal, AIR 1962 SC 527 [LNIND 1961 SC 355]; reversing Manoharlal v. Kalyan Majli, AIR 1955 MB 145.
38 . Guru Prasad Mohanty v. Bijay Kumar, AIR 1984 Ori 209 [LNIND 1984 ORI 122].
39 . Brijlal & Co. v. MPE Board, AIR 1975 Cal 69 [LNIND 1973 CAL 257].
40 . Ramachandran v. Neelambar, AIR 1923 Mad 88; Bishen v. Bishen, 61 IC 830; Dayanand Modi v. Union of India, AIR 1952 Pat 373; Ram Richeal
v. Dayanand, (1955) ILR All 309; overruling Sultanat Jahan v. Sunder Lal, 42 All 409.
41 . Appala Naidu v. Chinnam Naidu, (1962) 2 Andh WR 257; Ratan Singh v. Musaddi Lal, AIR 1972 All 473.
42 . Jivanlal v. PR Vakharia & Co., AIR 1933 Bom 85: (1933) ILR 57 Bom 364.
43 . Durgaprasad v. Kantichandra, AIR 1935 Cal 1: (1934) ILR 61 Cal 670; Jai Hind Iron Mart v. Tulsi Ram, AIR 1953 Bom 117 [LNIND 1952
BOM 65].
44 . Central Brokers v. Ram Narayana Poddar & Co., AIR 1954 Mad 1057 [LNIND 1954 MAD 117]: (1954) ILR Mad 1052.
45 . Subhu Ram Kalita v. Dharmeswar Das Koch, AIR 1987 Gau 73 [LNIND 1986 GAU 13] (DB).
46 . Usha Rani v. Indermal & Sons, AIR 1988 Raj 223.
47 . AIR 1962 SC 527 [LNIND 1961 SC 355].
48 . National Institute of MH&NS v. C. Parameshwar, AIR 2005 SC 242 [LNIND 2004 SC 1236].
49 . M.V. Rajashekhar v. M.V. Rajamma, AIR 2004 Kant 280 [LNIND 2004 KANT 83].
50 . See notes to O 39, r. 1.
51 . Chandrasekhar Mohanty v. State of Orissa, 2008 (1) Civil Court Cases 60 (Ori).
52 . Tara Devi v. Kamla Gupta, AIR 1999 Pat 103.
53 . Multivahuji v. Klindivahuji, AIR 1994 Guj 42.
54 . Sai Udyog Pvt. Ltd. v. Central Bank of India, AIR 1998 MP 191 [LNIND 1997 MP 364].
55 . Indian Bank v. Maharashtra State Co-op. Mktg. Federation Ltd., (1998) 5 SCC 69 [LNIND 1998 SC 537].
56 . Hari Ram v. Lichmaniya, AIR 2003 Raj 319.
57 . Chandra Madhav Mishra v. Braj Kishore Mishra, AIR 2006 Pat 164.
58 . Nirmala Devi v. Arun Kumar Gupta, (2005) 12 SCC 505.
59 . Chandra Madhav Mishra v. Braj Kishore Mishra, AIR 2006 Pat 164.
60 . Amar Deep Singh v. State, 125 (2005) Del LT 627.
61 . Ibid, at page 630.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

S. 11.
Res Judicata.

No Court shall try any suit or issue in which the matter

directly and substantially in issue has been directly and
substantially in issue in a former suit between the same
parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been
heard and finally decided by such Court.

Explanation I. The
expression former suit shall denote a suit which has been
decided prior to the suit in question whether or not it was
instituted prior thereto.

Explanation II. For the

purpose of this section, the competence of a Court shall be
determined irrespective of any provisions as to a right of
appeal from the decision of such Court.

Explanation III. The matter

above referred to must in the former suit have been alleged
by one party and either denied or admitted, expressly or
impliedly, by the other.

Explanation IV. Any matter

which might and ought to have been made ground of
defence or attack in such former suit shall be deemed to
have been a matter directly and substantially in issue in
such suit.
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Explanation V. Any relief

claimed in the plaint, which is not expressly granted by the
decree, shall, for the purposes of this section, be deemed to
have been refused.

Explanation VI. Where

persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and
others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the
persons so litigating.
62[Explanation VII.The
provisions of this section shall apply to a proceeding for
the execution of a decree and references in this section to
any suit, issue or former suit shall be construed as
references, respectively, to a proceeding for the execution
of the decree, question arising in such proceeding
and a former proceeding for the execution of that decree.

Explanation VIII.An issue

heard and finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res
judicata in a subsequent suit, notwithstanding that such
Court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been
subsequently raised.]

1. Alterations in the
Section. Explanations VII and VIII have been added by
the Amendment Act, 1976. Explanation VII has been
added to ensure legislatively what had in several decisions
been recognised as the general principle of res
judicata apart from this section applied to proceedings in
execution. Explanation VIII has been added to provide as
against certain decisions to the contrary that the decision of
a court of limited jurisdiction shall in so far as it is
within the jurisdiction of such court operate as res judicata,
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although such court was not competent to try the

subsequent suit in which the same question is subsequently
raised.

2. Scope. The principle of

res judicata is based on the need of giving
finality to judicial decisions. What it says is that once a res
is judicata, it shall not be adjudged again. Primarily, it
applies as between past litigation and future litigation.
When a matter, whether on a question of fact or on a
question of law, has been decided between two parties in
one suit or proceeding and the decision is final, either
because no appeal was taken to a higher court or because
the appeal was dismissed or no appeal lies, neither party
will be allowed in a future suit or proceeding to canvass the
matter again. This principle of res judicata is embodied in
relation to suits in
s 11 of the Code of Civil Procedure
; but even where s 11 does not apply, the principle of res
judicata has been applied by courts for the purpose of
achieving finality in litigation. The result of this is that the
original court as well as any higher court must in any future
litigation proceed on the basis that the previous decision
was correct.

The principle of res judicata applies also as between two

stages in the same litigation to the extent that a court,
whether the trial court or a higher court having at an earlier
stage decided in a matter one way, will not allow the parties
to reagitate the matter again at a subsequent stage of the
same proceedings.

But an interlocutory order which had not been appealed

from either because no appeal lay, or even though an
appeal lay, an appeal was not taken can be challenged in an
appeal from the final decree or order.63
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Section 11 of Code of Civil Procedure

embodies the rule of conclusiveness as evidence, or bars
the plea of an issue tried in an earlier suit founded on a
plaint in which the matter is directly and substantially in
issue and became final. In a later suit between the same
parties or their privies in a competent court to try such
subsequent suit in which the issue has been directly and
substantially raised and decided in the judgment and decree
in the former suit, would operate as res
judicata. Section 11 does not create any right or interest in
the property, but merely operates as a bar to try the same
issue once over. In other words, it aims to prevent
multiplicity of the proceedings and accords finality to an
issue which directly and substantially had arisen in the
former suit between the same parties or their privies,
decided and became final, so that parties are not vexed
twice over; vexatious litigation would be put to an end and
the valuable time of the court is saved. It is based on public
policy, as well as private justice. They would apply,
therefore, to all judicial proceedings, whether civil or
otherwise. It equally applies to quasi-judicial proceedings of
the tribunals other than the civil courts.

Doubtless the principle of res judicata is a fundamental

doctrine of law, that there must be an end to litigation.64
But the plea of res judicata has to be
specifically and expressly raised.65 The foundation of the plea of res judicata must be laid in
the pleadings. If this was not done, no party would be
permitted to raise it for the first time at the stage of the
appeal. The only exception to this requirement is when the
issue of res judicata is in fact argued before the lower court.

The plea of res judicata cannot be raised for the first

time in the appeal before Supreme Court.66
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3. Binding nature of judicial

decisions. A judicial decision binds whether it is right or
wrong. An error of law or fact, committed by a judicial or
quasi-judicial body cannot be impeached otherwise than in
appeal, unless it relates to a matter of jurisdiction. The
finding would be binding on the parties even though the
abstracted proportion of law dissociated from the facts,
may not be so. 67

4. The Doctrine of Res

Judicata. Res Judicata is a plea available in civil
proceedings in accordance with
s 11 of the Code of Civil Procedure
. It is a doctrine applied to give finality to lis in original or
appellate proceedings. The doctrine in substance means
that an issue or a point decided and attaining finality
should not be allowed to be reopened and re-agitated twice
over. The literal meaning of res is everything that may form
an object of rights and includes an object, subject-matter or
status and res judicata
literally means a matter adjudged; a thing judicially acted
upon or decided; a thing or matter settled by judgment.
Section 11 of Code of Civil Procedure
engrants this doctrine with a purpose that a final judgment
rendered by a court of competent jurisdiction on the merits
is conclusive as to the rights of the parties and their privies,
and, as to them, constitutes an absolute bar to a subsequent
action involving the same claim, demand or cause of act
ion.68

Plea of res judicata is also not available where there

is no contest on an issue between the parties and there is
no conscious adjudication of an issue.69

The present section deals with the doctrine of res judicata.

The leading case on the subject is the Duchess
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of Kingstone’s case,70 and the

following classic passage from the judgment of Sir William
de Grey is a statement of the leading principles of res
judicata:

From the variety of cases relative of judgments being given

in evidence in civil suits, these two deductions seem to
follow as generally true; first that judgment of a court of
concurrent jurisdiction, directly upon the point, is, as a
plea, a bar, or as evidence, conclusive, between the same
parties, upon the same matter, directly in question in
another court; secondly that the judgment of a court of
exclusive jurisdiction, directly on the point, is, in like
manner, conclusive upon the same matter, between the
same parties, coming incidentally in question in
another court, for a different purpose. But neither the
judgment of a court, of concurrent or exclusive jurisdiction
is evidence of any matter which came collaterally in
question, though within their jurisdiction nor of any matter
incidentally cognizable, nor of any matter to be inferred by
argument from the judgment.

Section 11 is not exhaustive of the general doctrine of res

judicata and that the rule of res judicata as enacted in s 11 has
some technical aspects, i.e. the general doctrine is founded
on consideration of high public policy to achieve two
objectives namely, that there must be a finality to litigation
and that the individual should not be harassed twice over
on account of the same litigation. Technical aspects of s
11, as for instance, pecuniary or subject-wise competence
or earlier form to adjudicate the subject matter or grant
reliefs sought in the subsequent litigation would be
immaterial when the general doctrine of res judicata
is to be invoked. 71

Doubtless, the principle of res judicata is a fundamental

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doctrine of law, that there must be an end to litigation.72

Where the stand taken by the State in the earlier round of

litigation was that the temple in question was a Hindu
temple and the Supreme Court categorically opined that it
is a Jain temple, it was held by the Supreme Court that the
principle of res judicata would
come into play and the State would not be allowed to still
contend that it was a Hindu temple. It was observed that
the issue cannot be permitted to be reopened.73

In Kalipada De v. Dwijpada Das,74 the Privy

Council observed as follows:

The question as to what is to be considered to be res judicata is dealt with by

Section 11 of the Code of Civil Procedure, 1908 . In that section are given
many examples of circumstances in which the rule concerning res
judicata applies; but it has often been explained by this Board that the terms of
Section 11 are not to be regarded as exhaustive.

In the above case Lord Justice Darling quoted with

approval the observations of Sir Lowrence Jenkins on res
judicata in Sheoparsan Singh v. Ramnandan Singh
75 which is as follows:

. .. their Lordships desire to emphasise that the rule of res judicata, while founded on
ancient precedent, is dictated by a wisdom which is for all time. It hath been well said, declared
Lord Coke, interest reipublicae ut sit finis litiumotherwise great appression might be done
under colour and pretence of law (6 Coke, 9a). Though the rule of the Code may be
traced to an English source, it embodies a doctrine in no way opposed to the spirit of the
law as expounded by Hindu Commentators. Vijnanesvara and Nilakantha include the plea of a
former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who
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described the plea thus: If a person, though defeated at law, sue again, he should be answered,
you were defeated formerly. This is called the plea of former judgment. (See the
Mitakshara (Vyavaharaj, bk-II, ch. I, edited by J.R. Gharpure, p. 14 and the Mayuka, ch
1, s 1, p. 11, of Mandaliks edition.) And so the application of the rule by the courts in
India should be influenced by no technical considerations of form, but by matter of substance
within the limits allowed by law.

In a case under the Slum Area (Improvement and

Clearance) Act, 1956, the plaintiff, in an earlier round of
litigation was allowed relief in respect of only a part of the
claim by the Competent Authority who were empowered
under the Act. In the second round of litigation when the
matter reached the Supreme Court, it was held that the suit
was barred not only under S.37A of the Act but also by the
principles of res judicata. Y.V. Chandrachud, J. (as
he then was), speaking for the Bench in the above case,
observed as follows:

The fact that

s 11 of the Code of Civil Procedure cannot apply on its terms, the earlier
proceeding before competent authority not being a suit, is no answer to the extension of the
principle underlying that Section to the instant case. Section 11, it is long settled, is not
exhaustive and the principle which motivates that section can be extended to cases which do not fall
strictly within the letter of the law. The issues involved in the two proceedings are identical,
those issues arise as between the same parties and thirdly, the issue now sought to be raised was
decided finally by a competent quasi-judicial tribunal. The principle of res judicata is
conceived in the larger public interest which requires that all litigation must, sooner than
later, come to an end. The principle is also founded on equity, justice and good conscience
which require that a party which has once succeeded on an issue should not be permitted to
be harassed by a multiplicity of proceedings involving determination of the same issue. 76

The argument that principle of res judicata cannot apply

because in the previous suit only a part of the property was
involved when in the subsequent suit the whole property is
the subject-matter, cannot be accepted. The principle of res
judicata under
s 11 of the Code of Civil Procedure
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is attracted where issues directly and substantially involved

between the same parties in the previous and subsequent
suit are the samemay bein the previous suit only a part of
the property was involved when in the subsequent suit, the
whole property is the subject-matter.77

In order to decide the question whether a subsequent

proceeding is barred by res judicata, it is necessary to
examine the question with reference to:

(i) The form or a competence of the court;

(ii) the party and the representatives;
(iii) matters in issue;
(iv) matters which ought to have been made ground for
defence or attack in the former suit;
(v) the final decision.

In order that a defence of res judicata may succeed, it is

necessary to not only show that the cause of act ion was
the same but also that the plaintiff had an opportunity of
getting the relief which he is now seeking in the subsequent
proceedings. The test is whether the claim in the
subsequent suit or proceeding is infact founded upon the
same cause of action which was the foundation of the
former suit or proceedings. The cause of act ion for a
proceeding has no relation whatsoever to the defence
which may be set up, nor does it depend upon the
character of the relief prayed for by the plaintiff or the
applicant. It refers entirely to the grounds set forth in the
plaint or the application as the case may be as the cause of
action or in other words, to the media upon which the
plaintiff or the applicant asked the court to arrive at a
conclusion in his favour. The principles of res judicata do not apply in a case
78
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involving pure question of law.79

In a matter, the question in the earlier suit filed by the

appellants in the civil writ petition and in the present suit
was whether H had only a life estate in the property or full
ownership. The earlier suit was dismissed and though the
appellants filed a second appeal, the same was withdrawn.
The question as to whether or not H had only a life interest
in the suit property or full ownership was not resolved by
the discovery that H was
alive and the appeal could have been prosecuted. The plea
of the appellant that H had full ownership in the property
and so they are the owners of the property, was negated. In
such circumstances, it is not open to the appellant to put
forth the same plea in the fresh suit. The plea was rightly
negated by holding that the present suit is barred by res
judicata. 80

It is well-known that res judicata is a mixed question of fact

and law. It has to be specifically pleaded and the party
relying on the principle of res judicata should place before
the court all material particulars which would be sufficient
to give a finding whether the particular case is barred by
the principles of res judicata. The order of the previous
81

case between the parties was passed on the basis of

agreement between the parties, hence, would not operate
as res judicata and thus,
would not operate as a bar to the consideration of the
application for custody of a child under Guardian and
Wards Act. Lis disposed off
82 on merits by a speaking
order, even if passed in limine, amounts to a decision
which can operate as res judicata in
subsequent proceedings. Even where notice might not
have been issued to the opposite party till dismissal of a
petition in limine may amount to create a bar upon a
subsequent trial as to the same issue, on the principles of
res judicata; provided the issue has been decided by a
speaking order, on merits thus, whether any order passed
in limine operates as res
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judicata or not would depend on the nature of the particular

order passed. When a finding as to the title of
83 immovable
property is rendered by a court of small causes, res judicata
cannot be pleaded as a bar in a subsequent regular suit for
the determination or enforcement of any right or interest
in immovable property. In order to operate as res
judicata, the finding must be one disposing off a matter
directly and substantially in issue in the former suit and the
issue should have been heard and finally decided by the
court trying such suit. A matter which is collaterally or
incidentally in issue for the purpose of deciding the matter
which is directly in issue in the case cannot be made the
basis of a plea of res judicata. It has long been held that a
question of title in a small

cause suit can be regarded as incidental only to the

substantial issue in the suit and cannot operate as res
judicata in a subsequent suit in which the question of title is
directly raised. The rule of res
1 judicata may thus, be put
upon two groundsone, the hardship to the individual that
he should be vexed twice for the same cause, and the
other, public policy, that it is in the interest of the State
that there should be an end to litigation.2 Putting in
another form, it may be said that every suit must be
sustained by a cause of action, and there is no cause of act
ion to sustain the second suit, since it is being merged in
the judgment of the first.3

When the matter regarding the promotion and seniority

has been decided earlier and has attained finality, the same
cannot be re-opened by the state, being barred by principle
of res judicata.4

5. Maxim of Roman
Jurisprudence. Section 11 contains the rule of the
conclusiveness of the judgment based upon the maxim of
Roman jurisprudence Interest reipublicae ut sit finis litium (it
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concerns the state that there be an end to law suits); and,

partly on the maxim Nemo debet bis
vexari pro una at eadam causa (no man should be vexed twice
over for the same cause). The section does not effect the
jurisdiction of the court but operates as a bar to the trial of
the suit or issue, if the matter in the suit was directly or
substantially in issue in the previous suit between the same
parties litigating under the same title in a court,
competent to try the subsequent suit in which judgment in
s 96, such issue has been raised. 5

6. Section Mandatory.
The section is mandatory and the ordinary litigant claiming
under one of the parties to the former suit can only avoid
its provisions by taking advantage of
s 44 of the Indian Evidence Act, 1872
. The grounds of avoidance under that section are fraud
and collusion. Gross negligence is different from fraud
6 or
collusion. Collusion of one
7 of the several defendants with
the plaintiff is not enough to avoid the rule of res judicata.8

The Supreme Court has observed that the plea of res

judicata, like the plea of limitation, concerns the jurisdiction
of the court and a finding on the plea in favour of the party
raising it would oust the jurisdiction of that court.9

7. Res Judicata and

Res Sub
Judicedistinction. The rule of res judicata
is readily
distinguished from the rule in s 10, for the latter relates to a
res sub judice, that is, a matter which is pending judicial
inquiry; while the rule in the present section relates to res
judicata that is, a matter adjudicated upon, or a matter on
which the judgment has been pronounced. Section 10 bars
the trial of a suit in which the matter directly and
substantially in issue is pending adjudication in a previous
suit. The present section bars the trial of a suit or an issue
in which the matter directly and substantially in issue has
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already been adjudicated upon in a previous suit.

Moreover, public policy requires that there should be an
end to litigation. The question whether the decision is
correct or erroneous has no bearing on the question
whether it operates or does not operate as res
judicata; otherwise, every
10 decision would be impugned as
erroneous and there would be no finality.11

While s 10 relates to res sub judice, that is, a matter which

is pending a judicial adjudication; s 11 relates to res judicata,
that is to say, a matter already adjudicated upon by a
competent court. Whereas s 10 bars the trial of a suit in
which the matter directly and substantially in issue is
pending adjudication in a previous suit. Section 11 bars the
trial of a suit on an issue in which the matter directly and
substantially in issue has already been adjudicated upon in a
former suit. The object of both the sections is similar,
namely, to protect the parties from being vexed twice, for
the trial of the same cause and to achieve the public policy
that there should be an end to litigation. Therefore, one of
the objects of s 10 is to prevent competent courts of
concurrent jurisdiction from having to try parallel suits in
respect of the same matter in issue, and thereby to pave the
way for the application of the rule of res judicata contained
in the next following section. So, what the court has really
to see is if the decision of the matter directly and
substantially in issue in the former suit will or will not lead
to the decision of the matter directly and substantially in
issue in the subsequent suit, and if it is satisfied that it
will, then it must stay the trial of the subsequent suit and
await the decision in the former suit. 12

8. Res Judicata and

Industrial Disputes. It is well-established that although
the entire
Code of Civil Procedure is not applicable to industrial
adjudication, the principle of res judicata laid down under
s 11 of the Code of Civil Procedure
, are applicable; including the principle of constructive res
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judicata. Thus in State of Uttarpradesh v. Nawab Hussain,13 it

was held that the dismissal of a writ petition challenging
disciplinary proceedings on the ground that the charged
officer had not been afforded reasonable opportunity to
meet the allegations against him, operated as res
judicata in respect of the subsequent suit in which the order
of dismissal was challenged on the ground that it was
incompetently passed. Supreme Court also held:

.....it may be that the same set of facts may give rise to two
or more causes of act ion. If in such a case a person is
allowed to choose and sue upon one cause of action at one
time and to reserve the other for subsequent litigation, that
would aggravate the burden of litigation. Courts have,
therefore, treated such a course of act ion as an abuse of its
process. 14

At this stage, the Pondicherry Khadi and Village Industries Board

case, deserves to be noticed with some greater detail. In
that case, a dispute was raised about the termination of
service of a temporary workman by way of writ petition.
The High Court passed a reasoned order on merits after
contested hearing. That order became final. It was held by
the Supreme Court that re-agitation of the same issue
before Labour Court would be barred by res judicata, more
so when the lesser relief of reinstatement which was
subject-matter of the industrial dispute had already been
claimed by the workman in the writ petition.15 Explaining
the principle of law, Mrs. Ruma Pal, J., speaking for
the Bench in the above case, observed as follows:

11. The principle of res judicata operates on the court. It is the courts which are
prohibited from trying the issue which was directly and substantially in issue in the earlier
proceedings between the same parties, provided the court trying the subsequent proceeding is
satisfied that the earlier court was competent to dispose of the earlier proceedings and that the
matter had been heard and finally decided by such court. Here the parties to the writ petition filed
by the respondent in the Madras High Court and the industrial dispute were the same. The cause of
action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras
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High Court was competent to decide the issue which it did with a reasoned order on the merits and
after a contested hearing. This was not a case where the earlier proceedings had been disposal of
on any technical ground as was the case in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port
Trust, (
AIR 1978 SC 1283 [
LNIND 1978 SC 158 ]); Smt. Pujari Bai
v. Madan Gopal (dead) L.Rs. (
AIR 1989 SC 1764 [
LNIND 1989 SC 336 ]). The lesser
relief of reinstatement which was the subject-matter of the industrial
dispute had already been claimed by the respondent in the writ petition. This was refused
by the High Court. The correctness of the decision in the writ proceedings has not been challenged.
The decision was, therefore, final. Having got an adverse order in the writ petition, it was not
open to the respondent to re-agitate the issue before the Labour Court. . .

Where the parties to the writ petition filed by the

respondent in the Madras High Court and the industrial
dispute were the same, the cause of act ion in both was the
refusal of the appellant to allow the respondent to rejoin
service. The Madras High Court was competent to decide
the issue which it did with a reasoned order on the merits
and after a contested hearing. This was not a case
where the earlier proceedings had been disposed of on any
technical ground as was the case in Workmen of Cochin Port Trust v.
Board of Trustees of the Cochin Port Trust,16 and Pujari Bai v.
Madan Gopal.17 The lesser
relief of reinstatement which was the subject-matter of the
industrial dispute had already been claimed by the
respondent in the writ petition. This was refused by the
High Court. The correctness of the decision in the writ
proceedings has not been challenged by the respondent.
The decision was, therefore, final. Having got an adverse
order in the writ petition, it was not open to the
respondent to re-agitate the issue before the labour court
and the labour court was incompetent to entertain the
dispute raised by the respondent and re-decide the matter
in the face of the earlier decision of the High Court in the
writ proceedings. 18

When the second reference of industrial dispute made by

appropriate government to Labour Court/Industrial
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Tribunal for adjudication has nothing to do with the earlier

reference of industrial dispute, the principle of res judicata
has got no application.19

The principles embodied in O 23, r 1 of the

Code of Civil Procedure laying down a public policy is not
applicable to a case where the writ petition filed by the
workman was not adjudicated on merit, as the petitioner
did not avail the more efficacious remedy available to her
in another jurisdiction in terms of the provisions of the
statute. A writ petition filed by the workman could have
been dismissed even on the ground that another
alternative remedy which was more efficacious was
available and furthermore on the ground that the writ court
would not go into the disputed question of fact. Even in
such an event, it was open to the workman to approach the
labour court or to take recourse to other remedies which
were otherwise available to her.20

But, when the writ petition was dismissed on findings of

fact that the petitioners-daily wagers were not entitled to
continue in service, the said finding operates as res
judicata before labour court, where, re-instatement with
back wages was sought. The general principle of res
judicata applies to industrial adjudication.21

9. Res Judicata
and Estoppel. The principle of res
judicata is species of the principle of estoppel. When a
proceeding based on a particular cause of action has
attained finality, the principle of res
judicata shall fully apply.22

Res judicata is sometimes

treated as part of the doctrine of estoppel, but the two are
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essentially different. Estoppel is part of the law of evidence

and prevents a man from saying one thing one time and
the opposite thing at another time, while res judicata precludes a man
from avowing the same thing in successive litigations.23 A
court which has no jurisdiction in law to try an eviction suit
cannot be vested with the jurisdiction by applying
principles of res judicata. There can be no estoppel on a
pure question of law and the question of jurisdiction is a
pure question of law. 24 The operation of the doctrine of is the
transformation of a question of fact into a question of
law. In Sita Ram v. Amir Begam,
25 Mahmud J. said:
26

Perhaps the shortest way to describe the difference between the plea of res judicata and an
estoppel, is to say that while the former prohibits the court from entering into an inquiry
at all as to a matter already adjudicated upon, the latter prohibits a party after the inquiry has
already been entered upon, from proving anything which would contradict his own previous
declaration or acts to the prejudice of another party who relying upon those declaration or acts
to the prejudice of another party has altered his position. In other words, res judicata prohibits
an inquiry in limine, whilst an estoppel is only a piece of evidence.

The doctrine of res judicata as embedded in

s 11 of Code of Civil Procedure
, corresponds to what is known as estoppel by judgment in
English Law. It is one of convenience and not of absolute
justice. The section does not strike at the jurisdiction of the
court. The very basis of the rule of estoppel is public
interest. If a property liable to be taxed under the statute
which is law of the land, it must be so taxed without regard
to the fact that for an earlier year it has successfully
escaped taxation upon an erroneous view of fact and/or
law. The public interest would be better served by passing
the rule of res judicata and taxing the property in a year
of assessment, if the incidence of tax be rightly attracted
under the law and ignoring the factum of its having been
excluded in an earlier year though by a conscious and
deliberate decision. The court held that the civil court
judgment restraining recovery of tax, in a suit based on a
cause of act ion arising out of assessment for a particular
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year and holding the plaintiff as not liable to payment of

tax, does not constitute res judicata for liability to pay tax or
assessment of tax for subsequent years.27

In a suit, the petitioner took the plea that his dismissal was
illegal as he had been appointed by the Inspector-General
of Police, but was dismissed by an officer lower in rank, i.e.
Dy. Inspector-General of Police. However, the petitioner
did not raise the said plea in the writ petitioner filed by
him, which he could have raised. It was held by the
Supreme Court that the subsequent suit raising that plea is
barred by constructive res judicata. 28 P.N. Singhal, speaking for the
three-Judge Bench in the above case, observed as follows
on the doctrine of estoppel and res judicata:

3. The principle of estoppal per res judicata is a rule of

evidence. As has been stated in Marginson v. Blackburn Borough
Council
(1939) 2 KB 426 at p. 437
it may be said to be the broader rule of evidence which
prohibits the reassertion of a cause of action. This doctrine
is based on two theories: (i) the
finality and conclusiveness of the judicial decisions for the
final termination of disputes in the general interest of
community as a matter of public policy and (ii) the interest
of the individual that he should be protected from
multiplication of litigation. It therefore serves not only a
public but also a private purpose by obstructing the
reopening of matters which have once been adjudicated
upon. It is thus not permissible to obtain a second
judgment for the same civil relief on the same cause of act
ion, for otherwise the spirit of contentiousness may
give rise to conflicting judgments of equal authority, lead to
multiplicity of actions and bring the administration of
justice into disrepute. It is the cause of act ion which gives
rise to an action, and that is why it is necessary for the
courts to recognise that a cause of act ion which results in a
judgment must lose its identity and vitality and merge in
the judgment when pronounced. It cannot therefore
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survive the judgment, or give rise to another cause of

action on the same facts. This is what is known as the
general principle of res judicata.29 In another
three-Judge Bench decision, S.B. Sinha, J., speaking for the
bench explained the distinction between estoppel and res
judicata as follows:

30. Res judicata debars a court from exercising its jurisdiction to

determine the lis if it has attained finality between the parties whereas
the doctrine of issue estoppel is invoked against the party, if such an
issue is decided against him, he would be estopped from raising the same in the latter
proceeding. The doctrine of res judicata creates a different kind of estoppel viz. Estoppel
By Accord.30

In a case under the Motor Vehicle Act, 1988, an award was

passed under s 140 of the Act in favour of the person
injured in the accident. No appeal was preferred either by
the owner or the insurer of the said vehicle. At a later
stage, the fact of the said vehicle being involved in the
accident was challenged in the proceeding under s 166 of
the Act. It was held by a Division Bench of the Calcutta
High Court that the question of the said vehicle being
involved in the accident cannot be reopened again at the
instance of the owner or the insurer. The doctrine of
estoppel and aquiescence can be invoked against the
insurer and the owner.31

The Division Bench in the above case has quoted a passage

from the decision of the Supreme Court in Satyadhyan
Ghoshal v. Deorajin Debi,32 wherein Das
Gupta, J., speaking for the three Judge Bench, stated as
follows:

The principle of res judicata is based on the need of giving a

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finality to judicial decisions. What it says is that once a res

is judicata, it shall not be adjudged again. Primarily it
applies as between past litigation and future litigation.
When a matterwhether on a question of fact or on a
question of lawhas been decided between two parties in
one suit or proceeding and the decision is final, either
because no appeal was taken to a higher court or because
the appeal was dismissed, or no appeal lies, neither party
will be allowed in a future suitor proceeding between the
same parties to canvass the matter again. This
principle of res judicata is embodied in relation to suits
in
s 11 of the Code of Civil Procedure
; but even where s 11 does not apply, the principle of res
judicata has been applied by courts for the purpose of
achieving finality in litigation. The result of this is that the
original courts as well as any higher court must in future
litigation proceed on the basis that the previous decision
was correct.10. Res Judicata and Order 2, Rule 2. Order
2 of the
Code of Civil Procedure deals with the frame of the suit and
each plaintiff is supposed to include the whole of the claim
which the plaintiff is entitled to make in respect of the
cause of action. 33

Order 2, r 2 of the
Code of Civil Procedure confers certain privileges in favour of
the plaintiff who brings the suit, but simultaneously it
imposes an embargo or restriction in claiming/bringing
another suit for any of the reliefs which he could have
prayed in the earlier suit. Order 2, r 2 of the
Code of Civil Procedure is divided into three sub-rules and the
scheme is based on the principle that defendant may not be
and should not be vexed twice for one of the same causes
of action. It is true that this rule is not really a matter of
substance, but it simply deprives the plaintiff claiming his
remedy and does not vest any right in favour of the
defendant. Therefore, in absence of permission, defendant
can positively make a grievance that he has been wrongly
vexed again for the same alleged wrong. Again the
phraseology used in O 2, r 2 (3) of the
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Code of Civil Procedure creates implied bar.34

When the earlier suit filed by the plaintiff company was not
decided on merits, requirement of
s 11 of the Code of Civil Procedure
cannot be said to have been satisfied and therefore, the
second suit could not have been dismissed by treating it as
barred by the principles of res
judicata.35

The ground of res judicata under s 11 is also not applicable

when the judgment and order of dismissal in the
application under O 1, r 10 of the
Code of Civil Procedure did not decide the issue involved in
the suit. Moreover such proceeding was not a suit within
the meaning of
s 11 of the Code of Civil Procedure
. Hence, the subsequent suit is maintainable. 36

The second writ petition from the same cause of act ion is
not maintainable due to bar of res judicata and the principle
incorporated in Order 2, r 2 is also applicable to writ
proceedings.37

In an execution case, the construction on the suit property

made in violation of the decree was ordered to be removed
by the Executing Court. The objection raised by the
judgment debtor was rejected. Thereafter, the judgment
debtor filed a second objection petition raising new
grounds not taken in the earlier petition. The Rajasthan
High Court held that the second objection petition,
although on grounds not taken in the earlier objection
petition, would be barred by res judicata as also the
principles contained in O 2, r 2 of
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CPC .38

11. Res Judicata and lis

Pendens. Res judicata means a
matter adjudicated upon, or a matter on which judgment
has been pronounced. The rule of res judicata has been put on
two grounds, one, the hardship to the individual that he
should not be vexed twice for the same cause, and the
other, public policy, that it is in the interest of the state that
there should be an end to litigation.39

Lis pendens is an action pending and the doctrine of lis

pendens is that an alienee pendente lite is bound by the result
of the litigation.40

It is also settled law that in the absence of fraud or

collusion the doctrine of lis pendens applies to a suit which
is decided ex parte or by compromise. If the compromise
has not been fairly and honestly obtained, the suit which
ended in a compromise will not operate as lis pendens.
This is the doctrine of lis
pendens. 41

To determine whether in the event of a conflict arising

between the rule of res judicata and the doctrine of lis
pendens either the one or the other should prevail. The
rule of res judicata rests on the necessity of having a
finality in litigation, and so does the doctrine of lis pendens.
Both have the same end in view, the former that, as
between the same parties, or their representatives-in-
interest litigating under the same title, once the decision is
reached in a suit, the same question shall not be canvassed
in any other suit, and the latter that whatever the
party may choose to do by way of transfers pendente lite, the
transferee pendente lite shall be bound by the result of the
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litigation. There is, however, this difference between the

two that the rule of res judicata is concerned with more act
ions than one, whereas the doctrine of lis pendens is
concerned with the very same suit during the pendency of
which there is an alienation of the right, title and interest of
one of the parties thereto. In the case of res
judicata, the same cause of action may sustain various act
ions simultaneously, but once the cause of action is merged
in the judgment pronounced in a previously decided suit
there is no cause of act ion left to sustain the second
suit. In the case of lis pendens, however, the cause of
action continues as it was, sustaining the suit which has
been filed for the adjudication of the rights of the various
parties thereto and the doctrine applies during the
pendeney of that suit sustained on that cause of act ion.

Whatever be the transfers, pendente lite, they do not affect

the result of the litigation qua the parties to the suit, and
the transferee pendente lite is bound by the result of that
litigation, irrespective of whatever has happened between
his transferor and himself. Once, however, even in the case
where the doctrine of lis
pendens applies, a judgment is pronounced and the cause
of action is merged in the judgment. That judgment is the
final pronouncement which binds not only the parties to
the suit but also the transferees, pendente
lite from them. The conveyance is treated as if it never had
any existence. The effect of it is not to annul the
conveyance but only to render it subservient to the rights
of the parties in the litigation. Whether this decision is
reached in the same suit or in a different one and whether
the cause of act ion which sustained the suit in which the
doctrine of lis pendens applies was merged in the judgment
pronounced in the very same suit or in another one, the
position would be that that decision would determine the
rights of the parties and would be binding on them as well
as the transferees pendente
lite from them. The transferee pendente lite would be
legitimately treated as the representative-in-interest of the
parties to the suit and the judgment which has been
pronounced, whether in the same suit or in another, would
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be determinative of the rights of the parties. There

would be then no lis or action which would survive. The lis
or action can only be sustained by a cause of act ion. If the
cause of action was merged in a judgment duly pronounced
by a competent court there would be no more occasion
for any lis to continue pending. If a judgment duly
pronounced on that particular cause of action was to
merge the cause of act ion in itself, that judgment would
govern the rights of the parties, whether it is pronounced
in the same suit in which the doctrine of lis pendens applies
or in any other. If it is in the same suit, there would be no
question of the applicability of the rule of res judicata.
The rule of res judicata would come into operation only if
it was pronounced in another suit which came to be
decided earlier than the one in which the doctrine applied.
But once that judgment was pronounced it would have the
effect of finally determining the rights of the parties and
the cause of action which would sustain the suit in which
the doctrine of lis pendens applied
would be merged in the judgment duly pronounced in what
may be described as the previously decided suit. Therefore,
the rule of res judicata prevails over the doctrine of lis
pendens and the conclusion is that once a judgment is duly
pronounced by a competent court in regard to the subject
matter of the suit in which the doctrine of lis pendens
applies, that decision is res judicata and binds not only the
parties thereto but also the transferees pendente lite from
them. 42

The final decree passed before the institution of the suit

cannot be held to be ineffective on account of the
institution of the subsequent suit. As a matter of fact, the
principle of
s 52 of the Transfer of Property Act, 1882
, applicable to transfers of property is not applicable to
suits and decrees passed in such suits. The plaintiff should
have taken steps to get the proceedings stayed and if he
failed to do that and allowed a decree to be passed against
him, then the mortgage suit became a former suit within
the meaning of
s 11 of the Code of Civil Procedure
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, by virtue of explanation 1 added thereto.43

The doctrine of lis pendens cannot prevail over the rule of

res judicata, in case the latter rule applies.44

The rule of res judicata prevails over the doctrine of

lis pendens and once a judgment is duly pronounced by a
competent court in regard to the subject-matter of the suit
in which the doctrine of lis
pendens applies, that decision is res judicata and binds not
only the parties thereto but also the transferees pendente lite
from them.45

12. Cause of Action Estoppel;

Issue Estoppel and Res Judicata. The issue has been
discussed in Thoday v. Thoday as follows . . .

cause of act ion estoppel is that which prevents a party to

an action from asserting or denying, as against the other
party, the existence of a particular cause of act ion, the
non-existence or existence of which has been determined
by a court of competent jurisdiction in previous litigation
between the same parties. If the cause of action was
determined to exist, that is, judgment was given on it, it is
said to be merged in the judgment...If it was determined
not to exist, the unsuccessful plaintiff can no longer
assert that it does; he is estopped per rem judicatam.46

The above dicta was followed in Barbers case.47 A cause of

act ion estoppel arises wherein two different
proceedings identical issues are raised, in which event, the
latter proceedings between the same parties shall be dealt
with similarly as was done in the previous proceedings. In
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such an event, the bar is absolute in relation to all points

decided save and except allegation of fraud and
collusion.

In Arnold v. National Westminster Bank Plc.48 The House of

Lords noticed the distinction between cause of action
estoppel and issue estoppel. Cause of act ion estoppel
arises where the cause of action in the later proceedings
is identical to that in the earlier proceedings, the latter
having been between the same parties or their privies and
having involved the same subject-matter, in such a case,
the bar is absolute in relation to all points decided unless
fraud or collusion is alleged, such as to justify setting aside
the earlier judgment. The discovery of new factual matter
which could not have been found out by reasonable
dilegence for use in the earlier proceedings does not,
according to the Law of England, prevent the latter from
being reopened. Issue estoppel may arise where a
particular issue forming a necessary ingredient in a cause of
act ion has been litigated and decided and in subsequent
proceedings between the same parties involving a different
cause of action to which the same issue is relevant, one of
the parties seeks to reopen that issue. Here also bar
is complete to litigation but its operation can be thwarted
under certain circumstances.

There is a distinction between issue estoppel and res

judicata. Res judicata debars a court from exercising its
jurisdiction to determine the lis if it has attained finality between
the parties whereas the doctrine of issue estoppel is
invoked against the party. If such an issue is decided
against him, he would be estopped from raising the same in
the latter proceeding. The doctrine of res
judicata creates a different kind of estoppel, namely estoppel
by accord. 49

13. Mixed Question of Facts

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and Law. It is true that in determining the application of

the rule of res judicata the court is not concerned with the
correctness or otherwise of the earlier judgment. The
matter in issue, if it is one purely of fact, decided in the
earlier proceeding by a competent court must in a
subsequent litigation between the same parties be regarded
as finally decided and cannot be reopened. A mixed
question of law and fact determined in the earlier
proceeding between the same parties may not, for the same
reason, be questioned in a subsequent proceeding between
the same parties. But, where the decision is on a question
of law, that is, the interpretation of a statute, it will be res
judicata in a subsequent proceeding between the same
parties where the cause of act ion is the same.50

It is well-known that res judicata is a mixed question of fact

and law. It has to be specifically pleaded and the party
relying on the principle of res judicata should place before
the court all material particulars which would be sufficient
to give a finding whether the particular case is barred by
the principle of res judicata. 51

Rather, a decision on a question involving facts as well as

the application of law to the facts, would be res
judicata. One cannot dissociate the decision on law from the
decision on facts.52

Contentions of res judicata based on mixed question of law

and facts cannot be entertained by the Supreme Court
for the first time at the stage of special leave petition.53

Questions of fact or even mixed questions of law and fact

which have attained finality in absence of appeal, cannot be
referred to a larger bench because of the application of the
doctrine of res judicata. A
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reference to a larger bench is made when a bench finds

that there is already a precedent of a co-ordinate bench of
the same court on a particular point of law and the
referring bench is unable to concur with that earlier view
on the question of law taken by the co-ordinate bench. In
other words the reference must be on a pure question of
law already decided by a co-ordinate bench which is a
precedant on that point of law. There is no scope of
referring a question of fact or even a mixed question of law
and fact already decided by a co-ordinate bench in the
earlier judicial proceedings between the same parties or
parties claiming through them which has attained finality.
Thus, a Full Bench of the Calcutta High Court held that a
Referring Bench even if it did not agree with the findings
given by the First Division Bench on a question of fact or a
mixed question of law and fact was bound to accept such
findings as the doctrine of res judicata stood in the way of reopening
the said issue. The doctrine of res judicata cannot be
surmounted by making reference to a Larger Bench. 54

14. Two Stages the in Same

Litigation. Res judicata applies
also between two stages in the same litigation. Where a
court, (whether a trial court or a higher court) has, at an
earlier stage, decided the matter in one way, the parties
cannot re-agitate the matter at a subsequent stage of the
same proceeding. 55

The principle of res judicata applies as between two stages in

the same litigation, so that if an issue has been decided at
an earlier stage against a party it cannot be allowed to be
reagitated by him at a subsequent stage in the same suit or
proceeding. Thus, where the question, whether s 15 of the
Kerala Buildings (Lease and Rent Control) Act (2 of 1965)
bars the eviction petition, was decided against the
tenants by the appellate authority at the earlier stage of suit
and it was allowed to become final, it is not open to the
tenants to reagitate the same at the subsequent stage of the
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suit.56

The principle of res judicata is based on the need of giving a

finality to judicial decisions. The principle which prevents
the same case being litigated twice is of general application
and is not limited by the specific words of
s 11 of the Code of Civil Procedure
in this respect. Res judicata applies also as between two
stages in the same litigation to the extent that a court,
whether the trial court or a higher court, having at an
earlier stage decided a matter in one way, will not allow the
parties to re-agitate the matter again at a subsequent stage
of the same proceedings. 57

In a proceeding for execution of a decree, warrant of

attachment was issued by the executing court and
thereafter the judgment-debtor raised objection. It was
held by the Supreme Court that failure on the part of the
judgment-debtor to raise the objection earlier thereby
allowing the preliminary stage to come to an end,
disentitles him to raise objection at a subsequent stage after
issuance of warrant of attachment as it would be barred by
the principle of constructive res judicata. Dr. Arijit Pasayat, J., speaking for the
58

bench in the above case, observed as follows to explain the

law:

There is no dispute and it has not been agitated that the order for proceeding by the
judgment under O 21, r 22 amounts to a decree under
Section 47 of CPC and it is appealable as a decree i.e. to say it is not an
appeal against the interim order but an appeal against the decree which is
provided against the final order. It means that at the different stages of the execution orders
passed by the executing court have attained finality unless they are set aside by way of
appeal before the higher forum. Otherwise they bind the parties at the subsequent stage of the
execution proceedings so that the smooth progress of execution is not jeopardised and the stage
which reached the finality by dint of various orders of the O 21, operates as res judicata for
the subsequent stage of the proceedings. Since the order passed at different stage itself operates as
a decree and is appealable as such, the same cannot be challenged in appeal against subsequent
orders also, because appeal against an order passed under O 21, r 22 does not amount to appeal
against order at initial stage, but amounts to a decree finally determining the question. That is
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why no appeal against orders made under O 21 has been provided under O 43.59

It has been held by the Kerala High Court that the

contention originally raised and overruled by the court at
the time of passing of preliminary decree for partition,
cannot be agitated again at the time of passing of final
decree.60

A suit for specific performance of agreement to sell was

filed. In that suit an application for impleadment as party
was filed by another person claiming an earlier agreement
to sell from the same land-owner. The said application for
impleadment was dismissed on objection from the plaintiff
who was said to be subsequent purchaser. However, the
court granted him liberty to file a separate suit. The
separate suit filed by the earlier purchaser was decreed and
was got executed and a sale deed in favour of the earlier
purchaser was executed. Now the subsequent purchaser
filed an application for impleading the earlier
purchaser as a necessary party in the same suit filed by him.
It was held by the Punjab and Haryana High Court that the
second application for impleadment was barred by res
judicata. 61

Where in an execution proceedings to execute the order

passed by the Consumer Forum, objections to execution
were rejected and no appeal was filed against the order of
rejection, it was held by a Division Bench of the Karnataka
High Court that reagitation of identical claim at a
subsequent stage of the same proceedings would be barred
by res judicata.62

15. Suits. Section 11

applies in terms to cases where the matter in issue in a
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subsequent suit was in issue in a former suit. A suit is a

proceeding which is commenced by a plaint (s 26). The
section is now made applicable to execution proceedings
by adding to the section the new explanation VII which
provides inter alia that the provisions of the section shall
apply to proceedings for execution of decrees and that
references in the section to any suit shall be construed as
references to proceedings for execution of decrees

Some cases extending the doctrine beyond the limits of the

Code have given a more extensive meaning to the word
suit. Thus, when probate was refused after a contentious
proceeding, the judgment was held to operate as res
judicata, for
s 295 of the Indian Succession Act, 1925
, requires the proceeding to take the form as far as possible
of a suit.63 Similarly, proceedings under
s 54 of the Companies Act, 1956
have been treated as a suit for the purposes of this
section. On the other hand, although an
64 application to
file a private award was required by Sch. 11, para 20, to be
numbered and registered as a suit, refusal to file a private
award has been held not to operate as res judicata.65 In a
case decided under s 10 of the Code it was said: the term
suit is a very comprehensive one. It is understood to apply
to any proceeding in a Court of Justice by which an
individual pursues that remedy in a court of Justice which
the law affords him, that the modes of proceedings may be
various, but that if a right is litigated between parties in a
Court of Justice the proceeding by which the decision of
the Court is sought is a suit.66

By non-payment of court-fee on the counter-claim in

appeal, the appellate court is not in a position to consider
the question of counter-claim. Thus, it has to be held that
the counter-claim as rejected by the lower court has
become final. That portion of the discharge of the suit
amount as raising the counter-claim cannot be considered
by the appellate court on the principle of res judicata,
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however, at the same time the question of discharge of

decree amount can be considered by the appellate court.67
The section is not exhaustive, and the doctrine of res
judicata has been extended to adjudications in proceedings
other than suits.68 In certain matters, the doctrine of suit
has been given an extended meaning which goes beyond
the limits of the Code. Thus, when probate was refused
after a contentious proceeding, the judgment was held to
operate as res judicata for,
s 295 of the Indian Succession Act, 1925
, requires the proceedings to take the form as far as
possible of a suit. 69 Similarly, proceedings under
s 54 of the Companies Act, 1956
, have been treated as a suit for the purposes of this
section. On the other hand, although an
70 application to
file a private award was required by Sch II, para 20, to be
numbered and registered as a suit, refusal to file a private
award has been held not to operate as res judicata.71 In a
case decided under
s 10 of the Code of Civil Procedure
, it was said:

the term suit is a very comprehensive one. It is understood to apply to any proceeding in a
court to justice by which an individual pursues that remedy which the law affords him, that the
modes of proceedings may be various, but that if a right is litigated between parties in a court of
justice, the proceedings by which the decision of the court is sought is a suit.72

It has been held that an insolvency proceeding is not a suit

for the purpose of this section.73 The proceedings
before the District Judge, under the
Charitable and Religious Trusts Act, 1920
, are of a summary nature, and do not fall within the
definition of a suit and his decision holding that the
property was not a religious endowment, cannot operate as
res judicata; so also, a proceeding under s 26 J of the Bengal
Tenancy Act,74 but not a
proceeding under s 84 (1) of the Madras
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Religious Endowments Act 2 of 1927, as it is not a summary

one and the decision of the District Judge under s 84
(2), operates as res judicata. 75 An Assistant Collector or Commissioner
act ing under s 12 of the Acquisition of Privileges Act,
1949, is not a court and his decisions are not res
judicata in proceedings, before regular courts.76 In deciding
whether a dispute should be referred to a tribunal under
s 10 of the Industrial Disputes Act, 1947
, the government is exercising executive power and the
principle of res judicata has no application to its decisions
which can be reviewed or altered, but a proceeding under s 36 of the
77

Bengal Money Lenders Act, 1940, to reopen a personal

decree is a suit and a second suit for the same relief will be
barred. 78

16. Court. The expression

court is neither defined in
Code of Civil Procedure nor defined in
General Clauses Act, 1897 but s 2(e)of the Indian
Arbitration and Conciliation Act, 1996
defines court as follows:-

Court means the Principal civil court of original

jurisdiction in a district, and includes the High Court in
exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject-
matter of the arbitration if the same had been the
subject matter of a suit, but does not incude any civil court
of a grade inferior to such Principal civil court or any
Court of Small Causes.The principle of res
judicata operates on the court. It is the courts which are
prohibited from trying the issue which was directly and
substantially in issue in the earlier proceedings between the
same parties, provided the court trying the subsequent
proceeding is satisfied that the earlier court was competent
to dispose of the earlier proceedings and that the matter
had been heard and finally decided by such court.79
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17. Explanation to a
section. It is settled law that explanation to a section is not
a substantive provision by itself. It is entitled to explain the
meaning of the words contained in the section or to clarify
certain ambiguities or clear them up. It becomes a part and
parcel of the enactment. Its meaning must depend upon its
terms. Sometimes, it

would be added to include something within it, or to

exclude from the ambit of the main provision, or condition
on some words occurring in it. Therefore, the explanation,
normally, should be so read as to harmonise with and to
clear up any ambiguity in the same section.1

18. Interlocutory orders.

It is needless to point out that interlocutory orders are of
various kinds, some like orders of stay, injunction or
receiver are designed to preserve the status quo pending
the litigation and to ensure that parties might not be
prejudiced by normal delay which the proceeding before
the court usually take. They do not, in that sense, decide in
any manner the merits of the controversy in issue in the
suit and do not, of course, put an end to it even in part.
Such orders are certainly capable of being altered or varied
by subsequent applications for the same relief, though
normally only on proof of new facts or new situations
which subsequently emerge. As they do not impinge upon
the legal rights of parties to the litigation the principle of res
judicata does not apply to the findings on which these
orders are based, though if applications were made for
relief on the same basis after the same has once been
disposed of, the court would be justified in rejecting the
same as an abuse of process of court. There are other
orders which are also interlocutory, but would fall into a
different category. The difference from the ones just now
referred to lies in the fact that they are not directed to
maintaining the status quo, or to preserve the property
pending the final adjudication but are designed to ensure
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the just, smooth, orderly and expenditious disposal of the

suit. They are interlocutory in the sense that they do not
decide any matter in issue arising in the suit nor put an
end to the litigation.2

Placing reliance on the above decision of the Supreme

Court, the Madhya Pradesh High Court held that where
application for grant of temporary injunction was rejected
on ground of delay and not on merit, the subsequent
application for injunction on account of subsequent
developments would not be barred by the principles of res
judicata. Where are earlier application filed in a
3 suit to
recognise a person as duly constituted Attorney on the
basis of a power of Attorney, was returned without passing
any order, subsequent application for the same cause is not
hit by res judicata as no order was passed on the earlier
application. 4

The case of an application under O 9, r 7 would be an

illustration of this type. If an application made under the
provisions of that rule is dismissed and an appeal were filed
against the decree in the suit in which such application
were made, there can be no doubt that the propriety of
the order rejecting the re-opening of the proceeding and
the refusal to relegate the party to an earlier stage might be
canvassed in the appeal and dealt with by the appellate
court. In that sense, the refusal of the court to permit the
defendant to set the clock back does not attain finality.
However, it needs to be seen whether the same court is
finally bound by that order at later stages, so as to preclude
its being reconsidered. Even if the rule of res
judicata does not apply, it would not follow that on every
subsequent day on which the suit stands adjourned for
further hearing, the petition could be repeated and fresh
orders sought on the basis of identical facts. The principle
that repeated applications based on the same facts and
seeking the same reliefs might be disallowed by the court
does not however necessarily rest on the principle of res
judicata. Thus, if an application for the adjournment of a
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suit is rejected, a subsequent application for the same

purpose, even if based on the same facts, is not barred on
the application of any rule of res
judicata, but would be rejected for same grounds on which
the original application was refused. The principle
underlying the distinction between the rule of res
judicata and a rejection on the ground that no new facts
have been adduced to justify a different order is vital. If the
principle of res judicata is
applicable to the decision on a particular issue of fact, even
if fresh facts were placed before the court, the bar would
continue to operate and preclude a fresh investigation of
the issues, whereas in the other case, on proof of fresh
facts the court would be competent, i.e., would be bound
to take those into account and make an order conformably
to the facts freshly brought before the court.5

A decision or direction in an interlocutory proceeding of

the type provided for by O 9, r 7 is not of the kind which
can operate as res judicata so as to bar the hearing on the
merits of an application under O 9, r 13. Where the earlier
6

application of the defendant under O 9, r 7 of the

Code of Civil Procedure was dismissed, being filed after next
date of hearing, but subsequently the application by
plaintiff for amendment of plaint was allowed, thereafter
fresh application under O 9, r 7 of the
Code of Civil Procedure was filed to submit additional written
statement, merely because amendment application of
plaintiff was allowed, could not give any fresh right to the
defendant to file another application under O 9, r 7 of the
Code of Civil Procedure , so the second application under O 9,
r 7 of the
Code of Civil Procedure was found barred by principles of res
judicata. When the application for amendment of
7 pleading
under O 6, r 17,
Code of Civil Procedure , for addition of plea of acquisition of
title by adverse possession is dismissed, the second
application for amendment of pleadings for the same
purpose filed after two years is barred by the the principle
of res judicata.8
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Interlocutory orders do not operate as res judicata.9 That the decision given by the court at
an earlier stage of a case binding at a later stage is well-
settled though interlocutory judgments are open for an
adjudication in an appeal against the final judgment. It
however, does not mean that because at an earlier stage of
litigation, the court has decided an interlocutory matter in
one way and no appeal has been taken therefrom or no
appeal did lie, a higher court cannot at a later stage of the
same litigation consider the matter again.10

The doctrine of res judicata cannot be applied to the

application of the legal representative of the deceased
appellant when the court felt that the earlier applications
were not applicable.11 A second application for issue of
temporary injunction under O 39 rr 12, is not barred if the
petitioner shows that such consideration is necessary in
view of new facts and new situations and circumstances
that have taken place subsequently. Interlocutory orders
like the temporary injunctions are meant only to preserve
the status quo during the pendency of the proceeding and
not decide the controversy in issue on merits. Such orders
are therefore, capable of being altered or varied, but only
on proof of new facts or new situations, which may have
emerged subsequently.12

A party is not bound to appeal against an interlocutory

order, such as an order appointing or not appointing a
receiver. Even if the court has refused to appoint a receiver
in partition suit it does not necessarily mean that later
where there is a change in circumstances, the court
cannot make such an order. 13 It is not open to the court to have
allowed or even entertained a fresh application for
appointment of a receiver in the year 1992, when a similar
application of petitioner was dismissed on contest and on
merits by the same court in the year 1988, through the
medium of a reasoned and speaking order. The
maintainability of the second application for the same relief
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was patently barred on the principles of res judicata. The

second application might have been maintainable, had the
petitioner brought to the notice of the court certain facts
which have occurred after the dismissal of the first
application.14

Revision from an interlocutory order was dismissed, not on

the merits, but as not maintainable. Observations by
revisional court upon the Stamp Act, 1899 were held not
binding on the lower court. The revisional judge in the
instant case, after analysing the case law, eventually held
that no revision lay. Having categorically held that revision
was not maintainable, any observation, cannot be held to
be a decision which could bind the parties. No doubt, the
judge held that the document in question could not be
admitted in evidence unless stamp duty as well as penalty
was paid. But, those observations were of no avail as they
had been made in the exercise of a jurisdiction which did
not vest in the judge. Therefore, they cannot be said to be
amounting to res judicata and would not bind the
subordinate judge while again trying the case.15

Where the applications under s 45 of the India

Evidence Act, 1872 , were filed by the petitioners for
sending the promissory notes for opinion of the expert, an
exercise, to be undertaken under
s 45 of the Indian Evidence Act, 1872
, vis-a-vis, a document, must be comprehensive and total.
A party cannot be permitted to split the purposes in the
context of examination through an expert under
s 45 of the Indian Evidence Act, 1872
. In other words, if several parts of the documents are to
be subjected to expert opinion, the relief must be claimed
in relation to all. Different applications cannot be
permitted to be made in relation to each and every facet of
the document. In a way, it can be said that such a
course is prohibited under O 2,
Code of Civil Procedure , in so far as it governs the course of
applications also. Therefore, the
16 second application to
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obtain opinion of the expert is barred by res

judicata.

Though res judicata can apply even in the same proceedings

at different stages, this does not mean that
temporary injuction cannot be varied.17

Where the order of temporary injunction is passed, and the

said order is confirmed in the revision, the finding of
revisional court with reference to maintainability of suits in
revision would not operate as res
judicata in final proceedings.18

The dismissal of the previous application for issue of ex

parte temporary injunction, restraining the beneficiary
from encashing of the bank guarantee proceeded on the
ground of the same being premature. Even though the
applicants did bring a revised petition in which they
mentioned the existence of fraud, that petition was
dismissed in limine and an adjudication was not made in
respect of the perpetration of fraud or otherwise, obviously
because, till then, the ground of the application being
premature, still continued to exist, as no demand of
encashment of bank guarantee was made by the
beneficiary. It was held that the second application for
injunction would not be barred by the previous
judgement. It is, no doubt
19 true, that the orders relating to
custody of children are by their very nature not final, but
are interlocutory in nature and subject to the modification
at any future time upon proof of change and circumstances
requiring the change of custody but, such change in
custody must be proved to be in the paramount interest of
the child. However, in respect of orders as to custody
already passed in favour of the appellant the doctrine of res
judicata applies and the family court cannot re-examine the
facts which were formerly adjudicated between the parties
on the issue as to custody, or are deemed to have been
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adjudicated.20 An order directing parties to produce an

affidavit in support of their cases was passed wherein it
was specifically stated that the affidavit would be
treated as evidence-in-chief and the appellant would be
entitled to cross-examination of the deponents upon the
affidavit, on payment of cost. The order was not
challenged and was allowed to become final. Thereafter,
the appellant challenged the order permitting the
production of affidavits which was barred by the principles
of res judicata.21 The honble High Court relying upon the
matter of Y.B. Patel v. Y.L. Patil,
22 and Prahlad v. Sukhdev,
23 held that the principle of res judicata even applies to
the different stages of the same proceedings. It was held
that once the appellant had sought to introduce the
document and had suffered an order which had since been
challenged unsuccessfully in the present petition, it was not
open to the appellant to fill up the same lacuna by filing a
subsequent application and taking advantage thereof. If
such a situation is permitted, in that event, the principle of
public policy, on which s 11 is introduced in the Code or
the principle of res judicata is
conceived, would altogether stand frustrated. 24

19. Procedural orders.

There is a distinction between a procedural statute and a
substantive statute for applicability of the principle of res
judicata.25

The order passed on an application by plaintiff under

s 83 of the Transfer of Property Act, 1882
(
Transfer of Property Act ) seeking permission to deposit
an amount due under mortgage does not operate as res
judicata in the suit filed for a declaration that the transaction
in question, although ostensibly expressed in the shape of a
deed of sale, was in fact a transaction of usufructuary
mortgage. The function of a court in terms of
s 83 of the Transfer of Property Act
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is procedural in nature. The provision merely permits the

mortgagor to deposit the mortgage amount. Even in a case
where such deposit is made, in the event the mortgagee
refused to accept the deposit, the mortgagor would have
no option but to institute a suit for redemption
relying on the mortgage money deposited. The respondent
did not file a suit for redemption. It may be that the
appellant-defendant objected to the said deposit but
despite the fact the purported mortgage amount was
allowed to be deposited, the same being not binding upon
the mortgagee as he could not be compelled to accept
the same, the question of applying the principles of res
judicata would not arise.26

The contention that the court of the munsif was a court

exercising limited jurisdiction while entertaining an
application under
s 83 of the Transfer of Property Act
and the decision of such a court of limited jurisdiction
would also operate as res judicata is not tenable. The
question of determination in the suit, being a pure question
of law, the principle of res judicata shall have no
application.27

20. Former suit. The

explanation 1 of
s 11 of the Code of Civil Procedure
merely deals with a situation where two suits are pending in
court/courts of competent jurisdiction. In a situation when
any of the suit is decided by the court before another suit,
then decision given in that suit, irrespective of fact
whether it was filed earlier or later, decision on issue bars
re-trial of same issue.28

The expression former suit means a previously decided

suit, and the same interpretation applies to appeals.
Explanation I confirms previous decisions to the same
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effect.29 It matters not that the previously decided suit was

instituted subsequently30 or decided
during the pendency of an appeal or revisional application
in the subsequent suit.31

21. Suits tried togetherone

judgment. There was a conflict of decisions as to whether
if two suits involving common issues are disposed off in
one judgment and an appeal is filed against the decree in
one and not in the other, the matter decided in the latter
suit becomes res judicata so
that it cannot be reopened in the appeal. The Supreme
Court was inclined to the view that the matter would not
be res judicata.
32 This decision lends support to the view
which has been taken in the following cases which proceed on the basis that a
33

decision given simultaneously cannot be said to be a

decision in a former suit. The contrary view has been taken
by the Patna,34 Rangoon,35 Calcutta,36 Orissa37 and
Allahabad High Courts.38 Cross suits were disposed by a common
judgment. One decree was appealed against but the appeal
failed. The other decree which had been allowed to
become final operated as res judicata.
39 If several suits are decided by a common
judgment and separate appeals are preferred, the appeals
do not become incompetent merely on the ground that
one of the appeals has abated or is dismissed on some
grounds other than the merits of the appeal. Each appeal is
preferred against the separate decree and even if appeal
preferred is affirmed in one of the appeals, it does not
operate as res judicata. It is the finding or decision
which operates as res judicata and not a decree.40 The
Allahabad High Court has held that where two or more
suits are consolidated and decided by a common judgment
and appeals are filed against the decrees passed in all the
suits, no question of res
judicata can arise if the appeals are also heard and decided
simultaneously. But, if one of such appeals is either heard
and decided separately or is dismissed for want of
prosecution or for some other reason and the decision of
the court below stands thereby confirmed, the bar of
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res judicata will apply to the other surviving appeals. This is

on the basis that an appeal is a continuation of the
suit and the decision in one appeal decided separately
becomes a decision in a former suit which is prior in point
of time. 41

The Supreme Court in a case noted this view but declined

to express its opinion.42

In Narahari v. Sanker
43 A sued B and C for
possession and obtained a decree in the trial court. B and
C filed separate appeals, which were heard together. One
judgment was delivered but two decrees, one in each of
those appeals were made. A appealed against one of those decrees.
It was held that there was no scope for the application of
the rule of res judicata as there was only one suit.

In Ghansham Singh v. Bhola Singh

44 A, a mortgagee, sued
B, the mortgagor, to recover the amount due on a
mortgage. The munsiff passed a decree for A and directed
each party to bear his own costs. A appealed as to costs,
and B filed a separate appeal as to the amount found due
on the mortgage. Both appeals were disposed off in one
judgment which reduced the amount payable on the
mortgage and awarded A
proportionate costs; but, two decrees were drawn upone
for each appeal. A filed a second appeal against the
reduction of the decretal amount in B's appeal, but did not
appeal against the decree in his own appeal. It was held
that the decree in that appeal did not operate as res
judicata as A had no reason to appeal from a decree which
did not prejudice him. The Full Bench approved of the
decision in Damodhar Das v. Sheo Ram Das.
45 This was also a case of one suit and two
appeals. A sued B, his agent to recover profits made by the
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agent in dealings on his own account. A's

claim was decreed in part. A and B both appealed and the
court dismissed A's appeal and allowed B's
appeal. Two decrees were drawn up which were exactly
similar. A filed a second appeal against the decree in his
own appeal and it was objected that the appeal was barred
by res judicata as he had not appealed against the decree in
B's appeal. The objection was overruled on the ground that
the two decrees were in substance one decree. The Full
Bench also distinguished the case of Zaharia v. Debia.
46 In this case there were two rival suits
for pre-emption filed by two claimants A and B. B was a
defendant in A's suit, and A was a defendant in B's suit. A's suit was dismissed and B's suit
was decreed. The Full Bench observed that it was not
necessary to invoke the principle of res judicata for A had
lost his right by allowing B's decree to become final against
him. A later Full Bench has followed Damodhar Das’s
case holding that decrees in cross appeals in the same suit
are infact one decree. 47 But, where there are two suits involving
different subject matters even though they are disposed off
by a single decision, such a decision is really two decisions.
An appeal filed in one suit will be barred by res
judicata if no appeal is filed against the decision in the other
suit.48

22. Suits tried

togetherseparate judgments. If two cross suits are tried
together and the same issue is tried and disposed off in two
separate judgments, the omission to appeal from the decree
in one suit will make the decree in the other res judicata so
as to bar the appeal.49 There were suits
by A against B, and B against A. In each suit, the issue was,
whether A was the trustee or B was the trustee. A's suit was decreed,
and B's suit was dismissed by two separate decrees. B
appealed only against the decree dismissing his suit. He did
not appeal against the decree granting A's suit. It was held,
that the appeal was barred by res
judicata, as the decree in A's suit had not been appealed
against. The doctrine of
50 dependent judgment has no
51

application to such cases unless the adjudication in one of

them is made dependent on the result of the other.52 When
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different suits in which the parties and the properties

involved are different, are tried together because an
important issue is common to them; and thereafter, they
are disposed off by different judgments wherein separate
decrees are drawn up, the failure to appeal against any of
them does not bar the hearing of the appeal against the
others on the grounds of res
judicata. 53

23. Applications decided

together. The first application was on the ground that the
provisions of s
s 38 ,
39 and
40 of the
Code of Civil Procedure had not been complied with. In that
application the defence taken was that the decree was being
executed under the provisions of s 44 -A of the
Code of Civil Procedure . In view of this stand, before any
decision was given, the second application had been filed.
Both the applications were heard together. In other words
the second application was filed and heard before any
decision was given in the first application. Both the
applications were only decided on 15 March 1999.

When the second application was filed before any decision

on the first application was given, the applicants could
have, instead of filing a second application, amended their
first application and taken these pleas in that
application itself. Had they amended the first application
there would be no bar of res judicata or constructive res-
judicata. If that be so one fails to understand how the
second application was barred by principles of res-judicata
or constructive res-judicata. It is to be remembered that the
orders were passed after hearing arguments on both the
applications. Under such circumstances no question arises
of their being any res-judicata or constructive res-judicata.54
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24. Plea of res judicata

cannot be raised for the first time before Supreme
Court previous judgments still relevant.
Res judicata is a mixed question of fact and law. Supreme
Court did not find the plea of res
judicata having been raised in the plaint. Copies of pleadings
and issues framed in the earlier suit had not been tendered
in evidence, and they did not find any issue on res judicata
having been framed and tried between the parties in the
present suit. No submission raising the plea of res judicata
was made before any of the courts below or the High
Court. Therefore, such a plea cannot be permitted to be
raised before Supreme Court for the first time and that also
at the hearing. However, still it cannot be lost sight of that
the earlier litigation was between the same parties wherein
this very Will was relied on by this very plaintiff in support
of his title to the property in dispute therein. The
plaintiffs right to sue based on this very Will was claimed
and asserted in the earlier suit and was upheld, though
denied by this very defendant. These facts and finding are
recorded in the previous judgment and have relevance in
the present suit. Thus, away from res judicata the judgment
given in the earlier suit is relevant piece of evidence under s
s 11 ,
13 and
35 of the
Indian Evidence Act, 1872 and has a material bearing on the
controversy arising for decision in the present suit. A
relevant and material piece of documentary evidence of
undoubted veracity, it ignored and that is a serious error of
law having a vitiating effect on the finding on most vital
issue in the case.55

25. Nonframing of particular

issue. If the parties went to the trial knowing fully well the
real issues involved and adduced evidence in such a case
without establishing prejudice, it would not be open to a
party to raise the question of non-framing of particular
issue. 56
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In Swamy Atmanandas case (Supra), S.B. Sinha, J.,

speaking for the Bench observed as follows:

33. The appellants did not object to the raising of the said plea by
Tapovanam in the suit. As the said plea had adequately been raised in the plaint, in relation
where to the Appellauts here in had adequate opportunity of traverse and further more both the
parties having brought on records all the relevant documents the appellants here in cannot be said to
have been prejudiced in any manner by reason of non-framing of the issue as regards res
judicata.

In the Commissioner Endowments case (supra),

Shivraj v. Patil, J., speaking for the Bench, observed as
follows:

These findings have attained finality. Failure to frame a formal issue by the court would
not invalidate the findings of the binding judgment between the parties. The aforementioned
findings against the appellants could neither dilute nor deprive their binding character merely
because specific issue was not raised in the suit.

Plea of res judicata is not available where there is no

contest on an issue between the parties and there is no
conscious adjudication of an issue.57

D.M. Dharmadhikari, J., speaking for the Bench in the

above case, observed as follows:
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51. Res judicata is a plea available in civil proceedings in accordance with

section 11 of the Code of Civil Procedure . It is a doctrine applied to give
finality to lis in original or appellate proceedings. The doctrine in substance means that
an issue or a point decided and attaining finality should not be allowed to be reopened and
re-agitated twice ever. The literal meaning of res is everything that may form an object of rights
and includes an object, subject-matter or status and res judicata literally
means: a matter adjudged; a thing judicially acted upon or decided; a thing or
matter settled by judgment.
Section 11 of CPC engrafts this doctrine with a purpose that a final
judgment rendered by a court of competent jurisdiction on merits is conclusive as
to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a
subsequent action involving the same claim, demand or cause of act ion. [see: Blacks Law
Dictionary at pages 1304-1305]

On the question of applicability of the doctrine of res

judicata on the proceedings under the U.P. Imposition of
Ceiling on Land Holdings Act, 1961, it was further
observed as follows:

52. Proceedings under the Ceiling Act, are not adversarial as are proceedings is suit. The
Ceiling Act is a legislation to give effect to the Directive Principles contained in clauses
(b) and (c) of
Article 39 of the Constitution . The State is advised by the Directive
Principles contained in
Constitution to take necessary legislative measures so as to ensure social
justice by equitable distribution of ownership and control of material
resources and avoid concentration of wealth and means of production in few hands. The laudable
social objectives sought to be achieved by the ceiling legislation is to take surplus land from
the holders and distribute the same landless agricultural labourers and peasants surviving on
agriculture. In applying the principles of res judicata, therefore, to the ceiling proceedings,
the object of the Act cannot be lost sight of. All principles of res judicata
contained in
Section 11 of the CPC cannot be strictly and rigorously made applicable to
ceiling proceedings. Section 38 -B introduced by Amendment Act of 1976 with the
transitory provisions made both in the Amendment Act No. 18 of 1973 and Act No. 20 of 1976 is a
departure from the provisions of
section 11 of the Code of Civil Procedure and indicate non-applicability of bar
of res judicata in ceiling proceedings under the Act.58
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26. Conditions of Res

Judicata. It is not every matter decided in a former suit
that can be pleaded as Res Judicata in a subsequent suit. To
constitute a matter res judicata the following conditions
must concur:59

Essentials of Res Judicata

(i) The matter directly and substantially in issue in the

subsequent suit or issue must be the same matter
which was directly and substantially in issue either
actually (explanation III) or constructively
(explanation IV) in the former suit.
(ii) The former suit must have been a suit between the
same parties or between parties under whom they or
any of them claim. Explanation VI is to be read
with this condition.
(iii) The parties as aforesaid must have litigated under
the same title in the former suit.
(iv) The court which decided the former suit must have
been a court competent to try the subsequent suit or
the suit in which such issue has been subsequently
raised. Explanation II is to be read with this
condition.
(v) The matter directly and substantially in issue in the
subsequent suit must have been heard and finally
decided by the court in the first suit. Explanation V
is to be read with this condition.

The new explanation VIII extends the application of the

section by providing that a decision of a court of limited
jurisdiction on an issue heard and finally decided shall, if it
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is within the competence of such court, operate as

res judicata in a subsequent suit, although such court is not
competent to try such subsequent suit or the suit in which
such question is subsequently raised. The above conditions
are considered in order.

Matter in Issue. For the

expression the matter in issue in
s 11 of the Code of Civil Procedure
means the right litigated between the parties, i.e., the
facts on which the right is claimed or denied and the law
applicable to the determination of that issue. Where,
however, the question is one purely of law and it relates to
the jurisdiction of the court or a decision of the court
sanctioning something which is illegal, by resort to the rule
of res judicata, a party affected by the decision will not be
precluded from challenging the validity of that order under
the rule of res judicata, for a rule of procedure cannot
supersede the law of the land. 2

Matters in issue may be classified as follows:

Condition I : Matter Directly

and Substantially in Issue
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(A) Matter Actually in Issue.

(a) Cause of Action

Distinguished from Matter Directly and Substantially in Issue. The
expression used in s 2 of the Code of 1859 was cause of act
ion. As to that expression their Lordships of the Privy
Council said in Krishna Behari Roy v. Brojeswari Chowdranee:3

The expression cause of action cannot be taken in its literal

and most restricted sense, but however that may be, by the
general law where a material issue has been tried and
determined between the same parties in a proper suit and
in a competent court as to the status of one of them in
relation to the other, it cannot, in their opinion, be again
tried in another suit between them.

The expression matter directly and substantially in issue

was first introduced in the corresponding s 13 of the Code
of 1877. The law is accordingly well-settled that to invoke
the bar of res judicata, it is
not necessary that the cause of act ion in the two suits
should be identical. It is only required that the matters
directly and substantially in issue should be the same in
both the suits. If the cause of action is the same both,
4 in
the former Act and subsequent proceedings, then the
decision on an issue of law will be res judicata between the
same parties. If the cause of action is not the same in both
the proceedings, it will not operate as res judicata. When
the law has, since the earlier days been altered by a
competent authority, that will not operate as res judicata.
5

(b) Matter Directly and

Substantially in Issue: Explanation III. The word substantial
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means of importance and value. A matter is substantially in

issue if it is of importance and value for the decision of the
main proceeding.6 At the same time,
it is not necessary to constitute a matter directly and
substantially in issue, that a distinct issue should have been
raised upon it; it is sufficient if the matter was in issue in
substance. 7

It is not enough to constitute a matter res judicata that it

was in issue in the former suit. It is further necessary that it
must have been in issue directly and substantially. A matter
cannot be said to have been directly and substantially in
issue in a suit unless it was alleged by one party and denied
or admitted, either expressly or by necessary
implication, by the other. 8 It is not enough that the matter was
alleged by one party. A matter in issue
9 is the matter
claimed by one and denied by the other. Claim of right in
its very inception depends upon proved facts and
application of the relevant law. Directly and substantially in
issue could be constructively so. Matter in issue may be
an issue of fact, an issue of law or one mixed of fact and
law. An issue of fact or an issue of mixed fact and law
decided by a competent court is finally decided between
the parties and cannot be reopened between them in
another proceeding.

The claim of right depends upon proof of facts and

application of law relevant thereto. When it is said that a
previous decision is res judicata, it is meant that the right
claimed has already been adjudicated upon and cannot
again be placed in contest between the same parties. The
decision on law cannot be dissociated from decision on
facts on which the right is founded. In other words,
when the finding on an issue is based on certain view of
the law, that view of the law, as an abstract proposition and
dissociated from the act ual matter in issue, will not be res
judicata so as to be applicable to all future disputes between
the same parties which may give rise to the applicability
of the same abstract question of law. Res judicata is a rule of
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procedure and cannot change the law applicable to

parties. If a plaintiff
10 sues in the revenue court which
returns the plaint for want of jurisdiction and does not
appeal against the revenue courts order, he cannot again
sue in the civil court on the same cause of action.11 Where a
person could not claim a relief in the earlier suit as
per the law then in force (eg where he could not challenge
a court sale), he is not debarred by res
judicata from claiming that relief subsequently.12 Where the
earlier suit decided that riparian owners of land near a
natural stream had no right to cross the bound and divert
the water to their own lands, this decision does not operate
as a res judicata in a later suit involving the question whether
riparian owners could take water for irrigation without
diminishing the flow. The application
13 of the rule (of res
judicata) by the courts in India should be influenced by no
technical considerations of form, but by a matter of
substance within the limits allowed by law.14 Thus, if there is a mutual account
between A and B, and A sues B and obtains a decree on
the account, a subsequent suit by B against A on the same
account for the same year, though beginning and ending
about a month earlier, will be barred as res judicata.
15

A decision on a question involving facts as well as the

application of law to the facts, would be res judicata. One
cannot dissociate the decision on law from the decision on
the facts.16

A judicial decision binds whether it is right or wrong. An

error of law on fact, committed by a judicial or quasi
judicial body cannot be impeached otherwise than in the
appeal, unless it relates to a matter of jurisdiction. The
finding is binding on the parties even though the
abstracted proportion of law dissociated from the facts,
may not be so. 17
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In a case from Andhra Pradesh, the property originally

belonged to a Mutt granted permanent lease patta in
respect of suit land to predecessors of the appellant. The
Mutt filed suit for declaration of title and possession. The
suit was disposed of by holding that civil court has no
jurisdiction to grant the relief of possession. However, it
was held in the suit that the appellant has perfected his title
as regards tenancy right by adverse possession. The said
decision was allowed to become final. It was held by the
Supreme Court that subsequent proceeding for eviction of
the appellant under Andhra Pradesh (Andhra Area)
Tenancy Act, 1956 was not barred by res
judicata by the earlier decision of the civil court.18

P. Sathasivam, J., speaking for the Supreme Court Bench in

the above case observed as follows:

17. Therefore, the High Court in that instance held two things, (1) that
the court did not have jurisdiction over the matters owing to the special process prescribed
under the Tenancy Act; and (2) the title with respect of tenancy rights was perfected
owing to adverse possession. These two rulings are not in conflict with each other, and are equally
binding. The jurisdiction of the High Court was ousted only to a limited extent, i.e. with respect
to the eviction of the tenants and possession of the property, as the procedure for that was
provided under the Act. But the court continued to have jurisdiction with respect to the
determination of the title of the property.
18. The appellants seem to have misunderstood the import of the High Court
decision while relying on it for the purposes of res judicata. The court, in
no uncertain terms, held that the title of ownership belongs to the present respondents,
but the present appellants had the title with respect of tenancy rights. This decision was
perfected by non-appeal and is binding on the parties. Thus, the present appellants are not the
owners of the property, but tenauts on conditions prescribed under the permanent lease patta dated
11-03-1931 mentioned above. Thus, we hold that the decision of the High Court in 1973 would not bar
any proceedings under the Tenancy Act as the issue decided by the court in that instance was merely
the tenancy title in favour of the appellants, while the present case is eviction of tenants
under section 13 of the Act.19

Where in a suit the issue regarding the genuineness of

agreement and whether there was any interpolation was
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settled and finally determined and the party gave an

undertaking that she will not raise the issue of
interpolation, it was held by the Supreme Court that the
party could not be allowed to raise the same issue again in
a different suit between the same parties.20

In a suit, the plaintiff did not raise the issue of ownership

in relation to the entire property but the defendant Wakf
raised the plea that the entire property belonged to Wakf
and the suit was liable to be dismissed. The suit was,
however, decreed holding that the plaintiffs were title
holders. The matter was taken upto the Supreme Court,
where also the appeal was argued on the basis of the
defendants plea that the property belonged to Wakf. The
decree was finally upheld by the Supreme Court,
subsequent suit filed by Wakf seeking a declaration that the
decree-holders had no night over the disputed property, it
was held by the Supreme Court that another suit based on
claims coutrary to the earlier plea would be barred by res
judicata. 21

(c) Matter directly and

substantially in issueinstances. Following are the instances
where bar of res judicata was attracted as the matter
directly and substantially in issue were found common to
both previous and subsequent suit:-

(i) Merely because the petitioner was not a party to

those petitions, which were filed for objecting the
refinery project, it could not be said that the same
has no bearing on the present proceedings. Those
proceedings were also filed by the petitioners in the
public interest for the protection of environment
and ecology. Thus, all these proceedings were filed
for the same interest and claim. Therefore, when the
subject matter of the earlier proceedings and the
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present proceedings is one and when the petitioners

in both proceedings were having the same status,
then the earlier decision will create the general
principle of constructive res judicata.
22

(ii) On the same principle, an issue will be res judicata if

the judgment of an appellate court shows that the
issue was treated as material and was decided,
although the decree passed merely affirms the
decree of the lower court which did not deal with
the issue.23
(iii) Likewise, when parties go to trial on a particular
issue treating it as material and invites the court to
give a decision thereon, that will be res judicata.24
(iv) Thus, where the issue, that the respondent has
acquired the status of an occupant on the abolition
of the inam under the Hyderabad Abolition of
Inams and Cash Grants Act was adjudicated upon
in a former application, the appellant-landlord
cannot re-agitate the same issue in a subsequent
application under the Tenancy Act.25
(v) A decree for the recovery of loan by sale of
mortgaged property was passed by the Bombay High
Court overruling the judgment-debtors objection as
to local jurisdiction. The question whether or not
the appellant was a licensee of the flat or a tenant
thereof was directly and substantially in issue
between the parties in the previous suit. The finding
that he was not a tenant but had only the status of a
licensee operates as res judicata between the parties.
The appellant having failed in his suit for
declaration of his alleged status of a tenant brought
in the court of small causes, cannot be permitted to
re-agitate the same question in these proceedings.26
(vi) In a case the earlier court recorded a finding that the
larger joint family had disrupted and five brothers
had separated from each other. The finding was
necessitated by reason of specific contentions raised
by an appellant before that court. The finding
becomes res judicata in a subsequent suit in which a
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declaration is sought that the larger joint Hindu

family still existed and in which the appellants
sought partition of a share in such larger joint
Hindu family.27
(vii) Where the issue of excess land under FWA
(Framework Agreement) was directly and
substantially in issue in the previous public interest
litigation and the finding recorded therein had
reached finality; the matter could not be reopened
by filing another public interest litigation due to bar
of res judicata.28
(viii) It cannot be held to operate as res judicata
between parties, only in respect of portion of suit
property, which alone was subject-matter of dispute
in earlier suit. The principle of res judicata under s
11 is attracted where issues directly and substantially
involved between the previous and subsequent suit
are same. It may be that in previous suit only a part
of property was involved, while in the subsequent
suit the whole matter is the subject matter.29
(ix) An earlier suit filed by the plaintiff for declaration of
his ownership in the suit property on the basis of
sale deed and claiming that the defendant was a
tenant in the said property. The suit was dismissed
negating the claim of the plaintiff and it was held in
that suit that both parties were joint owners entitled
to half share each. It was held by the Uttarakhand
High Court that the said finding would operate as
res judicata in the subsequent suit claiming similar
relief.30

(d) Matter not directly and

substantially in issueinstances. In the following cases, the
bar of res judicata did not apply as matters directly and
substantially in issue in the decided suit and the subsequent
suit were found different:
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(i) The decision in the previous suit confined to a

question of substitution of receptacles by
administrator. The question in the subsequent case
was whether beneficial enjoyment attached to the
religious duties assigned to sevaks are separable, or
an integral part of religion. It was held that the
earlier case does not operate as res judicata in a
subsequent case.31
(ii) The previous suit was for injunction, wherein plea
of benami was taken as the defence. The main
question involved in that suit was injunction and the
plea of benami was only incidental. The subsequent
suit was instituted for partition, wherein the
defendant was not a party to the earlier suit for
injunction. It was held that plea of benami taken by
the defendant in subsequent suit is not barred by res
judicata.32
(iii) The order was not set aside in appeal, etc. It was
held that judgment-debtor cannot later agitate the
question of jurisdiction before the Bihar courts
(where execution proceedings against the mortgaged
property were being pursued).33
(iv) However, a mere expression of opinion on a
question not in issue cannot operate as res
judicata.34
(v) In an earlier suit by the lessor, it was alleged by him
that the lease had determined. He withdrew that
suit. He then sued for recovery of Khas possession
of the premises, alleging (in the second suit) that
lease had been determined by time. It was held that
the first suit did not operate as res judicata
because:
(i) there was no decision on merits; and
(ii) the second suit was based on a new cause of act ion,
alleged to have arisen in the meantime.35
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(vi) Where the earlier proceeding did not decide the

question of heirship, that question is not res
judicata.36

(vii) Eviction order was passed against the tenant who

appealed, but died during the pendency of the
appeal. It was not an issue in appeal, as to whether
any permission was required to be taken from the
competent authority under the Rent Control Act,
for executing the decree against the legal
representatives of the tenant. A decision in appeal
that execution cannot proceed till the necessary
permission is obtained, did not operate as res
judicata in an objection petition to the application
for execution.37
(viii) In a Gujarat case, the first suit was to challenge
the legality and validity of search and seizure carried
on in the premises of a licensed dealer. The second
suit was intended to challenge a show-cause notice
for cancellation of the licence. It was held that
finding in one cannot be res judicata in the other.38
(ix) With reference to the Madhya Pradesh Land
Revenue Code 1959, s 258, the decision of the
revenue court on title in mutation proceedings does
not operate as res judicata in probate proceedings.
In the probate proceedings, sole question involved
is as to the proof of the Will. 39

(x) Where a person was sued on the basis that he was

either a tenant or a licensee and the court held that
he was only a licensee, it was held that he cannot
later sue claiming to be a tenant.40
(xi) Where, the land in the subsequent suit is distinctly
different from the point of view of location of lands
and khasra nos from the subject matters of earlier
suit, by no stretch of imagination it can be said that
the subsequent dispute is hit by principle of res
judicata in view of the decision rendered in earlier
civil suit which has attained finality.41
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(e) Matter Collaterally or

Incidentally in Issue. Every suit must involve a matter directly
and substantially in issue. It may also involve a matter
collaterally or incidentally in issue. To constitute a matter
res judicata, it is necessary that it must be in issue directly
and substantially in the suit under trial, and that it
must have been in issue also directly and substantially, as
distinguished from collaterally or incidentally, in a former
suit. The question whether a person should be admitted as
a legal representative of the deceased plaintiff to
continue the suit is a question collateral to the suit.42 The
principles of res judicata would
be applicable only when an issue arose directly and
substantially in an earlier suit, a finding regarding an
incident or collateral question reached for the purpose of
arriving at the final decision would not constitute res
judicata. 43

Where in a suit for declaration of title and recovery of

possession on the basis of gift deed executed by the
plaintiff and the defendant denied the parentage and
claimed himself to be the adopted son of the testator, it
was held by the Supreme Court that any finding by
Revenue Authorities with regard to mutation of revenue
records or on the question of adoption would not operate
as res judicata. Findings on incidental or
collateral question to arrive at such a decision would not be
a bar in the subsequent suit. 44

A finding on an issue must be distinguished from an

option as to the effect of a piece of evidence. In a suit for
rent by A against B, the court held that a rent note in
which certain land was not included, was genuine. B then
sued A for a declaration that the land was infact part of his
holding. In this suit, the question of the genuineness of the
rent note is not res judicata, for the finding in the first suit is
not the decision of an issue but an opinion as to the effect
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of a piece of evidence.45

All matters involved in a suit may be directly and

substantially in issue, but they cannot all be collaterally or
incidentally in issue. A collateral or incidental issue is one
that is ancillary to a direct and substantive issue; the former
is an auxiliary issue, the latter the principal issue. The
expression collaterally or incidentally in issue implies that
there is another matter which is directly and substantially in
issue. The first-respondent filed this suit for declaration
that the suit property known as Badi Takia is
a wakf. In respect of this property, there are several rounds
of litigation. The first of them was for declaration,
possession and damages against the respondents on the
ground that they were owners of the whole property, and
the respondent had without the consent of the
plaintiff put their Tazia on the land. The suit was decreed in
favour of the plaintiffs. The appellate court reversed the
decree of the trial court, and held the property to be wakf
property which was reversed by the High Court. An appeal
to the Supreme Court was also dismissed upholding the
judgement of the High Court in second appeal.

In another round of litigation commenced by the

respondent, a suit for declaration was filed praying that the
appellants here have no right over the property, the trial
court dismisses the suit. The appeal filed by the respondent
was allowed by the High Court, holding that the
decision in the earlier suit was not res judicata. It was held by
the Supreme Court in the appeal that in the earlier
judgement of the Supreme Court, the only question was
whether the plot on which Tazia was placed was wakf property, and on that
question no satisfactory proof was placed by the
defendants before the court and therefore, the Supreme
Court agreed with the view of the High Court. When those
findings had become final and not disturbed by the
Supreme Court, the District Judge in another round of
litigation, was justified in holding that the proceedings were
barred by res judicata.
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46

(f) Distinction between Matter

Directly and Substantially in Issue and Matter Collaterally or
Incidentally in Issue.The leading case on the subject is
Barrs v. Jackson. Every suit must
47 involve a matter or
matters in respect of which relief is claimed by the plaintiff.
It may also involve matters which, though there is no relief
claimed in respect of them, are brought in issue for the
purpose of deciding matters in respect of which relief is
claimed.

Matter directly and

substantially in issue Every matter in respect of which relief is
claimed in a suit is necessarily a matter directly and
substantially in issue.

ILLUSTRATIONS

(i) A sues B for the rent due for the year 1907. The
defence is that no rent is due. Here, the claim for
rent is the matter in respect of which relief is
claimed. This, therefore, is a matter directly and
substantially in issue.
(ii) A sues B :
(a) for a declaration of title to certain lands; and
(b) for the rent of those lands. B denies As title to the
lands, and contends that no rent is due. Here, there
are two matters in respect of which relief is claimed,
namely: (1) the matter of title; and (2) the
claim for rent. Both these are matters directly and
substantially in issue. But where the former suit was
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for injunction only and was concerned with the

right of possession, a subsequent suit on the
question of title is not barred.48

Matter collaterally or
incidentally in issue A matter in respect of which no relief is
claimed, but which is put in issue for the purpose of
enabling the court to adjudicate on a matter in respect of
which relief is claimed may be directly and substantially in
issue or it may be in issue collaterally and incidentally. It
would be a matter directly and substantially in issue if it
was necessary to decide it in order to adjudicate on the
principal issue and if it was infact decided, and if the
judgment was based upon that decision; otherwise, it
would be a matter collaterally or incidentally in issue. A
matter cannot be directly and substantially in issue if the
judgment would be correct whether the matter exists or
not. 49

Where a suit was filed for a declaration that an alienation

by a widow was not binding on the reversioners, the
finding given therein that the plaintiff was not the nearest
reversioner is not res judicata in a
subsequent suit for possession brought after the death of
the widow as the issue as to relationship was only
incidental in the previous suit. It is not to be assumed that the matters
50

in respect of which issues have been framed are all directly

and substantially in issue, nor is there any special
significance to be attached to the fact that a particular issue
is the first in the list of issues. Which of the matters are
directly in issue and which collaterally or incidentally, must
be determined on the facts of each case. A material test to
be applied is whether the court considers the adjudication
of the issue material and essential for its
decision. 51

If the parties to the earlier suit are not the same as those in
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the subsequent suit and the matters directly in issue in the

subsequent suit were not directly in issue in the earlier suit,
then the observations in the judgment in the earlier suit
have no binding force in the latter case, particularly when
the matter was not argued in the earlier case.52

ILLUSTRATION

A sues B for rent, B pleads abatement of rent

on the ground that the area is less than that entered in the
lease. The court finds that the area is greater than that
shown in the lease. The finding as to the excess area is not
res judicata for it is only ancillary to the direct and
substantial issue whether the area is equal to that shown in
the lease; or, less.53

(g) Examination of Pleadings

and Judgment. Whether a matter was directly and
substantially in issue in a former suit is to be determined by
a reference to the plaint, the written statement, the issues
and the judgment.54 Even if a point
is not properly raised in the plaint, yet if both parties join
issues upon a matter in dispute, the decision will operate as
res judicata.
55 For the application of res judicata under s 11, of
the
Code of Civil Procedure , it is not necessary that the issue in
conflict must be raised in the pleadings. Such conflict may
come up for decision otherwise also, i.e. in view of the
stand taken by parties in the hearing of the suit.56 In the
absence of pleadings, or any finding, it is not open to
the defendants to invoke the rule of res judicata on the ground
that in the earlier suit it was found by the trial court that
they were the tenants of the land and dispute under the
plaintiff. Section 38 (B) of the UP
57 Imposition of Ceiling
on Land Holding Act, 1960, provides that the finding or
decision given before the commencement of this section
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will not operate as a bar for the re-trial of such proceedings

or issue in accordance with the provisions of the Act
as amended from time to time. The appellant has raised a
similar objection before the High Court but, the same was
rejected on the ground that if an earlier judgement is said
to operate as res judicata in the subsequent proceedings,
then all the necessary facts including pleadings of the
earlier litigation must be placed in the subsequent
proceedings. This view was affirmed by the Honble
Supreme Court. The decree may
58 also be referred to, but it
is not enough to refer to the decree without the judgment,
for a decree states merely how a suit is disposed off, and it
is in the judgment that the findings on the issues are
recorded. The judgment is
59 admissible under
s 40 of the Evidence Act . (See O 22, rr
56).

(h) Suits for Rent or other

Recurring Liability. The distinction between a matter directly
and substantially in issue and a matter collaterally
in issue is well-illustrated by suits for rent or for other
recurring liability. These may be divided into three classes,
namely:

(i) Where the first suit is for rent, and the subsequent
suit is for title.
(ii) Where both suits are for rent, or other recurring
liability.
(iii) Where both suits relate to rate of rent or to the area
for which rent is payable.

(i) First suit for rent,

subsequent suit for title. In this class of cases, it is clear that the
subsequent suit being one for title, the question of title is a
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matter directly and substantially in issue in that suit.

Whichever party therefore, raises the plea of res
judicata in that suit must show that the question of title was
also directly and substantially in issue in the former suit,
that is, in the previously decided suit. If the
question of title was in issue in its entirety in the former
suit, it would be a matter that was directly and substantially
in issue in that suit. But, if the issue in the former suit did
not cover the entire question of title, in other words, if
it fell short of going to the very root of the title, and was
confined only to some of the incidents of title, the question
of title would be a matter which was collaterally or
incidentally in issue in the former suit.60 Where the
landlord sued the tenant in ejectment and he pleaded that
he held under a permanent tenure, it was held by the
Supreme Court that his pleas was not barred as res judicata
by reason of a decree obtained by the landlord in a prior
suit, wherein the only issue raised was whether Jummaa
could be assessed under the regulation. Permanency of a
tenure, it was observed, did not imply fixity of rent.61 But,
where in a former suit for eviction, the landlords plea that
the defendant-tenants were liable to be evicted was
rejected on the ground that the defendants had perfected
their title by adverse possession, a similar plea in a
subsequent suit would not be allowed to be raised even if
the subsequent suit is for declaration of title and
possession. The principle is that irrespective of
62 the nature
of the suit if the question of title has gone into the making
of the decree and not incidentally or collaterally, the decree
in the former suit would operate as res judicata.63

In the following illustrations, it is assumed that the other

conditions of res judicata are fulfilled:

ILLUSTRATIONS
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(i) A, claiming to be the chela and heir of a deceased

mohunt sues B for rent of certain lands forming
part of the estate of the mohunt. C claims that he,
and not A, is the chela and heir of the deceased and
that he is entitled to the rent. C is thereupon joined
as a defendant to the suit. The issues raised are:

Whether A or C is the chela and heir of the mohunt?

Whether any and if so what rent is due from B?

The court finds that A is the chela and heir of the mohunt.
It also finds Rs 2,500 due by B for rent, and As claim is
decreed.

Subsequently, C sues A for a declaration that he is the

chela and heir of the mohunt and claims that as such he is
entitled to the whole of the property left by the mohunt. A
contends that the question, who is the chela and heir of the
deceased, is res judicata. Is the question res judicata? The
answer is that it is, for, though the former suit was for rent,
the entire question of title to the property of the deceased
was directly and substantially in issue in that suit
and it was decided against C.64

(ii) A, a Hindu, dies leaving a widow and a brother C. The

widow sues B for rent of certain property forming part of
the estate of her husband. C claims the rent on the ground
that it was the joint property of himself and his
deceased brother and that he became entitled to it by
survivorship. C is thereupon joined as a defendant to the
suit. The issues are:
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Whether the deceased alone received the whole rent of the

property in his life-time, or whether the rent was received
by him jointly with C?

Whether any and what rent is due by B ?

The finding on the first issue is that the deceased alone

received the whole rent in his lifetime. The finding on the
second issue is unnecessary for our present purpose.

Subsequently, C sues the widow for a declaration that he

and his brother were joint, and claimed the said property
by right of survivorship. The question whether the
deceased and C were joint or separate is not res judicata,
for it was not directly and substantially in issue in the
former suit. It was in issue in that suit only collaterally or
incidentally, for it will be seen on referring to the first issue
in that suit that it did not cover the entire question of Cs
title but related merely to the joint or separate receipt of
rent. 65

(ii) Both suits for rent or other recurring

liabilitymaintenance suits. The rules which apply to the
preceding class of cases apply also to this class. Thus,
where A sues B for rent due for a particular period, and the
defence is that A has no title to the land of which the rent
is claimed, then, if a direct issue is raised and
decided on the question of title, the decision will operate as
res judicata in a subsequent suit by A against
B for the rent for a subsequent period either of the same66
or other67 property held under the same title; but, if there is
no direct issue raised on the question of title, and the
finding falls short of going to the very root of the title upon
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which the claim for rent is based, it will not have effect of
res judicata. If the question of title is gone
into in the previous suit as if the right of rent were sought
to be established not for one particular year, but once for
all, it will be said to have been directly and
substantially in issue; but, if the question of title is gone into
in the previous suit as if the right of rent were sought to be
established not once for all, but for one particular year, it will
be said to have been in issue collaterally or incidentally.68 The same
principles apply to other cases of recurring liability such as
malikana, 69

maintenance,70 interest,71 annuity72 etc. Where the

question is whether the decision in a previous litigation
could operate as res judicata in a later suit relating to a
similar claim for subsequent years, the test to be applied is
whether the prior decision was based on a general principle
applicable to later years or whether it proceeded on
considerations peculiar to that year. A subsequent suit
would be barred in the former but not in the latter case. It
would make no difference whether the prior judgment was
on an issue of law or fact. 73

ILLUSTRATIONS

(i) A sues B for rent due for the year 1902. The
defence is that the land is rent-free. An issue is
raised, whether the land is rent-free. The court finds
that the land is rent-free, and As suit is dismissed.
Subsequently, A sues B claiming rent for the year
1904. B again sets up the same defence, namely, that
the land is rent-free. Here, the question of As right
to recover the rent having been directly and
substantially in issue in the previous suit, a suit for
the rent for 1904 is barred as res judicata.74
(ii) A sues B for rent in kind for betel trees for the year
1897-98 alleging that B was liable to pay. B applied
for time to file a written statement which was
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refused. The only issue raised was as to amount of

produce and the suit was decreed. Next year, A
again sued B for rent in kind for 1898-99 and B
pleaded that he was not liable to pay any rent. Here,
the question of Bs liability for all years was not
alleged in the previous suit and was not therefore,
directly and substantially in issue and that suit is not
barred by res judicata.75

It may here be observed that each years rent is in itself a

separate and entire cause of action, and where a suit is
brought for the rent due for a particular year, or a
judgment obtained in that suit, whatever the defence may
have been, would seem only to extend to the subject
matter of the suit, and hence, the landlord is at liberty to
bring another suit for the next years rent and the tenant is
at liberty to set up to that suit, any defence he thinks proper.
The above proposition, however, is subject to this, and
here comes in the doctrine of res judicata, that
neither party is at liberty to re-open in the suit for rent for
the next year, any question that was substantially and
necessarily tried and determined between them in the suit
for rent for the previous year.
76 For, the essence of the doctrine of res judicata is that
where a material issue has
been tried and determined between the same parties in a
proper suit and in competent court as to the status of one
of them in relation to the other or as to a right or title
claimed by either of them against the other, it cannot again
be tried in a new suit against them.77 A competent court
would include by reason of the new explanation viii, a
court of limited jurisdiction provided the issue determined
by that court, though not the subsequent suit, was within
its competence. When the nature of requirement pleaded in
the earlier suit was different from that in the present suit,
the bar of res judicata will not operate.78

Maintenance As regards
maintenance, it is to be noted that a decree for
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maintenance at a particular rate is no bar to a subsequent

suit for maintenance at an enhanced rate on the ground of
altered circumstances, for the rate of maintenance is a
variable quantity changing from time to time according to
the circumstances of the parties affected by the
decree; but, a right to
79 maintenance may be barred by res
judicata. 80

Status In cases where the

question of status liable to change from time to time arises
such question though decided previously does not attract
the principle of res judicata. Thus the question whether a
person is Adhiar as defined by the Assam Adhiars
Protection and Regulation Act can be examined during
each year as it is dependent on many circumstances liable
to alter from time to time.81

(iii) Rate of rent or area for

which rent is payable. In this class of cases also, both suits are
for rent, the first suit being for rent for a particular
period and the second for rent for a subsequent period.
The matter which is pleaded as res judicata is not the
plaintiffs title to the land of which the rent is claimed, but
the rate of rent or the area for which rent is payable. If the
court in the first suit tries and determines the issue, what is
the proper rate of rent, or what is the proper area
for which rent is payable the issue relates not merely to the
rent for a particular period but to the rent payable for the
full term of the lease, and the question as to the rate of rent
or the area, as the case may be, will be res judicata in
subsequent suits for rent for the remaining period of the
lease. 82

(i) Ex parte Decree. Ex

parte decree operates to render the matter decided res
judicata, 83

and the defendants failure to appear will not deprive the

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plaintiff of the full benefit of his decree;84 but in the case

of a suit in which a decree is passed ex parte (see O 9, r 6;
Code of 1882, s 100 ), the only matter that can be directly
and substantially in issue is the matter in respect of which
relief has been claimed by the plaintiff in the plaint. A
matter in respect of which no relief is claimed cannot be
directly and substantially in issue in a suit in which a decree
is passed ex parte though the court may have gone out of
its way and declared the plaintiff to be entitled to relief in
respect of such matter. In a case where an insolvency court
made an ex parte order declaring a mortgage to be void
although no motion to that effect had been made by the
official receiver, the decision could not operate as res
judicata for the matter was never directly and substantially
in issue. In order that an ex
85 parte decree might be res
judicata, it is necessary that the opposite party should have
express notice from the pleadings and the prayer that the
particular issue or matter would be decided.86

A decree was passed ex parte in favour of the husband

under
s 9 of the Hindu Marriage Act
. Later, the wife also filed a petition for restitution and the
husband pleaded res judicata taking the plea in an
amendment application filed after framing all the issues. It
was held that the suit was barred by res judicata
and the fact that the husband should have taken the plea in
a written statement under
s 41, Indian Evidence Act, 1872
, would not come in the way in the case of the decree in
the prior suit produced before the court.87 A party setting
up an ex parte decree as res judicata is not
bound to prove that in the earlier suit, the summons had
been duly served on the defendant.88

A wrong decision on jurisdiction does not becomes res

judicata. 89
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The reason why even an ex parte judgment becomes res judicata is, that such a
judgment is pronounced after examining the evidence
needed to support the factual allegations in the plaint and
after the court is satisfied that the case put forth in the
plaint has been substantiated.

ILLUSTRATION

A sues B to recover Rs 500, being the rent due for the year
1906, at the rate of Rs 2 per sq yard. A does not pray for a
declaration in the suit that the rate of rent is Rs 2 per sq
yard. B does not appear and a decree ex parte is passed
against him for Rs 500. Subsequently, A sues B for rent
due for the year 1907, also, at the same rate. B appears at
the hearing, and contends that the rate is Re 1 per sq
yard. B is not precluded from raising that contention, for
the question of rate was not directly and substantially in
issue between A and B in the former suit, and it cannot
therefore, be res judicata. Even if
the court in the former suit had declared that A was
entitled to rent at the rate of Rs 2 per sq yard, the question
of rate would not be res judicata, for A had not asked for a
declaration in that suit in respect of the rate of rent. As
claim in the former suit was merely for arrears of rent
amounting to Rs 500, and the decree in that suit has not a
greater effect than evidence that Rs 500 was due when the
decree was passed. Had A in the former suit also prayed
for a declaration in respect of the rate of rent as part of the
substantive relief, and had the court then declared that the
rate of rent was Rs 2, the question of rate would have been
res judicata though the decree was passed ex
parte; for it would then have been a matter directly and
substantially in issue.90

A suit to set aside an ex parte decree on the ground that it was

obtained by fraud may be barred by res judicata if an
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application to set it aside on the same ground has been

dismissed under O 9, r 13.91

An ex parte decree was passed in a former suit against K

during the pendency of the subsequent suit between the
purchaser from K and the plaintiff. The matter was directly
and substantially the same in both the suits. In spite of
service of summons K did not contest the suit. It was held
by the Supreme Court that the ex
parte decree passed against him could be taken as final
decision on hearing and as such it would operate as res
judicata in the subsequent suit.92 Explaining the
conditions to be satisfied for operation of the principle of
res judicata, Tarun Chatterjee, J., speaking
for the Bench in the above case, observed as follows:

We have carefully examined the provisions under

section 11 of the CPC . After a careful reading of the provisions under
section 11 of the CPC , it is discernible that in order to constitute res
judicata, the following conditions must be satisfied
(i) There must be two suitsone former suit and the other subsequent suit;
(ii) The Court which decided the former suit must be competent to try the
subsequent suit;
(iii) The matter directly and substantially is issue must be the same either act
ually or constructively in both the suits;
(iv) The matter directly and substantially in issue is the subsequent suit must
have been heard and finally decided by the court in the former suit;
(v) The parties to the suits or the parties under whom they or any of them
claim must be the same in both the suits;
(vi) The parties in both the suits must have litigated under the same title.
93

(j) Suit for Eviction.Where, the suit for eviction was filed
by the landlord on the ground that the premises were
required for starting business by plaintiffs son, the
plaintiffs son became advocate and the plea for
requirement of premises for starting business was
withdrawn, the second suit for eviction on the ground that
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the premises were required for starting office of plaintiffs

advocate son is not barred by res
judicata.94

The basic principle of res judicata is that the cause of action

for the second suit being merged in the first suit, it does
not survive anymore. Thus, in a case, the earlier suit filed
under s 11 (2) of the Kerala Building
(Lease and Rent Control) Act, 1965 on the ground of
arrears of rent was dismissed with a finding that there was
no relationship of landlord and tenant and no rent was
paid. The said finding was upheld in appeal. It was held by
a Full Bench of the Kerala High Court that the
finding is the earlier suit will operate as res judicata in subsequent
suit under s 11 (2) of the Act in view of s 15 of the said
Act. 95

Explaining the provisions of the Kerala Act of 1965, J.B.

Koshy, J. (as he then was), observed as follows:

In this case, earlier in R.C.P. No. 41 of 1989 even though it was found that the rent
control petitioner had title to the property there was no landlord-tenant relationship with the
counter petitioner and there is no obligation to pay rent and petition for arrears of rent was
dismissed. The above was confirmed by the appellate authority R.C.A. No. 36 of 1991 rightly
or wrongly. No revision application was filed and the above became final. In view of Section 15, we
only hold that since, in the earlier proceedings under section 11(2), it was held
that there is no landlord-tenant relationship and no rent was paid, subsequent petition under
section 11(2) is barred. It is true that in an earlier small cause suit rent deed was
accepted by the revision petitioner. Effect of the same has to be decided by the civil court. All
these matters can be agitated in the civil court as final adjudication of the dispute has to be
done by the civil court and not with standing the earlier findings regarding title to the property
and landlord-tenant relationship and arrears of rent. All the matters can be re-agitated in the
civil court. Therefore, without prejudice to the right of the parties to approach the civil court,
we set aside the order of eviction passed under section 11(2) as it is hit by the
principles of res judicata adopted in section 15 of the Kerala Buildings
(Lease and Rent Control) Act.96
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(k) Suspension of Rent. If the

landlords suit for rent for a particular period has been
dismissed on the ground that the premises are let for one
rent and that he has dispossessed the tenant of part of the
tenure; then if the landlord sues again for rent for a
subsequent period, the tenant claiming a suspension of rent
must again prove that he has been kept out of possession
during the period of the subsequent suit. This is because
the onus of proving eviction is on the tenant, and the
subject matter of the two suits is different.97

(l) Election. Where in

relation to reserved constituency, the election to the office
of Pradhan of the Panchayat was challanged by way of
election petition on the ground that the candidate did not
belong to the reserved category, the said election petition
was dismissed and no revision petition was filed resulting
into the attaining of the finality of the order of election
tribunal. The re-agitation of the same issue that the
petitioner was not entitled to contest the election in the
constituency reserved for the schedule caste, before district
magistrate, under s 95
(1)(g)(iii-a) Uttar Pradesh Panchayati Raj Act (26 of
1947) was found not permissible. 98

(m) Suit under

Section 77, Registration Act ,
and Res Judicata. If a suit under s 77 of the Indian
Registration Act, 1908 to enforce registration of a sale deed
is infructious, the purchaser is not debarred from suing for
specific performance of the contract of sale; but, when a
99

party refuses to admit execution on the ground that the

document has been materially altered and the court finds in
a suit under
s 77 of the Registration Act
that the document has been materially altered, the finding
operates as res judicata in a subsequent suit between the
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parties.100

(n) Divorce Petition and Res

Judicata. Where, in the earlier petition under
Hindu Marriage Act, 1955 , the finding was recorded by the
trial court that the averments made in para no
4(b) of the written statement filed by the wife did not
constitute cruelty and in the absence of filing appeal the
said finding had attained finality, the subsequent petition
for divorce filed by the husband on the ground that
the imputations made by the wife in her written statement
in earlier petition was itself an act of cruelty, was found
barred by principle of res judicata.101

In a divorce case, the husband sought divorce on the

ground that the wife deserted him. Where as wife led
evidence that the husband the kept a woman and she left
her matrimonial home because of ill-treatment by husband.
There was a finding by the trial Court in an earlier petition
filed by husband for judicial separation that wife was
forced to leave and the husband himself deserted her. It
was held by the Chhattisgarh High Court that the earlier
finding would operate as res judicata.102

Where the ground of cruelty available at the time of earlier

petition for divorce under
s 13 (1)(ia) of the Hindu
Marriage Act , 1956 was not raised and no explanation
was afforded for not raising it earlier, it was held that the
subsequent divorce petition on the said ground would be
barred by principles of constructive res
judicata.103

(o) Decree for Restitution of

Conjugal Rights and Res Judicata. A sues B, his wife, for
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restitution of rights. Restitution is granted, and B goes and

lives with A (that is to say, the decree is satisfied). B again
leaves A, and A again sues B for the same relief. The suit
is not barred as res judicata.104 The
distinction between this and the case of an injunction is
that while in a suit for injunction the defendant is forever
restrained from doing the acts complained of, the wife
cannot be directed in a suit for restitution of conjugal
rights to live with her husband for the rest of her life, for
many things may occur entitling her to leave him e.g., gross
cruelty. On the other hand, where two suits are filed one
after the other, one for restitution of conjugal rights and
the other for judicial separation, even though the two suits
and reliefs claimed therein are of a different nature, a
finding in the former suit, if not challenged in appeal, may
constitute res judicata in the
second suit. 105

(p) Custom. A mere

negative finding that a custom is not proved will not
operate as res judicata, for one man may prove more than
another.106

(q) Decree for Possession

Conditional on Payment. Where in a suit by the heirs of a
Mahomeddan against his widow in possession of his estate
in lieu of her dower, a decree is passed against her that they
should have possession of their shares of the estate upon
payment of a proportionate part of the dower debt within
six months, and that upon failure to pay their suit should
be dismissed, and the plaintiffs fail to pay within six
months, the decree is no bar to a subsequent suit for
immediate possession by the same plaintiffs against the
widow on the ground that the dower debt had in the
meantime been satisfied out of the income of the estate in
the hands of the widow.107 A right to get
possession of land at the date when the suit to recover it is
instituted is a wholly different thing, a wholly different res
from the right to recover it at some future time and
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possibly under wholly altered circumstances.108 So, a

consent decree between a usufructuary mortgagee and his
mortgagor-tenant will not operate as res
judicata in a subsequent suit by the latter to redeem the
mortgage.109

(r) Compensation for Land

Acquisition. The courts while determining the amount of
compensation for acquisition of land would be bound to
take into consideration only the materials brought on
records. However, factors which would be relevant for
determining the amount of compensation would vary from
case to case and no hard and fast rule can be laid down
therefor. The principle of res
judicata will, therefore, have no application in the fact of the
present matter.110

In a case of acquisition of land and grant of its

compensation, the High Court issued directions by way of
mandamus, the land acquisition officer while passing award
took into consideration, said directions of High Court and
awarded 12 percent additional compensation at market
value. The said order never came to be questioned and,
thus, attained finality. The reference court in reference by
some of the land owners, or for that matter, the High
Court exercising its appellate jurisdiction could not
have dealt with the said question, as the principle of res
judicata fully applies. Furthermore, the writ of mandamus is
required to be obeyed unless judgment is overruled or
legislation by way of validating statute is brought into
force. 111

Where on the question whether the claimants were entitled

to receive entire compensation or whether it was the right
of state government to receive compensation amount,
there was no finding on the reference made to District
Judge by the three claimants, which had attained finality,
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the bar of res judicata was

not attracted.112

(s) Suit for Injunction. It

cannot be contended that the remedy of injunction is an
equitable relief and in equity, the doctrine of res
judicata cannot be extended to a decree of a court of limited
pecuniary jurisdiction. It is settled law that in a suit for
injunction when title is in issue for the purpose of granting
injunction, the issue, directly and substantially, arises in that
suit between the parties. When the same issue is put in
issue in a later suit based on title between the same parties
or their privies in a subsequent suit the decree in the
injunction suit equally operates as res
judicata.113

Where, the earlier suit filed by appellant was withdrawn

with liberty to file fresh suit and the earlier suit for
injunction filed by respondent was dismissed on the
ground that it was not a proper remedy, the fresh suit filed
by appellant on the same cause of act ion is not
barred by res judicata.114 Where, the
earlier suit for mandatory injunction was filed for removal
of hut in the suit property and the finding of perfection of
title of the defendant by adverse possession made therein
attained finality, the said finding of title in the earlier suit
would operate as res judicata in the subsequent suit for
declaration of title and recovery of possession of the same
property between the same parties as matter directly and
substantially in issue in both suits were same.115

In a case where a dispute arose about succession and

management of Gaddi of Math, the plaintiff filed a suit for
permanent injunction on the basis of his entitlement to
succeed to the Gaddi. The matter was taken to the
Supreme Court where the judgment of the High Court was
reversed and the dismissal of the suit recorded by the two
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lower courts was upheld. However, while disposing of the

case, the Supreme Court observed that the plaintiff may
file suit for possession, if he is so advised. When the matter
reached the Supreme Court again, it was held that the
observation of the Supreme Court in the earlier round of
litigation would not prevent the court from dismissing the
suit as barred by res judicata. The plaintiffs claim on the
basis of his legal entitlement was rejected by the Supreme
Court in earlier suit. Once the issue of entitlement stood
determined the same would operate as res
judicata. 116

In a suit for permanent injunction against interference with

possession, the trial court held that the plaintiff was in
possession and granted a decree of permanent injunction.
In a separate suit filed by the applicant for declaration of
title and recovery of possession, it was held by the
Supreme Court that the decree of permanent injunction
does not bar a suit for declaration of title and recovery of
possession. It is one thing to say that some one is in
possession of the suit land and it is quite another to say
that he has a right to possess.117 The Apex Court
quoted a passage from Corpus Juris Secundum (Vol. 50,
para 735, p. 229) where a similar aspect in regard to
findings on possession and incidental findings on title were
dealt with. It is stated:

Where title to property is the basis of the right of possession, a decision on the question of
possession is res judicata on the question of title to the extent that adjudication of title was
essential to the judgment; but where the question of the right to possession was the only issue
actually or necessarily involved, the judgment is not conclusive on the question of ownership or
title.

A suit was filed by a person claiming to be in-charge of the

affairs of a Gurudwara that he was the Mohtmim of the
said Gurudwara and praying for a decree of permanent
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injunction. Another suit was filed by the Managing

Committee of the said Gurudwara for declaration that the
plaintiff in the connected suit was not Mohtmim of
Gurudwara. A decree of permanent injunction was granted
in the first suit in favour of the plaintiff restraining
the Managing Committee from interfering with the
plaintiffs possession. The decree attained finality. A second
appeal filed by the Vice-President of the Managing
Committee not claiming any intest in his individual
capacity, was held by Supreme Court to be barred by res
judicata. Explaining the status of the parties in
118 the earlier
and subsequent suit, S.B. Siha, J., speaking for the Bench in
the above case, observed as follows:

The judgment and decree passed in the suit filed by Sant Hari Singh might not have been
binding upon the appellant here in had he claimed any right or interest over the said property in
his individual capacity and not as a member of the Managing Committee. Indisputably, the Managing
Committee did not file any Second Appeal against the judgment and decree passed against it. The
said judgment and decree, therefore, attained finality.119

In a case under the Jammu and Kashmir

Civil Procedure Code , where the earlier suit based on
agreement to sell, was for permanent injunction to restrain
the defendant to sell the property to someone else whereas
the subsequent suit accrued when despite presentation of
Hundies demand of money was refused, it was held that
the subsequent suit was not barred under O 2, r 2 or
s 11 of the CPC .120

(t) Subject Matter of Suits may

be Different. As the test of res judicata
is the matter directly and substantially in issue, it follows
that the subject matter of the second suit may be entirely
different. Unless the relief claimed in the former suit is the
same or alike as
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the relief claimed in the subsequent suit, the subject

matters in the two litigations are different. Thus, if A
1

claims certain property as the adopted son of X,

and the defendant denies the adoption, a finding in A's
favour on the issue as to adoption will be binding on the
defendant as res judicata in a subsequent suit by A against
the same defendant to recover another property claimed
under the same title.2 It is not open
to the defendant to contend that the properties claimed in
the two suits being different, the decision on the question
of A's adoption in the first suit cannot operate as res
judicata in the second. On the same principle, where in a
suit brought by A against B for possession of one of the
two properties comprised in a sale-deed passed by B to A,
B contends that the deed is fictitious, and the court finds
that the deed is fictitious, the finding that the sale-deed is
invalid will operate as res
judicata in a subsequent suit by A against B to recover the other
property under the same sale-deed.3 Similarly, in Illustration 1 cited under
class (ii) of rent-suits, it is no answer to the plea of res
judicata that the subject matters of the two suits are
different. The reason is that the matter directly and
substantially in issue in both the suits is the same, namely,
whether the particular land of which the rent is claimed is
rent-free, and the decision thereof on that issue in the first
suit operates as res judicata in the subsequent suit; but, the
decision cannot apply to other lands unless they form part
of the same tenure. 4 A decision on a question of title in a
proceeding under the
Land Acquisition Act, 1894 ,
will operate as res judicata in a subsequent suit between the
parties relating to other properties covered by the same
title, as the test of res judicata is identity of title and not of
property. Likewise, a decision that certain
5 properties were
ancestral would operate as res judicata in a subsequent suit
between the parties relating to other properties held under
the same title. Difference in the reliefs claimed in the
6 two
suits does not render res judicata inapplicable. In a suit for
restitution of conjugal rights, the court held that the wife
had been turned out of the home and the husband sued for
divorce on grounds of desertion by the wife. The trial of
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the issue whether the wife had deserted the husband was
barred.7

From the same fundamental principle that the matter

directly and substantially in issue, and not the subject
matter, constitutes the test of res judicata, it also
follows that where a matter directly and substantially in
issue in a suit is not the same as that in a previously
decided suit, the trial of that matter will not be barred, as
res judicata though the subject matter of the two suits may
be the same.8 An application
by a landlord to eject a tenant under the provisions of the
West Bengal Rent Control Act, 1950, on the ground that
he required the premises for his own use is not barred as
res judicata by an order dismissing a previous application
because though the subject matter is the same; the matter
for decision whether the landlord required the house
for his own use at the time of the act ion is different.9

Canteen workers of the Indian Oil Corporation filed a

petition seeking the relief of abolition of Contract Labour
System in operation at the canteen run by the corporation
and for absorption of the canteen workers as employees.
The said petition was rejected. Thereafter, a second
petition was filed by the canteen workers seeking the
making of a reference under
s 10 of the Industrial Disputes Act
to decide whether the contract between the principal
employer and the canteen contractor was show, nominal
and were camouflage. It was held by the Supreme Court
that the second petition is not barred either by res
judicata or the principle of estoppel. Explaining the point, R.V. Raveendran,
10

J., speaking for the Bench, observed as follows:

10. The assumption that there is an absolute bar on inconsistent pleas being taken by a party,
is also not sound. What is impermissible is taking of an inconsistent plea by way of amendment
thereby denying the other side, the benefit of an admission contained is the earlier pleading.
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Mutually repugnant and contradictory pleas, destructive of each other may not be permitted to
be urged simultaneously by a plaintiff/petitioner. But when there is no inconsistency in the facts
alleged, a party is not prohibited from taking alternative pleas available in law. Similarly, on
the same facts, different or alternative reliefs can also be claimed. When the case of the workers
is that the contract was shaw and nominal, they could seek a relief that they be declared as the
direct employees of the principal employer; and if that contention failed and it is found that the
contract was valid, then they can seek issue a direction to the Central Government to consider
their representation for abolition of contract labour. Similarly where the workers coutend that
the contract between principal employer and the contractor was show and merely a camouflage to
deny them the benefits of labour laws, and if their prayer for relief under CLRA Act is
rejected, they can then seek relief under the
ID Act . The contention of IOC that on account of the dismissal of the
first petition, the second petition for a different relief was barred either
by principle of res judicata or by principle of estoppel is liable to be rejected.11

The earlier suit for eviction was filed on the ground that
sub-tenants had been illegally inducted by the tenant. The
suit was dismissed. After that, the West Bengal Premises
Act, 1956, was enacted and another suit was filed for
eviction, on the ground inter alia that s 13 (1)(a) of the Act
had been violated. It was held that the earlier
dismissal did not operate as res judicata.
12

The earlier suit was to claim title to certain items of

property which were the subject matter of a deed. The suit
did not involve questions of coparcenership. present suit
for partition was based on coparcenary. It was held
that the earlier suit did not operate as res judicata.
13

The plaintiff in a suit was the auction purchaser of the

premises. He filed a suit for injunction praying for
restraining the Electricity Board from enforcing the
demand of dues of the previous owner. The suit was
dismissed and second suit was filed for declaration that the
notice threatening disconnection for non-payment of dues
of previous owner was illegal. It was held by the Supreme
Court that the matter that was directly and substantially in
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issue in the second suit was completely different from the

matter that was directly and substantially in issue in the
first suit. The reliefs claimed were also different, as
the first suit was for a permanent injunction and the
second suit was for a declaration and consequential relief.
Therefore, the second suit was not barred by res
judicata. 14

Where both the matter directly and substantially in issue

and the subject matter are the same in both the suits, the
matter in issue will be res judicata
not because of the identity of the subject matter, but
because of the identity of the matter directly and
substantially in issue.15 Where the matter directly and
substantially in issue and the subject matter are both
different in the two suits, the matter in issue is not res
judicata not because the subject matters are different but
because the matters directly and substantially in issue in the
two suits are different;16 but, before a
decision given in a previous suit with reference to a
particular subject matter could be held to operate as res
judicata in a subsequent suit relating to a different subject
matter, it must be shown that the issue raised in the
subsequent suit was directly and substantially in issue in the
previous suit. Where it was not put in issue, no bar of res
judicata can arise, merely on the basis of the reasoning
and observations in the previous judgment. 17

(B) Matter which Might

and Ought to have been Made Ground of Attack or
Defence. Even otherwise, it is settled law that in every
proceeding the whole of the claim which a party is entitled
to make should be made and where a party omits to sue in
respect of any portion of the claim he cannot afterwards
sue for the portion so omitted. Explanation 4 to
s 11 of the Code of Civil Procedure
also provides that any matter which might or ought to have
been made a ground of defence or attack in a former
proceeding will be deemed to have been a matter directly
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and subsequently in issue in that proceeding.

Therefore, clearly the claim now made was barred on
principle of res judicata or principles analogous
thereto.18

(a) Matter Constructively in Issue: Explanation IV. A matter

which might and ought to have been made a ground of
attack or defence is a matter which is constructively in
issue. In the cases cited in the note under
(A)Actually in Issue: Explanation III, the matters were
actually in issue for they were act ually alleged by one party
and denied by the other. It often happens, however, that a
matter which might and ought to have been made a ground
of attack by the plaintiff to substantiate the relief claimed
by him in the suit is not alleged by him as a ground of
attack; and also that a matter which might and ought to
have been made a ground of defence by the defendant is
not set up as a ground of defence. A matter, which
might and ought to have been made a ground of attack or
defence in the former suit, but which has not been alleged
as a ground of attack or defence, will be deemed to have
been a matter directly and substantially in issue in such suit
(explanation IV); that is to say, though it has not been
actually in issue directly and substantially, it will be regarded
as having been constructively in
issue directly and substantially. This section draws no
distinction between the claim that was actually made in a suit
and the claim that might and ought to have been made. If the
parties had an opportunity of controverting it, that is the
same thing as if the matter had been act ually controverted
and decided. 19

The principle and philosophy behind explanation-IV is to

prevent the abuse of process of the court, through re-
agitation of the settled issues.20

A conjoint reading of s 11 and explanation IV shows that a

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plea which might and ought to have been taken in the

earlier suit, shall be deemed to have been taken and
decided against the person raising the plea in the
subsequent suit. In a particular case the High Court in the
writ petition filed by the petitioner challenging the
validity of the notice of eviction given to him by
government under the Land Encroachment Act, gave
liberty to the government to establish its title in civil court
which order was also confirmed by the division bench in
the writ appeal filed by the government. Although before
the date of the disposal of the writ appeal the Andhra
Pradesh Land Grabbing (Prohibition) Act,
1982 had come into force, the government did not seek
liberty from the court to approach the special court under
that Act, it cannot be held that on the principle of might
and ought, government was barred from approaching the
special court. It also cannot be held that the proceeding
before the special court was barred by the principle of res
judicata, when the government had accordingly filed the
civil suit before civil court for declaration of its title and
recovery of possession of land in dispute and by operation
of law, under sub-s (8) of s 8 of the
Act it stood transferred to the special court and the
government also invoked the jurisdiction of the special
court under ss 7 and 8 of the Act by filing a petition against
the petitioner. Thus, the principles of constructive res
judicata, on the ground that the fact of enforcement of the
Act on 6 September 1982 was not brought to the notice of
the division bench of the High Court at the time of
disposal of the writ appeal, would not be available to the
petitioner. Further, as a statutory right was created in
favour of the state under the Act, to eradicate a public
mischief, it cannot be precluded from having recourse to
the provisions of the Act by operation of the
principle of might and ought in explanation IV of
s 11 of the Code of Civil Procedure
, when its title or interest had not been finally determined
by the High Court. 21

In the first round of litigation when the High Court had

gone into the question of mala fide, though the minister was
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impleaded as a party, it had remitted the matter for disposal

on merits. Obviously the words might and ought used in
s 11 of Code of Civil Procedure
stand in the way and therefore, it operates as res
judicata for raising the same question in the present writ
petition. The High Court could not have gone into that
question, much less giving direction to the appellate
authority, namely the Excise and Taxation Commissioner
to go into that question.22 What ought to
be pleaded and argued by a party by challenging an order,
is the discretion of the party but all points available would
be deemed to have been considered by the court while
disposing off such matters.23

The company against whom the money suits claiming mesne

profits for wrongful occupation of premises by the
company were filed, did not challenge the jurisdiction of
the court trying the suit, either at the time of filing the suit
by the original plaintiff in his capacity as executor under a
will executed by the owner of the premises, or at the time
of substitution of his personal representatives.
Hence, the plea by the company in the winding up
proceedings for the first time, as to the incompetency of
the personal representatives to continue the proceeding on
the ground that the premises were transferred pendente lite,
would squarely come within the mischief of the principle
of constructive res judicata. A plea
deliberately given up in the earlier suit must not be allowed
to be raised in the subsequent proceedings. It would not
24

be just and proper to deny relief to the appellant,

which is otherwise due on the ground that earlier it had
only assailed the question of eligibility to tax. It is correct
that the plea now taken could have been advanced earlier
as well, but the fact this was not done should not be a
ground to deny the relief which was otherwise due to the
appellant. The technical plea of constructive res judicata
should not stand in the way of appellant in a case of the
present nature. 25
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As suit was filed for eviction from premises let out for
commercial purposes, the grounds of eviction was the bona
fide need of the landlord. It was dismissed. Second suit for
eviction would have been competent if a new ground had
later arisen for eviction.26

The principle of res judicata comes into play when by

judgment and order a decision of a particular issue is
implicit in it, that is, it must be deemed to have been
necessarily decided by implication, even than the principles
of res judicata on that issue is directly
applicable. When any matter which might and ought to
have been made a ground of defence or attack in a former
proceeding but was not so made, then such a matter in the
eye of law, to avoid multiplicity of litigation and to bring
finality in it, is deemed to have been constructively in issue
and, therefore, is taken as decided. Thus, in a case
relating to right to hereditary office, the issue of adoption
was already decided by a competent civil court between the
same parties, the Sub-Divisional Officer could not decide
that issue and without giving any decision thereon could
not have allowed the claim. Therefore, the principle
of res judicata would be applicable to the proceeding before
the Sub-Divisional Officer.27

If an earlier judgment has to operate as res judicata in the

subsequent proceedings, then all the necessary facts
including the headings of the earlier litigation must be
placed on record in the subsequent proceedings. However,
where in the subsequent suit, the trial Judge in extenso had
dealt with the pleadings of the parties in the earlier suit, it
was held that there was no question of non-compliance of
the mandatory and basic requirement for the application of
the principle of res judicata.28

The plea of res judicata applies, except in special cases,

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not only to points on which the court was actually required

by the parties to form an opinion and to pronounce
judgment, but to every point which properly belonged to
the subject of the litigation, and which the parties
exercising reasonable diligence might have brought
forward at the time.29 The principle
underlying explanation IV is that res judicata is not confined
to issues which the court is act ually asked to decide but
covers issues or facts which are so clearly part of the
subject matter of the litigation and so, clearly could have
been raised that it would be an abuse of the process of the
court to allow a new proceeding to be started in respect of
them. Where the plea
30 which is sought to be raised in the
subsequent litigation was not available to the party at the
time of the previous litigation, it cannot be constructively
res judicata;31 but, where a
plea was available at the time of the suit but was not
availed of, the same plea would not be allowed to be taken
at a later stage against the execution of the decree passed in
that suit. If the plea of ss 2(25)
32 and 125(3) of the Land
Reforms Act has not been raised in a suit of redemption, it
operates as constructive res judicata on the principle of
might and ought. If it is taken and rejected, it operates as
res judicata and the same cannot be raised in execution.
Even if it is left open, in equity, justice and good
conscience, it must not be extended to the mortgage.33

Earlier award (based on compromise) and decree in terms

of award were based on surrender by the tenant himself.
The tenant cannot thereafter say that it was an
eviction decree,34 in case where ground of attack or
defence which was not available when the earlier
proceeding commenced but arose only during its
pendency.35

Constructive res judicata

There is no question of constructive res
judicata where there is no adjudication in the earlier
proceedings.36 The appellant had applied for a grant of
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mining lease for chromite extraction in the State of Orissa.

The lease was originally granted to Tata Iron and Steel
Company (TISCO) for a period of 20 years in 1953.
TISCO in 1993 applied for a second renewal of lease for
the entire area. The central government approved the
renewal but for a limited period of 10 years. The central
government, on a complaint, reviewed this order and
granted approval for the renewal of lease for TISCO,
reducing the area by half and directed the rest of the area
be made available to other industries. TISCO challenged
this order before the High Court. The other steel
manufacturers, including the appellant, joined the
proceedings by filing cross petitions.

The High Court held that the order of the Central

Government cannot be sustained in law and requires re-
considerations. An expert committee was constituted to
consider the submissions of all the parties. The Central
Government act ed on the report of the committee and
requested the state government to grant renewal of mining
lease in favour of TISCO for a period of 20 years over a
lesser period. Accordingly, the state sliced down the claim
of TISCO for allotment by 50 per cent. The remaining 50
per cent was to be distributed between the other applicants
on pro-rata basis. The appeal to the Supreme Court by
Special Leave, on behalf of TISCO was dismissed. Neither
the appellant nor any of the contesting respondents
challenged the order of the State to the extent it sliced
down their claim for allotment by 50 per cent from the
available area.

During the pendency of the aforesaid SLP, the appellant

filed a writ petition in the High Court, after its
representation to the central government for grant of
mining lease in the entire area was turned down and state
government sliced down the claim of the four parties
covered by the order by 50 per cent. The petition was
rejected on the ground of res
judicata in view of TISCO’s case. The issue before the
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Supreme Court was whether the writ petition filed by the

appellant before the High Court was barred by the res
judicata and whether the said petition was barred by the
principle of constructive res judicata.

It was held that the TISCO’s case did not raise a question
for considering the assessment of the relative needs of the
appellant and the other respondents for chrome ore. Such
an issue was not expressly adjudicated upon and the
findings thereon, cannot be made the subject matter of
fresh proceedings between the parties.37

Where a decree operated as res judicata, its operativeness

does not depend on the correctness of the former
decision.38

Principle of constructive res judicata applies to execution

proceedings. Doctrine of
39 res judicata partakes
of the character of substantive law, though it is usually
regarded as belonging to procedure, and applies to
proceedings under the
Hindu Marriage Act, 1955 . Judgment of a
40

High Court is binding in all proceedings in the same case;

more so, upon a judgment unsuccessfully challenged
before the Supreme Court. 41 The issue involved in two earlier suits
were same as in the instant suit. The party filed three suits
accepting decree in earlier two suits and allowed
opportunity at his hand to be lost to contest by not filing
appeal. It was held that the party was estopped by the
principle of constructive res
judicata to reopen same issue in respect of same property
between the same parties. 42 The courts in an earlier litigation
between the appellant and a partnership firm recorded the
clear finding about disruption of joint Hindu family
resulting in separation of five brothers and carrying on the
family business by them as partners. Subsequent suit was
filed by the appellant in capacity as son of one of the five
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brothers, for a declaration that he alongwith the other

appellant were members of larger joint family and as such,
entitled to the share in the business and properties of the
firm. The Supreme Court held that the finding in the
previous suit sufficiently barred the present suit as the
principles of res judicata were applicable.43

In the earlier suit, issue regarding Maurisadar could not be

raised regarding the land in defendants possession. It was
held that as regards that issue, the earlier decision cannot
be res judicata.
44 But, when the question raised in the suit
could have been raised before revenue authorities in the
earlier proceedings and the revenue authorities had
competence to decide that, the same issue could not be
raised in the subsequent civil suit due to bar of constructive
res judicata.45

Deputationists from the State Government were absorbed

in the Food Corporation of India as Assistant Grade III.
Claiming absorption in the post of Assistant Grade II, they
filed a writ petition which was allowed. Second writ
petition was filed by them claiming grant of advance
increment in accordance with the Regulation. It was held
by the Supreme Court that the plea of the bar of res judicata
and/or O II, r 2 of the code was not tenable, as the said
claim could not have been made in the earlier writ petition
when the petitioners were not certain as to the grade in
which they would be fitted. Moreover, suice the plea of bar
of res judicata had not been taken before the High Court, it
could not be raised for the first before the Supreme
Court. 46

Where a petition was made prior to maturity of insurance

policy claiming directions to the LIC to make a statement
on oath under
s 226 (3)(vi) of the Income Tax
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Act, 1961 , petition was dismissed after issuing

direction to the LIC. The ITO had not withdrawn notice
issued to the assignee of policy-holder under
s 226 (3) of the Income Tax Act
, despite the filing of the requisite statement by an LIC
petition for policy payment, together with interest. This
petition against the LIC was dismissed as withdrawn, as a
result of withdrawal of notice by ITO. It was held that
subsequent petition raising the question of LICS liability to
pay interest upon principal amount was not barred by res
judicata. 47

A person who in earlier proceedings (between the same

parties) takes the plea that he is not a tenant of the suit
land but was cultivating it only as a member of the owners
family cannot in a later suit take the plea that he is a
permanent tenant. Constructive res judicata bars such a
plea.48

In execution of a money decree passed against a member

of a scheduled tribe, his property was sold without prior
permission of the competent authority, as required by
Orissa Regulation of 1956. Judgment-debtor raised no
objection about the want of such permission, either in the
suit or in the execution. It was held that he cannot
subsequently raise such a plea, which was barred by
constructive res judicata, as the basic issue was validity of the
sale.49

In a Calcutta case, proceedings were taken under s 8 (i),

West Bengal Land Reforms Act, 1955. The holder of the
pre-emption alleged that the pre-empted land was
non-agricultural. Issue was not raised in earlier proceedings
under s 24 of WB Non-Agricultural Tenancy Act, 1949. It
was held that it could not be raised in proceedings under s
8 (i). The party whose representation
or conduct led to earlier judgment is precluded from
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pleading anything contrary to his representation or

conductnot so much because of his earlier representation
or conduct, as because of the judgment which precludes
the court from adjudicating any issue to be raised by such
contrary proceedings.50

Appointment of a receiver depends on the circumstances

existing at the time when the matter falls for consideration.
The fact that on a particular date, such appointment was
refused does not mean that the refusal operates as res
judicata even when the circumstances have undergone
change.51

Where there is no adjudication in the earlier proceedings,

there is no res judicata. 52 Without any application for recalling or
setting aside the impugned order or review, the prayer
made in the application under
s 86 (1) of the Representation of the People Act,
1950 cannot be granted. No challenge has
been thrown to the said order. The unsuccessful candidate
is a respondent in the election petition. No appeal has been
filed and has such no dispute with regard to the said order
can be made or entertained at this stage and the contention
of the respondent has become barred by principle of
res judicata. If the court came to the conclusion that
53 the
applicant had not pleaded ingredients of O 38, r 3(2) of the
Code of Civil Procedure , the principle of res judicata do not
come into play. It is well- established that where there is a
dismissal on technical grounds and not on merits,
principles of res judicata do not
apply. The same principle would operate in case of
application of principles of constructive res judicata.54

Where, in an earlier suit, the tenant while invoking the

power of the rent court under s 11, Bombay Rent Control
Act, 1947, did not press the issue of standard rent (which
could have been dealt with under s 11 ), he cannot
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assert the same right again. He is deemed to have waived

his right to such determination. The second assertion is
barred by a res judicata or atleast a principle analogous
to res judicata and estoppel.55

Where a matter has been act ually in issue, it is necessary to

constitute the matter res judicata that it should have been
heard and finally decided; but, where a matter has been
constructively in issue, it could not, from the very nature of
the case, be heard and decided; and it will be deemed to
have been heard and decided against the party omitting to
allege it except when an admission by the defendant
obviates a decision.56 This is in
accordance with the view of the section taken by the High
Courts of Allahabad and Bombay. 57 In Kailash Mondal v. Baroda Sundari
Dasi, Banerjee, J
58 observed that though a matter which
might and ought to have been made a ground of attack or
defence, should be deemed as provided by explanation IV
to have been directly and substantially in issue, yet it could
not be deemed to have been heard and finally decided as
there was nothing in explanation IV to suggest that such
matter should also be deemed to have been heard and
finally decided. This view was followed in a subsequent
case, but it is
59 obviously incorrect, and it was rejected by
the same court in later cases,60 and it has been dissented
from by the High Court of Lahore.61 Moreover, in
one case the judicial committee took exception to the
language in which the observations of Banerjee, J were
couched saying that the language was not so careful as it
might have been.62 The Privy Council case illustrates the
rigidity with which the principle laid down in explanation
IV is to be applied. In that case, it was held that where a
matter which might and ought to have been made a ground
of attack is not raised in the plaint, and an application is
afterwards made to amend the plaint, but it is refused, the
matter will be deemed to have been directly and
substantially in issue in that suit.63
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ILLUSTRATIONS

(i) X, a Hindu, dies leaving a widow. The widow makes

a gift to her brother B, of certain
property belonging to her husband. After the death
of the widow, A, alleging that he and X
were members of a joint family sues B for a declaration that he
is entitled to the property by right of survivorship.
The court finds that A and X were separate, and A's suit is dismissed.
Subsequently, A sues B for the recovery of
the same property, alleging that as the nearest
reversionary heir of X, he became entitled to the property on
the death of the widow, and that the alienation
made by her in favour of B was not binding upon him. The suit is
barred as res judicata. A
might and ought to have set up the title by heirship
as a ground of attack in the former suit. It will
therefore be deemed to have been directly and
substantially in issue in that suit, and it will also be
deemed to have been heard and finally decided
against A.64
(ii) A, a Hindu, dies leaving a widow and a brother, B.
The widow sues B for recovery of certain property
alleging that it was the self-acquired property of her
husband, and that a will alleged to have been
executed by her husband and relied on by B is a
forgery. B alleges that the property was joint family
property, and that on the death of A he became entitled thereto
by right of survivorship, but he does not claim any
title to the property under will. The court finds that
the property was the self-acquired property of A,
and decrees the widows claim. Subsequently, B sues
the widow to recover the same property from her,
now claiming the same as a devisee under A's will.
The suit is barred as res judicata. B might and ought
to have set up the claim under the will as a ground
of defence in the former suit. When a plaintiff
claims an estate, and the defendant, being in
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possession, resists that claim, he is bound to resist it

upon all the grounds that it is possible for him,
according to his knowledge then to bring forward.65
(iii) A sues B to recover certain property belonging to
the estate of C, alleging that his father had been
adopted by C's brother, D, to whom the property descended on Cs
death. The suit is dismissed on the ground that the
adoption is not proved. A then sues B to recover
the same property claiming it as C's bandhu. The suit
is barred as res judicata. A
ought to have claimed the property in the first suit
in the alternative as C's bandhu. 66

(iv) A, claiming as the next reversioner of a deceased

Hindu, sues his widow for a declaration that a gift
by her to D of property inherited by her from her
husband was void. D was joined as a party
defendant, and so also, G who claimed to be a
reversioner nearer than A. As to G, A alleged that
he was in collusion with the widow and the donee,
D. The defence was that G was the nearest
reversioner and the only person entitled to dispute
the gift. In this state of pleadings, the widow died.
On the death of the widow, the question of
collusion became comparatively unimportant; for if
G was the nearest heir, A could get no title
to the property. A then applied for leave to amend
the plaint by setting forth the death of the widow
and claiming that he had become entitled to
institute a suit for possession and by setting up a
family custom that he was equal in degree with G.
The application was rejected on the ground that it
was an attempt to introduce a new case. The
question then arose whether it was worthwhile
contesting the suit. A's counsel
admitted that, apart from custom, A was one degree more remote
than G, and that if A could not make out
the case of a family custom, the suit must fail. The
trial judge thereupon dismissed the suit with costs,
but gave liberty to A to bring a fresh suit for possession.
Subsequently, A sued D and G for possession of
one-half of the property, founding his title on family
custom. The Privy Council held that the second suit
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was barred, for A might and ought to have alleged

the family custom in the first suit, it being clearly a
ground of attack in that suit. As the first suit was
dismissed and not withdrawn under O 23, the trial judge had no
power to grant leave to bring a fresh suit.67
(v) A sues B, C, D and E as joint tenants for rent on
the basis of a pottah. The property in respect of
which the rent is claimed consists of 25 kittas of
land. None of the defendants appeared in the suit,
and a decree was passed against them ex parte. Subsequently,
A sued B, C, D and E for rent for a subsequent
period. B appeared and contended that he did not
hold the land jointly with C, D and E, and that he
was liable only for one-fourth rent of the whole
area. B is precluded from setting up the case of
separate tenancy, because he might and ought to
have set up that case in the previous suit. It is
immaterial that the decree in the previous suit was
passed ex parte. 68

(vi) In April 1921, a consent order was made referring

to arbitration, three suits relating to syndicates of
two, six, and 10 firms each. In a chamber summons
for extension of time for making the award, some of
the defendants objected that the syndicate of 10 was
an illegal association as it was not registered under
s 4 of the Companies Act, 1956
, although it was composed of more than 20
persons. These defendants, therefore, objected that
the reference was invalid; but, in August 1927, a
consent order was made superseding the reference
of April 1921 and referring to arbitration the same
three suits along with two other suits also. In this
consent order, all the parties agreed that the issue as
to the legality of the syndicate should be treated as
res judicata. Nevertheless, a suit was filed by one of
the parties to declare the reference to arbitration as
invalid on the ground that the syndicate was illegal.
It was held that the suit was barred by res judicata as
the question was not raised when the consent order
of April 1921 was taken and that on this point, the
order was not superseded but given effect to by the
order of August 1927. It was also held that the
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number of persons composing a syndicate is a

mixed question of law and fact which could be the
subject of a valid compromise.69
(vii) A, a Mohameddan heir, sued to recover his share
of inheritance from the widow of the deceased who
was in possession of her husbands estate in lieu of
dower. A's suit was decreed subject to the payment
of Rs 35,223 less the profits of the property in the
possession of the widow from the date of the
decree to the date of delivery of possession. More
than 20 years later A's legal
representative sued the representatives of the widow
alleging that the amount of the decree had been
satisfied out of the usufruct. The widows
representatives urged that interest should be added
to the decretal amount which was the balance of the
dower debt. The Privy Council held that the claim
to interest might and ought to have been made a
ground of defence in the first suit and that it was
barred by res judicata in the second suit. 70

(viii) One PK filed a suit for a declaration that certain

lands belonged exclusively to his father and that he
became entitled to them as his heir and prayed for
an injunction restraining the defendants from
interfering with his possession. The court negatived
the exclusive title set up by the plaintiff. Thereafter,
PK filed a second suit claiming that he had acquired
an exclusive title to the property by adverse
possession. This was a plea available to him when
he filed the previous suit and it was held that it was
constructively res judicata.71 First suit was
filed on the basis that the suit property belonged to
T, plaintiffs father and, on his death, plaintiff
succeeded to it. The subsequent suit was filed on
the basis that T was a mortgagee in possession, and
the mortgage not having been redeemed within
time, the plaintiffs, as descendants of T, became full
owners. It was held that subsequent suit was barred
by res judicata.72
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(b) Test Rules. The question

whether a matter might have been made a ground of attack
or defence in the former suit rarely presents any difficulty.
Whether it ought to have been made a ground of attack or
defence depends on the facts in each case. As a general
rule, every ground of attack with reference to the title sued
on must be pleaded if necessary in the alternative; for the
73

plaintiff will not be allowed to make out a fresh case

afterwards. Thus, if a plaintiff sues for possession on the
ground of ownership, and his suit is dismissed, he cannot
afterwards claim possession as mortgagee, for it was an
alternative ground of attack which he did not raise in the
first suit. If the matter
74 raised as a defence would have
defeated, varied, or in any way affected the decree in the
previous suit, it ought to have been raised.75 Conversely, if
the decree in the previous suit is inconsistent with a
defence which ought to have been raised, that defence
must be deemed to have been raised and finally decided,
and is barred by res judicata.76 Thus, if the
plaintiff sues on a contract and obtains a decree, the
defendant cannot afterwards sue for rescission of the
contract on the ground that it did not fully represent the
agreement between the parties.77 Similarly, if
it is found that in a former suit for eviction by the landlord,
the defendant-tenant had failed to raise the plea that the
landlord before filing the suit ought to have terminated the
contractual tenancy which he might and ought to have
raised, he cannot be allowed to raise that plea in a
subsequent suit for eviction. 78 If a matter could have been set up as a
ground of attack or defence in the former suit, and if its
introduction into that suit was necessary for a complete
and final decision of the right claimed by the plaintiff
therein, it will be deemed to be a matter which ought to
have been made a ground of attack or defence in that suit,
unless the matters in that and the subsequent suit are so
dissimilar that their union might lead to confusion. Thus,
79

in Illus (i), the title by heirship could

have been made a ground of attack in the alternative in the
first suit; it was necessary to do so for the complete and
final disposal of all questions as to A's right to the
property, and it was not forbidden by any rule of pleading;
and, further, the question in both suits being the
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same, namely, whether A was entitled to the property or B, the title by survivorship
and the title by heirship could not be said to be so
dissimilar that their union might lead to confusion. It may
appear at first sight that the two matters are dissimilar, for
the title by survivorship and the title by heirship have to be
supported by different evidence; but, the test of evidence
which was relied on in some old cases is not a satisfactory test, and though
80

it was advanced in argument in two cases before the

judicial committee of the Privy Council, no notice was
taken of it in the judgments. 81 The reason is when a plaintiff sets up
alternative grounds of attack, or when a defendant sets up
alternative grounds of defence, the evidence in support of
such alternative grounds would in most cases be different;
but, it has been said where the evidence in support of one
ground is such as might be destructive of the other
ground, the two grounds need not be set up in the same
suit. The reason given is that the test of determining
whether both the grounds ought to have been set up in the
same suit is afforded by provision of O 2, r 1 and the
provisions of that rule as to the framing of suits are only to
be applied as far as practicable.82

It is clear that it cannot be said of any matter that it ought

to have been set up as a ground of attack in a former suit,
if its introduction would have been incongruous to or
destructive of the matter of that suit.83 Thus, a person claiming property on the
allegation that it is wakf property and that he is the manager
thereof is not bound to claim the same property in the
same suit alternatively in his own right in the event of its
being held that the property was not wakf property. As
observed:

Having asserted that the...property was wakf property,

[he] could not have consistently claimed the same property
as [his] personal property except possibly in an
alternative form. [He was], however, not under an
obligation to adopt the latter course.
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The mere fact that he could have claimed the property in

the alternative as his own property is no
ground for saying that he ought to have done so. And so a suit to recover possession of
84

properties on a claim that they belonged personally to the

plaintiff is not barred by reason of a decision in a previous
suit in which they were claimed as belonging to a Tarwad of
which he was a member;85 and likewise,
where a person sued for partition claiming that he was the
legitimate son of the deceased and the suit was dismissed, a
subsequent suit for partition on the ground that he was the
illegitimate son of the deceased is not barred as the two
claims are inconsistent with each other. A suit for
86

accounts on the footing that the plaintiff was a sub-partner

of the defendant is not barred under Explanation IV by a
previous suit wherein the claim was made on the footing of
partnership. Again, Explanation IV does not
87 apply, unless
the parties are litigating under the same title. Thus, if A
sues B for a declaration that he is the owner of a certain
property, he is not bound to plead in the alternative that if
he is not the owner he is a permanent tenant. If his suit in
the capacity of owner is dismissed and B files a suit against
him for possession, he may plead in the second suit that he
is a permanent tenant and defend the suit in that
capacity. Where a person
88 who is joined as a defendant in
a mortgage suit as being interested in the equity of
redemption is entitled to the property by a paramount title,
but his title is not disputed in the plaint, he is not
bound to set it up as a ground of defence in that suit;89 but,
if there is an allegation in the plaint derogatory to the
title of the prior mortgagee and the latter consents to have
his title decided, then he will be bound by the decision and
it would be res judicata. 90

Where a party acquires a title during the pendency of a suit

and fails to put it forth in that suit, he is not barred from
raising it in a subsequent suit.91 It has also
been held that the principle of constructive res judicata has no
application to reliefs which are the discretion of the court.
If there is no express decision with reference thereto,
Explanation IV does not bar a fresh suit thereof.92
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The decisions bearing on this branch of the subject are

numerous. An examination of these decisions leads to the
following four rules:

Rule I : Where right claimed in both the

suits same. Where the right claimed in both suits is the same, the subsequent suit
will be barred as res judicata, though the right in the
subsequent suit is sought to be established by a title different
from that in the first suit. That would also be so
where there is identity of title though the property in the
subsequent proceeding is different. The dismissal
93

of a plaintiffs suit for the recovery of land based on an

alleged lease is no bar to a subsequent suit for the recovery
of the same land on the strength of his general title, the
reason given being that the legal
relation put forth in the subsequent suit is different from that
in the former suit (see illus 6).

In the following illustrations it is assumed that the other

conditions of res judicata are fulfilled.

ILLUSTRATIONS

(i) Illustrations (i), (iii) and (iv) above,

are cases under this rule.1
(ii) A Hindu, H dies leaving a widow W, and a son-in-
law S, the husband of a predeceased daughter D. W
sues S, as the heir of her husband H, to recover
certain property, alleged that it forms part of the
estate of H. The defence is that H had made a gift
of the property to his daughter D, and that on Ds
death, S. as Ds husband, became entitled to the
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property as Ds heir. W alleges that the deed of gift

relied upon by S. is a forgery. The court finds that
the deed of gift is genuine, and the suit is dismissed.
W then sues S to recover the same property, alleging
that as it has been found that the property belonged
to D, she is entitled to the property as the heir of
her daughter D. The suit is barred as res judicata.
Here, the right claimed in both the suits is the same,
namely, the right to the property in question. In the
first suit, it was claimed by W as her husbands heir.
In the second suit it is sought to be established by
her by a different title, namely, as her daughters
heir. W might and ought to have claimed in the
alternative as her daughters heir in the former suit.
Having failed to do so, her title, as her daughters
heir, will be deemed to have been directly and
substantially in issue in the former suit, and it will
also be deemed to have been heard and finally
decided against her in that suit,2 but the Madras case
falls within the exception rather than
the rule.3

(iii) A lends Rs 50,000 to a Hindu widow on a mortgage

to her husbands property. The widow then
surrenders the property to B, the reversionary heir
of her husband, on B agreeing to pay all her debts.
A sues B and the widow to recover Rs 50,000 by
sale of the mortgaged property. A also asks for a
personal decree against the widow, but he does not
ask for a personal decree against B. B is joined as a
defendant on the ground that the mortgaged
property formed part of the property transferred by
the widow to him. The court finds that the
mortgage is not binding upon the husbands estate
and the suit against B is accordingly dismissed. As
against the widow, a personal decree is passed for
the amount of the loan. A realises Rs 5,000 only
from the widow, and after her death he sues B for
the balance of the money due under the decree (that
is to say A asks for a personal decree against B for
the balance), alleging that B was personally liable
under the agreement with the widow to pay her
debts. The suit is barred as res judicata, for A might
and ought to have alleged in the former suit that if
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the mortgage was not binding on the estate B was at

all events personally liable to pay the debt in
consequence of the agreement which he (B) had
entered into with the widow.4

Note Suppose that in the

above illustration, A had applied in the first suit for
amendment of the plaint by adding a claim for relief
against B personally, but the application was refused; in
such a case, it has been held that the subsequent suit would
not be barred.5 But these
decisions, it is submitted, are not correct.6

(iv) (iv) A in 1896 makes a gift of her property to B who

mortgages it to C. C sues for sale on his mortgage
and purchases the property himself in 1918. A who
is still in possession sues C in August 1918 for a
declaration of her title on the ground that the deed
of gift was null and void. In the course of the suit, A
applies for leave to amend her plaint and to plead an
alternative case that even if the deed of gift is valid,
Cs title is extinguished by her adverse possession for
12 years. The application is refused and the suit
dismissed. A continues in possession and in August
1930, C files a suit to recover possession from A. A
again pleads adverse possession. As plea is a valid
defence, for although she is debarred from pleading
that she had acquired a title by adverse possession in
August 1918, it is still open to her to prove that she
has acquired title by adverse possession in August
1930. 7

(v) (v) A, alleging that he is the kitlima adopted son of

B, claims the whole estate of B, and sues for the
administration of Bs estate. A fails to prove the
adoption and the suit is dismissed. A afterwards
sues for administration of the same estate claiming
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one-half of the estate as the apatitha adopted son of

B. The suit is barred as res judicata.8
(vi) (vi) A sues B to recover certain lands from him,
alleging that B held the lands under a lease and that
the lease had expired. The lease is not proved, and
the suit is dismissed. Subsequently, A sues B to
recover the same land on the strength of his general
title. The suit is not barred as res judicata.9
(vii) (vii) A filed a suit for a declaration that he was
entitled to certain lands as heir to X. The suit was
dismissed. Then he sued for an injunction alleging
that he had been in possession for over the
statutory period and had thereby acquired title by
adverse possession. This title was available to him
even at the time of the previous suit. The later suit
is barred by res judicata.10 For other cases
under this Rule.11
(viii) Rule II : Where ground of attack in a subsequent
suit could be a ground for defence in the former
suit.If a matter which forms a ground of attack in
the subsequent suit could have been alleged as a
ground of defence in the former suit, but was
omitted to be so alleged in that suit, it will be
deemed to have been directly and substantially in
issue in that suit within the meaning of Explanation
IV.
(ix) This rule contemplates cases in which the plaintiff
in the subsequent suit was defendant in the former
suit. Thus, a claim which might have been pleaded
by way of set-off or counter-claim to a previous suit, will not be
12 13

barred.

ILLUSTRATIONS
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(i) Illustration (ii) and (v)14 under the

heading Matter constructively in issue: Explanation
IV, above, belongs to this class.
(ii) A and B, two Hindu brothers, divide the whole of
the joint family property except a garden. A dies
leaving a widow who sells As half share in the
garden to C. After the death of the widow, C sues B
for partition of the garden, and an ex parte decree is
passed under which C enters into possession of a
moiety of the garden. B then sues C to recover
possession of the moiety sold by As widow to C,
alleging that the sale was made by the widow
without legal necessity, and that on the death of the
widow, he became entitled to the moiety as the
reversionary heir of A. The suit is barred as res
judicata, because B might and ought to have raised
the question of the validity of the sale as a ground
of defence in the former suit.15
(iii) A mortgagee, who holds the mortgaged property
also as lessee from the mortgagor, sues the
mortgagor to recover Rs 3,000 being the amount of
the mortgage-debt. At the date of the suit the
mortgagee owes Rs 4,000 to the mortgagor for rent
under the lease, and this sum the mortgagor claims
to set-off against the mortgage-debt under an
express agreement in that behalf. The agreement is
not proved, and a decree is passed against the
mortgagor for Rs 3,000. The property is sold in
execution of the decree, and it is purchased by the
mortgagee with the leave of the court. The
mortgagor then sues the mortgagee to have sale set
aside, and for a declaration that the mortgage-debt
is extinguished, now claiming that a general account
may be taken as between him and the mortgagee,
and that in taking such account the rent due to him
may be set-off against the mortgage-debt. The suit is
barred, for the mortgagor might and ought to have
set up that claim in the alternative in the former
suit.16

(iv) A, who owns a share in a village, mortgages it to B,

and sells it subsequently to C. C sues B for
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redemption of the mortgage, and obtains a decree.

Subsequently, B sues C for pre-emption of the share
sold by A to C, alleging that he is a co-sharer in the
village and entitled as such to pre-emption. The suit
is not barred. The right of pre-emption not being a
vested and ascertained right when B has an answer
to the claim for redemption in that suit.17 For other
cases under this rule, see foot-note.18

Rule III : Where the right claimed in a

subsequent suit is different and based on a different title. Where the
right claimed in the subsequent suit is different form that
in the former suit, and it is claimed under a different
form than in the former suit, and it is claimed under a
different title, the subsequent suit is not barred as res
judicata.

ILLUSTRATIONS

(i) A sues B for possession of certain lands alleged to

have come to his share on a partition of joint family
property with B. The defence is that the family
property has not yet been divided, and the suit is
dismissed on a finding to that effect. A subsequent
suit by A against B for partition of the family
property is not barred.19
(ii) A, alleging that B held certain lands from him under
a lease and that the lease had expired, sues B to
recover Rs 500 for use and occupation of the land
by B after expiration of the lease. The defence is
that the lease is a subsisting lease, and the suit is
dismissed on a finding to that effect. A subsequent
suit by A to recover Rs 500 as rent payable under
the lease is not barred.20
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[Note the peculiar character of the cases cited abovein

Illust (i), A suing on the basis of a partition, the court
finding that there was no partition, and A subsequently
suing for a partition; in Illust (ii), A suing on the basis that
the lease has expired, the court finding that the
lease has not expired, and A subsequently suing on the
basis that the lease is a subsisting lease. (For other cases of
this class, see foot-note.]21

(iii) A sues B in 1869 to recover a talukdari estate from

him. The suit is dismissed on a finding that the
estate had become the absolute property of B under
a conditional sale made by A to B in 1853. A then
sues B in 1875 for redemption of the same property,
alleging that he had mortgaged the property as
absolute owner thereof to B in 1854. The suit is not
barred. It was held:

It may be difficult to reconcile the position of [B] as

mortgagee in 1854 with his position as absolute owner in
1853...But if it be established that [A] was
mortgagor in 1854, why should he be barred of his right
[of redemption] merely because at an earlier date [ie in
1853] he may have had no right to the property at all?22

(iv) A sues B for redemption of a mortgage alleged to

have been executed in 1856 of 50 cawnies of land. B
denies the genuineness of the mortgage, and alleges
that 14 out of the 50 cawnies were mortgaged to
him in 1853, and that the 14 and the remaining 36
cawnies were sold to him by A in 1855. The
mortgage is not proved, and the suit is dismissed. A
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then sues B to redeem the 14 cawnies on the

footing of the mortgage of 1853. The suit is not
barred.23
(v) A, alleging that he mortgaged certain lands to B
with possession, sues B for redemption, the suit
being brought by him as mortgagor. The mortgage
is not proved, and the suit is dismissed. A then sues
B for possession of the same lands claiming them as
absolute owner thereof. The suit is not barred.24

No question of res judicata can also arise where the issue in

the former suit was that the plaintiff had withdrawn the
licence and was therefore, entitled to possession and the
issue in the subsequent suit was whether the defendant was
a licencee or a sub-tenant.25 In order to
attract the bar under s 11 of the code not only the parties
in both suits must be the same, or the parties under whom
they or any of them claim must be the same, but also they
must litigate under the same title and the matter in issue in
both the suits must be directly and substantially the same.
Thus, where the issue decided in the former suit was
different and the property involved in both the suits are
different, it was held by the Patna High Court that of the
latter suit is not barred by res judicata.26

Four suits were filed by plaintiffs who were common in all

the suits, but the defendants, were not common. The
properties in the four suits were also situated in different
villages. The decision in one of the suits attained finality.
Thus, it was held by the Supreme Court that the decision in
the appeals relating to other two suits would not affect the
decision in the relevant suit and would not operate as res
judicata. For other cases
27 under this rule, see foot-note.28

Rule IV : Where the right claimed in a

subsequent suit would, if included in the prior suit, render it
multifarious. It cannot be said of a relief which if claimed in
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the first suit would have made that suit bad for
multifariousness that it ought to have been made a ground
of attack in that suit.29

(c) Suits on Mortgage. If a

mortgagee, in a suit for redemption against him by the
mortgagor, omits to obtain an order for sale of the mortgaged
property on failure of payment by the mortgagor of the
mortgage-debt within the time allowed for redemption, he
will be precluded from bringing a separate suit for sale
in default of payment by the mortgagor within that time.
The mortgagee might and ought to have claimed the right
of sale in the suit for redemption brought against him.30 So
also, if the mortgagee omits to ask for a personal decree
against the mortgagor, he cannot do so in a subsequent suit
on the same mortgage;31 but if he
applies for a personal remedy and his claim is not
adjudicated upon, he may renew the claim at a later stage
of the same proceeding. 32

In a case from Oudh33 a puisne mortgagee sued to redeem a

prior mortgagee and made the prior mortgagees sub-
mortgagee a party. The prior mortgagee pleaded that the
sub-mortgage was fictitious, and a decree for redemption
was passed on payment of the amount due on the
mortgage to the mortgagee alone. The sub-mortgagee then
sued the prior mortgagee for a personal decree under
s 68 of the Transfer of Property Act
. The court held that the issue as to the genuineness of the
sub-mortgage was not res judicata as the sub-mortgagees
presence in the prior suit was not compulsory and there
was no necessity for the sub-mortgagee as a person
interested in the mortgage security under O 34, r 1 and in
Narayan v. Ganoji, 34 it was said that in a redemption suit of
land which has been sub-mortaged the judgment directs an
account of what is due to the original mortgagee and then
of what is due to the sub-mortgagee. Where a sub-
mortgagee was impleaded as defendant in a suit on the
mortgage and his claim adjudicated embodied in the
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decree, a subsequent suit by a transferee from him to

enforce the sub-mortgage was held to be barred.35

In a rent note between mortgagor and mortgagee, it was

agreed that the mortgagor would occupy the mortgaged
house on rent of Rs 200/- per month. The mortgagees suit
for eviction was decided on the above basis. Later, when
the mortgagor sued for redemption, the question arose
whether the mortgagees claim for interest at Rs 200/- per
month was legally enforceable.

It was held that the matter was not res judicata. The only
matter directly in issue in the earlier suit was the quantum
of rent. Interest and its legality were not the issue.36 If a
puisne mortgagee sues for sale on his mortgage and makes
the prior mortgagee a party without claiming any relief
against him, the prior mortgagee is in the position of a
holder by title paramount outside the controversy.37 He
need not appear in the suit and his rights under the prior
mortgage are not affected; but, if the puisne mortgagee
suing on his mortgage raises any controversy as to the prior
mortgagee and seeks to sell the property unencumbered,
the prior mortgage, if he omits to plead his prior mortgage,
will be debarred from doing so in a subsequent suit.38 On
the same principle, it was held that if a person is joined
in a redemption suit as an heir and legal representative of a
deceased mortgagee, he need not claim part of the property
by title independent of and paramount to the mortgagee.39

The Madras High Court also has held that a person

claiming title to the mortgaged property independently of
the mortgage has been joined as a party, he is not bound to
set up in such a suit his permanent title, since although to
join him as a party is not obnoxious to the rule as to
joinder of parties, he is not a necessary party.40 If a puisne
mortgagee sues to redeem a mesne mortgagee and
the latter omits to set up a prior mortgage which he has
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redeemed and to which he is subrogated, the rights of

subrogation will be lost by res judicata; and if the mesne
subsequently sues the puisne mortgagee claiming to be
sub-mortgagee of the prior mortgagee, his suit will be
barred. Where in a suit
41 by a previous mortgagee, a
subsequent mortgagee was impleaded as a defendant and
the decree declared the amount due on his mortgage and
directed sale in default of payment, it was held that a suit
by him to enforce that mortgage was not barred.42

If a mortgagee has successive mortgages of the same

property from the same person, there is a conflict of
decisions whether he can obtain an order for sale on one
alone. The Bombay High Court has held that if a
mortgagee sues on a subsequent mortgage without
reference to prior mortgage he is barred by explanation IV
as he might and ought to have included the prior mortgage
in his suit. Similarly, the Madras High Court has
43 held that
a suit on a prior mortgage bars a suit on a subsequent
mortgage of the same property; but, it was held that a mortgagee might
44

sue on a later mortgage reserving his rights on a prior

mortgage. In Madras,
45 there was a conflict of decisions at
one time which was set at rest by a decision of the Full
Bench in Subramania v. Balasubramania
46 which adopted the above view. In doing so,
the Full Bench followed the decision of the Allahabad
High Court in Sundar Singh v. Bholu
47 which held that the two mortgagees
constituted different causes of action. This view is correct
and has been generally followed;48 but, as it is a hardship on the
mortgagor that his property should be sold twice, it is now
provided by s 32 of the Transfer of Property Amendment
Act 20 of 1929, that a mortgagee having several mortgages
of the same property from the same person must sell all or
none. 49

In suits for redemption, foreclosure or sale, there ought to

be a complete and final settlement of all accounts between
the mortgagor and the mortgagee right up to the time of
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actual redemption, foreclosure or sale, as the case may

be. A mortgagor,
50 therefore, who has obtained a decree
for redemption against a mortgagee in possession and
paid what was due according to the decree, and obtained
possession, cannot afterwards sue for profits realised by
the mortgagee for a period prior to the delivery of
possession. Such profits might and ought to have been
taken into account at the time of passing the decree.51
Similarly, where a mortgagor deposits the mortgage money
in Court under
s 83 of the Transfer of Property Act
and obtains a decree for possession from a usufructuary
mortgagee under s 62, he cannot subsequently sue for
profits realized by the mortgagee from the date of the
deposit to the date of the delivery of possession.52 Where
A, a zuri peshdar, was
dispossessed in execution of a decree obtained by B
representing the mortgagor, and on appeal by A, the
decree was reversed and thereafter, B sued A for
redemption of the zuri pesh and obtained a
decree, it was held that a suit by A for mesne profits for the period during which
he had been kept out of possession before redemption was
not barred. Unless it is established that the
53 mortgagees
right to redeem is extinguished, it cannot operate as a res
judicata so as to prevent the court under s 11 of the Code
from trying the second redemption suit. Successive suit
54

for redemption of mortgage can be filed till the right of

redemption is not extinguished. If the mortgage fails to
establish that the old decree extinguished the right to
redeem, there is no ground for saying that the old decree
operates as res judicata and the
courts are prevented from trying the second suit.55 In a
proceedings for pre-emption, a finding was made by the
court that a subsequent sale of land was a sham
transaction. No appeal was preferred by the purchaser
under the subsequent transaction. Appeal was made against
the suit finding by the first purchaser.

The appeal was allowed and held that the suit finding did
not operate as res judicata in a writ petition by a subsequent
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purchaser.56

In a case from Chhotanagpur region of Bihar (now

Jharkhand) a suit, for declaration of title and restoration of
possession was filed by the recorded tenant. The said suit
ultimately ended in dismissal by the High Court on the
ground oral usufructuary mortage was invalid under the
Transfer of Property Act, 1882
, and it was held that the defendants are not holding under
mortgage. It was held by the Supreme Court that since the
plaintiff did not raise the plea of the mortgage being barred
by section 46 of the Chhotanagpur Tenancy Act, 1908,
the said plea cannot be raised in a subsequent application
for restoration of possession under s 71 A of the Act.57
P.P. Naolekar, J., speaking for the Bench in the above case
observed as follows:

The suit of the appellants predecessors for possession on the basis of oral mortgage was
eulminated into a decision by the High Court in second appeal (AFAD No. 1909/1948)
where a clear-cut finding was recorded that there could not have been an oral usufructuary mortgage
of immovable property for value of more than Rs. 100/- under
section 59 of the Transfer of Property Act , the same being bad in law. Thus,
the predecessors of the respondents could not be treated to be in
possession under the mortgage. Under the CNT Act as it stood in the year 1922,
the transfer could have been challenged as it contravenes section 46 of the CNT Act, being a
contract or agreement of transfer. That plea having not been taken by the appellants
predecessors, the appellaus and his predecessors were not entitled to raise the question of
transfer being invalid under section 46 of the CNT Act as it stood in 1922 on the principle of
constructive res judicata.58

(d) Suits for Partition. If in a

previous suit for partition some of the properties are left
out by mistake or with the consent of the parties, a
subsequent suit for partition of those properties is not
barred; but it will be barred if they were excluded by the
court from partition after a contest between the parties on
the ground that they are incapable of partition.59 It will also
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be barred if they are included in the suit but the decree

failed to grant any relief with respect to them;60 but, where
the decree in the partition suit had declared that the
plaintiff was entitled to a share in the family properties but
one of the items was, by mistake, omitted in the schedule
of properties to be divided, it was held that a
second suit for partition thereof was not barred by res
judicata. 61

Plaintiff sued for partition of certain properties. It was

objected that the matter had been in issue in an earlier suit;
but it was found that the earlier suit was based on a deed
said to have been executed regarding the property and did
not cover all the properties. Coparcenary was not an issue
in that suit. It was held that the earlier decision could not
be res judicata; the issues not being identical.62 Where in a
suit for partition, some of the members of the family
elect to continue as joint, a subsequent suit for partition by
them is not barred.63 Likewise, if a decree for partition is
not followed by act ual division and separate possession of
properties and the parties continue in joint possession as
co-sharers as before, a fresh suit for partition is not barred
as that is a recurring right incidental to co-ownership.64
The position would be the same when a suit for partition is
dismissed for default under O 9, r 8.65 The plaintiff
in a subsequent suit for partition of certain property had an
opportunity to press that property in question as joint
family property. A plea was certainly taken that the suit was
not maintainable on account of non-exclusion of property
in question, the plea was however, not pressed. It
was held that the possession in the earlier suit operates as
res judicata and the second suit is not
maintainable.66

When the question regarding oral partition was directly and

substantially in issue in both suits, it would operate as res
judicata in subsequent suit for partition.67

Where a suit for partition was filed by the plaintiffs

claiming assignment in their favour by one of the
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executants of verumpattam (tenancy) chit in favour of jenmies

of lands, however, in an earlier suit for partition filed by
one of the executants of chit, it was held that the applicant
executant (who was not assignor of plaintiffs in
instant case), was the only tenant and not the other two
executants and that order was set aside in first appeal
where the plaintiffs were parties, however, the High Court
in second appeal wherein the plaintiffs in instant case were
not parties again restored judgment of trial court
holding that applicant was the only tenant, such judgment
would operate as res judicata in the subsequent suit against
the plaintiff when there was order of land tribunal
passed in favour of jenmies of land in the application filed
by them for resumption of land which had become final
and there was no claim by said executant there were two
other tenants with him and also when there was oral and
documentary evidence not proving the said tenancy chit
though executed by three executants and therefore could
be challenged under
s 92 (6) of the Indian Evidence Act, 1872
. Moreover, the suit was collusive because the defendant,
who was the only tenant, was found by the courts as being
plaintiffs father. It was more so when no challenge was set
forth by the plaintiffs and therefore he was estopped from
questioning that proceeding before land tribunal. It could
not be said in such a case, that jenmies
were estopped from contending that there was only one
tenant and not three tenants as alleged, on basis of
judgment in earlier case for recovery of rent filed by jenmies
against three persons when the three persons nowhere in
the proceedings claimed that they were tenants and on the
other hand, they took the plea that they did not cultivate
the land along with the said tenant.68

Where the defendant co-sharer has given consent only

insofar as his shares are concerned and not for the mode of
division, it would not in any way affect his rights to claim
fair and equal division in respect of the shares allotted in
his favour by means of the preliminary decree.
Therefore, no question of res judicata would arise in this
context and the defendant co-sharer is entitled to be heard
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regarding the claim of fair and equitable division of his

shares and therefore the consent given for partition of
properties would not in any way prevent him nor would he
in any manner become disentitled to claim proper and
equitable division by metes and bounds.69

Where, in the earlier suit for partition of joint family

properties there was compromise between the parties and
the properties were divided by metes and bounds in family
settlement, thereafter, there was alienation by one of the
members of the family of his share to the plaintiffs father
by registered sale deed, as the validity of sale deed and
transfer thereunder were not in issue in the earlier suit for
partition. The subsequent suit filed by the plaintiff for
declaration of right, title, interest and for permanent
injunction, on the basis of said sale deed, was not barred by
res judicata.70

Where a member of a joint family sued to set aside an

alienation by the manager as not binding on the family and
obtained a decree for partition of his share in the property
alienated, a subsequent suit by the alienee for a general
partition praying that the property alienated might in equity
be allotted to the share of his alienor, is not barred by res
judicata. 71

The validity or the binding nature of an alienation by the

manager of a joint Hindu family does not depend on a
partition effected after such alienation. If the partition was
not directly and substantially in issue in the suit against
such alienation a finding that the partition was sham
does not operate as res judicata.
72 A suit for partition for common tarwad properties was
instituted. One of the defendants had the lease deed in
respect of certain property in his favour, the said defendant
died during the pendency of the case. The brother of the
deceased defendant was appointed as a guardian of the
sons of the deceased defendant in the partition suit. A
preliminary decree of partition was passed; however,
before the final decree could be passed, the sons of the
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deceased defendant attained majority and moved

application seeking liberty to file separate written
statements on the ground that they were not properly
represented by the brother of the deceased defendant. The
application was dismissed. A separate suit thereafter was
filed by the sons of the deceased defendant seeking a
declaration that the brother of the deceased had an interest
adverse to them and he did not plead that the leasehold
right in the property in question was the individual right of
the deceased defendant. The suit was dismissed; however,
an appeal was allowed and it was held that the decision of
the High Court would not operate as res
judicata in respect of the questions involved in a subsequent
suit as to whether the lease hold title in the property in
question belonged to the deceased defendant or to both
the branches of the deceased defendant and his
brothers, who act ed as guardians. One M had
73 two sons B
and P. A suit for partition by meets and bounds to extend
of their 1/3 share in a house alleged to be belonging to a
joint family of M, B and P were filed by the respondent
who were descendants through P.
It was held that M was exclusive owner and it was not a
joint family property and the respondent had no right to
partition. M during his lifetime executed a registered will
on 28 March 1964, bequeathing the properties to the
appellant who were descendants through B. M died on 12 December 1968. The appellant
filed a suit on 14 November 1997, for declaration of title
and for possession. The suit was decreed and the decree
was affirmed in appeal. The High Court in second appeal
referred that finding on the ground that the respondent
remained in possession for more than 12 years and
thereby, they perfected their title by adverse possession.
It was held that since there was no plea that the
respondents had claimed any hostile title against M, the
owner of the property, the earlier decree operated as res
judicata. Moreover, against M, the
predecessors in title of the appellant, the earlier decree
operated as constructive res judicata on the principle of
might and ought. 74 It has been held by the High Court of
Orissa that in a suit for partition accounts of profits
received from the lands should be taken down to the date
of the final decree and that a subsequent suit for profits of
this period is barred;75 but, this
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decision has been dissented from by the Madras High

Court which has held that while the co-sharer has a right to
call for accounts for the period subsequent to the
institution of the suit in the suit itself, he is not obliged to
do so and a subsequent suit therefore, is not barred.76 This,
it is submitted, is the better view.

(e) Suit for Declaratory Decree.

Failure to sue for a declaratory decree in no way bars a
claim for substantive relief when it arises.77 A decree is not
null and void, merely because it was passed in disregard of
the prohibition contained in
s 34, Specific Relief Act, 1963
.Res judicata would still apply to such a
decree. The criteria for applying s 11 are not the relief
prayed for in the suit, or the structure and texture of the
decree or maintainability of the suit. Non-maintainability of
the suit is not to be confused with want of competence of
the court.78 In pursuance of
judgment passed by the Supreme Court, the Government
of Gujarat passed the following order on 4 August 1969,
the relevant operation of which reads as under:

Shri TS Mankad should be deemed to have remained in

service as executive engineer upto the date that he had
attained the age of 55 years i.e. upto 14 January 1964.

The order in the Government Order Public Works

Department No DPA1861E, dated 12 October 1961,
should be treated to have been closed.

The aforesaid order was challenged by the appellant before

the Gujarat High Court with a prayer to declare this order
dated 4 August 1969, as illegal, void, ultra
vires, bad in law and inoperative and the same was not
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binding on the appellant. This special application was

rejected holding that the right of appellant to continue in
service and was judicially determined by this court and that
judicial determination was given effect to by the state
government by its order dated 4 August 1969. The special
leave petition against this judgment was dismissed on 21
January 1979. Thus the controversy was put to an end and
the result was that the appellant was not entitled to
continue in service beyond 55 years of age.79

(f) Subject Matter may be Different.It is not necessary, for

explanation IV to be applicable, that both the issue and the
subject matter of the two suits should be the same. It is
enough if the matters in issue are the same, otherwise in
suits for arrears of rent there could be no res judicata at all,
for the subject matters of successive suits for arrears of
rent are necessarily different.80 The argument that the
principle of res judicata cannot apply because in the
previous suit only a part of the property was involved,
when in the subsequent suit the whole property is the
subject-matter, cannot be accepted. The principle of res
judicata under
s 11 of the Code of Civil Procedure
is attracted where issues directly and substantially involved
between the same parties, in the previous and subsequent
suit are the same, may be, in the previous suit, only a part
of the property was involved when in the subsequent suit,
the whole property is the subject-matter.81

In a case the Supreme Court was considering the

provisions of Pondicherry Assistant Engineers (including
Deputy Director of Public Works Department) Group B
(Technical) Recruitment Rules (1965) in the matter of
appointment by promotion to the post of Assistant
Engineer. The issue in the case was inter se seniority
between degree holder Section Officers and diploma
holder Section Officer who acquired degree during service
to qualify for promotion. In the course of hearing a point
was raised that consideration of the issue is barred by res
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judicata as also the rule laid down in

Art. 141 of the Constitution
as the issue had been decided by an earlier decision of the
Supreme Court in N. Suresh Nathan v. Union of India
(AIR
1992 SC 564
). It was held by the Supreme Court that is the earlier case
the court had only considered the question of eligibility of
diploma holder Section Officers acquiring degree during
service for promotion in the quota of degree holders and
inter se seniority between the two groups of Section
Officer was not decided. As such, neither Art. 141 nor the
principles of res judicata bar consideration of the question
in issue.82

(g) Issue of Law. The

principle of res judicata would apply only when the lis was
inter partes and had attained finality in respect of the issues
involved. The said principle will, however, have no
application inter alia, in a case where the judgment and/or
order had been passed by a court having no jurisdiction
therefore, and/or in a case involving pure question of law.
It will also have no application in a case where the
judgment is not a speaking one.83

The question of determination being a pure question of

law, the principles of res judicata shall have no application.84

This section provides that no court shall try any suit of

issue etc. Issues are of three kinds: (1) issues of fact;
(2) issues of law; and (3) mixed issues of law and fact. An
issue of fact may be res judicata; but, this is not so where in
the subsequent suit altered circumstances are
pleaded.85 A mixed issue of law and fact may also be res
judicata.86 There is no degree of importance between
issues.87 An issue of law, it has been held, may or may not
be res judicata. The law on the subject may be
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summarized as follows:

(i) A decision on an issue of law operates as res judicata if

the cause of act ion in the subsequent suit is the same as
that in the first suit.88 In Bindeshwari
v. Bageshwari,89 where the question of the validity of a
grant, in view of s 12 A of the Chota Nagpur Encumbered
Estates Act, was directly and substantially in issue in a
former suit, it was held by the Privy Council that the
determination of the question in that suit operated as res
judicata in a subsequent suit between the same parties and
relating to the same transaction. It would seem, therefore,
that a decision on a question whether a section of a
statute applied or not to a particular transaction would be
res judicata if the same question arose again. Lord
Thankerton observed; the question whether it (s 12A)
applied to a particular transaction entitles the court to
consider the construction of the section and the
determination of its applicability rests with the court. It is
immaterial that the decision was erroneous in law.90 Where
the court had jurisdiction to deal with a certain
application, but the decision arrived at by the exercise of
such jurisdiction was not accepted subsequently by a
Division Bench in a case having different parties, the
former decision would still operate as res judicata inter
parte, as regards the subject matter in that decision. It
cannot be said that an erroneous decision was arrived at by
former decision by an assumption of jurisdiction which the
court did not have. 91 The correctness or otherwise of a
decision, viewed in the light of a subsequent decision, has
really no bearing upon the question whether it would
operate as res judicata or not. All that is necessary to be
established is, that the matter was substantially in issue in
the former proceeding and that it had also been heard
and finally decided. Affirming this
92 principle, it has been
held by the Supreme Court that a decision of a question of
law given in a previous execution case between the parties
would be binding on them even if it was erroneous.93
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In execution of a decree for eviction against a tenant in a

proceeding under O 21, r 97, the executing court held that
the sub-tenant had become direct tenant under the
landlord, in view of
s 20, Delhi and Ajmer Rent Control Act, 1952
. Though the executing court had wrongly relied on s 20
(because it had been repealed), the decision was not
challenged by the tenant. The tenant subsequently sued for
eviction of the sub-tenant. It was held that

the earlier judgment had become final against the tenant

and was binding on him and could not be re-agitated. The
suit was barred. It was immaterial that the executing court
had committed an error of law. It had jurisdiction to
decide the question and its order was not a nullity.1 A
decree for possession was passed against the President of a
society. It was wrongly held that it could not be executed
against the society or its trustees. A second suit against the
trustees is not barred by res judicata.2 Landlord sued for
eviction of the tenant on the ground inter alia of personal
necessitya ground for eviction under the Bihar Rent
Control Act. The suit was dismissed for want of notice
under
s 106, Transfer of Property Act
. At that time, the law on the need for such notice was in a
fluid condition. Later, the landlord sued again for eviction
on the ground of default in rent after the first decree and
also personal necessity. The defendant pleaded, in
defence, the objection of want of notice. In the meantime,
judicial decisions (Supreme Court and High Court of
Patna) had held that notice was not required. It was held
that the first decision on this point was not res judicata.3

(ii) There is a conflict of decisions whether an erroneous

decision on a question of law operates as res judicata, if the
cause of action in the two suits are different, an erroneous
decision on a question of law operates as res judicata. It has
been held in some cases that it does not4 (Illust 2), and in
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some that it does5 [Illust

(iii)]. The latter view was adopted by a Full Bench of the
Calcutta High Court in Rarini Charan v. Kedar
Nath. The judgment
6 proceeded on the broad ground that
the correctness or otherwise of a judicial decision had no
bearing upon the question, whether it does or does not
operate as res judicata. It was also pointed out that it
was the identity of the matter directly and substantially in
issue that was the test of res judicata and not the identity of
the cause of act ion.

It was contended in that case that the law had been altered
by judicial decisions since the judgment in the first suit, and
reliance was placed upon the judgment of Maclean, CJ, in
Alimunnissa v. Sharma Charan,7 where it was
said:

Cases must be decided upon the law as it stands when

judgment is pronounced, and not upon what it was at the
date of a previous suit, the law having been altered in the
meantime. It has been conceded that, if the law had been
altered meanwhile by statute, the objection [of res
judicata] could not prevail: it is difficult to see why it
should prevail, because the law has been since determined
to be otherwise by judicial decisions.

Referring to this passage, Rankin, CJ, observed in the Full

Bench case that the reasoning in Alimunnissa’s case was
erroneous. The learned judge said:

The legislature, by statute, may alter the rights of parties

and when it does so, it makes such provision as it thinks
proper to prevent injustice. Courts of law are in no way
authorized to alter the rights of parties. They propose, at
all events, to ascertain the law, and if the binding character
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of a decision upon a concrete question as to the terms of a

particular holding is to fluctuate with every alteration in the
current of authority, the courts will become an instrument
for the unsettlement of rights rather than for the
ascertainment thereof. The principle relied upon is
abhorrent to
s 11 of the Civil Procedure Code
and to the general intention of the doctrine of res
judicata.

At the same time, the learned judge observed that when a

plea of res judicata is raised with reference to a
point of law which concerns questions of jurisdiction,8 or
procedure,9 or limitation,10 and in which
besides the parties the courts and the public have an
interest, it was atleast a question whether special
considerations should not apply. In a Bombay case Baker11

J after an exhaustive review of the case law expressed

entire agreement with the judgment of Rankin CJ. In the
Bombay case, however, the decision was not on a pure
point of law. The holder of a saranjam sought to execute an
award decree of 1855 under which he was entitled to a
share of the collections made by a junior branch of his
family. The defence was that the award had been
superseded by a resumption and re-grant of the saranjam by
the Government in 1900. The same defence had been
made to an execution application for a share of the
collections of previous years and had been disallowed and
the court had then held that the re-grant and
resumption of the saranjam had not the effect of nullifying
the award. This construction of the re-grant was held to be
a mixed question of fact and law which operated as res
judicata. Again, when a deed of partition was construed to
be an award, the construction was held to be a mixed
question of law and fact and to operate as res
judicata. A decision on
12 an abstract question of law
unrelated to the facts when gives rise to a right, cannot
operate as res judicata. Nor can
a decision on the question of jurisdiction be res judicata in a
subsequent suit; but, if the question of law is related to the
fact in issue, an erroneous decision on such a question of
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law may operate as res judicata between

the parties in a subsequent suit or proceeding, atleast if the
cause of action is the same. 13 Tarini Charan’s
case has been followed by the Madras High Court;14 but
the Gujarat High Court has held that if the effect of the
law has been differently interpreted by judicial
decisions the previous decision cannot have the binding
effect for all time and cannot operate as res judicata.15 It is
submitted that this is not correct in view of the decisions
of the Calcutta and Bombay High Courts referred to
above, particularly the Bombay decisions being binding on
the Gujarat High Court, as they have been made before
1960.

(iii) There is no doubt, as observed by Rankin CJ, that if

the law is altered by the passing of a new Act after a
decision in a case, the decision cannot operate as res
judicata. Thus, in Lakshmi v. Atal
16 after a preliminary decree for sale had
been passed on a mortgage and before a final decree was
made, Chota Nagpur Tenancy Act, 1908, was extended to
the district in which the property was situated. That Act
provided that no decree shall be passed for the sale of the
right of a raiyat in his holding
and that such right, shall not be sold in execution of a
decree. It was held that the preliminary decree did not
operate as res judicata and that the court had no power to
pass a final decree for sale. This rule, as stated above, does
not apply to a case where the law has been altered by
subsequent judicial decisions.17 In a suit for eviction, decree was
passed on the ground that sub-tenants had been illegally
inducted. Subsequently, the West Bengal Premises Tenancy
Act was passed. It was held that in a subsequent suit filed
after the passing of the Act the earlier decisions was not res
judicata where the parties were not the same and violation
of tenancy legislation was not in issue in the earlier
suit. Change of law
18 after the pronouncement of a judicial
decision where the amendment provides for the
re-determination of matters decided, takes away the effect
of res judicata.19
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ILLUSTRATIONS

(i) Same cause of action: decisions though erroneous

held to operate as res judicata:

X sells certain
property to A. At the time of sale the property
was in the possession of B who claimed it
adversely to X. A sues B in the High Court of
Calcutta to recover possession of the property as
purchased from X. An issue is raised in the suit,
and it is an issue of law, namely, whether a
person who is not in possession of property at the
time of sale is competent to convey it. The issue
is found in the negative and As suit is dismissed.
Afterwards, it is decided by a Full Bench of the
same High Court in another case between different
parties altogether that although a person may not
be in possession of a property, he is competent to
convey it. After the decision of the Full Bench, A
again sues B to recover possession of the same
property under the same deed of sale, and asks for
a decision in his favour on the strength of the
Full Bench ruling on the point of law which was
decided against him in the former suit. Here, the
cause of action in the subsequent suit is the same
as that in the former suit. The court is, therefore,
precluded from re-trying the same question of
law in the subsequent suit. In other words, the
issue of law is res judicata. It is immaterial that
the decision on the question of law in the first
suit was erroneous. 20

(ii) Different causes of act ion: decision held not to

operate as res judicata: A sues B in 1874 to recover
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12 years arrears of his share of a certain government

allowance received by B. B contends that A is not
entitled to recover more than 3 years allowance, As
claim beyond that period being barred by the law of
limitation. The court allows As claim in its entirety.
In 1894, A sues B for further arrears for 11 years
from 1882-1893. B raises the same point of law that
was raised by him in the former suit. Held that the
decision in the former suit does not operate as res
judicata in the subsequent suit. Here, the cause of
action in the subsequent suit is different from that
in the former suit, for the claim in the subsequent
suit is for arrears which had accrued due after the
institution of the former suit. The court, therefore,
is not precluded from re-trying the same question of
law, and if it finds that the question of law was
wrongly decided in the former suit, it may decide
the suit on what it considers is the correct
interpretation of law. The court said: It appears to
us that a point of law can never be res judicata. The
judgment also proceeded on the ground that the
first suit was decided under the Indian
Limitation Act , 1871, and that the law had been
altered by the Act of 1871. 21

(iii) Different causes of act ion: decision though

erroneous, held to operate as res judicata: A
executes a kabuliat in 1880 in favour of B. The
kabuliat contains a stipulation for payment of
interest on arrears of rent at the rate of 75 per cent
per annum. In 1898, the holding is sold in execution
of a decree for rent obtained by A against B and it is
purchased by C. In 1915, A sues C for arrears of
rent and interest on arrears at 75 per cent per
annum. The defence is that C being an auction
purchaser, is not bound to pay interest at the rate
stipulated in the kabuliat and that it is in the nature
of a penalty. This contention is not upheld and a
decree is passed in favour of A with interest at 75
per cent per annum. In 1924, A brings another suit
against C for arrears for a subsequent period and
interest at 75 per cent per annum. C raises the same
defence and also contends that the decision in the
previous suit was erroneous. Held by a Full Bench
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of the Calcutta High Court that the decision in the

previous suit, even if erroneous operated as res
judicata.22 The principle is that an erroneous
decision by a court having jurisdiction is as much
binding between the parties as a right one and can
be superseded only by an appeal to the higher court
or through other procedure, like review which the
law provides.23

In the cases in which it was held that an erroneous decision

on a point of law where the causes of action were different,
does not operate as res judicata, the
courts were influenced by the consideration that they
would be perpetuating an injustice for all time, if they were
to hold that an erroneous decision on a point of law in a
former suit was binding upon the parties in a subsequent
suit instituted upon a new cause of act ion. It must,
however, be recognized as stated by Mookerjee, J in Aghore
Nath v. Kamini Debi, that the effect
24

of this is to substitute in the present section the expression

cause of action for the matter in issue. In Venkata v.
Andavolu, Napier J took
25 the extreme view that where a
decision on a point of law, whether it be on the
construction of a document or of a statute or on common
law or on customary law, once settles a question that arises
directly out of conflicting views as to the rights of the
parties, it is res judicata. A similar opinion was expressed
by Shah J and Fawcett J in Sitaram v. Laxman
26 and by Das J in Ramlal v. Deodhari Rai. To get over the
27

difficulties which might arise from this extreme view, some

judges have suggested a distinction between a decision on
an abstract question of law, such as a question of
limitation, and a decision on a concrete question, such as
the construction of a document entered into between the
parties to a suit, the latter question being treated as one to
which the rule of res judicata applies,
and the former as one to which the principle of stare decisis
applies. It is difficult
28 to see what the principle of stare
decisis has to do with the rule of res judicata.
29 In Tarini Chandran v.
Kedar Nath, Rankin CJ, said
30 that whether a decision was
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correct or erroneous it had no bearing on the question of

res judicata, and that what was res judicata
between the parties to a suit was not the reasoning or any
principle of law, but the act ual decision declaring the
rights of the parties. 31 An issue of law decided by turning a
blind eye to the relevant statutory provision cannot be held
to be conclusive and binding on the parties litigating
subsequently on a different cause of action. Such a decision
on a question of law is clearly per incuriam and cannot
acquire the status of a binding decision even in between
the parties Per incuriam are those decisions given in
forgetfulness of some inconsistent statutory provisions or
of some authority binding on the court concerned, so that
in such case some part of the decision or some step in the
reasoning on which it is based, is found on that account, to
be demonstrably wrong.32 The decision on
pure question of law rendered per incuriam by overlooking the statutory
provision in the earlier suit will not operate as res judicata in
this subsequent suit. 33

In this connection, it is interesting to note the decision of

the Privy Council in Broken Hill Proprietary Co v. Broken Hill
Municipal Council.34 The appeal was from a judgment of the
Supreme Court of New South Wales. The question for
determination was as to the correct method of ascertaining
the annual value of a mine for rating purposes for the year
1919-21. That question turned upon the construction of s
153 (3) of the Local Government Act,
1919, of New South Wales. The company was assessed for
the years 1917-19 by the Council on a particular
construction of the section and that construction was
upheld by the High Court of Australia. The council
adopted the same method for assessment for the years
1919-21 and it was upheld by the Supreme Court. The
company appealed to the Privy Council. It was contended
on behalf of the council that the question as to the matter
of valuation was res judicata,
but this contention was overruled and the appeal was
allowed. As to the plea of res judicata, their
Lordships said:
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There is, however, no substance in this contention. The

decision of the High Court related to a valuation and a
liability to a tax in a previous year, and no doubt as regards
that year the decision could not be disputed. The present
case relates to a new questionnamely, the valuation for a
different year and the liability for that year. It is not eadem
questio, and therefore the principles of res judicata cannot
apply.

This case shows that according to the English law an

erroneous decision on a question atleast of the
interpretation of a statute, does not operate as res
judicata. If a decision of every question of law were res
judicata, a decision that one of the several co-sharers may
alone maintain a suit for rent of the entire holding, though
contravention of the express provisions of s 194 of the
Agra Tenancy Act, 1901, would operate as res judicata in a
subsequent suit between the same parties so as to preclude
the tenant from raising the same defence in that suit, but it
has been rightly decided that such a decision has not the
effect of res judicata. 35 A view has also been expressed in some
cases that a decision on a question of jurisdiction, would
not be res judicata. A previous
36 decision that the defendant
were entitled to take advantage of s 7 of the Bihar Money
Lenders Act of 1937, does not operate as res
judicata as to the interpretation of the section in a
subsequent litigation between the parties. A decision in
37

an earlier suit that the municipality was not liable to pay

non-agricultural assessment on a portion of the public
street on which it had put up a market did not bar the
collector from claiming in a subsequent suit that the
municipality was liable to pay non-agricultural assessment
on another portion of the public street at which it had
constructed shops, as a decision on a question of law could
be res judicata only if the right in dispute was the same.38
The doctrine of res judicata is a
universal doctrine laying down the finality of litigation
between the parties. When a particular decision has
become final and binding between the parties, it cannot be
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set at naught on the ground that such a decision is violative

of Art. 14. So far as the parties are concerned, they will
always be bound by the said decision. In other words,
neither party will be permitted to reopen the issue decided
by such decision on the ground that such decision violates
the equality clause under the
Constitution . 39

(h) Estoppel Against a

Statute. Whether or not a finding on a point of law can be
res judicata, it is a settled principle that
there can be no estoppel against a statute, for estoppel
cannot supersede the law of the land. Thus, in Woomesh
40 v.
Barada 41

where a previous rent suit had been decreed at a rate which

included illegal cess, the defendant was not precluded from
questioning the legality of the claim; but, the applicability
of a section to a particular transaction may be res judicata.42
The Bombay High Court has allowed the plea of res judicata
to sanction what is prohibited by law. This was in case43
where a mortgagor lessee of a portion of a bhag which was
inalienable under the Bombay Bhagdari Act 5 of 1862,
when sued for rent, was not allowed to plead that the bhag
was inalienable because he had omitted to do so in a
previous ex parte rent suit. In a later case,44 the Allahabad
High Court dismissed a suit by a single co-sharer for rent
because that form of suit was forbidden by s 194 of the
Agra Tenancy Act. It was objected that the defendants had
not raised this plea in previous rent suits and as to this, the
court said that where the law forbids a certain thing being
done in a suit, no amount of failure by a defendant in
previous suits to plead the positive bar created by
legislature will prevent its being taken up in a subsequent
suit.

(i) Modification of
Statute.Unless it is expressly so provided, modification of statute
cannot deprive a litigant of a substantive right which he had
acquired before the modification came in force. The test in such cases
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seems to be whether a right claimed is a substantive right or a mere

procedural right. An order of the execution court holding that the
property in dispute was not rateable under s 16, Bundelkhund Land
Alienation Act, 1908, is a substantive right.45 In Colonial Sugar
Refining Co Ltd. v. Irving,46 a right of
appeal to a particular forum was considered by their Lordships to be
substantive right and was held, not to have been lost as a result of the
47
change in enactment. In Ram Karan v. Ram Das a Full Bench of the Allahabad High Court
held that if a tenant had been dispossed before a new Tenancy Act
and the cause of action had accrued before that Act came into force,
then he was entitled to institute a suit in the civil
court within 12 years of his dispossession, notwithstanding the
provisions of the new Act that the forum should be the revenue court,
and that the suit for possession should lie within six
months only. Where as a result of change in law, new rights are
conferred on parties, such rights are not barred as res judicata by
decisions given before the new law came into force.48 In Board of
Commissioners v. Rutnaswamy49 it was held
that a decision that a temple was an excepted one as defined in the
Madras Hindu
Religious Endowments Act , 1927, did not operate as res judicata
on the question whether it was an excepted temple within that Act as
amended in 1930. This decision was followed by the Andhra Pradesh
High Court in Raghavendraswamy v. Board of Commissioners50
wherein it was observed that the principle laid down therein was also
applicable to a case where there was a change of circumstances
and that it was not confined to changes in law. In NGDM Trust v.
RT Ramji & ors, the legislature immediately on realising the adverse
effect of s 121 of the Gujarat Town Planning and Urban
Development Act, on operation of Bombay Tenancy Act to which the
provisions of the Tenancy Act either apply or are realised, it would
result into depriving the tenants of the status of deemed
purchaser which was conferred on them; therefore, the state legislature
enacted Gujarat Town Planning and Urban Development
(Amendment) Act, 1986, which was brought into force wef 12 June
1985, by s 5 of the Amendment Act. It is provided that in the
principle Act
s 121 of the Transfer of Property Act
shall be deleted wef 12 June 1985. In the opinion of the Gujarat
High Court, the amendment was not applicable to a case where the
statutory purchase had already taken place on 18 April 1957, when
the tenant had become a deemed purchaser. Therefore, since the
proceedings had already commenced on 18 April 1957, and since the
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tenant had already become a deemed purchaser, the fixation of the

purchase price was a step in aid of the statutory obligation of the
mamlatdar and ALT to fix the purchase price of the parcel of
land of a deemed purchaser had taken place on 1 April 1957. Such
a decision where taken by the statutory authority as it is or as the
instance of the deemed purchaser, would not render the
decision of the authority nonest. 51 The Hindu Religious and
Charitable Endowments Act , 1927, was repealed by the new Act of
1959. A decision on the question under the repealed Act can be
taken as res judicata for purpose of Act of 1927 and not for the Act
of 52
1959. Where a previous
decision holds a decree to be a nullity because it was made under an
Act which had no application to the territory in question, but the
Act is later retrospectively extended by legislation to the territory and
the decree is validated it was held that the decision holding
the decree as a nullity cannot operate as res judicata.53

Condition II: The Same

Parties or Parties under Whom any of Them Claim.
This condition is the principle that judgments and decrees
bind only parties and privies.54 A privy is a
convenient term of English law to describe a person who
claims under a party. Latham, J in a Bombay case55
classified persons other than parties as: (1)
privies; (2) persons not claiming under parties but
represented by them; and (3) strangers.

The ground of a privy is property and not personal

relation. To make a person a privy, he must have acquired
an interest in the subject matter of act ion by inheritance,
succession or purchase subsequently
to the action, or he must hold the property subordinately
e.g., as a sub-lessee. In the case of subordinate holder,
however, the acquisition of the subordinate interest prior to
the action would make the subordinate holder a privy
to the judgment passed therein against the superior holder
if the subordinate interest is of such a character that it is
entirely dependent on that of the superior holder and
automatically comes to an end as soon as the superior
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interest is extinguished.56 A privy who

claims under a party is bound, for, he who takes the
advantage must bear the burden qui sentit commodum sentire debet
et onus. Persons represented are in fact parties through their
representatives Explanation IV. In the absence of fraud, an
adjudication is binding on the first two classes, for as to
strangers the maxim applies that res inter
alios acta noceri non debet.

(a) Same Parties. Parties are

persons whose names are on the record at the time of the
decision, and a party may be a person who has intervened
in the suit.57 A party who
withdraws or whose name is struck off, ceases to be a
party. A person whose
58 name has been inserted as a party
through fraud without knowledge, or if he is a minor on
record unrepresented by a guardian, cannot be said to be
a party. A person who has unsuccessfully applied to be
added as a party is also not a party. Delay in filing suit was condoned by
59

invoking
s 5 of the Limitation Act . The third party was impleaded after
that order was passed. That party disputed legality of the
order condoning delay in appeal. Plea cannot be disallowed
on principle of res judicata, as the issue decided was not
between the same parties. Proposition that res
judicata applies at two stages of the same litigation could
not be invoked on the basis that an appeal is a continuation
of the suit. 60 Even though a real owner has not been
shown in the record as a party, a decree against his
benamidar binds him; but this is not an absolute rule. If it is
shown that the benamidar was not authorised to conduct the
litigation and had therefore no right to represent the real
owner, the decision against the benamidar does not
bind the real owner. A party who
61 dies during the
pendency of the suit but whose name erroneously remains
on the record is not a party.62 If the parties
are different, there is no res judicata.
63 A former suit by the plaintiff alone and
in his own right does not bar a subsequent suit filed in the
name of a deity. Thus, A sues
64 B for rent. The
defence is that C, and not A, is the
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landlord. A fails to prove his title, and the suit is dismissed.

A then sues B and C for a declaration of his title to the
property. The suit is not barred, for the parties to the two
suits are not the same, C not having been a party to the
former suit. Earlier suit
65 was for eviction, on the ground
that sub-tenants had been illegally inducted. Sub-tenants
were inducted prior to the commencement of the West
Bengal Premises Tenancy Act, 1956, and before expiry of
lease period. Suit was dismissed. Subsequent suit was filed
after commencement of the West Bengal Act. Sub-tenants
inducted before and after the commencement of the Act
were joined as parties. Eviction on the ground of violation
of s 13 (1)(a) of the West
Bengal Act, inter alia, was pleaded. It was held that earlier
suit would not operate as res judicata, since the parties were
not the same and the question of violation of provisions of
the West Bengal Act was not involved in the earlier suit.66
A suit was filed to challenge the resolution of a
municipality enhancing the fee for market stalls. In an
earlier suit, the same resolution had been challenged by the
members of another market through a representative suit.
It was held that the finding given in the earlier
suit did not operate res judicata as the present plaintiff was
not a member of that market.67 Where the
parties to the suit are not the same, res judicata does not apply
even if the issues (existence of relationship of partnership
or employment, are the same;68 but, where the
parties in the suit are the same as in the former suit and the
judgment in the former suit has not been appealed from
and allowed to be final, it is binding on the parties and they
cannot be allowed to go behind it in the subsequent suit.69
It has been doubted if the secretary of state can be said to
be a party to Land Acquisition proceedings taken by the
collector. A bank which
70 held goods pledged by a firm
against cash credit facility, wished to adjust the amount
recovered from the pledged goods for wiping out separate
dues of the partners. The goods had not been pledged for
individual debts of partners. It was held that this could not
be done. Finding inter partes becomes res judicata.
71 Petition of Union of India about the
competent authority appointed under Act 50 of 1962, was
dismissed. It was held that special leave petition against
such removal can be filed by Hindustan Petroleum
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Corporation as the grievance was independent of that of

the government.72 A judgment in a
suit for injunction is not judgment in rem and binds only the
parties to the suit. It may be true that a decree for
injunction compels personal obedience and in a proper
case would not be forced against the legal representatives.
However, this proposition must have a qualification and
that qualification is that when the injunction relates to
doing something or not doing something in a property
that was the subject matter of the earlier suit and the act
was on the basis of ownership of an adjacent property or a
right claimed in the property of the other side, then such a
decree for injunction would be binding not only against the
judgement-debtor personally but all those who claim
through him. When once a
73 decree is passed, it is obvious
that the defendant in the suit, i.e. the
judgement-debtor, would be precluded from carrying on
blasting operations in his property. To say that he is
succeeded by others, they would not be bound by the
restraint relating to the enjoyment of the particular
property to derogate from the principle of the public policy
that there shall be no second litigation in respect of same
right and the same property.

It cannot be a policy of law that everytime an assignment

of the decree in the scheduled property takes place, the
decree-holder should institute a fresh suit against the
assignees so as to prevent him from disobeying the decree
obtained by the decree-holder against the original owner of
the property.74 A decree for permanent injunction does not
prohibit the defendant from instituting a suit for
declaration of his title and for recovery of possession from
the very decree-holder. On legal principles that distinguish
between ownership and possession, it is difficult to hold
that the transferee is a privy in estate and the decree made
against his transferor operates as res
judicata against him. A decree passed ex
75 parte against one
guarantor on the basis of certain documents cannot bind
other guarantors who had no opportunity to put forth their
case. 76
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Direction in preliminary decree about inquiry into mesne

profits does not adjudicate the controversy and is not res
judicata. 77

Suit was filed for specific performance of an agreement of

sale of undivided one-third share of the defendant. During
its pendency, the share of the defendant was determined to
be less than one-third, in partition. It was held that the
partition decree passed during the pendency of the suit
between the defendant and her co-owner could not operate
as res judicata. Even if it be held that
plaintiffs suit for specific performance was premature, that
could only disentitle them to costs.78 As an
illustration of parties litigating under the same title see
Radha Mohan v. Eliza Jane Hilt.
79

Merely because the petitioner was not a party to the

petition, which were filed for objecting the refinery project,
it could not be said that the same has no bearing on the
present proceedings. Those proceedings were also filed by
the petitioners in the public interest for the protection of
environment and ecology. Thus, all these proceedings were
filed for the same interest and claim. Therefore, when the
subject matter of the earlier proceedings and the present
proceedings is one and when the petitioners in both
proceedings were having the same status, then the earlier
decision will create the general principle of constructive res
judicata. 80

A suit was filed by the respondent against the Board or

university for alteration of her date of birth in the
matriculation certificate. The respondent did not make the
state government a party to the suit. It was held that the
decree against the Board or university which issued the
matriculation certificate was not binding on the
government. At best it can only be treated as a piece of
evidence. The order of
81 the High Court directing the
receiver appointed by the Supreme Court to make
demarcation in the disputed fisheries and thereafter, carry
out the directions of Supreme Court in respect thereof.
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The state was neither made a party to the proceeding nor

noticed by the High Court before passing the High Court.
The order passed by the High Court was also not
challenged by the state. It was held that the said order does
not operate as res judicata taking
away the rights of the parties in respect of the said
fisheries.82

Dealing with the question of relevancy of former

judgments under
s 40 of the Evidence Act , the Bombay High Court held in a
case that where the defendant of the instant suit was
not a party to the earlier suit, the earlier judgment would
neither fall with in the scope of
s 40 of the Evidence Act nor the provisions of
s 11 of the CPC would be applicable.83

For application of the rule of res judicata it is necessary that

parties to the two suits or proceedings must also be same
and they must be litigating under the same title. Where
plaintiff in the subsequent suit was not a party in the earlier
suit, the plea of the defendant that the plaintiff was aware
of the suit and he should have got himself impleaded in
that would not be tenable. There is no compulsion on a
person to get himself impleaded in any court proceeding. If
the defendant desired that the decision in the earlier suit
would be binding on the plaintiff, he ought to have
impleaded the plaintiff as a party in the earlier suit. Thus,
the plaintiff being not a party in the earlier suit, the
provisions of
s 11 of CPC was held to be not attracted. 84

(b) Res Judicata Between Co-

Defendants. As a matter may be res judicata
between a plaintiff and a defendant, so it may be res judicata
as between co-plaintiffs or between co-defendants.
First, as to res judicata between co-defendants: if in a
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suit by A against B and C, there is a matter

directly and substantially in issue between B and C, and an adjudication upon that matter is
necessary to the determination of the suit, the adjudication
may operate as res judicata in
a subsequent suit between B and C in which either of them is plaintiff and
the other defendant.85 In other words, if a plaintiff cannot
get at his right without trying and deciding a case between
co-defendants, the court will try and decide the case, and
the co-defendants will be bound; but if the relief
given to the plaintiff does not require or involve a decision
of any case between co-defendants, the co-defendants will
not be bound as between each other by any proceeding
which may be necessary only to the decree the plaintiff
obtains. These are the limits within which the
86 doctrine of
res judicata should be applied as between
co-defendants87 For application of doctrine of res
judicata between co-defendants, four conditions must be
satisfied namely:

(i) There must be a conflict of interest between the

defendants concerned;
(ii) it must be necessary to decide the conflict in order
to give the relief which the plaintiff claims;
(iii) the question between the defendant must have been
finally decided;
(iv) the co-defendants were the necessary or proper
party in the former suit.

If the plaintiff cannot get at his right without trying and

deciding the case between co-defendants, the court will try
and discharge the case, and the co-defendants will be
bound by the decree; but, if the relief given to the
plaintiff does not require or involve a question of any case
between co-defendants, the co-defendants will not be
bound as between each other.
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Where the above four conditions did not exist, the decree
does not operate as res judicata. It must, therefore, be that
all the persons who have right, title and interest are made
parties to the suit and that have should have knowledge
that the right, title and interest would be in adjudication
and the finding or the decree there in would operate as res
judicata to their right, title and interest in the subject matter
of the former suit. Even in their absence, a decree could be
passed and it may be used as an evidence of the plaintiffs
title either accepted or negatived therein. The doctrine
of res judicata would apply even though the party against
whom it is sought to be enforced was not eo-nomine made
a party nor entered appearance, nor did he contest
the question.

The doctrine of res judicata must, however, be applied to

co-defendants with great care and caution. The reason is
that fraud is the extrinsic collateral act which vitiates
solemn proceedings of courts of justice. If a party obtains a
decree from the court by practicing fraud or collusion, he
cannot be allowed to say that the matter is res judicata and
cannot be reopened. There can also be no question of res
judicata in a case where signs of fraud or collusion are
transparently pregnant from the facts on record. Therefore,
in applying the doctrine of res
judicata between co-defendants or co-plaintiff care must, of
necessity be taken by the court to see that there must infact
be a conflict or interest between the co-defendants or
the co-plaintiffs concerned and it is necessary to decide the
conflict as in order to give relief which the plaintiff in the
suit claimed and the question must have been directly and
substantially in issue and was finally decide therein.88 Three
conditions to be fulfilled are:

(i) a conflict of interest between the co-defendants;

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(ii) the necessity to decide that conflict in order to give

the plaintiff appropriate relief; and
(iii) a decision of the question between the co-
defendants.89

Where the four conditions specified here for the purpose

are satisfied an issue between co-defendants may become
res judicata.90 If those
conditions are present then the doctrine of res judicata would apply to
the co-defendant even if he did not appear in the earlier
suit and contest the question but subject to the
qualification that in such a case it must be proved that he
had or must be deemed to have had notice that the
relevant question was in issue and would have to be
decided. It may be added here that where by the
91 existence
of these conditions the decision operates as res
judicata between the co-defendants in a subsequent suit by
one of them, a co-defendant has a right of appeal against
the decision even if the suit by that decision has been
dismissed against them.92

Even where their condition above set out did not exist and
the judgment therefore does not operate as res
judicata between the co-defendants, if the judgment has
disposed off the question of the plaintiffs title, it can be
taken into consideration as evidence of an instance where
the plaintiffs title was negatived.1 Landlord sued for
ejection of joint tenants. Their defences were not
conflicting in that suit. Subsequently, one joint tenant sues
for ejectment of the other tenant. It was held that
the finding in the previous suit could not operate as res
judicata in the subsequent suit between the joint tenants.2

In Maung Sein Done v. Pan Nyun

3 the intestate had left two daughters S and
P and two sons. The sons took possession of his estate.
Thereupon, S filed a suit against her two brothers and her
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sister P for administration of the estate and to recover her

one-fourth share under Burmese Buddhist law. P filed no written statement
but gave evidence for her sister, the plaintiff. The suit was
dismissed on the ground that the succession was governed
by Chinese customary law under which the sons succeed to
the exclusion of the daughters. Subsequently, P filed a suit
for administration and to recover her one-fourth share.
The Privy Council held that the suit was barred by res
judicata as there was a conflict of interest between P and her
brother, that conflict would necessarily have had to be
decided to give S the relief she claimed and the question
between P and her brother was finally decided. In Munni
Bibi v. Triloki Nath,4 M and K were rival claimants to a
house. M alleged that the house belonged to her deceased
father Amernath and claimed as his daughter. K alleged
that the house belonged to her mother and that she had
inherited it as stridhan property. A creditor of Amernath
sued M and K to establish his right to sell the house as the
property of Amernath. The court found that the house
belonged to Amarnath and decreed the creditors suit. K's
son paid off the creditors and took possession of the
house. M sued to recover the house from K's son who claimed
title under K. M urged that the question of title as between
her and K was res judicata by reason of
the decision in the creditors suit. The Privy Council held
that the conditions of res judicata were established because
there was a conflict of interest between M and
K for it was only if the house belonged to Amernath that
the plaintiffs case could succeed and this question was
decided in the plaintiffs favour. Their Lordships observed
that it was immaterial that K had not entered appearance or contested
the suit for she was a proper party and had a right to be
heard if she so desired. In a case, however, where one
defendant actually gave evidence and supported the case of
the other defendant, it was held that there was no conflict
of interest and no res judicata between the defendants.5

A Hindu H dies leaving two daughters D1 and D2 and

a nephew N. D1 sues D2 and N to recover certain
property under an oral will of H. D2 claims the property
under a will in writing executed by H. N claims the property as
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undivided nephew of H. The court finds that H

and N were divided, that the will in writing is a valid will,
and dismisses D1’s suit.
Subsequently, D2 sues N to recover the
property under the written will. N contends that he and H were joint, and that he
became entitled to the property by right of survivorship.
The question whether H and N were joint is res judicata.
That question was directly and substantially in issue in the
first suit and it was necessary to decide it in that suit to
adjudicate upon D1’s claim, and it was decided against N.6
Another type of case in which a question between co-
defendants may become res judicata is where a suit is
brought against two or more defendants, and a will has to
be construed by the court to adjudicate upon the plaintiffs
claim which is founded on the will. In such cases the
decision with regard to the construction of the will on the
rival contentions of the defendants may be res judicata in a subsequent
suit by some or one of them against the rest,7 but not if no rival contentions were
raised at all.8 A decree for partition is in favour of each
party to whom a share is awarded and is res
judicata not only as against the plaintiff,9 but as between
the co-defendants.10 A decision in a partition suit as to the
outstanding due to the family and the debts binding on its
members is binding on the parties and a second suit with
respect to them is barred by res judicata. The rule followed in
partition suits was extended where the validity of a will was
in question in a suit in which the different defendants who
were beneficiaries under it took up attitudes which they
considered to be most beneficial to them.11

(c) Res Judicata Between Co-

plaintiffs. Next, as to res judicata between
co-plaintiffs. As a matter may be res judicata between co-
plaintiffs, subject to the same conditions which apply to
the case of co-defendants.12

(d) Res Judicata between Co-

respondents. The principle of res
judicata has been held to bind co-defendants if the relief
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given or refused by the earlier decision involved a

determination of an issue between co-defendants (or
co-respondents as the case may be). This statement of the
law has been approved as far back as in 1939 in Munni Bibi
v. Trilokinath, 13

where it has been said that to apply the rule of res judicata
as between co-defendants three conditions are requisite.

Where there was a conflict of interest between the two co-

respondents, in appeal against award of tender, to highest
bidder, and for the purpose of deciding the relief, if any, to
be granted to appellant, it was necessary for the
appellate court to decide whether one of co-respondents,
i.e., highest bidder, was entitled to participate
in the tender process and judgment of appellate court
though is cryptic shows application of judicial mind to
merits of the case, it can be said that all the three pre-
requisite conditions to apply principle of res
judicata between co-defendants are present and, therefore,
judgment of appellate court disposing appellants appeal
would operate as res judicata to bind not only appellant but
also co-respondents. 14

(e) Pro forma Defendant. A

party may be joined as a defendant in a suit merely because
his presence is necessary in order to enable the court to
effectually and completely adjudicate upon the question
involved.15 In such a case, no relief is sought against him
and the matter in issue in the suit is not in issue between
him and any other party, and cannot, therefore, be res
judicata against him. For instance, A,
claiming to be entitled to possession of a tank as tenant of
X, sues B for possession. X
is joined as pro forma defendant and no relief is claimed
against him. The suit is dismissed on a finding that B is the
owner. X then sues B for possession and B
contends that the issue of ownership is res judicata. This
contention must fail for the issue was decided in the
former suit between A and B, and not between X and
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B, for X was only a pro forma defendant.16 Again, A sues B

for possession of a house and joins C
as a party alleging that part of the house had been let to
him. The suit is decreed but the decree was not executed
and became time-barred and subsequently, B sues
C for possession. The decree in the first case does not
operate as res judicata between B and C and indeed it in no way affects the
legal relations between them.17 Another instance is the case of Radha Kishun v. Khurshed
Hossein 18

where a prior mortgage, who was a pro forma defendant in a

puisne mortgagees suit for sale, was not barred from
subsequently enforcing his own security. The fact that a party is described as
19

pro forma or that no relief is claimed against him is not

sufficient to avoid the bar of res
judicata if the other conditions laid down in the sections are
satisfied.20 Where in a suit for rent by A claiming as sole shebait,
a contention was raised that B who was a pro forma
defendant was also a co-shebait and that accordingly, a suit
by A alone was not maintainable, a decision on the issue in
favour of A would be res judicata in a subsequent suit
between A and B on the question of co-shebaitship as the
decision thereon in the previous suit was necessary for
granting relief to the plaintiff. 21

(f) Parties in Subsequent Suit

Claiming under Parties in Former Suit.Res judicata not only
affects parties but their privies i.e.
persons claiming under them and each privy stands in the
shoes of the party under whom he claims. If the decree in
the first suit is between A and B, then the finding is res
judicata in the subsequent suit if the plaintiff claims under
A and the defendant under B, or vice
versa, or if the plaintiff is A and the defendant claims under B, or vice versa. If,
however, the second suit is between parties claiming under
A alone or under B alone there
is, ofcourse, no bar. A decision in a
22 suit under O 21, r 63,
in which a claimant, the decree-holder and the judgment-
debtor are all parties, would be res
judicata on the question of title in a subsequent suit between
them. This observation will henceforth not be
23 relevant on
account of the deletion of O 21, r 63 by the Amendment
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Act, 1976.

ILLUSTRATIONS

(i) A sues B for a declaration of title to land and

obtains a decree. A then sues C for possession. C
contends that B is owner and that he is in
possession as B's tenant. The defence is barred.
(ii) A sues B for a declaration of his right to a share in
the rents of a bazaar and obtains a decree. C, a
tenant of A, then sues D, another tenant of A, for a
stall in As part of the bazaar. No finding in the first
suit is res judicata.24

Whether one person is bound because he claims under

another is a question of substantive law. The following are
some instances of cases decided on this point with
reference to the rule of res
judicata:

(i) A lessee claims under his lessor, but a lessor does not
claim under his lessee and so the dismissal of the
lessees ejectment suit against a trespasser does not
bar a similar suit by the lessor.25

(ii) A purchaser at an execution sale acquires the right,

title and interest of the judgment-debtor in the land
sold and is bound by a decision between his
landlord the decree-holder and the judgment-debtor
as to its area; 26 but, where mortgaged property is sold in
execution of a mortgage decree and it is purchased
by the mortgagee, a decision between the landlord
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and the mortgagor as to the rate of rent is not

binding on the purchaser.27
(iii) A purchaser at a revenue sale does not claim under
the defaulting proprietor and is not bound by a
decree against him.28
(iv) A son in a joint and undivided Hindu family does
not claim under his father; but a son claiming under a custom of
29

primogeniture claims under his father.30 It is submitted that the decision in

Kali Charans case is good law, despite the decision
of the Privy Council that succession to an
impartable estate of a mitakshara family is to the
next holder by the rule of survivorship, for the ratio decidendi is not affected
31

by the abovementioned decisions of the Privy

Council.
(v) A remainderman does not claim under the life-
tenant and a remainderman under a will is not
bound by a decree against a widow who has a life
estate under the will.32

The title by which the parties in the subsequent suit claim

must have arisen subsequently to the commencement of
the former suit

In order that a decision in a suit between A and B may

operate as res judicata in a subsequent suit between A and
C, it is necessary to show that C claims
under B by a title arising subsequently
to the commencement of the first suit. Thus, a purchaser,
mortgagee, lessee or donee of a property is not estopped
by a decree obtained in a suit against the vendor,
mortgagor, lessor or donor commenced after
the date of the purchase, mortgage, lease or gift;33 but, if
the decree has been passed against the mortgagor
before the mortgage, that decree would bind the
mortgagee, he being a transferee from the mortgagor of an
interest in the mortgaged property.34
(g) Representative Suit : Explanation VI. This
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section deals with representative suits, that is, suits

instituted by or against a person in his representative, as
distinguished from individual character. Suits brought or
defended by one or more persons on behalf of themselves
and others with the leave of the court under O 1, r 8, are
common instances of this class. Explanation VI provides that
where persons litigate bona fide in respect of a public right
or a private right claimed in common for themselves and
others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the
persons so litigating. It refers to cases in which a decision
in a suit may operate as res judicata
against persons not expressly named as parties to the suit
as where a suit is instituted by A and B on behalf of
themselves and others, or where
it is instituted against A and B on behalf of themselves and
others. The conditions under which the decision in such a
suit may constitute res
judicata are:

(i) That there must be a right claimed by one or more persons in common for themselves
and others not expressly named in the suit;
(ii) that the parties not expressly named in the suit must
be interested in such right;
(iii) that the litigation must have been conducted bona
fide on behalf of all parties interested;35 and
(iv) that if the suit is one under O 1, r 8, all the
conditions of that section have been strictly
complied with. 36

The Supreme Court, on being satisfied that the issues

which the petition now wishes to raise, had been agitated
directly and substantially, not only by the petitioner which
was espousing the cause in the earlier litigation but also by
the Union of India, it was held that judgment had
settled the controversy and become final and binding in
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respect of the questions debated therein and the issues

settled thereby. Since the issues now raised have been
agitated twice over, it is not permissible for the petitioners
to once again re-agitate the matter by coming now under
the cloak of a form. 37 Explanation VI to s 11
is subject to the essential condition that the interest of a
person concerned has really been represented by the other;
in other words, his interest has been protected after in a
bona fide capacity. If there be any clash of interest between
the persons concerned and is assumed representative, or if
the latter deemed to collusion or for any other reason
mala fide ly neglects to defend the case, it cannot considered
to be a representative interest.38

Shebait, Karnavan, Trustee,

Administrator etc. If the parties in the subsequent suit can be
said to have been represented by the parties in the former
suit, the decision of the former suit will bind the parties
in the subsequent suit.

ILLUSTRATIONS

Nine Akali Sikhs sue for the removal of the mahant of a

religious institution. The suit is dismissed on the ground
that the institution is a Hindu Dera and not a Sikh
Gurudwara. Subsequently, and after the passing of the Sikh
Gurudwara Act, 1925, 64 Sikhs sue for a declaration that
the institution is a Sikh Gurudwara. The suit is not
barred by res judicata as in the former suit, the plaintiffs
were a sect of religious reformers and were not litigating on
behalf of the general body of Sikhs.39

Government land was transferred in 1888 in trust and

vested in the Municipal Committee of Lahore. Thereafter,
the defendants encroached upon the land, and no act ion
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was taken by the committee till 1925, when a notice was

served upon the defendant asking him to remove the
encroachment. Defendant No. 1 thereupon, brought a suit
for a declaration that he and his brothers were owners of
the land, and had in any case acquired an indefeasible title
by adverse possession. The defendant succeeded on the
latter plea. In 1933, the Secretary of State for India,
who was not a party to the earlier litigation, sued for
possession of the land. It was held that the Municipal
Committee being constituted the trustee for the land
represented the title for the time being, and the decree
obtained against it operated as res
judicata in the suit by government.40

The plaintiffs, claiming to be trustees of the Malankara

Jacobite Syrian Church, sued for possession of properties
belonging to the church claiming that they were the lawful
trustees and alleging that the defendants who had ceased to
belong to that church were not its lawful trustees. There
was a previous suit which was commenced as an inter-
pleader suit but was converted into a representative action
on behalf of the Syrian Christians of Malabar and the
decision thereon affirmed the rights of the defendants. It
was held by the Supreme Court that this decision was
binding on all Jacobite Syrian Christians and the
subsequent suit was accordingly, barred as res
judicata. 41

However, a shebait, a trustee of a devarstham, a mutavali, a karnum, a holder of vatan or

saranjam lands, an administrator of the estate of a deceased
person, a holder of an inam
grant, represents each his successor; therefore, a decree
against him will bind his successor. If, however, the trustee of a temple,
42

instead of representing the interest of the idol, allows a

decree to be passed ex parte, the decree will not operate as
res judicata in a suit by the succeeding trustee.43 Though a
decree passed in a scheme suit under s 92 will be binding as
res judicata on all the members of the public under
explanation VI, that does not bar a suit for modification of
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the same.44 A decree against the karnavan of a tarwad in his representative

capacity binds the members of the tarwad.
45 There are certain purposes for which the
official assignee represents the insolvent. When, however, the official assignee
46

brings the insolvents property to sale for the benefit of the

creditors, he represents the whole body of creditors. When
a claim to an attached house was dismissed, and on the
insolvency of the judgment-debtor, the claimant filed a suit
to establish his title to the house as against the
official assignee, the suit was not barred by res judicata as
the official assignee represented not the
judgment-debtor but the whole body of creditors.47 A
benamidar represents the real owner, and a decree against
the benamindar binds the owner.48 So also, a
decree obtained against the benamindar s heir. A decree passed in a suit against a
49

farzidar is binding on the real owner in the absence of fraud

of collusion.50 It has been
held by the Patna High Court51 that the rule that the benamidar represents the
real owner has application only when there is a real transfer
by A to B, but the deed is
taken in the name of X for the benefit of B,
but that when there is no real transfer and A puts the deed in the name
of B without intending to vest any title in him, B does not
represent A and a decree against him is not binding on A.
Though there is a well-recognised distinction between the
two classes of transactions,52 it is submitted that for the
purpose of s 11, they stand on the same footing.

62 . Ins. by
CPC (Amendment) Act 104 of 1976, s 6 (w.e.f. 1-2-1977).

63 . Satyadhan v. DeorajinDebi,
AIR 1960 SC 941 [
LNIND 1960 SC 129 ]. See also Shanmughasundaram v.
Diravia Nadar,
AIR 2005 SC 1836 [
LNIND 2005 SC 255 ] (DB).
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64 . Daryao v. State of UP,

(1962) 1 SCR 574 [
LNIND 1961 SC 133 ].

65 . Medapati Surayya v. Tondapu Bala Gangadhare Ramakrishna Reddi,

AIR 1948 (35) PC 3 ; See also V. Rajeshwari v. T.C.
Saravanabava,
(2003) 10 Scale 768 [
LNIND 2003 SC 1102 ].

66 . ITC Ltd. v. Commr of Central Excise, New Delhi,

AIR 2005 SC 1370 [
LNIND 2004 SC 1459 ].

67 . Bharathi Amma v. Kumaran Peethambaran,

AIR 1990 Ker 88 [
LNIND 1989 KER 301 ].

68 . Escorts Farms Ltd. v. Commr, Kumauon Division, Nainital,

AIR 2004 SC 2186 :
AIR 2004 SCW 1960 .

69 . Ibid.

70 . 2 Smiths LC, 13th edn, pp 644-45.

71 . Ghulam Abbas v. State of Uttar Pradesh,

(1982) 1 SCC 71 [
LNIND 1981 SC 425 ].

72 . Daryao v. State of
UP,
(1962) 1 SCR 574 [
LNIND 1961 SC 133 ]. See also ITC Ltd. v. Commr of
Central Excise, (New Delhi),
AIR 2005 SC 1370 [
LNIND 2004 SC 1459 ].

73 . Deewan Singh v. Rajendra Prasad Ardevi,

AIR 2007 SC 767 [
LNIND 2007 SC 6 ]:
(2007) 10 SCC 528 [
LNIND 2007 SC 6 ].

74 .
AIR 1930 PC 22 : 57 IA 24 (Lord Justice Darling, speaking for the
Bench).

75 .
AIR 1916 PC 78 : 43 IA 91.
 Page 157 of 217
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76 . Lal Chand v. Radha Kishan,

AIR 1977 SC 789 [
LNIND 1976 SC 501 ]:
(1977) 2 SCC 88 [
LNIND 1976 SC 501 ] :
(1977) 2 SCR 522 [
LNIND 1976 SC 501 ] at p. 532 (of SCR).

77 . K. Ethirajan v. Lakshmi,
AIR 2003 SC 4295 :
AIR 2003 SCW 4951 .

78 . Jaswant Singh v. Custodian of Evacuee Property,

(1985) 3 SCC 648 [
LNIND 1985 SC 180 ].

79 . UOI v. Pramod Gupta,

AIR 2005 SC 3708 [
LNIND 2005 SC 682 ]:
AIR 2005 SCW 4645 :
(2005) 8 JT 203 [
LNIND 2005 SC 682 ] SC.

80 . Hansraj v. State of Punjab, (1995) Supp 1 SCC 405.

81 . Krishna Chand Nayak v. Neela Kanthi Mohanti,

AIR 1996 Ori 1 [
LNIND 1995 ORI 202 ]. See also Madhukar D. Shende v.
Tarabai Aba Shedage,
AIR 2002 SC 637 [
LNIND 2002 SC 18 ].

82 . Rehana Praveen v. Naimuddin,

AIR 2000 MP 1 [
LNIND 1999 MP 75 ].

83 . Maghraj Calla v. Kajodimal,

AIR 1994 Raj 11 .

1 . Gangabai v. Chabubai,
(1982) 1 SCC 4 [
LNIND 1981 SC 428 ].

2 . Lockyer v. Ferryman,
(1877) LR 2 A 7519; Raja of Venkatagiri v. Province of
Madras,
AIR 1947 Mad 5 , (1947) ILR Mad 190; Sobha Singh & Sons
v. Delhi Administration,
AIR 1967 Punj 193 :
(1967) ILR 1 Punj 673.
 Page 158 of 217
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3 . King v. Hoare, (1844) 13 M&W 494, p. 504; Kendall v. Hamilton,

(1879) LR 4 AC 504, p. 526; Ramagya Prasad v. Murli
Prasad,
AIR 1974 SC 1320 [
LNIND 1974 SC 149 ]:
(1974) 2 SCC 266 [
LNIND 1974 SC 149 ].

4 . N. Birendra Singh v. Priyokumar Singh,

AIR 2006 SC 2228 [
LNIND 2006 SC 362 ].

5 . Deva Ram v. Ishwar Chand,

(1995) 6 SCC 733 [
LNIND 1995 SC 992 ].

6 . Venkata Seshayya v. Koteswara,

AIR 1937 PC 1 : (1937) ILR Mad 263 : 64 IA 17; Pandurang v. MRT, Nagpur,
AIR 1974 Bom 20 [
LNIND 1972 BOM 84 ]:
(1974) ILR Bom 816 :
(1973) Mah LJ 792 .

7 . Venkata Seshayya v. Koteswara,

AIR 1937 PC 1 : (1937) ILR Mad 263 : 64 IA 17; Nagamma v. Korathi,
AIR 1950 Mad 546 [
LNIND 1949 MAD 29 ]: (1950) ILR Mad 326.

8 . Baboo v. Kirpa,
AIR 1950 All 488 [
LNIND 1950 ALL 75 ].

9 . Pandurang v. Maruti,
AIR 1966 SC 153 [
LNIND 1965 SC 151 ]:
(1966) 1 SCR 102 [
LNIND 1965 SC 151 ] :
(1966) 68 Bom LR 41 .

10 . Tarini Charan v. Kedar Nath,

AIR 1928 Cal 777 (FB) : (1928) 33 Cal WN 126; Mohanlal v. Benoy Krishna,
AIR 1953 SC 65 [
LNIND 1952 SC 88 ]:
(1953) SCR 377 [
LNIND 1952 SC 88 ] :
(1953) SCJ 130 [
LNIND 1952 SC 88 ]; M.S.M. Sarma v. Sri Krishna Sinha,
AIR 1960 SC 1186 [
LNIND 1960 SC 168 ]:
(1961) SCR 96 :
(1961) 2 SCJ 73 [
LNIND 1960 SC 168 ] :
(1961) 2 SCA 582 [
 Page 159 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

LNIND 1960 SC 168 ]; Govardanam Appalacharyulu v.

Govardhanam Rangacharyulu,
AIR 1957 AP 1002 [
LNIND 1956 AP 73 ]: (1956) Andh WR 954; Madathipathi v. Bhargavan,
(1957) Ker LJ 857 :
(1957) Ker LT 1033 ; Dhirendranath v. Naresh Chandra,
AIR 1958 Cal 453 [
LNIND 1958 CAL 23 ]: (1958) 62 Cal WN 596; Jaljodhan Singh v. Kripa Singh,
AIR 1963 Punj 178 :
(1963) 65 Punj LR 26 ; Abdul Wasey v. State,
AIR 1978 All 247 .

11 . Behari v. Majid,
(1901) ILR 24 All 138; Phundo v. Jangi Nath,
(1893) ILR 15 All 327; Gowri Koer v. Audh Koer,
(1884) ILR 10 Cal 1087; Mohideen v. Syed Osman, (1918) Mad
WN 580; Tani v. Tarachand,
(1918) PR 82 .

12 . Fulchand Motilal v. Manhar Lal,

AIR 1973 Pat 196 . See also Radhika Konel Parekh v. Konel
Parekh,
AIR 1993 Mad 90 [
LNIND 1992 MAD 299 ].

13 .
AIR 1977 SC 1680 [
LNIND 1977 SC 167 ]:
(1977) 2 SCC 806 [
LNIND 1977 SC 167 ] :
(1977) Lab IC 911 [
LNIND 1977 SC 167 ].

14 . Workmen v. Straw Board Mfg. Co.,

AIR 1974 SC 1132 [
LNIND 1974 SC 114 ]:
(1974) Lab IC 730 [
LNIND 1974 SC 114 ]. See also Pondicherry Khadi & Village
Industries Board v. P. Kulothangan,
AIR 2003 SC 4701 [
LNIND 2003 SC 933 ].

15 . Ibid.

16 .
AIR 1978 SC 1283 [
LNIND 1978 SC 158 ]:
(1978) 3 SCC 119 [
LNIND 1978 SC 158 ] :
(1978) Lab IC 1111 [
LNIND 1978 SC 158 ].

17 .
AIR 1989 SC 1769 [
LNIND 1989 SC 347 ].
 Page 160 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

18 . Pondicherry Khadi & Village Industries Board v. P. Kulothangan,

AIR 2003 SC 4701 [
LNIND 2003 SC 933 ].

19 . KPTC Ltd. v. Amalgamated Electricity Co. Ltd.,

AIR 2001 SC 291 [
LNIND 2000 SC 394 ].

20 . Ibid.

21 . Executive Engineer, ZP Engg., Division v. Digambara Rao,

AIR 2004 SC 4839 [
LNIND 2004 SC 994 ]:
AIR 2004 SCW 5546 .

22 . Iswar Dutt v. Land Acquisition Collector,

AIR 2005 SC 3165 [
LNIND 2005 SC 570 ].

23 . Cassomally v. Carrimbhoy,
(1911) ILR 36 Bom 214; Bhagirathi v. Balishwar,
(1913) ILR 41 Cal 69; Raja of Venkatagiri v. Province of
Madras,
AIR 1947 Mad 5 ; Radha Rani v. Binoda Moyee,
AIR 1942 Cal 92 :
(1942) 1 ILR Cal 169 .

24 . Isabella Johnson v. M.A. Susai,

AIR 1991 SC 993 [
LNIND 1990 SC 589 ].

25 . Radha Rani v. Binoda Moyee,

AIR 1942 Cal 92 :
(1942) 1 ILR Cal 169 .

26 .
(1886) ILR 8 All 324, p. 332.

27 . Delhi Golf Club Ltd v. NDMC,

AIR 1997 Del 347 [
LNIND 1997 DEL 545 ].

28 . State of Uttar Pradesh v. Nawab Hussain,

AIR 1977 SC 1680 [
LNIND 1977 SC 167 ]:
(1977) 2 SCC 806 [
LNIND 1977 SC 167 ].
 Page 161 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

29 . Ibid, para 23.

30 . Bhanu Kumar Jain v. Archana Kumar,

AIR 2005 SC 626 [
LNIND 2004 SC 1265 ]:
(2005) 1 SCC 787 [
LNIND 2004 SC 1265 ].

31 .
AIR 2010 Cal 19 [
LNIND 2009 CAL 522 ]:
2011 ACJ 622 .

32 .
AIR 1960 SC 941 [
LNIND 1960 SC 129 ]:
(1960) 3 SCR 590 [
LNIND 1960 SC 129 ], at p. 594 (of SCR).

33 . Gujarat Electricity Board v. Saurashtra Chemicals,

AIR 2004 Guj 83 [
LNIND 2003 GUJ 387 ] (DB).

34 . Gujarat Electricity Board v. Saurashtra Chemicals,

AIR 2004 Guj 83 [
LNIND 2003 GUJ 387 ] (DB).

35 . Ibid.

36 . Anadi Mohan Rashit v. Nalin Sarker Street UP School,

AIR 2002 Cal 22 [
LNIND 2001 CAL 51 ] (DB).

37 . Awadhesh Narain Pandey v. District Inspector of Schools, Varanasi,

AIR 2006 (NOC) 1266 (All) :
(2006) AIHC 1825 .

38 . Renu v. Baboolal, 2007 (3) Civil Court C 301 :

2007 (3) Raj LW 2508 .

39 . Digambarrao Hanmantrao Deshpande v. Rangrao Raghunathrao Desai,

AIR 1949 Bom 367 (DB).

40 . Ibid.
 Page 162 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

41 . Ibid.

42 . Digambarrao Hanmantrao Deshpande v. Rangrao Raghunathrao Desai,

AIR 1949 Bom 367 (DB).

43 . Mustafai Begam v. Raghuraj Singh,

AIR 1937 All 108 (DB).

44 . Official Assignee v. Jagabandhu Mullick,

AIR 1934 Cal 552 (DB).

45 . Digambarrao Hanmantrao Deshpande v. Rangrao Raghunathrao Desai,

AIR 1949 Bom 367 (DB).

46 . Thoday v. Thoday,
(1964) 1 All ER 341 .

47 . Barber v. Staffordshire Country Council,

(1996) 2 All ER 748 .

48 .
(1991) 3 All ER 41 .

49 . Bhanu Kumar Jain v. Archana Kumar,

AIR 2005 SC 626 [
LNIND 2004 SC 1265 ]:
AIR 2005 SCW 270 .

50 . Mathura Prasad Bajoo Jaiswal v. Dossibai NB Jeejeabhoy,

AIR 1971 SC 2355 [
LNIND 1970 SC 84 ]; See Also Secunderabad Cantonment
Board v. Mohammed Mohinddin,
AIR 2004 SC 784 [
LNIND 2003 SC 1039 ]:
AIR 2003 SCW 6973 .

51 . Krishna Chand Nayak v. Neela Kanthi Mohanti,

AIR 1996 Ori 1 [
LNIND 1995 ORI 202 ]; See also Madhukar D. Shende v.
Tarabi Aba Shedage,
AIR 2002 SC 637 [
LNIND 2002 SC 18 ].

52 . Bharathi Amma v. Kumaran Peethambaran,

AIR 1990 Ker 88 [
LNIND 1989 KER 301 ].
 Page 163 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

53 . Ram Harakh v. Hamid Ahmed Khan,

(1987) 7 SCC 484 .

54 . General Manager (PA), Allahabad Bank v. Shib Sankar Mukherjee,

AIR 2010 Cal 105 [
LNIND 2010 CAL 29 ] (FB).

55 . Puranmal Bajoria v. Nagarmal,

AIR 1980 Pat 143 .

56 . C.V. Rajendran v. N.M. Muhammed Kunhi,

AIR 2003 SC 649 [
LNIND 2002 SC 573 ]. See also Apprnanath v. Kanailal,
AIR 1950 Cal 300 ; Ramchandra v. Ramchandra,
AIR 1922 PC 80 :
(1922) ILR 45 Mad 320 : 49 IA 129, p. 138; Maharajadhiraj Sir Rameshwar
Singh v. Hitendra Singh, (1925) 29 Cal WN 413 (PC), Bank of Baroda v. Fischo,
AIR 1975 Cal 225 [
LNIND 1974 CAL 18 ]: (1974) 78 Cal WN 535; Suryanarayanrao v. Rajeshwari,
AIR 1966 AP 269 [
LNIND 1965 AP 84 ]; Abdul Ghani v. Mahant Ram Saran,
AIR 1976 J&K 72. Rajalakshmi v. Banamali,
AIR 1953 SC 33 [
LNIND 1952 SC 59 ]:
(1953) SCR 154 [
LNIND 1952 SC 59 ]; Burn & Co. v. Employees,
AIR 1957 SC 38 [
LNIND 1956 SC 78 ]:
(1956) SCR 781 [
LNIND 1956 SC 78 ] :
(1957) SCJ 28 :
(1957) SCA 1175 ; MSM Sarma v. Krishna Sinha,
AIR 1960 SC 1186 [
LNIND 1960 SC 168 ]:
(1961) 1 SCR 96 [
LNIND 1960 SC 168 ] :
(1961) 2 SCJ 73 [
LNIND 1960 SC 168 ] :
(1961) 2 SCA 582 [
LNIND 1960 SC 168 ]; Daryao v. State of Uttar Pradesh,
AIR 1961 SC 1457 [
LNIND 1961 SC 133 ]:
(1962) 1 SCR 574 [
LNIND 1961 SC 133 ] :
(1962) 1 SCJ 702 [
LNIND 1961 SC 133 ]; Staya Dhyan v. Deo Ranjini Debi,
AIR 1960 SC 941 [
LNIND 1960 SC 129 ]:
(1960) 3 SCR 590 [
LNIND 1960 SC 129 ] :
(1961) 1 SCA 10 ; Abdul Shukur v. Kotwaleshwar,
AIR 1958 All 54 [
LNIND 1957 ALL 55 ]; Corporation of Calcutta v. Sirajuddin
& Co.,
AIR 1957 Cal 399 [
LNIND 1957 CAL 41 ]: (1957) 61 Cal WN 1009; Benode Behari v. State of West
Bengal,
AIR 1971 Cal 400 [
LNIND 1971 CAL 63 ]; Braj Bhushan v. Nigendra Singh,
AIR 1977 Pat 129 ; Y.B. Patil v. Y.L. Patil,
AIR 1977 SC 392 [
LNIND 1976 SC 289 ]:
(1977) 1 SCR 320 [
 Page 164 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

LNIND 1976 SC 289 ]; Prabhu Halwai v. Fulchand,

AIR 1969 Pat 16 .

57 . UP State Road Transport Corpn. v. State of Uttar Pradesh,

AIR 2005 SC 446 [
LNIND 2004 SC 1187 ]:
AIR 2004 SCW 7025 .

58 . Barkat Ali v. Badri Narain,

AIR 2008 SC 1272 [
LNIND 2008 SC 260 ]:
(2008) 4 SCC 615 [
LNIND 2008 SC 260 ].

59 . Ibid, para 7 at p. 1274 (of AIR).

60 . Sarojini Prabhu v. Pappikutty Adiesiar,

AIR 2007 Ker 44 [
LNIND 2006 KER 703 ].

61 . Bahadur Singh v. Avtar Singh, 2007 (3) Civil Court C 417 : 2007 (3) Rec
Civ R 44.

62 . Gokulram Farms and Estates Pvt. Ltd. v. Muneer Pasha,

AIR 2008 (NOC) 2239 (KAR) :
2008 AIHC 3044 (DB).

63 . Kalianchand v. Sitabai(1914) 38 Bom. 309; Venkataratnam v.

Yanamandara(1924) 46 Mad. L.J. 383, (24) A.M. 578.

64 . Jayanthi Bai v. Popular Bank Ltd., (1966) 2 Ker. 187, 1966 A. Ker. 296.

65 . Rajmal v. Maruti(1921) 45 Bom. 329 (21) A.B. 389; Abdul Aziz v.

Chandu(1925) 27 Bom. L.R. 652, (25) A.B. 418. But see Guru Charan v. Uma Charan(1921) C.W.N. 940.

66 . Arikapudi v. Yadlapalli, (1946) Mad. 566, (46) A.M. 509; Venkata v.

Venkatarama, (1899) 22 Mad. 256, 257.

67 . Nherapoyil P. Moiden v. K. Narayanan Nair,

AIR 1997 Ker 318 [
LNIND 1997 KER 402 ].

68 . See note Section not exhaustive, below.

 Page 165 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

69 . Kalianchand v. Sitabai,
(1914) ILR 38 Bom 309; Venkataratnam v. Yanamandara,
AIR 1924 Mad 578 : (1924) 46 Mad LJ 383.

70 . Jayanthi Bai v. Popular Bank Ltd.,

AIR 1966 Ker 296 [
LNIND 1965 KER 331 ]:
(1966) ILR 2 Ker 187.

71 . Rajmal v.
Maruti,
AIR 1921 Bom 389 :
(1921) ILR 45 Bom 329; Abdul Aziz v. Chandu,
AIR 1925 Bom 418 :
(1925) 27 Bom LR 652 . See also Guru Charan v. Uma
Charan, (1921) 25 Cal WN 940.

72 . Arikapudi v. Yadlapalli,
AIR 1946 Mad 509 : (1946) ILR Mad 566; Venkata v. Venkatarama,
(1899) ILR 22 Mad 25657.

73 . Beni Madhab v. Abdul Razak,

AIR 1933 Cal 673 : (1933) 37 Cal WN 390.

74 . Amirthalinga v. Chandrasekhara,
AIR 1945 Mad 242 [
LNIND 1945 MAD 62 ]: (1946) ILR Mad 36; Srish v. Kala Chand,
AIR 1942 Cal 445 :
(1942) ILR 1 Cal 510; Prem Nath v. Her Ram,
AIR 1934 Lah 771 .

75 . Arikapudi v. Yadlapali,
AIR 1946 Mad 509 : (1946) ILR Mad 566; Sankaran Nambudri v. Parameswaran
Nambudri,
AIR 1959 Ker 156 [
LNIND 1958 KER 91 ]: (1958) ILR Ker 1184; Balakotayya v. Nagayya,
AIR 1946 Mad 506 .

76 . Budhu Singh v. Board of Revenue,

AIR 1957 All 719 [
LNIND 1957 ALL 120 ].

77 . LH Sugar Factories and Oil Mills v. State of Uttar Pradesh,

AIR 1962 All 70 [
LNIND 1961 ALL 21 ].

78 . Haridas Mondal v. Ananthanath Mitra,

AIR 1961 SC 1419 [
LNIND 1961 SC 68 ].
 Page 166 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

79 . Pondicherry Khadi & Village Industries Board v. P. Kulothangan,

AIR 2003 SC 4701 [
LNIND 2003 SC 933 ]. See also Executive Engineer, ZP Engg
Division v. Digambara Rao,
AIR 2004 SC 4839 [
LNIND 2004 SC 994 ]:
AIR 2004 SCW 5546 .

1 . Sadanand Keot v. Juna Ram Saikia,

AIR 1998 Guj 109 .

2 . Arjun Singh v. Mohindra Kumar,

AIR 1964 SC 993 [
LNIND 1963 SC 296 ]. See also Tara Devi v. District Judge,
Basti,
AIR 2003 All 64 [
LNIND 2002 ALL 1079 ].

3 . Kashi Bai v. Sundarlal Vaidh,

AIR 2007 MP 112 [
LNIND 2006 MP 506 ] (Gwalior Bench).

4 . R.B.K. Rajeswari Nachiar v. N.N.S.A. Mohammed Kasim,

AIR 2007 Mad 155 [
LNIND 2006 BMM 158 ]: 2007 (53) All Ind cas 504
(Madurai Bench).

5 . Ibid.

6 . Arjun Singh v. Mohindra Kumar,

AIR 1964 SC 993 [
LNIND 1963 SC 296 ]. See also Tara Devi v. District Judge,
Basti,
AIR 2003 All 64 [
LNIND 2002 ALL 1079 ].

7 . Prahlad Singh v. Niyaz Ahmad,

AIR 2001 All 78 [
LNIND 2000 ALL 230 ].

8 . Prabhunath Dixit v. Third Addl Distt Judge, Deoria,

AIR 2001 All 355 [
LNIND 2001 ALL 626 ].

9 . Mahadeo Mahto v. Hiralal Venna,

AIR 1991 Pat 235 .

10 . Prahlad Singh v. Sukhdev Singh,

(1987) 1 SCC 727 .
 Page 167 of 217
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11 . Ganeshprasad Badrinarayan Lahoti v. S.J. Chourasiya,

AIR 2004 SC 4158 [
LNIND 2004 SC 1548 ]:
AIR 2004 SCW 4607 .

12 . Madan Lal Khutala v. Badri Narayan,

AIR 1988 Raj 61 . See also Bhura v. Addl Distt Judge, Jaipur,
AIR 2004 Raj 67 .

13 . Anirudha Adhikari v. Amarendra Adhikari,

AIR 1988 Ori 42 [
LNIND 1987 ORI 116 ].

14 . Nityanand Ghosh v. Alo Rani Ghosh,

AIR 2000 Cal 89 [
LNIND 1999 CAL 336 ].

15 . Pillai Narasimhaswamy Patrudu v. Bank of Baroda,

AIR 1982 AP 240 [
LNIND 1981 AP 237 ].

16 . Vajjala Sree Rame Murthy v. Tadepalli Narayane Murthy,

AIR 2006 AP 315 [
LNIND 2006 AP 522 ].

17 . Prahlad Singh v. Col. Sukhdar Singh,

AIR 1987 S.C. 1145
(1987) 1 SCC 727 ; Satya Dhan Ghosal v. Deoranjan Debi,
A.I.R. 1960 S.C. 941 [
LNIND 1960 SC 129 ]:
(1960) 3 SCR 590 [
LNIND 1960 SC 129 ] reiterated.

18 . Thressiamma v. Sebastian Mathew,

AIR 2002 Ker 1 .

19 . Banwarilal Radha Mohan v. Punjab State Co-op. Supply and Mktg.

Federation Ltd.,
AIR 1983 Del 86 [
LNIND 1982 DEL 229 ].

20 . Dhanwati Joshi v. Madhav Unde,

(1998) 1 SCC 112 [
LNIND 1997 SC 1387 ].

21 . Punjab & Sindh Bank v. Manjit Properties Pvt. Ltd.,

AIR 1995 Del 355 [
LNIND 1995 DEL 206 ].
 Page 168 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

22 .
AIR 1977 SC 392 [
LNIND 1976 SC 289 ].

23 .
AIR 1987 SC 1145 .

24 . Narayan Das v. Second Addl District Judge, Muradabad,

AIR 1999 All 74 [
LNIND 1998 ALL 444 ].

25 . Rajendra Kumar v. Kalyan,

AIR 2000 SCW 3537 :
(2000) 8 SCC 99 [
LNIND 2000 SC 1044 ].

26 . Bishwanath Prasad Singh v. Rajendra Prasad,

AIR 2006 SC 2965 [
LNIND 2006 SC 146 ].

27 . Ibid.

28 . Hari Ram v. Lichmaniya,

AIR 2003 Raj 319 .

29 . Balkishen v. Kishan Lal,

(1889) ILR 11 All 148; Ram Lal v. Chab Nath,
(1890) ILR 12 All 578; Beni Madho v. Indar Sahai,
(1909) ILR 32 All 67; Gurujammah v. Venkatta,
(1901) ILR 24 All 350.

30 . Isup Ali v. Gour Chandra,

AIR 1923 Cal 496 :
(1923) 37 Cal LJ 184 ; Lonakutty v. Thomman,
AIR 1976 SC 1645 [
LNIND 1976 SC 179 ].

31 . Chokalinga v.
Sankarappa,
AIR 1942 Mad 421 [
LNIND 1941 MAD 279 ]: (1942) ILR Mad 677; Rangachariar v. Rangaswami,
AIR 1936 Mad 190 ; Krishnan v. Kambi,
AIR 1937 Mad 544 [
LNIND 1936 MAD 372 ].

32 . Narahari v. Shankar,
AIR 1953 SC 419 : [1950] SCR 754; Sukhlal v. Deep Chand,
AIR 1954 Raj 58 [
LNIND 1953 RAJ 88 ]: (1954) ILR Raj 17; K Bivi Ammal v. A. Nadar,
 Page 169 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

AIR 1970 Mad 76 [

LNIND 1968 MAD 132 ]: (1969) 1 Mad LJ 241; Tulison Traders v. Gurdit
Singh,
AIR 1974 Del 190 [
LNIND 1973 DEL 212 ].

33 . Man Mohan v. Shib Chandra,

AIR 1931 Cal 353 : (1930) 34 Cal WN 839; Shankar v. Bhagwati Sahai,
AIR 1946 Oudh 33 (FB) :
(1945) ILR 20 Luck 339; Monohar Vinayak v. Laxman,
AIR 1947 Nag 348 : (1947) ILR Nag 691; Damodar v. Narayan,
AIR 1941 Nag 199 ; Abdul Majid v. Jew Narain,
(1889) ILR 16 Cal 233; Mariamnissa v. Jaynab,
(1906) ILR 33 Cal 1101; Punchanada v. Vaithinatha,
(1906) ILR 29 Mad 333; Ramaswami v. Karwooan, (1915) 29
Mad LJ 551; Sinnana v. Muthupalani,
AIR 1926 Mad 378 [
LNIND 1925 MAD 152 ]; Lacchmi v. Bhulli,
AIR 1927 Lah 289 (FB) : (1927) 8 Lah 384; Ghansham v. Bhola Singh,
AIR 1923 All 490 :
(1923) ILR 45 All 506; Sriram v. Sripath Singh,
AIR 1957 All 106 [
LNIND 1956 ALL 134 ]; Umrao v. Munni,
AIR 1958 Punj 83 : (1957) ILR Punj 1080; Abraham v. Abraham,
AIR 1959 Ker 75 [
LNIND 1958 KER 50 ]: (1958) ILR Ker 643; Sarvannath v. Ram Kishen,
AIR 1963 Punj 131 :
(1962) ILR 1 Punj 76; Subramonian v. Nagarama,
AIR 1954 TC 235 ; Ram Surat v. Ram Murat,
AIR 1955 All 543 [
LNIND 1954 ALL 226 ].

34 . Raghunandan v. Soubhagya,
AIR 1948 Pat 191 ; Getrude Oates v. Milicent DSILVA,
AIR 1933 Pat 78 ,
(1933) ILR 12 Pat 139; Dhani Singh v. Sri Chandra,
AIR 1924 Pat 823 .

35 . Anwar Ali v. Ameer Ali,

AIR 1925 Rang 104 : (1925) 2 Rang 633.

36 . Isuf Ali v. Gour,

AIR 1923 Cal 496 :
(1923) 37 Cal LJ 184 .

37 . Sumi Devi v. Pranakrushna,

AIR 1956 Ori 68 : (1956) ILR Cut 319.

38 . Bhagwan v. Daryao Kuman,

AIR 1963 All 210 [
LNIND 1962 ALL 174 ] (FB).

39 . Maniram Saikia v. Bordolo,

AIR 1990 Gau 32 [
LNIND 1989 GAU 30 ].
 Page 170 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

40 . Tata Chemicals Ltd. v. Sadhu Singh,

AIR 1994 All 66 [
LNIND 1993 ALL 196 ].

41 . Jai Narain v. Bulaqi Das,

AIR 1969 All 504 .

42 . Ramayya Prasad v. Murli Prasad,

AIR 1974 SC 1320 [
LNIND 1974 SC 149 ]:
(1974) 2 SCC 266 [
LNIND 1974 SC 149 ].

43 .
AIR 1953 SC 419 :
(1950) SCR 754 ; Sukhlal v. Deep Chand,
AIR 1954 Raj 58 [
LNIND 1953 RAJ 88 ]:
(1954) ILR 4 Raj 17; K. Bivi Ammal v. A. Nadar,
AIR 1970 Mad 76 [
LNIND 1968 MAD 132 ]: (1969) 1 Mad LJ 241; Tulison Traders v. Gurdit
Singh,
AIR 1974 Del 190 [
LNIND 1973 DEL 212 ]:
(1974) ILR 1 Del 190.

44 .
AIR 1923 All 490 (FB) :
(1923) ILR 45 All 506.

45 .
(1907) ILR 29 All 730.

46 .
(1911) ILR 33 All 51.

47 . Beharilal v.
Ramchandra,
AIR 1942 Oudh 335 :
(1942) ILR 17 Luck 702; Nannu v. Nazim,
AIR 1928 All 274 :
(1928) ILR 50 All 517.

48 . Natesa Chettiar v. N. Krishniah,

AIR 1971 AP 179 [
LNIND 1970 AP 16 ].

49 . Gangadhar v. Sekali,
AIR 1921 Cal 291 :
(1921) 34 Cal LJ 281 ; Abdul Basit v. Ashfaq, (1908) 28 All
WN 211, p. 213; Lacchmi v. Bhulli,
 Page 171 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

AIR 1927 Lah 289 :

(1928) ILR 8 Lah 384, pp 404-14; contra Manohar Vinay v.
Laxman,
AIR 1947 Nag 298 : (1947) ILR Nag 691; Ramakrishna v. Chandrasekhara,
AIR 1953 Mys 114 : (1951) ILR Mys 503; Despal v.
Parswanath,
AIR 1956 Raj 166 [
LNIND 1955 RAJ 187 ]: (1956) ILR Raj 127.

50 . S. Kandaswami Chettiar v. R.A. Murugesa,

AIR 1983 Mad 333 .

51 . Chandra Singh v. Midnapore Zamindari,

AIR 1942 PC 8 , 69 IA 51.

52 . Nalininath v. Bipin Bihari,

AIR 1956 Cal 525 [
LNIND 1956 CAL 78 ].

53 . Khetra Mohan v. Rasananda,

AIR 1962 Ori 141 [
LNIND 1961 ORI 49 ].

54 . International Wollen Mills v. Standard Wool (UK) Ltd.,

AIR 2001 SC 2134 [
LNIND 2001 SC 1066 ].

55 . Madhukar D. Shende v. Tarabai Aba Shedage,

AIR 2002 SC 637 [
LNIND 2002 SC 18 ]. See also Tirumala Tirupati
Devasthanams v. K.M. Krishnaiah,
AIR 1998 SC 1132 [
LNIND 1998 SC 271 ]:
AIR 1998 SCW 945 :
(1998) 3 SCC 331 [
LNIND 1998 SC 271 ].

56 . Swamy Atmananda v. Sri Ramakrishna Tapovanam,

AIR 2005 SC 2392 [
LNIND 2005 SC 371 ]. See also Commissioner of Endowments
v. Vital Rao,
AIR 2005 SC 454 [
LNIND 2004 SC 1184 ]:
AIR 2004 SCW 7036 .

57 . Escorts Farms Ltd. v. Commr, Kumauon Division, Nainital,

AIR 2004 SC 2186 :
AIR 2004 SCW 1960 .

58 . Ibid, para 51 and 52 at p. 2202-2203 (of AIR).

 Page 172 of 217
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59 . S. Labbai v.
Hanifa,
AIR 1976 SC 1569 [
LNIND 1976 SC 115 ]; Perraju v. Venkamma,
AIR 1971 AP 74 [
LNIND 1969 AP 99 ].

2 . Mathura Prasad Bajoo Jaiswal v. Dossibai NB Jeejeebhoy,

AIR 1971 SC 2355 [
LNIND 1970 SC 84 ]. See also Secunderabad Cantonement
Board v. Mohammed Mohiuddin,
AIR 2004 SC 784 [
LNIND 2003 SC 1039 ]:
AIR 2003 SCW 6973 ; Ashok Kumar Yadav v. Noble Designs Pvt.
Ltd.,
AIR 2006 Cal 237 [
LNIND 2006 CAL 321 ].

3 .
(1875) ILR 1 Cal 144 : 2 IA 283, p. 285; Soorjomonee Dayee
v. Suddannud, 1 IA Supp 212 : (1874) 12 Beng LR 304.

4 . Gauri Shankar v. Ram Singhasan,

AIR 1952 Pat 472 ; Chiranji Lal v. Life Insurance Corpn,
AIR 1959 Bom 396 [
LNIND 1958 BOM 60 ]:
(1959) ILR Bom 140 .

5 . Three Aces, Hyderabad v. Municipal Corpn. of Hyderabad,

AIR 1995 AP 17 [
LNIND 1994 AP 304 ].

6 . Mangu Ramdas v. M. Venkataraman,

AIR 1973 AP 256 [
LNIND 1971 AP 163 ]; Basti Ram v. Ved Prakash, AIR 1974
P&H 152; Hanumant Rao v. Amrutnamma,
AIR 1966 AP 221 [
LNIND 1964 AP 238 ].

7 . Soorjomonee v. Suddanund, (1873) 12 Beng LR 304 : 1 IA Supp 212;

Lilabati v. Bishun Chobey,
(1907) 6 Cal LJ 621 .

8 . Lonakutty v. Thomman,
AIR 1976 SC 1645 [
LNIND 1976 SC 179 ].

9 . Sheo Ratan v. Sheo Sahai,

(1884) ILR 6 All 358, p. 362; Sharma Churn v. Prosunno,
(1879) 5 Cal LR 251 .
 Page 173 of 217
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10 . Bharathi Amma v. Kumaran Peethambharan,

AIR 1990 Ker 88 [
LNIND 1989 KER 301 ].

11 . Avtar Singh v. Jagjit Singh,

AIR 1979 SC 1911 [
LNIND 1979 SC 299 ]:
(1980) 1 SCJ 181 .

12 . Jaswant Singh v. Custodian of Evacuee Property,

AIR 1985 SC 1096 [
LNIND 1985 SC 180 ]:
(1985) 3 SCC 648 [
LNIND 1985 SC 180 ].

13 . M. Seshareddy v. K. Gopalreddy,
AIR 1987 AP 1 [
LNIND 1985 AP 240 ] (DB).

14 . Shankar Sahai v. Bhagwat Sahai,

AIR 1946 Oudh 33 (FB) :
(1945) ILR 20 Luck 339; Sheoparsan v. Ramnandan,
(1916) ILR 43 Cal 694, p. 706, 43 IA 91; followed in Mahomed Ali v. Upendra
Nath,
AIR 1934 Cal 179 .

15 . Nizam-ud-din v. Ahmed,
AIR 1927 All 799 :
(1928) ILR 50 All 28.

16 . Bharathi Amma v. Kumaran Peethambaran,

AIR 1990 Ker. 88 [
LNIND 1989 KER 301 ] (S. Padmanabhan, J.).

17 . Ibid.

18 . Chittor Chegaiah v. Pedda Jeeyangar Mutt,

AIR 2010 SC 1278 [
LNIND 2010 SC 209 ]:
(2010) 3 SCC 776 [
LNIND 2010 SC 209 ].

19 . Ibid, para 17 and 18 at p. 1284 (of AIR).

20 . Amrendra Komalam v. Ush Rani,

AIR 2005 SC 2758 [
LNIND 2005 SC 346 ]:
(2005) 11 SCC 251 [
LNIND 2005 SC 346 ] :
(2005) 2 MLJ 101 (SC).
 Page 174 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

21 . Nazim Ali v. Anjuman Islamia, Chhatarpur,

AIR 1999 SC 1089 :
(1999) 3 SCC 91 [
LNIND 1999 SC 128 ] :
(1999) 3 MLJ 43 [
LNIND 1999 SC 128 ] (SC).

22 . Gujarat Navodaya Mandal v. State of Gujarat,

AIR 1998 Guj 141 .

23 . Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy,

AIR 1924 PC 144 [
LNIND 1924 BOM 87 ]: 51 IA 293 : 51 Cal 631; Vertannes v. Robinson,
AIR 1930 PC 224 :
(1930) ILR 8 Rang 326 : 57 IA 208.

24 . Madhavan v. Kumaran,
AIR 1952 TC 383 : (1952) ILR TC 175; Sivanoo v.
Muthukrishnan,
AIR 1957 TC 13 : (1955) TC 1071; Nemkumar v.
Nemkumar,
AIR 1958 All 207 [
LNIND 1957 ALL 145 ].

25 . Rangnath v. Daulat Rao,

AIR 1975 SC 2146 [
LNIND 1974 SC 440 ].

26 . ON Bhatnagar v. Ruki Bai Narsin Das,

(1982) 2 SCC 244 [
LNIND 1982 SC 87 ].

27 . Jaikishan Das v. Nirmala Devi,

AIR 1984 SC 589 :
(1984) 1 SCC 682 .

28 . State of Karnataka v. All India Manufacturers Organization,

AIR 2006 SC 1846 [
LNIND 2006 SC 286 ].

29 . K. Ethirajan v. Lakshmi,
AIR 2003 SC 4295 :
AIR 2003 SCW 4951 .

30 . Kallu Ram v. Jai Bhagwan,

AIR 2008 Uttr 29 [
LNIND 2007 UTTAR 39 ]:
2008 (4) ALJ 179 .
 Page 175 of 217
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31 . Chinta Mani Khuntia v. State of Orissa,

AIR 1994 Ori 46 [
LNIND 1993 ORI 40 ].

32 . Murugesanaicker v. M. Sadayappa Naiker,

AIR 1997 Mad 4 [
LNIND 1996 MAD 323 ].

33 . LIC of India v. Canneshwar Prasad,

AIR 1985 Cal 98 .

34 . Ragho Prasad v. Shrikrishna,

AIR 1969 SC 316 .

35 . Thakuruddin Ramjash v. Sourendra Nath,

AIR 1982 Cal 133 [
LNIND 1981 CAL 327 ]: 134 (DB).

36 . State of Uttar Pradesh v. Civil Judge, Nagpur,

AIR 1987 SC 16 [
LNIND 1986 SC 421 ]:
(1986) JT 774 [
LNIND 1986 SC 421 ].

37 . Krishan Kant v. Tulsi Bhai,

AIR 1988 Del 203 [
LNIND 1987 DEL 463 ].

38 . State of Gujarat v. Mangal Traders, Jamnagar,

AIR 1987 Guj 234 [
LNIND 1986 GUJ 182 ].

39 . Balwant v. Mainabai,
AIR 1991 MP 11 [
LNIND 1989 MP 178 ].

40 . O.N. Bhatnagar v. Rukibai Nirsingdar,

AIR 1982 SC 1097 [
LNIND 1982 SC 87 ]:
[1982] 3 SCR 681 [
LNIND 1982 SC 87 ].

41 . Begum Suraiya Rashid v. State of MP,

AIR 2006 SC 1283 [
LNIND 2006 SC 110 ].

42 . Koneridoss v. N. Subbiah,
AIR 1975 Mad 124 [
LNIND 1974 MAD 175 ]: (1974) 2 Mad LJ 252.
 Page 176 of 217
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43 . Mahila Bajrangi v. Badribai w/o Jagannath,

AIR 2003 SCW 129 :
(2003) 2 SCC 464 [
LNIND 2002 SC 840 ].

44 . Mahila Bajrangi v. Randribai,

(2003) 2 SCC 464 [
LNIND 2002 SC 840 ] :
(2003) 1 MLJ 92 [
LNIND 2002 SC 840 ] (SC); Madhavi Amma Bhavani Amma
v. Kunjikutty Pillai Meenakshi Pillai, AIR 200 SC 2301 :
(2000) 6 SCC 301 [
LNIND 2000 SC 749 ] :
(2000) 3 MLJ 78 [
LNIND 2000 SC 749 ] (SC).

45 . Ramcharihtar Sao v. Bawan Prasad Singh,

AIR 1946 Pat 225 ; Narendranath v. Ananda,
AIR 1934 Cal 60 :
(1933) ILR 60 Cal 1307.

46 . Nizam Ali v. Anjuman Islamia Chattarpur, (1999) 1 LRI 247;

Sajjadanashin Sayed v. Musa Dadabhai Umer, (2000) 4 LRI 119.

47 .(1842) 1 Y&C Ch Cas 586.

48 . Uthiraosomasundareshwarar v. Rajnga,
AIR 1965 Mad 355 [
LNIND 1964 MAD 63 ]:
(1965) ILR 1 Mad 232.

49 . Hafiz Md. Fateh Nasib v. Swarup Chand,

AIR 1942 Cal 1 :
(1941) ILR 2 Cal 434; Alagamma Achi v. Veerappa,
AIR 1956 Mad 428 [
LNIND 1955 MAD 248 ]: (1956) ILR Mad 252.

50 . Sarangapani v. Venkata,
AIR 1952 Mad 384 [
LNIND 1950 MAD 215 ]: (1951) 2 Mad LJ 464; Valliammal v. Palani Goundan,
AIR 1955 Mad 533 [
LNIND 1955 MAD 25 ].

51 . Laxman Shivshankar v. Saraswathi,

AIR 1959 Bom 125 [
LNIND 1957 BOM 191 ]:
(1958) ILR Bom 869 :
(1958) 60 Bom LR 382 .
 Page 177 of 217
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52 . Bank of India v. Mehta Brothers,

AIR 1991 Del 194 [
LNIND 2008 SC 1900 ].

53 . Ekram v. Holodhur,
(1873) ILR 3 Cal 271.

54 . Isher Singh v. Sarwan Singh,

AIR 1965 SC 948 ; S Labbai v. Hanifa,
AIR 1965 SC 1569 [
LNIND 1976 SC 115 ].

55 . Krishna Chendra v. Ramanna,

AIR 1932 PC 50 : (1932) 36 Cal WN 365 :
(1932) 34 Bom LR 508 .

56 . Thakur Ram Sahai Sinha v. Bimla Devi,

AIR 1980 Pat 204 , pp 208, 210 (paras 10, 13) (FB).

57 . Deva Ram v. Ishwar

Chand,
AIR 1996 SC 378 [
LNIND 1995 SC 992 ]. See also Mariam Bibi v. Raehman
Ali,
AIR 2004 Gau 66 [
LNIND 2003 GAU 40 ].

58 . Darshan Prasad v. Civil Judge, (II), Gorakhpur (1992) Supp 2 SCC 87.

59 . Kali Krishna v. Secretary of State,

(1889) ILR 16 Cal 173, p. 183 : 15 IA 186, p. 193; Run
Bahadur’s case,
(1885) ILR 11 Cal 301, p. 310 : 12 IA 23; Soorjomonee v.
Suddanund, (1874) 12 Beng LR 304; Igirdhar v. Dayabhai,
(1884) ILR 8 Bom 174, p. 180; Ghela v. Sankalchand,
(1894) ILR 18 Bom 597, p. 601; Amriteswari v. Secretary of
State,
(1897) ILR 24 Cal 504, p. 519 : 24 IA 33; Jalasutram v.
Bommadewara,
(1906) ILR 29 Mad 42; Kurrutulain v. Nazbat-ud-Dowla,
(1906) ILR 33 Cal 116 : 32 IA 244; Mitar Poddar v. Jadab
Chandra,
(1917) 2 Pat LJ 159 ; Raja Sashikanta v. Raja Sarat Chandra,
AIR 1921 Cal 699 :
(1921) 34 Cal LJ 415 .

60 . Lalit Shaheb v.Babu, Lal

AIR 1943 All 340 :
(1943) ILR All 843 ; Gobind v. Taruck,
(1878) ILR 3 Cal 145; Radha v. Monohur,
(1888) ILR 15 Cal 756 : 15 IA 97; Kasiswar v. Mohendra
Nath,
(1898) ILR 25 Cal 136; Dwarkanath v. Ramchand,
(1899) ILR 26 Cal 428; Keramat v. Kumar Krishna,
AIR 1926 Cal 1228 :
 Page 178 of 217
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(1926) 47 Cal LJ 536 ; Mugtakeshi v. Manilal,

AIR 1930 Cal 579 :
(1930) ILR 57 Cal 371; Surendra Nath v. Kamakhya Narain,
AIR 1930 PC 45 :
(1930) 32 Bom LR 515 ; Shankar v. Khem Sawant,
AIR 1932 Bom 3 :
(1931) 33 Bom LR 1303 .

61 . Bejoy Gopal Mukherjee v. Pratul Chandra Ghosh,

AIR 1953 SC 153 [
LNIND 1953 SC 10 ]:
(1953) SCR 930 [
LNIND 1953 SC 10 ] :
(1953) SCJ 195 [
LNIND 1953 SC 10 ].

62 . Koshal Pal v. Mohan Lal,

AIR 1976 SC 688 [
LNIND 1975 SC 472 ]; Deepchand v. Santhinath,
AIR 1971 Ori 57 [
LNIND 1969 ORI 19 ].

63 . Sita Ram v. Hukmi Ram,

AIR 1971 All 399 .

64 . Toponidhee v. Sreeputty,
(1880) ILR 5 Cal 832; Gobind v. Taruck,
(1878) ILR 3 Cal 145; Harekrishna v. Gourhari,
AIR 1932 Cal 894 :
(1932) ILR 59 Cal 1250 : 141 IC 56; Jitendra v. Biswanath,
AIR 1952 Cal 201 [
LNIND 1949 CAL 3 ]:
(1952) ILR 1 Cal 383; Parsa v. Durga, (1961) ILR MB 44;
Ram Karan v. Parbati,
AIR 1954 Pat 443 .

65 . Run Bahadur v. Lucho Koer,

(1885) ILR 11 Cal 301 : 121 IA 23; Srihari v. Khitish
Chandra,
(1897) ILR 24 Cal 569; Raguban v. Hardeo,
AIR 1955 Pat 39 :
(1955) ILR 34 Pat 324.

66 . Bishun Das v. Laxmi Narayan,

AIR 1949 All 596 ; Nobo v. Foyzbux,
(1876) ILR 1 Cal 202; Gnanada v. Nalini,
AIR 1926 Cal 650 :
(1926) 43 Cal LJ 146 .

67 . Chandi Prasad v. Mahendra,

(1902) ILR 24 All 112.

68 . Gnanada Gobinda Chowdhury v. Nalini Bala Debi,

(1926) 43 Cal LJ 146 .
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69 . Balkishen v. Kishan Lal,

(1889) ILR 11 All 148; Gopi Nath v. Bhugwant,
(1884) ILR 10 Cal 697.

70 . Bhikabhai v. Bai Bhuri,

(1903) ILR 27 Bom 418.

71 . Pahlwan v. Risal,
(1882) ILR 4 All 55.

72 . Dwarka Das v. Akhay Singh,

(1908) ILR 30 All 470.

73 . Govardhan Appalacharlu v. Govardhan Rangacharlu,

AIR 1957 AP 1002 [
LNIND 1956 AP 73 ]: (1956) Andh WR 954.

74 . Rakhal Doss v. Heera,

(1874) 22 WR 282 ; Venkatachalapati v. Krishna,
(1890) ILR 13 Mad 287; Natesa v. Venkatarama,
(1907) ILR 30 Mad 510; Dwarka Das v. Akhay Singh,
(1908) ILR 30 All 470.

75 . Vishnu v. Ramling,
(1902) ILR 26 Bom 25.

76 . Nobo v. Foyzbux,
(1876) ILR 1 Cal 202.

77 . Krishna v. Bunwari,
(1874) ILR 1 Cal 144 : 21 IA 283; Raj Kumar v. Gopinath,
AIR 1971 All 273 .

78 . Surajmal v. Radhe Shyam,

(1988) 3 SCC 18 .

79 . Bangaru v. Vijayamachi,
(1889) ILR 22 Mad 175.

80 . Durga v. Sashibala, (1911) 16 Cal WN 603.

81 . Rahimuddin v. Trilok Chandra,

AIR 1965 Assam 18 :
(1964) ILR 16 Assam 254.
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82 . Bakshi v. Nizamuddin,
(1893) ILR 20 Cal 505; Nil Madhub v. Brojo Nath,
(1894) ILR 21 Cal 236; Beni Pershad v. Chowbey, (1902) 6 Cal
WN 589; Mane v. Dhani, (1913) 17 Cal WN 76; Bayyan Naidu v. Suryanarayana,
(1914) ILR 37 Mad 70 (FB); Mittar Poddar v. Jadab Chandra,
(1917) 2 Pat LJ 159 (incidentally in issue); Beni Madhab v. Sarbananda,
AIR 1926 Cal 698 :
(1926) 48 Cal LJ 135 ; Rajah of Ramnad v. Ramanathaswami,
AIR 1921 Mad 306 :
(1921) ILR 44 Mad 514.

83 . Hara Chandra v. Bepin,

(1911) 13 Cal LJ 38 ; Ram Kumar v. Alimaddi, (1912) 17 Cal
WN 627; Mahammad Gauhar v. Samiruddin, (1913) 18 Cal WN 33; Sarojini v. Lakhi,
AIR 1925 Cal 427 , (1925) 29 Cal WN 253; Baldevdas v. Mohanpal,
AIR 1948 Bom 232 ,
(1948) ILR Bom 145 :
(1947) ILR 49 Bom LR 902.

84 . Biraj Mohini v. Chintamoni, (1901) 5 Cal WN 877; Markanda v. Varda

Kameshwar Naidu,
AIR 1949 Pat 197 :
(1947) ILR 26 Pat 717; Gopalaswami v. Padmaraju,
AIR 1966 AP 210 [
LNIND 1964 AP 25 ].

85 . Chenchayya v. Bapayya,
AIR 1932 Mad 233 : (1932) 62 Mad LJ 177.

86 . Life Insurance Corporation v. Seshi Ammal,

AIR 1958 Mad 463 [
LNIND 1957 MAD 265 ].

87 . Nand Kishore v. Shanti Kapoor,

AIR 1982 All 138 .

88 . Brahmanand Rao v. Dy Director of Consolidation, Gorakhpur,

AIR 1987 All 100 [
LNIND 1986 ALL 42 ] (DB).

89 . Har Narain v. Vinod Kumar,

AIR 1987 All 319 [
LNIND 1986 ALL 245 ]; Mathura Prasad v. Dossibar,
AIR 1971 SC 2355 [
LNIND 1970 SC 84 ] relied on.

90 . Madhusudun v. Brae,
(1889) ILR 16 Cal 300.

91 . See note under that rule, Ex parte decree obtained by fraud.

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92 . Saroja v. Chinnusamy,
AIR 2007 SC 3067 [
LNIND 2007 SC 997 ]:
(2007) 8 SCC 329 [
LNIND 2007 SC 997 ] : 2007 (4) Civil Court C 101 (SC).

93 . Ibid, para 4 at p. 3068 (of AIR).

94 . S.S. Khurana v. Mahaveer Prasad,

AIR 2004 Raj 107 .

95 . Bharathi v. Vinod S. Sivasudha,

AIR 2008 Ker 125 [
LNIND 2007 KER 668 ]:
2008 (1) Ker LT 93 [
LNIND 2007 KER 668 ] (FB).

96 . Ibid, para 7 p. 131-132 (of AIR).

97 . Sateeshchandra v. Resheekesh,
AIR 1933 Cal 290 ,
(1933) ILR 60 Cal 247.

98 . Hotilal v. State of UP,

AIR 2002 All 257 [
LNIND 2002 ALL 660 ].

99 . Balkishen v. Bechan,
(1932) ILR 54 All 68.

100 . Dwijendra v. Jogeshchandra,

AIR 1924 Cal 600 :
(1924) 39 Cal LJ 40 .

101 . Santosh Sharma v. Ashok Kumar,

AIR 2001 Del 422 [
LNIND 2001 DEL 677 ] (DB).

102 . Shiv Kumar Chandrakar,

2006 (1) Cglj 30 : 2006 (37) All Ind cas 771.

103 . Maya Tiwari v. Ajay alias Baba Shukla,

AIR 2008 (NOC) 2308 (Chh.) (DB).
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104 . Keshavlal v. Parvati,

(1894) ILR 18 Bom 327.

105 . Trilok Singh v. Savitri Devi,

AIR 1972 All 52 . See also Krishna Pillai v. Subhadra Amma,
AIR 1971 Ker 44 [
LNIND 1969 KER 221 ].

106 . Ram Chandar v. Darayoo Singh,

AIR 1933 Lah 593 : (1933) 14 Lah 365.

107 . Maina Bibi v.

Chaudhari,
AIR 1925 PC 63 :
(1925) ILR 47 All 250 : 52 IA 145; affirming
(1919) ILR 41 All 538; Nawazi Begam v. Dilfaroz Begam,
AIR 1927 All 39 :
(1926) ILR 48 All 803; compared in Hadi v. Kasim,
AIR 1927 Oudh 60 .

108 . Maina Bibi v. Chaudhari,

AIR 1925 PC 63 :
(1925) ILR 47 All 250 :
(1925) 52 IA 145 .

109 . Ambu Nair v. Kelu Nair,

AIR 1930 Mad 305 :
(1930) ILR 33 Mad 805.

110 . UOI v. Pramod Gupta,

AIR 2005 SC 3708 [
LNIND 2005 SC 682 ].

111 . Ishwar Dutt v. Land Acquisition Collector,

AIR 2005 SC 3165 [
LNIND 2005 SC 570 ].

112 . Kiran Tondon v. Allahabad Development Authority,

AIR 2004 SCW 2089 :
AIR 2004 SC 2006 [
LNIND 2004 SC 380 ].

113 . Aanaimuthu Thevar v. Alagammal,

AIR 2005 SC 4004 [
LNIND 2005 SC 525 ].

114 . K. Sivaramaiah v. Rukmani Ammal,

AIR 2004 SC 508 [
LNIND 2003 SC 1009 ]:
AIR 2003 SCW 6490 .
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115 . Kodepaka Narsiah v. Dandi Narasimha,

AIR 2006 (NOC) 1126 (AP) : (2006) 2 Andh LD 716.

116 . Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas,

AIR 2008 SC 2187 [
LNIND 2008 SC 1158 ]:
(2008) 11 SCC 753 [
LNIND 2008 SC 1158 ].

117 . Williams v. Laurdusamy,

AIR 2008 SC 2212 [
LNIND 2008 SC 946 ]:
(2008) 5 SCC 647 [
LNIND 2008 SC 946 ] : 2008 (3) Civil Court 022 (S.C.)

118 . Harbans Singh v. Sant Hari Singh,

AIR 2009 SC 1819 [
LNIND 2009 SC 64 ]:
(2009) 2 SCC 526 [
LNIND 2009 SC 64 ] : 2009 (2) Civil Court C 315 (SC).

119 . Ibid, para 12 at p. 1821 (of AIR).

120 . Balwant Rai v. Mohan Lal, AIR 2009 J&K 71 : 2009 (3) Cur CC 300.

1 . Dina Dinshaw v. Dinshaw Ardeshir,

AIR 1970 Bom 341 [
LNIND 1969 BOM 22 ]:
(1969) ILR Bom 1043 .

2 . Pittapur Raja v. Buchi,

(1885) ILR 8 Mad 219 : 12 IA 16; Krishna v. Bunwari Lal,
(1876) ILR 1 Cal 144 : 2 IA 283; Radha Prasad v. Lal Saheb,
(1891) ILR 13 All 53, p. 62 : 17 IA 150; Balkishen v. Kishan
Lal,
(1889) ILR 11 All 148, p. 157; Ananta v. Damodhar,
(1889) ILR 13 Bom 25; Chandi Prasad v. Maharaja
Mahendra,
(1902) ILR 24 All 112; Sitanath v. Basudeo,
(1900) 2 Cal LJ 540 ; Dwarka Das v. Akay Singh,
(1908) ILR 30 All 470; Kedar Nath v. Sheo Shankar,
AIR 1923 All 613 :
(1923) ILR 45 All 515; Abdul Gani v. Nabendra Kishore,
AIR 1930 Cal 47 :
(1929) ILR 57 Cal 258; Mahalingeshwara Devaru v.
Seetharama,
AIR 1978 Kant 213 [
LNIND 1978 KANT 137 ]; Rajinder Kumar v. Kalyan, (2000) 3
LRI 1119.
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3 . Kedar Nath v. Sheo Shankar,

AIR 1923 All 613 :
(1923) ILR 45 All 515.

4 . Ram Chunder v. Madho,

(1886) ILR 12 Cal 484 : 12 IA 188; Appu v. Manradiar,
AIR 1961 Ker 298 [
LNIND 1960 KER 328 ].

5 . Rajalakshmi Dasi v. Banamali Sen,

AIR 1953 SC 33 [
LNIND 1952 SC 59 ]:
(1953) SCR 154 [
LNIND 1952 SC 59 ] :
(1952) SCJ 618 [
LNIND 1952 SC 59 ]; Venkatasubbiah v. Janakiramiah,
(1959) Andh LT 156 .

6 . Subbarayudu v. Balaramiah,
AIR 1955 AP 194 [
LNIND 1955 AP 31 ].

7 . C. Sarala v. K. Nalinakishan,
AIR 1991 Ker 362 [
LNIND 1991 KER 186 ] (DB).

8 . Jagatjit v. Sarabjit,
(1892) ILR 19 Cal 159, p. 172 : 18 IA 165, p. 176; Ragho v. Gopal,
AIR 1930 Bom 132 :
(1930) ILR 54 Bom 162.

9 . Official Receiver v. Union of India,

AIR 1961 Cal 432 [
LNIND 1960 CAL 189 ]; Harak Chand v. Karodi Mal,
AIR 1958 MP 5 [
LNIND 1957 MP 167 ].

10 . Sarva Shramik Sangh v. Indian Oil Corporation,

AIR 2009 SC 2355 [
LNIND 2009 SC 823 ]:
(2009) 11 SCC 609 [
LNIND 2009 SC 823 ].

11 . Ibid, para 10 at p. 2359 (of AIR).

12 . Shantilal Rampuria v. Vega Trading Corpn,

AIR 1989 SC 1819 [
LNIND 1989 SC 367 ].
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13 . Shankarrao Daji Saheb Shinde v. Vithalrao Ganpatrao Shinde,

AIR 1989 SC 879 .

14 . Haryana State Electricity Board v. Hanuman Rica Mills, Dhanauri,

AIR 2010 SC 3835 [
LNIND 2010 SC 785 ]:
(2010) 9 SCC 145 [
LNIND 2010 SC 785 ].

15 . Triloki v. Pertab,
(1888) ILR 15 Cal 809 : 15 IA 13.

16 . Zamindar of Pittampuram v. Proprietors of Kolanki,

(1878) ILR 2 Mad 23 : 5 IA 206.

17 . Jai Prakash v. Bishambar Das,

AIR 1954 All 215 [
LNIND 1953 ALL 231 ]; New Victoria Mills v. Labour
Court,
AIR 1970 All 210 [
LNIND 1968 ALL 89 ]. See further under the same heading.

18 . Meher Rusi Dalal v. UOI,

AIR 2004 SC 3491 [
LNIND 2004 SC 620 ].

19 . Beharilal v. Ram
Swarup,
AIR 1949 All 265 :
(1949) ILR All 144 ; Sukra v. Ram Harakh,
AIR 1951 All 195 [
LNIND 1951 ALL 19 ] (FB); Cheria Veetil v. Chattu
Nambiar,
AIR 1951 Mad 285 [
LNIND 1950 MAD 258 ]; Newington v. Levy,
(1870) LR 6 CP 180.

20 . State of Karnataka v. All India Manufacturers Organization,

AIR 2006 SC 1846 [
LNIND 2006 SC 286 ].

21 . Konda Lakshmana Bapuji v. Govt of Andhrapradesh,

AIR 2002 SC 1002 .

22 . State of Punjab v. Surender Kumar,

(1997) 9 SCC 66 [
LNIND 1996 SC 2746 ].

23 . Rocky Tyres v. Ajit Jain, AIR 1998 P&H 202.

 Page 186 of 217
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24 . Re Bajrangbali Engineers,
AIR 1989 Cal 356 [
LNIND 1988 CAL 366 ].

25 . Jeypore Sugar Co. Ltd. v. Sales Tax Officer,

(1998) 9 SCC 358 .

26 . Surajmal v. Radheysham,
AIR 1988 SC 1345 .

27 . Ravichandra Dagdu Sonavane v. Vithu Hira Mahar,

AIR 2010 SC 818 [
LNINDORD 2009 SC 220 ]:
(2009) 10 SCC 273 [
LNINDORD 2009 SC 220 ].

28 . Ibid.

29 . Sobbag Singh v. Ranjit Singh,

AIR 1945 PC 132 : (1945) 49 Cal WN 743 (PC); Thakur Durga Baksh Singh v.
Rama Umanath,
AIR 1944 Oudh 94 :
(1944) ILR 19 Luck 428; Mithoolal v. Jainarayan,
AIR 1941 Nag 346 ; Vinayak v. Dattatraya,
(1902) ILR 25 Bom 661, p. 667; Krishna Chandra v. Surendra
Nath,
AIR 1932 Cal 385 : (1932) 36 Cal WN 72; Mohor Rai v.
State of Bihar,
AIR 1968 SC 1281 [
LNIND 1968 SC 82 ].

30 . Greenhall v. Mollard,
(1947) 2 All ER 255 ; State of Uttar Pradesh v. Nawab
Hussain,
AIR 1977 SC 1680 [
LNIND 1977 SC 167 ]:
(1977) 2 SCC 806 [
LNIND 1977 SC 167 ] :
(1977) 3 SCR 428 [
LNIND 1977 SC 167 ].

31 . Gurbindar v. Lal Singh,

AIR 1959 Punj 123 : (1958) ILR Punj 2258.

32 . Harihar Prasad v. Jodh Singh,

AIR 1971 Pat 284 ; Sarjug Singh v. Basisth Singh,
AIR 1970 Pat 237 :
(1968) ILR 47 Pat 178.

33 . Victoria v. K.V. Naik,

(1997) 6 SCC 23 [
LNIND 1997 SC 849 ].
 Page 187 of 217
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34 . Kamlabai v. Mangilal,
(1987) 4 SCC 585 [
LNIND 1987 SC 693 ].

35 . Subbaraju v. State of Andhra Pradesh,

AIR 1989 AP 233 [
LNIND 1988 AP 27 ].

36 . Kewal Singh v. Lajwanti,

AIR 1980 SC 161 [
LNIND 1979 SC 390 ]:
(1980) 1 SCC 290 [
LNIND 1979 SC 390 ] :
(1980) 1 SCJ 486 .

37 . Ferro Alloys Corpn. Ltd. v. Union of India, [1999] 2 LRI 163.

38 . Kalpu v. Sanaurar Khan,

AIR 1982 All 307 .

39 . Kamlabai v.
Mangilal,
(1987) 4 SCC 585 [
LNIND 1987 SC 693 ]; Raghunath v. Damodar,
AIR 1978 SC 1820 [
LNIND 1978 SC 313 ].

40 . G. Vijaya Lakshmi v. G. Ramachandra Sakshav Sastry,

AIR 1981 SC 1143 [
LNIND 1981 SC 159 ].

41 . A.R. Antulay v. R.S. Nayak,

AIR 1988 SC 1531 [
LNIND 1988 SC 264 ].

42 . Shyama Devi v. Seventh Addl District Judge, Allahabad,

AIR 1998 All 392 [
LNIND 1998 ALL 484 ].

43 . Jai Kishan Dass v. Nirmala Devi,

(1984) 1 SCC 682 .

44 . Nagta Singh v. Shiv Singh,

AIR 1981 All 75 .
 Page 188 of 217
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45 . Abdul Rahman v. Prasony Bai,

AIR 2003 SC 718 [
LNIND 2002 SC 716 ].

46 . Food Corporation of India v. Ashish Kumar Ganguly,

AIR 2009 SC 2582 [
LNIND 2009 SC 1258 ]:
(2009) 7 SCC 734 [
LNIND 2009 SC 1258 ].

47 . LIC v. Gangadhar Vishwanath Ranade,

AIR 1990 SC 185 [
LNIND 1989 SC 441 ].

48 . Patel Naranbhai Jhingabhai v. Patel Gopaldas Venidas,

AIR 1982 Guj 340 [
LNIND 1982 GUJ 161 ].

49 . K. Adikanda Patra v. Gandua,

AIR 1983 Ori 89 [
LNIND 1982 ORI 102 ].

50 . Bharat Bhushan Ray v. Nirmal Kanti Chakraborti,

AIR 1981 Cal 347 [
LNIND 1981 CAL 262 ].

51 . P. Anirudha Adhikari v. Amarendra Adhikari,

AIR 1988 Ori 12 .

52 . Kewal Singh v. Lajwanti,

AIR 1980 SC 161 [
LNIND 1979 SC 390 ]:
(1980) 1 SCC 290 [
LNIND 1979 SC 390 ] :
(1980) 1 SCJ 486 .

53 . Zainal Abedin v. Srisree Kumar Mukherjee,

AIR 1998 Cal 339 [
LNIND 1997 CAL 229 ].

54 . State Bank of India v. Madhya Pradesh Iron and Steel Works Pvt. Ltd.,
AIR 1998 MP 93 [
LNIND 1997 MP 447 ].

55 . Yakubhai Ahmedji Mistri v. Imamuddin Hussenuddin Kadri,

AIR 1991 Guj 180 [
LNIND 1991 GUJ 29 ].
 Page 189 of 217
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56 . Government of the Province of Bombay v. Pestonji Ardeshir Wadia,

AIR 1949 PC 143 : 76 IA 85 :
(1949) 51 Bom LR 635 : (1949) 53 Cal WN 489.

57 . Sri Gopal v. Pirthi Singh,

(1898) ILR 20 All 110, p. 113; confirmed on appeal in
(1902) ILR 24 All 429 (PC); Guddappa v. Tirkappa,
(1901) ILR 25 Bom 189.

58 .
(1897) ILR 24 Cal 711.

59 . Woomesh v. Barada,
(1901) ILR 28 Cal 17.

60 . Jamadar Singh v. Serazuddin,

(1908) ILR 35 Cal 979; Mohim Chandra v. Anil, (1908) 13 Cal
WN 513; Shib Chandra v. Lakhipriya,
AIR 1925 Cal 427 :
(1924) 40 Cal LJ 507 ; Bayyan Naidu v. Suryanarayana,
(1914) ILR 37 Mad 70; Maung No v. Maung Po,
AIR 1923 Rang 236 : (1923) 1 Rang 363.

61 . Gobindlal v. Baldeo Singh

(1915) PR 12 , p. 69; Muhammad v. Ghulam Bi
(1929) ILR 11 Lah LJ 97.

62 . Fateh Singh v. Jagannath Baksh Singh,

AIR 1925 PC 55 :
(1925) ILR 47 All 158 : 52 IA 100.

63 . See Illust (iv) below.

64 . Guddappa v. Tirkappa,
(1901) ILR 25 Bom 189. The Bombay ruling was dissented from in
Ramaswami v. Vythinatha,
(1903) ILR 26 Mad 760, a case on different facts altogether. The grounds of
dissent, it is submitted, are not satisfactory; Masilamania v. Thiruvengadam,
(1908) ILR 31 Mad 385.

65 . Srimut Rajah v. Katama Natchiar, (1866) 11 MIA 50, 73; Doorga Persad v.
Doorga Konwari,
(1870) ILR 4 Cal 190 : 5 IA 149.

66 . Masilamania v. Thiruvengadam,
(1908) ILR 31 Mad 385.

67 . Fateh Singh v. Jagannath Baksh Singh,

AIR 1925 PC 55 :
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(1925) ILR 47 All 158 : 52 IA 100; Mautorni v. Krishna

Ballab Rai,
AIR 1949 Pat 340 :
(1948) ILR 27 Pat 835; SR Singh v. Royal,
AIR 1972 Del 150 [
LNIND 1971 DEL 174 ].

68 . Sarojini v. Lakhi Priya,

AIR 1925 Cal 427 : (1924) 29 Cal WN 253 : 85 IC 123.

69 . Raoji v. Ratansi,
(1930) ILR 54 Bom 696 : 126 IC 305.

70 . Nawazi Begum v. Dilafroz Begam,

AIR 1930 PC 177 :
(1930) ILR 52 All 273 : 126 IC 430 : 57 IA 181.

71 . Popat Kala v. Bachu Rugnath,

AIR 1958 Bom 152 [
LNIND 1957 BOM 49 ]:
(1957) ILR Bom 548 .

72 . Sivatham v. Kaliammal,
AIR 1984 NOC 38 .

73 . Alluni v. Kunjusha,
(1884) ILR 7 Mad 264; Shah Jawaharlal v. Shah Chaganlal,
AIR 1959 Raj 197 [
LNIND 1958 RAJ 126 ]: (1959) ILR Raj 224.

74 . Goshwarali v.
Adhiklal,
AIR 1948 Pat 302 :
(1947) ILR 26 Pat 24; Imam Khan v. Ayub Khan,
(1897) ILR 19 All 517.

75 . Shib Chandra v. Lakhi,

AIR 1925 Cal 427 : (1925) 29 Cal WN 253; Gopi Lal v.
Benarsi Prasad,
(1906) ILR 31 Cal 428.

76 . Mahim v. Anil Bandhu, (1909) 13 Cal WN 513; Maung No v. Maung Po,

AIR 1923 Rang 239 , (1923) 1 Rang 363.

77 . C.J. Phillips v. A.E. Mitchell,

AIR 1932 Cal 889 :
(1932) ILR 59 Cal 985.
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78 . R.K. Jain v. M.H. Singh,

AIR 1971 Del 213 [
LNIND 1971 DEL 43 ].

79 . Goshwarali v. Adhiklal,
AIR 1948 Pat 302 :
(1947) ILR 26 Pat 24; Rajah Chattar Singh v. Diwan Roshan
Singh,
AIR 1946 Nag 277 : (1946) ILR Nag 159; Priombada v. Johurilal,
AIR 1941 Cal 574 ; Rai Bajrang Bhadur v. Hubraj Kuer,
AIR 1944 Oudh 281 ; Kameswar v. Rajkumari,
(1893) ILR 20 Cal 79, p. 85 : 19 IA 234; Moosa v. Ebrahim,
(1913) ILR 40 Cal 1 : 39 IA 237; Guddappa v. Tirkappa,
(1901) ILR 25 Bom 189, p. 192; Srimut Rajah v. Katama
Natchiar, (1866) 11 MIA 50, p. 73; Woomatara v. Unnopoorna, (1873) 11 Beng LR 158, p 167; Girdhari Lal v. Umdajan,
AIR 1921 Lah 17 (1921) 3 Lah LJ 215, p. 221; Debendra Nath v. Nagendra Nath,
AIR 1933 Cal 900 :
(1933) 60 ILR Cal 1158 .

80 . Muttu Chetti v. Muttan Chetti,

(1882) ILR 4 Mad 296, p. 299; Naro v. Ramchandra,
(1889) ILR 13 Bom 326, p. 329.

81 . Srimut Rajah v. Katama Natchiar, 11 MIA 50, (1873) 11 Beng LR 158.

82 . Masilamania v.Thiruvengadan,
(1908) ILR 31 Mad 385, p. 396; Ramaswami v. Vythinatha,
(1903) ILR 26 Mad 760; Rangaswamy v. Appaswamy, (1916)
Mad WN 286; Raman v. Bacha,
AIR 1921 Pat 326 ; Anant v. Mahableshwar,
AIR 1931 Bom 114 :
(1930) 32 Bom LR 1473 .

83 . Han Soran Das v. Bhagwat Prosad,

AIR 1942 Cal 286 ; Deputy Commissioner of Kheri v. Khanjan
Singh,
(1907) ILR 29 All 331 : 34 IA 72; Lala Soni Ram v.
Kanhaiya, 40 IA 74 : (1913) 17 Cal WN 605 (PC); Diwan Chand v. Hari Chand,
(1914) PR 102 , p. 383; Aishan v. Muhammad,
(1916) PR 94 , p. 282; Re Ayya Nadar,
AIR 1953 Mad 933 [
LNIND 1952 MAD 281 ]; Karimi Banawali v. Gulasu
Lakhano,
AIR 1977 Ori 128 [
LNIND 1976 ORI 73 ]: (1977) ILR Cut 74.

84 . Kanhaiya Lal v. Ashraf

Khan,
AIR 1924 All 355 :
(1924) ILR 46 All 230, p. 231; Dola v. Balya,
AIR 1922 Bom 29 :
(1922) ILR 46 Bom 803 ; Bankey Prasad v. Thakur Prasad,
AIR 1954 Pat 12 .

85 . Madhavan v.
Chathu,
AIR 1951 Mad 285 [
LNIND 1950 MAD 258 ]: (1950) 2 Mad LJ 501 :
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(1950) 63 Mad LW 956 [

LNIND 1950 MAD 258 ] : (1950) Mad WN 713.

86 . Kokila v. Rajabathar,
AIR 1957 Mad 470 [
LNIND 1957 MAD 48 ]: (1957) ILR Mad 968.

87 . Veeraraghaviah v. Seshachalam,
AIR 1957 AP 76 [
LNIND 1956 AP 91 ].

88 . Afzalunnissa v. Fayazuddin,
AIR 1931 Lah 610 :
(1932) ILR 13 Lah 195.

89 . Asmatulla v. Gamir,
AIR 1929 Cal 672 : (1929) 33 Cal WN 659 ; Ramana v. Venkatanarayana,
AIR 1927 Mad 301 [
LNIND 1926 MAD 320 ]: (1927) 52 Mad LJ 52 ; Sohannessa v. Abdul Hamid,
AIR 1932 Cal 12 :
(1932) ILR 58 Cal 1222.

90 . Rameshwar Rai v.
Harakhlal,
AIR 1942 Pat 226 :
(1941) ILR 20 Pat 841; Durga Prosad v. Ghasi Ram,
AIR 1950 All 314 [
LNIND 1949 ALL 189 ]. See note to O 34, R. 1, Persons having an interest
either in the mortgage security or in the right of redemption.

91 . Raman Nair v. Lakshmi Amma,

AIR 1952 TC 96 : (1951) ILR T C 554.

92 . Mathura Rai v.Ramakrishna,

AIR 1961 Bom 97 [
LNIND 1959 BOM 129 ]; Subbaiah v. Champaka,
AIR 1961 Mad 413 [
LNIND 1960 MAD 270 ].

93 . Ghanshiam Singh v. Har Piarey,

AIR 1974 All 229 .

1 . Guddappa v. Tirkappa,
(1912) ILR 25 Bom 189; Masilamania v. Thiruvengadam,
(1908) ILR 31 Mad 385; Fateh Singh v. Jagannath Baksh
Singh,
AIR 1925 PC 55 :
(1925) ILR 47 All 158 : 52 IA 100.
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2 . Denobundhoo v. Krishtomonee Dossee,

(1877) ILR 2 Cal 152; dissented from Ummatha v. Cheria
(1882) ILR 4 Mad 308,

3 . See Illustration (vi) below.

4 . Kameshwar Pershad v. Rajkumari,

(1893) ILR 20 Cal 79 : 19 IA 234.

5 . Alagirisami v. Sundareswara, (1898) 21 ILR Mad 278; Thakore v.

Thakore,
(1890) ILR 14 Bom 31.

6 . Fateh Singh v. Jagannath Bakhsh,

AIR 1925 PC 55 : 51 IA 100 :
(1925) ILR 47 All 158.

7 . Kiranshashi v. Official Assignee,

AIR 1933 Cal 246 :
(1933) ILR 60 Cal 8 : 143 IC 381 (facts simplified).

8 . Maung Ba Thein v. Ma Jhan Myint,

AIR 1928 Rang 9 :
(1927) ILR 5 Rang : 565, 105 IC 586.

9 . Kandunni v. Katiamma,
(1899) ILR 9 Mad 251; Ummatha v. Cheria,
(1882) ILR 4 Mad 308; Girdhar v. Dayabhai,
(1884) ILR 8 Bom 174.

10 . Dhaniram v. Ruttan Das,

AIR 1961 Punj 563 .

11 . Nirman v. Phulman,
(1881) ILR 4 All 65; Hargovan v. Mulji,
(1909) 11 Bom LR 921 ; Akayi v. Ayissa,
(1903) ILR 26 Mad 645; Imam Khan v. Ayub Khan,
(1897) ILR 19 All 517; Haji Hasam v. Mancharam,
(1879) ILR 3 Bom 137; Woomatara v. Unnopoorna,
(1873) 11 Bom LR 158 (PC); Kesar Singh v. Asa Singh,
(1913) PR 86 , 305; Muhammad v. Abdul,
AIR 1923 Mad 257 :
(1923) ILR 46 Mad 135; Govind v. Veetil, (1919) Mad WN
677; Kuppuswami v. Subba,
(1921) 62 IC 501 ; Mallaya v. Punnammamal,
AIR 1924 Mad 608 [
LNIND 1923 MAD 304 ]:
(1924) ILR 47 Mad 476; Hara Chandra v. Bhagabat,
AIR 1930 Cal 690 : (1930) 24 Cal WN 442 ; Dattatraya v. Matha,
AIR 1934 Bom 36 :
(1933) ILR 59 Bom 119 :
(1933) 35 Bom LR 1131 .
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12 . Amritsar National Banking Co. v. Fazal Ilahi,

(1919) PR 74 .

13 . Pich v. Subbarayyar, (1915) 28 Mad LJ 153.

14 . Srimut Rajah v. Katama Natchiar, (1866) 11 MIA 50; Doorga Persad v.

Konwari,
(1879) ILR 4 Cal 190 : 5 IA 149; Sarojini v. Lakhi Priya,
AIR 1925 Cal 427 : (1925) 29 Cal WN 253 : 85 IC 123.

15 . Shyama v. Mrinmayi Debi,

(1904) ILR 31 Cal 79.

16 . Mahabir Pershad v. Macnaghten,

(1889) ILR 16 Cal 682 : 16 IA 107.

17 . Ram Chand v. Durga Prasad,

(1904) ILR 26 All 61.

18 . Maktum v. Imam, (1873) 10 BHC 293; Dost Muhammad v. Said Begam,

(1898) ILR 20 All 81; Hari v. Ganpatrav,
(1883) ILR 7 Bom 272; Jagan Nath v. Balkisan, (1907) All
WN 275; Maung No v. Maung Po,
AIR 1923 Rang 239 :
(1923) ILR 1 Rang 363; CJ Pillips v. AE Mitchell,
AIR 1932 Cal 889 :
(1932) ILR 59 Cal 985; Kedar Nath v. Kshiroda,
AIR 1933 Cal 680 :
(1933) ILR 60 Cal 832; Babu Rajnarain v. Ganesh Bind,
AIR 1978 All 30 . (Sale of joint family property wherein minors were
interested.)

19 . Shivram v. Narayan,
(1881) ILR 5 Bom 27; Konerrav v. Gurraw,
(1881) 5 ILR Bom 589 ; Nilo v. Govind,
(1886) ILR 10 Bom 24; contra Bheeka v. Bhuggo,
(1878) ILR 3 Cal 23; dissented from in Ummatha v. Cheria,
(1882) ILR 4 Mad 308.

20 . Watson v. Dhonendra,
(1878) ILR 3 Cal 6.

21 . Shridhar v. Narayan, (1874) 11 BHC 224; Varathayyangar v. Krishnaswami,

(1887) ILR 10 Mad 102; Amer v. Nathu,
(1888) ILR 8 All 306; Zamit-un-Nissa v. Rajan,
(1905) ILR 27 All 142.
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22 . Amanat Bibi v. Imdad Husain,

(1888) ILR 15 Cal 800 : 15 IA 106, p. 111; Balbhaddar v.
Ram Lal,
(1904) ILR 26 All 501.

23 . Ramaswami v. Vythinatha,
(1903) ILR 26 Mad 760; Veerana v. Muthukumara,
(1904) ILR 27 Mad 102; Parambath v. Puthengattil,
(1905) ILR 28 Mad 406; Thrikaikat v. Thiruthiyal,
(1906) ILR 26 Mad 153; Mahabir v. Purbhoo Nath, (1907) 12
Cal WN 292; Ram Sahai v. Ahmadi Begam,
(1911) ILR 33 All 302; 9 IC 53.

24 . Mahomed Ibrahim v. Sheik Hamja,

(1911) ILR 35 Bom 507 : 12 IC 387; distinguished in Rajaram v. Jagannath,
AIR 1949 Pat 274 :
(1927) 51 Bom LR 234 .

25 . Ram Chandra v. Janardan,

AIR 1969 Bom 111 [
LNIND 1967 BOM 112 ]:
(1969) ILR Bom 766 :
(1968) 70 Bom LR 376 .

26 . Harendra Rai v. Chandrawati Devi,

AIR 2007 Pat 120 :
2007 (1) Pat LJR 539 .

27 . Brij Narain Singh v. Adya Prasad,

AIR 2008 SC 1553 [
LNIND 2008 SC 380 ]:
(2008) 11 SCC 558 [
LNIND 2008 SC 380 ].

28 . Thandavan v. Valliamma,
(1892) ILR 15 Mad 336; Sarkun v. Rahaman,
(1897) ILR 24 Cal 83; Nathu v. Budhu,
(1894) ILR 18 Bom 537; Narao v. Ramchandra,
(1889) ILR 13 Bom 326; Sheo Ratan v. Sheo Sahai,
(1884) ILR 6 All 358; Bai Diwali v. Umedbhai,
(1916) ILR 40 Bom 614; Nisha Singh v. Hira,
(1913) PR 87 , 208; Aishan v. Muhammad Din,
(1916) PR 94 ; Dhanapalu v. Anantha, (1913) 24 Mad LJ 418;
Dola v. Balya,
AIR 1922 Bom 29 ,
(1922) ILR 46 Bom 803; Chotey Lal v. Chandra Bhan,
AIR 1923 All 176 :
(1923) ILR 45 All 59; Parshotam v. Balwant,
AIR 1929 Lah 872 :
(1930) ILR 11 Lah 99; Ningaya v. Madivalava,
AIR 1931 Bom 187 :
(1931) 33 Bom LR 204 ; Ram Udit v. Ram Samuj,
AIR 1931 Oudh 263 :
(1931) ILR 7 Luck 73; Gurusami v. Sowminarayana,
AIR 1954 Mad 477 [
LNIND 1953 MAD 34 ].
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29 . Kura v. Madho,
(1915) PR 68 , p. 292.

30 . Maloji v. Sagaji,
(1889) ILR 13 Bom 567.

31 . Sourendra v. Hari Prasad,

AIR 1925 PC 280 :
(1925) ILR 5 Pat 135 : 52 IA 418.

32 . Adinarayana Appan, v.
AIR 1941 Mad 217 [
LNIND 1939 MAD 388 ]; Raghukul v. Pitam,
AIR 1931 All 99 :
(1930) ILR 52 All 901.

33 . Jagannath v. Sheo Shankar,

AIR 1929 Oudh 455 :
(1930) ILR 5 Luck 369.

34 . Narayan v. Ganoji,
(1891) ILR 15 Bom 692.

35 . Erikam v. Mahabalaram,
AIR 1951 TC 92 .

36 . Bharosilal v. Shiladevi,
AIR 1989 MP 122 [
LNIND 1988 MP 160 ].

37 . Radha Kishun v. Khurshed Hossein,

(1943) ILR 47 Cal 662 : 47 IA 11 (prior mortgage not
attacked); Ajudhia v. Inayat Ullah,
(1913) ILR 35 All 111 (prior mortgage admitted); Koi v. Atul, (1930)
AIR 1929 Pat 333 :
(1930) ILR 9 Pat 118; dissenting from Krishna v. Amirul,
(1914) 19 Cal WN 942 (prior mortgage not attacked); Abdul Wahid v. Sheikh Ali,
AIR 1929 Oudh 463 :
(1929) ILR 4 Luck 250 (prior mortgage not attacked); Official Assignee, Calcutta
v. Jagabandhu,
AIR 1934 Cal 552 :
(1934) ILR 61 Cal 294.

38 . Rameshwar v.
Harakhlal,
AIR 1942 Pat 226 :
(1941) ILR 20 Pat 841; Gopal v. Benarsi,
(1904) ILR 31 Cal 428; Gajadhar v. Bhagwanta,
(1912) ILR 34 All 599.
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39 . Mehdi Ali v. Saiyed Wilayer,

AIR 1930 Oudh 97 :
(1930) ILR 5 Luck 658.

40 . Neelamma v. K. Velayutham,
AIR 1967 Mad 453 [
LNIND 1966 MAD 108 ].

41 . Sri Gopal v. Pirthi Singh,

(1902) ILR 24 All 429 : 29 IA 118; Mahomed Ibrahim v.
Ambika Pershad, 39 IA 68,; Kanhaiya Lal v. Ikram Fatima,
AIR 1932 Oudh 268 :
(1933) ILR 8 Luck 130.

42 . Ammeenamma v. Beeviamma,
AIR 1953 Mad 32 [
LNIND 1952 MAD 9 ]: (1952) 2 Mad LJ 421 : (1952) Mad
WN 634 :
(1952) 65 Mad LW 959 .

43 . Dhondo v. Bhikaji,
(1915) ILR 39 Bom 138; Dalachand v. Khema,
AIR 1921 Bom 282 :
(1921) ILR 45 Bom 55.

44 . Nattu v. Annangara,
(1907) ILR 30 Mad 353; dissenting from Sundar Singh v.
Bholu,
(1898) ILR 20 All 322.

45 . Subramania v. Balsubramania,
(1915) ILR 39 Mad 927; Dhondo v. Bhikaji,
(1915) ILR 39 Bom 138, 145; Jagannath v. Mohra Kuar,
(1916) 2 Pat LJ 118 ; Rangasami Nadan v. Subbaraya,
(1970) ILR 30 Mad 408; Radha Krishnier v. Muthusami,
(1908) ILR 31 Mad 530; Shankar Sarup v. Mejo Mal,
(1901) ILR 23 All 313 : 28 IA 203.

46 .
(1915) ILR 38 Mad 927.

47 .
(1898) ILR 20 All 322; Raghunath Prasad v. Jamna Prasad,
(1907) ILR 29 All 233; Nazirunnissa v. Asifa,
AIR 1927 All 341 .

48 . Lakshmanan v. Muthaya, (1921) 40 Mad LJ 126; Parmeshwar v. Raj

Kishore,
AIR 1925 Pat 59 ,
(1924) ILR 3 Pat 829; Udhai Chand v. Nagin Singh, 50 IC
40; Govind v. Harihar,
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(1910) ILR 38 Cal 60; Nilo v. Asirbad, (1920) 25 Cal WN

129.

49 . See
s 67A of the Transfer of Property Act .

50 . Lakshmanan v. Muthaya, (1921) 40 Mad LJ 126; Parmeshwar v. Raj

Kishore,
AIR 1925 Pat 59 ,
(1924) ILR 3 Pat 829; Udhai Chand v. Nagin Singh, 50 IC
40; Govind v. Harihar,
(1910) ILR 38 Cal 60; Nilo v. Asirbad, (1920) 25 Cal WN
129.

51 . Kashi v. Bajrang Prasad,

(1908) ILR 30 All 36.

52 . Rukhminibai v. Venkatesh,
(1907) ILR 31 Bom 527; Satyabadi v. Harobati,
(1907) ILR 34 Cal 223; Ma Nyo v. Maung Hla Bu,
AIR 1925 Rang 13 : (1924) 2 Rang 382.

53 . Jitan Pandey v. Hari Nath,

AIR 1928 Cal 459 , (1928) 32 Cal WN 1023; Malhari v. Vinayak,
AIR 1929 Bom 323 :
(1929) 31 Bom LR 640 .

54 . Ismile Nathabhai Khatri v. Muljibhai Shankar Bhai Braham Bhatt,

AIR 1994 Guj 8 [
LNIND 1992 GUJ 228 ].

55 . Vora Amin Bai Ibrahim v. Vohra Taheral Mohammed,

AIR 1998 Guj 31 .

56 . Rambriksh Yadav v. State of Bihar,

AIR 1994 Pat 156 . See notes, Finality of decree in redemption suits,
below.

57 . Fulchand Munda v. State of Bihar,

AIR 2008 SC 1139 [
LNIND 2008 SC 156 ]:
(2008) 14 SCC 774 [
LNIND 2008 SC 156 ].

58 . Ibid, para 5 at p. 1141.

59 . Sasimohan v. Hari Nath,

AIR 1928 Cal 459 : (1928) 32 Cal WN 1023; Malhari v. Vinayak,
 Page 199 of 217
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AIR 1929 Bom 323 :

(1929) 31 Bom LR 640 .

60 . Nageswar Tuvari v. Dwarka Prasad,

AIR 1953 All 541 .

61 . Veeriah v. Venkatasubbiah, (1955) ILR Andh 215.

62 . Shankarrao Dajisaheb Shinde v. Vithalrao Ganpatrao Shinde,

AIR 1989 SC 879 : (1989) Supp 2 SCC 162.

63 . Mallayya v. Thanlari Thipparnna, (1955) ILR Andh 81.

64 . Santhana Narain v. Saran Narain,

AIR 1959 Pat 331 :
(1959) ILR 38 [
LNIND 1958 RAJ 87 ] Pat 737; Abdul Kareem v. Silar Sahib,
AIR 1957 AP 40 [
LNIND 1997 CLBRBMAA 17 ]; Tharakishore v. Beharu,
AIR 1958 Assam 67 : (1956) ILR Assam 77; Shyam Sundar
v. M. Chand Bai,
(1962) ILR 12 Raj 96.

65 . Manoharlal v. Onkar Das,

AIR 1959 Punj 252 :
(1961) 63 Punj LR 264 .

66 . Krishna Prasad Misra v. Panchanan Misra,

AIR 1997 Ori 120 [
LNIND 1996 ORI 109 ].

67 . Muthakke v. Devanna Rai,

AIR 2002 Ker 301 [
LNIND 2002 KER 35 ] (DB).

68 . Balachandran v. Gopalan,
AIR 2001 Ker 337 [
LNIND 2001 KER 163 ].

69 . V.S. Mani v. K. Rajendran,

AIR 2003 Mad 432 [
LNIND 2003 MAD 842 ].

70 . Ganesh Patra v. Banabihari Patra,

AIR 2004 Ori 23 [
LNIND 2003 ORI 61 ].
 Page 200 of 217
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71 . Narasimhiah v. Chicka Thimmayya,

AIR 1954 Mys 115 : (1953) ILR Mys 655.

72 . Ganga Bai v. Vijay Kumar,

AIR 1974 SC 1126 [
LNIND 1974 SC 142 ]:
(1974) 2 SCC 393 [
LNIND 1974 SC 142 ] :
(1974) Mah LJ 602 [
LNIND 1974 SC 142 ].

73 . V.B. Arun Kumar v. Jaya Singh, (1993) Supp 2 SCC 141.

74 . Madhav Krishan v. Chandana Bhaga,

(1997) 2 SCC 203 [
LNIND 1996 SC 1529 ].

75 . Udekar v. Chandrasekhar,
AIR 1961 Ori 111 [
LNIND 1960 ORI 18 ].

76 . Rasammal v. Subbaraya Gouden, (1963) 1 Mad LJ 148.

77 . Charu Chandra v. Kamakhya Narain,

AIR 1931 PC 5 :
(1931) ILR 10 Pat 284 : 58 IA 17.

78 . Governor, State of Orissa v. Taldu Ram Rao,

AIR 1983 AP 214 [
LNIND 1982 AP 152 ].

79 . Takhatray Shivadataray Mankad v. State of Gujarat, (1989) Supp 2 SCC

110.

80 . Jamadar Singh v. Serazuddin,

(1908) ILR 35 Cal 979; Sarojini v. Lakhi Priya,
AIR 1925 Cal 427 , (1925) 29 Cal WN 253, p. 259; Pasupathinath v. Sankari
Prasad,
AIR 1957 Cal 128 [
LNIND 1955 CAL 207 ].

81 . K. Ethirajan v. Lakshmi,
AIR 2003 SC 4295 :
AIR 2003 SCW 4951 . See note under the same heading.

82 . N. Suresh Nathan v. Union of India,

AIR 2010 SC 2171 [
LNIND 2010 SC 381 ]:
 Page 201 of 217
(IN) Mulla : The Code of Civil Procedure, 18th Edition

(2010) 5 SCC 692 [

LNIND 2010 SC 381 ] decided on 22-04-2010.

83 . Union of India v. Pramod Gupta,

AIR 2005 SCW 4645 :
(2005) 8 JT 203 [
LNIND 2005 SC 682 ].

84 . Bishwanath Prasad Singh v. Rajendra Prasad,

AIR 2006 SC 2965 [
LNIND 2006 SC 146 ].

85 . Mangharan Chuharmel v. B.C. Patel,

AIR 1972 Bom 46 [
LNIND 1970 BOM 70 ]:
(1972) ILR Bom 30 :
(1971) 73 Bom LR 140 .

86 . Raja Syed Ahmad Ali v. Hinga Lal,

AIR 1947 Oudh 74 :
(1946) ILR 21 Luck 586; Bishun Priya v. Bhaba Sundari,
(1901) ILR 28 Cal 318; Koyyana v. Doosy,
(1906) ILR 29 Mad 225.

87 . Prem Das v. Joti Pershad,

AIR 1971 Del 282 [
LNIND 1971 DEL 51 ].

88 . Gowri Koer v. Audh Koer,

(1884) ILR 10 Cal 1087; Phundo v. Jangi Nath,
(1893) ILR 15 All 37; Kaveri Ammall v. Sastri Ramier,
(1903) ILR 26 Mad 104; Waman v. Hari,
(1907) ILR 31 Bom 128; Annada Prosad v. Gopal Chandra,
AIR 1935 Cal 725 ; Ram Kumar v. Baldeo Prasad,
AIR 1965 All 752 ; Bhau Martand v. Hajabai Bala,
AIR 1975 Bom 233 [
LNIND 1974 BOM 38 ]:
(1975) 77 Bom LR 141 [
LNIND 1974 BOM 38 ]; D Ghosh v. Taswar Hussain,
AIR 1977 Pat 110 .

89 .
AIR 1936 PC 46 :
(1936) ILR 15 Pat 203 : 63 IA 53.

90 . Gowri Koer v. Audh Koer,

(1884) ILR 10 Cal 1087; approved in Tarini Charan v. Kedar
Nath,
AIR 1928 Cal 777 :
(1929) ILR 56 Cal 734; Raj Mohan v. Sarada Charan,
AIR 1936 Cal 200 : (1936) 40 Cal WN 627; Revti Devi v. Khilali Ram,
AIR 1967 Del 119 [
LNIND 1967 DEL 69 ].
 Page 202 of 217
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91 . NY Panchapagasan v. K. Swaminathan,
AIR 1985 Mad 154 [
LNIND 1985 MAD 6 ].

92 . Ibid.

93 . Mohanlal v. Benoy Krishna,

AIR 1953 SC 65 [
LNIND 1952 SC 88 ]:
(1953) SCR 377 [
LNIND 1952 SC 88 ]. See Illustration (i) below.

1 . Gopal Krishan v. Ram Lal,

AIR 1989 Raj 24 .

2 . Bhil Seva Mandal v. Naik Shang Daboda,

AIR 1980 Guj 163 [
LNIND 1980 GUJ 1 ].

3 . Sugan Chand Agarwal v. Jivt Shah,

AIR 1984 Pat 184 (DB).

4 . Alimunnisa v. Shama Charan,

(1905) ILR 32 Cal 749; Baij Nath v. Padamanand,
(1912) ILR 39 Cal 848; Chamanlal v. Bapubhai,
(1898) ILR 22 Bom 669; Vishnu v. Ramling,
(1902) ILR 26 Bom 25; Parthasaradi v. Chinna,
(1882) ILR 5 Mad 304; Venku v. Mahalinga,
(1888) ILR 11 Mad 393; Gopu v. Sami,
(1905) ILR 28 Mad 517; Mangalathammal v. Narayanswami,
(1907) ILR 30 Mad 461; Aitamma v. Narain,
(1907) ILR 30 Mad 504; Kuppana v. Kumara,
(1911) ILR 34 Mad 450; Aghore v. Kamini,
(1909) 11 Cal LJ 461 ; Purna v. Rasik,
(1911) 13 Cal LJ 119 ; Taliamand v. Muhammad,
AIR 1930 Lah 907 : (1931) 12 Lah 52.

5 . Venkata v. Andavolu, (1917) 32 Mad LJ 63; Sitaram v. Laxman,

AIR 1921 Bom 87 :
(1921) ILR 45 Bom 1260; Ramlal v. Deodhari Rai,
AIR 1924 Pat 265 :
(1923) ILR 2 Pat 771; Hub Lal v. Gulzari Lal,
AIR 1927 All 297 :
(1927) ILR 49 All 543; Rajaram v. Central Bank of India,
AIR 1926 Bom 481 :
(1926) 28 Bom LR 879 ; Ayetonnessa Bibi v. Amjad Ali,
AIR 1928 Cal 717 : (1928) 32 Cal WN 828; Tarini Charan v. Kedar Nath,
AIR 1928 Cal 777 (FB) :
(1929) ILR 56 Cal 723); Sanichar v. Raja Dhakeshwar,
AIR 1930 Pat 585 :
(1930) ILR 9 Pat 674.
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6 .
AIR 1928 Cal 777 :
(1929) ILR 56 Cal 723.

7 .
(1905) ILR 32 Cal 749.

8 . Rajaram v. Central
Bank,
AIR 1926 Bom 481 :
(1926) 28 Bom LR 879 ; Chinnappa Reddi v. Srinivasa Rao,
AIR 1935 Mad 835 :
(1935) ILR 59 Mad 62; District Board, Dabhanga v. Suraj Narain,
AIR 1936 Pat 198 :
(1936) ILR 14 Pat 633. Bhau Martand v. Hajabai Bala,
AIR 1975 Bom 233 [
LNIND 1974 BOM 38 ].

9 . Kuppana v. Kumara,
(1911) ILR 34 Mad 450.

10 . Aitamma v. Naraina,
(1907) ILR 30 Mad 504.

11 . Keshav v.Gangadhar,
AIR 1931 Bom 570 :
(1931) 33 Bom LR 1443 ; Savitri v. Holebasappa,
AIR 1932 Bom 257 :
(1932) 34 Bom LR 198 .

12 . Raja Syed Ahmad Ali v. Hinga Lal,

AIR 1947 Oudh 74 ; Abdul Rahim v. Fateh Ullah,
AIR 1933 Lah 274 :
(1933) ILR 14 Lah 31.

13 . Supreme Court Employees, Welfare Association v. Union of India,

AIR 1990 SC 334 [
LNIND 1989 SC 351 ].

14 . Ramchandra Deo v. Ramamurthy,

AIR 1933 Mad 925 [
LNIND 1933 MAD 17 ]: (1933) 65 Mad LJ 684; dissenting from
Mangalathammal v. Narayanaswami,
(1907) ILR 30 Mad 461.

15 . Alimiya v. Sayed Mohomed,

AIR 1968 Guj 257 [
LNIND 1967 GUJ 130 ]: (1968) 9 Guj LR 1002.

16 .
(1913) ILR 40 Cal 534.
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17 . Rajaram v. Central Bank,

AIR 1926 Bom 481 :
(1926) 28 Bom LR 879 .

18 . Shantilal Rampuria v. Vega Trading Corp.,

AIR 1989 SC 1819 [
LNIND 1989 SC 367 ].

19 . Chanderjot Kaur v. State,

AIR 1983 Pat 220 (DB).

20 . Gowri Koer v. Audh Koer,

(1884) ILR 10 Cal 1087; Ramlal v. Deodhari Rai,
AIR 1924 Pat 265 ,
(1923) ILR 2 Pat 771 : 74 IC 781; Doorvas v. Govindaswami,
AIR 1921 Nag 315 : 67 IC 189 : (1921) 40 Mad LJ 556.

21 . Chamanlal v. Bapubhai,
(1898) ILR 22 Bom 669.

22 . Tarini Charan v. Kedar Nath,

AIR 1928 Cal 777 :
(1929) ILR 56 Cal 723; Chandi Prasad v. Maharaja Mahendra,
(1901) ILR 23 All 5.

23 . West Bengal v. Hemant Kumar,

AIR 1966 SC 1061 [
LNIND 1962 SC 393 ].

24 .
(1910) 11 Cal LJ 461 , p. 471.

25 .(1917) 32 Mad LJ 63.

26 .
AIR 1921 Bom 87 :
(1921) 45 ILR Bom 1260 .

27 .
AIR 1924 Pat 265 :
(1923) ILR 2 Pat 771, p. 773.

28 . Sitaram Sakharam Mangle v. Laxman Vishnu Ketkar,

AIR 1921 Bom 87 :
(1921) ILR 45 Bom 1260, per Macleod, CJ.
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29 . As to stare decisis, see Tricomdas v. Gopinath,

(1917) ILR 44 Cal 759 :
(1917) 44 IA 65 , p. 70; Pate v. Pate
AIR 1915 Cal 1100 .

30 . Tarini Chandran v. Kedar Nath,

AIR 1928 Cal 777 :
(1929) ILR 56 Cal 723; Narayana v. Subramanian
AIR 1937 Mad 254 : (1937) 1 Mad LJ 233.

31 . Jeychand v. Dolegobinda,
AIR 1944 Cal 272 : (1944) 48 Cal WN 454; Panchanon v. Ranbir
AIR 1948 All 336 .

32 . N Sreekanthaiah v. MN Mallikarjunaiah,
AIR 1996 Kant 93 [
LNIND 1995 KANT 199 ].

33 . Union of India v. Indian Railways, SAS Staff Association, (1995) Supp 3

SCC 600.

34 .
AIR 1942 Bom 322 :
(1942) 44 Bom LR 710 .

35 . Manohar Lal v. Baldeo Singh,

AIR 1927 All 505 :
(1927) ILR 49 All 918.

36 . Meghraj Golab Chand Firm v. Chandra Kamal Bhuiyan,

AIR 1941 Cal 493 :
(1941) 73 Cal LJ 410 and the cases noticed therein.

37 . Narayan Singh v. Kapil Deo,

AIR 1951 SC 155 [
LNIND 1951 SC 2 ]:
(1951) SCR 138 :
1951 SCJ 199 .

38 . Province of Bombay v. Municipal Corpn, Ahmedabad,

AIR 1954 Bom 1 [
LNIND 1953 BOM 3 ]:
(1953) ILR Bom 1081 ; Goripalayam Darga v. Narayana,
AIR 1951 Mad 630 [
LNIND 1949 MAD 11 ].
 Page 206 of 217
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39 . Supreme Court Employees Welfare Assn v. Union of India,

AIR 1990 SC 334 [
LNIND 1989 SC 351 ].

40 . Muhammad Maqsood v. Hoshiar Singh,

AIR 1945 All 377 :
(1945) ILR All 394 ; Hunt v. Wimbledon Local Board,
(1878) 4 CPD 48 ; Shridhar v. Babaji,
(1914) ILR 38 Bom 709.

41 . Woomesh v. Barada,
(1900) ILR 28 Cal 17.

42 . Bindeshwari v. Bhageshwari,
AIR 1936 PC 46 :
(1936) ILR 15 Pat 203 : 63 IA 53.

43 . Chhaganlal v. Bai Harkha,

(1909) ILR 33 Bom 479.

44 . Monohar Baldeo,v.
AIR 1927 All 505 :
(1927) ILR 49 All 918, p. 923; Rup Nath v. Jagannath,
AIR 1928 Pat 227 :
(1928) ILR 7 Pat 178; Thakur Bhageshwari v. Bindeswari,
AIR 1932 Pat 337 :
(1933) ILR 12 Pat 147; Batul Begum v. Hemchand,
AIR 1960 All 519 [
LNIND 1959 ALL 233 ].

45 . Sundar v. Sheo Dat Singh,

AIR 1937 All 48 : (1936) All LJ 1363.

46 . Colonial Sugar Refining Co. Ltd. v. Irving,

AIR 1905 Cal 369 .

47 . Ram Karan v. Ram Das,

AIR 1931 All 635 :
(1931) ILR 54 All 299.

48 . Ram Deo v. Board of Revenue,

AIR 1961 All 278 [
LNIND 1960 ALL 114 ].

49 . Board of Commissioners v. Rutnaswamy,

AIR 1937 Mad 232 [
LNIND 1936 MAD 348 ]: (1937) ILR Mad 504 :
(1937) 45 Mad LW 57 ; Amritsar Municipality v. State of
Punjab,
AIR 1969 SC 1100 [
 Page 207 of 217
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LNIND 1969 SC 27 ]:
(1969) 1 SCC 475 [
LNIND 1969 SC 27 ].

50 . Raghavendraswamy v. Board of Commissioners,

AIR 1957 AP 150 : (1957) 1 Andh WR 152; Official Receiver v. Union of India,
AIR 1961 Cal 432 [
LNIND 1960 CAL 189 ].

51 . Navrangpura Gam Dharmada Milkat Trust v. Ram Tuji Ramaji,

AIR 1994 Guj 75 [
LNIND 1993 GUJ 203 ].

52 . MVPB Nammalwar v. Commissioner Hindu Religious & Charitable

Endowments Dept, Madras,
AIR 1997 Mad 287 [
LNIND 1997 MAD 454 ].

53 . Jai Singh Jai Ram Tyagi v. Mamanchand Rati Lal Aggarwal,

(1980) 3 SCC 162 [
LNIND 1980 SC 148 ].

54 . Mohunt Das v. Nil Komul, (1899) 4 Cal WN 283. See also Vaishnava Dass
v. Faqirchand,
AIR 1968 Del 6 [
LNIND 1967 DEL 67 ].

55 . Ahmedbhoy v. Vulleebhoy,
(1882) ILR 6 Bom 703, p. 709.

56 . Sailendra v. Bijanlal,
AIR 1945 Cal 283 : (1946) 49 Cal WN 133.

57 . Gobind v. Taruck,
(1878) ILR 3 Cal 145; Basivi Reddy v. Janardan Rao,
AIR 1968 AP 306 [
LNIND 1966 AP 256 ].

58 . Kalee Coomar v. Pran Kishoree,

(1872) 18 WR 29 .

59 . J. Kotamma v. P. Simhachalam,
AIR 1969 AP 76 [
LNIND 1967 AP 4 ].

60 . Sk Md. Ismail v. Sk Anwar Ali,

AIR 1991 Cal 391 [
LNIND 1991 CAL 55 ].
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61 . Chandran v. Subramanya,
AIR 1977 Mad 292 [
LNIND 1976 MAD 332 ]:
(1977) ILR 3 Mad 173.

62 . Bepin Behary v. Brojo Nath,

(1882) ILR 8 Cal 357.

63 . Radha Binode v. Sri Sri Gopal,

AIR 1927 PC 128 :
(1927) ILR 54 Cal 770 : 54 IA 238. See also KB
Ramachandra Raja v. State of Karnataka,
AIR 2001 Kant 512 [
LNIND 2001 KANT 127 ].

64 . Sri Ramjee v. B.P. Shah,

AIR 1978 Pat 129 .

65 . Dwarkanath v. Ramchand,
(1899) ILR 26 Cal 428.

66 . Shantilal Rampuria v. Vega Trading Corpn.,

AIR 1989 SC 1819 [
LNIND 1989 SC 367 ].

67 . Coimbatore Municipality v. CG Subbiah,

AIR 1980 Mad 130 [
LNIND 1979 MAD 91 ].

68 . Munish Kumar Agnihotri v. Lalit Prasad Gupta,

AIR 1989 All 202 [
LNIND 1988 ALL 148 ].

69 . M.K. Rapai v. John,

AIR 1965 Ker 203 [
LNIND 1964 KER 350 ].

70 . Secretary of State v. Tatya Saheb,

AIR 1932 Bom 386 :
(1932) ILR 56 Bom 501.

71 . Gurbax Rai v. Punjab National Bank,

AIR 1984 SC 1012 :
(1984) 3 SCC 96 .
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72 . Hindustan Petroleum Corpn. Ltd. v. Yashwant Gajanan Joshi,

AIR 1991 SC 933 [
LNIND 1990 SC 763 ].

73 . Rajappan v. Sankaran Sudhakaran,

AIR 1997 Ker 315 [
LNIND 1997 KER 101 ].

74 . Clothy Theyyathan v. John Thomas,

AIR 1997 Ker 249 [
LNIND 1997 KER 26 ].

75 . Shankaralingappa v. Nanja Gowda,

AIR 1981 Kant 78 [
LNIND 1980 KANT 257 ].

76 . Eastern Bank v. Ports Services of India Ltd.,

AIR 1986 Cal 61 [
LNIND 1984 CAL 282 ].

77 . Gokul Chandra v. Atlas & Union Jute Press Co. Ltd.,

AIR 1986 Cal 392 (DB).

78 . Ram Niwas v. Omkari,

AIR 1983 All 310 (DB).

79 . Radha Mohan v. Eliza Jane Hilt,

AIR 1947 All 147 :
(1947) ILR All 186 .

80 . Gujarat Navodaya Mandal v. State of Gujarat,

AIR 1998 Guj 141 .

81 . Director of Education v. K. Sita Devi, (1991) Supp 2 SCC 387.

82 . Bansi Lal Farms v. Uma Rani Bose,

(1997) 9 SCC 191 [
LNIND 1996 SC 1964 ].

83 . Smt. Shamlata v. Vishweshwara Tukaram Giripunje,

AIR 2008 Bom 155 [
LNIND 2008 NGP 29 ]: 2008 (2) All MR 743.

84 . Narendra Akash Maharaj Patkar v. Shahji Babu rao Patkar,

AIR 2009 Bom 165 [
LNIND 2009 BOM 450 ]: 2009 (5) All MR 173 (DB).
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85 . Radha Rani v. Binoda

Moyee,
AIR 1942 Cal 92 :
(1942) ILR 1 Cal 169; Ramchandra v. Narayan,
(1887) ILR 11 Bom 216; Magniram v. Mehdi Hoossein,
(1904) ILR 31 Cal 95; Chajju v. Umrao,
(1900) ILR 22 All 386; Balambhat v. Narayanbhat,
(1901) ILR 25 Bom 74; Bapu v. Bhawani,
(1898) ILR 22 Bom 245; Muhammad v. Visvanath,
(1903) ILR 26 Mad 337; Kandiyi v. Zamorin of Calicut,
(1906) ILR 29 Mad 515; Yusuf v. Durji,
(1907) ILR 30 Mad 447; Gurdeo Singh v. Chandrikah Singh,
(1909) ILR 36 Cal 193; Hari Annaji v. Vasudev,
(1914) ILR 38 Bom 438; Gangaram v. Vasudeo,
AIR 1923 Bom 203 :
(1923) ILR 47 Bom 534; Rajendra v. Biswarup,
AIR 1921 Cal 255 :
(1922) 35 Cal LJ 173 ; Venkobacharlu v. Radhabayamma,
AIR 1924 Mad 858 [
LNIND 1924 MAD 161 ]: (1924) 47 Mad LJ 612; Muhammad Ahmad v. Zahur,
AIR 1922 All 19 :
(1922) ILR 44 All 334, p. 338; Mehra v. Devi Ditta Mal,
AIR 1921 Lah 47 : (1921) 2 Lah 88; Maung Thwe v. Ma
Shwe,
AIR 1924 Rang 279 ; Ram Prasad v. Mahabir,
AIR 1924 All 310 :
(1924) ILR 46 All 220; Mahip Narain v. Mannu Singh,
AIR 1925 All 546 :
(1925) ILR 47 All 778; Dewan Singh v. Gokul,
AIR 1921 Lah 25 : (1921) 3 Lah LJ 295; Pratapa v. Simji,
AIR 1927 Mad 50 [
LNIND 1926 MAD 205 ]: (1926) 51 Mad LJ 652; Ma Pun Nyun v. Maung Sit
Phaung,
AIR 1928 Rang 315 : (1928) 6 Rang 575; Barkat Ali v.
Karim Baksh,
AIR 1932 Lah 325 :
(1933) ILR 14 Lah 442,; Dwaraka Das v. Union of India,
AIR 1953 Punj 120 , (1953) ILR Punj 521; Ram Sagar v.
Yogendra Narain,
AIR 1975 Pat 239 .

86 . Cottingham v. Earl of Shrewsbury, (1843) 3 Hare 627, p. 628; Tanwanginee

Debi v. Abhaya Charan,
AIR 1930 Cal 169 :
(1930) ILR 57 Cal 480; Janki v. Dharamraj,
AIR 1974 Pat 254 .

87 . Fakirchand v. Naginchand,
(1916) ILR 40 Bom 210, p. 216.

88 . Mahboob Sahab v. Syyad Ismail,

(1995) 3 SCC 693 [
LNIND 1995 SC 404 ].

89 . Syed Mohammud Sadat Ali Khan v. Mirza Wiquar Ali,

AIR 1943 PC 115 : (1944) 48 Cal WN 66; Chandu Lal v. Khalilur Rahaman,
AIR 1943 Cal 76 :
(1942) ILR 2 Cal 229; Chunibhai v. Nathabhai,
AIR 1944 Pat 185 :
(1943) ILR 22 Pat 655; Bhupindera v. Tarupriya,
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AIR 1950 Assam 119 : (1950) 2 Assam 225; KP Rau Kuppan

Chettiar v. BM Ramaswami Chettiar,
AIR 1946 Mad 472 : (1947) ILR Mad 58; Munni Bibi v.
Tirloki Nath,
AIR 1931 PC 114 :
(1931) 58 IA 158 ; Kishan Prasad v. Durga Prasad,
AIR 1931 PC 231 : (1931) 35 Cal WN 1217; Jadav v. Kailash,
(1916) 25 Cal LJ 322 ; Sukh Dial v. Bhopi,
AIR 1923 Lah 186 ; Ma Tok v. Ma Yin,
AIR 1925 Rang 228 , (1925) 3 Rang 77, p. 79; Ma Shin v. Maung Han,
AIR 1929 Rang 163 :
(1929) ILR 7 Rang 80, p. 83; Chidambargauda v. Channappa,
AIR 1934 Bom 329 :
(1934) 36 Bom LR 694 ; Rami Reddi v. Tugram Bichalu,
AIR 1952 Mad 837 [
LNIND 1951 MAD 336 ]; Ram Karan Singh v. Parbati,
AIR 1954 Pat 443 ; Eapen Mathai v. Abdul Khader,
AIR 1958 MP 261 [
LNIND 1957 MP 60 ]: (1958) ILR Ker 1034; Ram Swarup v. Futtu,
AIR 1960 All 367 [
LNIND 1959 ALL 125 ]; Koodi v. Baboo,
AIR 1959 Raj 127 [
LNIND 1959 RAJ 175 ]: (1959) ILR Raj 632; SP Misra v. Babuaji,
AIR 1970 SC 809 [
LNIND 1968 SC 362 ]:
[1969] 2 SCR 971 [
LNIND 1968 SC 362 ]; Dhan Singh v. Jt Director, Consolidation,
AIR 1973 All 283 ; Iftikhar Ahmed v. Syed Meharban,
AIR 1974 SC 749 [
LNIND 1974 SC 62 ]:
(1974) 2 SCC 151 [
LNIND 1974 SC 62 ]; Muna Kuar v. Lala Prasad,
AIR 1970 Pat 219 .

90 . Debabrata Mukherjee v. Ralyan Kumar,

AIR 1983 Cal 241 [
LNIND 1983 CAL 31 ] (DB); Munni Bibi v. Triloki Nath,
AIR 1931 PC 114 .

91 . Chandu Lal v. Khalilur Rahaman,

AIR 1950 PC 17 [
LNIND 1949 PC 48 ]: 77 IA 27, (1950) 54 Cal WN 211; Bhoom Reddi v. State of
Hyderabad,
AIR 1955 Hyd 440 : (1955) ILR Hyd 599.

92 . Kesavan v. Lekshmy Amma,

AIR 1968 Ker 154 [
LNIND 1967 KER 30 ].

1 . A. Venkateshwarlu v. M.M. Mosque,

AIR 1972 AP 132 [
LNIND 1971 AP 23 ].

2 . Sher Singh v. Mohd Ismail,

AIR 1981 All 114 .
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3 . Maung Sein Done v. Ma Pan Nyun,

AIR 1932 PC 161 :
(1932) ILR 10 Rang 322 : 59 IA 247; Kedar Nath v. Munshi
Ram,
AIR 1935 PC 139 : 62 IA 224 : (1935) 14 Pat 611; Jeshwant Ramchandra v.
Govind,
AIR 1934 Bom 313 :
(1934) ILR 58 Bom 544 :
(1934) 36 Bom LR 612 .

4 .
AIR 1931 PC 114 :
(1930) ILR 52 All 103 : 58 IA 158.

5 . Lal Mohan v. Ram Lakshmi,

AIR 1932 Cal 271 :
(1932) ILR 59 Cal 636.

6 . Venkayya v. Narasamma,
(1888) ILR 11 Mad 204.

7 . Ram Prasad v. Mahabir,

AIR 1924 All 310 :
(1924) ILR 46 All 220.

8 . Gangaprasad v. Kuladananda,
AIR 1926 Cal 568 : (1925) 30 Cal WN 415.

9 . Sheikh Khoorshed v. Nubee,

(1887) ILR 13 Cal 551.

10 . Harihar Prasad Singh v. Narsingh Prasad Singh,

AIR 1941 Pat 83 :
(1940) ILR 19 Pat 669; Gandharp v. Nirmal 54 IC 325; Ejat
Ahmed v. Szaghir,
AIR 1921 All 287 :
(1929) ILR 51 All 850.

11 . Muhammad Hasan v. Mehdi Hasan,

AIR 1946 All 399 :
(1946) ILR All 325 .

12 . Krishnan v. Kannan,
(1898) ILR 21 Mad 8; Rukhmini v. Dhondo,
(1912) 36 ILR Bom 207 ; Fakirgowda v. Dyamaya,
AIR 1933 Bom 287 ,
(1933) ILR 57 Bom 488; Parduman Singh v. State of Punjab,
AIR 1958 Punj 63 : (1957) ILR Punj 1629; Devaki v. Raghavan,
AIR 1961 Ker 224 [
LNIND 1960 KER 243 ].
 Page 213 of 217
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13 . Munni Bibi v. Trilokinath,

AIR 1931 PC 114 : 58 IA 158, p. 165.

14 . Makhija C&E Pvt. Ltd. v. Indore Development Authority,

AIR 2005 SC 2499 [
LNIND 2005 SC 390 ].

15 . See O 1, r. 10(2) and

s 32 of the Code of Civil Procedure 1882.

16 . Joy Chand v. Dolegobinda,

AIR 1944 Cal 272 : (1944) 48 Cal WN 454; Official Assignee v. Madholal,
AIR 1947 Bom 217 :
(1946) 48 Bom LR 828 ; Brojo Behari v. Kedar Nath,
(1886) ILR 12 Cal 580; Ramdas v. Vazirsaheb,
(1901) ILR 25 Bom 589; Malhi v. Iman-ud-din,
(1905) ILR 27 All 59; Kumarappa v. Adaikkalam,
AIR 1932 Mad 207 [
LNIND 1931 MAD 205 ]:
(1932) ILR 55 Mad 483; Nibaran v. Motilal,
(1935) ILR 62 Cal 642; P.N. Rao v. K.
Radhakrishnamacharyulu,
AIR 1978 AP 319 [
LNIND 1977 AP 278 ].

17 . Krishna v. Mungara,
AIR 1932 Mad 298 [
LNIND 1931 MAD 216 ]:
(1932) ILR 55 Mad 601.

18 . Radha Kishun v. Khurshed Hossein,

(1920) ILR 47 Cal 662 : 47 IA 11; Prithvi Singh v. Jith Ram,
AIR 1951 Punj 363 .

19 . See the note on this case under O 34, r. 1.

20 . Moniur Ahmed, v.
AIR 1953 Cal 155 [
LNIND 1952 CAL 16 ]: (1952) 56 Cal WN 506; Hirendra v. Chandra Singh,
AIR 1958 Assam 179 : (1956) ILR Assam 496 ; Gitaram v. Prithvi Singh,
AIR 1956 Punj 129 (FB).

21 . Kshiroda v. Debendranath,
AIR 1957 Cal 200 [
LNIND 1955 CAL 154 ].

22 . Asghar v. Mahomed,
(1903) ILR 30 Cal 565; Vythilinga v. Vijayathammal,
(1882) ILR 6 Mad 43.
 Page 214 of 217
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23 . Ramireddi v.
Bichalu,
AIR 1952 Mad 837 [
LNIND 1951 MAD 336 ]: (1952) 1 Mad LJ 475; Venkiah v. Kanthamani,
(1955) Mad WN 690; Ahmad Ali v. B. Veeralla,
AIR 1959 AP 280 [
LNIND 1958 AP 52 ]:
(1959) 1 AWR 72 .

24 . Asghar v. Mahomed,
(1903) ILR 30 Cal 565.

25 . Rambrohmo v. Bunsi,
(1882) 11 Cal LR 122 ; Sher Bahadur v. Madho Prasad,
AIR 1935 Oudh 394 ,
(1936) ILR 11 Luck 209.

26 . Kali Dayal v. Umesh Prasad,

AIR 1922 Pat 63 :
(1922) ILR 1 Pat 174.

27 . Mahammad v. Raghunath,
AIR 1926 Oudh 1 :
(1926) ILR 1 Luck 25.

28 . Gadahar v. Radhacharan,
(1907) ILR 34 Cal 868.

29 . Sunder v. Chhitar,
(1906) ILR 29 All 1; Ram Narain v. Bisheshar,
(1888) ILR 10 All 411.

30 . Kali Charan v. Sheo Buksh, (1912) 16 Cal WN 783.

31 . Shiva Prasad Singh v. Rani Prayag Kumari,

(1932) ILR 59 Cal 1399 : 59 IA 331, (1932) 36 Cal WN 1049;
Konamal v. Annadana,
(1928) ILR 51 Mad 189 : 55 IA 114; Pratap Chandra Deo v.
Jagadish Chandra Deo,
(1927) ILR 54 Cal 995 : 54 IA 289 : (1927) 31 Cal WN 942.

32 . Achhaibar v. Hargobind, 52 IC 845; Puttuswamiah v. Ramachandriah,

AIR 1953 Mys 72 : (1953) ILR Mys 169.

33 . Kasa Krishna Ghorpade v. Vinayak Gangadhar,

AIR 1948 Bom 193 :
(1947) ILR Bom 770 :
(1947) 49 Bom LR 858 ; Beli Ram v. Chaudri Md. Afzal,
AIR 1948 PC 168 :
(1948) 50 Bom LR 674 ; Sailendra v. Bijanlal,
AIR 1945 Cal 283 : (1946) 49 Cal WN 133; Ramlakhan v. Tribuni,
 Page 215 of 217
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AIR 1942 Pat 234 ; Sita Ram v. Amir,

(1886) ILR 8 All 324; Joy Chandra v. Sreenath,
(1905) ILR 32 Cal 357 (vendor and purchaser); Mussan v. Thawara,
AIR 1921 Mad 708 [
LNIND 1921 MAD 87 ]: (1921) 41 Mad LJ 392 (lessor and
lessee); Brojo v. Kedar,
(1886) ILR 12 Cal 580 (FB; Shripadbhat v. Rama,
AIR 1927 Bom 270 :
(1927) 29 Bom LR 274 (lessor and lessee); Naizullah v. Nazir,
(1893) ILR 15 All 108; Abdul Alli v. Miakhan,
(1911) ILR 35 Bom 297 (donor and donee); Ramchandra v. Malkapa,
(1916) ILR 40 Bom 679; Duraichami v. Adimuthu,
AIR 1925 Mad 358 [
LNIND 1924 MAD 167 ]: (1924) 47 Mad LJ 728 (vendor and
purchaser); Kandaveloo v. Kumaran,
AIR 1953 TC 529 ; Dodda Rangappa v. Kenche Gowda,
AIR 1953 Mys 111 : (1953) ILR Mys 98; Rajubai v.
Nandram, (1954) ILR Raj 417; Vibhuti Singh v. Damari Lal,
AIR 1978 All 370 .

34 . Narain Das v. Banarsi Lal,

AIR 1970 Pat 50 . See notes below under the head Condition III: Litigation
under the same title.

35 . B. Mohan Kishan Seth v. Ram Prasad,

AIR 1949 All 761 ; Somasundara v. Kulandaivelu,
(1905) ILR 28 Mad 457 (FB); Surender Nath v. Brojo Nath,
(1886) ILR 13 Cal 352; Jaimangal Deo v. Bed Saran,
(1911) ILR 33 All 493; Ramchand v. Maula Baksh,
AIR 1924 All 178 :
(1924) ILR 46 All 110; Sonachalam v. Kumaravelu,
AIR 1928 Mad 77 [
LNIND 1927 MAD 314 ] (FB) :
(1928) ILR 51 Mad 128; Chuhar Singh v. Raghubir Singh,
AIR 1956 Punj 241 .

36 . Kumaravelu
v. Ramaswami,
AIR 1933 PC 183 : 60 IA 278 :
(1933) ILR 56 Mad 657; B Mohan Kishan Seth v. Ram
Prasad,
AIR 1949 All 761 ; Jackiria Sakib v. Official Receiver,
AIR 1962 Mad 189 [
LNIND 1961 MAD 81 ].

37 . Junior Telecom Officers Forum v. Union of India, (1993) Supp 4 SCC 693.

38 . Suraiya Begam v. Mohd Usman,

1991 (3) SCC 114 [
LNIND 1991 SC 241 ].

39 . Ram Prasad v. Shiromani,

AIR 1931 Lah 161 :
(1931) ILR 12 Lah 497 : 135 IC 657.

40 . Sultan Asad v. Secretary of State,

AIR 1936 Lah 998 .
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41 . Moran Mar Basselios Catholicos v. Paulo Avira,

AIR 1959 SC 31 [
LNIND 1958 SC 232 ]: (1958) ILR Ker 1340 :
1958 Ker LJ 874 .

42 . Sadhu Charan v. Krishnamani,

AIR 1942 Pat 181 ; Madhavan v. Keshavan,
(1888) ILR 11 Mad 191 (trustee); Venkayya v. Suramma,
(1889) ILR 12 Mad 235 (karnum); Radhabhai v. Anantrav,
(1855) ILR 9 Bom 198 (vatan lands); Bai
Merherbai v. Maganchand,
(1905) ILR 29 Bom 96 (administrator); Raja Ranjit v. Basunta, (1908) 12 Cal
WN 739; Jharula Das v. Jalandhar,
(1912) ILR 39 Cal 887 (shebait); Thakur v. Jaishth,
AIR 1924 All 504 :
(1924) ILR 46 All 651; Prosunno Kumari v. Golab Chand, 2
IA 145 : (1875) 14 Beng LR 450, p. 459 (shebait); Upendranath v. Kusum,
(1915) ILR 42 Cal 440; Subban Ali v. Imami Begum,
AIR 1925 PC 184 :
(1925) ILR 52 Cal 971 : 52 IA 294(inam lands); Madhavrao v.
Anusuyabai,
(1916) ILR 40 Bom 606 (saranjam lands).

43 . Subramania v.
Vaithilinga,
AIR 1931 Mad 641 [
LNIND 1930 MAD 238 ]: (1931) 60 Mad LJ 590; Dasia Pillai v. Pattamuthu,
AIR 1953 Mad 624 [
LNIND 1951 MAD 388 ]: (1952) 2 Mad LJ 871.

44 . Srinivas v. Purushotham,
AIR 1953 Bom 393 [
LNIND 1952 BOM 126 ].

45 . Komappan v. Ukkaran,
(1894) ILR 17 Mad 214; Marivittil v. Pathram,
(1907) ILR 30 Mad 215; Piare Lal v. Sher Gir,
AIR 1938 Lah 499 ; Raman v. Raman,
AIR 1959 Ker 169 [
LNIND 1958 KER 144 ]: (1958) ILR Ker 1064.

46 . Miller v. Lakhimani Debi,

(1901) ILR 28 Cal 419.

47 . Official Assignee v. Anju,

AIR 1925 Mad 688 : (1925) 48 Mad LJ 530.

48 . Gur Narayan v. Sheo Lal Singh,

(1919) ILR 46 Cal 566 : 46 IA 1; Nand Kishore v. Ahmed,
(1896) ILR 18 All 69; Nikunja Behari v. Jathindranath,
AIR 1956 Cal 613 [
LNIND 1956 CAL 67 ].
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49 . Raja of Deo v. Abdulla, 45 IA 97 : (1918) 22 Cal WN 891; Prakash

Chandra v. Mahima Ranjan,
AIR 1947 Cal 320 : (1947) 51 Cal WN 273.

50 . Raj Kishore v. Subak Narain,

AIR 1959 Pat 89 :
(1957) ILR 36 Pat 1027.

51 . Bhrigurashram v. Surendranath,
AIR 1962 Pat 204 .

52 . Meenakshi Mills v. Commr of Income-tax,

AIR 1957 SC 49 [
LNIND 1956 SC 70 ]:
(1956) SCR 691 [
LNIND 1956 SC 70 ] :
(1957) SCJ 1 [
LNIND 1956 SC 70 ],
(1956) SCA 1139 [
LNIND 1956 SC 70 ].

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

S. 11. Res Judicata.

Joint Hindu family. The question whether the manager of a joint Hindu family represents the
other members in a suit affecting the family depends very largely upon the facts of the
case. If he was act ing in the suit in the interests of the minor members and with the
consent of the adult members, they are all bound.53 The Kerala High Court has held that in
the case of a manager of a joint Hindu family who under the Hindu law is entitled to
represent the members of the family, the requirement of identity of parties with regard to
the members of the family claiming as such in a subsequent suit, is satisfied.54 In such a
case, it is not necessary that the plaint or the written statement should state in express
terms that the manager was suing or was being sued as the manager. It is sufficient if he
was suing or was being sued as representing the family.55 If the cause of action is a
wrongful act of the father, the son who is not a party is not bound.56 (For mortgage suits,
see note under O 34, r 1.)

A Hindu father suing or being used in a representative capacity can bind his minor as well
as his major sons by special oath.57 When the question is whether a debt incurred by the
father is binding on the sons on the basis of the doctrine of pious obligation, it is open to
the latter to raise the same in proceedings for the execution of the decree obtained against
the father on the debt, provided they were not parties to the suit. Also, where a suit against
the sons was withdrawn by the plaintiff and dismissed without any decision on the merits,
the question of the liability of the sons is not res judicata and can be gone into in
execution.58 A decree against a Hindu father passed by consent will be as much binding on
the sons as the one passed after contest.59 Any member of a joint family is entitled to file a
suit to eject a trespasser from the family properties and the decision in such a suit would
be binding on all the members of the family under explanation VI.60

Co-owners. A co-owner of the equity of redemption who obtains possession of the property
on redemption of the mortgage, should hold the same for the benefit also of the other co-
owners, vide s 90, of the Indian Trusts Act. If the suit for redemption, prosecuted bona fide,
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ends in failure, there is no reason why the decree will not be binding on the other co-
owners. Section 11 explanation VI, provides for such a contingency, if it is shown that the
plaintiff was bona fide litigating in respect of a right common to himself and to the other co-
owners. Thus, where the suit for redemption, filed by some of the heirs to the mortgagor,
was dismissed, the subsequent suit for redemption filed by an heir who was not a party to
the earlier suit, would be barred by res judicata when the plaintiff in the second suit has no
case of any fraud or collusion in the conduct of the earlier suit, nor does he have a special
case apart from the case for redemption pleaded in the prior suit.61

Suit was filed for permanent injunction against the karta of a joint Hindu family only (and
not in his representative capacity) to restrain him from obstructing the free flow of water
from a newly constructed drain. It was held that members of the family were not precluded
from challenging the permanent injunction granted against the karta. Suit was not filed
under O 1, r 8 of the Code of Civil Procedure. The judgment rendered in the suit for
permanent injunction against the karta was only a judgment in personam. An injunction acts
or operates in personam and not in rem, and was therefore, not binding on the other
members of the family. An injunction is a personal remedy and does not run with the land.
A decree for an injunction is to be executed against the persons against whom the
injunction is issued and cannot be executed against any other person in the absence of a
statutory provision to that effect.62

Hindu Widow and Reversioners. A decree passed against a Hindu widow as representing the
state of her husband in respect of a debt or other transaction binding on the estate, is
binding upon the reversioners,63 unless, as was observed by their Lordships of the Privy
Council in the Shivagunga case:

it could be shown that there had not been a fair trial of the right in that suitor, in other
words, unless that decree could have been successfully impeached on some special
ground.64

The reason of this qualification is that though a Hindu widow represents the estate, to
protect it;65 but the judgment operates as res judicata only in respect of questions tried in the
suit.66 The observations of their Lordships in the Shivgunga case, were construed in many
cases to mean, that a decree passed against a Hindu widow or other limited heir did not
bind the reversioners, unless the decree was passed in a suit contested to the end, and that
neither a consent decree nor a decree on an award, however bona fide the compromise or
reference might be, bound the reversioners; but, this view has now been definitely rejected
by the Privy Council as it involves very extreme consequences, one of them being that a
Hindu widow must fight the case up to the Privy Council, and another, that her opponent
can never suggest a compromise because he would know that any compromise would be
upset. The rule of law as now established is that a widow has power to compromise a suit,
and a decree passed against her, though on a compromise or on an award, binds the
reversioners as much as a decree in a suit contested to the end, provided the compromise
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was entered into by her bona fide for the benefit of the estate which she represents and not
for her personal advantage.67 A decree, however, against a Hindu widow not in her
representative but personal character, does not bind the reversioners or a son subsequently
adopted by her.68 A decree passed against the legal personal representative of a Hindu
widow in respect of her husbands estate does not bind the reversioners, for the
representative of a widow does not represent the estate of the husband.69

There is no authority for the proposition that a Hindu widow, otherwise qualified to
represent an estate in litigation, ceases to be so qualified merely owing to a personal
disability or disadvantage as a litigant, although the merits of a suit by or against her are
tried and the trial is fair and honest. The mere fact, therefore, that she is personally
estopped from denying the material facts of a case is no ground for withholding the
application of the rule enunciated at the commencement of this paragraph, namely that
where the estate of a deceased Hindu was vested in his widow or other limited heirs, a
decree fairly and properly obtained against her is binding on the reversionary heirs. Thus,
where a Hindu widow instituted a suit for declaration that an adoption made by her to her
deceased husband was invalid, and the suit was dismissed on the ground that the widow
was estopped by her conduct for denying the validity of the adoption, and it was further
found upon the facts that the adoption was valid, it was held, in a suit brought by the
reversionary heir after the widows death for a declaration that the adoption was invalid,
that the reversionary heir was bound by the decision in the first suit as res judicata. 70 The
dismissal of a suit, brought by a widow on the ground that it was barred by the provisions
of s 47 below, does not operate as res judicata so as to bar a subsequent suit by the
reversioners.71

A suit by the next reversioner for a declaration that an alienation made by a Hindu widow
is not binding on the reversioner is a representative suit on behalf of all the reversioners.72
A decree, however, against a Hindu widow not in her representative but personal
character, does not bind the reversioners or a son subsequently adopted by her.73 A decree
passed against the legal personal representative of a Hindu widow in respect of her
husbands estate does not bind the reversioners, for the representative of a widow does not
represent the estate of the husband.74

There is no authority for the proposition that a Hindu widow, otherwise qualified to
represent an estate in litigation, ceases to be so qualified merely owing to a personal
disability or disadvantage as a litigant, although the merits of a suit by or against her are
tried and the trial is fair and honest. The mere fact, therefore, that she is personally
estopped from denying the material facts of a case is no ground for withholding the
application of the rule enunciated at the commencement of this paragraph, namely that
where the estate of a deceased Hindu was vested in his widow or other limited heirs, a
decree fairly and properly obtained against her is binding on the reversionary heirs. Thus,
where a Hindu widow instituted a suit for declaration that an adoption made by her to her
deceased husband was invalid, and the suit was dismissed on the ground that the widow
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was estopped by her conduct for denying the validity of the adoption, and it was further
found upon the facts that the adoption was valid, it was held, in a suit brought by the
reversionary heir after the widows death for a declaration that the adoption was invalid,
that the reversionary heir was bound by the decision in the first suit as res judicata. 75 The
dismissal of a suit, brought by a widow on the ground that it was barred by the provisions
of s 47 below, does not operate as res judicata so as to bar a subsequent suit by the
reversioners.76

A suit by the next reversioner for a declaration that an alienation made by a Hindu widow
is not binding on the reversioner is a representative suit on behalf of all the reversioners.77
A decree fairly and properly obtained against the reversioner in such a suit is binding not
only upon him, but the whole body of reversioners presumptive and contingent on the one
hand and the alienee or his representative on the other;78 even gross negligence of the
guardian of a minor reversioner would not avoid the plea of res judicata. 79

(h) Explanation VI not Confined to Order 1, Rule 8. Explanation VI is not confined to cases
covered by O 1, r 8, but would include any litigation in which, apart from the rule
altogether, parties are entitled to represent interested persons other than themselves;80 as
for instance, where each party in a partition suit claiming that the property, the subject
matter of the suit, is joint, asserts a right or title common to others who make identical
claims. If that very issue is litigated in another suit and decided, the others making the
same claim are claiming a right in common for themselves and others. Each of them in
such a case must be deemed to represent all those, the nature of whose claims and interest
are common or identical.81

(i) Exception to Ordinary Rule. Explanation VI to s 11 is an exception to the ordinary rule of

res judicata, even as persons who are not parties to the earlier proceedings in certain
contingencies. However, in order to attract that provision, if there are any rules prescribed,
which regulate the proceedings, they must be strictly complied with. If the procedural
provisions are not strictly complied with, explanation VI to s 11 can have no application.82

(j) Suit under Section 92 of the Code of Civil Procedure. It cannot be said that the persons whose
names are in the suit title are the only parties to the suit. The named plaintiffs being the
representatives of the public at large which is interested in the trust, all such interested
persons would be considered in the eyes of law to be parties to the suit. A suit under s 92 of
the Code of Civil Procedure is thus a representative suit and as such binds not only the parties
named in the suit title but all those who share common interest and are interested in the
trust. It is for that reason that explanation VI to s 11 of the Code of Civil Procedure
constructively bars by res judicata the entire body of interested persons from re-agitating the
matters directly and substantially in issue in an earlier suit under s 92 of the Code of Civil
Procedure.83

(k) Legal Representative.L, a Karta of a joint family, endowed part of a property in trust and
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gifted the other part of the property to his daughter. The daughter, in turn, conveyed it to
the trust; and the defendants were inducted as licencees, in the said house. A suit was filed
by the sons of L (Karta) for the recovery of possession and mesne profits, on the ground
that as per the trust deed executed by the daughter of L, the trust was entitled to the
property, and that the defendant (inducted as licencees), had no right, title or interest in the
property. During the pendency of this suit, the appellants (grandsons of L) filed a suit,
claiming the said properties, on the ground that it was joint family property and they were
entitled to one-tenth share in the same. It was held that the conclusive decision reached in
the earlier suit, that the suit property was self-acquired property of L and that the
settlement deed in favour of his daughter and settlement executed by her were true and
valid, would operate as res judicata in the suit filed by the grandsons. Earlier suit against son
of L shall be deemed to be one brought against him as representing the family, and not in his
individual capacity.84

Decision in respect of legal representation of deceased referred to under O 22, r 5 or

Under O 22, r 10 of the CPC is not a decision on merits and as such it will not operate as
res judicata when two categories of legal representative claim to be substituted or
impleaded.85

The Supreme Court held that as a legal position, it cannot be disputed that normally, an
enquiry under O 22, r 5, CPC as to whether a person is legal representative of deceased
party is of a summary nature and findings therein cannot amount to res judicata, however,
that legal position is true only in respect of those parties who set up a rival claim against
the legatee. But such finding would be final and operate as res judicata as regards that suit
and cannot be re-agitated.86

(l) Every Suit not a Representative Suit. Earlier suit under ss 49 and 59, Uttar Pradesh Tenancy
Act was filed by certain parties claiming tenancy rights for themselves. A was not a party
herein. It was held that the decision in the earlier suit did not operate as res judicata against
it.87

If a creditor sues merely the person who executes the instrument, he must satisfy himself
by proceeding against the executant. The fact that the instrument (a pronote), was
executed by two members of a joint family, is not a legal basis for treating it as binding on
another member of the joint family who neither signed the note nor was a party to the
suit.88

A co-owner of the equity of redemption obtaining possession of the property on

redemption of the mortgage should hold the same for the benefit of the other co-owners
also, vide s 90 of the Indian Trusts Act, 1982, Explanation VI to s 11 of the Code of Civil
Procedure provides for such a contingency, if it is shown that the plaintiff was bona fide
litigating in respect of a right common to himself and to the other co-owners. Thus, where
the suit for redemption filed by some of the heirs of the mortgagor was dismissed, the
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subsequent suit for redemption filed by an heir who was not a party to the earlier suit
would be barred by res judicata, when the plaintiff in the second suit has no case of any
fraud or collusion in the conduct of the earlier suit, nor does he have a special case apart
from the case for redemption pleaded in the prior suit.89

Where a person claims a right for himself which happens to be common to him and
others, he cannot be said to be litigating on behalf of the others, and the explanation does
not apply.90 So also, where a judgment against a defendant sued in his personal capacity as
a trespasser, whose plea was that the property in question was reserved under a trust for
sadhus, saints and for determining whether the property was the property of a public

trust for charitable and religious purposes.1 A decision in an application by one of several
judgment-debtors for scaling down a decree under the provisions of the Madras
Agriculturists Relief Act, 1938, does not bar the rights of the other judgment-debtors to
apply for relief under the Act.2 The condition that the litigation was conducted bona fide is
necessary for the application of the section; but the court cannot, in the absence of fraud
or collusion, treat negligence or gross negligence as want of bona fide,3 or equivalent to
fraud.4

Where certain parties filed the earlier suit to claim tenancy rights for themselves, A, who
was not a party to that suit, is not bound by the decision therein.5

ILLUSTRATIONS

(i) A decree in a suit against certain members of a sect alleged to be wrongdoers in their
individual capacity cannot operate as res judicata in a subsequent suit against the other
members of the sect.6

The wrong complained of in the former suit was that the defendants carried an idol in
procession through certain streets and that such processions were in violation of plaintiffs
rights. The suit was against the defendants in their individual capacity, and not as
representing the sect to which they belonged.

(ii) A, alleging that he is the proprietor of a village, sues B, C and D for ejectment. The
defence is that A is not the proprietor and that part of the village belongs to B, C and D,
and the rest to X, Y and Z. The court finds that A is not the proprietor, and As suit is
dismissed. A then sues X, Y and Z and also B, C and D for declaration that he is the
proprietor of the village and for possession. The question of A's title to the village is res
judicata so as to bar the suit against B, C and D, who were parties to the former suit, but it
is not res judicata so as to bar the suit against X, Y and Zwho were not parties to the former suit. It
cannot be said that B, C and D litigated in the former suit in respect of a private right
claimed in common for themselves and X, Y and Z. They set up only their own right to a
part of the property and as to the rest they alleged that it belonged to X, Y and Z.7
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(iii) A files a suit on behalf of himself and other members of his community to establish a
right to worship in a temple, but through oversight omits to give notice under O 1, r 8 to
the other members of the community. The suit is dismissed but the judgment will not
operate as res judicata to bar a subsequent suit by another member of the community to
establish the same right.8

The right referred to in this explanation may either be a public right or a private right. The
words public right have been added into this explanation in view of the provisions of s 91
below. The right to have a public nuisance abated is a public right. The right of pasturage
claimed by custom by the inhabitants of a village over a tract of land or to take water from
a spring or a well is a private right.9

In some of the cases, that arose under the Code of 1882, the opinion was expressed that
the present explanation, so far as it relates to private right, must be confined to the cases
where leave to sue has been obtained under s 30 of that Code [now O 1, r 8(1)];10 but the
explanation is not confined to suits under O 1, r 8, but extends to include any litigation in
which apart from the rule altogether, parties are entitled to represent interested persons
other than themselves;11 but, if the suit is one under O 1, r 8, the Privy Council has held
that the provisions of the rule must be strictly complied with, otherwise the explanation
will not apply, even though the omission is due to inadvertence and has caused no injury.12
It had previously been held that it was sufficient if the litigation was carried on bona fide on
behalf of all others interested. (See the under-noted cases13 which are no longer law.)

Suits by a Hindu widow or by a manager of a joint Hindu family or by a reversioner in her

or his representative character are instances of this class.

(m) Public Interest Litigation. Explanation VI to s 11 of the Code of Civil Procedures applies to
public interest litigation as well, but it must be proved that the previous litigation was a
public interest litigation not by way of a private grievance.14 The writ petition before the
Supreme Court was not inter partes dispute and was raised by way of public interest
litigation. The Honble Supreme Court observed that it may not be taken to have said that
for public interest litigation, procedural law do not apply. However, at the same time, it has
to be remembered that every technicality in the procedural law is not available as a defence
when a matter of grave public importance is for consideration before the court. Even if it
is said that there is a final order in a dispute of this type, it would be difficult to entertain
the plea of res judicata. 15

The petitioner filed repeated writ petitions claiming compensation for victims of Railway
accident. Although it was claimed to be in the public interest, the petitioner filed the writs
in this own capacity without consent or authority from the injured persons. The petitioner
also withheld the fact of dismissal of his earlier petition claiming the same relief. It was
held by a Division Bench of the Bombay High Court that the record reflected the personal
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interest of the petitioner. Thus the petition is hit by the principles of constructive res
judicata.16

The question of applicability of the principles of res judicata to Public Interest Litigations
has taxed the mind of Judges and jurists alike. While some courts have found the principles
to be applicable to PIL, some others rule out its applicability. Even the pronouncements of
the Apex Court have not been consistent on this issue. While some decisions hold the rule
not applicable to PIL,17 some others hold the rule applicable.18 But an overall view that
emerges from a catena of pronouncements of the Supreme Court is a balanced approach,
neither ruling out the application of res judicata in PIL altogether not holding it applicable in
all cases genuinely affecting interest of the public.

In V. Purushotham Rao v. Union of India,19 G.B. Pattanaik, J. (as he then was), speaking for
the Bench of Supreme Court, observed as follows:

19. Coming to the second question, Explanation IV to Section 11 of the Civil Procedure Code postulate that any matter which might and
ought to have been made ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially
in issue in such suit. Order 2 Rule 2 of the Code of Civil Procedure provides that every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of action and if he omits to sue in respect of, or intentionally relinquishes, any
portion of his claim, then he shall not afterwards sue in respect of the portion, so omitted or relinquished. By virtue of Explanation to
Section 141 of the Code of Civil Procedure, since proceedings under Article 226 of the Constitution are excluded from the expression
proceedings, therefore, the Civil Procedure Code is not required to be followed in a proceeding under Article 226 unless the High Court
itself has made the provisions of the Civil Procedure Code applicable to a proceeding under Article 226. Then again, the principles of
Section 11 as well as Order 2 Rule 2, undoubtedly contemplate an adversarial system of litigation, where the court adjudicate the rights
of the parties and determines the issues arising in a given case. The public interest litigation or a petition filed for public interest cannot
be held to be an adversarial system of adjudication and the petitioner in such case, merely brings it to the notice of the court, as the how
and in what manner the public interest is being jeopardised by arbitrary and capricious action of the authorities.

The Supreme Court quoted with approval the observation in its earlier judgment in Rural
Litigation and Entitlement Kendra v. State of U.P.,2 wherein the court had repelled the plea of
application of res judicata by observing that the writ petitions are not inter partes disputes and
have been raised by way of public interest litigation and the controversy before the court is
as to whether for social safety and for creating a hazardous environment for the people to
live in, mining in the area should be permitted or stopped. It was further observed in the
case as follows:

We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be
remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for
consideration before the court. Even if it is said that there was a final order, in a dispute of this type it would be difficult to entertain the
plea of res judicata.

Finally, the Supreme Court Bench in the case of V. Purushotham Rao (supra) cause to the
conclusion that the principle of constructive res judicata cannot be made applicable in each
and every public interest litigation, irrespective of the nature of litigation itself and its
impact on the society and larger public interest which is being served. There cannot be any
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dispute that in competing rights between the public interest and individual interest, the
pubic interest would override.

In another case, explanation VI to s 11 came up for consideration before the Supreme

Court is Forward Construction Co. v. Prabhat Mandal,3 wherein it was held that in view of
Explanation VI, it could not be disputed that s 11 applies to Public Interest Litigation, as
long as it is shown that the previous litigation was in public interest and not by way of
private grievance. Further, the previous litigation has to be bonafide litigation in respect of
a right which is common and is agitated in common with others.

In Karnataka, the State Government had external into a Framework Agreement (FWA)
with a private party for execution of a Project. The FWA was challenged in a Public
Interest Litigation before the High Court in H.T. Somashekar Reddy v. Government of
Karnataka,4 wherein all the objections were decided against the petitioner and the PIL was
dismissed. The Supreme Court confirmed the dismissal and the matter reached finality. In
the second round of litigation, when the matter reached the Supreme Court, the findings
of the High Court in the earlier PIL stood in the way of maintainability of the petition. In
State of Karnataka v. All India Manufacturers Organisation,5 B.N. Srikrishna, J., speaking for the
three-Judge Supreme Court Bench, dismissed the PIL with the following observation:

47. In the face of such a finding by the High Court, Explanation IV to Section 11 squarely applies as, admittedly by, the litigation in
Somashekar Reddy (supra) exhausted all possible challenges to the validity of the FWA, including the issue of excess land. Merely
because the present petitioners draw semantic distinctions and claim that the excess land not having been identified at the stage of the
litigation in Somashekar Reddy (supra), the project should be reviewed, the issue does not cease to be res judicata or covered by the
principles analogous there to. If we were to re-examine the issues that had been raised/ought to have been raised in Somashekar Reddy
(supra) it would simply be an abuse of the process of the court, which we cannot allow.

In a case from Goa, the State Government issued two notifications granting rebate of 25%
in Electricity Tariff in respect of power supply to Industrial Consumers. The decision to
grant rebate was finalised by the Power Minister with placing the proposal before the Chief
Minister or the Council of Ministers in violation of the Conduct of Business Rules. The
notifications were quashed by the High Court as being void ab initio and the dismissal was
confirmed by the Supreme Court. In the second round of litigation in respect of
notifications issued in 1996, it was urged that the State at no point of time before any
Court raised the issue of the two notifications being void ab initio cannot be raised at this
point of time in view of the principles of res judicata and doctrine of estoppel. Repelling the
above contention, it was held by the Supreme Court that not raising object by the State
does not disentitle it or prevents it from raising objections based on legal provisions.6

In a case from West Bengal a large number of plots had been allotted from the
discretionary quota by the Chief Minister. In a PIL filed against these allotments, a three-
Judge Bench of the Supreme Court presided over by S.H. Kapadia, C.J.I., observed as
follows:
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In other words, the allotment of large number of plots in Salt Lake City, Kolkata had been the subject-matter of different writ petitions
and/or appeal before the Calcutta High Court as well as this court and for on reason or the other the allotments in favour of the private
parties had not been set aside, though there were doubts raised by the Calcutta High Court as well as this court regarding allotments
under the discretionary quota of Chief Minister and the manner in which they were made. However, as all these judgments have
attained finality, they cannot be permitted to be agitated over and over again including in the present writ petition. The principle of
finality as well as fairness demand that there should be an end to the litigation and it is in the interest of public that issues settled by the
judgments of courts, including this court, which have attained finality should not be permitted to be re-agitated all over again, interest
rei publicae ut sit finis litium.7

(n) Consent Decree in a Representative Suit on Behalf of the Public. In the undermentioned case,8
the Privy Council left it an open question whether in India, persons instituting a suit on
behalf of the public can bind the public by a compromise decree. The Bombay High Court
has held that a consent decree made in a representative suit could be res judicata on the
ground of estoppel whether the suit was under O 1, r 8 or under s 92.9

(o) Judgment in Rem. As already explained, a judgment in a suit is binding only upon the
parties to the suit and their privies. As a general principle, a transaction between two
parties in judicial proceedings, ought not to be binding upon a third, for it would be unjust
to bind any person who could not be admitted to make a defence, or to examine witness,
or to appeal from a judgment he might think erroneous.10 There are, however, certain
judgments which bind all the world and not only the parties to the proceeding in which
they were passed and their privies. A judgment that is binding upon the parties and their
privies only is called a judgment in personam. A judgment which binds all the world is called
a judgment in rem. Judgments in rem are outside the scope of the present section. They are
dealt with in the Indian Evidence Act, s 41.

(p) Decree against Minor. A decree passed against a minor properly represented is binding
upon him to the same extent as a decree passed against an adult. A minor, however, is
entitled to impeach a decree passed against him if the next friend or guardian for the suit is
guilty of fraud or gross negligence in allowing the decree to be passed.11 It has been said in
one case that any act or omission on the part of the guardian ad litem which in the result
has brought prejudice to the minors interest is gross negligence;12 but, in another case,13 the
court said:

It is not every kind of negligence that would be a sufficient ground for setting aside a
decree, or for declaring that the proceedings in court are null and void, but where the
guardian omits to do his plain duty and where by reason of such negligence a suit is
decided against a minor, which would not have been otherwise decreed against him, it
must be held that the guardians negligence contributed to the court proceeding in the
manner it did.

An omission on the part of a guardian ad litem to bring to the notice of the court a previous
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judgment between the parties for the purpose of raising the plea of res judicata has been
held not to constitute negligence.14

A decree passed against a minor not properly represented is a nullity and cannot operate as
res judicata;15 but, it has been held that if a suit is brought on the minors behalf to set aside a
sale in execution of such decree, but the plea that the minor was not properly represented
in the suit in which the decree was passed is not then taken, it cannot be taken in a
subsequent suit to set aside the decree and sale by reason of the rule contained in
explanation IV to the section.16 Orders in execution made against a judgment-debtor who
is a minor duly represented by a guardian would be res judicata in subsequent execution
proceedings and cannot be reopened by the minor after he comes of age.17

Condition III: Litigating Under the Same Title. The third condition of res judicata is
that the parties in the subsequent suit must have litigated under the same title in the former
suit. The expression same title means the same capacity. Thus, where an heir of a deceased
mortgagor sues for redemption of the mortgage on the footing that he represents the
estate of the deceased mortgagor and obtains a decree on the finding that the mortgagee
has been over-paid, a subsequent suit by the mortgagee against him, an executor of the
deceased mortgagor for sale of the mortgage property, on the basis that the money was still
due to him, is barred by res judicata. 18 Where in a suit between the mother-in-law on the
one hand and her daughter-in-law and her adopted son on the other, it was held that the
daughter-in-law had lost her right to adopt and that the adoption was invalid and
thereafter, the daughter-in-law again adopted the same boy on the strength of a decision of
the Privy Council subsequently pronounced, it was held that a fresh suit by her to establish
the adoption was barred as she was litigating in both the suits on the same title.19 A verdict
against a man suing in one capacity will not stop him when he sues in another distinct
capacity, and, in fact, is a different person in law 20 Thus, where a suit is brought by a person to
recover possession from a stranger to a math property claiming it as the heir of a deceased
mohunt, but the suit is dismissed on his failure to produce a certificate of succession to
establish his heirship, the dismissal is no bar to a suit by him as manager of the math on
behalf of the math.21 Where the trustees of a public charity fail in a suit to eject a
trespasser, they are not barred from suing again as members of the public with the consent
of the Advocate-General.22 A decree against the trustee of a temple that certain property
attached to the temple belonged to A and not the temple operates as res judicata in a
subsequent suit by the worshippers of the temple against the heirs of A for a similar relief,
as the title litigated is the same.23 The dismissal of a suit by A against B, C and D in their
individual capacity on a finding that a temple is public property does not operate as res
judicata against A in a subsequent suit brought by B, C, D and others in their representative
capacity against A for a declaration that the same temple is public property.24 A decree
passed in a suit against certain persons sued as shebait of a temple is not res judicata in a suit
in which they are sued as executors under a will.25 A decision given by a court in
Chandernagore after its merger in the Indian Union in accordance with French law which
had ceased to operate after merger is without jurisdiction and cannot operate as res judicata.
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26 Similarly, the dismissal of a suit brought by a son against his father for maintenance
claimed under an agreement is no bar to a suit by him against his eldest brother for a
declaration that he is entitled to maintenance out of certain lands in his hands held under a
sanad from government whereby, it was alleged, the lands were charged at the time of grant
with the maintenance of the junior members of the family.27 Where in a suit by A against B
for the recovery of a property, B sets up a jus tertii in C, and the court finds that C has no
title to property, and allows A's claim, the finding does not operate as res judicata in a
subsequent suit by B after C's death against A, claiming the same property as the heir of C,
as it could not have operated as such against C himself.28 A judgment against a party will
not operate as res judicata when he subsequently acquires a fresh title under s 43 of the
Transfer of Property Act.29

A mortgagee in a possession does not lose the character of a mortgagee and become a
trespasser because he refuses to deliver possession of the mortgaged property to the
mortgagor on deposit being made in court of the amount payable on the mortgage. A
executes a usufructuary mortgage of his property to B, and places B in possession thereof.
At the proper time, A tenders the mortgage-debt, Rs 500 to B and asks to be restored to
possession. B refuses to accept the tender on the ground that more is due to him and to
deliver possession of the property to A. A sues B for redemption, and deposits Rs 500 in
court. The court finds that the tender was proper and directs B to deliver possession to A.
After entering into possession, A sues B to recover mesne profits from B from the date of
the deposit in court to the date of the recovery of possession. The suit is barred for A
might and ought to have claimed the mesne profits in the first suit. The suit is between the
same parties litigating under the same title, that is, as mortgagor and mortgagee. The
mortgage is not extinguished after the tender and deposit, and B does not become a
trespasser after that date. It cannot, therefore, be said that the suit against B for mesne
profits is against him as a trespasser, and not as a mortgagee.30

The words between parties under whom they or any of them claim litigating under the
same title cover a case where the later litigant occupies by succession, the same position as
the former litigant. There may be a succession by the ordinary rules of inheritance or
succession by some very special rules as in the case of saranjam or vatan estates. The words
of the section do not make any distinction between different forms of succession. A
decree, therefore, against a saranjamdar may operate as res judicata against his heir and
successor;31 so also a decree against a vatandar. 32Condition IV: Court Competent to Try
Such Subsequent Suit or the Suit in Which Such Issue has been Subsequently
Raised. The operative part of the section requires that in order that a decision made in a
former suit operates as res judicata in a subsequent suit, it is necessary that the court which
made such decision, must at the time of making it, be competent to try the subsequent suit
or the suit in which the issue has been subsequently raised. Technical aspects of s 11, as for
instance, technical or subjective competence of the earlier forum to adjudicate the said
matter or grant leaves sought in the substantial litigation would be immaterial when the
general doctrine of res judicata is to be invoked.33 The fact that that court was competent to
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try the issue raised in the subsequent suit, is not enough. The new explanation VIII
inserted in the section by the Amendment Act, 1976, extends the applicability of the
section by providing that an issue heard and finally decided by a court of limited
jurisdiction competent to try such an issue, shall also operate as res judicata in a subsequent
suit, although the court of limited jurisdiction was not competent to try the subsequent suit
or the suit in which such issue has been subsequently raised. This would be so, however,
provided the other conditions of the section are satisfied.

(a) Court of Competent Jurisdiction. In order that a decision in a former suit may operate as res
judicata in a subsequent suit, it is necessary that the court which tried the former suit must
have been a court competent to try the subsequent suit. The words competent to try such
subsequent suit must refer to the jurisdiction of the court to try the subsequent suit at the
time when the first suit was brought.34 Mere competency to try the issue raised in the
subsequent suit, is not enough. As stated by their Lordships of the Privy Council in Gokul
Mandar v. Pudmanund: 35

A decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the
judge by whom it was made had jurisdiction to try and decide, not only the particular matter in
issue, but also the subsequent suit itself in which the issue is subsequently raised. The law is well-
settled that even if erroneous, an inter-party judgement binds the party if the court of
competent jurisdiction has decided the lis.36 In this respect the enactment goes beyond s 13
of the previous Act 10 of 1877, and also, as appears to their Lordships, beyond the law laid
down by the judges in the Duchess of Kingstones case.37

In Maqsood Ali v. Hunter, 38 the majority of the judges of the Oudh chief court however,
held (Madeley J dissenting) after noticing the aforesaid observations of the Privy Council in
Gokul Mander’s case and considering the cases decided by the High Courts of Calcutta,
Bombay, Madras, Lahore and the earlier decisions of the chief court of Oudh given after
the decision of Gokul Mander’s case, that the section should be liberally construed and the
word suit in the expression such subsequent suit or the suit in which such issue is
subsequently raised should be construed to mean a part of a suit. Thus, where the entire
cause of act ion upon which the subsequent suit is founded can be treated as divisible and
if in the earlier suit one of the component parts of that cause of action was relied on, then
the previous suit will stand as a bar to the extent of the matter involved in the earlier suit,
though the second suit as a whole could not be tried by the court which tried the earlier
suit. In the case which was before the Full Bench, the facts were as follows. A sued B in a
munsiffs court for a declaration that he was entitled to annual maintenance allowance as the
rate of Rs 200 which was charged on property purchased by B and for recovery of the sum
due to him for one year. The suit was valued at less than Rs 2000 which was the pecuniary
limit of the munsiffs jurisdiction. B pleaded that there was no charge on the property and
that in any event he was a bona fide purchaser for value without notice of the charge. His
defence was overruled by the munsiff who gave a declaration that the allowance was
validly charged on the property that B had purchased with notice of the charge. A then
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sues B in a subordinate judges court for maintenance allowance for the subsequent years
with a prayer that in default of payment, the charged properties be sold. As the claim was
for six years with interest, the suit was valued at over Rs 2,000. Justice Bennet with whom
the majority agreed, held that the cause of action on which the second suit was founded
can be treated as divisible into two parts, namely: (i) a claim to annual maintenance
allowance; and (ii) a claim to the arrears then due, and as the munsif had given a declaration
that A was entitled to annual maintenance that question could not be re-agitated in the
second suit. This view that the word suit in the phrase such subsequent suit should be
taken to mean a part of the suit is in clear conflict with the observations of the Privy
Council in Gokul Prasad v. Nageshar Sahai.39 The point is now concluded by the decision of
the Supreme Court in Gulab Bai v. Manphool Bai in which it has been held that the word suit
in the expression such subsequent suit should be construed literally and that it meant the
whole suit and not merely a part of it or any issue.40 This is no longer correct, for, under
explanation VIII, an issue finally decided by a court of limited jurisdiction operates as res
judicata in a subsequent suit even though the court deciding that issue was not competent at
the time it decided that issue to try the subsequent suit or the suit in which such issue has
been subsequently raised. To that extent, the legislature can be said to have reversed the
literal construction placed by the Supreme Court in Gulab Bai v. Manphool Bai and accepted
the liberal construction advocated by the majority opinion in Maqsood Ali v. Hunter.

The court which decided the former suit may be a court of exclusive jurisdiction, or a
court of concurrent jurisdiction, or a court of limited jurisdiction. As to superior court,
nothing is presumed to be out of jurisdiction except what is expressed to be so; but with
inferior courts, the presumption is to the contrary, that nothing is within jurisdiction,
except what is expressed to be so.41

(i) Where the court deciding the former suit is a civil court and the court dealing with the subsequent suit is
of a limited jurisdiction. In one case adjudication was made by a competent civil court and a
finding had been arrived at holding that the petitioner was in exclusive possession of the
case land since 1929. The said finding was confirmed not only by the lower appellate court,
but also by the High Court in second appeal. It is no more res integra that the authority
having limited jurisdiction is bound by the decision arrived at by the competent civil court
relating to title. Thus, for all acts and purposes, the finding that the petitioner was in
possession of the case land since 1929 is also binding upon the Orissa Prevention of Land
Encroachment Authorities having limited jurisdiction under Orissa Prevention of Land
Encroachment Act (6 of 1972).42

The finding of the civil court in the earlier suit between the same parties that the defendant
was in possession of land as tresspasser and, not as a tenant, would operate as res judicata in
subsequent suit for possession. Mere casual reference made by revenue courts, about
relationship of landlord and tenant between the parties would not have any effect on civil
court while adjudicating dispute between the parties.43
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(ii) Where the court which decided the former suit is one of exclusive jurisdiction. If a matter directly
and substantially in issue in a former suit has been adjudicated upon by court of exclusive
jurisdiction, the adjudication will bar the trial of the same matter in a subsequent suit.
Thus, courts of revenue have jurisdiction in respect of certain matters to the entire exclusion
of a civil court;44 but, it is open to a minor to impeach in a civil suit a decree of a revenue
court if his guardian has been guilty of fraud or gross negligence in allowing the decree to
be passed against him.45 The Deccan Agriculturalists Relief Act gives exclusive jurisdiction
to the court under that Act over a particular class of suits, and a decision in a previous suit
tried by the court will be res judicata if the suit falls within the class to which the Act
applies.46

(iii) Where the court which decided the former suit was not a court of jurisdiction concurrent with that of the
court in which the subsequent suit is brought. In such a case, the court which decided the former
suit cannot be a court competent to try the subsequent suit within the meaning of this
section.47

(iv) Where the court which decided the former suit was a court of concurrent jurisdiction. In such a case,
the court which decided the former suit might or might not have been competent to try
the subsequent suit. If it was, the decision would operate as res judicata, but not otherwise.

(v) Where the court which decided the matter in issue was a court of limited jurisdiction. In such a case,
an issue decided by such a court operates as res judicata in a subsequent suit, provided that
issue was within the competence of that court. It is no longer necessary that such a court
was competent, at the time it decided that issue, to try the subsequent suit in which the
same issue has been raised.

Summarising the above, we may say that in order that a decision in a former suit may
operate as res judicata, the court which decided that suit must have been either

a civil court of competent jurisdiction;

a court of exclusive jurisdiction; or

a court of concurrent jurisdiction competent to try the subsequent suit; or

court of limited jurisdiction competent to try the issue raised in the subsequent suit.

In a decision, the Calcutta High Court had to interpret the expression court of limited
jurisdiction used in explanation VIII. In rejecting the contention that a court of the
munsiff by reason of its limited pecuniary jurisdiction is a court of limited jurisdiction, the
court observed:
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If we are to interpret explanation VIII without referring to s 11, it may be said that a court
of limited pecuniary jurisdiction is a court of limited jurisdiction. An explanation to a
section is primarily meant for explaining the section itself. In our view, in order to ascertain
the true meaning of the explanation VIII, it has to be read along with the provision of the
section and not de hors it. It has already been stated that one of the conditions of the
applicability of s 11 is that the court in which the former suit was instituted must be
competent to try the subsequent suit. If the former court is unable to try the subsequent
suit as it is beyond its pecuniary jurisdiction the decision of the former court will not be res
judicata in the subsequent suit. If the legislature had really intended to remove the
condition relating to the competency of the former court, in that case, it would have
removed the same from the section itself. In the face of the provision of s 11 retaining the
said condition for the applicability of res judicata, that the former court must be competent
to try the subsequent suit, it is difficult for us to accept the interpretation of explanation
VIII as suggested on behalf of the applicant... In our view, courts of limited jurisdiction are
courts other than the ordinary civil courts, insolvency courts, guardianship courts, probate
courts etc. These courts are to try certain specific matters and in that sense they may be
said to be courts of limited jurisdiction. These courts are also courts of exclusive
jurisdiction in respect of the matters they are to try. The decisions of such courts operated
as res judicata in subsequent suits not by virtue of s 11 but on the general principles of res
judicata. By enacting explanation VIII, the legislature brought the decisions of such court
within the purview of s 11 ... Under explanation VIII, the provisions of s 11 will apply to
the subsequent suit when an issue has been heard and finally decided by a court of limited
jurisdiction in a former proceeding. There is a clear indication in that regard in explanation
VIII, for it does not say that the decision of an issue by a court of limited jurisdiction has
to be made in a former suit. This is also an indication that explanation VIII does not
contemplate that the two proceedings must be suits...so where both the former and
subsequent proceedings are suits, to invoke the bar of res judicata the condition as to the
competency of the former court to try the subsequent suit for want of pecuniary
jurisdiction, s 11 will not apply.48

In order to attract explanation VIII, the decision in the former proceeding must be final
and not subject to the concurrent jurisdiction of a civil court.49

(b) Rules Governing Res Judicata. The following are the principal rules as to concurrent
jurisdiction:

1. Concurrent as to pecuniary limit and the subject matterthe jurisdiction of the two courts
must be concurrent as regards the pecuniary limit as well as the subject matter. The rule
was laid down by Sir Barnes Peacock in Edun v. Bechun50 and it was approved by the
Privy Council in Misir v. Sheo Baksh.51 The learned Chief Justice said that there were in
India many grades of courts with different pecuniary limits of jurisdiction presided over by
judges whose qualification differed widely; that it would be improper that a finding as to
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the validity of an adoption or of a will in a petty suit in a munsiffs Court should be

conclusive in a suit for a property of a large amount in a High Court, and that by taking
concurrent jurisdiction to mean concurrent as regards the pecuniary limit as well as the
subject matter, this evil or inconvenience is avoided. In Run Bahadoor v. Lucho Koer,52
the Privy Council said that:

if this construction of the law were not adopted, the lowest court in India might determine
finally and without appeal to the High Court, the title to the greatest estate in the Indian
empire.

It is essential therefore, that the first court was a court competent to try and decide not
only the particular matter in issue but also the subsequent suit in which the issue is
subsequently raised.53

First, as to pecuniary limit The jurisdiction of the court which decided the former suit, and
that of the court in which the subsequent suit is brought, must be concurrent as regards
the pecuniary limit.

A sues B in court X to recover interest due on a bond for Rs 12,000. For the defence it is
alleged that the amount actually lent by A was Rs 4000, and that A was not entitled to
interest on more than Rs 4000. The court finds that the amount actually lent was Rs 4000
and awards A interest on that sum only. court X is a court of which the jurisdiction is
limited to suits of which the value does not exceed Rs 5000. A then sues B in a High court to
recover the principal sum of Rs 12,000, alleging that that was the act ual amount lent by him
to B. B contends that the actual amount advanced was Rs 4,000, and that the question as to
whether Rs 12,000 was lent or Rs 4,000 is res judicata. Section 11 (excluding explanation
VIII) envisages that the judgement in a former suit would operate as a res judicata if the
court which decided the said suit was competent to try the same by virtue of its pecuniary
jurisdiction and the subject matter to try the subsequent suit and that it is not necessary
that the said court should have had territorial jurisdiction to decide the subsequent suit.54

The question is not res judicata, for the jurisdiction of court X being limited to Rs 5,000, it
was not a court competent to try the subsequent suit in which the amount claimed is Rs
12,000. Pecuniary jurisdiction is determined by the plaintiffs estimate of the value of his
claim and if the court awards less, that does not show that the suit was brought in the
wrong court.55 A decision given in an earlier suit which had pecuniary jurisdiction over it at
the then valuation is res judicata in a later suit instituted in a court of higher jurisdiction
owing to the rise in the valuation of properties.56

The plaintiff however, cannot prevent a decision in a previous suit from operating as res
judicata by overvaluing the second suit.57Res judicata cannot be evaded if the former suit is
brought in a court of inferior jurisdiction by artificially splitting up the cause of act ion.58
Where A brought two suits in a provincial small cause court for compensation in each suit
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for loss of one parcel and the suits were dismissed, and he subsequently brought a suit in
the munsiffs court, joining together the claims in respect of both the parcels so as to bring
the valuation above the Rs 500 limit, it was held that the suit was barred on the principle of
res judicata.59 If a suit as to one parcel is dismissed in a munsiffs court, and then a suit is
subsequently brought between the same parties on the same cause of action as to that
parcel and several other parcels in the court of the subordinate judge, the second suit as to
that one parcel will be barred by res judicata.60 The same principle would apply where the
first suit instituted in the munsifs court was in respect of a parcel of land and the subsequent
suit brought in the subordinate judges court related to the whole parcel, the basis of the
claim in both the suits being the same. The issue raised in the former suit would not,
however, be res judicata so as to affect the portion which was not the subject matter of the
first suit.61

Secondly, as to subject matter The jurisdiction of the two courts must be concurrent as regards
subject matter. Thus, certain courts have no jurisdiction to adjudicate upon questions of
title, though that question may be gone into incidentally in order to decide the principal
question. A finding on a question of title by such courts cannot operate as res judicata in a
subsequent suit on title. This generally happens in the three following cases:

(i) Where the first court is a civil court of limited jurisdiction. A decision of a district munsiffs court
in Madras in a suit for possession will not operate as res judicata in a suit for redemption of
a mortgage, for a district munsiffs Court is not competent to try a mortgage suit.62 An order
passed by the City Civil Court, Madras under s 69 A of the Transfer of Property Act is no bar to
a subsequent proceeding involving the question of title since the City Civil Court has
limited jurisdiction under that section.63

(iii) Where the first court is a revenue court and the second court is a civil court. A decision of a
revenue court on a question of title is no bar to the trial of the same question by the
ordinary civil courts, unless the revenue court is empowered by the legislature to determine
questions of title so as to constitute it protanto, a civil court.64 The reason is that courts of
revenue are generally courts of jurisdiction limited to adjudicate upon questions of rent,
tenure etc.65 There are, however, some matters of which, the decision by a revenue court is
expressly declared by the Act constituting the court to have the force of decree in a civil
suit,66 and some as to which it is declared that the decision shall be final.67 In such cases,
the decision of a revenue court will operate as res judicata so as to bar the trial of the same
matter in a civil court. When the Revenue Act bars suits claiming an alteration of shares
made on a partition by a revenue court, a party to such a partition cannot sue in a civil
court for an enhanced share;68 but, if on a revenue partition one mahal has been allotted to
several co-sharers jointly, a suit to declare the rights of such co-sharers inter se is not barred,
for, it in no way interferes with the revenue petition;69 but, when a partition made by a
Revenue Court has assigned to the

plaintiff lands as under proprietor, a suit for a declaration that he is a superior proprietor,
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is barred.1 A decision of a revenue court in proceedings under s 3 (4) of the Madras

Cultivating Tenants Protection Act, 1955, that the tenant is not in arrears of rent is not res
judicata in a suit in the civil court for recovery of rent, as the revenue court is not
competent to try such a suit.2 The Supreme Court has held in Bhagwan Dayal v. Reoti Devi 3
that the decision on a question of title by a revenue court under the Agra Tenancy Act did
not operate as res judicata in a suit in a civil court which was not within the exclusive
jurisdiction of the revenue court. In a case under the Agra Tenancy Act, 1901,4 an
occupancy tenant sued in a revenue court to evict the defendant alleging that he was a sub-
tenant. The suit was dismissed on the ground that the defendant was not a sub-tenant but
probably a sharer in the occupancy. The plaintiff then sued in the civil court to eject the
defendant as a trespasser, but the suit was dismissed on the ground that its object was to
reverse the decision of the revenue court. This decision, it is submitted, is incorrect. The
finding of the revenue court that the defendant was not a sub-tenant was final; but, it had
no such jurisdiction to declare who were sharers in the occupancy, and in any event, its
finding on that point was only incidental. The decision of a revenue court would not bar a
subsequent proceeding though it seeks the same relief if it is under a different Act ;5 but, it
would bar a subsequent proceeding in a civil court so far as the issue decided by the
revenue court is concerned,6 provided ofcourse that the issue was within the competence
of the revenue court. See note Where the Court which decided the former suit is a court of
exclusive jurisdiction above. For the other cases, see footnote.7

In an application made before the tenancy authorities, for possession of land, was
dismissed on the ground of want of jurisdiction, subsequent civil suit against the tenant for
recovery of possession of land was filed. The case was remanded by the High Court, for
hearing by the trial court, with a direction to refer the issue regarding tenancy to tenancy
authorities. Section 11 would not be a bar to the trial court in referring issues which were
to be exclusively determined by a competent authority under the Act, to that authority.
Nor should there arise any such question of res judicata in the competent authority deciding
those issues, when referred to by the trial court. Earlier, the mamlatdar had declined to
exercise jurisdiction, holding that the Act did not apply. If an issue was referred to it by the
trial court under the Act, the question of jurisdiction would not arise and there could be no
question of res judicata as to jurisdiction of the mamlatdar on such reference.8

Land tribunal decided the question of tenancy. Where the plea of fixity of tenure under the
Kerala Land Reforms Act was taken against decision of the land tribunal, an appeal was
pending. It was held that the decision had not become final because the pendency of an
appeal against the same and the principles of res judicata and estoppel did not apply.9

The law relating to impact of decisions of revenu authorities on the question of title and
ownership of land stands settled by various authorities including the Apex Court. It has
been held that entries in the revenue records do not confer title on a person whose name
appears in the record of rights. The creation of Jamabandi neither created any right and
title is favour of one or the other nor cancellation of Jamabandi extinguishes right and title
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of actual owner. The entries in the revenue records or Jamabandi have only fiscal purpose
and no ownership is conferred by such entries.

It has been held by the Jharkhand High Court that suice Revenue Authorities while
deciding a mutation proceeding have been held to be not a court of law and the mutation
proceeding before them are not judicial proceeding, an order passed therein are not order
passed by a court of law. Therefore, provisions of s 11 of the code would not apply to
such proceedings.10

(iv) Where the first court is a criminal court and the second court is a civil court. Criminal proceedings
are not a suit; hence, no finding of a Criminal Court can be res judicata in a subsequent suit.
It has thus, been held, that a conviction or an acquittal in a criminal case is not conclusive
in a civil suit for damages in respect of the act charged against the accused.11

The principle that a decision in a criminal proceeding does not operate as res judicata in civil
proceeding, or vice versa; can not be made ipso facto and applicable to a decision under s 35
of the Advocates Act, 1961, because the nature of proceedings has been termed as quasi-
judicial. The basic distinction between criminal proceedings and the proceedings under s
35 of the Act, which comes into existence as a result of a complaint is to be borne in mind.
The proceedings against an accused for committing a crime is one in the name of the State
in exercise of its sovereign power and in respect of breach of a public right and
furthermore, duties which affect the whole community.12 On this principle, the finding of a
criminal court that A assaulted or abducted B is not res judicata in a suit for damages against
A for assault or abduction;13 nor is an acquittal a bar to a civil suit against the accused.14 A
conviction by a criminal court does not bar an advocate from challenging the order in
disciplinary proceedings before the civil court under the Advocates Act.15

An application was filed by an accused that the complaint petition filed against her without
obtaining requisite sanction under s 188 of the Code of Criminal Procedure was bad in law as the
offence was committed outside India and she was not a citizen of India. The application of
the accused was dismissed. Thereafter, she filed another petition raising the contention
that the order taking cognizance was bad in law. The Supreme Court held in the case that
the second petition filed by her against the order taking cognizance cannot be dismissed on
the ground of res judicata. The principles analogous to res judicata. The principles analogous
to res judicata have no application with regard to criminal cases. It was observed that where
jurisdictional issue is raised, save and except for certain categories of cases, the same may
be permitted to be raised at any stage of the proceedings.16

The High Court of Bombay has held that the judgment of a civil court may in a proper
case be admissible in evidence in a criminal proceeding between the same parties. Thus,
where A charged B with criminal breach of trust in respect of certain items, and it
appeared that all those items had been dealt with by the civil court and the contention of
the accused with reference to all of them had been found to be correct by that court, it was
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held that the judgment of the civil court was admissible in evidence in the criminal
proceedings.17

2. Competency of the former court to be determined as on the date of the former suit and not as on the date
of the subsequent suit 18 The words court competent to try such subsequent suit refer to the
jurisdiction of the court at the time when the first suit was brought. If at that time such
court would have been competent to try the subsequent suit had it been then brought, the
decision of such court would operate as res judicata, although on a subsequent date, by a rise
in the value of the property, that court had ceased to be a proper court, so far as regards its
pecuniary jurisdiction, to take cognizance of a suit relating to that very property. The
leading case on the subject is Gopi Nath v. Bhugwat.19 In that case, a suit was brought in the
year 1860 to recover certain property of which the value at that time was less than Rs.
1,000; therefore, the proper court to try it was that of the munsif. A second suit was
afterwards brought in the year 1880 between the same parties in the court of the
subordinate judge to recover the same property which had then risen in value and became
worth more than Rs. 1,000. The matter directly and substantially in issue in both the suits
was the same, and the question arose whether the decision of the munsif in the first suit
operated as res judicata in the second suit. It was contended that as the munsif could not
have tried the second suit in consequence of the value of the property being more than Rs.
1,000, his decision could not have the effect of res judicata; but, it was held that the
decision operated as res judicata, for if the second suit was instituted in the year 1860, that
is, at the time when the first suit was brought, the munsiffs court would have been
competent to try it. Justice Mitter ruled:

The reasonable construction of the words in a court of jurisdiction competent to try such
subsequent suit, seems to us to be that it must refer to the jurisdiction of the court at the
time when the first suit was brought, that is to say, if the court which tried the first suit was
competent to try the subsequent suit if then brought, the decision of such court would be
conclusive under s 13 [of the Code of 1882], although on a subsequent date, by a rise in
the value of such property or from any other cause the said court ceased to be the proper
court, so far as pecuniary jurisdiction is concerned, to take cognizance of a suit relating to
that property.

The same view has been taken by the High Court of Madras.20 It has, however, been held
by the court that the augmentation of a pecuniary claim by accrual of interest is not similar
to a rise in the market-value of a property, and that though in the latter case the decision in
the prior suit may operate as res judicata, it cannot in the former case;21 but, it will operate as
res judicata, if the claim for interest is not bona fide and is clearly untenable.22

In deciding the competency of the court (which had decided the former suit) to try the
subsequent suit, regard must be had to the jurisdiction of the court on the date of the
former suit. Suit property was valued in 1973 at Rs 60,000. No evidence was produced to
show as to what was the value in 1960. Having regard to the steady rise of prices of
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property, it could not be assumed that the property would be more than Rs 50,000 in value
in 1960. In the circumstances, the decision in the earlier suit was held to have been given
by a court of competent jurisdiction.23

3. Competency of the trial court determination, not of the appellate or execution court. It is the
competency of the trial court which determined the former suit that must be looked to,
and not that of the appellate court in which that suit was ultimately decided on appeal24 or
of the executing court25 A suit is instituted in a munsifs court. An appeal from the decree
in that suit is preferred to a District Court. A subsequent suit relating to the same matter in
issue is brought into in a District Court. The decision in the first suit cannot operate as res
judicata in the subsequent suit, for though the District Court that heard the appeal may
have jurisdiction to try the subsequent suit, the munsifs court, that is the court which
decided the former suit, is not a court of jurisdiction competent to try the subsequent suit.

Though an appeal lies from a decision of a Talukdari Settlement Officer to the District
Court, yet the decision does not operate as res judicata in a subsequent suit in the District
Court, for a settlement officer is not a court competent to try a civil suit; he is merely an
administrative officer.26

4. Competence of court when there is a court with preferential jurisdiction. A court does not cease to
be a court of competent jurisdiction to try the subsequent suit, if its inability to entertain it
arises not from incompetence, but from the existence of another court with a preferential
jurisdiction.27 Thus, a finding by a munsif in a suit for possession under s 9 of the Specific
Relief Act, 1877 (Now Act 47 to 1963), instituted in his court that the plaintiff was
wrongfully dispossessed by the defendant, in res judicata on the issue as to wrongful
dispossession in a subsequent suit brought by the same plaintiff against the same
defendant for damages for wrongful dispossession in a court of small causes. When a suit
under s 9 of the Specific Relief Act, 1877 (Now Act 47 to 1963) is dismissed on the ground
that the plaintiff was not in possession within six months of the institution of the suit, the
finding operates as res judicata in a subsequent suit on title on the question whether the
suit is barred by the special limitation under Art. 3 of Sch III of the Bengal Tenancy Act,
1885.28

5. Both the suits are in revenue court, but appeals lie to different authorities.A decision on a matter
directly and substantially in issue in a suit tried by a revenue court may operate as res
judicata in a subsequent suit brought in the same court though the character of the suits
may be such that in one case an appeal lies to the commissioner, and in the other, to a
District Court. The fact that in the two suits appeals lie to different courts does not affect
the application of the rule of res judicata.29

(i) Explanation II. Under the Code of 1882, the High Courts of Bombay30 and Madras31
held that a decision in a suit in which no second appeal was allowed by law, such as suits of
a nature cognizable by court of small causes when the amount or value of the subject
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matter does not exceed Rs 500, could not operate as res judicata in a subsequent suit in
which appeal was allowed. The High Court of Calcutta dissented, holding that a decision in
a suit could operate as res judicata, notwithstanding that no second appeal was allowed by
law in that suit.32 Explanation II affirms the view taken by the High Court of Calcutta that
the competence of a court does not depend on the right of appeal from the decision of
such court.33

(ii) Judgment of court not competent to deliver it. A judgment delivered by a court not competent
to deliver it cannot operate as res judicata, 34 since such a judgment is not of any effect.35 It
is a well-settled position in law that if a decision has been rendered between the same
parties by a court, which had no jurisdiction to entertain and decide the suit, does not
operate as res judicata between the same parties in subsequent proceedings.36 The context,
scheme and terms of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, show
that the rent controllers decision on questions of title, is not final. Hence, that decision
cannot be res judicata;37 and it has accordingly been held that a decree passed by a court in
the mofussil with respect to lands situated within the ordinary original civil jurisdiction of
the Calcutta High Court is not res judicata in a suit in the High Court of Calcutta.38 In the
absence of a certificate from the collector, a civil court has no jurisdiction to try a suit
relating to any pension or grant of money or land revenue made by the government, and a
judgment of a civil court in such a suit without a certificate under s 6 of the Pensions Act
cannot operate as res judicata. 39 When a suit was brought in a court in district X on a
mortgage of property situated in district Y and a decree was passed without any
adjudication a the question of jurisdiction, the decree did not operate as res judicata so as to
bar a suit to set aside the decree for want of jurisdiction.40(See in this connection, s 44 of the
Indian Evidence Act, 1872). For this purpose, there is no distinction, so far as chartered High
Courts are concerned, between cases where a court has no jurisdiction at all to try a suit
and cases where it cannot exercise jurisdiction unless leave to sue has been obtained under
cl 12 of the charter. Therefore, a judgment delivered by a chartered High Court in a suit
which it has no jurisdiction to try unless leave to sue has been obtained, cannot operate as
res judicata, if leave to sue was not obtained.41 A question of law which does not require a
fresh investigation into facts may be allowed to be raised at a later stage of a proceeding,
but that is subject to the qualification that the question is not concluded by a decision
between the same parties.42 The observations or conclusions, however, it may be called,
contained in a proceeding, if directly opposed to the mandatory provisions contained in
Sick Textiles Undertaking Act, cannot be accorded in sanctity or finality, or given any
binding force so as to constitute either estoppel or constructive res judicata. Such illegal
directions directly opposed to the statute, will be void ab initio.43

The Supreme Court has held that an order passed by a Court without jurisdiction would be
a nullity. It will be coram non judice. It is non est in the eye of law. Principles of res judicata
would not apply in such cases.44
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Where a court assumes jurisdiction erroneously and in disregard of statutory provisions,

the decision will still be res judicata if the party affected does not raise any objection.45

The rule embodied in s 11 applies to declaratory suits also and therefore, a decision in a
prior suit instituted in court A cannot bar a subsequent suit for declaration in court B if
court A was not competent to try it. Hence, s 43 of the Specific Relief Act, 1877 (Now Act 47
to 1963), which is general in its terms must be read subject to the conditions enumerated in
s 11.46 Where a contract provided for suits thereon being instituted in a specified court and
contrary to its terms, a suit was instituted by a party in a different court and that resulted in
a decree, it was held that it would not operate as res judicata in a suit subsequently filed in
the court specified in the agreement.47 It is submitted that this decision is erroneous. When
a suit is instituted in a court different from that specified in the agreement, that would be a
ground for taking action under s 10 of the Code of Civil Procedure; but, where that is not done
and the suit is decreed, the decree is valid and will operate as res judicata as the court derives
its jurisdiction from the Code of Civil Procedure, and not from an agreement of parties.48(iii)
Decision on a question of jurisdiction. The principle of res judicata is a procedural provision. A
jurisdictional question if wrongly decided would not attract the principle of res judicata.
When an order is passed without jurisdiction, the same becomes a nullity. When an order
is a nullity, it cannot be supported by invoking the procedural principles like estoppel,
waiver or res judicata.49

The law is well-settled that a court which has no jurisdiction to try a cause cannot by its
own erroneous decision confer on itself competence to decide it, and its decision on the
question of jurisdiction cannot operate as res judicata in a subsequent suit between the
parties.50 The court which has no jurisdiction in law cannot be conferred with the
jurisdiction by applying principles of res judicata. It is well-settled that there can be no
estoppel on a pure question of law.51

Decision of rent controller under Andhra Pradesh Buildings (Lease, Rent and Eviction)
Control Act (15 of 1960), s 8 (5) and 20 (iv) in a petition under s 8 (5) of the Act, on
jurisdictional facts, is not conclusive and final and does not operate as res judicata.52In
respect of reliefs that can be granted by the Tribunals under the Rent Act, their decisions
are final. But in respect of a relief which cannot be granted under the provisions of the
Rent Act and where questions are decided incidentally, they cannot be considered as final
so as to oust the jurisdiction of civil court nor do such findings operate as res judicata as the
decisions are not final.53 Conversely, the decision relating to jurisdiction cannot be said to
constitute the bar of res judicata where the court by an erroneous interpretation of a statute
holds that it has no jurisdiction.54 It is submitted that the decision of the High Court of
Madhya Pradesh55 to the contrary requires reconsideration; but, where a court would have
jurisdiction over the subject matter if certain facts existed, a decision given in a previous
litigation between the parties as to the existence of those facts would be binding on them
in a subsequent suit.56 The position is the same when a party alleges facts when if true,
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would give jurisdiction to the court, and they are not denied by the opposite party and a
decree is passed. In that case, the question of jurisdiction must be held to have been
decided by implication and the decree would be constructively res judicata;57 and so, where
two suits in ejectment were filed in the small cause court, Calcutta, with reference to two
different portions of a house and that court would have paid pecuniary jurisdiction to try
them only if the two portions were demised under distinct leases and both the suits were
decree, a plea by the tenant in a subsequent suit that both the portions were demised under
one lease was held to be barred as res judicata. 58

In applying the principles of constructive res judicata, a distinction should be made

between the decisions given by ordinary courts and those given by tribunals with limited
jurisdiction. While ordinary courts would have jurisdiction to decide whether they have
jurisdiction to try a cause, even if in the result they should come to the conclusion that they
have not, tribunals are competent to decide the question of their jurisdiction only if they
are authorised.59 If a tribunal for the purpose of deciding the question relating to its
jurisdiction finds it necessary to decide another matter that matter, does not become a
matter of its exclusive jurisdiction nor does it operate as res judicata.60 Where there is
inherent lack of jurisdiction in the tribunal, even a failure to raise the objection before such
tribunal is by itself no bar against raising it in a subsequent writ petition.61(iv) Judgment
obtained by fraud or collusion.A judgment obtained by fraud or collusion62 cannot operate
as res judicata (Evidence Act, 1872, s 44 ). Fraud is an extrinsic collateral act which vitiates
the most solemn proceedings of courts of justice. Lord Coke says,

it avoids all judicial act s, ecclesiastical or temporal.63

Where a decree is impeached on the ground of fraud, the fraud alleged must be actual
positive fraud, a meditated and intentional contrivance to keep the parties and the court in
ignorance of the real facts of the case, and the obtaining of the decree by that contrivance.
The mere fact that a decree has been obtained by perjured and false evidence is no ground
for setting it aside on the ground of fraud.64 Mere negligence on the part of the manager of
a joint Hindu family in conducting the suit would not ordinarily be a ground for excluding
the operation of res judicata; but gross negligence may in such a case be evidence of fraud or
collusion.65 It seems to us that when a finding as to title to immovable property is rendered
by a court of small causes res judicata cannot be pleaded as a bar in a subsequent regular
civil suit for the determination or enforcement of any right or interest in an immovable
property. In order to operate as res judicata, the finding must be one disposing off a matter
directly and substantially in issue in the former suit and the issue should have been heard
and finally decided by the court trying such suit. A matter which is collaterally or
incidentally in issue for the purpose of deciding the matter which is directly in issue in the
case cannot be made the basis of a plea of res judicata. It has long been held that a
question of title in a small cause suit can be regarded as incidental only to the substantial
issue in the suit and cannot operate as res judicata in a subsequent suit in which the
question of title is directly raised.66 The doctrine of res judicata must however be applied to
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co-defendants with great care and caution. The reason is that fraud is the extrinsic
collateral act, which vitiates the most solemn proceedings of courts of justice. If a party
obtains a decree from the court by practicing fraud or collusion he cannot be allowed to
say that the matter is res judicata and cannot be reopened. There can also be no question
of res judicata in a case where signs of fraud or collusion are transparently pregnant from
the facts on record. Therefore, in applying the doctrine of res judicata between co-
defendants or co-plaintiffs care must, of necessity, be taken by the court to see that there
must infact be a conflict of interests between the co-defendants or the co-plaintiffs
concerned and it is necessary to decide the conflict as in order to give relief which the
plaintiff in the suit, claimed and, the question must have been directly and substantially in
issue and was finally decided therein.67

(v) Court of limited jurisdiction: explanation VIII. Courts such as the small cause courts and
courts with limited pecuniary jurisdiction are courts of limited jurisdiction. Before
explanation VIII was added in the section by the Amendment Act, 1976, the section
required that the court which decided the former suit or the suit in which a particular issue
has been subsequently raised must have been a court competent to try the subsequent suit
or the suit in which the issue in question has been subsequently raised. The view till now
held was that the word suit in the expression such subsequent suit or the suit in which
such issue has been subsequently raised must be whole of the suit and not a part of it or
any issue.68 If a suit was filed before a court of limited pecuniary jurisdiction and was
decided by that court, explanation VIII to s 11 of the Code of Civil Procedure would be
attracted.69 Explanation VIII now provides that if an issue has been heard and finally
decided by a court of limited jurisdiction having jurisdiction to try such an issue, the
finding on such issue will operate as res judicata in a subsequent suit although such court of
limited jurisdiction was not competent to try such subsequent suit or the suit in which such
issue has subsequently been raised. The legislature has thus stepped in to extend the
applicability of the section and to prefer the liberal instead of the literal interpretation of
the word suit.

Section 11 is not exhaustive of res judicata. The application of the doctrine is not restricted
to the CPC but extends to all litigation including industrial cases. The main provision of s
11 is to be read in conjunction with Explanation VIII.

In the case of misconduct of a workman, the Management sought permission under s 33

(2)(b) of the Industrial Disputes Act, 1947 for his dismissal. However, the domestic enquiry
against the workman was set aside by the Industrial Tribunal. Thus, in the said proceeding
the Tribunal decided the issue of misconduct of the workman on merit. Subsequently, the
dismissal was challenged by the workman under s 10 of the Act. It was held by the
Karnataka High Court that the issue of misconduct as decided earlier was substantive and
cannot be treated as incidental. The findings of the proceeding under s 33 having not been
challenged, attained finality and as such the same cannot be igned and the same issue
cannot be tried in a subsequent proceeding. The principle of res judicata is attracted.70
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The expression courts of limited jurisdiction occurring in explanation VIII to s 11 means

courts other than ordinary civil courts. Such Courts are also courts of exclusive jurisdiction
in respect of matters they are to try. But all findings of such courts of limited jurisdiction
will not operate as res judicata. Only those findings which that court had exclusive
jurisdiction to render would operate as res judicata. Thus, it was held that Motor Accident
claims Tribunal in a claim petition filed under s 166 of the M.V. Act did not have
jurisdiction to decide the dispute regarding succession certificate. In that view of the matter
such decision would not operate as res judicata in a subsequent suit.71

Condition V : Matter Must have been Heard and Finally Decided in Former Suit

(a) Decision May be Actual or Implict. Res judicata by its very words means a matter on
which the court has exercised its judicial mind and has after argument and consideration
come to a decision on a contested matter.72 The section requires that there should be a final
decision.73 The expression heard and finally decided in s 11 means a matter on which the
court had exercised its judicial mind and has after argument and consideration came to a
decision on a contested matter. It is essential that it should have been heard and finally
decided. What operates as res judicata is the product of what is fundamental to the decision
but it cannot be ramified or expended by logical extension.74 If a dismissal of a prior suit
was on the ground affecting the maintainability of the suit, any finding in the judgement
adverse to the defendant would not operate as res judicata in a subsequent suit; but, if
dismissal of the suit was on account of extinguishment of the cause of act ion or any other
similar cause, a decision made in the suit on a vital issue involved therein would operate as
res judicata in a subsequent suit between the same parties.75 Thus, where in the judgment
and decree in the former suit, it is stated that it is to be subject to a decision of a higher
court, the decision is not final one;76 or when the former suit is dismissed on the grounds
of limitation, the question of title raised therein cannot be said to have been finally
decided.77 Where the question in issue was whether the suit properties were ancestral, a
decision in the negative in an earlier suit was held to be not res judicata as the court
expressly stated that the result would be the same even if that issue were to be answered in
the affirmative.78 The decision may not be res judicata, if what was decided was incidentally
and substantially in issue, even if some sort of identity exists between the controversies
raised at two different stages. Decision in an ejectment suit would not operate as res judicata
in a subsequent suit for the redemption of a mortgage. In the earlier suit, where the claim
for ejectment was based on rent note, the only matter which could be said to be directly
and substantially in issue was non-payment of rent. Merely because in the earlier suit, it was
held that the present defendant mortgagee was entitled to legally claim payment of rent
from the present plaintiff mortgagors and the suit was decreed for non-payment of rent, it
cannot be said that the legality or validity of the claim to interest was in issue, or that the
question was decided.79 The revenue court, exercising authority under the relevant Act, can
be said to be a court of limited jurisdiction within the meaning of s 11, explanation VIII.
The revenue court is vested with the jurisdiction over question relating to the existence or
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otherwise of the relationship of landlord and tenant, as to the status, as to the terms on
which he held the tenancy and similar questions. The revenue court must be held to be
competent to decide such issues. A decision by the revenue court on these issues, which is
within its competence, will certainly operate as res judicata in view of explanation VIII to s
11 of the Code of Civil Procedure.80 The expression Court of limited jurisdiction covers civil
courts also.81

Plea of res judicata should not be allowed for the first time in first appeal. It is not pure
law.82

A question of fairness of price of a property arose in a case arising out of an agreement for
sale of property. The Division Bench of the High Court concluded the findings, which
were confirmed by the Supreme Court, wherein it was held that this question cannot be
raised again in subsequent proceedings.83 Property in the former suit for redemption was a
part of the property in a subsequent suit for partition. The findings in the previous suit was
to the effect that the plaintiff, who claimed by virtue of sale in his favour, had acquired no
right to property in as much as the sale was not supported by legal necessity. This finding,
though given by a court not competent to try the subsequent suit (for want of pecuniary
jurisdiction) operates as res judicata.84 In a Patna case, the trial court had no pecuniary
jurisdiction; but, the final decree was passed on second appeal and, throughout (up to
second appeal) the losing party never raised any objection with regard to pecuniary
jurisdiction of the trial court. It was held that the decree was res judicata and it was not non-
permissible for the party who had lost in all the courts to argue that the trial court had no
jursidiction.85 One of the tests is to ascertain if the party aggrieved by the findings could
challenge it. Observation made by the court, when there was no pleading nor evidence,
could not operate as res judicata.86 The mere fact that a matter directly and substantially in
issue in a suit was directly and substantially in issue in a former suit, is not sufficient to
constitute the matter res judicata; it is also essential that it should have been heard and
finally decided. This does not mean that there should be an actual finding on the issue in
question; it is sufficient if the decree necessarily involves a finding of the issue.87 Unless
there is such a finding, the question of res judicata does not arise. An assumption or
inference that a finding is involved in the judgment or decree, is not permissible.88 In other
words, what operates as res judicata is the ratio or what is fundamental to the decision.89 It
has thus been held that an issue may be res judicata if the judgment of the appellate court
shows that the issue was treated as material and was decided, although the decree passed
merely affirms the decree of the lower court which

did not deal with the issue;1 and the bar has been held to operate even with respect to a
finding on an issue on which the parties had gone to trial without protest.2

Where a court records findings on several issues, all of them will be res judicata if the
judgment is based on all of them, but it must appear from the judgment that the findings
are necessary for the decision.3 In Vithal Yaswant v. Shikandar Khan Mutumukhtan,4 it has
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been held by the Supreme Court that when a court bases its decision, the decision on each
one of those points would be sufficient for the ultimate decision, the decision on each one
of those points would be res judicata. Where the decision of a court rests on alternative
findings, all of them would be res judicata.5 It has been held that the findings given by a
court on the merits after it holds that it has no jurisdiction over the cause cannot operate
as res judicata in a subsequent suit between the parties.6 Likewise, where a former suit has
been dismissed without contest but on a compromise and that compromise expressly
states that the dismissal was without adjudication of the issues involved in the suit, the
dismissal does not bar a subsequent suit on the ground of res judicata.7 On the same
reasoning, where a writ application under Art. 226 is rejected on the ground that the matter
is one which should be tried in a suit, any expression of opinion on the merits of the case
thereafter would be obiter and not res judicata.8 The finality spoken of in this section has
nothing to do with the finality contemplated by Art. 133 of the Constitution because although
an order may not be a final order for the purposes of Art. 133, it may still operate as res
judicata on the ground that questions sought to be agitated in a later proceeding had either
been decided or ought to have been decided in the earlier proceeding.9

In dealing with questions under the present head it is important to note:

(i) that if a decree is specific, and is at variance with a statement in the judgment,
regard must be had to the decree, in the judgment;10
(ii) that neither an obiter dictum nor a mere expression of opinion in a judgment has
the effect of res judicata;11
(iii) that when a court merely for the purpose of preventing a remand records its finding
on an issue not necessary for the decision of the case, it does not operate as res
judicata;12
(iv) it is the decision that operates as res judicata and not the reasoning in support of
it.13

(b) Finality of Decisions. It is well settled that a decision pronounced by a court of

competent jurisdiction is binding between the parties unless it is modified or reversed by
adopting a procedure prescribed by law. It is in the interest of public at large that finality
should attach to the binding decisions pronounced by a court of competent jurisdiction
and it is also in the public interest that individuals should not be vexed twice over with the
same kind of litigation.14 The principle of res judicata would apply only when the lis was
inter-parties and had attained finality in respect of the issues involved. The said principle
will, however, have no application inter alia in a case where the judgment and/or order had
been passed by a court having no jurisdiction therefor and/or in a case involving pure
question of law. It will also have no application in a case where the judgment is not a
speaking one.15 Effect of non-filling of appeal against a judgment or decree is that it
becomes final. This finality can be taken away only in accordance with law. Same
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consequences follow when a judgment or decree in a connected suit is not appealed

from.16

A matter will be said to have been heard and finally decided notwithstanding that the
former suit was disposed off in any of the following ways:
(i) ex parte;17 or
(ii) by dismissal under O 17, r 3;18 but not when the dismissal is under O 16, r 1 for
failure to pay adjournment cost;19 or
(iii) by a decree on an award;20 or
(iv) by oath tendered under s 8 of the Indian Oaths Act, 1873;21 or
(v) by dismissal owing to plaintiffs failure to adduce evidence at the hearing.22

It is true that an ex parte decree operates to render the matter decided res judicata, and the
defendants failure to appear will not deprive the plaintiff of the benefit of his decree; but,
in the case of a suit in which a decree is passed ex parte, the only matter that can be directly
and substantially in issue is the matter in respect of which relief has been claimed by the
plaintiff in the plaint. A matter in respect of which no relief is claimed cannot be directly
and substantially in issue in a suit in which a decree is passed ex parte, though the court may
have gone out of its way and declared the plaintiff to be entitled to relief in respect of such
matter.23

When an ex parte decree is passed, the defendant (apart from filing a review petition and a
suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one,
to file an appeal and another to file an application for setting aside the order in terms of O
9, r 13 of the Code of Civil Procedure. He can take recourse to both the proceedings
simultaneously but in the event the appeal is dismissed as a result whereof the ex parte
decree passed by the trial court merges with the order passed by the appellate court, having
regard to explanation appended to O 9, r 13 of the Code of Civil Procedure a petition under O
9, r 13 would not be maintainable. However, the explanation 1 appended to said provision
does not suggest that the converse is also true.24

A preliminary decree in the suit for partition is not a tentative decree. In so far as the
matters decided by it are concerned, it has to be regarded as conclusive and final. If a
matter has not been finally decided, there is no point in allowing an appeal by the statutory
provision. So, the decision of the court on disputed questions between the parties
embodied in the judgment which is followed by a decree, is a final decision; in the sense,
that it is no longer open to question by either party except in an appeal, review or revision
as provided by law. Hence, the points decided in a preliminary judgment in a partition suit
will estop the parties on the principles of res judicata from contesting the same point in a
later suit.25 A writ petition was filed by a person claiming to have been selected as principal
of a college, challenging the orders of the Vice-Chancellor and Chancellor of the
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University, refusing to accord approval to his selection. The petition was rejected in limine.
Subsequent representation was made by the petitioner to the Vice-Chancellor and
Chancellor. It was rejected. Subsequent writ petition challenging such rejection of
representation on the same cause of action as in earlier writ petition is barred.26

A Manager of a Co-operative Society was removed from service after departmental

proceeding. Since the result of the departmental appeal was not communicated to him, he
filed an application under s 55 of the Madhya Pradesh Co-operative Societies Act, 1960 to the
Joint Registrar, Co-operative Societies, Raipur. At that time District Bastar/Jagdalpur was
within the territorial jurisdiction of Raipur. A Joint Registrar than came to be appointed for
District Bastar for Jagdalpur Area. Thus, it was held by the Supreme Court that the earlier
application by the employee preferred to the Joint Registrar, Raipur, in the circumstances
became infructuous. Such decision would not operate as res judicata.27

The principle of finality or res judicata is a matter of public policy and is one of the pillars
on which a judicial system is founded. Once a judgment becomes conclusive, the matters
in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction
is cited to challenge it directly at a later stage. The principle is rooted to the rationale that
the issues decided may not be reopened and has little to do with the merit of the
decision.28

It has been further observed in the above decision by the Division Bench in the above case
that a decision pronounced by a court of competent jurisdiction is binding between the
parties unless it is modified or reversed by adopting a procedure prescribed by law. It is in
the interest of the public at large that finality should attach to the binding decision
pronounced by a Court of competent jurisdiction and it is also in the public interest that
individuals should not be vexed twice over in the assessment of the same matter in issue.
Even in case of a judgment passed incurium which is unchallenged, the efficacy and
binding nature of the operative order is conclusive inter partes. The principle applies both
to an order from which an appeal lies and no appeal is preferred and to an order from
which no appeal is provided.29

(c) The Decision in the Former Suit must have been on the Merits. In order that a
matter may be said to have been heard and finally decided, the decision in the former suit
must have been one on the merits.30 So far as the plea of res judicata is concerned, if both
the landlord and the firm had filed cross circuits against each other and both the courts
came to a common conclusion that the parties should litigate their rights in execution
proceedings and nothing was decided on merits of rights and claims of the parties, such a
plea is no longer available to the parties against each other in the execution proceedings.31
Hence, it could not be said of a matter that it was heard and finally decided, if the former
suit was dismissed:
(i) for want of jurisdiction;32 or
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(ii) for default of plaintiffs appearance under O 9, r 8.33 (But, a fresh suit on the same
cause of action may be barred under O 9, r 9); or
(iii) on the ground of non-joinder of parties,34 or misjoinder of parties,35 or
multifariousness;36 or on the ground that the suit was badly framed;37 or on the
ground of a techincal mistake;38 or
(iv) for failure on the part of the plaintiff to produce probate or letters of administration
or succession certificate when the same is required by law to entitle the plaintiff to a
decree;39 or
(v) for failure to furnish security for costs under O 25, r 2;40 or
(vi) on the ground of improper valuation,41 or for failure to pay additional court-fee on
a plaint which was undervalued;42 or
(vii) for want of a cause of act ion;43 or
(viii) for want of notice;44 or
(ix) on the ground that it is premature;45
(x) as not pressed;46
(xi) as having become infructous.47
(xii) as having been settled,48 or ended by virtue of compromise.49
(xiii) on the ground that the plaintiff did not summon or produce witnesses.50
(xiv) as withdrawn with leave of court for filing of fresh suit.51
(xv) as withdrawn.52

Where a petition under Art. 32 filed before the Supreme Court was dismissed as
withdrawn and the order permitting withdrawal made it clear that the withdrawal of the
petition would not prevent the petitioner from seeking redress before the appropriate
forum, it was held that the writ petition filed under Art. 226 of the Constitution would not be
barred by res judicata.53

A Division Bench of the Madhya Pradesh High Court held that where the earlier writ
petition was dismissed in limine without any issue being heard and decided finally, bar of res
judicata would not apply in determining subsequent writ petition raising the very same
issues.54

A claim raised before the court was later withdrawn by the petitioner. The court took note
of the assurance made by the respondent and refused to adjudicate on the claim between
the parties. It was held such a decision would not amount to the rejection of the claim and
would not bar the raising of the claim in future.55 A decision of a suit under s 69 of the
Partnership Act is not one on merits and therefore, cannot operate as res judicata.56 A
direction in a preliminary decree under O 20, r 12 (1)(c) does not operate either under this
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section or on general principle as res judicata as such a direction is not based on a decision
of any matter in controversy between the parties.57 An order under O 22, r 5 involves only
a summary inquiry and for that reason, does not constitute res judicata.58 In an earlier suit by
the lessor, it was alleged by him that the lease had determined. He withdrew that suit. He
then sued for recovery of khas possession of the premises, alleging (in the second suit) that
the lease had determined by time. It was held that the first suit did not operate as res
judicata, because, in the first suit: (i) there was no decision on merits; and (ii) the second suit
was based on a new cause of act ion alleged to have arisen in the meantime.59 If a party
having a contract with a firm fails to raise an objection that the firm has been reconstituted
in two successive references to arbitration, he cannot raise that objection later. It is barred
by constructive res judicata.60 In a Delhi case, the decree-holder took out execution for
possession. One of the respondents (which was a firm), filed objections on the ground that
the said firm had been a lawful tenant under the decree-holder for 15 years and its
possession was not through the judgment-debtors. It was held that the objection filed by
the objectors would be maintainable as the principle of res judicata would not apply to the
facts of the case. In the earlier suit by the objectors for injunction, the disputes raised were
never heard and decided by the court. On the contrary, the claim was given up against the
decree-holder etc. Further, as the objections would require the taking of evidence, a warrant
of possession would not be issued without deciding the objections.61 When there was
nothing to show that the dismissal in revision was on any technical ground, the order in
revision became final, and the appellant was estopped from raising that point on a second
occasion on the same ground when it came up in appeal.62 Where the earlier award (on
compromise) and decree in terms of the award, were based on surrender by the tenant
himself, the person against whom the decree is passed (that is, the tenant), cannot plead in
defence to execution of the decree, that it was an eviction decree.63 After a suit for
partition of shops was decreed, the decree-holder applied for execution. Notice to the
judgment-debtor was issued under O 21, r 22. The judgment-debtor initially appeared in
execution, but later remained absent. The decree was held to be executable. It was held
that in appeal, the judgment-debtor could not challenge the trial courts decision.
Constructive res judicata applied.64 It was held that:(i) Finality of a judgment as res judicata; is
not dependent on whether the suit was filed before or after the suit raising the same
issue;65 (ii) even an ex parte decree becomes res judicata.66 The Municipal Corporation of
Mysore enhanced the property tax, leading to filing of a writ petition by the group of
citizens. The writ petition was dismissed on the ground that there was only revision and
not enhancement of tax by the corporation, which was within the competence of the
corporation. Issue of escalation was neither agitated nor decided by court. A subsequent
suit challenging such escalation by another group of citizens was maintainable; more so,
when there was a different line of challenge in the suit than in writ petition.67 In a
proceeding for winding up, the court may order winding up once it is established that there
is a just and equitable ground; however, in a petition under s 397 of the Indian Companies
Act, 1956, one has to establish that there is oppression without which the question of grant
of relief does not arise. The CLB held that the High Court has decided against the
petitioners on the ground that there was no deadlock in the management; hence, it would
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not be just and equitable to order winding up the company. The CLB observed that the
High Court did not examine whether the allegations of oppression had been established. It
was held that the findings of the CLB cannot be overruled on the ground of res judicata.68

Where the earlier suit was decreed ex parte but the ex parte decree was set aside and the
suit was restored and later on the suit was dismissed under O IX, r 8 of CPC, which was
never challenged by anyone, it was held by the Patna High Court that suice the earlier suit
was dismissed on technical grounds without going into the merits, it will not operate as res
judicata.69

The principle of res judicata applies as between the parties to a decision, so that parties
bound by the decision cannot assail the same in any subsequent or collateral proceeding.
Thus, where the High Court did not finally decide the earlier writ petition but left it to the
Election Commission to decide the matter and issue general directive, it was held by the
Patna High Court that the same not being the subject matter on which any decision was
given by the High Court, the principle of res judicata would not apply to subsequent writ
petition assailing the decision of the Election Commission.70

For application of the rule of res judicata in case of dismissal of the earlier suit, the
question has been fully explained in the case of Sheodan Singh v. Daryao Kunwar.71 In this
case the appeals were dismissed by the High Court on the ground of limitation and for
non-prosecution. The Supreme Court rejected the contention that the decision cannot
operate as res judicata. The Supreme Court referred to instances where a former suit was
dismissed by the trial Court for want of jurisdiction or for default of the plaintiff;
appearance etc. and it was pointed out that in respect of such class of cases, the decision,
not being on merit, would not operate as res judicata. However, none of these
considerations apply to a case where a decision is given on merits by the trial Court and the
matter is taken in appeal and the appeal is dismissed on some preliminary ground like
limitation or default in printing. It was held by the Supreme Court that such dismissals
have the effect of confirming the decision of the trial Court and it amounts to the appeal
being heard and finally decided on merits whatever be the ground of dismissal of the
appeal.

(d) The Decision in the Former Suit must have been Necessary to the
Determination of the Suit. A matter directly and substantially in issue cannot be said to
have been heard and finally decided, unless the finding on the issue was necessary to the
determination of the suit. The matter cannot be said to be heard and finally decided within the
meaning of s 11 of the Code of Civil Procedure when the finding on it was not at all necessary
for the decision of the case;72 also, it must be based upon that finding;73 and a decision
cannot be said to have been based upon a finding unless an appeal can lie against that
finding. The reason is that everything that should have the authority of res judicata is, and
ought to be, subject to appeal, and reciprocally, an appeal is not admissible on any point
not having the authority of res judicata.74 It is not sufficient to attract the bar of res judicata
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that an issue has been framed on the question. It is further necessary that there must be a
decision on the issue, express or implied which forms the basis of the decree.75 It was at
one time thought that the test of res judicata was whether the finding was embodied in the
decree. This, however, is not so, for res judicata is a matter of substance and not of form. It
is the right of appeal which indicates whether a finding was incidental or necessary. This
also is no longer universally so, firstly, because under s 2 (2), as now amended, a decision
in a proceeding under s 47 is not a decree; and secondly, because under the new
explanation VII, this section is extended to execution proceedings. In other words, a
decision in a proceeding for execution, though not a decree, statutorily constitutes res
judicata as regards the same question arising in a subsequent execution proceeding,
although such decision is not a decree.

As regards suits, one of the tests to ascertain if the finding operates as res judicata is that the
party aggrieved could challenge it.76Section 11 of Code of Civil Procedure operates against both
the parties to a suit and not against the defendants alone. The principle of res judicata is an
inhibition against the court.77 A finding given against a party in a litigation which
terminates in his favour does not operate as a res judicata in a subsequent litigation in which
a similar controversy arises.78 This is so because he had no opportunity to challenge the
correctness of the finding in an appeal by reason of the litigation having ended in his
favour.Hence, the following emerge:

Rule 1 : Findings on issues against defendant not res judicata where the suit is wholly
dismissed.If the plaintiffs suit is wholly dismissed, no issue decided against the defendant
can operate as res judicata against him in a subsequent suit, for the defendant cannot
appeal from a finding on any such issue, the decree being wholly in his favour;79 but, every
issue decided against the plaintiff may operate as res judicata against him in a subsequent
suit, for the plaintiff can appeal from a finding on such issue, the decree being against
him.80 With reference to the first branch of this rule, it is well-settled that when a plaintiffs
suit is dismissed despite a finding on an issue in his favour, that finding does not operate as
res judicata against the defendant.81 When an issue in the suit was found against the
defendant, but the suit itself was dismissed with half costs, it was held that the findings
operated as res judicata against the defendant in a subsequent suit, as it was open to him to
challenge the correctness of the same in an appeal against the refusal to award full costs.82
With reference to the second branch of this rule, the Allahabad High Court has expressed
the opinion that it does not apply to a case where the court after finding against the
plaintiff on an issue which should in logical sequence have been decided first, proceeds to
record its findings against the plaintiff on other issues; in such a case, according to that
court, the finding on the other issues do not operate as res judicata against the plaintiff in a
subsequent suit.83 A decree against which an appeal is already preferred does not operate as
res judicata84. The judgment of the Privy Council in Annamalai Chetty v. BA Therhill,85
was referred to. Where a suit is dismissed, but there is on some issue, an adverse finding
against the defendant, the finding does not operate as res judicata as the defendant could
not have appealed.86
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ILUSTRATION

(i) In a suit by A against B for ejectment, B contends : (a) that no notice to quit was given;
and (b) that the land being majhes land, he is not liable to be evicted at all. The suit is
dismissed on a finding that no notice to quit was given. The court, however, also finds that
the land is not majhes land. A afterwards sues B to evict him from the land after giving
notice to B. B contends that the land is majhes land and that he is not liable to be evicted.
The finding in the first suit was that the land was not majhes land and that he is not liable
to be evicted. The finding in the first suit that the land was not majhes land does not
operate as res judicata so as to preclude B from raising the same contention in the
subsequent suit, the reason being that As suit having been dismissed, B could not have
appealed from the finding that the land was not majhes land. The court having found in
the first suit that A had not given notice to quit, it was not necessary for the determination
of the suit to decide whether the land was majhes land or not. The first suit was dismissed
in spite of the finding in As favour that the land was not majhes land.87

Suppose that in the above illustration B had not raised the defence that the land was majhes
land in the first suit. Would he be precluded from raising that defence in the second suit
on the ground that he might and ought to have raised that defence in the first suit? No, the
reason being that when a point of defence that has been act ually raised and disallowed
cannot operate as res judicata against a defendant, it certainly cannot operate as such when
it has not been raised at all though it might and ought to have been raised.88

(ii) A sues B for possession of certain lands after the expiry of a lease granted by him to B.
B pleads: (1) an occupancy right; and (2) that the suit is premature as he (B) had a right of
renewal. The trial judge finds that there was no occupancy right, but that the suit was
premature and the suit is dismissed. A files an appeal to the High Court. B files a cross-
objection to the finding against him, namely, that he had no occupancy. The High Court
affirms the decree on the ground that the suit was premature and upon the cross-objection
affirms the finding that B had no occupancy right. After some years A, after giving notice
to B, again sues B for possession. B again pleads an occupancy right. A contends that the
finding of the High Court in the previous suit that B had no occupancy right is res judicata.
It was held by the judicial committee that the finding is not res judicata, the reason being
that B having succeeded on the plea that the suit was premature, he had no occasion to go
further as to the finding against him.89 The decision to the contrary in Mota v. Vithal90 is
not good law.

(iii) In a suit by A against B for damages for not removing filth from A's land, B contends:
(a) that no notice was given as required by the Bengal Municipal Act ; and (b) that he was
not bound to remove the filth. The suit is dismissed upon two grounds, namely, that no
notice was given as required by the Act, and that B was not bound to remove the filth. A
then sues B for damages for not removing filth during a subsequent period after giving
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notice to B. B contends that he is not liable to remove the filth, and that the question of his
liability is res judicata by reason of its having been decided against A in the first suit. A
contends that the question is not res judicata by reason of its having been decided against
A in the first suit. A also contends that the question is not res judicata for the court, having
decided in the former suit that the suit must fail for want of notice, it was not necessary for
the court to decide the issue as to Bs liability to remove the filth. Held by the Calcutta
High Court that the question is res judicata, and A cannot raise it again in the second suit.91
The Allahabad High Court would seem to take a different view.92

(iv) A sues B, a manager appointed by the court in an administration suit, for a declaration,
that he had validly surrendered his lease. B's defence is that the suit was not maintainable
for want of notice under s 80 of the Code of Civil Procedure and that the surrender was not
valid. The court of first instance decided both the issues against A. B then sued A for
royalty due under that lease. It was held that the finding in the former suit that the lease
was not validly surrendered was not res judicata as that finding was not necessary, after the
court had held that the suit was not maintainable for want of notice under s 80.93

(v) A landlord sued to eject a tenant on the ground that he had failed to pay rent and that
therefore, the lease had become forfeited as provided in the deed. The tenant pleaded that
he was an agriculturist and further prayed to be relieved against forfeiture. The court
granted the latter, relief and also recorded a finding that the lessee was a non-agriculturist
tenant. It was held in a subsequent suit between the parties that the latter finding was not
res judicata as the tenant could not on the previous litigation appeal against the finding that
he was a non-agriculturist tenant by reason of relief having been granted against
forfeiture.94

Rule II : Findings on issues against plaintiff not res judicata where suit is decreed in its entirety. If the
plaintiffs suit is decreed in its entirety, no issue decided against the plaintiff can be res
judicata, for the plaintiff cannot appeal from a finding on any such issue, the decree being
wholly in his favour;95 but, every issue decided against the defendant is res judicata, for the
defendant can appeal from a finding on such issue, the decree being against him.96

ILLUSTRATION

A, alleging that he is the adopted son of X, sues B to recover certain property granted to
him by X under a deed and forming part of the estate of X. The court finds that A is not
the adopted son of X, but that he is entitled to the property under the deed and a decree is
passed for A. The finding that A is not the adopted son of X, will not operate as res judicata
in a subsequent suit between A and B in which the question of adoption is again put in
issue; for the decree being in favour of A, A could not have appealed from that finding.
The court having found that A was entitled to the property under the deed, the finding on
the question of adoption was not necessary to the determination of the suit. The decree,
far from being based on the finding as to adoption, was made in spite of it.97
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(e) Finality of Decrees in Redemption Suits. If the mortgagor files a suit for
redemption and no order for foreclosure extinguishing the right of redemption in default
of payment is made, the preliminary decree for redemption does not have that effect. The
right of redemption continues until a decree absolute for foreclosure, is passed,1 or the sale
is confirmed.2 In such a case, there is a conflict of decisions as to whether the mortgagor
can enforce his right of redemption by a second suit, after a preliminary decree on which
no further proceedings have been taken. According to Allahabad, Bombay, Lahore, Patna
and Rajasthan decisions, he can;3 on the other hand, according to Calcutta and Madras
decisions, he cannot.4 The Chief Court of Oudh holds that the question is one of
interpretation of the decree in the first redemption suit. If it provides for the extinction of
the relation of mortgagee and mortgagor, the second suit is barred, but not otherwise,5 but
though according to the Allahabad and Bombay High Courts, a second suit for redemption
is not barred, the same High Courts have held that any matter decided in the earlier suit
e.g., the amount of the mortgage-debt, cannot be re-opened in the subsequent suit.6 As an
analogy, it may be added that a preliminary decree in a suit for accounts finally decides the
issues which the court in such a suit is required to decide at the stage. If that decree is
allowed to be final, it is no longer open to the defendants to raise at a later stage a plea
such as non-maintainability under s 83 of the Transfer of Property Act.7 In Raghunath Singh v.
Hansraj Kunwar, the judicial committee held that if the decree for redemption in the first
suit did not extinguish the right of redemption, the second suit to redeem is not barred.8

In the converse case of the mortgagee not taking further proceedings on his decree for
sale, there is also a conflict of decisions as to whether the mortgagor, if he does not
redeem under the decree, may file a redemption suit. The Bombay High Court says that he
can,9 but the Madras High Court holds that he is barred by this section.10

(f) Appellate Decree Operates as Res Judicata . Where a decree is appealed from, it is
the appellate decree that must be looked to, to determine the question of res judicata, and
not the decree appealed froma decision liable to appeal may be final within the meaning of
this section until the appeal is preferred; but, once that appeal is filed, the decision loses its
character of finality, and what was once res judicata again becomes res sub judice, that is,
matter under judicial inquiry. Where the entire matter was still in appeal and any part of the
findings could be varied by the appellate court, it is idle to contend that the same had
become final. So also, when the matter had not attained finality and was still in dispute, the
principle of res judicata could not arise.11 With reference to s 207 of the Ceylon Civil
Procedure Code which is in pari materia with this section, the Privy Council said:

Where an appeal lies the finality of the decree, on such appeal being taken, is qualified by
the appeal and the decree is not final in the sense that it will form res judicata as between the
parties.

In this case,12 the effect of non-filing of appeal against a judgment or decree is that it
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becomes final. The finality can be taken away only in accordance with law. Same
consequences follow when a judgement or decree in a connected suit is not appealed from.
Thus, the finality of finding recorded in the connected suit, due to non-filing of appeal,
precluded the court from proceeding with appeal in the other suit.13A in 1924 sues B on an
account and obtained a decree on 17 January 1927. B filed an appeal on 19 January 1927
and A to avoid a possible bar of limitation, filed a fresh suit on the same cause of action
on 2 June 1927. The suit was dismissed as res judicata although B's appeal in the first suit
was pending. The Privy Council reversed this decision and said that the proper course was
to have stayed the second suit pending the decision of the appeal in the first suit. The
appeal destroys the finality of the decision, the decree of the lower Court is superseded by
the decree of the appellate Court, and it is the latter decree that should be looked into to
determine the question of res judicata. 14 In an Allahabad case,15 the court passed a decree
for costs and in an application for execution this decree was construed as not making the
defendant personally liable. Subsequently, the decree was confirmed by the court of appeal.
In a second execution application of the decree of the appellate court, the construction of
the decree in the first application did not operate as res judicata. When an award was set
aside by a court on the grounds of misconduct of the arbitrator and an appeal against that
order was dismissed as settled out of court, it was held that its effect was to render
operative the order which was appealed against, and, it operates as res judicata in a
subsequent suit between the parties.16

A sues B for damages for cutting and removing trees from his land. The suit is dismissed
on the grounds: (a) that the land did not belong to A; and (b) that B did not cut the trees.
A appeals from the decree on both these grounds, but the appeal is dismissed on the
ground that A had failed to prove that B had cut the trees. Note that the appellate court
does not decide the question of A's title. A then sues B for possession of land, claiming
that the land belongs to him. B contends that the suit is barred as res judicata as the first
court had found in the former suit that the land did not belong to A. The suit is not
barred, for the question of A's title became res sub judice when the appeal was preferred, and
it did not become res judicata as the appellate court did not adjudicate upon the question;17
but, a judgement of an appellate court will operate as res judicata as regards all findings of
the lower court which, though not referred to in it, are adopted by a decree which grants a
relief that is possible only on such findings,18 as also, where the appeal is struck off as
having abated.19 The doctrine that when there is an appeal, it is the judgement of the
appellate court that must be looked into for determining the question of res judicata, has no
application to judgements in writ proceedings preferred against orders of tribunals.20 An
issue, again, is res judicata where the judgment of the appellate court shows that the issue
was treated as material, and was decided, although the decree passed merely affirms the
decree of the lower court which did not deal with the issue.21

Where a plaintiff filed a suit for declaration of title, partition and recovery of possession of property
and also filed a petition under s 373 of the Indian Succession Act, 1925, for issue of succession
certificate, there was a joint trial of both the proceedings and the court granted a decree,
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declaring that the plaintiff was the sole heir of the deceased and was entitled to the
property. Relief of partition was also granted. The court also held that the plaintiff was
entitled to a succession certificate. The defendant filed appeals; which were tried jointly
and the matter was remanded. Defendant filed a second appeal against the decree in the
suit, but did not file any proceeding against the decision on the petition under s 373 of the
Indian Succession Act, 1925, which therefore, became final. It was held that the decision in
the petition would operate as res judicata and bar a fresh decision in second appeal.22

The bar of res judicata is not created by a decree, but by decision or judgment. Where the
suits or appeals raise common issues for decision and there has been one trial, one finding
and one decision, or an appeal against the decree in one suit, the appeal will not be barred
by res judicata, by not filing an appeal against the decree in the other suit or appeal.
However, the position would be different if the subject matter in each suit or appeal is
different.23

Suits by plaintiff and defendants were filed in the same court. Issues involved in both the
suits were substantially the same. Suits were disposed of, by a common judgment. Appeal
was filed by the plaintiff against the judgment in his case. Judgment in the suit by the
defendant was held to operate as res judicata. 24

Certain estates were taken over by the State Government, which then applied to the
tribunal (constituted under the relevant Act ) for the recovery of endowed amounts and
interest at 6 per cent till the date of payment. The tribunal gave a finding that the state
government was entitled to the entire amount claimed which would mean the principal as
well as interest. It was held that the mere fact that the tribunal had not used the word
interest did not mean that it had rejected the claim for interest.25

Finality does not depend on executability. A court may declare the rights of the parties
without an executable mandate. Matters decided in a preliminary decree should be
regarded as embodying the final decision on the matters decided by the court. This much is
indicated by s 97 of the Code. The Code provides for an appeal against a preliminary
decree. If a matter has not been finally decided, there is no point in allowing an appeal by
statute. Hence, points directed in a preliminary decree in a partition suit will estop the
parties by res judicata from contracting the same point in a later suit.26

Where the question of title, as maurasidar of land in the defendants possession could not
have been raised in the earlier suit, then the earlier decision cannot operate as res judicata
against the defendant on that point.27

A suit was filed for specific performance of an agreement of sale of undivided one-third
share of defendant. During its pendency, share of the defendant was determined to be less
than one-third. It was held that the partition decree (passed during the pendency of the suit
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for specific performance), could not operate as res judicata. Even if it be held that the
plaintiffs suit was premature, that could only disentitle him to costs.28

The Rangoon High Court has held that a decree may be final as regards a party A who has
not appealed, although another party B has appealed, if A has not been made party by B in
his appeal. The mere possibility that the appellate court might make A, a party and proceed
under 0 41, r 33, does not make it less final.29

In a Gauhati case in an appeal, the Deputy Commissioner, by his order dated 14

November 1955, directed that the disputed land should be divided equally between the
parties and the sub-divisional officer was directed to demarcate the land within a month.
As there was no appeal against the order by any of the parties, it became final. The land
was never demarcated by the sub-divisional officer. Constant disputes arose, and when one
of the parties petitioned to the Deputy Commissioner to execute the order, he (instead of
demarcating the land) treated it as a new dispute and decided the claim of the parties
afresh, by the impugned order. It was held that though the code as such, was not
applicable in Nagaland, the spirit of ss 11 and 12 of the Code was applicable. The Deputy
Commissioner is barred by the principles of res judicata from trying the dispute afresh. The
impugned order was set aside.30

If only a part of a decree is appended from, the rest of the decree may become final and operate as res
judicata. The defendant had obtained a decree on a mortgage. The plaintiff who had paid
off a prior mortgage filed a suit claiming to be subrogated to the prior mortgagee and to
recover the amount he had paid, from the defendant. The original court found that the
plaintiff was subrogated and awarded him the principal sum he had paid with interest. The
defendant on appeal claimed that the plaintiff was not entitled to interest. The defendant
could not on second appeal dispute plaintiffs right of subrogation which was res judicata by
reason of the decree of the original court, that part which had not been appealed against.31

(g) Consent Decree and Estoppel. The present section does not apply in terms to
consent decrees; for it cannot be said in the case of such decrees that the matters in issue
between the parties have been heard and finally decided within the meaning of this
section.32 A compromise decree or order does not operate as res judicata, because the
compromise decree or order is merely the record of a contract between the parties to a
suit, to which is superadded the seal of the court and the court does not decide anything.33
A consent decree, however, has to all intents and purposes the same effect as res judicata, as
a decree passed in invitum.34 It raises an estoppel as much as a decree passed in invitum.35
The words in writing and signed by the parties, inserted in O 23, r 3 of the Code of Civil
Procedure by the Civil Procedure Code (Amendment) Act, 1976, necessarily mean and include
only authorised representative and counsel. Thus, a compromise in writing and signed by
counsel representing the parties, but not signed by the parties in person, is valid and
binding on the parties and is executable, even if the compromise relates to matters
concerning the parties, but extending beyond the subject matter of the suit. A judgment by
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consent is intended to stop litigation between the parties just as much as a judgment
resulting from a decision of the court at the end of a long drawn out fight. A compromise
decree creates an estoppel by judgment.36 Therefore, so long as a consent decree stands, it
is not open to either party thereto to give it the go by, even if it contains clauses that are
bad in law.37 Where, however, the parties consent to divide pension in contravention of s
12 of the Pensions Act, 1873, a decree passed in terms thereof is void and cannot operate as
res judicata. 38 Also, where a new amending Act has conferred new rights including one of
reopening of decrees where they have not been fully executed, a party to such a decree can
take advantage of such an amendment.39 A consent decree, however, is a mere creature of
the agreement on which it is founded, and it may be set aside on any ground which would
invalidate an agreement between the parties;40 but, such a decree cannot be attacked
collaterally on such grounds, but only by direct proceedings attacking it.41 A consent decree
until set aside by a proper proceeding therefore is binding on the parties and cannot be
ignored on the ground that it contains a term which is not lawful.42 Once the original
tenant entered into compromise and admitted in the said compromise that he was never a
protected tenant of the suit land and was not in possession of the suit land at any time as a
protected tenant then, this admission and subsequent withdrawal of petition under s 98 by
the original tenant operates as res judicata. 43

Unless all the parties agree, an application cannot be made to the court of first instance in
the original suit to set aside the decree,44 though it may be done in the case of an
interlocutory order.45 A decree by consent can be passed against a minor in accordance
with the provisions of O 32, and such a decree will be res judicata unless it is set aside in
appropriate proceedings.46 A decree passed on an award will operate as res judicata in the
same manner as a decree passed by the court on contest.47 A compromise decree if not
vitiated by fraud, misrepresentation, misunderstanding or mistake is binding and operates
as res judicata as also estoppel between the parties.48(h) Explanation V: Relief Claimed
but not Expressly Granted. If a relief is claimed in a suit, but is not expressly granted in
the decree, it will be deemed to have been refused, and the matter in respect of which the
relief is claimed will be res judicata.49 Thus, where in a suit by a mortgagee: (i) for a money
decree; and (ii) in default of payment for sale of the mortgaged property, the mortgagee
was content to take a money-decree only, it was held that a subsequent suit by him, on
failure of the mortgagor to satisfy the decree, to have the amount of the mortgage-debt
paid to him by the sale of the property, was barred by res judicata. The relief as to sale
having been claimed by the mortgagee, but not having been expressly granted in the
former suit, must be deemed to have been refused so as to bar the subsequent suit.50 If a
relief claimed in the plaint is not granted by the decree, the fact that it is not mentioned in
the judgment would not bar the application of this explanation and it would be deemed to
have been refused.51 In a case where the prayer is a combined one, and prayer for grant of
certificate has not been considered specifically, the only conclusion possible is that the
prayer has been rejected by application of the principles contained in s 11.52 Where the
decree grants specific performance of an agreement to sell immovable property, it
impliedly grants the relief of possession. Relief of possession cannot be said to have been
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refused.53 If a landlord sues for the eviction of joint tenants and the interests of joint
tenants are not conflicting in that suit, then the decree does not become res judicata in a
later suit between the joint tenants.54 Where in an application for fixation of fair rent, an
issue was framed as to who was the tenant i.e. tenant in his personal capacity or in capacity
of a firm and there was no decision on the point, but it was impliedly held that the tenant
in his personal capacity was a tenant and fair rent was fixed, the issue would be taken to
have been decided against the tenant and subsequently, in the proceedings for eviction, the
same issue cannot be raised by the tenant.55

The Nagpur High Court has held that Explanation V would not apply where the omission
to grant the particular relief is due to a misapprehension on the part of the court relating to
the nature of relief claimed in the suit.56

(i) Liberty to bring a Fresh Suit. Where a former suit between the same parties in the
same court and for the same relief results in a decree of dismissal, but the judgment leaves
it open to the plaintiff to bring a fresh suit and leaves open, untouched and undecided all
matters affecting the rights of the parties, the decree does not constitute res judicata, as such
matters cannot be said to have been heard and finally decided within the meaning of this
section;57 but, if the court has in the particular circumstances of a case, no power to reserve
liberty to a party to bring a fresh suit, the subsequent suit may be barred as res judicata,
notwithstanding the liberty to bring a fresh suit. Thus, in Watson v. Collector of Rajshahye 58
the former suit was dismissed for the plaintiffs failure to produce evidence, but a direction
was given that the plaintiff could institute a fresh proceeding as if no suit had been
brought. Nevertheless, the Privy Council held that the subsequent suit was barred by res
judicata for the reservation was of no effect. Again, Fateh Singh v. Jagannath Baksh,59 is a case
directly on this point. In that case, the plaintiffs brought a suit to set aside a gift made by a
Hindu widow out of her husbands estate; they alleged that they were presumptive heirs.
The widow died pending the suit. After her death the plaintiffs applied to amend the plaint
by setting up a family custom of inheritance. Upon that application failing and the
plaintiffs admitting that apart from the alleged custom, they could not succeed, the trial
court dismissed the suit, but gave them liberty to file a fresh suit for possession.
Subsequently, the plaintiffs brought another suit to recover from parties to the former suit
a share in the property basing their claim upon family custom. It was held that the suit was
barred by res judicata since the custom was a matter which might and ought to have been
set up in the former suit, and, further, that the trial court having dismissed the suit, it had
no power under O 23, r 1(1), to give liberty to bring a fresh suit. A writ petition was
withdrawn by the petitioner without taking a decision on its merits of this court. Since, the
legality or otherwise of the impugned decree of the court below having not been
adjudicated upon in the said writ petition, its mere dismissal as not pressed can not be
treated operating as res judicata against the plaintiff, thereby precluding him from bringing a
fresh suit against the defendant seeking restoration of possession of the suit property.60
Both the suits concededly, were dismissed as withdrawn with liberty to file fresh suit on
the same cause of act ion. The third suit on the same cause of action could not have been
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barred by any principle, be it s 11 or O 2, r 2 or O 23 of the Code of Civil Procedure. Even

though the cause of act ion might have been based on the title of the suit land but after the
land was acquired under the provisions of the Land Acquisition Act, 1894, the plaintiff was
left with no choice but to file a suit for recovery. Assuming, the cause of act ion in both
the suits was based upon title in the suit land and was akin in all the cases, yet as referred
to above, in as much as the earliest, two suits were dismissed as withdrawn with permission
to file a fresh suit on the same cause of action, the third suit will not be barred by any
principle of law.61

The principle of these decisions has been extended to a plea set up in defence to a
previous act ion and it has been held that where the court declines to decide it reserving at
the same time the right of the defendant to put it forward in a separate suit, such a suit will
be barred;62 But where in a suit under s 33 of the UP Agriculturists Relief Act, the creditor-
defendant was held not entitled to put forward a certain claim, a suit by him to enforce
that claim is not barred as res judicata. 63

(j) When Explanation V Applies. Explanation V does not apply, unless the relief
claimed is : (i) substantial relief; and (ii) it is such as it is obligatory on a court to grant. We
proceed to consider these conditions in order.

(i) The relief claimed must have been substantial and not merely auxiliary.A sues B: (1) to recover her
share in the estate of D, claiming the same as D's widow; and (2) for a declaration that she
was lawfully married to D, a fact which B had denied. A decree is made by consent
awarding Rs 55,000 to A in full satisfaction of her claim against the estate of D. The decree
does not contain any declaration as to A's marriage with D. This circumstance will not bar
a subsequent suit by A as D's widow, against B, to recover her share in the estate of a
deceased relative; for the relief claimed in the former suit in respect of the legality of
marriage was not claimed as a specific or substantial relief. It was auxiliary to the principal
relief in respect of her share in the estate of D.64

(ii) The relief claimed must be one which is obligatory and not merely discretionary for the court to grant.
Cases under this head relate principally to mesne profits. It was enacted by s 244 of the
Code of 1882 that, nothing in this section shall be deemed to bar a separate suit for mesne
profits accruing between the institution of the first suit and the execution of the decree
therein, where such profits are not dealt with by such decree. That clause has been omitted
in the present Code of Civil Procedure, and under O 20, r 12, mesne profits subsequent to the
date of the suit are to be ascertained and provided for in the final decree.

A sues B for possession and for mesne profits both prior and subsequent to the suit. A
decree is passed in A's favour for possession. The decree is silent as to mesne profits.

In the case put above, there is no doubt as to mesne profits prior to the date of the suit, that
the plaintiff having claimed a relief in respect thereof and the relief not having been
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granted by the decree, the matter is res judicata and A cannot institute a fresh suit for such
profits.65

As to mesne profits subsequent to the date of the suit, it was held in cases under the Code of
1882, that it being discretionary with the court to grant such relief, the fact of the decree
being silent as to such mesne profits did not operate as a bar to a fresh suit.66 In cases under
the present Code, it has been held by the High Courts of Madras,67 Calcutta,68 Allahabad,69
Bombay,70 Orissa71 and Patna,72 that where in a suit for possession and for past and future
mesne profits, the court gives a decree for mesne profits up to the date of the suit and says
nothing about subsequent mesne profits, a fresh suit to recover subsequent mesne profits is
not barred under the present Code any more than under the Code of 1882. In the Madras
case, Wallis CJ said:

The word relief in the explanation means relief arising out of a cause of act ion which had accrued at the date of suit and on which the
suit was brought and did not include relief such as mesne profits accruing after the date of suit as to which no cause of action had then
arisen, but which the court was nevertheless expressly empowered to grant. The explanation having been reproduced in exactly the
same words, the presumption is that it was intended to have precisely the same effect. I do not find any sufficient indication to rebut
this presumption in the fact that ss 211 and 212 of the old Code were amalgamated to form O 20, r 12. The change introduced by the
new rule is that the award of mesne profits in all cases is to be by preliminary decree, and that when ascertained they are to be
embodied in a final decree, whereas under ss 211 and 212 they were to be ascertained in execution. This change does not appear to me
to affect the construction of explanation V to s 11, nor do I think it is effected by the omission in s 47 of the new Code of the proviso
to the corresponding s 244 of the old Code.

When a plaint in a mortgage suit contains a prayer for a personal decree, but the
preliminary decree is silent about it, the plaintiff is not precluded from applying for a
personal decree under O 34, r 6, for the balance of the mortgage claim after the sale of the
mortgaged property, as such a decree could not properly be passed until after sale.73 A suit
for specific performance of contract with an alternate relief of money decree was filed. The
court granted a decree for money and rejected a decree for specific performance. The
plaintiff not filing any appeal against the decree, but a subsequent suit involving the above
issue was filed later. It was held it was not barred by the principle of res judicata. 74

27. Section not exhaustiveprinciple of Res Judicata applicable apart from section.
The section is not exhaustive of the circumstances in which an issue may be res judicata.75
In Kalipada v. Dwijapada,76 the Privy Council quoted with approval a passage from the
judgment of Sir Lawrence Jenkins in Sheoparsan v. Ramnandan77 where his Lordship said
that the application of the rule by the courts in India should be influenced by no technical
considerations of form, but by matter of substance within the limits allowed by law. Again
in Hook v. Administrator-General,78 the judicial committee said that the plea of res
judicata still remains apart from the limited provisions of the Code, and referred to the
decision of the Board in Ram Kirpal v. Rup Kuari79 which held that the binding force of
an interlocutory judgment even in execution proceedings depends not upon the section of
the Code of Civil Procedure but upon general principles of law. The Privy Council have also
held that a decision on a dispute between rival claimants as to compensation deposited in a
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court under s 31 (2) of the Land Acquisition Act, 1894, operates as res judicata in a subsequent
suit between the same parties. Their Lordships said:

It has been suggested that the decision was not in a former suit, but whether this were so
or not makes no difference, for it has been recently pointed out by the Board in Hook v.
Administrator-General 80 that the principle which prevents the same case being twice litigated
is of general application, and is not limited by the specific words of the Code in this
respect.81

The Supreme Court has reaffirmed this view and observed that the principles underlying s
11 are that there should be finality in litigation and that a person should not be vexed twice
over in respect of the same matter and that these principles are applicable even when the
case does not fall within the strict terms of s 11.82 On this principle, it has been held that a
decision given by a court at one stage is binding on it at later stages.83 The decision given at
the earlier stage must be final.84 Thus, if the name of a party is struck off under O 1, r
10(2) as having been improperly joined a second application to join him as a party would
not be permissible; but, this would not be the case where there

is dismissal of the suit under O 9, r (5) since there has been no adjudication.1 Authorities
under the Consolidation of Holdings Acts perform judicial acts; hence their decisions at
each stage bind the parties for the purpose of subsequent stages.2 On the same principle, a
decision given on a part of the matter in controversy between the parties at an earlier stage
of the litigation would bar its re-agitation at a later stage.3 An order of remand made by a
court is binding on it and cannot be reopened when the matter comes before it after
remand;4 and, so when an appeal was presented in forma pauperis beyond the prescribed
period, and no objection was taken on the score of limitation when the appeal was
admitted, it was held that this objection was not available to the respondent at the hearing
of the appeal.5 The remedy of a party who is aggrieved by an order disallowing costs is to
appeal against it; and where that has not been done and the order becomes final, a suit for
costs is barred;6 but, an appeal to the Supreme Court makes the entire subject matter
available for adjudication including interlocutory orders passed either by the trial court or
the High Court. Such orders have only a provisional finality.7

Res judicata applies also between two stages in the same litigation. Where a court, (whether
a trial court or a higher court) has, at an earlier stage, decided the matter in one way, the
parties cannot re-agitate the matter at a subsequent stage of the same proceeding.8
However: (i) interlocutory orders which have the force of a decree and terminate the
proceedings, are distinct from (ii) those which are a mere step towards the decision of the
dispute between the parties, i.e. towards decision by way of a decree or a final report.9 An
order substituting the transferee of a decree in place of the original decree-holder was
passed on the plea of the judgment-debtor. It was held that the judgment-debtor could not
later take the plea that the transferee could not execute the decree. Res judicata applied.10
Where it is the general doctrine of res judicata that is to be applied, then the technical
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aspects of s 11, do not apply. Customary rights of a community, established by a decree of

a competent court operates as res judicata in subsequent proceedings.11 Application was
made for framing additional issues. Question in issue had been already considered and
decided when an amendment of the plaint was refused. Application for the additional issue
was held to be barred by res judicata.12

The principle of res judicata has been held applicable to decisions given under the UP
Agriculturists Relief Act,13 under the Madras Agriculturists Relief Act14 and under the East
Punjab Urban Rent Restriction Act.15 Decisions given in suits or proceedings under the Bengal
Money Lenders Act, 1940, would likewise be res judicata.16 So also, the decisions
determining liability to pay octroi under municipal rules.17

The question in this case before the Supreme Court was, whether a decision rendered by
an Assistant Settlement Officer in a previous proceedings, viz a suo motu inquiry under s 15
of Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act,
1948, would operate as res judicata in a subsequent proceedings initiated by one of the rival
claimant taking his claim as ryot under s 56 of the Act. In a proceedings under s 15,
settlement officer can grant a patta if he is satisfied that the landholder is entitled to it. He
can do not more than this. If the settlement officer does so, he oversteps the outer limits
of his jurisdiction and his decision is of no value because he does something beyond,
outside or in excess of the authority conferred on him by s 15. Any decision or order
beyond the scope of s 15 is totally without jurisdiction and cannot operate as res judicata.18
Under the scheme of Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion
into Ryotwari) Act, 1948, the tribunal was required to apportion the amount according to
the priorities depending upon the amount of compensation at the time of giving of the
direction in question. It was, therefore, only to be expected that the tribunal would first
give directions with regard to the payment of the principal amount and defer the payment
of interest to a future date to the claims. In these circumstances, the issue with regard for
interest in the subsequent application were not barred by res judicata.19 A person who
received compensation under the Land Acquisition Act, under protest and secured a
reference but was unsuccessful or partially successful, does come within the embargo
created by s 18 (1) of the Act and the second provision to sub-s (2) of s 31 and the non-
obstante clause in s 28 (A)(1) does not relive him from it. The doctrine of res judicata under
s 11 of the Code of Civil Procedure operates against such person.20 The word revised under sub-
s 1 of s 44 of the WB Estates Acquisition Act, 1953, indicates that the state government or
its officers shall be entitled to revise from time to time, the record of rights and to make
necessary entries or corrections in the relevant column of record of rights in its settlement
operations or as per exigency envisaged under the Act and the rules made therein. The
order under s 44 (3) becomes final, so long as there is no revision affected, the question of
res judicata, therefore, does not arise and the previous appellate order does not preclude the
authorities from revising the record of rights.21 The failure of the first plaintiff to claim the
benefit under the Cochin Proclamation or under s 5 of the Kerala Land Reforms Act
before the second preliminary decree was passed, is fatal; and he is precluded from raising
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the same contention in the proceedings for passing a final decree. The plaintiff, having
failed to raise a defence which was available to him at the time of passing a preliminary
decree, is precluded by principles of constructive res judicata from raising the same defence
in the final decree proceedings.22

The principles of res judicata are also applicable to petitions under Art. 3223 and under Art.
22624 even when the prior decisions have been given in writ proceedings in other courts,25
provided they are on the merits.26 Dismissal of a writ petition under Art. 32 by the
Supreme Court even if in limine and without any speaking order where such dismissal is not
on the ground of laches must be presumed to be on the ground that no fundamental right
was violated and would bar a similar petition under Art. 226.27In Hindustan Twyfords Ltd. v.
Daulat Ram,28 the Punjab High court held that a decision in an earlier writ petition under
Art. 226 could not bar a subsequent civil suit even though the question raised in the suit
was based on the same right claimed in the writ petition. In another case, however, the
same High Court said that in view of Daryoo v. State of Uttar Pradesh 29 the general principle
of res judicata would be attracted where a decision in a writ petition is pleaded as a bar
against a subsequent suit if the other conditions are satisfied.30 The question before the
Supreme Court was, whether the dispute relating to dismissal of an employee decided by
the Deputy Registrar of Madhya Pradesh, Co-operative Societies Act, could be re-agitated
before a labour court under the Industrial Disputes Act, 1947. It was held, that no doubt s 11
of the Code of Civil Procedure does not in terms apply to Deputy Registrar of Madhya Pradesh,
Co-operative Societies Act because it is not a court, but a tribunal constituted under the
Societies Act is given special jurisdiction. So, the principles laid down thereunder mutatis
mutandis squarely apply to the procedure provided under the Act, hence, operates as res
judicata.31

The decision in Hindustan Twyfords case must be considered as not correct in view of Gulab
Chand v. State of Gujarat 32 where the Supreme Court observed that there was no good
reason to preclude such decision on matters of controversy in writ proceedings under Arts.
226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the
same matters in controversy between the same parties.33 Where a writ petition has failed
and the petitioner therein has not been given leave to appeal to the Supreme Court the
dismissal of the writ petition by the High Court would bar a subsequent writ petition on
the same grounds.34 Where a writ petition was filed at an intermediate stage of
administrative proceedings against the petitioner, but was dismissed, such dismissal was
held not to be a bar against another writ petition filed after the termination of the
proceedings.35 In this case, the Supreme Court had given permission to file the subsequent
petition; but, such permission would not have been granted if the earlier dismissal was a
bar against a subsequent petition. It is only the issue raised in a prior petition to which the
principle of res judicata would apply if raised in the subsequent petition. Thus, where no
plea was raised as regards the validity of dismissal from service on the ground of
incompetence of the dismissing authority, it would be competent for the party to raise it in
a subsequent suit.36 There is no bar of res judicata to a petition under Art. 32 in a case where
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the High Court has earlier dismissed a petition under Art. 226.37 The general principle of
res judicata has been applied to petitions for habeas corpus.38 (But see S.P. Sharma v. Union of
India).39 The principle of res judicata has been applied to adjudications by industrial tribunals
in a large number of decisions.40

The Supreme Court in some if its recent decisions has expressed doubt about the
extension of the sophisticated doctrine of constructive res judicata to industrial law which is
governed by special methodology of conciliation, adjudication and considerations of
peaceful industrial relations where collective bargaining and pragmatic justice claims
precedence over formalised rules of decision based on individual contests, specific causes
of action and findings on particular issues.41 In NR Co-op Society v. Industrial Tribunal,
Rajasthan,42 the Supreme Court has, however, held that the decision of the High Court
holding that the dispute in question was an industrial dispute would operate as res judicata in
a subsequent proceeding. In Workmen v. Straw Board Mfg Co,43 the Supreme Court assumed
that the general principle of res judicata would apply to industrial adjudications. In Punjab
Co-op Bank Ltd. v. RS Bhatia,44 the Supreme Court held that a finding by the labour court
on the question whether the respondent was a workman or not would be a bar to the same
issue raised in a subsequent proceeding under the Industrial Disputes Act, 1947. The recent
trend in the decisions of the Supreme Court appears to be in favour of the view that the
general principle of res judicata would apply to industrial adjudications. Where the question
was as to whether a person is or is not a workman as defined in the Industrial Disputes Act,
1947, a decision therein by the tribunal is not res judicata in subsequent proceedings under
Payment of Wages Act, 1936.45 The general principle of res judicata has been extended to
proceedings under other statutes, such as Santhal Parganas Settlement Regulation 3 of
1872 under s 11, of which a decision by the settlement officer has the force of a decree46
and operates as a decision of quasi-judicial authorities.47

While thus, the law is settled that the principles of res judicata can be applied to cases which
do not fall within the four corners of s 11, it is equally well-settled that where a case does
fall within its scope, the conditions laid down therein must be strictly complied with and
that, if they are not, it is not permissible to hold that the matter is res judicata on general
principles, as that would render the section nugatory; but, in cases where neither of the two
proceedings or only one of them is a suit, the general principle of res judicata shorn of the
limitations of this section, is to be applied.48Section 11 prescribes the conditions under
which the decision in a suit can be res judicata and where it fails to satisfy those conditions,
it cannot be held to be res judicata on general principles.49 So when the prior suit was tried
by a court not competent to entertain it, its decision could not be held to be res judicata on
general principles.50 The rule that a decision on jurisdiction in a suit does not operate as res
judicata applies also to decisions by administrative tribunals.51 When findings of a rent
controller are allowed to become final, tenant is barred by principal analogous to res judicata
to take a contrary stand in subsequent proceedings.52 When the first respondent retired
from government service, the state moved the prescribed authority under the Act for an
order of eviction under s 5 of UP Public Premises (Eviction of Unauthorised Occupant)
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Act, 1972. On 22 March 1978, the prescribed authority passed an order for eviction
dismissing the application by observing that it is not possible to hold that the house in
question is public premises or that the opposite party is unauthorised occupant of it. After
the said order, the appellant sent notice to the first respondent determining the lease, and
on the expiry of the period specified in that notice, the appellant moved a fresh application
under s 4 of the Act, before the prescribed authority, even this time the application
dismissed on the principle of res judicata in that earlier order dated 22 March 1978, would
operate as barred against the appellant from seeking eviction of the first respondent under
the provisions of the said Act.

As per the order dated 22 March 1978, the prescribed authority found that the building
belonged to the government estate and that there was no evidence that the tenancy was
terminated before filing the application. In the present proceedings, there was no dispute
that the notice was subsequently served on the first respondent determining the lease. If
so, can the respondent be treated as an unauthorised occupant even if it is true that the
building belongs to a government estate. It was held that there is no question of any bar of
res judicata on the strength of the order dated 22 March 1978, particularly because there was
a finding in that order that the building belonged to a government estate.53Section 15 of
Kerala Buildings (Lease and Rent Control) Act is a provision specifically incorporated to
ensure finality of the decisions once rendered under the Act and to prohibit re-opening of
such decisions which had become final. The object of this provision and that of s 11 of the
Code of Civil Procedure was more or less the same, namely that there should be end to
litigation and no man should be vexed twice over for the same cause.54 Once the question
of stay of the proceedings before the debt recovery tribunal having been agitated before
the tribunal and having been already decided by the tribunal against the petitioner, it could
not be re-agitated at the instance of the Petitioner by a separate application. A person
cannot be allowed to agitate the same matter again before the same tribunal.55 The Gauhati
High Court, relying upon Guda Vijayaluxmi v. Guda Ramchandra Sekhara Sastry 56 held that
the principle of res judicata applies in certain cases also in a matter under the Hindu Marriage
Act.57 When the only son of the first wife accepted for a long time twofifth share as a
rightful share in the land in one village, and the Deputy Director of Consolidation, ordered
accordingly, that decision becomes res judicata, it has to be so for all intents and purposes in
the second village as well.58 The question of maintainability of the eviction petition on the
ground of non-compliance of the statutory provisions as aforesaid was not heard and
decided by the court. It was rather ordered to be considered alongwith other issues. It was
held that the principle of res judicata does not apply.59 Where the respondentclaimant was
neither a party to previous proceedings under Motor Vehicles Act, 1939, and nor he was
impleaded in the previous proceedings, and as there was non-compliance of specific
provisions contained in the proviso to s 110 A(I) to the effect that the person who has not
joined the application in a claim for compensation, shall be impleaded as respondents, then
the judgement in previous proceedings cannot operate as res judicata as against him.60
Where a complaint under the Advocates Act, 1961 filed by a client against his advocate
alleging that the advocate was negligent in discharge of his duties qua the client and had
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failed to act with due diligence and promptitude, was dismissed by the State Bar Council
and its decision was affirmed by the Bar Council of India by a speaking order on merits,
the decision of the Bar Council of India would operate as res judicata in the subsequent civil
suit filed by the client against the advocate claiming damages on ground that the advocate
was negligent.61

The expression former suit does not exclude the application of the rule when suits are tried
together. (See note Suits tried together : One judgment above.)

The general principle of res judicata has been extended to proceedings in a probate court,
interlocutory orders in the same suit, proceedings under the Madras Religious Endowments
Act, applications under s 26 F of the Bengal Tenancy Act,62 judgments under the Land
Acquisition Act63 and to awards made under the Arbitration Act, provided the subject matter
is the same in both the earlier and the later reference.64 An award by an arbitrator is valid
and binding until it is set aside and will operate as res judicata in subsequent proceedings
between the same parties either in court or in a later arbitration proceeding.65 The question
whether the principle of constructive res judicata applies to arbitration proceedings, is not
yet settled. However, if an arbitrator decides not to go into a dispute on the ground that he
has no jurisdiction, a subsequent reference on that dispute is not barred;66 but, the
principle, though widely extended, does not apply to Orders made in exercise of
administrative power.67 Nor can it be invoked where a statutory provision such as s 64 A
of the Andhra Pradesh Estates Abolition Act lays down cases wherein it is to be applied.68
(For execution proceedings, see comments on Orders in Execution Proceedings below.)

28. Probate proceedings. When a question of the relationship of parties has been
decided in a probate proceeding, a subsequent suit between the same parties involving the
same question is barred by the rule of res judicata, although the words of the section are not
strictly applicable. This was decided by the Privy Council in the case of Kalipada v.
Dwijapada 69 confirming a decision of the Calcutta High Court70 and approving that courts
dissent from previous decisions to the contrary.71 The under-noted cases72 though not
expressly mentioned, must be treated as overruled. Any order passed after contention in a
probate proceeding is res judicata in any subsequent proceeding against the caveators who
contested it.73 In a Bombay case,74A, alleging himself to be the executor of B's Will applied
for probate of the will, but C, B's widow, opposed the application and the probate was
refused on the ground that the Will was not proved. C then sued A to recover her
husbands property and A was precluded from contending that he was entitled to
possession as B's executor. The court observed that though the judgment of the probate
court refusing probate to A does not operate as a judgment in rem yet it operates as res
judicata between A and C under s 83 of the Probate and Administration Act, 1881 (now
replaced by s 295, Indian Succession Act, 1925, read with s 11 of the Code).

A decision on a question of relationship in a proceeding on an application for letters of

administration after trial of an issue is binding as res judicata in a subsequent suit between
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the same parties.75 Conversely, the opinion expressed by the ordinary civil Courts on the
question of genuineness of a Will is not res judicata in proceedings for probate or letters of
administration-cum-testamento annexo in courts having exclusive jurisdiction to grant the
same.76 It is not within the province of a probate court to decide questions of title to
properties disposed off by the Will and consequently, where an application for letters of
administration was dismissed under O 17, r 1 for non-appearance of the applicant, the
expression of an opinion by the court on an issue as to estoppel with respect to the title to
the properties would not be res judicata on the rights of the parties thereto.77

29. Succession Proceedings. Sections 372 of the o384 of the Indian Succession Act, 1925
deals with issuance of succession certificates and require that the question arising under
these sections should be determined by summary proceeding. By summary proceeding, it is
meant that the court should decide the question by a short inquiry leading upto and
resulting in a rapid decision. The nature of this inquiry must depend on circumstances of
each case. Thus, where the court feels that the question involved is not capable of decision
in summary proceeding under the Indian Succession Act, 1925, it can leave the parties to
establish their rights in a regular suit. Section 387 of the Act also enables the unsuccessful
party to file a suit. The proceeding for grant of succession certificate being summary in
nature, the finding arrived at in the said proceeding cannot operate as res judicata in
subsequent proceeding.78

The findings recorded regarding will, in an application for grant of succession certificate,
cannot operate res judicata in subsequent suit by the same applicant praying for mandatory
injunction against the defendant, that the defendant be directed to supply him locker
number obtained by the defendant on the basis of the alleged will as set up by the
defendant, giving him the right to operate the locker. The fact that the issues were raised
and evidence was recorded in the succession certificate proceedings is not relevant.79

30. Orders in Execution Proceedings and Explanation VII. Prior to the insertion of
explanation VII into the section by the Amendment Act, 1976, it was well-settled that
though the section in terms did not apply to execution proceedings and the orders made
therein the general principle of res judicata; which is apart from the provisions of the
section, applied, and that therefore, an order made in an execution proceeding bound the
parties and those claiming through them and operate, as res judicata in a subsequent
execution proceeding or a subsequent suit between the same parties. The new explanation
VII does two things: (i) it applies in express terms the provisions of this section to
execution proceedings; and (ii) provides an artificial construction by laying down that
references in the section to any suit, issue or former suit shall be construed as references,
respectively, to a proceeding for the execution of the decree, a question arising in such
proceeding and the former proceeding for the execution of the decree. Two results would
follow:
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(i) that in view of the express extension of the section to execution proceedings, the
general principle of res judicata which used to be invoked apart from the provisions
of the section can no longer be invoked; and
(ii) that the conditions for the application of the section set out earlier, must be
satisfied. Such a compliance was also held to be necessary in a number of decisions
which applied the general principle of res judicata to execution proceedings.

The leading case on the application of the general principle of res judicata to execution
proceedings and from which the later decisions stem is Ram Kirpal v. Rup Kuari, 80 decided
in 1883 by the Privy Council. The principle therein laid down was that this section was not
exhaustive and that the principle of res judicata still remained distinct from the limited
provisions of the section. Prior to that decision, the judicial opinion generally was that s 13
of the Code of Civil Procedure 1882 (corresponding to the present section), was not applicable
to execution proceedings, presumably because the application of the section was confined
to suits. The Privy Council held that though the section in terms did not apply to execution
proceedings, the principle of res judicata applied to such proceedings. The question in that
case was whether a decision in the course of execution proceedings, that the decree which
according to its true construction awarded future mesne profits, operated as res judicata so as
to preclude the court from trying the question over again at a subsequent stage of the
proceedings. The High Court of Allahabad held that it did not. The Privy Council reversed
that view and observed:

The matter decided by Mr Probyn was not decided in a former suit, but in a proceeding of
which the application in which the orders reversed by the High Court were made was
merely a continuation. It was as binding between the parties and those claiming under
them as an interlocutory judgment in a suit is binding upon the parties in every proceeding
in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment
into execution. The binding force of such a judgment depends not upon s 13, Act 10 of 1877 (s 11 of
the present Code), but upon general principles of law. If it were not binding, there would be
no end to litigation. The parties were bound by the decision of Mr Probyn, who, whether
right or wrong, had decided that it did (that is, that the decree awarded future mesne
profits): a decision which, not having been appealed, was final and binding upon the
parties and those claiming under them.

The ratio decidendi of Ram Kirpal’s case is that if a particular construction is put on a
decree in proceedings on a former application for execution, it is not competent to the
court to treat that construction as erroneous and put another construction on it as a
subsequent stage of the execution proceedings.81 Parties cannot raise a second time, in the
same suit or execution proceedings an issue that has already been determined either
expressly or by necessary implication.82 This is so even if the question is about jurisdiction
of the court.83 The judicial committee held in Mungul Pershad v. Girja Kant,84 that a decision
on an application for execution after hearing both the parties that the application is not
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barred by the law of limitation, though erroneous, is binding on the parties in subsequent
proceedings in execution. Their Lordships said:

The order was made by a court having competent jurisdiction to try and determine
whether the decree was barred by limitation. No appeal was preferred against it...Admitting
for the sake of argument, but only for the sake of argument, that the decree was barred
when the...application was made,...still his order, though erroneous, was valid, not having
been reversed.

Similarly, a decision that an application for execution is barred by limitation, though

erroneous, is conclusive between the parties and the question cannot be re-tried on a
subsequent application for execution,85 but not the decision of the transferee court, after it
had sent a return of non-satisfaction on the ground that it had been functus officio. Where
the judgment-debtors did not raise any objection as to limitation against execution of the
decree against them nor to the revival of the execution proceedings, they would be
debarred at a subsequent stage to challenge the sale on the ground that the revival was
bad.86 A decision by the execution court on the question of the liability of the property of a
judgment-debtor for attachment and sale will be res judicata and binding on the parties.87

The principle laid down in Ram Kirpal’s case referred to above is that when a question has
been raised in an execution proceeding and decided, the decision, even if erroneous, is
binding on the parties, and the same question cannot be retried in subsequent proceeding
in execution or in a subsequent suit between the same parties;88 in other words, that the
principle of res judicata is applicable to proceedings in execution. This principle has been
followed by the High Courts of India.89 The question of constructive res judicata in
execution proceedings came before the Supreme Court in Mohan Lal Goenka v. Binoy
Krishan Mukherjee 90 wherein the Honble Supreme Court following the earlier decision of
Privy Council held that the principles of constructive res judicata will be applicable even in
execution proceedings;91 but, this principle does not apply, unless the parties to the
subsequent proceeding were also parties to the former proceeding92 and had litigated under
the same title.93 Nor does it apply, unless the former application was heard and decided.
Hence, an order dismissing an application for execution for default of appearance,94 or
allowing it to be struck off for the present,95 or allowing it to be withdrawn with liberty to
present a fresh application,96 is no bar to a fresh application for execution. Similarly, where
an application for execution under O 21, r 32 is dismissed on the ground that the decree-
holder had not given the judgment-debtor an opportunity of obeying it, a second
application for execution after such opportunity had been given is not barred as res
judicata;97 but, dismissal of an execution application for default of appearance by the
decree-holder after a notice to the opposite party who appears in response to it, would
amount to abandonment and bar a subsequent application.98 On the other hand, where the
judgment-debtor despite of notice under O 21, r 66 absents himself and this does not raise
any objection to the sale, he would be barred at a subsequent stage
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to raise such objections against the sale which were available to him and which he might
and ought to have raised.1

There can be no doubt that when an application for setting aside the sale is made, the
order passed by the executing court either allowing or dismissing the application, will be
final and effective, subject to an appeal that may be made under the provisions of the Code
of Civil Procedure. It is inconceivable that even though no appeal has been filed against an
order dismissing an application for setting aside the sale, another application for setting
aside the sale can be made without first having the orders set aside. Such an application
will be barred by the principle of res judicata.2 An order for arrest of the judgment-debtor
made after notice to him and inquiry has been held to mean a finding that he has had since
the date of the decree means to pay. That finding is binding in a subsequent proceeding.3
Further, the decision in the former application must have been necessary for the
determination of the application. Thus, if A applies for execution, and B pleads limitation,
and neither party appears on the date fixed for the hearing of the objection, and or, A's
application is dismissed and B's objection is disallowed, B is not precluded from raising the
plea of limitation on a fresh application for execution made by A, the reason being that
A's application being dismissed for default, it was not necessary for the court to decide the
question of limitation.4 Where the execution case is dismissed for default after the failure
of the judgment-debtor to show cause after a notice under O 21, r 22 had been served on
him and an order is passed which had the effect that the decree was now capable for
execution.5 Where without adopting the special procedure prescribed in O 21, r 53, a
money decree was sold in execution and the auction-purchaser applied to execute the
decree, and his application was ordered after hearing the judgment-debtor, it is not open to
the latter at a later stage to raise the objection as to the validity of the sale as the same must
be deemed to be constructively res judicata.6 Where a judgment-debtor filed a petition
objecting to execution on the ground that it was barred by limitation and that was
dismissed for default and an application to restore the same was also dismissed, he is
barred by principles of res judicata from raising the question of limitation in a fresh
objection petition.7 But, where, in the execution proceedings, an application for reviewing
of shares of parties in the property as determined in preliminary decree for partition of suit
property is rejected by the executing court on the ground that it had no jurisdiction to
modify the decree, the subsequent fresh application by the parties for modification of
judgment and decree filed before the court which passed the judgment is not barred by res
judicata.8

(a) Constructive Res Judicata in Execution Proceedings. Where an assignee of a decree applied for
execution under O 21, r 16, and the judgment-debtor took no objection to the validity of
the decree, it was held that he was not debarred on the principle of explanation IV from
impeaching the validity of the decree in a subsequent suit;9 but, the principle of
explanation IV has been applied to a subsequent stage of the execution proceeding. Thus,
if the judgment-debtor, being entitled and having an opportunity to raise a plea in bar of
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execution, e.g. a plea of limitation, fails to do so and execution is ordered, he will be

precluded from raising the same plea at a subsequent stage of the execution proceedings10
unless the case falls within the rule that there cannot be an estoppel against statute.11
Where a plea of limitation was raised and subsequently given up, the judgment-debtor was
held to be precluded from raising the same at a later stage.12 The same rule would apply to
the case where the decree-holder fails to raise a question which would have sustained his
attachment but which he did not raise in the former execution proceedings where
objection to the attachment was taken by the judgment-debtor.13 His legal representative
who did not have proper notice of the execution proceedings would not be so precluded
on the ground that he had no opportunity to raise the plea.14 Also, where A applies for
execution of a decree against B, and an order is made directing execution to issue, B cannot
in a subsequent application for execution raise the plea that the first application for
execution was barred by limitation.15 Where the heirs of a deceased judgment-debtor were
brought on record and orders passed directing execution and transferring the proceedings
to another court, it was held that it was not open to the legal representative to challenge
the correctness of those orders at a later stage of the execution.16 Again, when a judgment-
debtor objected in an execution proceeding that an attachment was not legal and proper,
only because the decree was declaratory, it was not open to him to object to the sale on the
ground that the property was not liable under s 60 to attachment and sale.17 An order for
sale after service of notice to the judgment-debtor implies the finding that the property was
saleable. It is not then open to the judgment-debtor, whether before or after the sale, to
object that the property is not saleable by reason of s 49 (M) of the Bihar Tenancy Act.18 If
the decree has been executed on previous applications, the judgment-debtor cannot in a
subsequent application object that the decree is merely declaratory.19 An objection to
execution on the ground that the decree sought to be executed is a nullity is one which the
court executing it can decide and if such an objection is not taken and there is an order
directing execution, the question is res judicata and it is not open to the judgment-debtor to
raise the objection at a later stage.20 When properties are sold in execution of a decree in
contravention of some provisions of law, the question has been raised whether the
judgment-debtor is barred by principles of res judicata from raising the question of the
validity of the sale subsequently. The preponderance of judicial opinion is in favour of the
view that he is barred.21

The principle of res judicata including constructive res judicata operates in execution
proceedings and the order made under r 22, cll (1) and (2) of O 21, Code of Civil Procedure,
which results in closure of preliminary stage and commencement of next stage operates as
res judicata, and precludes the judgment-debtor from raising objections to continuance of
proceeding thereafter unless such order is appealed against as a decree. Order 21, r 22
culminates in end of one stage before attachment of the property can take place in
furtherance of execution of decree. The proceedings under O 21, r 23 can only be taken if
the executing court either finds that after issuing notice under O 21, r 21 the judgment-
debtor has not raised any objection or if such objection has been raised, the same has been
decided by the executing court. The sub-r (1) as well as sub-r (2) under O 21, r 22 operates
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simultaneously on the same field. Sub-rule (1) operates when no objection is filed, and
then the court proceeds and clears the way for going to the next stage of the proceedings,
namely, attachment of the property and if the court finds objections on record then it
decides the objections in the first instance and thereafter clears the way for taking up the
matter for attachment of the property if the objections have been overruled. Whether the
order is made under sub-r (1) or sub-r (2), it has the effect of determining the preliminary
stage before the attachment process is set in motion. In this background, the order of the
court to proceed with attachment on finding that no objection has been raised also
operates as an order deciding the preliminary stage of the execution proceedings and
operates as if the judgment-debtor has no objection to file. If thereafter, the judgment-
debtor wants to raise an objection in the same proceedings in the absence of any
modification of order passed under O 21, r 22, sub-r (1) or (2) he has to take recourse to
get rid of the order by way of appeal. If it has not been agitated and since the order for
proceeding by the judgment under O 21, r 22 amounts to a decree under s 47 of the Code of
Civil Procedure and is appealable as a decree, i.e., to say it is not an appeal against the interim
order but an appeal against the decree which is provided against the final order only means
that at the different stages of the execution orders passed by the executing court have been
attached finality, unless they are set aside by way of appeal before the higher forum, else,
they bind the parties at the subsequent stage of the execution proceedings so that the
smooth progress of execution is not jeopardised and the stage which reached the finality
by dint of various orders of O 21 operates as res judicata for the subsequent stage of the
proceedings. Since the order passed at different stage itself operates as decree and
appealable as such, the same cannot be challenged in appeal against subsequent orders
also, because appeal against an order passed under O 21, r 22 does not fall as appeal
against order at initial stage but amounts to a decree finally determining the question. That
is why no appeal against orders made under O 21 have been provided under O 43. In this
background where a judgment-debtor has an opportunity to raise objection which he could
have raised but failed to take and allowed the preliminary stage to come to an end for
taking up the matter to the next stage for attachment of property and sale of the property
under O 21, r 23 which fell within the above principle, the judgment-debtor thereafter
cannot raise such objections subsequently and revert back to earlier stage of proceedings
unless the order resulting in termination of preliminary stage which amounts to a decree is
appealed against and order is set aside or modified.22

In execution of a decree for eviction against a tenant, in a proceeding under O 21, r 27, the
executing court held that the sub-tenant had become direct tenant under the landlord, in
view of s 20 of the Delhi and Ajmer Rent Control Act, 1952. The said order was neither
challenged in appeal or revision, nor any suit was filed for setting aside the order. It was
held that the order had become final and was binding on the tenant. In a subsequent suit
filed by the tenant for eviction of the sub-tenant, it could not be contended that the order
was a nullity and should, therefore, be ignored. Merely because the executing court had
wrongly applied the provisions of s 20 of the Delhi and Ajmer Rent Control Act (which stood
repealed), it did not mean that the order passed by the executing court was a nullity. The
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executing court had the jurisdiction to decide the application submitted by the decree-
holder under O 21, r 97 of the Code of Civil Procedure. The mere fact that while deciding the
said application the executing court acted wrongly, did not mean that the said order of the
executing court was without jurisdiction and a nullity.23 If an application under O 21, r 97
has been decided on the merits after adjudication and determination of the questions
involved in O 21, r 101 of O 21, Code of Civil Procedure as also other grounds raised in the
application, then of course, that would furnish a ground for the application of the principle
of constructive res judicata, but if it is not adjudicated and determined after due application
of mind, the order passed on such an application does not acquire the character of a
decree. The dismissal of the application under O 21, r 97 of the Code of Civil Procedure
passed on the request for withdrawal of the application, cannot acquire the character of a
decree and, therefore, the principle of constructive res judicata cannot be made applicable to
such proceedings.24

Where a transferee court had returned the execution papers to the court which passed the
decree with a certificate of non-satisfaction and thereafter the decree-holder filed a fresh
application for execution in the transferee court itself and no objection was taken by the
judgment-debtor on the ground that there had been no fresh order transferring the decree
for execution, it was held that such an objection could not be taken at a later stage of the
execution.25 Similarly, a decree-holder would be precluded from raising an objection that a
non-satisfaction, certificate was not sent to the transferor court even though infact such
certificate had not been sent.26 The principle of constructive res judicata will apply even
when a question of jurisdiction is involved and a contention therefore that the executing
court had no jurisdiction to execute the decree will, if not taken at earlier stages, not be
open to the judgment-debtor later.27 Where the judgment-debtor resisted execution on the
ground that he was entitled to protection under a Rent Act and that was overruled, it is not
open to him in a subsequent execution application to raise the plea that civil courts had,
under the provisions of the said Act, no jurisdiction over the matter.28 A decision that the
decree is executable not only against the property charged, but also against other properties
will be res judicata at later stages of execution.29

Where the amount claimed by the decree-holder in his execution petition is more than
what is due to him on the terms of the decree, the judgment-debtor is not barred by
principles of constructive res judicata from raising the question of the correct amount due
by reason of his failure to object to the amounts claimed at the earlier stages.30 To hold
otherwise would be to recognise a power in the execution court to supersede the decree by
its own orders.31 It is really a case for the court to correct what is clearly a clerical mistake.
Where the point is something more than a mere calculation of interest in terms of a decree
and involves judicial determination of the rights of the parties as for example liability for
mesne profits, interest and the like, different considerations might arise and where a decree-
holder had not claimed interest in his execution application and it was dismissed, part-
satisfaction being recorded, it was held that he was barred from claiming interest in a
subsequent application;32 but, a judgment-debtor himself has been held not to be
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precluded by principles of constructive res judicata from disputing his liability to pay interest
on the ground of his failure to object to it at earlier stages when the principal amount still
remained payable.33 After a decree was scaled down under the provisions of the Madras
Agriculturists Relief Act, 1933, it is not open to the judgment-debtor in answer to an
application for execution subsequently filed by the decree-holder to plead payments alleged
to have been made prior to the scaling.34 The under-mentioned cases35 contain
observations to the effect that explanation IV should not be extended to execution
proceedings and that an order made in execution proceedings should not have the force of
res judicata unless the point raised in a subsequent proceedings was actually raised in the
former proceedings and decided. The Allahabad High Court has held that the principle of
constructive res judicata is not applicable in execution proceedings unless the prior
execution application has been infructuous, i.e. unless the decree holder by that application
has obtained some relief which the judgment-debtors objection in the subsequent
application would, if successful, have prevented him from obtaining.36 Having regard to
the observations of their Lordships of the Privy Council in Ram Kirpal’s case, it is
submitted that there is no reason for limiting the scope of the application of the principle
underlying this section to execution proceedings, subject ofcourse to the conditions set out
in the section. This question has since been considered in a number of decisions and the
view has generally been accepted that the bar of res judicata will apply even if the execution
application was infructuous, provided the other conditions are satisfied.37

Where the question whether the award of interest to the decree-holder was governed by s
34 of the Code had been decided in the suit, it is not open to the judgment-debtor to re-
agitate that question in the course of execution proceedings.38 So also, where a question
whether a particular plot of land was ryoti or not was in issue in the suit and a decree was
passed on a finding that it was not ryoti, it is not open to the judgment-debtor in
proceedings in execution for the sale of the land to raise the contention that it was not ryoti
land, the sale of which is prohibited by ss 46 and 47 of the Chota Nagpur Tenancy Act;39
but, this principle would not apply to the case of a successful judgment-debtor against a
finding adverse to him since he had no right to challenge such a finding in appeal.40

Though the said explanation may not stricto sensu apply to the trial stage, the principle
couched in it must gain application thereto. It is immaterial that the writ petition was filed
only subsequently because the findings made therein became final as no appeal was filed
against the judgement. The basic idea in the rule of res judicata has sprouted from the
maxim nemo debet bis vexari pro una et eadem causa. The principle of res judicata can be invoked
not only in separate subsequent proceedings, they also get attracted in subsequent stage of
the same proceedings. Once an order made in the course of proceeding becomes final, it
would be binding at the subsequent stage of that proceeding.41 When once a decree is
passed, it is obvious that the defendant in the suit, or the judgement- debtor would be
precluded from carrying on blasting operations in his property. To say, when he is
succeeded by other, they would be bound by the restraint relating to the enjoyment of the
particular property, is to derogate from the principle of public policy and that there shall be
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no second litigation in respect of the same right and the same property. It cannot be the
policy of law that every time an assignment of the decree of the schedule property takes
place, the decree-holder should institute a fresh suit against the assignee so as to prevent
him from disobeying the decree obtained by the decree-holder against the original owner
of the property.42

When along with application under O 9, r 13, Code of Civil Procedure, an interim application
is filed by judgment debtor for stay of execution proceeding, another application seeking
stay of execution of decree was filed earlier by judgment debtor and was dismissed by the
court and the said order had attained finality, the subsequent interim application in
question would be hit by doctrine of res judicata.43

It is clear that it is not that once a person is detention in civil prison, he cannot be
proceeded with on second occasion for the fresh breach of injunction committed by him.
Each breach is independent and is act ionable in law. Merely by putting a person in civil
prison the decree does not get wiped out or satisfied. The court of execution cannot apply
the doctrine of constructive res judicata and hold that the judgment-debtor cannot be
imprisonment on second occasion.44

(b) Ex parte Orders. An ex parte order in execution proceedings passed after issue of notice
and after the court is satisfied that the notice was served, is on general principles, binding
as res judicata where the order would necessarily imply that the decree is capable of
execution;45 but, the order will not have the force of res judicata if no notice is issued;46 or if
the notice is not duly served,47 or if the notice does not clearly specify the nature of the
claim.48 An order in an execution application which prays for a relief not granted by the
decree49 is not res judicata, nor an order on an application of the decree-holder to sell
properties not mentioned in the execution petition,50 unless the judgment-debtor had
specific notice of the matter or knowledge thereof. An ex parte order that an application for
execution is in time, will not operate as res judicata.51 If the judgment-debtor omits to
appear on notice under O 21, r 22, he will not be debarred from objecting in a subsequent
execution application that the prior application was not in the form prescribed by law and
did not afford a starting point for limitation.52 Where no notice was issued to the
judgment-debtor under O 21, r 22, but one was served for settlement of sale proclamation
under O 21, r 66, and he did not appear, it was held that he was not barred from raising
the contention that the property was not saleable under s 60 as that was not a matter for
decision under O 21, r 66;53 but, it has been held that when a judgment-debtor who has no
notice under O 21, r 22, is subsequently served with notice in the execution application
and fails to take objection that he had not been served with notice under O 21, r 22, he is
barred from raising that objection thereafter.54 Where a judgment-debtor who was served
with notice under O 21, r 22 did not appear to show cause why the decree should not be
executed and where an order for execution was made under r 23, it was held that he was
barred from raising thereafter the plea that execution was barred by limitation.55
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Notice of intended execution was issued to the judgment-debtor under O 21, r 22 of the
Code of Civil Procedure. The court passed an order under O 21, r 23(1), directing attachment.
Judgment-debtor did not appeal against the above order. It was held that the order
operated as res judicata and the judgment-debtor could not later file an independent
application raising the objection of limitation.56

Dismissal of a suit for default cannot operate as res judicata, though, in such circumstances,
O 9, r 9 bars a fresh suit.57

A judgment-debtor who does not claim exemption under s 60 (1)(c) when he receives
notice of attachment, cannot claim such exemption at the time of proclamation of sale.
Constructive res judicata applies under s 11, explanation IV in such circumstances.58

(c) Consent Orders. An order made by consent of parties in an execution proceeding is as

binding on the parties as an order after a contentious trial.59

Notice to show cause under O 22, r 22 was made absolute and an order for execution
passed under O 21, r 23(1). It was held that subsequent objection by the defendant, that
the decree was a nullity, was barred by res judicata. The same position was obtained even
before the insertion of explanation VII to s 11, on the principle of constructive res judicata.
Where a consent decree is sought to be challenged on the grounds of contravention of O
23, r 3, the only remedy is an appeal against the decree.60

It is clear from the discussion above that right from the date of the Privy Council decision
in Ram Kirpal v. Rup Kuari 61 the courts have consistently applied the principles of res judicata
to proceedings in execution including the principle of constructive res judicata embodied in
explanation IV. There are also a number of decisions wherein it has been held that before
the principle was applied it had to be seen that the conditions laid down in the section
were satisfied. What the new explanation VII, therefore, does is to do legislatively what the
courts had hitherto done judicially. The decisions so far rendered in regard to proceedings
in execution would therefore, still have validity.

(d) Interlocutory Orders. In Ram Kirpal v. Rup Kuari above, the Privy Council said that upon
general principles of law, interlocutory judgment in a suit is binding upon the parties in
every proceeding in that suit. A decision in an administration suit as to the validity of a gift
will be res judicata in a subsequent proceeding in the same suit.62 Where a defendant
government takes a plea in a notice of motion of its being a sovereign foreign state but that
plea is rejected at the hearing of the notice of motion, the same plea cannot be re-agitated
subsequently at the time of the hearing of the suit.63 In a Lahore case,64 the court ordered
an agreement to refer to arbitration to be filed. A party applied that the reference should
be cancelled as the court had no jurisdiction. The court decided that it had jurisdiction and
dismissed the application. The party was debarred from raising the same point as an
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objection to the award. Where a court orders attachment of properties before judgment
after satisfying itself that there are sufficient grounds therefore, and that order has become
final, an application for compensation under s 95 of the Code of Civil Procedure is barred on
general principle of res judicata, but in order to have that effect, it must have been passed
after notice and on the merits.65 Thus, an order staying an interim injunction does not
operate as res judicata as such an order does not purport to decide the merits on the
controversy between the parties.66 An order of remand which is interlocutory in nature
also does not decide the dispute between the parties.67

In a suit for specific performance an interlocutory application for sending the disputed
document for comparison by an expert was dismissed. Before the revision against the said
order could be filed, the suit was decreed. During the appeal against the decree an
interlocutory application with the same prayer for sending the disputed document for
comparison was allowed. In the revision against the order allowing the interlocutory
application, it was held that the earlier interlocutory application was not decided on merits
and it neither finally decided the matter involved in the case nor terminated the suit so as
to apply the rule of res judicata.68

Again, in Louis Dreyfus v. Arunachala,69 an order was made on 20 July, 1922, setting aside an
award, under the Arbitration Act, 1899, made between D and A and remitting the matter
back to an umpire, A appealed from the order but the appeal was ultimately dismissed by
the Privy Council. After a fresh award was made by the umpire A objected that he was not
bound by the submission to arbitration. The Privy Council said:

Under the order of 20th July, 1922 the appeal from which to His Majesty in Council was
dismissed, the matter was remitted to the umpire. This could have been done only upon
the footing that the respondent (A) was bound by the submission to arbitration.

Their Lordships, accordingly, held that the question as to the umpires jurisdiction over the
parties was res judicata.

31. Insolvency proceedings. The principle of the section has been applied in insolvency
proceedings.70 In Vaithilingam v. Lakshmana, 71 the Madras High Court has held that if the
insolvency court decides to pass and does pass an order of adjudication of title under s 4 of
the Presidency Towns Insolvency Act, such an order operates as res judicata in a subsequent
dispute between the same parties. When an official receiver dismissed an application under
s 54 of the Provincial Insolvency Act, 1920, holding that a sale was not a fraudulent preference,
a creditor was debarred by the rule of res judicata from applying under ss 4 and 56 of the
Act to set aside a sale as being in fraud or creditors.72 An order winding up a company on
the application of a person who claims to be a creditor with respect to a specified debt,
was held to operate as res judicata on the question as to the truth and amount of the debt.73
If a question had been decided in a civil court and the decision thereon is such that it
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would have operated as res judicata in another subsequent matter before a civil court, it
would operate as res judicata also before the Insolvency Court.74

32. Summary proceedings. The Calcutta High Court holds that the question of res
judicata can arise even in consequence of antecedent summary proceedings. Thus, it was
held by that court that the decision on the question of nature and extent of the tenure
which was directly in issue between the parties and finally decided in the proceedings taken
under s 26 J of the Bengal Tenancy Act, 1885 operated as res judicata to bar a subsequent
suit for determining the nature of tenancy;75 but the Lahore High Court held that the
decision of a District Judge in proceedings of a summary nature cannot operate as res
judicata to bar a subsequent suit for the determination of the same question.76 In Babu
Bhagwan Din v. Gir Har Saroop 77 the Privy Council accepted the view of the Lahore High
Court. It has since been held by the High Court of Calcutta that the rule of res judicata does
not apply to summary and extra judicial proceedings.78 The scope of an inquiry in an
application under s 34 of the Arbitration Act, 1940, is limited to a decision whether the
dispute between the parties is covered by the arbitration clause. Any opinion therefore,
expressed in the order on the application of the rights of parties, cannot operate as res
judicata in a suit between them in which they are in issue.79 A decision under s 38 of the
Bengal Money Lenders Act, 1940, has been held, having regard to its scope and nature, not
to operate as res judicata in a subsequent suit or proceedings between the parties.80 Orders
passed under the Marwari Patta Act or the Rajasthan Protection of Tenants Act, 1949,
have been held not to operate as res judicata in subsequent suits between the parties as the
proceedings are summary.81 A decision given by revenue authorities in mutation
proceedings has similarly been held not to be res judicata.82 A decision under O 22, r 5,
whether a person is or is not the legal representative of a deceased party to a proceeding is
only for the purpose of that litigation and does not operate as res judicata in a suit where the
right to represent is directly in issue.83 A decision given in a miscellaneous case not on the
merits but on a technical grounds does not operate as res judicata in a regular suit.84

33. Application for amendment of decree. Though an application for amendment of a

decree is not a suit within the meaning of this section, yet if such an application is heard
and finally decided, it will debar a subsequent application for the same purpose upon
general principles of law analogous to those of res judicata.85 If the application has been
dismissed for default and there has been no adjudication on the merits, the dismissal will
not operate as res judicata.86 The dismissal of an application for amendment of a decree on
the ground of mistake does not operate as a bar to a party establishing his right in a suit, as
the grant of relief by way of amendment is purely discretionary.87

In a suit the plaintiff had not claimed the relief of mesne profits in the plaint but by way of
amendment he tried to add the said relief in the plaint which was refused. Consequently,
the relief with regard to mesne profits was not granted. It was held by the Patna High Court
that the incorporation of the relief of mesne profits in the judgment and decree at a later
stage was not wholly without jurisdiction as the Court was empowered to decide what
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proper relief should have been granted to the plaintiff on the basis of materials available on
the record. Thus, it was held that the petition for amendment of judgment and decree was
not barred under Explanation (V) of s 11 of the Code.88

34. Application for review. Where an application is made for a review of judgment, and
the application is refused, it does not operate as res judicata so as to bar a subsequent suit
for the same relief and on the same grounds as those put forward in the application for
review. Neither s 11 nor any doctrine of constructive res judicata can rightly be applied to
such a case.89 An issue lost in Art. 136 proceedings, sought to be re-agitated under Art. 32,
it was held the factual question could not be re-agitated in a petition under Art. 32 of the
Constitution. However, it is open to the petitioner to seek a review of the order of the
Supreme Court in the special leave petition, if such review has not already been invoked
and lost.90 The scope of that appeal was the determination of the amount of compensation
and not to declare the whole of the land acquisition proceedings a nullity. Whatever,
therefore, was set by the High Court either on the question of adverse possession or while
rejecting the review petition was outside the scope of land acquisition appeal. It could not
operate as res judicata in a subsequent suit.91

35. Plea of Res Judicata . It is essential that the plea of res judicata be properly raised. In
Jagadish Chandra v. Gour Hari,92 the Privy Council upheld the decision of the Calcutta High
Court which had declined to go into the question of res judicata on the ground that it had
not been properly raised by the pleadings or in the issues, particularly in the issues. The
Privy Council further observed that it was necessary to identify the subjects in dispute in
the subsequent litigation with the subjects in disputes in the previous litigation. This case
was distinguished in Shib Singh v. Gaura.93 In Narasamma v. Venkataratnam,94 the Andhra
Pradesh High Court held that the opening words of the section required that the issue as
to res judicata should be tried at the earlier stage of the suit and not at the end along with
the rest of the issues; but, the Bombay view is that such

an issue is not ordinarily to be tried as a preliminary issue but must be tried alongwith the
rest of the issues.1 According to the Patna High Court, the question of res judicata is a
mixed question of law and fact and can be raised at any stage of the proceeding, even at
the stage of the second appeal, if it does not involve a fresh investigation of facts.2 It is
well-known that res judicata is a mixed question of fact and law. It has to be specifically
pleaded and parties relies on the principle of res judicata should place before the court all
material particulars which would be sufficient to give a finding whether the particular case
is barred by the principle of res judicata. The court relied upon the decisions reported as
Gurrala Jaggarao v. Gopisetti Bhaskara Ramchandra Rao Dora,3 wherein it was held that a plea of
res judicata which was never raised before the court, nor the pleadings of the parties were
before the court, such a new plea could not be allowed to be raised at the appellate stage,
when further materials may be necessary for the purpose of determination of issue.
Another judgement relied on was Sahadeb Nayak v. Satyabadi Nayak,4 wherein it was laid
down that the plea of res judicata has to be specifically pleaded and proved and such a plea
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would not be available for the first time in second appeal.5 No plea of res judicata raised
before any other court, can now be raised before the Supreme Court. It was too late in the
day now to permit the appellant to raise a plea of res judicata and that too without any
basis.6

When, from the pleadings and the documents produced, the court had reason to think that
the suit or any issue was barred by res judicata, the absence of a specific plea to that effect
should not stand in the way.7 Jurisdiction of the court to try suit or an issue is always there
and res judicata, only bars investigation and decision on the matters finally decided inter
partes earlier. If the defendants omit to plead and prove res judicata and the court
investigates and decides matters already concluded between the parties without knowing
about such a decision, the decision is not void, for want of jurisdiction. Plea of res judicata is
one which might be, and ought to be, raised as a defence and established, in order to
operate as a bar in the exercise of jurisdiction to try and dispose off the matter
subsequently. Otherwise, the later decision will prevail and the plea of res judicata itself will
be barred by constructive res judicata and the later decision (though overlooking the bar of
res judicata alone), will prevail.8

Deputy Commissioners Land Acquisition, is neither a court nor can his award be deemed
to be a decree.9 The defendants plea that he was a tenant was negatived by the lower court.
In revision, the defendant for the first time pleaded: (i) that he had been declared to be a
tenant in earlier proceedings on a reference to the land tribunal; and (ii) that the earlier
decision was res judicata. It was held that res judicata could not be pleaded so late.10 However,
a court can go into the question of res judicata even if the plea is not taken in the pleadings,
if the documents on record show that the matter has already been decided. At the same
time, if, because of absence of the plea, the court decides a matter already decided, the later
decision prevails.11

Res judicata is a question of law. It constitutes a bar to suit, and the bar is created by law. A
suit can be disposed off, on this preliminary point, under O 14, r 2(2)(b).12 As the plea of
res judicata involves mixed questions of law and fact, the factual foundation for raising the
plea should definitely find a place in the pleadings. Failure to do so is detrimental to the
belated plea of res judicata taken at a subsequent stage. The onus is on the person who sets
up the plea of res judicata, to establish it. He must definitely place all the materials before
the court, to enable it to consider whether the said plea has been established or not. A
party who fails to raise the plea before the Land tribunal and the appellate authority,
cannot raise it for the first time in the revisional court.13 A judgment which either fails to
deal with the plea of res judicata or deals with it in an ineffective and erroneous manner,
does not, in law, deserve to be maintained. The doctrine of res judicata rests on sound
principles of public policy; its importance cannot be under-rated.14 This golden rule
acquires magnified dimensions in the present day context of the administration of justice.
The doctrine of res judicata has therefore, to be interpreted and applied liberally. Its
application should be influenced by no technical considerations as to form, but by matter
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of substance within the limits allowed by law. The court has to go into a plea of res judicata
as any other plea of law and then to decide whether the issue or the claim is barred or
not.15 An appeal filed under s 13 of the Orissa House Rent Control Act against the order
of the House Rent Controller, refusing to decide the question of res judicata as a preliminary
issue, would not be maintainable. The position would have been different if the controller
had decided that the application was barred by res judicata. The right of the landlord to
prosecute the case would then have been affected, as the whole proceeding would have
failed on that finding;16 but, as the order of the controller did not affect the right or liability
of either party, it was simply an innocuous order and was not appealable.17

36. Waiver of plea of res judicata . The plea of res judicata is not one which affects the
jurisdiction of the court. It is a plea in bar which a party may waive. If a party does not
raise the plea of res judicata, it will be deemed to be a matter directly and substantially in
issue and decided against him.18

37. Conflicting decrees. Where there are two or more conflicting decrees, the last decree
alone is the effective decree, and it is this decree and not any other which can operate as res
judicata.19 It is observed in Pritam Kaur v. State of Pepsu 20 that a decision given by a court on
a matter which had been settled by a previous decision is without jurisdiction and cannot
operate as res judicata. If that is the correct position, the rule that in the case of conflicting
decisions, the later prevails, must be held to be erroneous. The decision of the Privy
Council in Joychand Babu v. Kamalaksha Chowdhry 21 on which the above view rests, does not
lay down any such proposition.

A court has jurisdiction to decide wrong as well as right and the later decision therefore,
though erroneous, must be held to prevail. Res judicata applies if two conflicting decrees are
passed by two competent courts. The irresistible conclusion that can be arrived at is, that
the final decision in the first decree concludes the dispute between the parties relating to
the same subject matter. Therefore, a subsequent decision is definitely hit by the provision
of s 11, Code of Civil Procedure. The finality of the earlier decision cannot be lost sight of, nor
can it be brushed aside, even though there is a subsequent conflicting decree passed by
some other competent court relating to the same subject matter between the same
parties.22

38. Maintenance order. An order refusing to enforce a maintenance order under s 488 of
the Code of Criminal Procedure for one period will not bar a subsequent application for a
different period.23 The Hindu law recognises that the right of maintenance is a substantive
and continuing right and the quantum of maintenance is variable from time to time.
Neither s 11 of the Code, nor the principle of res judicata, nor the doctrine of estoppel, can
be involved to defeat the wifes claim to a higher rate of maintenance allowance under
altered circumstances. This is so even though, on an earlier occasion, a maintenance decree
had been passed and a certain rate of maintenance had been fixed thereunder.24 When the
foreign judgement is a nullity, the parties will be continue to be husband and wife, unless a
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decree for divorce is granted in accordance with law. By acceptance of the maintenance,
the wife cannot be deemed to have accepted the foreign judgement and would not be
estopped from filing any petition for divorce. The principle of res judicata does not bar the
petitioner from filing the petition for divorce.25

The Orissa High Court has held that claim of maintenance under s 18 of the Hindu
Adoption and Maintenance Act, 1956, can be renewed on fresh cause of act ion. Where is
an earlier case, maintenance claim of wife was rejected on the ground that she voluntarily
deserted her husband, the subsequent claim of maintenance on the ground of non-
implementation of a decree of restitution of conjugal rights by husband, was held to be not
barred by res judicata.26

39. Income-tax Proceedings. The principle of res judicata does not apply to matters of
taxation as each years assessment is final only for the particular assessment year and does
not govern the subsequent assessment years.27 Each assessment year being a unit, what is
decided in one year may not apply in the following year; but where a fundamental aspect
permeating through the different assessment years has been found as a fact one way or the
other and parties have allowed that position to be sustained by not challenging the order, it
would not be at all appropriate to allow the position to be changed in a subsequent year.28
This was also held to be so under the Income tax Act, 1922 (Now repealed by the Income Tax
Act, 1961). Therefore, it is open to an Income-tax officer to depart from his decision in an
assessment for an earlier year.29 This would be so even if the decision in the assessment for
a particular year is the decision of the High Court in an Income-tax reference.30 Failure of
an assessee to raise a particular objection does not bar him from raising the same objection
in a subsequent assessment proceeding on the ground that he might and ought to have
raised it in the earlier assessment.31

40. Sales Tax Proceedings. Bar of res judicata does not apply in matters pertaining to tax
for different assessment years because res judicata applies to debar courts from entertaining
issues on the same cause of action whereas the cause of act ion for each assessment year is
distinct. The courts will generally adopt an earlier pronouncement of the law or a
conclusion of fact unless there is a new ground urged or a material change in the factual
position. The reason why courts have held parties to the opinion expressed in a decision in
one assessment year to the same opinion in a subsequent year is not because of any
principle of res judicata but because of the theory of precedent or the precedential value of
the earlier pronouncement. Where facts and law in a subsequent assessment year are the
same, no authority whether quasi judicial or judicial can generally be permitted to take a
different view. This mandate is subject only to the usual gateways of distinguishing the
earlier decision or where the earlier decision is per incuriam. However, these are fetters
only on a coordinate bench which, failing the possibility of availing of either of these
gateways, may yet differ with the view expressed and refer the matter to a bench of
superior strength or in some cases to a bench of superior jurisdiction.32
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Ruma Pal, J., speaking in the three-Judge Bench decision for herself and for Dalveer
Bhandari, J., observed as follows:

The Court will generally adopt an earlier pronouncement of the law or a conclusion of fact unless there is a new ground urged or a
material change in the factual position. The reason why Courts have held parties to the opinion expressed in a decision in one
assessment year to the same opinion in a subsequent year is not because of any principle of res judicata but because of the theory of
precedent or the precedential value of the earlier pronouncement. Where facts and law in a subsequent assessment year are the same, no
authority whether quasi judicial or judicial can generally be permitted to take a different view. This mandate is subject only to the usual
gateways of distinguishing the earlier decision or where the earlier decision is per incuriam. However, these are fetters only on a
coordinate bench which, failing the possibility of availing of either of these gateways, may yet differ with the view expressed and refer
the matter to a bench of superior strength or in some cases to a bench of superior jurisdiction.33

41. Writs. Section 11 of the Code of Civil Procedure does not in terms apply to any proceedings
under Art. 226 of the Constitution. The principle of res judicata does apply to all writ petitions
under Art. 226.34 It is well-nigh settled that a decision on an issue raised in a writ petition
under Art. 226 or Art. 32 of the Constitution would also operate as res judicata in subsequent
judicial proceedings. The only exception is that the rule of res judicata would not operate to
the detriment or impairment of a fundamental right.35 The doctrine of res judicata is a
universal doctrine laying down the finality of litigation between the parties. When a
particular decision has become final and binding between the parties, it cannot be set at
naught on the ground that such a decision is violative of Art. 14 of the Constitution. So far as
the parties are concerned, they will always be bound by the said decision. In other words,
either of the parties will not be permitted to re-open the issue decided by such a decision
on the ground that such decision violates the equality clause under the Constitution.36

It is well-settled that judgments rendered by a competent court (like a High Court in writ
petition), are binding on the parties and operate as res judicata, so that the same question
cannot be the subject of any other action like the suit. It would be most improper, in
exercising civil jurisdiction for the High Court to permit inquiries into the questions gone
into by the High Court while exercising its admittedly competent writ jurisdiction.37 Once
the writ petition was dismissed and the said judgment was not challenged before the
superior Court, the assessment order passed against the appellant attained finality. The
assessment order having attained finality, the levy could not have been challenged by
means of a separate suit in the civil court.38 If a writ petition is decided on merits by a
speaking order, the question decided in that petition would operate as res judicata; but, a
dismissal: (i) in limine; or (ii) on the ground of laches; or (iii) by reason of availability of
alternative remedy, is not barred by res judicata.39 If a writ petition is dismissed upon merits,
it operates as res judicata. It makes no difference that the writ court has expressed that the
writ petition was not maintainable and that the proper remedy was to file a suit. Where the
writ court chooses to decide even disputed questions of fact, then it is a decision of a court
of competent jurisdiction. If the writ court proceeds to determine the merits, then it has
heard and finally decided the case and its decision is res judicata. This is particularly so
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where the party never questioned the jurisdiction of the writ court to decide the petition
on the merits.40

A writ petition was filed in the Orissa High Court challenging the decision about the mode
of allocation of new a coal block in the coal-fields area. In an earlier writ petition filed
before the Delhi High Court, same issue had been raised. The Delhi High Court, in the
earlier writ petition had finally adjudicated upon the issue and had upheld the impugned
decision. The subsequent writ petition filed before the Orissa High Court was held to be
barred by the principle of res judicata.41

A full bench decision of the High Court in a writ petition relating to a dispute between the
mergerists of the service and the direct recruits, ordered that the rights accrued and the
benefits conferred or derived by assigning the year of allotment, should not be disturbed.
It was based on an understanding of the local conditions and the history of the service.
The decision had become final, as the special leave petition against it was dismissed by the
Supreme Court. It was held that the position settled by that decision and the tradition
followed for decades in the service of the state, could not be disturbed and the principle of
year of allotment, could not be challenged in the Supreme Court vicariously, by way of a
civil appeal or a writ petition.42

It is well-established that the principle of the res judicata are applicable to writ petitions.43
The second writ petition on the same cause of act ion is not maintainable when it was
open for the petitioner to claim the relief in the first writ petition which has been claimed
in second writ petition.44 In this case, the Honble Supreme Court was called upon to
consider the effect of withdrawal of writ petitions filed under 226 or 227 of the Constitution
of India, without the permission of the High Court to file a fresh petition. It was held that
the provisions of the Code of Civil Procedure are not in terms applicable to the writ
proceedings, although the procedure prescribed therein as far as it can be made applicable
is followed by the High Court in disposing off the writ petitions.45 In this case, the Honble
Supreme Court was called upon to consider the effect of withdrawal of writ petitions filed
under 226 or 227 of the Constitution of India without the permission of the High Court to
file a fresh petition. It was held that the provisions of the Code of Civil Procedure are not in
terms applicable to writ proceedings, although the procedure prescribed therein as far as it
can be made applicable is followed by the High Court in disposing off the writ petitions.46
In the facts and circumstances of this case, the same conditions were challenged before the
High Court which were under challenge before the Rajasthan Taxation Tribunal and the
contentions raised by the petitioner were negatived by the tax tribunal. The challenge to
the order of the tax tribunal by way of writ petition, was withdrawn without getting the
liberty to file another writ petition. A subsequent writ petition on the same grounds is
barred on the principle of res judicata.47 The respondent had appeared for the written test
conducted by the appellant for selection to 150 posts of civil judges. The respondent
secured less than 145 marks, and hence, was not called for interview. The respondent filed
a writ petition praying that the examination be quashed, that the answer-book of the
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respondent should be placed before the High Court and his answer-book should be re-
evaluated. By an interim order, the answersheet of the respondent re-evaluated, as a result
of which respondent secured 147 marks. The respondent was called for an interview but
was not placed in the select list. Thereafter, the respondent filed a second writ petition
praying that he should be selected for the post of civil judge. In the second writ petition,
the respondent filed an application for amendment in which he expressed doubt regarding
the key answers used in the evaluation of the written test. It was held, after taking the
advantage of the interim orders and getting his papers re-evaluated, that the respondent
cannot now contest by filing another writ petition, that the key answer-paper is wrong. If
at all such a plea had to be raised, it should have been raised in the first writ petition. The
contentions sought to be raised in a writ petition after the disposal of the earlier writ
petition, are barred by the principles analogous to res judicata.48 As regards the principle of
res judicata, it is clear that the court had applied its mind to the facts of the case and passed
a speaking order in an earlier petition on the same cause of action, the second petition will
not lie. The order howsoever short or precise, shall be treated to be passed on merits. It
cannot be branded as a non-speaking order or an order which was passed without
considering the merits of the case.49 Where a writ petition was filed claiming directions to
authorities to give effect to coal linkage system and for supply of coal to petitioner, and the
High Court disposed off the writ petition by directing the authorities to dispose off the
representation of the petitioner, thus, impliedly refusing the relief prayed for, the second
writ petition based, on the same facts, is barred by the principle of res judicata and
promissory estoppel. Further, during pendency of the second writ petition, the third writ
petition praying for the same relief was also not maintainable.50 The question of
correctness or validity of the judgement passed on the writ petition could not be raised in a
contempt proceedings.51

If a writ petition was withdrawn without liberty to file a fresh petition, fresh petition on
the same cause of act ion is barred even if the petitioner had come into possession of some
more particulars about the cause of action.52 A writ petition challenging the petitioners
dismissal from service, was dismissed in limine with reasoned order in respect of a ground
raised in petition. Subsequent suit on the same ground plus new ground is barred. In
respect of the ground raised earlier in the writ petition, it was held that so far as a reasoned
order was given in the earlier writ petition which was dismissed in limine, the facts decided
by that reasoned order operated as res judicata in the subsequent suit. Thus, the question
regarding prejudice on account of non-supply of the copy of the statement of witnesses to
the petitioner, clearly operated as res judicata in the subsequent suit. However, the
subsequent suit was not barred in respect of the issue regarding refusal of the railways to
allow its employees to appear as witnesses in support of the petitioner, since there was no
adjudication on this issue in the earlier writ petition.53

Decision of High Court in a writ petition holding that authorities under Hyderabad Atiyat
Enquiries Act, 1952, were competent to pass orders for possession in inquiries held under
s 3 A of the Act, cannot be re-agitated inter partes, by filing a suit.54
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Validity of a government notification was challenged through a writ petition by A on the

ground that the notification under the Maharashtra Agricultural Produce Marketing
(Regulation) Act, 1964, had not been duly published. Here, the court held that the
notification had been duly published. Thereafter, B filed a suit, challenging the notification
on the same ground. It was held that the earlier determination did not operate as res
judicata.55 Where the plaintiff earlier filed writ petition challenging the validity of UP Sugar
Undertaking Acquisition Ordinance (Ordinance No. 13 of 1971) which was dismissed, the
subsequent suit for permanent injunction filed by the plaintiff against the authorities
restraining them from interfering in possession, etc. of the company and further seeking
declaration that properties mentioned in plaint were outside the preview of ordinance not
being scheduled undertakings, the suit was found not barred by res judicata as in the earlier
writ petition, the court was not considering as to which of the properties of the plaintiff
was covered under the definition of scheduled undertaking.56 Where an ejectment suit is
filed on the basis of permission obtained from the rent controller as required by the Rent
Control Order passed in Central Provinces and Berar, and no plea of the tenancy being
void was raised before the rent controller, then such a plea is not open in a subsequent
suit.57 Where a writ court first expressing reservation as to the desirability of going into the
merits of the case, subsequently considers the merits and decides the question of
discrimination and departure from the norms, the decision on the merits becomes res
judicata, as that of a civil court.58 Constructive res judicata applies to writ petitions also.59

Where the writ petition was filed challenging the order of the authority regarding
appointment of Administrative Board under s 73 -H of the Maharashtra Co-operative Societies
Act, 1961, it was held by a Division Bench of the Bombay High Court that dismissal of the
same would not operate as res judicata in subsequent writ petition challenging the term of
that Administrative Board.60

In Narmada Bachao Andolan v. Narmada Hydroelectric Development Corporation,61 Dipak Misra, J.

(as he then was), repelled the contention of the respondents that the writ petition is hit by
the principles of res judicata as the issues raised herein were in earlier litigation. It was
observed:

In the earlier case the controversy was quite different. The issues that are raised by the petitioner are in different realm. In the present
litigation number of issues emerged and there is frontal attack to the policy, awards passed by the Land Acquisition Officer, Role of
Narmada Control Authority and such other facts. When issues are not same and there is no adjudication in that regard, it is futile to say
that the writ petition is barred by doctrine of res judicata...

In a writ petition challenging resumption of land was taken on the ground of decision of
the High Court in earlier writ petition. However, the Division Bench of the Orissa High
Court found that the earlier writ petition was disposed towards granting liberty to
petitioner to make representation before Industrial Infrastructure Development
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Corporation and the High Court had not entered into the dispute raised between the
parties. The principles of res judicata/constructive res judicata has, therefore, no application.62

Through a chain of authorities, the law stands settled that even if the provisions of the
Code of Civil Procedure are not applicable in writ jurisdiction, the principles enshrined in s 11
can be resorted to because they are founded on public policy and therefore, required to be
extended and made applicable in writ jurisdiction also in the interest of administration of
justice. Thus, where successive writ petitions were filed for quashing a notice under s 13
(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of
Securityinterest Act, 2002, it was held that successive writ petitions claiming the same relief
would be barred by the principles of res judicata. Even if the same relief is not claimed, but
could have been claimed, the petition would be barred by constructive res judicata.63 B.S.
Chauhan, C.J. (as he then was), speaking for the Division Bench in the above case quoted
with approval a passage from the decision of the Supreme Court in the case of Burn & Co.
v. Their Employees, 64 wherein it has been observed as follows:

That would be contrary to the well recognised principle that a decision once rendered by a competent authority on a matter in issue
between the parties after a full enquiry should not be permitted to be re-agitated. It is on this principle that the rule of res judicata
enacted in section 11 of the Civil Procedure Code is based. That section is, no doubt, in terms inapplicable to the present matter, but the
principle underlying it, expressed in the maxim interest rei publicae ut sit finis litium, is founded on sound public policy and is of
universal application. (Vide Brooms Legal Maxims, Tenth Edition, page 218). The rule of res judicata is dictated observed Sir Lawrence
Jenkins, C.J. in Sheoparsan Singh v. Ramnandan Prasad Singh by a wisdom which is for all time.

Where the writ petition was not for declaration of any status or right between the parties,
but for quashing the order of mutation passed by the revenue authorities, a subsequent suit
by the petitioner, involving a dispute pertaining to the rights of parties, was not barred by
the principle of res judicata. The jurisdiction of the High Court in that writ petition was
confined to the grounds raised for quashing the order of mutation. Since the jurisdiction of
civil court had been specifically conferred by the statute, it cannot be taken away on filing a
writ petition. Since the question raised by the plaintiffs required evidence to prove them,
the decision in the writ petition would not operate as res judicata in the subsequent suit.65 If
a point became non-issue in earlier writ petition because of fraudulent submission of
authorities the decision does not bar a consideration of the question, in subsequent
petition for writ.66 Where a writ petition earlier filed by the present plaintiff was dismissed
in limine by a one word order, it cannot be res judicata. When a petition after contest is
disposed on the merits by a speaking order, then the question decided therein is res judicata;
but in limine or dismissal on the ground of laches or availability of alternative remedy is
not res judicata.67 (See also Workmen v. Board of Esteem of Cochin Port Trust 68 followed). A writ
petition filed earlier for mutation of revenue records does not bar a subsequent suit
involving a dispute pertaining to the rights of the parties.69 Whereas in the earlier petition
the question raised challenged the act ion of the state government in attaching bags of
sugar from petitioner-Companys godown and order of Tahasildar proposing recovery of
sum of over Rs. 5 crores, the subsequent petition raised a question regarding powers of
state covernment for fixing price for purchase of sugar cane higher than one fixed by
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Central Government. Thus, the question now raised was not at all considered or decided in
earlier petition and thus the subsequent petition cannot be dismissed on ground of res
judicata.70

(a) Habeas corpus. The bar of res judicata or constructive res judicata would apply even to a
petition under Art. 32 of the Constitution where a similar petition seeking the same relief has
been filed under Art. 226 of the Constitution before the High Court and the decision
rendered against the petitioner therein has not been challenged by filing an appeal in the
Supreme Court and has been allowed to become final. However, this principle, namely, the
bar of res judicata or principles analogous thereto would not apply to a writ of habeas corpus
where the petitioner prays for setting him at liberty. If a person under detention files a writ
of habeas corpus under Art. 226 of the Constitution before the High Court and the writ petition
is dismissed (whether by a detailed order after considering the case on merits or by a non-
speaking order) and the said decision is not challenged by preferring a Special Leave
Petition under Art. 136 of the Constitution and is allowed to become final, it would still be
open to him to file an independent petition under Art. 32 of the Constitution seeking a writ of
habeas corpus.71

(b) Service Matters. A seniority list of a cadre should not be made the subject matter of the
debate too often. However, the findings arrived at in one of challenge cannot be binding to
a party, who had neither received nor had voluntarily appeared in the earlier case.72 Where,
in the matter of selection for appointment, the first writ petition filed on the ground of
apprehended bias was dismissed as withdrawn, the second writ petition filed on allegation
of actual bias was found not barred by res judicata, more so, when the subject matter of the
second writ petition was different.73 The question is whether a person like the General
Manager, Telecommunication, under Art. 12 of the Constitution can adopt different standards
for the same class of people. If in a previous judgement, the franchisees who have
executed agreement before 14 August 1992, are entitled to deduct a commission of 20
paise, there is no reason to single out the petitioners merely because they approached the
court and failed. It was held that the judgement of the previous writ petition was a
declaratory one. If it is a declaratory judgement, then that is binding on the department
with respect to every subscriber coming under it. Hence, the question of res judicata does
not arise.74 In service matters, an order passed by the court, which achieves finality, is
binding on the department. If the court is satisfied that any employee has been prejudiced
or his right under Art. 14 has been violated, it may interfere in his favour; but, the
department is precluded from challenging the interpretation given by the court.75 In a case
of Himachal Pradesh Electricity Board, the Respondentemployee had all along been
continuing in clerical line since 23 August 1974. Subsequent to the decision of the High
Court in CWP No. 336/1976 and the recommendation of the department promotion
committee which considered the case of the respondent, pursuant to the directions given
by the High Court in the aforesaid writ petition, the Board passed an order on 11 August,
1982, reverting the respondent to the scale of junior stenographer w.e.f. 8 June, 1976 and
by yet another office order, the respondent was again promoted to the post of head clerk,
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the respondent filed a writ petition No. 431/84 but withdrew the same on 12 September,
85. On the facts and circumstances of the present case, the Honble Supreme Court was of
the opinion that the respondent could not have re-agitated the claim by filing a fresh
application before the tribunal challenging the very same cause of act ion which arose on
11 August, 82 against which Respondent filed a writ petition which was later on
withdrawn.76 In a writ petition challenging the validity of Regulation 7 of New Bank of
India (Officers Service) Regulations and certain provision of the promotion policy of the
bank instituted before the High Court, the single judge upheld Regulation 7 but annulled
the impugned provisions of promotion policy. The petitioner did not challenge the
decision but the bank challenged a part of the decision relating to promotion before the
Division Bench. The Division Bench allowed the appeal of the bank. In such
circumstances, the decision of a single judge in respect of the validity of Regulation 7
having reached finality, was held, as not to be challenged by the original writ petitioners in
their appeal to the Supreme Court from the said decision of the Division Bench.77

In a case relating to promotion and seniority the appellants pursued their remedy under the
law and filed a writ petition which was allowed in their favour. The said order attained
finality. Thus, the matter which has attained finality cannot be reopened again. Belated plea
of the State that the promotion granted to some of the appellants were not in accordance
with law cannot be allowed to be raised. Such contention raised too late is barred by the
principle of res judicata.78 Explaining the point of law, S.B. Sinha, J., speaking for the
Supreme Court Bench in the above case, observed as follows:

23. We appreciate the anxiety on the part of the State that if the entire seniority list is directed to be reopened, it may give rise to many
more litigations. It must think itself therefor. But it is the State alone who is responsible for such a situation. The appellants herein have
been pursuing their remedies under the law. They had been granted relief as orders were passed in their favour. The said order,
admittedly attained finality, and thus, cannot be reopened. It is thus, too late in the day for the state now to urge that promotions
granted to some of the appellants herein in the post of Assistant Engineer (Elect.) were not in accordance with law. Such a contention
is barred under the principle of res judicata.79

(c) Representative Suits. The principle of res judicata is not applicable where earlier writ
petitions were filed by the petitioners in an individual capacity and the subsequent petition
is filed in a representative capacity.80 A judgment inter partes of a competent court in a
previous writ petition, would operate as res judicata, in a subsequent suit between the same
parties, where the issues directly involved in the two proceedings are the same. This is
irrespective of the fact whether or not the decision in the earlier writ petition was founded
on a view contrary to the one subsequently expressed by the Supreme Court in a different
case. The correctness or otherwise of the earlier decision is wholly irrelevant where the
conditions for the application of the rule of res judicata are satisfied in the latter case.81

42. Arbitration. Principles of res judicata apply to arbitration proceedings.82Section 41 of the

Arbitration Act, 1940 (Now repealed by the Arbitration & Conciliation Act, 1996), provides
that the provisions of the Code of Civil Procedure will apply to an arbitration proceeding. The
provisions of res judicata are based on the principle that there shall be no multiplicity of
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proceedings and that there shall be finality to proceedings.83res judicata is applicable to

arbitration proceedings as well. Claimant raised some of the issues arising out of
termination of contract in the first claim petition. It was held that he was precluded from
seeking a second reference for remaining issues.84

When the court does not modify the award with regard to grant of interest from the date
of the award up to the date of payment, the effect would be as if the court itself has
granted interest from the date of the decree till the payment at the rate which was
determined by the arbitrator. The future interest would be regarded as having been ordered
to be paid under s 29 of the Arbitration Act when the court does not modify the award in this
respect.85

Supreme Court has made it clear that the existence, validity or effect of an arbitration
agreement can be determined by the court at three stages: (1) before the arbitration
proceedings commence, (2) during their pendency, and (3) after the award is made and
filed in the court. If that is so and the question in this regard was raised before the court in
a proceeding and that aspect was determined by the court, it cannot be said that such
decision is not binding on the parties. Decision in arbitration suit was treated as arbitration
petition under s 33 of Arbitration Act holding that there was an arbitration agreement
between parties which is binding on parties and operates as res judicata in matter of
enforcement of foreign award. Independent of application of the principle of res judicata,
one can spell out the existence of an arbitration clause between the parties in terms of the
New York Convention to result in an arbitration and that further gets reinforced by the
decision of the High Court in the original suit in as much as that High Court took the view
that there is an arbitration agreement between the parties which is enforceable.86

Where the arbitration award in respect of fixing price for sale of land was set aside by the
civil court on two grounds viz., violation of rules of natural justice and for not joining all
the co-owners of land i.e., sisters of vendees as parties to the agreement and the second
ground of invalidity of the award was not expressly challenged in the appeal preferred to
the High Court against the order setting aside the award and the High Court had
confirmed judgment of the civil court setting aside the award and the same has attained
finality, it would operate as res judicata between the parties. In the subsequent proceedings
initiated on the same arbitration agreement, therefore, it is not open to the party to
contend that the award was set aside only on ground of breach of natural justice and not
on the ground of its invalidity that the sisters were not parties to the arbitration agreement
and not bound either by agreement of sale of fixation of price at the instance of the
brothers. By ignoring the two grounds of setting aside the award, the civil court could not
have allowed revival of arbitration proceedings on the same agreement, by permitting
substitution of another arbitrator to the panel in place of the deceased arbitrator.87

For the applicability of res judicata parties should be common or they shall be holding under
the same title of the parties which were before the court. But when plaintiffs 3 and 4
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claimed to be the trustees of plaintiff No. 1, they were not parties to arbitration agreement.
The rights of the trustees are different and cannot be merged with that of the individual
rights that a person may have. In that view of the matter when there were not parties as
trustees to the arbitration agreement (some of them not even parties), the decision of the
arbitrator which has been made a rule of the court and decree passed will not operate as res
judicata so as to bind the plaintiffs vis-a-vis the nature of the suit that has been filed and the
claim that they are the trustees and not the defendants 1 to 4.88

A suit filed by the plaintiff was withdrawn in view of the arbitration agreement entered
into between parties. However, when the counter-claim of the defendant was entertained
by the court, then immediately on the next date the plaintiff filed an application and
submitted his objection under s 8 of the Arbitration and Conciliation Act, 1996 to refer the
parties to arbitration. It was held by the Madhya Pradesh High Court that s 8 of the Act of
1996 is a departure from s 34 of the Arbitration Act, 1940 and the plea of waiver or the
ground of approbate or reprobate relief are not permissible under the New Act. It is
imperative for the Court to refer the matter for arbitration. The principle of res judicata
applies to bring a fresh suit for the same cause of act ion.89

In another case from Madhya Pradesh a peculiar circumstance arose when the order
passed by the District Judge was in accordance with the decision of the Supreme Court,
but that decision was overruled by a larger Bench of the Apex Court. The facts of the case
are than an application was filed in the Court of the District Judge for appointment of
arbitrator. The said application was dismissed on merit. At that time the District Judge had
jurisdiction to decide the matter. The said dismissal order was not challenged in higher
forum. It was held by the Madhya Pradesh High Court the subsequent application cannot
be entertained merely on the ground that now the jurisdiction vested in the High Court
and not with the District Judge. At the time when the application for constitution of Arbitral
Tribunal was decided by the District Judge, he had competence to decide the matter in
view of the decision of Supreme Court in Konkan Railway Corporation v. Rani Construction
Ltd.,90 which decision was later overruled by a seven-Judge Bench in SBP&Co. v. Patel
Engineering Ltd., AIR 2006 SC 450 : (2005) 8 SCC 618 [LNIND 2005 SC 851]. But the
Supreme Court in the latter case also observed that the earlier orders passed by the District
Judge as delegate of the Chief Justice would be saved and would remain unaffected.91

43. Appeal. It is not possible to accept that the principle of res judicata will apply to bar the
appeal. Section 11 of the Code of Civil Procedure would bar the court from trying any suit or
issue in which the matter directly and substantially in issue between the same parties or
between the parties under whom they or any of them claim, litigating under the same title
in a court competent to try such subsequent suit or suit in which such issue has been
subsequently raised, has been heard and finally decided by such court.92

The plea of res judicata cannot be raised for the first time in appeal before the Supreme
Court.93
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The contention that the first appeal filed producing the copy of the order sent by the Land
Tribunal was not a valid appeal and the appeal filed for the second time along with
certified copy of the order of the land tribunal is a valid appeal and therefore, the appellate
authority committed an error by dismissing the second appeal, is wholly untenable and
deserves rejection. When the first appeal itself was dismissed on the ground of limitation,
the appeal filed for the second time is in a worse position as the same was much more
belated than the first appeal. Even assuming that the contention is correct, when the first
appeal itself was dismissed on the ground of limitation, the second appeal is also liable to
be dismissed on the same ground. Thus, in any event the appeal filed for the second time
deserves dismissal. Consequently, it makes no difference for the petitioners if the same is
dismissed on the ground of res judicata or on the ground of limitation. In any event, having
suffered an adverse order in the first appeal, the appeal filed for the second time is not
maintainable and the same was bad in law. On this ground also the order under revision is
legal and valid and no interference is warranted.94 Even in law, so far as Supreme Court is
concerned, it is not bound by the finding of the Tribunal rendered in the first instance
while remanding the case to the lower authorities because Supreme Court is now hearing
an appeal against the order of the tribunal in which the earlier order has merged.95

In an appeal against the High Courts finding, the Supreme Court is not bound by what the
High Court might have held in its remand order. It is true that a subordinate court is
bound by the direction of the High Court. It is equally true that the same High Court,
hearing the matter on a second occasion or any other court of coordinate authority hearing
the matter cannot discard the earlier holding but a finding in a remand order cannot bind a
higher court when it hears the matter in appeal.96

When the remand order passed by the lower appellate court remanding the case in the trial
court is not challenged it will bind only lower appellate court and not the High Court in
second appeal, which is superior court.97

Where, the three suits involving various issues were decided by the trial court on merit,
including common issue, one appeal by the plaintiff and 3 appeals by the defendants were
filed. The appeal filed by the plaintiff abated on the ground of death of sole respondent
who was also one of the respondents in other appeals, resulting in

conformation of decision on common issue by trial court in that appeal. The hearing of
common issue over again in the remaining appeals would be barred by res judicata.1

Order 21 r 22 culminates in end of one stage before attachment of the property can take
place in furtherance of execution of decree. The proceedings under O 21 r 23 can only be
taken if the executing court either finds that after issuing notice under O 21 r 21 the
judgment-debtor has not raised any objection or if such objection has been raised, the
same has been decided by the executing court. The sub-r (1) as well as sub-r (2) under O
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21 r 22 operates simultaneously on the same field. Sub-r (1) operates when no objection is
filed; then the court proceeds and clears the way for going to the next stage of the
proceedings namely attachment of the property and if the court finds objections on record
then it decides the objections in the first instance and thereafter clears the way for taking
up the matter for attachment of the property if the objections have been overruled.
Whether the order is made under sub-r (1) or sub-r (2) it has the effect of determining the
preliminary stage before the attachment process is set in motion. In this background, the
order of the court to proceed with attachment on finding that no objection has been raised
also operates as an order deciding the preliminary stage of the execution proceedings and
operates as if the judgment-debtor has no objection to file. If thereafter, the judgment-
debtor wants to raise an objection in the same proceedings in the absence of any
modification of order passed under O 21 r 22 sub-r (1) or (2) he has to take recourse to get
rid of the order by way of appeal. There is no dispute that the order for proceeding by the
judgment under O 21. r 22 amounts to a decree under Section 47 of the Code of Civil Procedure
and is appealable as a decree i.e., to say it is not an appeal against the interim order but an
appeal against the decree which is provided against the final order only means that at the
different stages of the execution orders passed by the executing court have been attached
finality unless they are set aside by way of appeal before the higher forum else they bind
the parties at the subsequent stage of the execution proceedings so that the smooth
progress of execution is not jeopardised and the stage which reached the finality by dint of
various orders of the O 21 operates as res judicata for the subsequent stage of the
proceedings. Since the order passed at different stage itself operates as decree and
appealable as such, the same cannot be challenged in appeal against subsequent orders
also, because appeal against an order passed under O 21, r 22 does not fall as appeal
against order at initial stage but amounts to a decree finally determining the question. That
is why no appeal against orders made under O 21 have been provided under O 43. In this
background where a judgment-debtor has an opportunity to raise objection which he could
have raised but failed to take and allowed the preliminary stage to come to an end for
taking up the matter to the next stage for attachment of property and sale of the property
under O 21 r 23 which fell within the above principle, the judgment-debtor thereafter
cannot raise such objections subsequently and revert back to earlier stage of proceedings
unless the order resulting in termination of preliminary stage which amounts to a decree is
appealed against and order is set aside or modified.

In view of the aforesaid conclusions that the principle of res judicata including constructive
res judicata operates in execution proceedings and that the order made under r 22, cll (1) and
(2) of O 21 Code of Civil Procedure, which result in closure of preliminary stage and
commencement of next stage operates as res judicata, and precludes the judgment-debtor
from raising objections to continuance of proceeding thereafter unless such order is
appealed against as a decree.2

An appeal cannot be entertained against an order dismissing a suit for default. The appeal
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being incompetent, order of remand passed therein is also without jurisdiction and cannot
attract res judicata.3

44. Special Leave Petition. In the instant case, one V, died in the year 1936, leaving
behind two sons. The dispute arose in respect of the residential house which was an
arbitration. On 29 August, 1939, the arbitrator gave an award in respect of the partition of
the house in question. On an application being filed on behalf of the defendantappellant,
the said award was set aside. However, on an appeal being filed before the High Court, the
award was directed to be made rule of the court. Thereafter, a suit was filed in the year
1963 by the plaintiffrespondent for partition of land adjoining the pucca house. The
defendant-appellant resisted the suit for partition on the ground that even the land
adjoining the pucca house had already been partitioned on the basis of the award dated 29
August, 1939. The High Court in its order for making the award a rule of the court clearly
recorded a finding that the award was in respect of the pucca house only and did not cover
the area adjoining the house, which had not been partitioned. The findings arrived at by
the High Court became final and binding between the parties.4 A decision on an abstract
question of law, unrelated to facts which give rise to a right, cannot operate as res judicata;
nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or
proceedings; but, if the question of law is related to the fact in issue, an erroneous decision
on such a question of law may operate as res judicata between the parties in a subsequent
suit or proceedings, if the cause of action is the same.5 Since the claims of the petitioners
and the respondents has arisen from the same cause of act ion and the findings of the
appellate court that damage has accrued to the Respondents, the decree which is the
subject matter of the special leave petition can not be assailed. The same question was
directly in issue and was the subject matter of the suits. The same having been allowed to
become final, it could not be gone into, since the same had attained finality, the petitioner
not having filed any appeal against the appeal dismissing the suit.6 It is settled law that even
the dismissal of special leave petition in limine operates as a final order between the parties
and any order passed by the High Court or the tribunal, subsequently operates as a res
judicata as the parties thereto are concerned.7 An issue of non-joinder of a party tried as a
preliminary issue and negatived by trial court where the High Court on revision confirmed
the same; in appeal, before the Supreme Court, the issue cannot be allowed to be raised as
being barred by the principle of res judicata.8 A dispute raised by an application under Art.
32 of the Constitution, must be held as barred by principle of res judicata and constructive res
judicata if the same has been earlier decided by a competent court and has become final.
The dismissal of special leave petition is not ordinarily a seal of total approval of the view
of the High Court in arriving in its decision.9 Dismissal of a special leave petition in limine
cannot preclude the Supreme Court from considering on merits, the same issues involved
in a subsequent appeal.10 An order dismissing special leave petition in limine does not
constitute res judicata, particularly in a dispute which was not between the same parties.11 A
dismissal of a special leave petition by the Supreme Court by non-speaking order, would
not operate as bar against a party filing writ petitions in the High Court.12 Since, the
appellant in its earlier special leave petition had also questioned the grant of solatium at 15
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per cent and interest at 6 per cent in the Supreme Court and their plea failed on 19
December 1985, it is not permissible for them now to re-open the issue relating to the
grant of solatium at 15 per cent and interest of 6 per cent. The principle of res judicata
applies.13

Where a government circular and fresh gradation list was held to be illegal by the tribunal,
the special leave petition against the decision was filed by one appellant and was dismissed
as infructuous in view of government circular issued as per the tribunals decision, the
liberty however was given by Supreme Court to the appellant to assail the governments
action on different cause. Since no liberty was given to the appellants to re-open the
question as regards the validity of the gradation list of 1984, which became final and
binding, the principle of res judicata was made applicable and the tribunal had no
jurisdiction to re-open the issue.14

Following the decision in the case of Kunhayammed,15 that the dismissal of the special leave
petition against the main judgment of the High Court would not constitute res judicata
when a special leave petition is filed against the order passed in the review petition
provided the review petition was filed prior to filing of special leave petition against the
main judgment of the High Court. The position would be different where after dismissal
of the special leave petition against the main judgment a party files a review petition after a
long delay on the ground that the party was prosecuting remedy by way of special leave
petition. In such a situation of filing of review would be an abuse of the process of the law.
The view taken in Abbai Maligai Partnership Firm,16 that if High Court allows the review
petition filed after the special leave petition was dismissed after condoning the delay, it
would be treated as affront to the order of the Supreme Court. The review petition was
filed well within time and since the review petition was not being decided by the High
Court, the appellant filed the special leave petition against the main judgment of the High
Court. The appeal arising out of special leave petition is maintainable.17

The Supreme Court, while remanding the matter to the tribunal, categorically stated that all
these matters should be sent to the State Transport Appellate Tribunal which shall treat
the writ petitions filed in the High Court as appeals and after hearing all the parties,
dispose of the matters in accordance with law. The Supreme Court never expressed any
opinion on the merits of the case whatsoever. Therefore, the dismissal of special leave
petitions pertaining to the route in question by various orders of Supreme Court neither
amounts to res judicata nor does it amount that order passed by the High Court amounts to
upholding the law propounded in the decision sought to be appealed against.18

45. Land Acquisition. Where the Land Acquisition Officer decides the question of a title,
the decision becomes res judicata;19 but where the revenue officer does not have jurisdiction
to decide whether the claimant was the landlord and, as such, entitled to eject a tenant,
then decision is not res judicata.20 Where the relief sought in the land acquisition proceeding
and in the subsequent suit are different, then there is no question of res judicata.21
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It is not very often that question of title is decided in a proceeding under the Land
Acquisition Act. In some proceedings like one for injunction, the question of title does
sometimes crop up, but they appear as ancillary issues. However, where the right to receive
compensation for property acquired in land acquisition proceedings as between rival
claimants depends on the title to the property acquired and the dispute as to title is raised
by the parties and is decided by the Land Acquisition Judge after contest, the decision as to
title operates as res judicata in a subsequent suit between the same parties on the question of
title. The binding force of a judgment delivered under the Land Acquisition Act depends on
general principles of law and not on s 11 of the Civil Procedure Code and the decision of the
Land Acquisition Judge would operate as res judicata even though he was not competent to
try the subsequent suit. The fact that the judgment of the Privy Council in appeal is the
above case was given in default of appearance, was held to be in material as the judgments
in the first two Courts were given after full contest.22

46. Ceiling Act and Res Judicata . Proceedings under the Ceiling Act, are not adversarial
as are proceedings in suit. The Ceiling Act is a legislation to give effect to the directive
principles contained in clauses (b) and (c) of Art. 39 of the Constitution. The state is advised
by the directive principles contained in Constitution to take necessary legislative measures so
as to ensure social justice by equitable distribution of ownership and control of material
resources and avoid concentration of wealth and means of production in few hands. The
laudable social objectives sought to be achieved by the ceiling legislation is to take surplus
land from the holders and distribute the same to the landless agricultural labourers and
peasants surviving on agriculture. In applying the principles of res judicata, therefore, to the
ceiling proceedings, the object of the Act cannot be lost sight of. All principles of res
judicata contained in s 11 of the Code of Civil Procedure cannot be strictly and rigorously made
applicable to ceiling proceedings. Section 38 -B introduced by Amendment Act of 1976
with the transitory provisions made both in the Amendment Act No 18 of 1973 and Act
No 20 of 1976 is a departure from the provisions of s 11 of the Code of Civil Procedure and
indicate non-applicability of bar of res judicata in ceiling proceedings under the Act.23

53 .Schwebo v. Subbiah, AIR 1944 Mad 381 [LNIND 1944 MAD 78]: (1945) ILR Mad 138; Lingangowda v. Basangowda, AIR 1927 PC 56:
(1927) ILR 51 Bom 450 : 54 IA 122; Kunj Man v. Jaganath, (1920) ILR 42 All 359; Thakur Din v. Sitaram, AIR 1939 All 399(FB) : (1939)
ILR All 602; Kothandarama v. Sellammal, AIR 1959 Mad 524 [LNIND 1958 MAD 147]; Venkatappa v. Hanumanthappa, AIR 1953 Mys 152:
(1953) ILR Mys 295.
54 .K Pillai v. Karthiyani, AIR 1969 Ker 26 [LNIND 1967 KER 240].
55 .Amrit v. Sudesh, AIR 1970 SC 5 [LNIND 1969 SC 124], [1969] 3 SCR 1002 [LNIND 1969 SC 124] : (1969) 71 Punj LR 371.
56 .Shankar Rao v. Kampta Prasad, AIR 1947 Nag 129: (1946) ILR Nag 844; Varatharaja v. Sunkara, (1907) 17 Mad LJ 197.
57 .Lakhanlal Jha v. Jivach Jha, AIR 1948 Pat 388; Tulsiram v. Toitaram, AIR 1938 Bom 465: (1938) 40 Bom LR 1005; Gur Basappa v. Vankat,
AIR 1956 Hyd 146: (1956) ILR Hyd 535; Soorya v. Kathiza Begam, AIR 1957 AP 688.
 Page 82 of 102
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58 .Indar Gopal v. Bhim Raj, AIR 1959 All 530 [LNIND 1958 ALL 180].
59 .Basanta v. Rameshwar, AIR 1957 All 287 [LNIND 1955 ALL 208].
60 .Rama Rao v. Fattechand, AIR 1956 Nag 241: (1956) ILR Nag 256.
61 .Velayudha Pillai Raman Nair v. Krishnan Asarimane, AIR 1989 Ker 263(DB).
62 .Ummedibai v. Bhikam Singh, AIR 1981 MP 53 [LNIND 1980 MP 107].
63 .Katama Natchair v. Rajah of Shivagunga, (1863) 9 MIA 539; Pertab Narain v. Triloki, (1885) ILR 11 Cal 186 : 11 IA 197; Hari Nath v. Mothur
Mohun, (1894) ILR 21 Cal 8 : 20 IA 183; Prem Jagat Kuer v. Harihar Bakash Singh, AIR 1946 Oudh 163: (1945) ILR 21 Luck 1.
64 .Katama Natchair v. Rajah of Shivagunga, (1863) 9 MIA 539; Chaudhari Risal Singh v. Balwant Singh, (1918) ILR 40 All 593 : (1913) 45 IA 168.
65 .Nagender Chander v. Sreemutty Kaminee Dosee, (1867) 11 MIA 241, p. 267.
66 .Roy Radha Kisen v. Nauratan Lal, (1907) 6 Callj 490, p. 525.
67 .Ramsumran Prasad v. Shyam Kumari, AIR 1922 PC 356: (1922) ILR 1 Pat 741 : 49 IA 342; Mohendra Nath v. Shamsunnessa, (1915) 21 Cal LJ
157; Himan Bibi v. Sohan Bibi, (1914) 18 Cal WN 929 (PC); Behari v. Daud, (1913) ILR 35 All 240 (settlement of family disputes);
Subbammal v. Avudaiyammal, (1906) ILR 30 Mad 3 (decree on admission); Bhogaraju v. Addepalli, (1912) ILR 35 Mad 560, pp 564, 565;
Gurunanak v. Jainarain, (1912) ILR 34 All 385 (withdrawal of appeal by widow); Shib Deo v. Ram Prasad, AIR 1925 All 79: (1924) ILR 46
All 637 (decree of award); Baldeo Singh v. Achal Singh, AIR 1948 Oudh 165: (1947) ILR 23 Luck 150; Bishen Dayal v. Lakshmi Narain, AIR
1967 All 370.
68 .Babanna v. Channappa, AIR 1947 Bom 140: (1946) ILR 48 Bom LR 788; Subbi v. Ramkrishna, (1918) ILR 42 Bom 69; Bai Kanku v. Bai
Jadav, (1919) ILR 43 Bom 869; Bayava v. Parvateva, AIR 1933 Bom 126: (1933) 35 Bom LR 118; Kullu v. Faiyaz, (1909) ILR 30 All 394;
Soshi v. Chandra, AIR 1923 Cal 204: (1923) 35 Cal LJ 348.
69 .Kailash v. Girija, (1912) ILR 39 Cal 925.
70 .Chaudhari Risam Singh v. Balwant Singh, (1918) ILR 40 All 593 : 45 IA 168; Nachikalai v. Aiyakannu, AIR 1922 Mad 233 [LNIND 1922
MAD 35]: (1922) 43 Mad LJ 95.
71 .Ganesh v. Lakshmibai, AIR 1922 Bom 96: (1921) ILR 46 Bom 726.
72 .Jitendra Singh v. Alliance Bank, AIR 1942 Oudh 199; Venkatanarayana v. Subbammal, (1915) ILR 38 Mad 406 : 42 IA 125; Lalmohan v.
Ramlakshmi, AIR 1932 Cal 271: (1932) ILR 59 Cal 636.
73 .Babanna v. Channappa, AIR 1947 Bom 140: (1924) 48 Bom LR 788; Subbi v. Ramkrishna, (1918) ILR 42 Bom 69; Bai Kanku v. Bai Jadav,
(1919) ILR 43 Bom 869; Bayava v. Parvateva, AIR 1933 Bom 126: (1933) 35 Bom LR 118; Kullu v. Faiyaz, (1909) ILR 30 All 394; Soshi v.
Chandra, AIR 1923 Cal 204: (1923) 35 Cal LJ 348.
74 .Kailash v. Girija, (1912) ILR 39 Cal 925.
75 .Chaudhari Risam Singh v. Balwant Singh, (1918) ILR 40 All 593 : 45 IA 168; Nachikalai v. Aiyakannu, AIR 1922 Mad 233 [LNIND 1922
MAD 35]: (1922) 43 Mad LJ 95.
76 .Ganesh v. Lakshmibai, AIR 1922 Bom 96: (1921) ILR 46 Bom 726.
77 .Jitendra Singh v. Alliance Bank, AIR 1942 Oudh 199; Venkatanarayana v. Subbammal, (1915) 38 ILR Mad 406 : 42 IA 125; Lalmohan v.
Ramlakshmi, AIR 1932 Cal 271: (1932) ILR 59 Cal 636.
78 .Addanki v. Ryali Venkataramanayya, AIR 1944 Mad 326: (1944) ILR Mad 775; Kesho Prasad v. Sheo Pargash, AIR 1922 All 302(FB) : (1922)
ILR 44 All 19; Varamma v. Gopaladasaya, (1918) ILR 41 Mad 659 (FB); Kahir Muhammad v. Umar Din, AIR 1925 Lah 89: (1924) ILR 5 Lah
421; Pramnatha Nath v. Bhuban Mohan, AIR 1922 Cal 321: (1922) ILR 49 Cal 45; Mata Prasad v. Nageshar, AIR 1925 PC 272: (1925) ILR 47
All 883 : 52 IA 398; Thakar Singh v. Mst Uttam Kaur, AIR 1929 Lah 295: (1929) ILR 10 Lah 613; Jagdamba v. Badri Prasad, AIR 1932 Oudh
322: (1933) ILR 8 Luck 586.
79 .Valliammai v. Shankara Ayyar, AIR 1950 Mad 562.
80 .Narayanswami v. Parvati Bai, AIR 1949 Mad 379; Gurushiddappa v. Gurushiddappa, AIR 1937 Bom 238: (1937) ILR Bom 326 : (1937) 39
Bom LR 130; Babu Khan v. Hukum Singh, AIR 1947 All 88; Sudehaiya v. Ramdas, AIR 1957 All 270 [LNIND 1956 ALL 196].
81 .Venkateshwara Prabhu v. Krishna Prabhu, AIR 1977 SC 1268 [LNIND 1977 SC 37]: (1977) 2 SCC 181 [LNIND 1977 SC 37] : [1977] 2
SCR 636 [LNIND 1977 SC 37].
82 .United India Insurance Ltd. v. Sharda Adyanathaya, AIR 1998 Ker 141.
83 .R. Venugopala Naidu v. Venkatarayulu Naidu Charities, AIR 1990 SC 444 [LNIND 1989 SC 531]. See also Shiromani Gurdwara Parbandhak
Committee v. Mahant Harnam Singh, AIR 2003 SC 3349 [LNIND 2003 SC 792]
84 .M.H. Ravindranath v. M.L. Hanumantharao, AIR 1988 Mad 177 [LNIND 1987 MAD 14].
85 .Rakesh Kumar Gupta v. Ravindra Kumar Gupta, AIR 2009 (NOC) 2262(All) : 2009 (4) ALJ 618 (DB) (Lucknow Bench).
86 . Dashrath Rao Kate v. Brij Mohan Srivastava, AIR 2010 SC : (2010) 1 SCC 277 [LNIND 2009 SC 1944].
87 .Suraj Pal v. Deputy Director of Consolidation, AIR 1981 All 265.
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88 .C Lakshminarayan v. K.C. Subba Rao, AIR 1990 AP 164 [LNIND 1989 AP 175] (DB).
89 .Velayudha Pillai Raman Nair v. Krishnan Asari Mani, AIR 1989 Ker 263(DB).
90 .Jitendra v. Alliance Bank, AIR 1942 Oudh 199; Kumarandy v. Venkatasubramania, AIR 1927 Mad 645 [LNIND 1926 MAD 484]: (1927) 52
Mad LJ 641; Madhuanand v. Suresanand, AIR 1953 All 547 [LNIND 1953 ALL 47]: (1952) ILR 1 All 148.
1 .Taloda Municipality v. Charity Commr, AIR 1968 SC 418 [LNIND 1967 SC 285]: (1968) 70 Bom LR 332 : (1968) Mah LJ 435.
2 .Krishnamurthy v. Satyanarayanamurthy, AIR 1958 AP 231 [LNIND 1957 AP 52].
3 .Laxmi Narain v. Mohd Shafi Bosi, AIR 1949 EP 141; Venkata Seshayya v. Koteswara, AIR 1937 PC 1: (1937) ILR Mad 263 : 64 IA 17.
4 .Nagamma v. Korthi Hengsu, AIR 1950 Mad 546 [LNIND 1949 MAD 29]: (1950) ILR Mad 326.
5 .Suraj Pal v. Deputy Director of Consolidation Allahabad, AIR 1981 All 265.
6 .Sadagopa Chariar v. Krishnamoorthy Rao, (1907) ILR 30 Mad 185 : 34 IA 93.
7 .Jaimngal Deo v. Bed Saran, (1911) ILR 33 All 493 : 9 IC 819.
8 .Kumaravelu v. Ramaswami, AIR 1933 PC 183: (1933) 56 Mad 657 : 143 IC 665 : (1933) 60 IA 278.
9 .Kalishankar v. Gopal Chunder, (1881) ILR 6 Cal 49.
10 .Thanakoti v. Muniappa, (1885) ILR 8 Mad 496; Srinivasa v. Raghava, (1900) ILR 23 Mad 28; Baiju Lal v. Bulak Lal, (1897) ILR 24 Cal 385;
Somasundara v. Kulandaivelu, (1905) ILR 28 Mad 457, p. 463.
11 .Kumaravelu v. Ramaswami, AIR 1933 PC 183: (1933) ILR 56 Mad 657 : 60 IA 278.
12 .Ibid; approving on this point Thanakoti v. Muniappa, (1885) ILR 8 Mad 496; Baiju Lal v. Bulak Lal, (1897) ILR 24 Cal 385; Srinivasa v.
Raghava, 28; disapproving Gopalacharyulu v. Subbamma, (1920) ILR 43 Mad 487.
13 .Gopalacharyulu v. Subbamma, (1920) ILR 43 Mad 487; Muhammad v. Sumitra, (1914) ILR 36 All 424.
14 .Forward Construction Co v. Prabhat Mandal, (1986) 1 SCC 100 [LNIND 1985 SC 351].
15 .Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, (1989) Supp 1 SCC 504.
16 .R.S. Keluskar v. Union of India, 2008 (3) Mah LJ 13 : 2007 (6) All MR 304 (DB).
17 .M.C. Mehta v. Union of India, AIR 2000 SC 2701 [LNIND 2000 SC 2101]: (2000) 5 SCC 525 [LNIND 2000 SC 2101].
18 .State of Karnataka v. All India Manufacturers Organisation, AIR 2006 SC 1846 [LNIND 2006 SC 286]: (2006) 4 SCC 683 [LNIND 2006 SC
286].
19 .V. Purushotham Rao v. Union of India, (2001) 10 SCC 305 [LNIND 2001 SC 2411].
2 . Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504.
3 .Forward Construction Co. v. Prabhat Mandal, AIR 1986 SC 398 [LNIND 1986 SC 132]: (1986) 1 SCC 100 [LNIND 1985 SC 351].
4 .H.T. Somashekar Reddy, v. Government of Karnatake, 1999 (1) Kar LD 500 (DB).
5 .State of Karnataka v. All India Manufacturers Organisation, AIR 2006 SC 1846 [LNIND 2006 SC 286]: (2006) 4 SCC 683 [LNIND 2006 SC
286].
6 .M/s MRF Ltd. V. Manohar Prikar, 2010 (4) SCALE 577 [LNIND 2010 SC 427] : (2010) 11 SCC 374 [LNIND 2010 SC 427].
7 .Joydeep Mukharjee v. State of West Bengal, 2011 (2) SCALE 172 [LNIND 2011 SC 137] : AIR 2011 SC 1169 [LNIND 2011 SC 137]: (2011)
2 SCC 706 [LNIND 2011 SC 137].
8 .Abdur Rahim v. Mahomed Barkut Ali, AIR 1928 PC 16: (1928) ILR 55 Cal 519 : 55 IA 96.
9 .Chiranji Lal v. Life Insurance Corpn, AIR 1952 Bom 396: (1959) ILR Bom 1402; Chandiram v. Rajaram, AIR 1951 Cal 456 [LNIND 1949
CAL 67].
10 .Duchess of Kingstone’s case 2 Smiths LC, 13th edn, p. 644; Secretary of State v. Syed Ahmad Badsha, AIR 1921 Mad 248 [LNIND 1921 MAD
94] (FB) : (1921) ILR 44 Mad 778.
11 .Cursandas v. Ladka Vahu, (1895) ILR 19 Bom 571; Lalla v. Ramnandan, (1895) ILR 22 Cal 8; Ismail v. Sultan Bibi, (1917) PR 103, 390;
Gotepati v. Gotepati, (1914) 27 Mad LJ 486; Sundra v. Sakharam, (1915) ILR 39 Bom 29; Damu v. Vakrya, (1920) ILR 44 Bom 767. See
notes to O 9, r. 9.
12 .Brij Raj v. Ram Sarup, AIR 1926 All 36: (1926) ILR 48 All 44.
13 .Dada Sahib v. Gajraj, AIR 1925 Mad 204 [LNIND 1924 MAD 218]: (1925) 47 Mad LJ 928; Punnayyah v. Viuranna, AIR 1922 Mad 273
[LNIND 1921 MAD 176], (1922) ILR 45 Mad 425.
14 .Ananda Rao v. Appa Rao, AIR 1925 Mad 258 [LNIND 1924 MAD 193]: (1924) 47 Mad LJ 700.
15 .Rattan Chand v. Ram Kishan, AIR 1928 All 447: (1928) 26 All LJ 777; Ibrahim v. Cherian, AIR 1956 TC 70.
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16 .Mallayya v. Punamma, AIR 1924 Mad 608 [LNIND 1923 MAD 304]: (1924) ILR 47 Mad 476.
17 .Rayulu Ayyar v. Chocka Narayan, AIR 1954 Mad 237 [LNIND 1953 MAD 41]; Raman v. Narayana, AIR 1952 TC 478.
18 .Radha Mohan v. Eliza Jane Hilt, AIR 1947 All 147: (1947) ILR All 186.
19 .Sundar Bai v. Devaji, AIR 1954 SC 82 [LNIND 1952 SC 49]: (1953) SCJ 693 [LNIND 1952 SC 49].
20 .Mahadwappa v. Dharmappa, AIR 1942 Bom 332: (1942) ILR 44 Bom LR 710; Shrivallabh Badrinath v. Laxman Vinayak, AIR 1947 Nag 39,
(1946) ILR Nag 630; Rajah Chattar Singh v. Diwan Roshan Singh, AIR 1946 Nag 277: (1946) ILR Nag 159; Cheria Veetil v. Chattu Nambiar,
AIR 1951 Mad 285 [LNIND 1950 MAD 258]; Dutchess of Kingstone’s case, 2 Smiths LC, 13th edn, pp 644, 675; Afzalunnissa v. Fayazuddin,
AIR 1931 Lah 610: (1932) ILR 13 Lah 195; Kisandas v. Godavari Bai, AIR 1937 Bom 334: (1937) ILR Bom 636 : (1937) 39 Bom LR 351;
Ali Moidin v. Kombi, (1882) ILR 5 Mad 239, p. 241.
21 .Babajirao v. Laxmandas, (1904) ILR 28 Bom 215 (distinguished); Hargovan v. Mulji, (1910) ILR 34 Bom 416; Ghelabhai v. Udderam, (1912)
ILR 36 Bom 29; Dattatraya v. Matha Bala, AIR 1934 Bom 36: (1934) ILR 58 Bom 119 : (1933) 35 Bom LR 1131.
22 .Lakshman Das v. Jagat Kishore, (1898) ILR 22 Bom 216.
23 .Piare Lal v. Sher Gir, AIR 1938 Lah 499.
24 .Hari Kishen v. Raghubar, AIR 1926 Oudh 578: (1926) ILR 1 Luck 489.
25 .Administrator General v. Sulajini, AIR 1962 Cal 616.
26 .Union of India v. Manmul Jain, AIR 1962 Cal 635 [LNIND 1962 CAL 58].
27 .Ahmad v. Nihal-ud-din, (1883) ILR 9 Cal 945 : 10 IA 45.
28 .Jaganandham v. Venkatasubba Rao, AIR 1927 Mad 844 [LNIND 1927 MAD 123]: (1927) ILR 50 Mad 877.
29 .Deb Nath v. Sashi Bhusan, AIR 1934 Cal 82: (1933) 37 Cal WN 1144.
30 .Rukhminibhai v. Venkatesh, (1907) ILR 31 Bom 527; Satyabadi v. Harabati, (1907) ILR 34 Cal 223; Ram din v. Bhoop Singh, (1908) ILR 30 All
225.
31 .Madhavrao v. Anusuyabai, (1916) ILR 40 Bom 606.
32 .Radhabai v. Anantrav, (1885) ILR 9 Bom 198. See notes above, Shebait, karnavan, trustee, administrator, etc.
33 .Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC 71 [LNIND 1981 SC 425].
34 .Gopi Nath v. Bagwat Prasad, (1884) ILR 10 Cal 697; Gokaran Prasad Singh v. Chotty Narain Singh, AIR 1951 Pat 595; Abinsh v. Madusudhan,
AIR 1952 Cal 673 [LNIND 1951 CAL 41]; Ram Karan v. Parbati, AIR 1954 Pat 443; Kali Charan v. Dy Director of Consolidation, AIR 1977
All 56.
35 . ILR 29 Cal 707 : 29 IA 196, p. 202; Shibo Rout v. Baban Rout, (1908) ILR 35 Cal 353, p. 359; Fazal Hussain v. Jiwan Shah, AIR 1933 Lah
551: (1933) ILR 14 Lah 369 dissenting; Sahebzadi v. Muhammad Umar, AIR 1926 Lah 603: (1927) ILR 8 Lah 15; Sri Raja Kotagiri v.
Vutukuru Papayya Rao, AIR 1946 Mad 431: (1946) ILR Mad 760; Prosanna Kumar v. Adya Sakti Dasi, (1943) ILR 1 Cal 128 : (1942) 46 Cal
WN 1022.
36 .Gorie Gouri Naidu v. Thandrothu Bodemma, (1997) 2 SCC 552 [LNIND 1997 SC 26].
37 .Rukmini Devi v. Rambilas Singh, AIR 1951 Pat 361.
38 . AIR 1943 Oudh 338: 210 IC 163 (FB).
39 .Gokul Prasad v. Nageshar Sahai, 52 IA 398.
40 .Gulab Bai v. Manphool Bai, AIR 1962 SC 214 [LNIND 1961 SC 294]; PM Kavale v. AB Bokil, AIR 1971 SC 2228.
41 .R v. Nabadwip, (1868) 15 WR Cr 71.
42 .Labangalata Panda v. State of Orissa, AIR 2002 Ori 147 [LNIND 2001 ORI 69].
43 .Saroop Singh v. Surjan Singh, AIR 2003 P&H 70.
44 .Kisore Singh v. Bahadur Singh, (1919) ILR 41 All 97; Baljit v. Mahipat, (1919) ILR 41 All 203; Ram Das v. Dubri Koeri, AIR 1922 All 336:
(1922) ILR 44 All 724; Balwant Singh v. Sarabjit, AIR 1927 All 70(FB) : (1926) ILR 48 All 774; Mool Chand v. S. Iltifat, AIR 1929 Oudh 362,
(1929) ILR 4 Luck 220; Ubaid Ullah v. Abdul Jalil, AIR 1937 All 481: (1937) ILR All 628; Chandra Singh v. Prithi Singh, AIR 1937 Lah 19:
(1936) 17 Lah 787.
45 .Mst Siraj Fatima v. Mahomed Ali, (1932) AIR 1932 All 293(FB) : ILR 54 All 646.
46 .Vithal v. Sitabai, (1912) ILR 36 Bom 548.
47 .Edun v. Bechun, (1868) 8 WR 175; Missir v. Sheo Baksh, (1883) ILR 9 Cal 439 : 9 IA 197.
48 .Nabin Majhi v. Tela Majhi, AIR 1978 Cal 440 [LNIND 1978 CAL 360].
49 .Kanta Devi v. Surinder Kumar, AIR 1978 Del 318 [LNIND 1978 DEL 55].
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50 .Edun v. Bechun, (1868) 8 WR 175.

51 .Misir v. Sheo Baksh, (1883) ILR 9 Cal 439 : 9 IA 197.
52 .Run Bahadoor v. Lucho Koer, (1885) ILR 11 Cal 301 : 12 IA 23, p. 38.
53 .Missir v. Sheo Baksh, (1883) ILR 9 Cal 439 : 9 IA 197; Gokul Mandar v. Pudmanund, (1902) ILR 29 Cal 707 : (1902) 29 IA 196, p. 202;
Ramdayal v. Jankidas, (1900) ILR 24 Bom 456; Giriya v. Sabapathy, (1906) ILR 29 Mad 65; Sheikh Hassu v. Ram Kumar Singh, (1894) ILR 16
All 183; Vyankat v. Onka, AIR 1921 Bom 434: (1921) ILR 45 Bom 805; Shibo Rout v. Baban Rout, (1908) ILR 35 Cal 353; Hub Lal v.
Gulzari Lal, AIR 1927 All 297: (1927) ILR 49 All 543, p. 545; Venkatasubba Rao v. Vigneswaradu, AIR 1928 Mad 840 [LNIND 1928
MAD 10]: (1929) 56 Mad LJ 52; Keshavlal v. Amarchand, AIR 1933 Bom 398: (1938) ILR 57 Bom 456.
54 .Church of South India Trust Assn v. Telugu Church Council, AIR 1996 SC 987 [LNIND 1996 SC 70].
55 .Jay Chand v. Dole Gobinda, AIR 1944 Cal 272: (1944) 48 Cal WN 454; Lakshman v. Babaji, (1883) ILR 8 Bom 31; Mahabir Singh v. Behari
Lal, (1891) ILR 13 All 320.
56 .Jeevantha v. Hanumanthayya, AIR 1954 SC 9; Harihar Bhagat v. Mossfir Pathal, AIR 1966 Pat 268; Nand Kishore v. Prabhu Narain, AIR 1976
Raj 20 [LNIND 1975 RAJ 99].
57 .Teckchand v. Birjabai, AIR 1942 Nag 119: (1942) ILR Nag 721; Tamizunnissa v. Syed Mahammad, AIR 1928 All 127: (1928) 25 All LJ 1035;
Chhote Lal v. Chandrabhan, AIR 1923 All 176: (1923) ILR 45 All 59; Anthony v. Vedamanickam, (1959) 1 Mad LJ 346.
58 .Yeshwant Bala Powar v. Babai, AIR 1945 Bom 67: (1945) ILR Bom 38 : (1944) 46 Bom LR 728.
59 .Mangan Lal v. GIP Rly. Co., AIR 1924 All 849: (1924) 22 All LJ 745; Bhugwanbutti v. Forbes, (1901) ILR 28 Cal 78; as explained in Shiba
Rout v. Baban Rout, (1908) ILR 35 Cal 353.
60 .Priyanath v. Kali Charan, AIR 1932 Cal 162(1932) 35 Cal WN 773; Shanker Sitaram v. Balkrishna, AIR 1954 SC 352 [LNIND 1954 SC 64]:
[1955] 1 SCR 99 [LNIND 1954 SC 64] : (1954) SCJ 552 [LNIND 1954 SC 64]; Sarangapani v. Venkata, AIR 1952 Mad 384 [LNIND
1950 MAD 215]: (1951) 2 Mad LJ 464.
61 .Drupad v. Bindu Mowi, (1926) 43 Cal LJ 606.
62 .Subba Rao v. Bhimalingam, AIR 1933 Mad 913 [LNIND 1933 MAD 124]: (1933) 65 Mad LJ 761.
63 .Venkatasubbiah v. Thirupurasundari, AIR 1965 Mad 185 [LNIND 1964 MAD 60]: (1965) ILR 1 Mad 624.
64 .Bed Saran v. Bhagat Deo, (1911) ILR 33 All 453; Bihari v. Sheobalak, (1907) ILR 29 All 601; Appa Rao v. Gurraju, (1920) ILR 43 Mad 859;
Thakur Hammat v. Mt Jhamola, AIR 1922 All 95: (1922) 20 All LJ 340; Baru Mal v. Sunder Lal, AIR 1924 All 10: (1923) 21 All LJ 330; Sarju
Prasad v. Mahadeo, AIR 1932 All 483: (1932) ILR 54 All 786; Ramamurthi v. Gajapathiraju, AIR 1933 Mad 279 [LNIND 1932 MAD 42]:
(1933) ILR 56 Mad 366.
65 . Khugowlee Singh v. Hussein Bunkhan, (1871) 7 Bom LR 673 : 15 WR (PC) 30; Hurri Sunker v. Muktaram, (1875) 15 Bom LR 238; Rani
Kishori v. Raja Ram, (1904) ILR 26 All 468; Ashra v. Ali Ahmad, (1904) ILR 26 All 601; Mahesh v. Ranjor, (1905) ILR 27 All 163; Inayat Ali
v. Murad Ali, (1905) ILR 27 All 569; Dharani v. Gaber, (1903) ILR 30 Cal 339; Rangayya v. Ratnam, (1897) ILR 20 Mad 392; Padmalav v.
Lukmi Rani, (1907) 12 Cal WN 8; Asrafannessa Hemchandra, AIR 1927 Cal 216: (1927) ILR 54 Cal 114; Mehnga Singh v. Gurdial Singh, AIR
2004 P&H 93.
66 .Durga Churn v. Hateen, (1902) ILR 29 Cal 252; Sheo Narain v. Paremshar, (1896) ILR 18 All 270; Kalka Prasad v. Manmohan Lal, (1916) 38
ILR All 302.
67 .Mahendra v. Girish Chandra, (1918) 3 Pat LJ 379.
68 .Ram Rekha v. Lallu, AIR 1931 All 462: (1931) ILR 53 All 568; Muhammad Saduq v. Laute Ram, (1901) ILR 23 All 291.
69 .Chandra Bali v. Drigpal, AIR 1931 Oudh 21: (1931) 6 ILR Luck 419; Lal Bihari v. Parkali, (1920) ILR 42 All 309.
1 .Bajrang Bahadur v. Beni Madho, AIR 1932 Oudh 199(FB) : (1932) ILR 7 Luck 716.
2 .Venkatachala v. Ramachandra, AIR 1961 Mad 423 [LNIND 1960 MAD 146]; overruling Narasimha v. Muthuswamy, (1958) 2 Mad LJ 216 :
(1958) 71 Mad LW 521 [LNIND 1957 MAD 279]; Venkataraya v. Louis, AIR 1960 Mys 209.
3 . AIR 1962 SC 287 [LNIND 1961 SC 465]: (1962) 3 SCR 440 [LNIND 1961 SC 465] : (1962) 1 SCJ 343; approving Venkatarama v.
Venkiah, AIR 1954 Mad 788 [LNIND 1953 MAD 272] (FB) : (1954) ILR Mad 715.
4 .Balwant Singh v. Sarabjit, AIR 1927 All 70(FB) : (1926) ILR 48 All 774.
5 .Bhartiya Hotel v. Union of India, AIR 1968 Pat 476.
6 .Ram Sarup v. Ram Chandar, AIR 1976 Punj 246.
7 .Kedambi v. Lakshmi, (1908) ILR 31 Mad 62; Balijepalli v. Balijepalli, (1907) ILR 30 Mad 320; Kanhai v. Durga, (1915) ILR 37 All 223; Sundar
v. Dinanath, (1915) ILR 37 All 280; Mulo v. Ram Lal, (1920) ILR 43 All 191.
8 .Pandurang Ramchandra Mandlik v. Shantabai Ramchandra Ghatge, AIR 1989 SC 2240 [LNIND 1989 SC 744].
9 .Upperi Janki v. Balakrishnan Nambiyar, AIR 1981 Ker 52.
10 .Jagdeo Mahto v. Commissioner North Chotanagpur Division, AIR 2009 Jhar 152 [LNIND 2009 JHAR 98] (D.B.).
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11 .Bishonath v. Huro, (1886) 5 WR 27; Doorga v. Doorga, (1866) 6 WR Civ Ref 26.
12 .Magraj Kala v. Kjadimal, AIR 1994 Raj 11.
13 .Ali Buksh v. Shaikh, (1869) 12 WR 477; Ram Lal v. Tula Ram, (1882) ILR 4 All 97. See also s 43 of the Evidence Act 1872.
14 .Keshab v. Manirudin, (1908) 1 Cal WN 501.
15 .Adi Pherozshah v. HM Seervai, AIR 1971 SC 385 [LNIND 1970 SC 332]: (1971) 1 SCR 863 [LNIND 1970 SC 332].
16 .Fatma Bibi Ahmad Patel v. State of Gujrat, AIR 2008 SC 2392 [LNIND 2008 SC 2806]: (2008) 6 SCC 789 [LNIND 2008 SC 2806].
17 . Re Markur, (1914) ILR 41 Bom 1.
18 .Tekchand Kapurchand v. Birzabai, AIR 1942 Nag 119: (1942) ILR Nag 721; Gopi Nath v. Bhugwan, (1884) ILR 10 Cal 697; Raghunath v. Issur
Chunder, (1885) ILR 11 Cal 153; Kunj v. Raman, (1892) ILR 15 Mad 494; Mohendra Nath v. Shamsinnessa, (1915) 19 Cal WN 1280.
19 .Gopi Nath v. Bhugwat, (1884) ILR 10 Cal 697; Nasib Khan v. Kutubiunissa, AIR 1941 All 18, (1940) ILR All 691; Sarupa v. Khem Lal, AIR
1928 Lah 929: (1929) ILR 10 Lah 528; Lalmohan v. Ramlakshmi, AIR 1932 Cal 271: (1932) ILR 59 Cal 636; Debendra v. Pramada, AIR 1933
Cal 879: (1933) 37 Cal WN 810.
20 .Venkatachalam v. Aiyamperumal, (1919) ILR 42 Mad 702.
21 .Giriya v. Sabapathy, (1906) ILR 29 Mad 65.
22 .Velayuda v. Sundara, AIR 1926 Mad 829 [LNIND 1925 MAD 142]: (1926) 51 Mad LJ 630.
23 .M.H. Ravindranath v. M.I. Hanumantha Rao, AIR 1968 Mad 177.
24 .Toponidhee v. Sreeputty, (1880) ILR 5 Cal 832; Bharasi v. Sarat Chunder, (1896) ILR 23 Cal 415; Shibo Rout v. Baban Rout, (1908) ILR 85 Cal
353; Malubhai v. Sarangji, (1906) ILR 30 Bom 220; Valeswara Muthukrishna, (1911) ILR 21 Mad 57; Amarsangji v. Deepsangji, AIR 1925 Bom
241: (1925) 49 ILR Bom 442; Kammu v. Musummat Rahiman, AIR 1922 All 445: (1922) ILR 44 All 712; Kapuria v. Ganga Devi, AIR 1933
Lah 646: (1933) ILR 14 Lah 437; dissenting from Sahibzadi v. Mahammad, AIR 1926 Lah 603: (1927) ILR 8 Lah 15; Kochukutty v. Bhavani,
AIR 1954 TC 169: (1953) ILR TC 943.
25 .Official Assignee of Madras v. Aiyu Dikshithar, AIR 1925 Mad 688: (1925) 48 Mad LJ 530.
26 .Malubhai v. Sursangi, (1906) ILR 30 Bom 220; Amarsangji v. Deepsangji, AIR 1925 Bom 241: (1925) ILR 49 Bom 442.
27 .Ghulappa v. Raghavendra, (1904) ILR 28 Bom 38; Raj Simhadri v. Ramchandrudu, (1902) ILR 27 Mad 63; Bodku v. Mohan Singh, (1917) ILR
39 All 717; Hinga v. Ali Sher, AIR 1952 All 628 [LNIND 1949 ALL 202]: (1952) ILR 1 All 620.
28 .Hridoy Nath v. Probodhchandra, AIR 1933 Cal 923: (1933) ILR 60 Cal 1171.
29 .Beni Madho v. Indar Sahai, (1910) ILR 32 All 67.
30 .Govind v. Dhonbarav, (1891) ILR 15 Bom 104.
31 .Avanasi v. Nachammal, (1906) ILR 29 Mad 195.
32 .Rai Charan Ghose v. Kumud Mohan, (1898) ILR 25 Cal 571; Bhuqwanbutti v. Forbes, (1901) ILR 28 Cal 78.
33 .Ram Faqir v. Bindeshri Singh, (1919) ILR 41 All 54.
34 .Neelkanta v. Kesavan, AIR 1956 TC 161(FB) : (1956) ILR TC 87); Bhai Shakri v. Babu Singhji, AIR 1958 Bom 30 [LNIND 1957 BOM 85]:
(1957) ILR Bom 786; Suraj Bai v. Sadashiv, AIR 1958 MP 100 [LNIND 1957 MP 125]; Rabi Ram v. Dalip Singh, AIR 1972 P&H 390; UOI
v. Pramod Gupta (D) by LRS, AIR 2005 SCW 4645: (2005) (8) JT 203 [LNIND 2005 SC 682].
35 .Tara Chand v. Misrimal, AIR 1970 Raj 53 [LNIND 1969 RAJ 138]: (1969) ILR 19 Raj 412.
36 .Himatrao Ukha Mali v. Popat Devram Patil, AIR 1999 Bom 10 [LNIND 1998 BOM 277]; Tulajappa v. Subhas, AIR 2003 Kant 118
[LNIND 2002 KANT 164].
37 .LIC v. India Automobiles, AIR 1991 SC 884 [LNIND 1990 SC 959].
38 .Administrator General v. Sulajini Debi, AIR 1962 Cal 616.
39 .Oudh Narain v. Sukh Dulari, AIR 1950 All 402 [LNIND 1950 ALL 9]; Lakmi Chand v. Madho Rao, AIR 1930 All 681, (1930) ILR 52 All
868.
40 .Raghubir v. Hiralal, AIR 1931 All 454: (1931) ILR 53 All 560.
41 .Abdul Kadir v. Dolanbibi, (1913) ILR 37 Bom 563.
42 .Rajendra Jha v. Presiding Officer, (1984) Supp SCC 520.
43 .National Textiles Corp v. Bank of Madurai Ltd., AIR 1998 Mad 113 [LNIND 1997 MAD 534].
44 .Chandrabhai K. Bhoir v. Krishna Arjun Bhoir, AIR 2009 SC 1645 [LNIND 2008 SC 2187]: (2009) 2 SCC 315 [LNIND 2008 SC 2187] :
2009 (1) Civil Court C 295 (S.C.); Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, 2009 (1) Civil CC 561 (S.C.)
45 .Sivanathanu Pillai v. Lakshmi Rajamma, AIR 1981 Ker 214.
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46 .Veeranna v. Sayamma, AIR 1958 AP 363 [LNIND 1957 AP 114]: (1958) ILR AP 281.
47 .Gulab Chand v. Anandan, AIR 1954 Mad 11 [LNIND 1953 MAD 38].
48 . See notes under heading Contract providing for place of suing, under s 10 and agreement as to choice of court, under s 20.
49 .Ashok Leyland Ltd. v. State of Tamil Nadu, AIR 2004 SC 2836 [LNIND 2004 SC 1556]: AIR 2004 SCW 1001: (2004) 3 SCC 1 [LNIND
2004 SC 1556]. See also Management of Sonepat Co-op. Sugar Mills Ltd. v. Ajit Singh, AIR 2005 SC 1050 [LNIND 2005 SC 142]: AIR 2005
SCW 1005; Dwarka Prasad Agarwal (D) by LRS v. B.D. Agarwal, AIR 2003 SC 2686 [LNIND 2003 SC 542]: AIR 2003 SCW 3346: (2003)
6 SCC 230 [LNIND 2003 SC 542]; Sri Ramnik Vallabhdas Madhvani v. Taraben Pravinlal Madhvani, AIR 2004 SC 1084: AIR 2003 SCW
6839: (2003) 9 Scale 412; Chief Justice of A.P. v. L.V.A. Dikshitulu, AIR 1979 SC 193: (1979) 2 SCC 34 : (1978) LIC 1672.
50 .Krishna v. Ramachandra, AIR 1956 Bom 268 [LNIND 1955 BOM 82]; Panduranga v. MRT Nagpur, AIR 1974 Bom 20 [LNIND 1972
BOM 84], (1974) ILR Bom 816; Rajendra Kumar v. District Judge, Jaunpur, AIR 1996 All 78 [LNIND 1995 ALL 444].
51 .Isabella Johnson v. MA Susai, (1991) 1 SCC 494 [LNIND 1990 SC 589].
52 .Jeeth Kaur v. P. Kondalamma, AIR 1983 AP 219 [LNIND 1982 AP 305] (DB). [See also : C. Raghunandan v. K. Nageshwar Rao, AIR 2009
AP 205 [LNIND 2009 AP 521]: (2009) 6 ALD 257 [LNIND 2009 AP 521] : (2009) 5 ALT 584].
53 .Ibid.
54 .Mathura Prasad v. Dossibai, AIR 1971 SC 2355 [LNIND 1970 SC 84]: (1970) 3 SCR 830 [LNIND 1970 SC 84] : (1971) 73 Bom LR 492;
Vrajlal v. Jadavji, AIR 1972 Guj 148 [LNIND 1971 GUJ 82]: (1972) 13 Guj LR 597.
55 .Piarelal v. Bhagwati Prasad, AIR 1969 MP 35 [LNIND 1968 MP 62].
56 .Murarilal v. Madanlal, AIR 1952 Punj 265.
57 .Jnanchand v. Jugal Kishore, AIR 1960 Cal 331 [LNIND 1959 CAL 186]; Union of India v. Siddique Ahmed, AIR 1961 Cal 92 [LNIND 1960
CAL 149] (FB); Benares Ice Factory v. Sukulal, AIR 1961 Cal 422 [LNIND 1960 CAL 91].
58 .Newton v. Official Trustee, AIR 1954 Cal 506 [LNIND 1954 CAL 78].
59 .Venkatachala v. Ramachandra, AIR 1961 Mad 423 [LNIND 1960 MAD 146].
60 .Sanyasi Prasad Rao v. Lakshmayya, AIR 1967 AP 143 [LNIND 1965 AP 168].
61 .Balbir Singh v. Sikh Gurdwaras, Judicial Commr, AIR 1967 Punj 272: (1967) ILR 2 Punj 494. See notes on Decisions of tribunals on
question of jurisdiction under s 9.
62 .Banzilal v. Dhapo, (1902) ILR 24 All 242; Kunheema Umma v. P. Balakrishnan, AIR 1967 Ker 97 [LNIND 1966 KER 114].
63 .Duchess of Kingstone s, case 2 Smiths LC 7, 13th edn, pp 641, 651; Nistarini Dassi v. Nundo Lal, (1899) ILR 26 Cal 891, p. 908; Fattma Bai v.
Dy Custodian General, AIR 1970 Del 160 [LNIND 1969 DEL 205]: (1970) 72 Punj LR 113.
64 .Janki Kuar v. Lachmi, (1915) ILR 37 All 535; Mahomed Golab v. Mahomed Sulliman, (1894) ILR 21 Cal 612, p. 619; Nand Kumar v. Ramjiban,
(1914) ILR 41 Cal 990; Chattu Singh v. Rai Radha, (1919) 4 Pat LJ 187; Ram Ratan v. Bhuri, (1916) ILR 38 All 7; Re Goculdas Odharji, AIR
1924 Bom 100: (1923) 25 Bom LR 893 [LNIND 1923 BOM 128]; Muktamal v. Ramachandra, AIR 1927 Cal 84: (1926) 31 Cal WN 258;
Kunja Bihari v. Krishnadhan, (1940) ILR 2 Cal 477 : (1940) 44 Cal WN 912; Hasim Ali v. Hamidi Begum, AIR 1942 Cal 180: (1941) 46 Cal
WN 561, p. 590 : (1941) 74 Cal LJ 261, p. 303; Besdwanand Gir v. Shatanand, AIR 1942 All 302.
65 .P.R. Nallathambi v. Raghavan, AIR 1973 Mad 25 [LNIND 1972 MAD 88]: (1972) 2 Mad LJ 535.
66 .Gangabai v. Chhabubai, (1982) 1 SCC 494.
67 .Mahboob Sahab v. Syyad Ismail, (1995) 3 SCC 693 [LNIND 1995 SC 404].
68 .Gulab Bai v. Manphool Bai, AIR 1962 SC 214 [LNIND 1961 SC 294].
69 .Sulochana Amma v. Narayanan Nair, AIR 1993 SCW 3792: (1994) 2 SCC 14.
70 .Management of Indian Aluminium Co. Ltd. v. S. Nagaiah, AIR 2009 (NOC) 2004(KAR) : 2009 (3) AIR Kar R 147 (D.B.).
71 .Bhagwandas Yadav v. Rohit Tiwari, AIR 2010 (NOC) 589(M.P.).
72 .Gur Prasad v. Gur Prasad, AIR 1944 Oudh 321; Jenkins v. Robertson (1867) 1 HL SC App 147; STR Pillai v. Dhanalakshmi, AIR 1972 Mad
190 [LNIND 1971 MAD 174].
73 .Parsotam Gir v. Narabada Gir, (1899) ILR 21 All 505 : 26 IA 175.
74 .Pandurang Ram Chandra Mandlik v. Shanti Bai Ram Chandra Ghatge, (1989) Supp 2 SCC 627.
75 .Pawan Kumar Gupta v. Rochi Ram Nagdeo, (1999) 2 LRI 598.
76 .Chandra Singh v. Midnapore Zemindary Co., AIR 1942 PC 8: (1942) ILR 2 Cal 1.
77 .Har Swarup v. Anand Swarup, AIR 1942 All 410: (1942) ILR All 624. See also Ajai Verma v. Ram Bharosa, AIR 1951 All 794 [LNIND
1951 ALL 41] (FB).
78 .Durga Das v. Rodi, AIR 1953 Punj 103: (1954) ILR Punj 26; Muthukumara v. Thanu, (1955) ILR TC 1071.
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79 .Bharosilal v. Shiladevi, AIR 1989 MP 122 [LNIND 1988 MP 160].

80 .Saraswathi v. Muthu Kumaraswamy, AIR 1990 NOC 66(Mad).
81 .P.V.N. Devki Amma v. P.K. Kunti Raman Nair, AIR 1980 Ker 230 [LNIND 1980 KER 101].
82 .Ram Nagendra Tiwary v. Jagadamba Vinal, AIR 1984 Pat 316.
83 .K.M. Madavkrishanan v. S.R. Swami, AIR 1995 Mad 318 [LNIND 1995 MAD 291].
84 .Kumarmoni Sa v. Himachal Sahu, AIR 1981 Ori 177 [LNIND 1981 ORI 57].
85 .Ram Swarath Singh v. Mithila Sharan Singh, AIR 1983 Pat 110(DB).
86 .Ramesh Chandra v. Shivcharan Dass, AIR 1991 SC 264 [LNIND 1990 SC 569].
87 .Guduru Ramarayudu v. Mallela Makikya Rao, AIR 1946 Mad 372 [LNIND 1945 MAD 274]; Sitla Sahai v. Gouri Nath, AIR 1942 Pat 477;
Raja Chattar Singh v. Diwan Roshan Singh, AIR 1946 Nag 277: (1946) ILR Nag 159; Soorjomonee Dasee v. Suddanund, (1874) 12 Bom LR 304 :
IA Sup Vol 212; Ram Krishna v. Vithal, (1891) ILR 15 Bom 89; Apurba v. Shyama, (1919) 24 Cal WN 223; Nikunja Bihari v. Jathindranath,
AIR 1956 Cal 613 [LNIND 1956 CAL 67]; Jiut Ram v. Jagarnath Ram, AIR 1956 Pat 489.
88 .Hayatuddin v. Abdul Gani, AIR 1976 Bom 23 [LNIND 1974 BOM 102].
89 .Laxmichand v. Ramkumar, AIR 1967 Raj 272.
1 .Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144 [LNIND 1924 BOM 87]: (1924) ILR 51 Cal 631 : 51 IA 293.
2 .Madhavan v. Kumaran, AIR 1952 TC 383: (1952) ILR TC 175.
3 .Laxman v. Saraswathi, AIR 1961 Bom 218 [LNIND 1960 BOM 84].
4 .Vithal Yaswant v. Shikandar Khan Mutumukhtan, AIR 1963 SC 385 [LNIND 1962 SC 179].
5 .Lakshman Prakash v. Commr of Income-tax, AIR 1963 All 172(FB) : (1962) ILR 2 All 790 : (1962) All LJ 938.
6 .Chandra Singh v. Executive Engineer, AIR 1961 Assam 148; Damodhar Rao v. Bhima Rao, AIR 1965 Mys 290.
7 .Girjanand v. Bhagwan, AIR 1967 Pat 101.
8 .State of Madhya Pradesh v. Ladli Saran, AIR 1958 MP 326 [LNIND 1958 MP 97].
9 .H. Investment Trust v. Haridas Mundhra, AIR 1971 Cal 182 [LNIND 1970 CAL 189]: (1971) 75 Cal WN 517.
10 .Indarjit v. Richha, (1893) ILR 15 All 3, p. 5.
11 .Devarakonda v. Devarakonda, (1881) ILR 4 Mad 134; Jamaitunnissa v. Lutfunnissa, (1885) ILR 7 All 606; Avala v. Kuppu, (1885) ILR 8 Mad
77; Mohun v. Ram Dial, (1880) ILR 2 All 843; Ramaswami v. Alamelu, AIR 1924 Mad 604 [LNIND 1923 MAD 281]: (1924) 46 Mad LJ
298; Rekhab Das v. Mt Sheobai, AIR 1923 All 495: (1923) ILR 45 All 466, p. 467.
12 .Pitchi v. Bharata, AIR 1924 Mad 893 [LNIND 1924 MAD 109]: (1924) 47 Mad LJ 532.
13 .Province of Bombay v. Municipal Corpn., Ahmedabad, AIR 1954 Bom 1 [LNIND 1953 BOM 3]: (1953) ILR Bom 1081; Jai Prakash v.
Bishambar Das, AIR 1954 All 215 [LNIND 1953 ALL 231]; Patna Zilla Track Owners Assn v. State of Bihar, AIR 1963 Pat 16. See notes
Examination of Pleadings and Judgment, above.
14 .T.P. Moideen Koya v. Govt. of Kerela, AIR 2004 SC 4733.
15 .UOI v. Pramod Gupta, AIR 2005 SC 3708 [LNIND 2005 SC 682].
16 .Premier Tyres Ltd. v. Kerala State Road Transport Corporation, AIR 1993 SC 1202: AIR 1992 SCW 3365: (1993) Supp 2 SCC 146. See also
UOI v. V. Pundarikakshudu & Sons, AIR 2003 SC 3209 [LNIND 2003 SC 763].
17 .Baldevdas v. Mohanlal, AIR 1948 Bom 232: (1947) 49 Bom LR 902; Radha Mohan v. Eliza Jane Hilt, AIR 1947 All 147: (1947) ILR All 186;
Modhusudan v. Brae, (1889) ILR 16 Cal 300; Bisheshar v. Jafri Begum, AIR 1937 All 251: (1937) All LJ 536.
18 .Venkatachalam v. Mahalakshmamma, (1887) ILR 10 Mad 272; Shaik Saheb v. Mahomed, (1890) ILR 13 Mad 510; Hingo v. Jhuri, (1918) ILR
40 All 590.
19 .Gauhati Bank v. Baliram Dutta, AIR 1950 Ass 169.
20 .Vyankatesh v. Sakharam, (1897) ILR 21 Bom 465.
21 .Ahmed v. Moidin, (1901) ILR 24 Mad 444; Sanyasi v. Artaswaro, (1913) ILR 36 Mad 287.
22 .Watson v. Collector of Rajshahye, (1869) 13 MIA 160; Kartick v. Sridhar, (1886) ILR 12 Cal 563.
23 .Pandurang Ram Chandra Mandlik v. Shanti Bai Ram Chandra Ghatge, (1989) Supp 2 SCC 627.
24 .Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626 [LNIND 2004 SC 1265]: AIR 2005 SCW 270.
25 .Laxmi v. A. Sankappa Alwa, AIR 1989 Ker 289 [LNIND 1988 KER 236].
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26 .Ram Saran Tripathi v. Chancellor, Gorakhpur University, AIR 1990 All 96 [LNIND 1989 ALL 354].
27 .Naharlal Verma v. District Co-operative Central Bank Ltd. Jagdalpur, AIR 2009 SC 664 [LNIND 2008 SC 2070]: (2008) 14 SCC 445
[LNIND 2008 SC 2070].
28 . Indu Bhushan Jana v. Union of India, AIR 2009 Cal 24: 2009 (1) Cal LJ 786 [LNIND 2008 CAL 766] (D.B.).
29 .Ibid, para 12 and 13 at pp. 26-27 (of AIR).
30 .Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 [LNIND 1966 SC 13]; Srikakulam Municipality v. Ranganadhan, AIR 1970 AP 375
[LNIND 1969 AP 109]; Ram Gobinda v. Bhakta Bala, AIR 1971 SC 664 [LNIND 1971 SC 20]; Union of India v. Pramod Gupta, AIR 2005
SC 3708 [LNIND 2005 SC 682].
31 .Arm Group Enterprises Ltd. v. Waldorf Restaurant, AIR 2003 SC 4106 [LNIND 2003 SC 377].
32 .Lakshman v. Ramchandra, (1881) ILR 5 Bom 48 : 7 IA 18; Putali v. Tulja, (1879) ILR 3 Bom 223; Bhukhandas v. Lalubhai, (1892) ILR 17
Bom 562; Ram Govindjha v. Mungur Ram, (1883) 13 Cal LR 83; Abdul Kadir v. Doolanbibi, (1913) ILR 37 Bom 563. See also s 44 of the
Evidence Act 1872; Omkara Singh v. State of Madhya Pradesh, (1957) Jab LJ 898; Phuluwa v. Lakshmi Chand, AIR 1960 MP 138 [LNIND 1959
MP 89]; Shivashankar v. Baikunth, AIR 1969 SC 971 [LNIND 1969 SC 99]: (1969) 1 SCC 718 [LNIND 1969 SC 99].
33 .Kempegowda v. Annagowda, AIR 1951 Mys 48; Radha Prashad v. Lal Saheb, (1890) ILR 13 All 53 : 17 IA 150; Chand Kour v. Pratab Singh,
(1888) ILR 16 Cal 98 : 15 IA 156; Ramchandra v. Narsinhacharya, (1900) ILR 24 Bom 251, p. 254. As to suits for partition, see also
Bisheshar Das v. Ram Prasad, (1906) ILR 28 All 627; Madon Mohon v. Baikanta Nath, (1906) 10 Cal WN 839; Radhe Lal v. Mulchand, AIR
1924 All 905: (1924) ILR 46 All 820, p. 821; Samarendranath v. Pyareecharan, AIR 1935 Cal 160: (1934) ILR 61 Cal 1023; Mukha Singh v.
Ram Chariter, AIR 1956 Pat 143; Kesava v. Venkataram, AIR 1957 AP 537 [LNIND 1956 AP 161]; IC Co. v. Union of India, AIR 1976 Pat
76; Gujrat Electricity Board v. Saurashtra Chemicals, AIR 2001 Guj 83(DB).
34 .Sheosagar v. Sitaram, (1897) ILR 24 Cal 616 : 14 IA 50; Shankara v. Devaki, AIR 1922 Mad 259 [LNIND 1922 MAD 7]: (1922) 43 Mad LJ
572; Jadu Nath v. Amulya, AIR 1927 Cal 794: (1927) 46 Cal LJ 118; State of Maharashtra v. National Construction Co., AIR 1996 SC 2376.
35 .Muhammad v. Nabian, (1886) ILR 8 All 282.
36 .Fatte Singh v. Lachmi, (1874) 13 Bom LR App 37.
37 .Deodhari v. Lala Seosaran, (1878) 3 Cal LR 395.
38 .Janakadular v. Ambika Prasad, (1917) 2 Pat LJ 313.
39 .Pethaperumal v. Murugandi, (1895) ILR 18 Mad 466.
40 .Hariram v. Lalbai, (1902) ILR 26 Bom 637.
41 .Dullabh v. Narayan, (1868) 4 Bom HC AC 110.
42 .Venkata Narashiman Reddy v. Konda Reddi, AIR 1951 Har 55; Irawa v. Satyappa, (1911) ILR 35 Bom 38; Muhammad v. Nabian, (1886) ILR 8
All 282.
43 .Harihar v. Chandra Kumar, (1918) 23 Cal WN 91.
44 .Ramaswami v. Muradai, AIR 1924 Mad 469 [LNIND 1923 MAD 313]: (1924) ILR 47 Mad 453; Gangappa v. Rachawwa, AIR 1971 SC 442
[LNIND 1970 SC 443].
45 .Ramireddi v. Subbareddi, (1889) ILR 12 Mad 500.
46 .MS Baliga v. Mangalore City Corpn., AIR 1998 AP 76.
47 .Seth Sranikbhai Kasturbhai v. Seth Chandulal Kasturchand, AIR 1997 Pat 179.
48 .Shanmughasundaram v. Janagarajan, AIR 1976 Mad 19.
49 .AA Associates v. Prem Goel, AIR 2002 Del 142 [LNIND 2001 DEL 1234]. See also Ganesh Patra v. Banabihari Patra, AIR 2004 Ori 23
[LNIND 2003 ORI 61].
50 .Selo v. Munshi Ram, AIR 1985 HP 85 [LNIND 1984 HP 80].
51 .Kazhugumalai Raja v. RPBISPN Fund, AIR 2004 Mod 267.
52 .Nahar Singh v. Kaka Singh, (2000) 4 Civ LJ 155 (PandH) : (2000) 3 Rec Civ R (Civil) 310; Vasant Bhaskar Parulkar v. Mahesh Shivram Rege,
2007 (5) Mah LJ 663 : 2007 (4) All MR 446 (DB).
53 .J&K National Panthers Party v. Union of India, AIR 2010 JK 47(DB).
54 .Association of the Residents of Mhow v. Union of India, AIR 2010 MP 40 [LNIND 2009 MP 727]: (2010) 3 MPHT 493 (DB).
55 . Bharat Petroleum Corpn. Ltd. Ex-employees Assn v. Chairman and Managing Director, Bharat Petroleum Corpn. Ltd., (1993) Supp 4 SCC 37.
56 .Baba Commercial Syndicate v. Channamasetti, AIR 1968 AP 378 [LNIND 1967 AP 62].
57 .Subbanna v. Subbanna, AIR 1965 SC 1325 [LNIND 1964 SC 359].
58 .Suraj Mani v. Kishori Lal, AIR 1976 HP 74 [LNIND 1976 HP 3].
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59 .Thakuruddin Ramjash v. Sourendra Nath, AIR 1982 Cal 133 [LNIND 1981 CAL 327] (DB).
60 .Union of India v. Bilas Singh and Co., AIR 1984 Cal 261 [LNIND 1984 CAL 54].
61 . Hardit Singh v. Surinder Nath, AIR 1982 Del 588.
62 .Gurubachan Singh v. Arya Dhanna Sewa Sangh, AIR 1981 Pat 318.
63 .Kamlabai v. Mangilal, (1987) 4 SCC 585 [LNIND 1987 SC 693].
64 . Ummed Mal v. Kundan Mal, AIR 1981 Raj 202 [LNIND 1981 RAJ 46].
65 .Isup Ali and Ors v. Gour Chandra Deb, AIR 1923 Cal 496.
66 .Vishnu Sugar Mills v. JSP Trading Co., AIR 1984 Cal 246 [LNIND 1984 CAL 109].
67 .Corporation of City of Mysore v. Public Interest Litigation, AIR 1997 Kant 70 [LNIND 1996 KANT 309].
68 .Shree Anupam Chemical (India) Pvt. Ltd. v. Dipak G. Mehta, AIR 1999 Bom 349 [LNIND 1999 BOM 443].
69 .Mrs. Niloufer Siddiqui v. Indian Oil Corporation Ltd., AIR 2008 Pat 5: 2007 (3) Pat LJR 589.
70 .Meera Devi v. Bihar State Election Commission, AIR 2008 Pat 83: 2008 (2) AIR Jhar R 958.
71 . AIR 1966 SC 1332 [LNIND 1966 SC 13]: (1966) 3 SCR 300 [LNIND 1966 SC 13].
72 .Askaran v. Madan Lal, AIR 1995 Raj 130.
73 .Hafiz Mahammad Fateh Nasib v. Swarup Chand, AIR 1942 Cal 1: (1914) ILR 2 Cal 434; Hiralal Murarka v. Mangtulal Bajoria, AIR 1947 Cal
221: (1944) ILR 2 Cal 513; affirmed by Privy Council sub-nominee Shankarlal Patwari v. Hiralal Murarka, AIR 1950 PC 80 [LNIND 1949
PC 62].
74 . Sav Syst 293; Narain Das v. Faiz Shah, (1889) PR 157 (FB).
75 . Angayya v. Vittal, (1958) 1 Andh WR 524; Mahalakshmi v. Pammi Garamma, AIR 1958 Ori 139 [LNIND 1958 ORI 8].
76 .Ramesh Chandra v. Shiv Charan Dass, (1990) Supp SCC 633.
77 .R. Govindasamy v. Kasturi Ammal, AIR 1998 Mad 218 [LNIND 1998 MAD 388].
78 .Sri Pal v. Swami Nath, AIR 1968 All 282 [LNIND 1967 ALL 62].
79 .Munsi Abdul Rahim v. Fakir Mohammad, AIR 1946 Nag 401: (1946) ILR Nag 518; Run Bahadur v. Lucho Koer, (1885) ILR 11 Cal 301, p.
306 : 12 IA 23, p. 34; Midnapur Zamindari Co, Ltd. v. Naresh Narayan Roy, AIR 1922 PC 241: (1921) ILR 48 Cal 460 : 48 IA 49; Ghela v.
Sankalchand, (1894) ILR 18 Bom 597, p. 602; Shib Charan v. Raghu, (1895) ILR 17 All 174; Nundo v. Bidhoo, (1886) ILR 13 Cal 17; Thakur
Magandeo v. Thakur Mahadeo, (1891) ILR 18 Cal 647; Parbati v. Mathura, (1913) ILR 40 Cal 29; Daudbhai v. Dayaram, (1919) ILR 43 Bom
568; Bai Nathu v. Narsi, (1920) ILR 44 Bom 321; Ramasami v. Marudai, AIR 1924 Mad 469 [LNIND 1923 MAD 313]: (1924) ILR 47
Mad 453; Firm Kanhaiyalal v. Paramsukh, AIR 1956 Nag 273: (1956) ILR Nag 539. See Illustrations (i) and (iii).
80 .Peary v. Ambica, (1897) ILR 24 Cal 900; Venkataraju v. Ramanamma, (1915) ILR 38 Mad 158; Babu Lal v. Hari Baksh, (1918) PR 13, p. 60;
Dinkar v. Anant, AIR 1928 Bom 349: (1928) 30 Bom LR 902. See Illustration (iii).
81 .Nundo v. Bidhoo, (1886) ILR 13 Cal 17; Thakur Magandeo v. Thakur Mahadeo, (1891) ILR 18 Cal 647; Shib Charan v. Raghunath, (1895) ILR
17 Cal 174; Rungo v. Mudiyeppa, (1899) ILR 23 Bom 296; Parbatti v. Mathura, (1912) ILR 40 Cal 29; Daudbhai v. Dayaram, (1919) ILR 43
Bom 568, p. 571; Waris Khan v. Ahmadulla Khan, AIR 1952 Nag 238.
82 .Mahadeva v. Sriramamurthy, AIR 1955 AP 282 [LNIND 1955 AP 45].
83 .Shib Charan v. Raghu, (1895) ILR 17 All 174, p. 195; commented upon in Dinkar v. Anant, AIR 1928 Bom 349: (1928) 30 Bom LR 902, p.
906.
84 .Nana Tukram v. Sonabai, AIR 1982 Bom 437 [LNIND 1982 BOM 53].
85 .Annamalai Chetty v. BA Therhill, AIR 1931 PC 263.
86 .Nana Tukram v. Sonabai, AIR 1982 Bom 437 [LNIND 1982 BOM 53]. See notes to s 96, Who may appeal.
87 .Thakur Magnedeo v. Thakur Mahadeo, (1891) ILR 81 Cal 647; Nundo v. Bidhoo, (1886) ILR 13 Cal 17; Ramasami Reddi v. Thalawasal Marudai,
(1924) ILR 47 Mad 453.
88 .Abdullakhan v. Khammia, (1908) ILR 32 Bom 315.
89 .Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, AIR 1922 PC 241: (1921) ILR 48 Cal 460 : 48 IA 4964 IC 231.
90 . (1916) ILR 40 Bom 662, 36 IC 74.
91 . Peary v. Ambica, (1897) ILR 24 Cal 900; Mahomed Ismail v. Sharfutullah, AIR 1930 Cal 810, (1930) ILR 57 Cal 872 : 129 IC 310.
92 .Shib Charan v. Raghu, (1895) ILR 17 All 174, p. 195.
93 .Hiralal Murarka v. Mangtulal Bajoria, AIR 1947 Cal 221: (1944) ILR 2 Cal 513; affirmed by the Privy Council sub-nominee Shankarlal
Patwari v. Hiralal Murarka, AIR 1950 PC 80 [LNIND 1949 PC 62].
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94 .Raraknath v. Kalisankar, AIR 1960 Cal 440 [LNIND 1959 CAL 194].
95 .LR Scott v. Mahammad Din, AIR 1944 Nag 154: (1944) ILR Nag 465; Rango v. Mudiyeppa, (1899) ILR 23 Bom 296; Abdul Rahim v.
Ojamshee, (1929) ILR 56 Cal 639.
96 .Barjorji v. Shripatprasadji, AIR 1927 Bom 145: (1927) 29 Bom LR 215; Bai Sada v. Gangaram, AIR 1932 Bom 484: (1932) 34 Bom LR 936.
97 .Rungo v. Mudiyeppa, (1899) ILR 23 Bom 296.
1 .Somesh v. Ramkrishna, (1900) ILR 27 Cal 705.
2 .Faiyaz v. Prag Narain, (1907) ILR 29 All 339 : 34 IA 102.
3 .Sita Ram v. Madho Lal, (1902) ILR 24 All 44 (FB); Hari Ram v. Indraj, AIR 1922 All 377: (1922) ILR 44 All 730; Mahamdi Begum v. Tirfail
Hasan, AIR 1926 All 20: (1926) ILR 48 All 17; Raghunath Singh v. Sheo Pratap Singh, AIR 1929 All 409: (1929) 27 All LJ 761; Ramji v.
Pandharnath, (1919) ILR 43 Bom 334 (FB); Ramchandra v. Balbhim, AIR 1923 Bom 217: (1923) 25 Bom LR 211 [LNIND 1922 BOM 211];
Hanmanta v. Shidu, AIR 1923 Bom 300: (1923) ILR 47 Bom 692; Govind v. Narayan, AIR 1931 Bom 480: (1931) 33 Bom LR 844; Aruna v.
Bur Singh, AIR 1925 Lah 31, (1924) 5 Lah 371; Nakta Ram v. Chiranji Lal, (1910) ILR 32 All 215; Joti Lal v. Sheodhayan, AIR 1936 Pat 420:
(1936) ILR 15 Pat 607; Loknath Missir v. Daulat Kuer, AIR 1953 All 503 [LNIND 1952 ALL 299]; Ambala v. Amabala, AIR 1957 Raj 321
[LNIND 1957 RAJ 7]; Ismail Nathabai Khartri v. Muljibhai Shaukenbhai Brahambhatt, AIR 1994 Guj 8 [LNIND 1992 GUJ 228].
4 .Siva v. Nundo, (1891) ILR 18 Cal 139; Vadapuratti v. Vallabha, (1902) ILR 25 Mad 300.
5 .Irshad v. Saidunnissa, AIR 1930 Oudh 465: (1931) ILR 6 Luck 275.
6 .Ramji v. Pandharnath, (1919) ILR 43 Bom 334 (FB); Raghunath Singh v. Sheo Pratap Singh, AIR 1929 All 409: (1929) 27 All LJ 761; Irshad v.
Saidunnissa, AIR 1930 Oudh 465: (1931) ILR 6 Luck 275.
7 .Manickchand v. Saleh Mohd., AIR 1969 SC 751 [LNIND 1968 SC 370]: (1969) SCC 206.
8 .Raghunath Singh v. Hansraj Kunwar, AIR 1934 PC 205: (1934) ILR 56 All 561 : 61 IA 362; Thota China Subba Rao v. Mattapali Raju, AIR
1950 FC 1: (1949) FCR 484; Edumban Chettiar v. Ramalakshmi, AIR 1965 Ker 153 [LNIND 1964 KER 24].
9 .Rama v. Bhagchand, (1915) ILR 39 Bom 41; Badruddin v. Sitaram, AIR 1930 Bom 401: (1930) 32 Bom LR 933.
10 .Ranga v. Narayana, (1935) ILR 39 Mad 896; Ellarayan v. Rangaswami, AIR 1926 Mad 816 [LNIND 1926 MAD 9]: (1926) ILR 49 Mad
691.
11 .K. Muthuswami Gounder v. N. Palaniappa Gounder, (1998) 7 SCC 327 [LNIND 1998 SC 811].
12 .Annamalay v. Thornhill, AIR 1931 PC 263: (1932) 36 Cal WN 1 : (1931) 61 Mad LJ 420.
13 .Premier Tyres Ltd. v. Kerala State Road Transport Corpn., (1993) Supp 2 SCC 146.
14 .Sheosagar v. Sitaram, (1897) ILR 24 Cal 616 : 24 IA 50; Abdullah v. Ganesh Das, (1918) ILR 45 Cal 442 : 44 IA 214; Nilvaru v. Nilvaru,
(1882) ILR 6 Bom 110; Chunder v. Shibo, (1882) 11 Cal LR 22; Kailash v. Girija, (1912) ILR 39 Cal 925; Balkishen v. Kishan Lal, (1888) ILR
11 All 148; Chengalavala v. Venkateshwar, (1916) 30 Mad LJ 379; Satyanarayana v. Diana Engg. Co., AIR 1952 Cal 124 [LNIND 1951 CAL
29]: (1952) ILR 1 Cal 305; Venkateshwarlu v. Venkatanarasimham, AIR 1957 AP 557 [LNIND 1956 AP 151]; Parshotham v. Bai Moti, AIR
1963 Guj 30 [LNIND 1962 GUJ 139]; Bhavani v. Narayana, AIR 1963 Mys 120.
15 .Lachman v. Lakshmi, AIR 1932 All 288: (1932) 54 ILR All 44.
16 .Annapurna Bai v. Pyari Bai, AIR 1960 MP 222 [LNIND 1959 MP 22].
17 .Burdwan Electric Supply Co. v. Srimati Kumud Kumari Choudhary, AIR 1932 Cal 14.
18 .Narayanan v. Kannammai, (1905) ILR 28 Mad 335; Gokul v. Shrimal, (1904) 6 Bom LR 288; Muthammal v. Secretary of State of India, (1916)
ILR 21 Mad 1202.
19 .Raja Syed Ahmad Ali v. Hingalal, AIR 1947 Oudh 74: (1946) ILR 21 Luck 586.
20 .Burmah Shell Co. v. Labour Appellate Tribunal, AIR 1957 Mad 60 [LNIND 1956 MAD 96].
21 .Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144 [LNIND 1924 BOM 87]: (1924) ILR 51 Cal 631 : 51 IA 293;
Nawab v. Punjaba, AIR 1921 Lah 187: (1922) 4 Lah LJ 442.
22 .Madhvi Amma Bhavani Amma v. Velu Pillai, AIR 1990 Ker 144 [LNIND 1989 KER 371].
23 .Karunaker Panda v. Dureabati Bewa, AIR 1981 Ori 23 [LNIND 1980 ORI 59].
24 .Aneappa Gounder v. Rajavelu Gounder, AIR 1981 Mad 282 [LNIND 1981 MAD 45].
25 .P.V.G. Rajuru v. State of Andhra Pradesh, AIR 1990 SC 650 [LNIND 1990 SC 39].
26 .Laxmi v. A. Sankappa Alivee, AIR 1989 Ker 289 [LNIND 1988 KER 236].
27 .Nagta Singh v. Shiv Singh, AIR 1981 All 75.
28 .Ram Niwas v. Omkari, AIR 1983 All 310(DB).
29 .Chokkalingam v. Maung Tha O, AIR 1926 Rang 122: (1926) ILR 4 Rang 8.
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30 .Humtse Village v. Yikhuman Village, AIR 1983 Gau 19(DB).

31 .Narendra v. Mahosay Ganesh Prasad, AIR 1946 Pat 408; Pichai Konar v. Narasimha, AIR 1930 Mad 471 [LNIND 1929 MAD 274]: (1930)
58 Mad LJ 343; Kandasami v. Annamalai, (1905) ILR 28 Mad 67.
32 .Baldevdas v. Filmistan Distributors, AIR 1970 SC 406 [LNIND 1969 SC 196]: (1970) 1 SCR 435 [LNIND 1969 SC 196] : (1970) 11 Guj
LR 158; Bhanwarlal v. Raja Babu, AIR 1970 Raj 104 [LNIND 1969 RAJ 108]: (1969) ILR 19 Raj 393; Bhaishanker v. Morarji, (1912) ILR 36
Bom 283, where it is said that in the case even of a consent-decree, the matters in issue in the suit cannot but be said to have been heard
and finally decided. If so, why is it said in the judgment (p 286) that a consent decree has to all intents and purposes the same effect as
Res Judicata?. See also Parasuram v. Pandu, AIR 1956 Hyd 178: (1956) ILR Hyd 29.
33 .Uphras Lapasam v. Ka Esiboll Lyngdoh, AIR 1986 Gau 55 [LNIND 1985 GAU 9].
34 .Thakur Durga Baksh Singh v. Rama Umanath, AIR 1944 Oudh 94: (1943) 19 Luck 428; Rama Rao Sham Rao v. Dattadayal, AIR 1948 Nag
304: (1947) ILR Nag 889; Laxmi Nayain Gododia v. Modh. Shafi Bari, AIR 1949 EP 141: (1948) ILR EP 113; Committee of Management of
Bunga Sarkar v. Sardar Raghubit Singh, AIR 1951 Sim 257; Bhaishanker v. Morarji, (1912) ILR 36 Bom 283, p. 286; Re South American and
Mexican Co. (1895) 1 Ch 37; Bikram Prakash v. Narendra, AIR 1961 All 266 [LNIND 1959 ALL 213]; Niader Mal v. Ugar Sain, AIR 1966
Punj 509 (1965) ILR 2 Supp (2) Punj 609.
35 .Nasib Khan v. Kutubunissa, AIR 1941 Nag 346: (1940) ILR All 691; Nicholas v. Asphur, (1897) ILR 24 Cal 216, p. 237; Lakshmishankar v.
Vishnuram, (1900) ILR 24 Bom 77; Raj Kumara v. Thatha, (1912) ILR 35 Mad 75; Tiruvambala v. Manikkavachaka, (1917) ILR 40 Mad 177,
p. 189, Sivadas v. Birendra, AIR 1926 Cal 672: (1926) 43 Cal LJ 116; Durga Prasad v. Narain, AIR 1929 Oudh 63: (1929) ILR 4 Luck 181;
Sunder Bai v. Devaji, AIR 1954 SC 82 [LNIND 1952 SC 49]: (1953) SCJ 693 [LNIND 1952 SC 49], wherein the above statement of law
was quoted and adopted. Sailendra Narain v. State of Orissa, AIR 1956 SC 346 [LNIND 1956 SC 9]: (1956) SCR 72 [LNIND 1956 SC 9];
Kailash Chandra v. Kulamani, AIR 1956 Ori 210; Krishna Subala v. Danapathi Dutta, AIR 1957 Cal 59; Chandi Charan v. Naba Gopal, AIR
1957 Pat 365; Sadsukh v. Jugal Kishore, (1957) 61 Cal WN 67; Kesavan v. Padmanabhen, AIR 1971 Ker 234 [LNIND 1970 KER 222]; Gajraj
Narain v. Babulal, AIR 1975 Pat 58: (1974) ILR 53 Pat 543; Indira Bai v. BA Patel, AIR 1974 AP 303 [LNIND 1973 AP 70]; Mariam Bai v.
Modi JAR Sait, AIR 1973 Mad 191 [LNIND 1971 MAD 287]; Jagan Nath v. Abdul Aziz, AIR 1973 Del 9 [LNIND 1972 DEL 129].
36 .Byram Pestonji Gariwala v. Union Bank of India, AIR 1991 SC 2234 [LNIND 1991 SC 485].
37 .Ramrao Shamrao v. Dattadayal, AIR 1948 Nag 304: (1947) ILR Nag 889; Cowasji v. Kisandas, (1911) ILR 35 Bom 371; Basangouda v.
Basalingappa, AIR 1936 Bom 301: (1936) 38 Bom LR 593; Budhumal v. Ratialal, AIR 1952 Sau 110.
38 .Baldev Jha v. Ganga Prasad, AIR 1959 Pat 17: (1935) ILR 37 Pat 1391.
39 .Subba Rao v. Jagannath Rao, AIR 1967 SC 591 [LNIND 1963 SC 331]: [1964] 2 SCR 310 [LNIND 1963 SC 331].
40 .Huddersfield Banking Co. v. Henry Lister and Son, [1895] 2 Ch 273; Kandarpa v. Banvari, (1921) 33 Cal LJ 244; Nibaran v. Motilal, (1935) 39 Cal
WN 938; State of Punjab v. Amar Singh, AIR 1974 SC 994 [LNIND 1974 SC 16]: (1974) 2 SCC 170.
41 .Wilding v. Sanderson, [1897] 2 Ch 534, p. 543; Nibaran Chandra v. Motilal, (1935) 39 Cal WN 938.
42 .Bhima Rama v. Abdul Rahid, AIR 1968 Mys 184.
43 .Dnyanoba Deorao Ugle v. Shaikh Hussain, AIR 1999 Bom 5 [LNIND 1998 BOM 460].
44 .Harrison v. Rumsey, (1752) 2 Ves Sen 488; Stanard v. Harrison, (1871) 19 WR 811; Ainsworth v. Wilding, [1896] 1 Ch 673.
45 .Mullins v. Howell, (1879) 11 Ch D 763.
46 .Nirmal Chand v. Parameswari Devi, AIR 1958 MP 333 [LNIND 1957 MP 14].
47 .Mahindra v. Commissioner of Chota Nagpur Division, AIR 1958 Pat 603: (1958) ILR 37 Pat 699.
48 . See notes to s 96, Procedure for setting aside consent decree. Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31 [LNIND
1991 SC 485].
49 .Rock Tyres, Chandigarh v. Ajit Jain, AIR 1998 P&H 202.
50 .Shibu v. Chandra Mohan, (1906) ILR 33 Cal 849; Piari Lal v. Nand Ram (1909) ILR 31 All 19.
51 .Venkatasubbiah v. Veeriah, AIR 1957 AP 981 [LNIND 1956 AP 137].
52 .Gaya Prasad Bhoi v. Lok Nath Budhi Bhoi, AIR 1996 Ori 444.
53 .Hemchand v. Karelal, AIR 1987 Raj 117.
54 .Sher Singh v. Mohd Ismaili, AIR 1981 All 114.
55 .M/s Globe Publications v. Madan Gopal, AIR 1996 P&H 115.
56 .Abdeli Abdulhussain v. Taiyabali, AIR 1951 Nag 355.
57 .Parsotam Gir v. Narabada Gir, (1899) ILR 21 All 505 : 26 IA 175; Babu Lal v. Ishri Prasad, (1878) ILR 2 All 582, pp 586-88; Deviditta v.
Nathu (1912) PR 16, p. 209. The result is the same if the court has expressly excluded a matter from decision, though liberty to bring a
fresh suit is not reserved. Ram Charan v. Reazuddin, (1884) ILR 10 Cal 856; Madan Mohan v. Borooah, (1918) PR 70, p. 232; Bhiman Gouda v.
Sangappa, AIR 1960 Mys 178.
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58 .Watson v. Collector of Rajshahye, (1869) 13 MIA 160 : 12 WR 43 PC.

59 .Fateh Singh v. Jagannath Baksh, AIR 1925 PC 55: (1925) ILR 47 All 158 : 52 IA 100; Vyankatesh v. Krishna, AIR 1931 Bom 417: (1931) 33
Bom LR 613; Sukh Lal v. Bhikhi, (1889) ILR 11 All 187 (FB).
60 .M.S. Baliga v. Bangalore City Corpn., AIR 1998 Kant 76 [LNIND 1997 KANT 428].
61 .Harbhagwan v. Punni Devi, AIR 1999 P&H 223.
62 .Ganesh Jha v. Baidyanath, AIR 1958 All 270: (1958) ILR 37 Pat 201.
63 .Ram Kishan v. Jagadeeswar, AIR 1956 Pat 13: (1956) ILR 1 All 395.
64 .Fatmabai v. Aishabai, (1889) ILR 13 Bom 242.
65 .Jiban v. Durga, (1894) ILR 21 Cal 252; Kachu v. Lakshmansingh, (1901) ILR 25 Bom 115.
66 .Mon Mohan v. Secretary of State, (1890) ILR 17 Cal 968; Bhivrav v. Sitaram, (1895) ILR 19 Bom 532; Ram Dayal v. Madan, (1899) ILR 21 All
425; Hays v. Padmanand, (1905) ILR 32 Cal 118; Kuppusamy v. Venkataramier, (1905) 15 Mad LJ 462.
67 .Doraiswami v. Subramania, (1918) ILR 41 Mad 188 (FB).
68 .Bipulbihari v. Nikilchandra, AIR 1929 Cal 566: (1930) ILR 57 Cal 381; Kalidas v. Keshablal, AIR 1931 Cal 788: (1931) 58 ILR Cal 1040.
69 .Muhammad Ishaq v. Muhammad Rustam, (1918) ILR 40 All 292.
70 .Gangadhar v. Sripad, AIR 1938 Bom 231(FB) : (1938) ILR Bom 655 : (1938) 40 Bom LR 324; overruling Atmaram v. Parashram, AIR 1920
Bom 39: (1920) ILR 44 Bom 954; Lakshmibai v. Jagannath, AIR 1932 Bom 222: (1932) ILR 56 Bom 292, Rama v. Saidappa, AIR 1935 Bom
306: (1935) ILR 59 Bom 454.
71 .Mukunda Krupa Sindu, AIR 1954 Ori 202 [LNIND 1954 ORI 25].
72 .Bansari Prasad v. Awadh Bihari, AIR 1952 Pat 475: (1952) ILR 31 Pat 731.
73 .Govindaswami v. Kandaswami, AIR 1927 Mad 779 [LNIND 1927 MAD 50]: (1927) 53 Mad LJ 489; Babu Ram v. Imanullah, AIR 1935 All
411: (1935) ILR 57 All 797.
74 .Kewal Singh v. Gurjant Singh, AIR 2000 P&H 60.
75 .Mancharam v. Kalidas, (1894) ILR 19 Bom 826.
76 .Kalipada v. Dwijapada, AIR 1930 PC 22: 57 IA 24 : (1930) 34 Cal WN 201.
77 .Sheoparsan v. Ramnandan, (1916) ILR 43 Cal 694 : 43 IA 91.
78 .Hook v. Administrator-General, AIR 1921 PC 11 (1921) ILR 48 Cal 499 : 48 IA 187; Abdul Sobhan v. Beni Madhab, AIR 1934 Cal 430:
(1934) ILR 61 Cal 1.
79 .Ram Kirpal v. Rup Kuari, (1884) ILR 6 All 269 : 11 IA 37.
80 .Hook v. Administrator-General, AIR 1921 PC 11: (1921) 48 Cal 499 : 48 IA 187.
81 .Apprnanath v. Kanailal, AIR 1950 Cal 300; Ramchandra v. Ramchandra, AIR 1922 PC 80: (1922) ILR 45 Mad 320 : 49 IA 129, p. 138;
Maharajadhiraj Sir Rameshwar Singh v. Hitendra Singh, (1925) 29 Cal WN 413 (PC), Bank of Baroda v. Fischo, AIR 1975 Cal 225 [LNIND
1974 CAL 18]: (1974) 78 Cal WN 535; Suryanarayanrao v. Rajeshwari, AIR 1966 AP 269 [LNIND 1965 AP 84]; Abdul Ghani v. Mahant
Ram Saran, AIR 1976 J&K 72.
82 .Rajalakshmi v. Banamali, AIR 1953 SC 33 [LNIND 1952 SC 59]: (1953) SCR 154 [LNIND 1952 SC 59]; Burn and Co. v. Employees, AIR
1957 SC 38 [LNIND 1956 SC 78]: (1956) SCR 781 [LNIND 1956 SC 78] (1957) SCJ 28 : (1957) SCA 1175; MSM Sarma v. Sir Krishna
Sinha, AIR 1960 SC 1186 [LNIND 1960 SC 168]: (1961) 1 SCR 96 [LNIND 1960 SC 168] (1961) 2 SCJ 73 [LNIND 1960 SC 168] :
(1961) 2 SCA 582 [LNIND 1960 SC 168]; Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 [LNIND 1961 SC 133]: (1962) 1 SCR 574
[LNIND 1961 SC 133] : (1962) 1 SCJ 702 [LNIND 1961 SC 133].
83 .Staya Dhyan v. Deo Ranjini Debi, AIR 1960 SC 941 [LNIND 1960 SC 129]: (1960) 3 SCR 590 [LNIND 1960 SC 129] : (1961) 1 SCA 10;
Abdul Shukur v. Kotwaleshwar, AIR 1958 All 54 [LNIND 1957 ALL 55]; Corporation of Calcutta v. Sirajuddin and Co., AIR 1957 Cal 399
[LNIND 1957 CAL 41]: (1957) 61 CWN 1009 [LNIND 1957 CAL 41]; Benode Behari v. State of West Bengal, AIR 1971 Cal 400 [LNIND
1971 CAL 63]; Braj Bhushan v. Nigendra Singh, AIR 1977 Pat 129; Y.B. Patil v. Y.L. Patil AIR 1977 SC 392 [LNIND 1976 SC 289]: (1977)
1 SCR 320 [LNIND 1976 SC 289].
84 .Prabhu Halwai v. Fulchand, AIR 1969 Pat 16.
1 .Setabai Dei v. Ramdhani, AIR 1966 Cal 60 [LNIND 1965 CAL 55].
2 .Sita v. State, AIR 1969 All 342 [LNIND 1967 ALL 78]: (1967) ILR 2 All 775; Kanizan v. Ghulam Nabi, AIR 1965 All 296: (1964) All LJ
112.
3 .Mohammad Khalid v. Chief Commissioner, AIR 1968 Del 13 [LNIND 1967 DEL 43]: (1967) 69 Punj LR 279.
4 .Lalbati v. Satchitanand, AIR 1960 Pat 418.
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5 .Jalkaur v. Pala Singh, AIR 1961 Punj 391.

6 .Bhagavati v. Md. Ismail, AIR 1959 AP 601 [LNIND 1959 AP 59].
7 .Jasraj v. Hemraj, AIR 1977 SC 1011 [LNIND 1977 SC 82]: (1977) 2 SCC 155 [LNIND 1977 SC 82].
8 .Puranmal Bajoria v. Nagarmal, AIR 1980 Pat 143.
9 .Khurai Jam Ongbe Thoibisana Devi v. Ambubi Singh, AIR 1982 Gau 100.
10 .Ramakanta Das v. Gita Devi Choudhury, AIR 1991 Ori 279 [LNIND 1991 ORI 227].
11 .Gulam Abbas v. State of Uttar Pradesh, AIR 1981 SC 2198 [LNIND 1981 SC 425].
12 .Ghanshyam Das Agarwal v. Ram Chander, AIR 1988 All 303 [LNIND 1988 ALL 177].
13 .Munshi v. Chiranji Singh, AIR 1956 All 237 [LNIND 1955 ALL 144].
14 .Seshamma v. Gangaraju, AIR 1957 AP 841 [LNIND 1956 AP 53]: (1956) Andh LT 717 [LNIND 1956 AP 53].
15 .Krishna Bansi v. Gopichand, AIR 1963 Punj 163.
16 .Nikunja Behari v. Jithendranath, AIR 1956 Cal 613 [LNIND 1956 CAL 67].
17 .K. Manilal and Co. v. Belgaum Muni Borough, AIR 1968 Mys 323.
18 .Mangu Ram v. M. Venketaraman, (1987) 2 SCC 228.
19 .P.V.G. Rajugaru v. State of Andhra Pradesh, (1990) 2 SCC 61 [LNIND 1990 SC 39].
20 .Babua Ram v. State of Uttar Pradesh, (1995) 2 SCC 689.
21 .State of West Bengal v. Suburban Agriculture Diary and Fisheries Pvt. Ltd., (1993) Supp 4 SCC 674.
22 .Madhavan Nair v. Rama Kutty Menon, AIR 1994 Ker 75 [LNIND 1993 KER 446].
23 .Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 [LNIND 1961 SC 133]: (1962) 1 SCR 574 [LNIND 1961 SC 133]; Raja Jagannath v.
State of Uttar Pradesh, AIR 1962 SC 1563 [LNIND 1962 SC 145]; Phool Chand v. Chandra Sankar, AIR 1964 SC 782 [LNIND 1962 SC
410].
24 .Radha Shyam v. Patna Municipal Corpn., AIR 1956 Pat 182; Shamsul v. Asst. Custodian of Evacuee Property, AIR 1958 MP 82 [LNIND 1957
MP 78]; Maolraj v. Bafindgan, AIR 1960 Punj 602; Manahen v. Union of India, AIR 1960 Bom 196 [LNIND 1959 BOM 18]; Makhan Lal v.
State of West Bengal, AIR 1963 Cal 6 [LNIND 1962 CAL 56]; Nagabhushanam v. Ankam Ankaiah, AIR 1968 AP 74 [LNIND 1966 AP
187]; T.V. Setty v. Bangalore Municipality, AIR 1968 Mys 251; Bansi v. Addl Director, Consolidation of Holdings, AIR 1967 Punj 28: (1966) ILR 2
Punj 824; HA Sarkies v. Dist Magistrate, Meerut, AIR 1966 All 458 [LNIND 1965 ALL 128]; Mohd Fiazuddin v. Custodian, EPAP, AIR
1969 AP 158 [LNIND 1968 AP 105]; Padmanabhan v. State, AIR 1966 Ker 110 [LNIND 1965 KER 211]; A Subhan v. Union of India, AIR
1966 Cal 570 [LNIND 1966 CAL 30].
25 .Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 [LNIND 1961 SC 133]: (1962) 1 SCR 574 [LNIND 1961 SC 133]; Jyothi Prakash v.
Chief Justice, Calcutta High Court, (1963) 67 Cal WN 16.
26 .Piara Singh v. State of Punjab, AIR 1962 Punj 498; P.D. Sharma v. State Bank of India, AIR 1968 SC 958; SR Mills, Virudhunagar v. Government
of Madras, AIR 1968 SC 1196 [LNIND 1968 SC 4]; KVS Co. Ltd. v. Union of India, AIR 1976 Del 51 [LNIND 1975 DEL 98]; Super
Surgical Co. v. Desikan, AIR 1969 Mad 406 [LNIND 1968 MAD 140]; R. Pandhubai v. Bombay Cycle Importing Co., AIR 1970 Mad 474
[LNIND 1969 MAD 54]; Bijay Cotton Mills v. R.M.M. Singh, (1965) ILR 15 Raj 756 : AIR 1965 Raj 213 [LNIND 1965 RAJ 105].
27 .Metal Corpn. of India v. Union of India, AIR 1970 Cal 15 [LNIND 1969 CAL 75]: (1969) 73 Cal WN 676.
28 .Hindustan Twyfords Ltd. v. Daulat Ram, AIR 1965 Punj 50: (1964) 66 Punj LR 759.
29 .Daryoo v. State of Uttar Pradesh, AIR 1961 SC 1457 [LNIND 1961 SC 133].
30 .B. Dass v. State of Punjab, AIR 1965 Punj 342.
31 .R.C. Tiwari v. MP State Co-operative Marketing Federation Ltd., (1997) 5 SCC 125 [LNIND 1997 SC 2021].
32 .Gulab Chand v. State of Gujarat, AIR 1965 SC 1153 [LNIND 1964 SC 351]: (1965) 67 Bom LR 673 [LNIND 1964 SC 351].
33 .Union of India v. Nanak Singh, AIR 1968 SC 1370 [LNIND 1968 SC 24].
34 .Har Swarup v. General Manager, Central Railway, AIR 1975 SC 202.
35 .State v. B.N. Singh, AIR 1971 All 359: (1971) All LJ 90.
36 .Nawab Hussain v. State, AIR 1969 All 466.
37 .Niranjan Singh v. State of Madhya Pradesh, AIR 1972 SC 2115.
38 .P.L. Lakhanpal v. Union of India, AIR 1967 SC 908 [LNIND 1966 SC 197]: [1967] 1 SCR 433 [LNIND 1966 SC 197].
39 .S.P. Sharma v. Union of India, AIR 1968 Del 156 [LNIND 1968 DEL 12].
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40 .Burn and Co. v. Employees AIR 1957 SC 38 [LNIND 1956 SC 78]: (1957) SCJ 28 : (1957) SCA 1175; Walford Transport Ltd. v. First
Industrial Tribunal, AIR 1963 Cal 275 [LNIND 1961 CAL 13]; River Steam Navigation Co. v. Labour Court, AIR 1963 Assam 86.
41 .Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455 [LNIND 1976 SC 84]; SS Rly. Co. v. Workers Union, AIR 1969 SC 513 [LNIND
1968 SC 281]; Agra Electric Supply Co. v. Alladin, AIR 1970 SC 512 [LNIND 1969 SC 261]: (1970) 1 SCR 808 [LNIND 1969 SC 261];
Workmen v. Balmer Lawrie and Co., AIR 1964 SC 728 [LNIND 1963 SC 248]: (1964) 5 SCR 344 [LNIND 1963 SC 248]; Sahadara
Sahranpur Light Rly v. Workers Union, AIR 1969 SC 513 [LNIND 1968 SC 281].
42 .NR Co-op. Society v. Industrial Tribunal, Rajasthan, AIR 1967 SC 1182 [LNIND 1967 SC 419].
43 .Workmen v. Straw Board Mfg Co., AIR 1974 SC 1132 [LNIND 1974 SC 114]: (1974) SCC 681.
44 .Punjab Co-op. Bank Ltd. v. R.S. Bhatia, AIR 1975 SC 1898 [LNIND 1975 SC 537]: (1975) SCC 399.
45 .National Tobacco Co. v. Kalidas, AIR 1962 AP 160.
46 .Ram Kisto v. Dhankristo, AIR 1969 SC 204 [LNIND 1968 SC 157].
47 . Lalchand v. Radhakishan, AIR 1977 SC 789 [LNIND 1976 SC 501]: (1977) 2 SCR 522 [LNIND 1976 SC 501].
48 .Jodhan v. Board of Revenue, AIR 1967 All 442 [LNIND 1966 ALL 50].
49 .Janakiramier v. Neelakantier, AIR 1962 SC 633 [LNIND 1961 SC 338]; Radhey Shyam v. Beni Ram, AIR 1967 All 28 [LNIND 1966 ALL
29].
50 .Sheik Md. Ali v. Hunter, AIR 1943 Oudh 338(FB); Premchand v. Dhanmal, AIR 1954 Mad 384, (1953) ILR Raj 505; Neelkanta v. Kesavan,
AIR 1956 TC 161(FB) : (1956) ILR TC 87; Vishu v. Bhagadu, (1957) 99 Cal LJ 72; Rajalakshmi Dasi v. Banamali, AIR 1953 SC 33 [LNIND
1952 SC 59]: (1953) SCR 154 [LNIND 1952 SC 59].
51 .Sushil Kumar Ghosh v. Revenue Officer, AIR 1976 Cal 1 [LNIND 1975 CAL 209].
52 .Prahba Mfg. Industrial Co-op. Society v. Banwari Lal, (1989) 2 SCC 69 [LNIND 1989 SC 93].
53 .State of Uttar Pradesh v. Roop Lal Sharma, (1997) 2 SCC 62.
54 .P.N. Govindan v. Abdul Kri Subaida Beevi, AIR 1998 Ker 50 [LNIND 1997 KER 137].
55 .Tapan Kumar Mukhoty v. Bank of Madura Ltd., AIR 1999 Cal 305 [LNIND 1999 CAL 94].
56 .Guda Vijayaluxmi v. Guda Ramchandra Sekhara Sastry, AIR 1981 SC 1143 [LNIND 1981 SC 159].
57 .Basu Deb Nath v. Diptikona Nath, AIR 1998 Gau 107.
58 .Hardan Singh v. Deputy Director of Consolidation, (1993) Supp 1 SCC 457.
59 .Prafulla Chandra Chadhoi v. Sarat Rout, AIR 1998 Ori 41.
60 .United India Insurance Ltd. v. Sharda Adyanathaya, AIR 1998 Kant 141 [LNIND 1997 KANT 250] (FB).
61 .Maghraj Calla v. Kajodimal, AIR 1994 Raj 11.
62 .Mangal Pershad Dichit v. Girija, (1882) ILR 8 Cal 51; Akhoy Kumari v. Nalini Ranjan, AIR 1950 Cal 493 [LNIND 1950 CAL 44]: (1950) 54
Cal WN 815 (execution proceedings); Balai v. Nibaram, AIR 1947 Cal 410: (1947) 51 Cal WN 644. See also s 26F of the Bengal Tenancy
Act 1885. Ankapada v. Yadlapalli, AIR 1946 Mad 509: (1946) ILR Mad 566. See also Madras Religious Endowments Act 1959.Krishnabai v.
Baburao, AIR 1978 Bom 290 [LNIND 1977 BOM 190] See s 38, Order of the Bombay Tenancy Act 1885; A Thakurdas v. A. Venilal,
AIR 1977 Kant 60 [LNIND 1976 KANT 118] (Introductory Orders); Koran v. Kamala Shetty, AIR 1978 Ker 172 [LNIND 1977 KER
76]; Govindan v. Raman, AIR 1978 Ker 217 [LNIND 1978 KER 63] (deserver of tribunals under Kerala Law Reforms Act 1963).
63 .State of Jammu and Kashmir v. Sanna Ullah, AIR 1966 J&K 45.
64 .Ashoka Construction Co. v. Union of India, AIR 1969 Tri 19.
65 .P.C. Ray and Co. v. Union of India, AIR 1971 Cal 512 [LNIND 1971 CAL 138].
66 .Jiwnani Eng Works v. Union of India, AIR 1978 Cal 228 [LNIND 1977 CAL 69]; Talchar Coal Fields v. Central Coal Fields, AIR 1978 Cal 449
[LNIND 1978 CAL 278].
67 .Abhinav Vidyatrith v. Charity Commr, AIR 1967 Bom 194 [LNIND 1962 BOM 84]: (1964) ILR Bom 819 : (1963) 65 Bom LR 459; Rewa
Coal Fields v. Central Govt., AIR 1969 MP 174 [LNIND 1968 MP 12].
68 .M. Venkataratnam v. M. Ramdas, AIR 1971 AP 281 [LNIND 1970 AP 64].
69 . AIR 1930 PC 22: 57 IA 24 : (1930) 34 CWN 201.
70 .Dwijapada Das v. Kalipada Das, AIR 1927 Cal 421: (1926) 31 Cal WN 898.
71 .Arunmoyi v. Mohendra Nath, (1893) ILR 20 Cal 888; Lalit Mohan v. Radharaman, (1911) 15 Cal WN 1021.
72 .Chintaman v. Ramchandra, (1910) ILR 34 Bom 589; Maqubal Shah v. Muhammad, (1918) PR 49, p. 167.
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73 .Nazhatuddown v. Mirza Kurratulain, (1903) ILR 31 Cal 186; Venkaturatnam v. Yanamadra, AIR 1924 Mad 578: (1924) 46 Mad LJ 383; Babu
Lal v. Hari Baksh, (1918) PR 13, p. 60.
74 .Kalyanchand v. Sitabai, (1914) ILR 38 Bom 309. See also Brendon v. Sundarabai, (1914) ILR 38 Bom 272.
75 .Maung Hmat v. Ma Htay, AIR 1923 Rang 257: (1923) 1 Rang 258.
76 .Rustomji v. Manecksha, AIR 1955 Bom 447 [LNIND 1954 BOM 116]: (1955) ILR Bom 821; Avudh Narain v. Sahi Dulai, (1953) ILR 2 All
1; Chintamoni v. Chari, AIR 1962 Ori 224 [LNIND 1962 ORI 7].
77 .Hen Nolini v. Isolye Saroj Bashini, AIR 1962 SC 1471 [LNIND 1962 SC 76].
78 .Binod Sahu v. Chandrama Sahu, AIR 2003 Ori 11 [LNIND 2002 ORI 158]. See Also Savitri Devi v. Manorama Bai, AIR 1998 MP 114
[LNIND 1997 MP 54]; V.K. Kamalam v. Panchali Amma, AIR 1988 Ker 265 [LNIND 1987 KER 321].
79 .District Red Cross Society v. Joginder Pal, AIR 2002 P&H 5.
80 .Ram Kirpal v. Rup Kuari, (1884) ILR 6 All 269 : (1983) 11 IA 37.
81 .Beni Ram v. Nandu Mal, (1885) ILR 7 All 102 : (1885) 11 IA 181; Venkatanarsimha v. Papammah, (1896) ILR 19 Mad 54.
82 .Venkamamidi v. Nannapaneni, AIR 1943 Mad 449; (1943) ILR Mad 804; Sadashiv v. Raja Kishtappa Naik, AIR 1950 Hyd 15; Behari Lal v.
Majid, (1901) ILR 24 All 138; Bhawanishankar v. Narainishankar, (1899) ILR 23 Bom 536; Doorvas v. Govindaswamy, AIR 1921 Mad 315
[LNIND 1921 MAD 27]: (1921) 40 Mad LJ 556.
83 .Prahlad Dora v. State, AIR 1969 Ori 21 [LNIND 1968 ORI 85]; Gauranga Chandra v. Naba Kumar Dev, AIR 1965 Tri 1.
84 .Akay Kumari v. Nalini Ranjan, AIR 1950 Cal 493 [LNIND 1950 CAL 44]: (1950) 54 Cal WN 815; Raja Ramand v. Velusami Tewar, AIR
1921 PC 23: (1917) 40 Mad LJ 197 : 48 IA 45; Sheoraj v. Kameshar, (1902) ILR 24 All 282; Prokash Chandra v. Baradakishore, AIR 1934 Cal
282: (1934) 61 ILR Cal 234; Delhi and London Bank v. Orchard, (1877) 3 Cal 47 : 4 IA 127, is not inconsistent with the later decisions. See
also Mr Leiths reply as reported in (1877) ILR 3 Cal 47.
85 .Manjunath v. Venkatesh, (1892) ILR 6 Bom 54; Bandey v. Romesh Chunder, (1883) ILR 9 Cal 65.
86 .Prem Lata v. Lakshman Prasad, AIR 1970 SC 1525 [LNIND 1970 SC 230]; Pushpa v. Ganpat Singh, AIR 1977 Raj 216.
87 .Bhagwat Pershad v. Abdul Basit, AIR 1962 Punj 379.
88 .Shyam Sunder v. Mathura Prasad, AIR 1948 Pat 192; Benny Krishna v. Mohanlal, AIR 1950 Cal 287; Bal Mukund v. Firm Prithiraj, AIR 1951
Pat 333; Habibur Rahman v. Vijaya Charan, AIR 1959 Pat 31.
89 .Shyam Sunder v. Ramdas, (1946) ILR 25 Pat 297; Dunna Venkata Rao v. Surya Rao, AIR 1950 Mad 2 [LNIND 1948 MAD 33], (1950) ILR
Mad 39; Kapur Chand v. Kanhaiya Lal, AIR 1924 All 34: (1923) ILR 45 All 735; in appeal from AIR 1922 All 247: (1922) ILR 44 All 130
(decision as to which persons are liable in execution and what property is liable to be taken in execution); Doorvas v. Govindaswami, AIR
1921 Mad 315 [LNIND 1921 MAD 27]: (1921) 40 Mad LJ 556, (erroneous finding of application to wrong court); Shamrao v.
Malkarajun, AIR 1931 Bom 451: (1931) 33 Bom LR 797, (finding that a judgment-debtor is not an agriculturist); Mir Hassan Ali v. Sanli
Begum, AIR 1931 Bom 507: (1931) 33 Bom LR 1139; Venkatachalapathi v. Venkatapapayya, AIR 1932 Mad 86 [LNIND 1931 MAD 174]:
(1932) ILR 55 Mad 495; Rangappa v. Rindawa, AIR 1954 Bom 139 [LNIND 1953 BOM 5]: (1953) ILR Bom 993, where it was further
observed that the word suit might in certain circumstances include execution proceedings; Sadhucharan v. Sudarashan, AIR 1965 Ori 2
[LNIND 1964 ORI 37]; Girdharan Prasad v. State of Bihar, AIR 1968 Pat 77; Maqbool Alam v. Khodaija, AIR 1966 SC 1194 [LNIND 1966
SC 37]; Presidency Industrial Bank v. LH Industries, AIR 1969 Bom 84 [LNIND 1967 BOM 122]: (1968) 70 Bom LR 373; R Rajamma v. A.
Saraswathamma, AIR 1973 AP 132 [LNIND 1972 AP 107]; Jambu Anna v. Shri Bapu, AIR 1972 Bom 141 [LNIND 1970 BOM 41]:
(1971) ILR Bom 772 : (1971) 73 Bom LR 606; Revati Devi v. Khilali Ram, AIR 1967 Del 199.
90 .Mohan Lal Goenka v. Binoy Krishan Mukherjee, AIR 1953 SC 65 [LNIND 1952 SC 88].
91 .Kamla Bai v. Mangi Lal Dulli Chand, (1987) 4 SCC 585 [LNIND 1987 SC 693].
92 .Gnanambal v. Parvathi, (1892) ILR 15 Mad 477; Harendra Lal v. Sham Lal, (1900) ILR 27 Cal 210.
93 .Gourmoni v. Jugat Chandra, (1890) ILR 17 Cal 57, p. 63.
94 .Ram Nardin v. Basudeo, AIR 1947 Pat 298: (1946) ILR 25 Pat 595; Lakshmibai v. Ravji, AIR 1929 Bom 217; (1929) 31 Bom LR 400;
Hazura Singh v. Jewon Singh, AIR 1958 Punj 339; Jethmul v. Sakina, AIR 1961 Raj 59 [LNIND 1960 RAJ 6].
95 .Thakur Persha v. Sheikah Fakirullah, (1895) ILR 17 All 106 : 22 IA 44.
96 .Hari v. Yamunabai, (1899) ILR 23 Bom 35.
97 .Kishore Bun Mohunt v. Prosunno Coomar, (1894) 21 Cal 784 : 21 IA 89.
98 .Ram Chandra Nahaka v. Bharat Ram, AIR 1967 Ori 38 [LNIND 1964 ORI 50]: (1964) ILR Cut 494.
1 .Ghanshyamdas v. Ghambir Mal, AIR 1965 Raj 155 [LNIND 1963 RAJ 119]: (1964) ILR 14 Raj 431.
2 .Ganpat Singh v. Kailash Shanker, (1987) 3 SCC 146 [LNIND 1987 SC 469].
3 .Ulahannan Job v. The Prudential Trust, AIR 1965 Ker 16 [LNIND 1963 KER 257]: (1964) ILR 2 Ker 200.
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4 .Bholanath v. Prafulla, (1901) ILR 10 Cal 122; Kashinath v. Ramchandra, (1883) ILR 7 Bom 408; Nageshwar v. Jai Bahadur, AIR 1932 Pat 357:
(1932) ILR 11 Pat 607.
5 .Aswini Kumar v. Karamat Ali, AIR 1948 Cal 165: (1948) 82 Cal LJ 278.
6 .Shanmugavelu v. Karuppanna Swami, AIR 1954 Mad 1071.
7 .Sori Dibya v. Kanhucharan, AIR 1961 Ori 86 [LNIND 1960 ORI 123]; Ram Narain v. Basudev, AIR 1947 Pat 298: (1946) ILR 25 Pat 595.
See also Bhagavati v. Radhakishun, AIR 1950 Pat 354; Biswanath v. Subala Dasi, AIR 1962 Cal 272 [LNIND 1961 CAL 113].
8 .Jagdish Chand Gupta v. Rajinder Parshad, AIR 2002 P&H 251.
9 .Ram Charan v. Salik Ram, AIR 1930 All 628: (1930) ILR 52 All 217; Mangat Rai v. Duli Chand, AIR 1933 All 57: (1933) ILR 55 All 735.
10 .Sankar Ramkrishna v. Daga Tanaji, AIR 1949 Bom 79: (1948) ILR Bom 517, (1948) 50 Bom LR 610; Sham Sundar v. Dhiruendra, AIR 1950
Pat 465: (1950) ILR 29 Pat 732; Promotha v. Babu, AIR 1945 Cal 335: (1945) 49 Cal WN 260; Harishchandra v. Dinesh, AIR 1946 Cal 375:
(1946) 50 Cal WN 667; Venkoteranga v. Sithama, AIR 1941 Mad 440 [LNIND 1940 MAD 375]; Nanda Rai v. Raghunandan, (1885) ILR 7
All 282 (limitation); Desaiappa v. Dundappa, (1920) ILR Bom 44 227 (limitation); Gadigappa v. Shidappa, AIR 1924 Bom 495: (1924) ILR 48
Bom 638 (limitation); Prabhulingappa v. Gurunath, (1920) 22 Bom LR 1389 [LNIND 1920 BOM 128] (limitation); Raghubar v. Gokaran, AIR
1926 Oudh 291: (1926) 1 Luck 171; Rajitagiripathy v. Bhanani, AIR 1924 Mad 673 [LNIND 1924 MAD 51]: (1924) ILR 47 Mad 641
(transfer of decree, limitation); Sher Singh v. Daya Ram, (1891) ILR 13 All 564 (execution barred under O 23, r. 1); Dambar Singh v.
Kaliansingh, AIR 1922 All 27: (1922) ILR 44 All 350 (decree not capable of execution); Brajlal v. Atkinson, (1920) 5 Pat LJ 639 (non-
service of notice on transfer or under O 21, r. 16); Taj Singh v. Jagan Lal, (1916) ILR 38 All 289 (validity of transfer of decree); Govinda v.
Krishna, AIR 1923 Mad 649 [LNIND 1923 MAD 2]: (1923) 45 Mad LJ 71(whether decree capable of execution); Makund v. Saraswati,
(1919) 29 Cal LJ 245 (claim for mesne profits); Madilidi v. Satti, (1918) 35 Mad LJ 312 (propriety of order of attachment). See also
Ramchandra v. Shrinivas, AIR 1922 Bom 238: (1922) ILR 46 Bom 467; Mahadeo v. Trimbakbhat, (1919) 21 Bom LR 344 [LNIND 1918
BOM 134]; Dip Prakash v. Bohra Dwarka Prasad, AIR 1926 All 71: (1926) ILR 48 All 201, (disobedience to decree for injunction); Daw
Ohn Bwin v. U Ba, AIR 1930 Rang 213: (1930) ILR 8 Rang 302; Lalit Mohan v. Sarat Chandra, AIR 1933 Cal 855: (1933) 37 Cal WN 752;
Venkappa v. Lakshmi Kant, AIR 1956 Hyd 7(FB) : (1955) ILR Hyd 797; Abdul Aziz v. Official Receiver, (1958) 2 Mad LJ 526; Karana Kodan
Gowda v. Manika Pai, AIR 1959 Ker 384 [LNIND 1957 KER 327]: (1958) ILR Ker 314.
11 .Sham Sundar v. Dhirendra, AIR 1950 Pat 465; (1950) ILR 29 Pat 465; Kameshwar v. Krishnanand, AIR 1955 Pat 423.
12 .Lakkarji v. Bhagavati Deem, (1957) ILR 2 All 118.
13 .Sha Shivara v. Edappakath Ayissa Bi, (1949) 54 CWN 55 (PC) : AIR 1949 PC 302.
14 .Adisesha Ayyar v. Pappammal, AIR 1950 Mad 341 [LNIND 1949 MAD 164].
15 .Drigbijay v. Bhagwan, (1930) 5 Luck 458 : AIR 1930 Oudh 65: (1885) ILR 7 All 282; Rama Adhar v. Nemkumar, AIR 1953 All 139
[LNIND 1952 ALL 31].
16 .Akshoy Kumari v. Nalini Rajan, (1951) ILR 2 Cal 240 : AIR 1950 Cal 493 [LNIND 1950 CAL 44].
17 .Birjii Safdar Ali v. The Ideal Bank, AIR 1949 EP 94(FB); Alagappa Chettiar Muthukaruppa Chettiar, AIR 1947 Mad 305 [LNIND 1946
MAD 215]; but see Sham Sundar v. Dhirendra, AIR 1950 Pat 465; (1950) ILR 29 Pat 465; Gangadhar v. Jagmohan, AIR 1931 Bom 446:
(1931) 33 Bom LR 781.
18 .Jayanand v. Dukhia, AIR 1965 Pat 86.
19 .Bibi Ved v. Balkrishna, AIR 1933 Lah 594: (1933) ILR 14 Lah 409.
20 .Dadu Raghu Patil v. Tukaram, AIR 1959 Bom 221 [LNIND 1958 BOM 43]: (1958) ILR Bom 592.
21 .Venkateseshiah v. Veeriah, AIR 1958 AP 1 [LNIND 1957 AP 2] (FB) : AIR 1957 AP 326; Raman Lal v. Shantilal, AIR 1961 All 178
[LNIND 1959 ALL 151]; Baijnath Prasad v. Ram Phal, AIR 1962 Pat 72 [LNIND 1961 PAT 2] (FB). See also contra Gowri v. Ude, AIR
1942 Lah 153: (1942) ILR Lah 559; Mohanram v. Sundararamier, AIR 1960 Mad 377 [LNIND 1960 MAD 238]: (1960) ILR Mad 747.
22 .Barkat Ali v. Badrinarain, AIR 2001 Raj 51(DB).
23 .Gopal Krishan v. Ram Lal, AIR 1989 Raj 24.
24 .Jaiprakash v. Khimaraj, AIR 1991 Raj 136.
25 .Mohanlal v. Binoi Krishna, AIR 1953 SC 65 [LNIND 1952 SC 88]: [1953] SCR 377 [LNIND 1952 SC 88] : (1953) SCJ 130 [LNIND 1952
SC 88].
26 .Pannalal v. Appalabhuktala, AIR 1969 Ori 147 [LNIND 1968 ORI 107]: (1968) ILR Cut 899.
27 .Direndranath v. Satishchandra, AIR 1956 Pat 4: (1955) ILR 34 Pat 746; Jagannath Ramasami v. Lakshmi Narain, AIR 1960 Ori 197 [LNIND
1960 ORI 59] (FB) (1961) ILR Cut 9); Sathappa Siddappa v. Heerachand Atmaram, AIR 1961 Mys 54; Raman v. Ambujakshi Amma, AIR 1962
Ker 15 [LNIND 1961 KER 112].
28 .Usha Devi v. Devidas, AIR 1955 Bom 239 [LNIND 1954 BOM 113]: (1955) ILR Bom 546.
29 .Lakshmi Narayana v. Lakshmi Venkiamma, AIR 1957 AP 207 [LNIND 1956 AP 5].
 Page 98 of 102
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30 .Kalyan Singh v. Jagan Prasad, (1951) ILR 37 All 589; Sheo Mangal v. Hulsa, AIR 1922 All 413: (1921) ILR 44 All 159; Phul Chand v. Kanhaiya
Lal, AIR 1922 All 247: (1922) ILR 44 All 130; Ulaganath v. Alagappa, AIR 1929 Mad 903 [LNIND 1929 MAD 170]; Alagappa v.
Ramanatha, AIR 1933 Mad 466 [LNIND 1932 MAD 252]; Kailash Tevar v. Ramaswami, AIR 1949 Mad 238; Bapanna v. Vengiah, AIR 1937
Mad 511 [LNIND 1936 MAD 324]; Subbarao v. Satyanarayana, AIR 1953 Mad 948; Rajababu v. Syed Muhammad, AIR 1961 Raj 227
[LNIND 1960 RAJ 148].
31 .Ulaganatha v. Alagappa, AIR 1929 Mad 903 [LNIND 1929 MAD 170].
32 .Haranath v. Hirdai Narain, AIR 1953 Pat 242.
33 .Prakashmal v. Thikana Khatu, AIR 1954 Raj 54 [LNIND 1952 RAJ 260]: (1952) ILR Raj 224.
34 .Nunna Seshamma v. Kalla Gangaraju, AIR 1957 AP 841 [LNIND 1956 AP 53].
35 .Prithi v. Jamshad, AIR 1922 Pat 289: (1922) ILR 1 Pat 593; Gourmoni v. Jughat Chandra, (1890) ILR 17 Cal 57, p. 63; Somasundaram v.
Chokkalingam, (1917) ILR 40 Mad 780; Subramania v. Rajeswara, (1917) ILR 40 Mad 1016; dissented from in Raghubar v. Gokaran, AIR
1926 Oudh 291: (1926) 1 Luck 171.
36 .Mannu Singh v. Hanuman Singh, AIR 1951 All 398 [LNIND 1950 ALL 224]. See also Ajimuddin v. Budheswar Sarma, AIR 1951 Assam 75:
(1950) ILR 2 Assam 215; Nizamuddin v. Ikramul Haq, AIR 1947 All 143: (1946) ILR All 843; Gendalal v. Hazari Lal, AIR 1936 All 21(FB) :
(1936) ILR 58 All 313; Ali Rasul v. Balkishan, AIR 1937 All 446: (1937) All LJ 482.
37 .Venkatarama v. Chinnaseethamma, AIR 1941 Mad 440 [LNIND 1940 MAD 375] (FB) : (1941) 1 Mad LJ 270; Adilakshmi v. Srinivasa, AIR
1944 Mad 193 [LNIND 1943 MAD 202]; Vairavan Chetty v. Rayaloo Iyer, AIR 1951 Mad 844 [LNIND 1950 MAD 321]: (1951) 1 Mad
LJ 298; Sadashiv v. Radhakistappa, AIR 1950 Hyd 15; Ashvini Kumar v. Karamat Ali, AIR 1948 Cal 165; Amar Singh v. Gulabchand, AIR 1960
Raj 218: (1960) ILR 10 Raj 835; dissenting from Surjan Singh v. Gindorilal, AIR 1957 Raj 398 [LNIND 1956 RAJ 25]; contra Gendalal v.
Hazarilal, AIR 1936 All 21, (1936) ILR 58 All 313; Appaiah v. Venkataratnam, AIR 1954 Mad 1 [LNIND 1953 MAD 11]: (1953) 2 Mad
LJ 225; K Kalabhai v. CC Sodagar, AIR 1973 Guj 19 [LNIND 1972 GUJ 114]: 14 Guj LR 136.
38 .Palai Bank v. Ramaswami Nadar, AIR 1959 Ker 194 [LNIND 1958 KER 254].
39 .Chintamani v. Zahiruddin, AIR 1956 Pat 57.
40 .Tarabai v. Union of India, AIR 1971 Cal 225 [LNIND 1969 CAL 89]: (1970) 74 Cal WN 789.
41 .Ashok Kumar Srivastava v. National Insurance Co. Ltd., (1998) 4 SCC 361 [LNIND 1998 SC 490].
42 .Chothy Theyyathan v. John Thomas, AIR 1997 Ker 249 [LNIND 1997 KER 26].
43 .Subbiah v. Sakthi Finance Ltd., AIR 2006 (NOC) 1296(Mad).
44 .Yashodabai Ganesh Naik Gauvekar v. Gopi Mukund Naik, AIR 2003 Bom 77 [LNIND 2002 GOA 25].
45 .Bangsidar v. Jagmohan, AIR 1945 Oudh 21: (1944) ILR 19 Luck 93; Venkataranga v. Sithamana, AIR 1941 Mad 440 [LNIND 1940 MAD
375]: (1941) 1 Mad LJ 270; Subbiah v. Ramanathan, (1914) ILR 37 Mad 462; Lakshmanan v. Kuttayan, (1901) ILR 24 Mad 669.
46 .Noor Mahomed v. Mahomed Khan, AIR 1930 All 699: (1930) ILR 52 All 1054; Sarala Bala Devi v. Shyam Prasad, AIR 1953 Cal 765.
47 .Azagappa v. Ramanathan, AIR 1933 Mad 466 [LNIND 1932 MAD 252]: (1933) 64 Mad LJ 629; Pramatha Nath v. Mackey, AIR 1933 Pat
208: (1933) ILR 12 Pat 179; Kuruvilla v. Ouseph Joseph, AIR 1957 TC 40: (1956) ILR T C 726.
48 .Mittasaheb v. Gurunath, AIR 1943 Bom 252: (1943) 45 Bom LR 519; Narayan v. Gopal Krishna, (1905) ILR 28 Mad 355; Sheik Budan v.
Ramchandra, (1887) ILR 11 Bom 537; Chidambaram v. Thaivanai, AIR 1924 Mad 1 [LNIND 1923 MAD 111]: (1923) ILR 46 Mad 768.
49 .Kuruvilla v. Ouseph Joseph, AIR 1957 TC 40: (1956) ILR TC 726.
50 .Banchha Nidhi Naik v. Collector of Balasore, AIR 1957 Ori 274: (1957) ILR Cut 446.
51 .Rafatulla v. Kundarmal, AIR 1935 Cal 727: (1935) 38 Cal WN 1144; Bir Bikram v. Khaliler, AIR 1935 Cal 646: (1935) 39 Cal WN 1206.
52 .Mithasaheb v. Gurunath, AIR 1943 Bom 252: (1943) 45 Bom LR 519; Official Receiver v. Hira Lal, AIR 1935 All 727: (1935) All LJ 642.
53 .Raghava Reddi v. Krishnayya, AIR 1960 AP 631 [LNIND 1960 AP 23].
54 .Shyam v. Venkata, AIR 1951 Mys 118: (1952) ILR Mys 24.
55 .Gandhi Lakshmi Chand v. Tulsidas, AIR 1963 Guj 1 [LNIND 1962 GUJ 35]; Chandra Choor v. Krishnawati, AIR 1969 Pat 251.
56 .P. Sainath Reddy v. G. Narayana Reddy, AIR 1982 AP 247 [LNIND 1981 AP 202] (DB).
57 .Ram Awadh v. Deputy Director, Consolidation, AIR 1986 All 15 [LNIND 1984 ALL 228].
58 .Bhaskar Traders v. Minikipacha Kunhiraman, AIR 1988 Ker 227 [LNIND 1987 KER 302].
59 .Kalidas v. Prasanna, (1920) ILR 47 Cal 446; Coventry v. Tulsi, (1904) ILR 31 Cal 822.
60 .Union of India v. Byram Pestonji Gariwala, AIR 1991 Bom 185 [LNIND 1990 BOM 603].
61 .Ram Kirpal v. Rup Kuari, (1884) ILR 6 All 269 : (1883) 11 IA 87.
62 .Hook v. A.G. of Bengal, AIR 1921 PC 11: (1921) ILR 48 Cal 499 : 48 IA 187; Badar Bee v. Habib Merican Noordin, AIR 1909 Cal 615.
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63 .German Democratic Republic v. DIU Ltd., AIR 1972 Bom 27 [LNIND 1970 BOM 76]: (1972) ILR 74 Bom 731 : (1971) 73 Bom LR 183.
64 .Asa v. Ganesh, AIR 1930 Lah 836: (1930) ILR 11 Lah 470.
65 .Khalilur Rahman v. Syed Husaini, AIR 1961 Mad 220 [LNIND 1960 MAD 251].
66 .Punjab University v. PC Handa, AIR 1971 P&H 177.
67 .UP Supply Co. v. T.N. Chatterjee, AIR 1972 SC 1201 [LNIND 1972 SC 154].
68 . Kalaiselvan v. Velusamy, (2007) 4 MLJ 866 [LNIND 2007 BMM 446] (Madu-Mal).
69 . AIR 1931 PC 289: (1931) 35 Cal WN 1287 : 58 IA 381; Md. Naim v. Rowraffic and Far Eastern Ltd., AIR 1960 Cal 146 [LNIND 1959
CAL 164].
70 .Lahori Singh v. Official Receiver, AIR 1937 Lah 4; MRMS Chettiar Firm v. Official Assignee, (1937) ILR 14 Rang 652; contra Gannamani v.
Donga, AIR 1950 Mad 184 [LNIND 1949 MAD 25].
71 . AIR 1965 Mad 331 [LNIND 1964 MAD 83]: (1965) ILR 1 Mad 34 : (1965) 1 Mad LJ 242.
72 .Rangappa v. Rangappa, AIR 1933 Mad 9 [LNIND 1932 MAD 215]: (1933) ILR 56 Mad 395; contra Bhalchandra Gangadhar v. G.B. Pasule,
AIR 1947 Nag 76: (1946) ILR Nag 937.
73 .Atmaram v. Chitra Production, Co., AIR 1952 Punj 99.
74 .Kishan Piarey v. Ram Dei, AIR 1965 All 248.
75 .Krishna Chandra v. Manik Lal, AIR 1939 Cal 169: (1938) ILR 2 Cal 418.
76 .Secunderabad Commercial and Banking Co. v. Indermull, AIR 1950 Hyd 59; Prem Nath v. Har Ram, AIR 1934 Lah 771.
77 .Babu Bhagwan Din v. Gir Har Saroop, 67 IA 1, p. 5.
78 .Kiron Chandra v. Bijoy Chandra, AIR 1950 Cal 123.
79 .Sailendranath v. Chillarram, AIR 1955 Cal 251.
80 .Subose Chandra v. Manoram, (1956) ILR 1 Cal 150.
81 .Jaikishan v. State of Rajasthan, AIR 1958 Raj 56 [LNIND 1957 RAJ 66]: ( 1958) ILR Raj 72; Hanuman Prasad v. Board of Revenue, (1957)
ILR Raj 1 : AIR 1957 Raj 281 [LNIND 1956 RAJ 18]; Panna v. Board of Revenue, AIR 1958 Raj 74 [LNIND 1957 RAJ 70]: (1958) ILR 8
Raj 80.
82 .Venkataraya v. Louis, AIR 1960 Mys 209; differing from Narasimha v. Muthuswami, (1958) 2 Mad LJ 216 : 1958 Mad WN 603.
83 .Bhudev Pandey v. Gupteswar, AIR 1951 Pat 537: (1949) ILR 28 Pat 814.
84 .Tribeni Missir v. Gopal Misra, AIR 1963 Pat 60.
85 .Langat Singh v. Janki Koer, (1911) ILR 39 Cal 265; A Chettiar v. Kanthimathi Ammal, AIR 1966 Mad 319 [LNIND 1965 MAD 148]: (1966)
ILR 2 Mad 295 : (1965) 2 Mad LJ 551.
86 .Pramath Nath v. Mackey, AIR 1933 Pat 208: (1933) ILR 12 Pat 179.
87 .Subbiah Nadar v. Champaka Pillai, AIR 1961 Mad 413 [LNIND 1960 MAD 270]; Bechelal v. Hem Singh, AIR 1953 All 485 [LNIND 1952
MAD 264].
88 .Umesh Chandra Karan v. Shail Kumari Devi, AIR 2007 Pat 10: 2006 (3) Pat LJR 552.
89 .Srish Chandra v. Triguna, (1913) ILR 40 Cal 541.
90 .Sanjay Kedia v. State of Bihar, (1994) Supp 1 SCC 509.
91 .State of Jammu and Kashmir v. Sanahullah Meer, (1980) 3 SCC 272 [LNIND 1980 SC 158].
92 .Zingu Deorao v. Mahadeo Parashranji, AIR 1948 Nag 358: (1948) ILR Nag 747; Surayya v. Gangadhara Ram Krishna, AIR 1936 PC 258; Ravesh
Chand v. Board of Revenue, AIR 1973 All 120.
93 .Shib Singh v. Gaura, AIR 1944 Mad 601: AIR 1945 All 76.
94 .Narasamma v. Venkataratnam, AIR 1965 AP 12 [LNIND 1963 AP 246].
1 .Nagnath v. Kishan, AIR 1972 Bom 228 [LNIND 1971 BOM 48]: (1972) 74 Bom LR 41; Sorojini v. Bhaskar, AIR 1977 Ori 42 [LNIND
1976 ORI 56]: (1976) ILR Cut 1482.
2 .Narayan Chandra v. Nath Bank Ltd., AIR 1967 Pat 124: (1965) ILR 44 Pat 87; K. Subbarao v. Sri Ramulu, AIR 1970 AP 258 [LNIND 1968
AP 57].
3 .Gurrala Jaggarao v. Gopisetti Bhaskara Ramchandra Rao Dora, AIR 1958 Ori 58.
4 .Sahadeb Nayak v. Satyabadi Nayak, AIR 1984 Ori 30 [LNIND 1983 ORI 40].
 Page 100 of 102
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5 .Krishana Chandra Naiyak v. Nilakantha Mohanty, AIR 1996 Ori 1 [LNIND 1995 ORI 202].
6 .Ajmer Central Co-op. Bank Ltd. v. Prescribed Authority, AIR 1996 SC 2911.
7 .Puthiyottil Kunhava v. Kaniattichalil Mammadukully, AIR 1990 Ker 132.
8 .Ibid.
9 .H.G. Shiranandappa v. State of Karnataka, AIR 1991 NOC 83(Kant).
10 .Iyatteri Shanmughan v. Palhiyotil Radha, AIR 1989 Ker 227 [LNIND 1988 KER 457].
11 .Puthiyottil Kunhava v. Kaniattichalil Mammadukully, AIR 1990 Ker 132.
12 .Laxmi Mani Dasi v. Manik Chandra Das, AIR 1991 Cal 231 [LNIND 1990 CAL 80].
13 .Iyatteri Shanmughan v. Palhiyotil Radha, AIR 1992 Ker 227.
14 .Mohammad v. Nemichand, AIR 1986 MP 155 [LNIND 1985 MP 142].
15 .Ibid.
16 .Binay Kumar Das v. Sunil Kumar Patra, AIR 1989 Ori 156 [LNIND 1989 ORI 95] (FB).
17 .Ibid.
18 .Moturi v. Sri Rajah Venkatadri, (1916) 31 Mad LJ 219; Rajani v. Ajmuddin, AIR 1929 Cal 163: (1928) 48 Cal LJ 577; contra Raja of
Venkatagiri v. Province of Madras, AIR 1947 Mad 5: (1947) ILR Mad 190. See also K. Subbarao v. Sri Ramalu, AIR 1970 AP 258 [LNIND
1968 AP 57].
19 .Rajani v. Ajmuddin, AIR 1929 Cal 163: (1928) 48 Cal LJ 577; Madappa v. Basava Lingappa, (1951) ILR Mys 396; Padmanabha Krishna v.
Madhavan Pillai, AIR 1952 TC 294: (1952) ILR TC 252; Meewa Ram v. Deo Prakash, AIR 1954 All 770 [LNIND 1954 ALL 122];
Subbarayudu v. Balaramayya, AIR 1955 AP 194 [LNIND 1955 AP 31]; Raman v. Narayan, AIR 1957 Ker 31 [LNIND 1956 KER 124].
20 .Pritam Kaur v. State of Pepsu, AIR 1963 Punj 9.
21 .Joychand Babu v. Kamalaksha Chowdhry, AIR 1949 PC 239 [LNIND 1949 PC 15]: 76 IA 131.
22 . Bharat Chandra Das v. Pran Gopal Das, AIR 1983 Gau 78(DB).
23 .Maung Tin v. Ma Hmin, AIR 1933 Rang 138: (1933) ILR 11 Rang 226 (FB).
24 .Ram Shanker Rastogi v. Vinay Rastogi, AIR 1991 All 255 [LNIND 1990 ALL 213] (DB).
25 .Veena Kalia v. Jitender Nath Kalia, AIR 1996 Del 54 [LNIND 1995 DEL 393].
26 .Dilip Kumar Barik v. Smt. Ushrani Barik, AIR 2007 Ori 83 [LNIND 2006 ORI 71]: 2006 (102) Cut LT 813 (D.B.)
27 .M.M. Ipoh v. IT Commr, Madras, AIR 1968 SC 317 [LNIND 1967 SC 214]: (1968) 67 ITR 106 [LNIND 1967 SC 214]; Municipal Corpn,
Delhi v. Madan Mohan, AIR 1976 Del 43 [LNIND 1975 DEL 115]; IT Commr v. Punjabhai, AIR 1968 MP 103 [LNIND 1967 MP 66]; IT
Commr v. D.P. More, AIR 1971 SC 2439; IT Commr v. S.C. Bose, AIR 1969 Cal 4 [LNIND 1968 CAL 35].
28 .Radhasoami Satsang, Saomi Bagh Agra v. IT Commr., (1992) 1 SCC 659 [LNIND 1991 SC 602].
29 .Udayan Chinubhai v. IT Commr., AIR 1967 SC 762 [LNIND 1966 SC 263]: (1967) 1 SCR 913 [LNIND 1966 SC 263].
30 .BI Corpn. Ltd. v. IT Commr., AIR 1967 All 362: (1966) 60 ITR 793.
31 .Jwala Prasad v. IT Commr., (1964) 52 ITR 392.
32 .Bharat Sanchar Nigam Ltd. v. UOI, AIR 2006 SC 1383 [LNIND 2006 SC 154]: (2006) 3 SCC 1 [LNIND 2006 SC 154].
33 .Ibid, para 20 at p. 1390 (of AIR).
34 .G.K. Dudani and Ors. v. S.D. Sharma, (1985) Supp SCC 239; Centre of Indian Trade Union v. Union of India, AIR 1997 Bom 79 [LNIND
1996 BOM 1156]; Sumermal v. State of Rajasthan, AIR 2000 Raj 1; State of Tamilnadu v. S.S. Jawahar, AIR 1998 Mad 303 [LNIND 1997
MAD 537].
35 .Ashok Kumar Srivastava v. National Insurance Co. Ltd., (1998) 4 SCC 361 [LNIND 1998 SC 490].
36 .Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187 [LNIND 1989 SC 351].
37 .Rabindra Nath Biswas v. General Manager, NF Rly., AIR 1988 Pat 138.
38 .Premier Cable Co. Ltd. v. Govt. of India, AIR 2002 SC 2418.
39 .Pujari Bai v. Madan Gopal, AIR 1989 SC 1764 [LNIND 1989 SC 336].
40 .Vivek Jain v. Union of India, AIR 1989 Del 301 [LNIND 1989 DEL 52] (DB).
41 .Adhunik Metaliks Ltd. v. Union of India, 2007 (103) Cut LT 617 (DB)
42 .Nityanandakar and another v. State of Orissa, AIR 1991 SC 1134.
 Page 101 of 102
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43 .Direct Recruit Class II Engineering Officers Assn v. State of Maharashtra, (1990) 2 SCC 715 [LNIND 1990 SC 293].
44 .Awadhesh Narain Pandey v. District Inspector of Schools, Varanasi, AIR 2006 (NOC) 1266(All) : (2006) AIHC 1825.
45 .Sarguja Transport Service v. State Transport Appellate Tribunal, MP (1987) 1 SCC 5 [LNIND 1986 SC 439]; Avinash Nagara v. Navodhya
Vidhayala Samiti, (1997) 2 SCC 534 [LNIND 1996 SC 1576].
46 .Ibid.
47 .Rajasthan Art Emporium v. Rajasthan State Industrial and Investment Corpn., AIR 1998 Raj 277.
48 . Madhya Pradesh Public Service Commission v. Om Prakash Gupta, (1997) 6 SCC 645. See also Lal Singh Ram Singh Rajput v. Assistant Executive
Engineer, AIR 2005 SC 2175.
49 . Swatantra Kumar Aggarwal v. Managing Director, UPFC, Kanpur, AIR 1994 All 187 [LNIND 1993 ALL 144].
50 .Munna Industries v. State of Uttar Pradesh, AIR 1994 All 391 [LNIND 1994 ALL 180].
51 .Comorin Match Industries Pvt. Ltd. v. State of Tamil Nadu, AIR 1996 SC 1916 [LNIND 1996 SC 798].
52 .Krashn Kumar Balakram Pande v. Municipal Corpn., Baroda, AIR 1990 Guj 20 [LNIND 1989 GUJ 138] (DB).
53 .Rabindra Nath Biswas v. General Manager, NF Rly., AIR 1988 Pat 138.
54 .Attar Singh v. Nanded Sikh Gurudwara, AIR 1981 Bom 24 [LNIND 1980 BOM 13].
55 .Bhausaheb Tavnappa v. State, AIR 1982 Bom 284 [LNIND 1981 BOM 184].
56 .UP State Sugar Corpn. Ltd. v. Raza Buland Sugar Co. Ltd., AIR 2001 All 100 [LNIND 2000 ALL 1234]. See also Sri Krishna Salt works,
Vishakhapatnam v. State of Andhra Pradesh, AIR 2004 AP 66(DB).
57 .Prabhakar v. Dev Ashish Co-op. Housing Society, AIR 1984 Bom 65.
58 .Vivek Jain v. Union of India, 1989 ILR Del 301 (DB).
59 .Shiv Shakti Contractors v. Commissioners, Allahabad Division, Allahabad AIR 1991 NOC 54(DB).
60 .Maroti Vishnu Borkar v. State of Maharashtra, AIR 2008 (NOC) 2776(Bom) : 2008 (5) All MR 309 (DB) (Aurangabad Bench).
61 . AIR 2008 MP 258 [LNIND 2006 MP 628] (DB).
62 .Mesco Kalinga Steel Ltd. v. Orissa Industrial Infrastructure Development Corporation, AIR 2008 (NOC) 837(Ori) : 2008 (105) Cut LT 149 (DB).
63 .Tilak Rice & Oil Mills Pvt. Ltd. v. DGM, Union Bank of India, AIR 2009 Ori 26(DB).
64 .Burn & Co. v. Their Employees, AIR 1957 SC 38 [LNIND 1956 SC 78]: (1956) SCR 781 [LNIND 1956 SC 78], at p. 789 (of SCR).
65 .Shyam Sunder v. Hudibai, AIR 1989 MP 316 [LNIND 1988 MP 5].
66 .Katwe Jaggery Traders, Hubli v. State of Karnataka, AIR 1991 Kant 63 [LNIND 1990 KANT 155] (H.G. Balakrishna, J.).
67 .Pujari Bai v. Madan Gopal, AIR 1989 SC 1764 [LNIND 1989 SC 336].
68 .Workmen v. Board of Esteem of Cochin Port Trust, AIR 1978 SC 1283 [LNIND 1978 SC 158].
69 .Shyam Sunder v. Hudibai, AIR 1989 MP 316 [LNIND 1988 MP 5].
70 .Gwalior Sugar Co. Ltd. v. State of MP, AIR 2006 MP 218.
71 .T.P. Moideen Koye v. Govt. of Kerala, AIR 2004 SC 4733.
72 .Dwaraka Nath v. Union of India, (1989) Supp 2 SCC 225.
73 .G.N. Nayak v. Goa University, AIR 2002 SC 790 [LNIND 2002 SC 958].
74 .Suma Mathew v. General Manager, Telecommunication, AIR 1998 Ker 182 [LNIND 1998 KER 56].
75 .Dharan Kallat v. Union of India, (1995) 4 SCC 207 [LNIND 1995 SC 582].
76 .H.P. State Electricity Board v. K.R. Gulati, (1998) 2 SCC 624 [LNIND 1998 SC 135].
77 .K.B. Sharma v. Union of India, (1998) 9 SCC 38 [LNIND 1998 SC 1201].
78 . N. Birendra Singh v. Priyo Kumar Singh, AIR 2006 SC 2228 [LNIND 2006 SC 362]: (2006) 9 SCC 650 [LNIND 2006 SC 362].
79 .Ibid, para 23 at p. 2233 (of AIR).
80 .Gulam Abbas v. State of U.P., (1982) 1 SCC 71 [LNIND 1981 SC 425].
81 .Abdul Salam v. State Bank of J&K, AIR 1981 J&K 21.
82 .D.R. Gupta v. Steel Authority of India Ltd., AIR 1985 Ori 224 [LNIND 1985 ORI 16].
83 .K.V. George v. Secretary to Government, Trivandrum, AIR 1990 SC 53 [LNIND 1989 SC 490].
 Page 102 of 102
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84 .Ibid.
85 .State of Orissa v. B.N. Agarwalla, AIR 1997 SC 925 [LNIND 1997 SC 1676]: (1997) 2 SCC 469 [LNIND 1997 SC 1676] : AIR 1997 SCW
824. See also Greater Cochin Development Authority v. Leelamma Valson.
86 .Smita Conductors Ltd. v. Euro Alloys Ltd., AIR 2001 SC 3730 [LNIND 2001 SC 1881].
87 .Shanmughasundaram v. Diravia Nadar, AIR 2005 SC 1836 [LNIND 2005 SC 255].
88 .Bhai Hospital Trust v. Parvinder Singh, AIR 2002 Del 311 [LNIND 2002 DEL 76].
89 . Charanjit Kaur v. S.R. Cable, AIR 2009 MP 66: 2008 (4) MPLJ 221 (Indore Bench).
90 . AIR 2002 SC 778 [LNIND 2002 SC 84]: (2002) 2 SCC 388 [LNIND 2002 SC 84].
91 .Chandreshwar Jha (Engineers & Contractors) v. Northern Coalfields Ltd., AIR 2009 MP 21 [LNIND 2008 MP 444]: (2009) 1 MPLJ 214.
92 .Bajranglal Shivchandrai Ruia v. Shashikant N. Ruia, AIR 2004 SC 2546 [LNIND 2004 SC 390].
93 .ITC Ltd. v. Commr of Central Excise, New Delhi, AIR 2005 SC 1370 [LNIND 2004 SC 1459].
94 .Shivarama Bhat v. Thimma Poojary, AIR 2003 Kant 455 [LNIND 2003 KANT 308].
95 .Collector of Central Excise v. Hindustan Lever Ltd., AIR 2000 SC 2907 [LNIND 2000 SC 1052]. See also N. Chandrasekharan Nair v. Kalliani
Amma Gomathi Amma, AIR 2001 Ker 210 [LNIND 2001 KER 50].
96 .Jasraj Inder Singh v. Hemraj Multanchand, AIR 1977 SC 1011 [LNIND 1977 SC 82]: (1977) 2 SCC 155 [LNIND 1977 SC 82].
97 .N. Chandrasekharan Nair v. Kalliani Amma Gomathi Amma, AIR 2001 Ker 210 [LNIND 2001 KER 50].
1 .Alwar Chettiar v. Natarajan Pillai, AIR 2001 Mad 151 [LNIND 2000 MAD 1209].
2 .Barkat Ali v. Badrinarain, AIR 2001 Raj 51(DB).
3 .Superintendent of Police, Cachar v. Abdul Rashid, AIR 1980 Gau 8.
4 .Badrinarain Upadhyaya v. Jagdish Narain Upadhyaya, (1998) 8 SCC 728.
5 .Supreme Court Employees, Welfare Association v. Union of India, (1989) 4 SCC 187 [LNIND 1989 SC 351].
6 .Ram Prakash v. Charan Kaur, (1997) 9 SCC 543.
7 .Shree Narayan Dharmasanghom Trust v. Swami Prakashnanda, (1997) 6 SCC 78 [LNIND 1997 SC 667].
8 .Fennar (India) Ltd. v. Punjab and Sindh Bank, (1997) 7 SCC 89 [LNIND 1997 SC 880].
9 .Nityanandkar v. State of Orissa, (1991) Supp 2 SCC 516.
10 .Scientific Adviser to the Ministry of Defence v. S. Daniel, (1990) Supp SCC 374.
11 .Union of India v. Sube Ram, (1997) 9 SCC 69 [LNINDORD 1996 SC 134].
12 . Sahi Ram v. Avtar Singh, AIR 1999 Del 96 [LNIND 1998 DEL 894].
13 .Union of India v. Asha Sharma, (1998) 2 SCC 698.
14 .Sarat Chandra Mishra v. State of Orissa, AIR 2006 SC 861 [LNIND 2006 SC 2].
15 .Kunhayammed, AIR 2000 SC 2587 [LNIND 2000 SC 933]: AIR 2000 SCW 2608.
16 .Abbai Maligai Partnership Firm, AIR 1999 SC 1486 [LNIND 1998 SC 866]: AIR 1998 SCW 4061.
17 .K. Rajamouli v. A.V.K.N. Swamy, AIR 2001 SC 2316: AIR 2001 SCW 2146: (2001) 5 SCC 37. See also Green View Tea and Industries v.
Collector, Golaghat, AIR 2004 SC 1738: AIR 2004 SCW 1347.
18 .UP SRTC v. Omaditya Verma, AIR 2005 SC 2250 [LNIND 2005 SC 339].
19 .Rajlakshmidasi v. Banmali Sen, AIR 1953 SC 33 [LNIND 1952 SC 59]: 1953 SCR 154 [LNIND 1952 SC 59].
20 .Richpal Singh v. Dalip, (1987) 4 SCC 410 [LNIND 1987 SC 641].
21 .State of Jammu and Kashmir v. Sahahallu Mir, AIR 1980 SC 1349 [LNIND 1980 SC 158]: (1980) 3 SCC 272 [LNIND 1980 SC 158].
22 .Rajlakshmi Dasi v. Banmali Sen, AIR 1953 SC 33 [LNIND 1952 SC 59]: 1953 SCR 154 [LNIND 1952 SC 59].
23 . Escorts Farms Ltd. v. Commr, Kumanon Division, Nainital, AIR 2004 SC 2186: AIR 2004 SCW 1960.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

S. 12. Bar to further suit.

Where a plaintiff is precluded by rules from instituting a further suit in respect of any
particular cause of act ion, he shall not be entitled to institute a suit in respect of such
cause of action in any Court to which this Code applies.

Rules Precluding Institution of a Further Suit in Respect of the Same Cause of Act
ion. This section was necessitated by the transfer of certain of the provisions of the Code
of 1882 to the Rules. The following is a list of the rules that bar a fresh suit in respect of
the same cause of act ion:

Order 2, r 2 Omission to sue in respect of part of a claim.

Order 9, r 9 Decree against plaintiff by default bars a fresh suit.

Order 22, r 9 Abatement of suit bars a fresh suit.

Order 23, r 1 Withdrawal of suit without leave of court bars a fresh suit.

The word rules means rules contained in the First Schedule or made under s 122 or s 125.
Hence, the section applies to suits precluded under the rules and not on account of some
provision in some other statute.24

S. 13. When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any of them claim
litigating under the same title except

(a) where it has not been pronounced by a Court of competent jurisdiction;

 Page 2 of 28
(IN) Mulla : The Code of Civil Procedure, 18th Edition

(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view
of international law or a refusal to recognise the law of 25[India] in cases in which
such law is applicable;
(d) where the proceedings in which judgment was obtained are opposed to natural
justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in 25[India.]

1. Alterations in the section. Clause (a) was inserted in 1908. The last clause of s 14 of
the Act of 1882 was then omitted. (See note below, How a foreign judgment may be
enforced in India.) Other alterations were only verbal.

2. Principle of territorial sovereignty. It is a well settled principle of international law,

that owing to the principle of territorial sovereignty a judgment delivered in one country, in
the absence of international agreement, cannot have a direct operation of its own in
another. It is also well settled that all individuals and all properties within a territory of a
state are within its dominion and sway (quidquid est in territorio es etiam de territorio). The
municipal courts are under a Constitutional compulsion to give effect to the law of their
own sovereign legislature.26

3. International Law (Private)Meaning of. What is called private international law is not
law governing relations between independent states; private international law, or as it is
sometimes called conflict of laws, is simply a branch of the civil law of the state evolved to
do justice between litigating parties in respect of transactions or personal status involving a
foreign element. The rules of private international law of each state must therefore in the
very nature of things differ, but by the comity of nations certain rules are recognised as
common to civilised jurisdictions. Through part of the judicial system of each state, these
common rules have been adopted to adjudicate upon disputes involving a foreign element
and to effectuate judgments of foreign courts in certain matters, or as a result of
international conventions.27

There is a well-recognised distinction in private international law between a judgment in

rem and a judgment in personam. A foreign judgment which purports to operate in rem will
not attract extra territorial recognition unless it has been given by a court internationally
competent in this respect. In other words, such a court must have jurisdiction to give a
judgment binding all persons generally.28

4. Act of State. An act of state is not a judgment, and it cannot, therefore, have the effect
of res judicata. Thus, it has been held before Independence that an order of the political
agent of Meywar and the Maharana of Udepore deposing a high priest from his gadi was
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not a foreign judgment, but merely an act of state, and it cannot therefore, operate as res
judicata.29

5. Foreign judgment. The expression foreign judgment is defined in s 2 (6) as meaning

the judgments of a foreign court, that is, a court situated beyond the limits of India which
has no authority in India and is not established or continued by the President of the Indian
Union. The definition of judgment as given in s 2 (9) is inapplicable to foreign judgments.
A foreign judgment must be understood to mean an adjudication by a foreign court upon a
matter before it and not the reasons for the order made by it, or otherwise s 13 would not
be applicable to an order made by it where no reasons are given.30 The present section
provides that a foreign judgment may operate as res judicata except in the six cases specified
in the section, and of course, in order to so operate the other conditions, s 11 must be
fulfilled.31 The foreign court must be competent to try the suit, not only as regards
pecuniary limits of its jurisdiction and the subject matter of the suit, but also with reference
to its territorial jurisdiction and the competency of the jurisdiction of the foreign court
which is to be judged not by the territorial law of the foreign state, but by the rules of
private international law. That is, the foreign court must have competence in an
international sense and not merely according to the law of the state in which the court is
functioning.32 In matrimonial matters, an order for the custody of minor children by a
West German court with the consent of the parents, both residing at the time within the
jurisdiction of the court was held to be one which would be recognised and enforced by
courts in India.33 Similarly, a decree of a foreign court, within whose jurisdiction the
husbands domicile was annulling a Hindu marriage solemnised in India will be recognised by
courts in India. It is not as if such a marriage can be dissolved only in conformity with the
provisions of the Hindu Marriage Act, 1955, and on grounds provided therein or by courts
in India only.34 Courts of one country have no jurisdiction to decide questions of title to
immovable property situated in another country nor pass a decree capable of enforcement
against the same, but they have jurisdiction over all persons residing within its borders and
can pass a decree as regards movables situated outside the state, provided it can effectively
be enforced by process against the judgment-debtor within the state. Thus, a decree of the
Madras High Court directing the defendant residing within the state to transfer shares in a
company whose registered office was outside the state was held to be valid35 but a decree
creating a charge over immovable properties in a foreign state is without jurisdiction.36 So,
a decision of a Kathiawar Court as to a custom governing partition will not be res judicata in
a suit for partition between the same parties of lands in British territory.37 In matters of
foreign judgments, the courts here are guided by very much the same principles as those
adopted by the courts of England.38 As in England, the foreign judgment must be final and
conclusive in the court in which it is passed and it may be final although it is subject to
appeal to a higher court.39

6. shall be conclusive. A foreign judgment is conclusive as to any matter directly

adjudicated upon thereby, but it does not include the reasons for the judgment given by
the foreign court. What is conclusive under s 13 is the judgment, i.e., the final adjudication,
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and not the reasons. Section 13 in essence enacts a branch of the rule of res judicata in its
relation to foreign judgments, but not every foreign judgment is made conclusive in the
Indian courts by s 13.40

The rule of conclusiveness of a foreign judgment, as enacted in s 18, is somewhat different

in its operation from the rule of res judicata.41

Manifestly, therefore, every issue heard and finally decided in a foreign court is not
conclusive between the parties. What is conclusive is the judgment, again, the competence
of a court for the application of the rule of res judicata fails to be determined strictly by the
municipal law, but the competence of the foreign tribunal must satisfy a dual test of
competence by the laws of the state in which the court functions, and also in an
international sense. Title to immovable property may be determined directly or indirectly
only by the law of the state, and by the court of the state in which it is situated.42

Under Section 31 of the Recovery of Debtes due to Banks and Financial Institutions Act,
1993, a suit for recovery of money due to Bank based on foreign judgment cannot be
transferred to Debt Recovery Tribunal without findings as to the conclusive nature of
foreign judgment. The conclusive nature of foreign judgment is to be decided by civil court
and this function cannot be delegated to the Debt Recovery Tribunal.43 Discussing the
applicability of s 31 of the Act, it was observed in the above case as follows:

Section 31 of the Act is intended for transfer of suits or other proceedings pending for recovery of debts due to banks and financial
institutions. By taking recourse to Section 31, the civil court cannot delegate its power to adjudicate the question, set out in Section 13 of
the Code of Civil Procedure to a Tribunal constituted under the Act. The rules laid down in s 13 are rules of substantive law and not merely
the procedure and therefore the only authority rested with the jurisdiction to adjudicate the questions enumerated under s 13 is the civil
court. Even otherwise, in view of the bar under s 22 of the Act on the observance of the procedure under the Code, the Tribunal
cannot apply s 13 of the code.44

The authority vested with jurisdiction to decide as to the conclusive nature of a foreign
judgment is the civil court under s 13 of the Code. Therefore, where a husband filed a suit
in India for grant of injunction to restrain his wife from continuing with complaint for
divorce in a foreign Court, it was held by the Punjab and Haryana High Court that the wife
being not amenable to the jurisdiction of the Court where the suit was filed, injunction
cannot be granted. It was also held that foreign Court cannot be treated as a Court
subordinate to civil court in India and decree of divorce, even if granted, would be
required to be examined as binding on the husband in terms of s 13 of the Code.45

When an issue is decided or adjudicated upon, it would mean that the issue has been
conclusively decided between the parties.46

Where the issue or the matter which the chamber judge was required to consider and to
adjudicate upon between the parties was forum non-con-veniens, both the parties were heard
by the chamber judge in extenso. Costs were awarded after hearing both the counsel, who
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appeared before the chamber judge. The court of appeal also passed an order upon reading
notices filed on behalf of defendant, the order of the chamber judge was affirmed and the
libel act ion was stayed by the appeal court while directing the plaintiffs to pay costs to
defendant, it cannot be said that since no evidence was led while delivering the order, it is
not a judgment which is conclusive as it has not been given on merits of the case as
required under s 13 (b) of the Code of Civil Procedure.47

7. any matter. The expression matter in s 13 is not equivalent to subject-matter, it means

the right claimed.48

The term matter used in s 13 of the Civil Procedure Code refers to an issue to be decided. It is
not as if the entire case has to be adjudicated upon and only then can the decision be
executed.49

The language of s 13 speaks not of the judgment but any matter thereby directly
adjudicated upon and the word any shows that all the adjudicative parts of the judgment
are equally conclusive.50

8. directly adjudicated upon. Adjudication in every case does not mean that evidence
must be led. The term adjudication means to decide on, pronounce, sit in judgment. This
decision or pronouncement can be made without evidence being led by the parties if there
is sufficient material for the adjudicating authority to draw any conclusion in respect of the
issue involved between the parties. Therefore, the adjudication of a matter on merits would
not necessarily mean that evidence must be led. In fact, if the parties agree that no
evidence need be led in particular case and merely rely on the pleadings and submissions
made, it could not be said that a decision in such a case would not be on merits.51

9. the same parties or between parties under whom they or any of them claim. See
notes to condition II, The same parties or parties under whom any of them claim in s 11.

10. litigating under the same title. See notes to condition III to s 11, litigating under the
same title.

11. Enforcement of foreign judgments in India. A judgment of an Indian court can

only be enforced by proceedings in execution. A foreign judgment, however, may be
enforced by proceedings in execution in certain specified cases only (ss 44 and 44A). In
other cases, a foreign judgment can only be enforced by a suit upon the judgment. That is
to say, if A has obtained a decree against B for Rs 5,000 in a French court at Pondicherry,
and if B has got no property in Pondicherry to satisfy the decree, but has got property in
Bombay, A may bring a suit against B in Bombay to recover the amount of the judgment.
The suit may be brought within three years from the date of the judgment,52 and if a
decree is passed in favour of A, he may proceed to execute it by attachment and sale of B's
property in Bombay. A foreign judgment is not affected by any of the defects mentioned
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in cl (a)(f) of the section wherein creates a new obligation and so, the court will not inquire
whether the foreign judgment is correct in fact or in law;53 but the original cause of action
does not merge in such a judgment, so that a party has the option either to sue on the
foreign judgment or on the original cause of act ion in a domestic court.54 Where a suit on
a foreign judgment has been dismissed on merits, no application will thereafter lie to
execute that judgment as it had become merged in the decree dismissing the suit thereon.55
A decree passed ex parte by a foreign court, merely on the pleading without taking any
evidence is not a judgment on merits.56

There was at one time difference of opinion as to whether a suit could be maintained in
British India as it was then upon the judgment of a court of an Indian state or whether the
plaintiff could sue only upon the original cause of action. The Madras High Court held that
a suit could be maintained on the judgment,57 while the Bombay High Court held that no
such suit was maintainable58 and that the only remedy was by way of a suit on the original
cause of act ion. It is submitted that the Bombay view was not correct since it was contrary
to the general rule that a court which entertains a suit on a foreign judgment cannot
institute an inquiry into the merits of the original claim or the propriety of decision.59 With
a view to resolve the conflict of views, a clause was added to s 14 of the Code of 1882, by s
5 of Act 7 of 1888, but that clause was deleted in 1908 as the raison desire for such a clause
was no longer tenable.60 The result is that the Madras view prevails.

Though a foreign judgment may be enforced by a suit in India, it is not to be supposed

that Indian courts are bound in all cases to take cognizance of the suit, and they may refuse
to entertain it on grounds of expediency.61 The scope, operation, and effect of foreign
judgments will be found explained in the under-mentioned cases.62

12. Enforcement of decrees passed by Courts of Indian States after merger. The
merger of the Indian states in the Indian Union under the Constitution has given rise to a
new problem as to the enforceability of decrees passed by the courts in those states prior
to merger. Before Independence, the Indian states held, as already noted, sovereign status
and they continued to retain it, even after independence. The fact that they acceded to the
Indian Union did not by itself affect their status because they had thereby surrendered only
some of their sovereign rights and the position was precisely what it was when the British
had paramount over them. It was only when they merged in the Indian Union on 26
January, 1950, that they were completely divested of their sovereign status and ceased to be
foreign states. Prior to merger, the only mode of enforcing judgments of courts in those
states would be by suit under s 13 or by execution under ss 44 and 44A. The point that
came to be debated was whether that position had been altered by merger and the decrees
became executable under the Code. In Bhagwan v. Rajaram,63 a Full Bench of the Bombay
High Court held that a decree passed on a personal act ion against a non-resident foreigner
was a nullity only in the sense that it could not be enforced in the foreign state but that it
was capable of execution within the state itself and that when a foreign state has ceased to
be foreign, there was no impediment to the decree being executed by the courts in those
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territories. This view has been adopted in some decisions.64 A different view was taken in
several decisions and it was held that the character of a decree and the rights flowing
therefrom must be determined as on the date of the decree and that in consequence
decrees, passed in Indian states prior to merger were incapable of execution under ss 44
and 44A.65 The question is now concluded by the decision of the Supreme Court in Maloji
Nar Singh Rao v. Shankar Saran.66

On 18 January, 1948, an ex parte decree was passed against a non-resident foreigner by a

court in Gwalior and after merger, an order was made on 14 September 1951 under ss 38
and 39 of the Code transferring the decree for execution to a court in Allahabad. Dealing
with the question of the maintainability of the execution application, the Supreme Court
held that the nationality of a decree should be judged as on the date when it was passed
and that therefore, the decree dated 18 November 1948, was a foreign decree, that having
been passed against a non-resident foreigner, it was a nullity in an international sense and
not merely unenforceable in a foreign state and that the right and obligations created by it
stood unaffected by subsequent changes. It was further held that ss 38 and 39 of the Code
had no application as they had reference to decrees passed by courts to which the Code
applied and that the decree passed by the Gwalior court therefore, fell outside their
operation. In view of this pronouncement, it is unnecessary to review the previous case law
on the subject.

It may be noted that the above decision relates to execution of a decree passed by a court
in the Indian states by a court in what was British India. The same reasoning must apply to
execution of an ex parte decree passed by a court in British India against a non-resident
subject of an Indian state when it is sought to be executed in a court within that state.67

Where as a result of merger, the territory once belonging to an Indian state has become
part of the Union of India and this Code has been made applicable to it a transfer for
execution of a decree formerly passed by a court in that territory from that court to
another court is valid and effective.68

13. Decree passed by Court fallen into Pakistan. A decree passed before partition of
India by a court having territorial jurisdiction over land which has fallen into Pakistan
would be considered to be a foreign judgment. It cannot be executed in the Indian
dominion, but a suit will have to be brought upon it.69

14. Operation of the section. The operation of the section may be illustrated by the
following cases:
(i) A sues B in a foreign court. If the suit is dismissed, the decision will operate as a bar
to a fresh suit by A in India on the original cause of action, unless the decision is
inoperative by reason of one or more of the circumstances specified in the
section.70 If a decree is passed in favour of A in the foreign court and A sues B on
the judgment in India, B will be precluded from putting in issue the same matters
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that were directly and substantially in issue in the suit in the foreign court, unless
the decision of the foreign court is inoperative on any one of the six grounds
specified in the section.
(ii) A obtained a decree against B in the Cochin court which was then a foreign court
and applied for execution of the decree in the High Court of Bombay. (Decrees of
the Cochin Court may be executed in India under s 44 .) It was proved that A
obtained the decree at Cochin by concealment of essential facts and by fraud. (See
cl (e) of the section). It was held that execution of the decree should be refused.71

15. Foreign judgment pronounced by a Court without jurisdiction not enforceable.

The leading case on the subject is Gurdyal v. Raja of Faridkot.72 In that case, A sued B in the
court of the Indian state of Faridkot claiming Rs 60,000 alleged to have been
misappropriated by B while in A's service at Faridkot. B did not appear at the hearing, and
an ex parte decree was passed against him. B was a native of another Indian state, Jind. In
1869, he left Jind and went to Faridkot to take up service under A. In 1874, he left A's
service, and returned to Jhind. The suit was brought against him in 1879. At the date of the
suit B neither resided in Faridkot nor was he a domiciled subject of the Faridkot state nor
did he owe allegiance to that state. On these facts, the Faridkot state had on general
principles of international law, no jurisdiction to entertain the suit against B in respect of
the claim, which, it should be noted, was a mere personal claim as distinguished from a
claim relating to land or movables.73 The decree of the Faridkot court was therefore, an
absolute nullity. A then sued B in a British Indian court on the judgment of the Faridkot
court. The court of first instance dismissed the suit on the ground that the Faridkot court
had no jurisdiction to entertain the suit. This decision was upheld by their Lordships of the
Privy Council. The mere fact that the alleged embezzlement took place at Faridkot was not
sufficient to give jurisdiction to the Faridkot court. The result would be the same if the suit
were for damages for breach of a contract entered into by B with A at Faridkot.74 In other
words, a foreign court cannot assume jurisdiction in cases where the claim is a personal
one merely because the cause on act ion arose within its jurisdiction. But if B was residing
at Faridkot at the date of the suit, the Faridkot court would have had complete jurisdiction.
In the case of personal claims, it is the residence at the time when the action began that
gives jurisdiction in a suit to a foreign court75 unless: (i) The defendant was a subject of
that foreign state;76 (ii) where the defendant in the character of a plaintiff had elected the
forum in which he is afterwards sued; or (iii) where he, the defendant, had voluntarily
appeared in that court and had submitted to its jurisdiction, or (iv) where he had
contracted to submit himself to that foreign forum.77 On this rule, a decree passed by a
court in Pakistan was held to be a nullity and not enforceable under this section on the
ground that the defendant was neither a national nor a person having a domicile there at
the date of commencement of the suit, nor was he served with the summons when he was
there, nor had he submitted himself to the jurisdiction of that court.78 The same rule
applies where the country in which the judgment was passed and that in which it is sought
to be enforced have separate and distinct systems of administration and judicature, though
owing allegiance to the same sovereign. Thus, a decree passed by the Ceylon Court (which
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is a foreign court within the meaning of s 21 in a suit on a contract), against a native of

India, who was not at the time of the action residing in Ceylon is a nullity and it cannot be
enforced by a suit in an Indian court.79

Suppose that in the above case the Faridkot Legislature had passed an Act empowering the
courts of Faridkot to entertain suits in cases where the cause of action had arisen in
Faridkot though the defendant was a foreigner neither residing in Faridkot nor owing any
allegiance or obedience to the Faridkot state. Could effect be then given to the judgment
of the Faridkot court in a suit brought upon the judgment in a court in India? Jurisdiction
conferred against the general principles of international law is not recognized and no one
state can by its legislation confer jurisdiction upon its court to entertain a suit in respect of
a personal claim against foreigners who at the date of the suit were neither resident in that
state nor owed any allegiance or obedience to that state;80 but, such a decree is not an
absolute nullity if its domestic courts have jurisdiction over foreigners either generally or
under specified circumstances. Section 20 (c) of this Code confers jurisdiction on courts in
India over foreigners if the cause of action arises within the jurisdiction of a particular
court in India even in the absence of the foreigner and even where he has not submitted to
its jurisdiction. To say that such a decree is an absolute nullity is not apposite; it is more
appropriate to say that it is not executable in a court outside this country.81 This is so
because the municipal courts of a country are under a Constitutional compulsion to give
effect to the laws made by their own legislature.82 Indian subjects before Independence
owed allegiance to the sovereign of Great Britain and the British Parliament could
therefore by legislation confer jurisdiction upon the courts of England, as it has in fact
done, against British Indian subjects in British India.83 Hence, a judgment, passed by the
Queens Bench Division of the High Court of Justice of England (a foreign court) against a
British Indian subject residing in British India in an act ion founded on a breach of a
contract committed within the jurisdiction of that court, was not a nullity, and a suit might
be brought on the judgment in British India.84

16. Submission to the jurisdiction of foreign Courts. Where a suit is instituted in India
on the judgment of a foreign court, effect will be given to the judgment, though that court
had no jurisdiction over the defendant, if the defendant appears and defends the suit
brought against him in that court without making any objection to its jurisdiction,85 for,
having taken a chance of judgment in his favour, it is not right that he should take
exception to jurisdiction when judgment goes against him;86 but, if he protests against the
jurisdiction, and the suit is then proceeded with against him, the judgment is a nullity, and
no effect will be given to it in a suit brought on the judgment. The protest against
jurisdiction must be made at an early stage of proceedings hence, where no objection to
the jurisdiction was made until the case had reached the stage of appeal, it was held that
there was submission to jurisdiction.87 Nice questions sometimes arise as to what amounts
to submission to jurisdiction. A person who appears in response to a summons of a
foreign court and applies for leave to defend the suit without objecting to its jurisdiction
has been held to have voluntarily submitted to the jurisdiction of such court.88 A defendant
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who employs a pleader in a suit in a foreign court will not be said to have submitted
himself to the jurisdiction of that court if the pleader states at the hearing that he has no
instructions from his client;89 but, if the defendant, while protesting against the jurisdiction,
appears on the argument of the point of jurisdiction, thereby taking the chance of getting a
decision in his favour, he will be deemed to have submitted himself to the jurisdiction of
the court.90 A fortiori, it is so if he also pleads on the merits,91 or consents to have a decree
passed in terms of an award.92 When the parties have appeared before the foreign court
and have arrived at an agreement, e.g., in regard to the custody of their children, courts in
India would not allow that agreement to be flouted unilaterally by one of them. This is so
even though the father is the natural guardian and is therefore, ordinarily entitled in law to
the custody of the children.93 On the same principle, the Lahore High Court held that an
application to a foreign court to set aside an ex parte decree is a submission to its
jurisdiction;94 but, this has been dissented from on the ground that a submission after
decree is of no effect; and when a defendant applied to a foreign court to set aside its
decree passed without jurisdiction after the decree had been transferred for execution to a
court in British India, the Madras High Court held that the decree continued to be a nullity
and inexecutable.95 However, the submission is not voluntary if the appearance is made
only to release property seized by a foreign tribunal in attachment or other proceedings; in
such a case the judgment of the foreign tribunal is not binding on the party. Whether
submission was voluntary or it was for the purpose of saving property is a pure question of
fact.96

A person who sues in a foreign court as plaintiff voluntarily submits to the jurisdiction and
cannot afterwards dispute it.97 An ex parte decree was passed by a court of an Indian state
against a native of British India who was not resident in that state. In 1926, the

decree was transferred under s 44 to a British court for execution. The judgment-debtors
movable property was attached and the judgment-debtor paid Rs 100 into the British court
and applied for further time. In 1928, the decree was again transferred to the same British
court for execution, and the judgment-debtor then for the first time objected that the
decree was a nullity for want of jurisdiction. It was held that the judgment-debtors
appearance in the British court did not amount to submission to the foreign court, and
that the objection was not barred by res judicata.1 A suit was filed in a foreign court against a
non-resident defendant who remained absent. However, during the course of the trial he
asked for a concession with respect to a part of the claim, which was due to him and which
had been attached before judgment in the course of the suit; but the request was refused,
and the suit decreed ex parte. It was held that by his conduct the defendant must be
deemed to have submitted to the jurisdiction of the foreign court.2 A minor cannot be said
to have submitted to the jurisdiction of a foreign court through his guardian if such a
guardian has not filed his appearance.3

(a) Agreement to Submit to Foreign Jurisdiction. Where there is an express agreement to submit to
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the jurisdiction of a foreign court, a judgment pronounced by such court binds the parties,
and effect will be given to such a judgment in Indian courts.4

The mere fact of entering into a contract of partnership in a foreign country does not
involve an agreement that all matters and disputes arising in connection with the
partnership shall be submitted to, and therefore, lie within the jurisdiction of the courts of
that country.5

(b) Carrying on Business in a Foreign Country through an Agent. Persons who carry on business in
a foreign country through an agent, submit to the jurisdiction of the courts of that country
by giving the agent a general power of attorney including the right to institute or defend
suits relating to matters connected with their business or otherwise.6

(c) Possession of Immovable Property in a Foreign Country. The possession of immovable property
in a foreign country gives the courts of that country jurisdiction to deal with the property
itself,7 but not jurisdiction in personam over the possessor, even in regard to obligations
connected with that property.8

17. Jurisdiction of foreign Courts over non-resident legal representatives in a

pending action. Where a foreign court has jurisdiction with respect to a personal act ion
instituted against a foreigner, either because he is resident within the state at the time of
the suit or he has submitted to it, a decree passed by it in the suit is not without jurisdiction
by reason of the fact that the defendant died pending the action and his legal
representatives were neither residents within the state nor had submitted to its
jurisdiction.9

18. Irregularities not affecting jurisdiction. In cases where a foreign court has
jurisdiction, or where the defendant has submitted himself to the jurisdiction of a foreign
court, the judgment of such court is not vitiated by irregularities which do not affect the
jurisdiction of the court even when they are such as would, in the view of the foreign
court, render the judgment there a nullity.10 Where the Constitution of a full bench of the
Mysore High Court was not in strict accordance with the rules framed in that behalf, its
judgment is not open to attack as without jurisdiction as it is a case of irregular assumption
and not want of jurisdiction.11

19. Foreign judgment against a foreign firm. A, B and C carry on business at Singapore
in partnership in the name of X and Y. D, a creditor of the firm, brings an action against
the firm in the Supreme Court of Singapore, but A alone is served with the writ of
summons. B and C are British Indian subjects, and they did not reside at Singapore at the
date of the suit or at any other time. A decree is passed against the firm by the Singapore
court. A suit is then brought by D in British India on the judgment of the Singapore Court
against A, B, and C for a personal decree against them. No personal decree can be passed
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against B and C as they were not served, though such a decree may be passed against A.12
Compare O 21, r 50.

20. Foreign judgment on a decree of an Indian Court. The judgment of a foreign court
obtained on a decree of a court in India is no bar to the execution of the original decree in
India.13

21. Foreign judgment as Res Judicata. The rule of conclusiveness of a foreign judgment
as enacted in s 18 is some what different in its operation from the rule of res judicata.

Undoubtedly both the rules are founded upon the principle of sanctity of judgments
competently rendered. But the rule of res judicata applied to all matters in issue in a former
suit which have been heard and finally decided between the parties, and includes matters
which might and ought to have been made ground of attack or defence in the former suit.
The rule of conclusiveness of foreign judgments applied only to matters directly
adjudicated upon.14

In order that a foreign judgment may operate as res judicata it must have been given on the
merits of the case, whether it was a judgment of a foreign court in Europe or America or a
foreign court in Asia or Africa.15

It is a well established principle of private international law that if a foreign judgment was
obtained by fraud, or if the proceedings in which it was obtained were opposed to natural
justice, it will not operate as res judicata. An act ion to set aside a judgment cannot be
brought on the ground that it has been decided wrongly, namely that on the merits the
decision was one which should not have been rendered, but it can be set aside if the Court
was imposed upon or tricked into giving the judgment. A foreign judgment is impeachable
for fraud in the sense that upon proof of fraud it cannot be enforced by action or operate
as res judicata.16

This section applies not only to suits on foreign judgments, but also to cases in which the
defendant relies on a foreign judgment as a bar to a suit in India17 and it has been held that
a foreign judgment rendered after the institution of a suit would operate as a bar on
principle of res judicata embodied in s 11.18

An act of State is not a judgment, and it cannot, therefore, have the effect of res judicata.
Thus, it has been held before Independence that an order of the political agent of Meywar
and the Maharana of Udepore deposing a high priest from his gadi was not a foreign
judgment, but merely an act of state, and it cannot therefore, operate as res judicata.19

22. Clause (A): Court of competent jurisdiction. Undoubtedly, a Court of a foreign

country has jurisdiction to deliver a judgment in rem which may be enforced or recognised
in the Indian court, provided that the subject-matter of the action is property whether
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movable or immovable within the foreign country. It is also well settled that a court of a
foreign country has no jurisdiction to deliver a judgment capable of enforcement or
recognition in another country in any proceeding the subject-matter of which is title to
immovable property outside that country. But there is no general rule of private
international law that a court can in no event exercise jurisdiction in relation to persons,
matters or property outside jurisdiction. The courts of a country generally impose a
threefold restriction upon the exercise of their jurisdiction: (1) jurisdiction in rem (binding
not only the parties but the world at large) by a court over res (outside the jurisdiction) will
not be exercised, because it will not be recognised by other courts; (2) The court will not
deal directly with title to immovable property outside the jurisdiction of the state from
which it derives its authority, and (3) court will not assist in the enforcement within its
jurisdiction of foreign penal or revenue laws.20

An act ion in personam lies normally where the defendant is personally within the
jurisdiction or submits to the jurisdiction or though outside the jurisdiction may be reached
by an order of the court. In an action in personam the court has jurisdiction to make an
order for delivery of movables where the parties submit to the jurisdiction. A person who
institutes a suit in a foreign court and claims a decree in personam cannot after the judgment
is pronounced against him, say that the court had no jurisdiction which he invoked and
which the court exercised, for it is well recognised that a party who is present within or
who had submitted to jurisdiction cannot afterwards question it.21

Unless a foreign court has jurisdiction in the international sense, a judgment delivered by
that court would not be recognized or enforceable in India. The true basis of enforcement
of a foreign judgment is that the judgment imposes an obligation upon the defendant and,
therefore, there must be a connection between him and the forum sufficiently close to
make it his duty to perform that obligation. It cannot be said that an order declaring the
domicile of a person under Order 11 of RSC of England is a judgment in rem. Persons
affected by such order must submit to the jurisdiction of the foreign court which makes
the declaration if otherwise they are not subject to its jurisdiction.22

23. Clause (B) : Merits of the case. It cannot be said that the expression judgment on
the merits implies that it must have been passed after contest and after evidence had been
let in by both sides. An ex parte judgment in favour of the plaintiff may be deemed to be a
judgment given on merits if some evidence is adduced on behalf of the plaintiffs and the
judgment, however, brief, is based on a consideration of that evidence. Where however no
evidence is adduced on the plaintiffs side and his suit is decreed merely because of the
absence of the defendant either by way of penalty or in a formal manner, the judgment
may not be one based on the merits of the case.23

The judgment of a foreign Court based on a settlement arrived at and with consent of
parties is enforceable. The party giving consent and inviting the Court to pass judgment on
terms of the consent is precluded from raising the defence subsequently that the said
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judgment is not on merits and hence not enforceable in view of s 13 (b) of the Code.24 The
Bombay High Court in the above case noticed the decision of the Supreme Court in
International Woollen Mills case (supra) and observed that a consent order or consent decree
by itself prevents the court from going into merits of the case. It has also been held by the
Bombay High Court that where settlement agreement between the parties formed part of
the suit proceedings in the foreign court, the Court in India can pass judgment on the basis
of the said agreement under O 12, r 6 of the Code.25

Undoubtedly the burden of proving that the decree is not on merits would be on the party
alleging it. However Courts never expect impossible proofs. It would never be possible for
a party to lead evidence about the state of mind of the Judge who passed the decree. Of
course, amongst other things, the party must show that the decree does not show that it is
on merits, if necessary the rules of that court, the existence or lack of existence of material
before the court when the decree was passed and the manner in which the decree is
passed.26

In order that a foreign judgment may operate as res judicata it must have been given on the
merits of the case, whether it was a judgment of a foreign court in Europe or America or a
foreign court in Asia or Africa.27 Courts in India have the right to examine a foreign
judgment to see whether it has been given on merits.28 In Keymer v. Visvanathan 29 an act ion
was brought in the Kings Bench Division of the High Court of Justice in England to
recover a liquidated amount. The defendant failed to comply with an order to answer
interrogatories and his defence was struck off and judgment was entered for the amount
claimed for the plaintiff under RSC, O 31, r 21, corresponding to O 11, r 21 below. The
plaintiff, subsequently instituted a suit on the judgment in the Madras High Court. It was
held by the Judicial Committee, affirming the judgment of the Madras High Court, that the
judgment sued on was not given on the merits of the case and that the suit was not
maintainable. It has also been held by the same tribunal that a judgment on an award
obtained in England by default cannot be sued on in India, since it is not a judgment on
the merits of the case.30

In the following sub-synopsis the foreign judgments passed in summary procedures, ex

parte, dismissed in default, compromise etc. are evaluated by higher courts in India to
ascertain if these can be treated as judgment on merit of the case within the meaning of
clause (b) of s 13 :

(i) Summary procedure. A decree passed by a foreign court (Singapore court) under summary
proceedings, after refusing leave to defend sought for by the defendant, is not a judgment
on merits. Hence, the judgment cannot be considered as conclusive as contemplated by s
13 (b).31 According to the Calcutta High Court a judgment given in England in summary
procedure contemplated by O 14, RSC is not a judgment on the merits for the purposes of
s 13, CPC, there being no appearance or defence by the defendant and no consideration of
plaintiffs evidence.32
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(ii) Dismissed in default. Where a suit filed in a foreign court, by a creditor against the
principal debtor is dismissed for default of appearance, the judgment is not one on the
merits of the case, and cannot be availed of by the surety to resist his liability to the
creditor.33

(iii) Default on the part of defendant. A foreign judgment passed on default of appearance of
the defendant duly served with summons on the allegations contained in the plaint without
any trial on evidence, is not one passed on the merits of the case, and a suit cannot be
brought on such judgment in any court in India.34

So also, where a decree was passed in consequence of the default of the defendant in
furnishing security, it is not one upon the merits.35

(iv) Non-production of document by plaintiff. Where a suit was dismissed even before the written
statement was filed by the defendant on the ground of non-production of a document by
the plaintiff, the order is not one of the merits of the case.36

(v) Ex parte decree. On the basis of presumption in s 114 of the Evidence Act that judicial acts
have been regularly performed a decree given ex parte cannot be presumed to be on merits.
Section 114 merely raises the presumption, under Illustration (e) thereof, that judicial acts
have been regularly performed. To say that a decree has been passed regularly is
completely different from saying that the decree has been passed on merits. An ex parte
decree passed without consideration of merits may be decree passed regular if permitted by
the rules of that Court. Such a decree would be valid in that country in which it is passed
unless set aside by a Court of Appeal. However, even though it may be a valid and
enforceable decree in that country, it would not enforceable in India if it has not been
passed on merits. Therefore for a decision on the question whether a decree has been
passed on merits or not, the presumption under s 114 would be of no help at all.37

It would be relevant to quote here the following passage in Sir William Rattigans Private
International Law (1895).

It would seem to be equally plain that, if, for instance, it should happen that by the law of a
foreign country, a plaintiff was entitled to judgment simply on the non-appearance of a
defendant who had been duly served, and without adducing any evidence whatever in
support of his claim, or if the wrong-headedness of a foreign Judge should induce him to
so decide, the plaintiff would not be entitled in an English Court to sue upon a judgment
so obtained. If on no other ground, such a judgment of a foreign Court would, at all
events, be so contrary to the fundamental principles of the Law of England as, for this
reason alone, to be incapable of receiving any effect in a British Court. The above passage
does not, however, as I read it, support the present appellants position, as it cannot, in my
opinion, be affirmed in this case that the plaintiff has obtained judgment from the High
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Court in England simply on the non-appearance of the defendant without adducing any
evidence whatever in support of his claim.38

If a decree, though ex parte, is passed after hearing evidence adduced by the plaintiff,39 and
the presumption would be that the ex parte decree was passed on evidence and so, the
defendant must rebut the presumption by positive evidence.40

The mere fact of the decree being ex parte will not justify a finding that it was not on the
merits. The real test is whether it was merely formally passed, as a matter of course, or by
way of penalty, or based upon a consideration of the truth or otherwise of the plaintiffs
claim, though the evidence was led by him in the absence of the defendant.41

Where, the ex parte decree of a foreign court in UK did not mention that the second
affidavit filed by the plaintiff has been read, the judgment and decree not indicating
whether the documents were looked into an/or, whether the merits of the case was at all
considered, the plea about inferior quality of material raised by the defendant in his, reply
to the notice was not dealt with, the judgment passed was held not a judgment on merits
so not enforceable in India.42

(vi) Settlement Compromise. Where a suit in a foreign court is adjourned for settlement, and it
is agreed between the parties that if the suit is not settled judgment should be passed for
the plaintiff, and there being no settlement, the plaintiff appears on the adjourned date but
the defendant does not appear and judgment is passed for the plaintiff according to the
agreement, the judgment is one on the merits of the case, and a suit can be brought on
such a judgment in a court in India.43 But in China Appalaraju v. Venkata Subba Rao 44 where
it was held that a foreign judgment based on compromise is not one passed on merits. It
cannot be said of a judgment that it was not given on merits merely because it proceeds on
a wrong view as to the burden of proof or the legal liability of a party.45

24. Clause (C) : Law Applicable. The mistake must be apparent on the face of the
proceedings. In England, it has been held that a mere mistake as to English law will not
vitiate a foreign judgment, even though the mistake may appear on the face of the
proceedings.46 In an old Madras case47 this clause was referred to where a foreign court
had exercised jurisdiction contrary to the principles of international law. Where a foreign
court in an inquiry before it in a probate proceeding refused to recognise the law of British
India applicable to the deceaseds immovable property in British India, it was held that the
judgment of the foreign court was not one on which a suit will successfully lie.48 The
judgment of a foreign court which awarded interest on costs does not become
unenforceable under this section on the ground that there is no similar provision in the
municipal law.49 So also, a decree of a Ceylon court awarding interest is not open to attack
on the ground that the amount decreed is not in accordance with the provisions of the
Madras Agriculturists Relief Act, 1938.50
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25. Clause (D) : Natural Justice. When applied to foreign judgments, the expression
contrary to natural justice merely relates to the alleged irregularities in procedure adopted
by the adjudicating court and has nothing to do with the merits of the case. If the
proceedings be in accordance with the practice of the foreign court but that practice is not
in accordance with natural justice, the court will not allow it to be concluded by them. In
other words the courts are vigilant to see that the defendant had not been deprived of an
opportunity to present his side of the case. The wholesome maxim audi alteram partem is
deemed to be universal and not merely of domestic application. All that is required by rules
of natural justice is that in the case of minors they should be given an opportunity to
contest through their natural guardians. Even if there was any breach of the rule of
procedure prevailing in the forum where the proceedings were conducted, that would not
be material, as what we have to see is whether the proceedings have been conducted in
substantial compliance with the prevailing notion of fairplay. And, when the natural
guardians evinced their intention not to contest the proceedings by not putting any
appearance on behalf of the minors, the requirement of natural justice was satisfied when
the court appointed an officer of the court to be guardian ad Item of the minors in the
proceedings.51

The expression natural justice in this clause refers rather to the form of procedure than to
the merits of the particular case. The mere fact that a foreign judgment is wrong in law
does not make it one opposed to natural justice. There must be something in the
procedure anterior to the judgment which is repugnant to natural justice.52 Thus, a foreign
judgment obtained without notice of the suit to the defendant is contrary to natural justice,
and a suit on such judgment is not maintainable in an Indian court.53 So also, a judgment
based on a third review after two applications for review had been refused;54 or a judgment
against a minor defendant for whom no guardian ad litem had been appointed,55 or a
judgment against a minor defendant who was not properly represented.56 However, where
notice is served on an agent empowered to sue and defend suits in the foreign court it is
held as sufficient.57 As to sufficiency of notice, if the foreign court has held service of the
notice to be sufficient, it must be taken to be correct in the absence of evidence to the
contrary.58 The words natural justice are not limited to the plea that the defendant was not
served or was not given an opportunity of being heard. It covers all matters forming part
of the judicial process culminating in the judgment. A foreign judgment would be opposed
to natural justice, if the judges who pronounced it are shown to have been biased or
partial.59 But, a foreign judgment is not open to attack on the ground that in deciding on
the validity of an adoption, the court had failed to apply the law of domicile by which the
parties were governed,60 nor on the ground of a mere mistake even when that consists of
error in calculation, nor on the ground that proper court fee has not been paid in the
foreign court.61 The binding character of a foreign judgment can be displaced only on one
of the grounds mentioned in cl (a)(f) and not otherwise. It is not open to attack on the
ground that it proceeds on an erroneous view of the evidence or of the law.62 If the
proceedings be in accordance with the practice of the foreign court and that practice is not
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in accordance with natural justice, the Indian court will not allow the matter to be
concluded by them. In other words, the courts are vigilant to see that the defendant had
not been deprived of an opportunity to present his side of the case. In a Bombay case, the
defendant had been given sufficient opportunities both, by the Hong Kong Court and by
Indian courts, to ensure that he gets adequate opportunity to defend his case. The
defendant had not made proper use of such opportunities which were given to him.
Hence, the principles of natural justice had not been violated in any manner and the
proceedings in which a foreign judgment had been obtained, were not opposed to the
principles of natural justice.63

26. Clause (E) : Fraud. The fraud relied upon must be extrinsic or collateral and not
merely fraud which is imputed from alleged false statements made at the trial which were
met with counter-statements and the whole adjudicated upon by Court and so passed into
the limbo of estoppel by the judgment. That estoppel cannot be disturbed except upon
allegation and proof of new and material facts which were not before the former Court
and from which is to be deduced the new proposition that the former judgment was
obtained by fraud. The fraud which vitiates a judgment must generally be fraud of the
party in whose favour the judgment is obtained.64

All judgments, whether domestic or foreign, are void if obtained by fraud. Accordingly, a
foreign decree procured by fraud bearing on jurisdictional facts would not be recognised
under this section as being contrary to public policy and as offending against notions of
substantial justice.65 In the case of domestic judgments, the fraud must be extrinsic to the
matter tried but apparently, this rule does not apply to foreign judgments,66 but in
Sundaram Pillai v. Kandeswami Pillai,67 it was held that a foreign judgment said to have been
obtained on perjured evidence could not be said to have been obtained by fraud.

Where, the deceased donor infact had expired long before the respondents fraudulently
obtained mutation in their favour showing deceased as present and witnessing said
mutation of immovable property, the mutation obtained by fraudulant means is non-est
just like decree obtained by fraud is nullity.68 H.K. Sema, J., observed fraud avoids all
judicial acts. A decree obtained by playing fraud is a nullity and it can be challenged in any
court, even in collateral proceedings.

27. Clause (F) : Breach of any Law in India. Under s 47 (3) of the Foreign Exchange
Regulation Act, 1973, a suit for the enforcement of a guarantee for which permission of the
Reserve Bank/Central Government would have been required under s 26 (6) can be
brought in India. Filing of a suit, therefore, on such a guarantee cannot be said to be
contrary to any law in India because s 47 (3) expressly permits such legal proceedings in
India. Such proceedings abroad cannot be said to be violative of any law in India.
However, no steps can be taken for the purpose of enforcing any judgment or order for
the payment of any sum under such a guarantee except in respect of so much thereof as
the Central Government or the Reserve Bank may permit to be paid. The result is that
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before a foreign decree passed on such a guarantee can be executed in India, permission of
the Reserve Bank or the Central Government for realising such sum is necessary.69

A claim sustained in a foreign judgment founded on a breach of any law in force in India
makes the foreign judgment as inconclusive and inapplicable in India. The position in
England appears to be similar which appears obvious from the following passage in Sir
William Rattigans Private International Law (1895).70 It would seem to be equally plain that,
if, for instance, it should happen that by the law of a foreign country, a plaintiff was
entitled to judgment simply on the non-appearance of a defendant who had been duly
served, and without adducing any evidence whatever in support of his claim, or if the
wrong-headedness of a foreign Judge should induce him to so decide, the plaintiff would
not be entitled in an English Court to sue upon a judgment so obtained. If on no other
ground, such a judgment of a foreign Court would, at all events, be so contrary to the
fundamental principles of the Law of England as, for this reason alone, to be incapable of
receiving any effect in a British Court.

Presumably, a foreign judgment for a gambling debt would not be enforced in India.

28. Limitation. The period of limitation for a suit on a foreign judgment is six years from
the date of the judgment. (See Limitation Act, 1963, Sch 1 Art. 101.)

The pendency of an appeal in the foreign country will not bar a suit on a foreign
judgment;71 but, if the appeal results in a decree dismissing the appeal, the appellate decree
affords a fresh starting point for limitation.72

Whereas in the case of a suit on a contract, limitation merely bars the remedy but does not
extinguish the right, the judgment of a foreign court is not open to the objection that the
suit was barred by the law of limitation applicable in the country where the contract was
made.73

Where the court of a foreign country holds, applying its own law, that a suit is not barred
by the law of limitation, it cannot be said that it has refused to recognize the law of India
because the suit was barred according to the law of India.74

29. Suits on foreign awards. An award given in a foreign state by arbitrators selected by
the parties cannot be equated to a judgment given by the foreign court and its validity is
not open to attack on the grounds mentioned in s 13.75 An award pronounced in a foreign
state is not a judgment within this section and no suit will in consequence lie on it even if it
was filed in a foreign court unless it was made a rule of court.76

Section 9 of Foreign Awards (Recognition and Enforcement) Act, 1961 excludes the operation of
the Act as to what may be regarded as a domestic award in the sense of the award having
been made on an arbitration agreement governed by the law of India, although the dispute
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was with a foreigner and the arbitration was held and the award was made in a foreign
state. Such an award necessarily falls under the Arbitration Act, 1940 (Now repealed by the
Arbitration & Conciliation Act, 1996), and is amenable to the jurisdiction of Indian courts
and control by the Indian system of law just as in the case of any domestic award, except
that the proceedings held abroad and leading to the award were in certain respect
amendable to be controlled by the public policy and the mandatory requirements of the
law of the place of arbitration and competent courts of that place.77 Where a foreign
judgment in terms of a foreign award is passed, the award does not merge in the judgment.
Application for filing the award in an Indian court and for judgment in accordance with
the award, is maintainable.78 The following cases were cited.79

30. Execution of foreign judgments. Where a foreign judgment is sought to be enforced

in execution under ss 44 and 44(A), it will be open to the judgment-debtor to raise all
objections which would have been open to him under s 13 if a suit had been filed on the
judgment.80

Having regard to the provisions of Section 17 of the Recovery of Debts Due to Banks and Financial
Institutions Act (51 of 1993) which states that on and from the appointed day the
jurisdiction, powers and authorities to entertain and decide application for recovery of debt
due to such banks and financial institutions shall be exercised by the Tribunal and the
scope of powers of the Tribunal under Section 22 of the Recovery of Debts Due to Banks and
Financial Institutions Act execution of a foreign decree must be heard and tried by the
Tribunal since it is within the jurisdiction of that Tribunal to do so. Therefore, the
execution application, which falls within the jurisdiction of the debt recovery tribunal must
be transferred to the said Tribunal immediately, if it is filed before civil court.81

31. Custody, divorce and maintenance. In matters relating to matrimony and custody,
the law of that place must govern, which has the closest concern with the well-being of the
spouses and the welfare of the marriage. In a case decided by the Supreme Court of India,
the spouses had made England their home and a boy was born in England from the
marriage. It was held that the father cannot deprive the English court of its jurisdiction to
decide upon the custody of the child by fraudulently removing the boy to India.82 Foreign
determinations of custody of children made in divorce jurisdiction or otherwise, by a
foreign court, have occasionally figured in many other Indian cases during the recent years.
A Rajasthan case is illustrative of the same where without holding that such determinations
are conclusive, the High Court noted that the foreign court had granted custody of the two
daughters of the marriage to the mother, with visiting rights to the father. Later, the
mother had obtained a decree from the foreign court, granting her exclusive custody of the
girls. In the circumstances, the Rajasthan High Court, in a writ petition by the mother, held
that removal by the father of the girls from the United States to India in a secret and
furtive manner, and in disregard of the decrees of the American courts was illegal.83

In a Punjab case, the children and parents were Canadians. The Canadian court had
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granted interim custody to the mother. The father had effected unauthorised removal of
the children from Canada to India. Here, the mother was a graduate and financially sound
and the father unemployed. It was held that the order of the Canadian court must be
honoured. Mere allegation that the mother was living in adultery, was of no avail.
Judgment of the foreign court should be given due regard.84 An order of the Supreme
Court of Ontario (Canada) awarded custody of a child to the mother. The father illegally
brought the child to India. It was held that Indian courts should respect the foreign
judgment. Mere allegation that the mother is living in adultery, is of no avail.85 The above
ruling was given in a writ petition wherein the under-noted decisions were cited. 86

The petitioner is a German national, seeking the custody of the child from her divorced
husband. A judgement was given in her favour by the family court and Higher Regional
Court, Dusseldorf, Germany, after considering the welfare of the child. In the absence of
any exceptions enumerated under s s 13 and 14 of Code of Civil Procedure, the foreign
judgement was held to be binding on the parties and the Petitioner was entitled to the
custody of the minor child in view of the foreign judgment.87

The two reasons why foreign decree of divorce cannot be challanged as invalid. Firstly
because, consent of the respondent to the grant of relief by a foreign forum has been taken
as curing the defect in the validity of the decree. If consent can cure the defect of
jurisdiction of the forum, which grants the decree, by the same logic it should also place a
decree granted by such a forum beyond challenge on the ground that the relief granted was
not available to the parties as per the personal law prevalent in the country of their origin.
If consent to the grant of relief is taken as a relevant circumstance, there is no reason to
make a distinction between cases, where the defect to be cured is one relating to the
jurisdiction of the forum and others, where the defect arises from the ground on which the
relief has been granted.88

A husband seeking to enforce a foreign decree must establish that judgment had been
given on merits. Where the publication of the notice against wife was in the Official Gazette
only and the husband never appeared before the Mexican court, a decree was passed
without recording any evidence. It was held that judgment of the Mexican court was not
given on merits.89 Decree of divorce obtained in the foreign court is binding, if none of the
grounds mentioned in s 13 are proved to exist.90

Domicile is a jurisdiction fact. A foreign decree of divorce is subject to collateral attack for
fraud or for want of jurisdiction, even though jurisdictional facts are recited in the
judgment. The courts in England were competent to entertain the petition for divorce filed
by the husband (Indian) and the matter was set down for trial as a contested matter. The
judge preferred the evidence of the husband to the evidence tendered by the wife and
passed a decree nisi, which was made absolute. Thus, the decree was passed on the merits
and the provision in Indian law i.e. Hindu Marriage Act, covered the same ground as was
covered by the similar provisions of the English Act under which the decree was granted.
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The party i.e. the wife challenging the decision as null and void, had the opportunity to
defend and the requirement as to conferment of jurisdiction was complied with. In these
circumstances, the Delhi High Court held that the wife could not question conclusiveness
of the judgment of the court of England, as the same did not suffer from any defects
enumerated in s 13 of the Code of Civil Procedure.91

In a suit for maintenance by wife against husband (residing in USA), it was found first, that
the husband had obtained a foreign decree of divorce from a Mexican court; secondly, that
he could not be said to be a bona fide resident or domiciled in Mexico state; and thirdly, that
he had obtained the judgment by misleading the court regarding his residence. It was held
that the decree having been so obtained by making a false representation as to the
jurisdictional facts, it was obtained by fraud within s 13 (b), Code of Civil Procedure. In this
case, it was held that the judgment was not given on the merits and publication of
summons was only by notification in the Official Gazette. 92 In this case, the Honble
Supreme Court advised examination of feasibility of legislation safe-guarding the interest
of women by incorporating the following provisions as:
(a) no marriage between an NRI and an Indian woman which has taken place in India
may be annulled by a foreign court;
(b) provisions may be made for adequate alimony to the wife in the property of the
husband both, in India and abroad.
(c) A decree granted by an Indian court may be made executable in foreign courts
both, on principle of comity and by entering into reciprocal agreements like s 44 -A
of the Code of Civil Procedure, which makes a foreign decree executable as it would
have been a decree passed by that court.93

In a Gujarat case, the provisions of s 13, cls (b), (d) and (e), CPC, were at issue. The wife
had, in this case, sued for maintenance against the husband (residing in the United States).
The husband, it seems, had obtained a decree of divorce in a Mexican court. The objection
of the wife was, that the husband was not a bona fide resident of Mexico and had obtained
the judgment by misleading the Mexican court and therefore, the decree of divorce was
vitiated by fraud. Further, the decree was passed without recording any evidence and was
not given on merits, and the wife was not heard personally by the Mexican court. The wife
did not appear or submit to the jurisdiction of the Mexican court and the divorce decree
was therefore, invalid for breach of natural justice. Upholding these objections, the Gujarat
High Court declared the marriage to be subsisting and held that the wife was entitled to
maintenance.94

Where the ground on which the marriage of the defendant husband was dissolved is not
available in the Hindu Marriage Act, the parties are Hindu, their marriage was solemnised
according to the Hindu rites, their matrimonial disputes or relationship was, therefore,
governable by the provisions of Hindu Marriage Act. Since the plaintiff wife did not submit
to the jurisdiction of the USA Court nor did she consent for the grant of divorce in the
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USA Court the decree obtained by the defendant from the Connecticut Court of USA is
neither recognizable nor enforceable in India.95

S. 14. Presumption as to foreign judgments.

The Court shall presume, upon the production of any document purporting to be a
certified copy of a foreign judgment, that such judgment was pronounced by a Court of
competent jurisdiction, unless the contrary appears on the record; but such presumption
may be displaced by proving want of jurisdiction.

1. Scope. The presumption under this section would stand rebutted as where the foreign
judgment declares that the defendant was served within the jurisdiction of the court
delivering such a judgment, if, it is shown that he was at the relevant time physically not
within that foreign territory.1 (See s 13, cl (a), and the undermentioned cases).2

(See notes to 2 13 under the heading clause (a) court of competent jurisdiction.)

2. shall presume. (See Indian Evidence 1872, s 4.3)

3. foreign judgment. (See notes to s 13 under the same heading.)

4. Court of competent jurisdiction. (See notes to s 13 under the same heading.)

24 .Vineet Kumar v. Bhagwan Dei, AIR 1978 All 312.

25 . Subs. for words the States by Act 2 of 1951, s 3.
26 .Sagoon Jayaidee Dhond v. Sociedade Civill e Particular dos Toris of Volooi, Ponda Concelhe, AIR 1966 Goa, Daman and Diu 38 (FB).
27 .R. Visnanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 [LNIND 1962 SC 226].
28 .Duggamma v. Ganeshayya, AIR 1965 Mys 97.
29 .Goswami Govardhanlalji v. Goswami Shri Girdharlalji, (1893) ILR 17 Bom 620.
30 .Brijlal Ramjidas v. Govindram Gobordhandas, AIR 1947 PC 192: 74 IA 203, (1948) 52 Cal WN 82 : (1948) 50 Bom LR 556.
31 .Indar v. Thakur, AIR 1921 Lah 20.
32 .Viswanathan v. Abdul Wajid, AIR 1963 SC 1 [LNIND 1962 SC 226]; Chormal Balchand v. Kasturchand, (1936) ILR 63 Cal 1033 : (1936) 40
Cal WN 59; Panchapakesa v. Hussain, AIR 1934 Mad 35: (1934) 64 Mad LJ 209.
33 .Marggarate M. Pulparampil v. Dr Chacko Pulparampil, AIR 1970 Ker 1 [LNIND 1969 KER 13]: (1969) ILR 1 Ker 293.
 Page 24 of 28
(IN) Mulla : The Code of Civil Procedure, 18th Edition

34 .S. Teja Singh v. Smt. Satya, AIR 1971 Punj 80; reversed on appeal in Satya v. Teja Singh, AIR 1975 SC 105 [LNIND 1974 SC 290].
35 .Viswanathan v. Abdul Majid, AIR 1963 SC 1 [LNIND 1962 SC 226].
36 .Sivaramakrishnan v. Mammu, AIR 1957 Mad 214 [LNIND 1956 MAD 18]; Duggamma v. Ganeshayya, AIR 1965 Mys 97.
37 . Prithisingi v. Umedsingi, (1903) 6 Bom LR 98, doubting Babahbat v. Narharbhat, (1888) ILR 13 Bom 224.
38 . Nalla v. Mahomed, (1897) ILR 20 Mad 112, p. 114; Duggamma v. Ganeshayya, AIR 1965 Mys 97.
39 . Baijnath v. Vallabhadas, AIR 1933 Mad 511 [LNIND 1933 MAD 107]: (1933) ILR 56 Mad 951; Nauvion v. Freeman, [1890] 15 AC 1.
40 . R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 [LNIND 1962 SC 226].
41 . Ibid.
42 . Ibid.
43 . T.K. Shahal Hassan Musaliyar v. Bank of Baroda, Kollam, AIR 2008 Ker 21 [LNIND 2007 KER 357]: 2007 (4) Ker LT 90 [LNIND 2007
KER 357].
44 . Ibid, at page 23 (of AIR).
45 . Rakesh Kumar v. Ashima Kumar, AIR 2007 P&H 63.
46 . Janardhan Mohandas Rajan Pillai v. Madhubhai Patel, AIR 2003 Bom 490 [LNIND 2003 BOM 629].
47 . Janardhan Mohandas Rajan Pillai v. Madhubhai Patel, AIR 2003 Bom 490 [LNIND 2003 BOM 629].
48 . R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 [LNIND 1962 SC 226].
49 . Janardhan Mohandas Rajan Pillai v. Madhubhai Patel, AIR 2003 Bom 490 [LNIND 2003 BOM 629].
50 . R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 [LNIND 1962 SC 226].
51 . Janardhan Mohandas Rajan Pillai v. Madhubhai Patel, AIR 2003 Bom 490 [LNIND 2003 BOM 629].
52 . The Indian Limitation Act, 1963, Sch 1, art 101.
53 . Popat v. Damodar, (1934) 36 Bom LR 844 : AIR 1934 Bom 390.
54 . Nilratan Cooch Behar Loan Office, (1941) ILR 1 Cal 171 : AIR 1941 Cal 64, 45 CWN 113 : 72 CLJ 148; Setabgang Sugar Mills v. Benazir
Ahmed, AIR 1952 Cal 116 [LNIND 1951 CAL 161]; East India Trading Co v. Badat and Co., AIR 1959 Bom 414 [LNIND 1958 BOM
130]: (1959) ILR Bom 1004; Gopal Singh v. Punjab National Bank, AIR 1976 Del 115.
55 . Gena v. Birdhichand, (1958) ILR Raj 374 : AIR 1958 Raj 189 [LNIND 1957 RAJ 138].
56 . Gurdas Mann v. Mohinder Singh Brar, AIR 1993 P&H 92; followed AIR 1990 Bom 170 [LNIND 1989 BOM 473].
57 . Sama Rayar v. Annamalai, (1884) ILR 7 Mad 164.
58 . Himmat Lall v. Shivajirav, (1884) ILR 8 Bom 593.
59 . Ganga Prasad v. Ganeshi Lal, (1924) ILR 46 All 119 : AIR 1924 All 161.
60 . Gurdyal Singh v. Raja of Faridkot, (1895) ILR 22 Cal 222 : 237, 21 IA 171; Mayaram v. Raoji, (1900) ILR 24 Bom 86.
61 . Murugesa v. Annamalai, (1900) ILR 23 Mad 458.
62 . Mallappa v. Raghavendra, (1938) ILR Bom 16 : AIR 1938 Bom 173; Chormal Balchand v. Kasturichand, (1938) ILR 63 Cal 1003 : AIR 1938
Cal 511.
63 . AIR 1951 Bom 125 [LNIND 1951 BOM 15]: 53 BLR 198.
64 . Kala Bechar v. Mohan Bhagwan, AIR 1953 Sau 16(FB); Meherunnissa Begum v. Venkat Murli, (1955) ILR Hyd 464 : AIR 1955 MB 1.
65 . Vareed v. Gopal Bai, (1954) ILR Tr and Coch 694, AIR 1954 Tr and Coch 358; Ram Kisan v. Harmukharai, (1955) ILR Nag 194 : AIR
1955 Nag 103; Firm Kanhaiyalal Somani v. Param Sukh, (1956) ILR Nag 539 : AIR 1956 Nag 273; Firm Radhesham v. Kundanlal, (1956) ILR
Pun 434 : AIR 1956 Punj 193; Lakshmi Chand v. Tripur, 1956 ILR Raj 236 : AIR 1956 Raj 81 [LNIND 1955 RAJ 192]; Variath Augusthi v.
Subramanya Iyer, (1957) ILR Ker 1036 (FB) : AIR 1958 Ker 15 [LNIND 1957 KER 156]; Gena v. Birdhichand supra; Gauri Lal Firm v. Jugal
Kishore, AIR 1959 Punj 265; Metal Corpn. of India v. P. Colombi, AIR 1960 Mys 1; Kishendas v. Indo-carnatic Bank, AIR 1958 AP 407.
66 . AIR 1962 SC 1737 [LNIND 1962 SC 199]; affirming AIR 1958 All 175; Laxmidas v. L. Chandraphan, 10 Guj LR 93, AIR 1969 Guj 23
[LNIND 1967 GUJ 46].
67 . Vareed v. Gopalbai supra; Variath Augusthi v. Subramanya lyer supra; Kishendas v. Indo-carnatic Bank supra; Mental Corporation of India v. P.
Colombi supra; Narhari Shivram v. Pannalal Unediram, AIR 1977 SC 164 [LNIND 1976 SC 15] (case of transfer to Goa Court).
68 . Shaligram v. Firm Daulatram Kundanmal, [1963] 2 SCR 574 [LNIND 1962 SC 201] : AIR 1967 SC 739 [LNIND 1962 SC 201]: 65 Bom
LR 331.
69 . S.S. Said-ul-Hamid v. Federal Indian Assurance Co., AIR 1951 Simla 255.
 Page 25 of 28
(IN) Mulla : The Code of Civil Procedure, 18th Edition

70 . Bababhat v. Narharbhat, (1889) ILR 13 Bom 224.

71 . Hajimusa v. Purmanand, (1891) ILR 15 Bom 216.
72 . (1895) ILR 22 Cal 222 : 1895 IA 171.
73 . Lakshmishankar v. Vishnuram, (1900) 24 Bom 77; Nalla v. Mahomed, (1897) ILR 20 Mad 112.
74 . Mathapa v. Chellappa, (1876) ILR Mad 196.
75 . Chunilal Kasturchand v. Dundappa Damappa, (1950) ILR Bom 640 : AIR 1951 Bom 190 [LNIND 1950 BOM 14]; Jivappa v. Jeergi, (1916)
ILR 40 Bom 551; Kassim v. Isuf, (1902) ILR 29 Cal 500; Ishri Prasad v. Sri Ram, (1927) 25 All LJ 887 : AIR 1927 All 510.
76 . Ramalinga v. Swaminatha, (1941) ILR Mad 891 : AIR 1941 Mad 688.
77 . Chormal Balchand v. Kasturichand, ILR 63 Cal 1033 : 40 CWN 591; Vithalbhai v. Lalbhai, (1942) ILR Bom 688 : AIR 1942 Bom 189: 44
BLR 380, 202 IC 286.
78 . Bharat Nidhi Ltd. v. Megh Raj, AIR 1967 Del 22 [LNIND 1967 DEL 2]: 69 Punj LR 88.
79 . Shaik Atham v. Davud, (1909) ILR 32 Mad 469.
80 . Christien v. Deanney, (1899) ILR 26 Cal 931; Hinde v. Ponnath, (1882) ILR 4 Mad 359; Chormal Balchand v. Kasturichand, 63 Cal 1033 : 40
CWN 591.
81 . Lalji Raja and Sons v. Hansraj Nathoram, AIR 1971 SC 974 [LNIND 1971 SC 141].
82 . Sagoon Jayaidee v. Sociede Civil d and Dos Taris, AIR 1966 Goa 38.
83 . See RSC, O 11, r. 1.
84 . Hossein Khan v. Paphael, (1901) ILR 28 Cal 641; Viswanadha Reddi v. Keymer, (1916) ILR 39 Mad 95, 100; affirmed 40 Mad 112, 44 IA 6.
85 . Ganga Prasad v. Ganeshi Lal, (1924) ILR 46 All 119 : AIR 1924 All 161; Shaik Atham v. Davud, (1909) ILR 32 Mad 469.
86 . Kandoth v. N. Abdul, (1976) 8 Mad HC 14.
87 . Kaliyugam v. Chokalinga, (1884) ILR 7 Mad 105.
88 . Shaligram v. Firm Daulatram Kumdanmmal, supra.
89 . Sivaraman v. Ibrahim, (1895) ILR 18 Mad 327.
90 . Subramania v. Annaswami, AIR 1948 Mad 203; Harris v. Taylor, [1915] 2 KB 580; Wansborough Paper Co. v. Laughland, (1920) WN 344; but
see Rajaratnam v. Muthuswamy, AIR 1958 Mad 203 [LNIND 1957 MAD 171].
91 . Subramania v. Annaswami supra; Harchand v. Gubalchand, (1914) ILR 39 Bom 34; Rama v. Krishna, (1916) ILR 39 Mad 733 (FB); overruling
Parry and Co. v. Appasami, (1880) ILR 2 Mad 407.
92 . Mallappa v. Raghavendra, (1938) ILR Bom 16 : AIR 1938 Bom 173.
93 . Marggarate v. Chacko, (1969) ILR 1 Ker 293 : AIR 1970 Ker 1 [LNIND 1969 KER 13].
94 . Hari Singh v. Mahammad, (1927) 8 Lah 54 : AIR 1927 Lah 200.
95 . Narappa v. Rangaswami, (1933) 64 Mad LJ 531 : AIR 1933 Mad 393; Firm Kanhayalal v. Param Sukh, AIR 1956 Nag 273.
96 . Veeraraghava Ayyar v. Mugga Sait, (1916) ILR 39 Mad 24.
97 . Nallatambi v. Ponnusami, (1879) ILR 2 Mad 400, 404.
1 . Sheo Tahal v. Binaik, (1931) ILR 53 All 747 : AIR 1931 All 689.
2 . Oomer Hajee v. Tirunavakkarasu, (1936) ILR 59 Mad 618 : AIR 1936 Mad 252 [LNIND 1935 MAD 364]; Sundaram v. Kandaswami, AIR
1941 Mad 387 [LNIND 1940 MAD 348].
3 . Shandaram v. Lakshmi, AIR 1974 SC 1764 [LNIND 1974 SC 155].
4 . Austrian Lloyd Steamship Co. v. Gresham Life Assurance Society, [1903] 1 KB 249; Kirchner and Co v. Grubban, [1909] 1 Ch 413; Burjor v.
Ellerman City Lines, Ltd., (1925) ILR 49 Bom 854 : AIR 1925 Bom 449; Haji Abdulla v. Stamp, (1924) 26 Bom LR 224 [LNIND 1924
BOM 18] : AIR 1924 Bom 381.
5 . Emanuel v. Symon, [1908] 1 KB 302; Guruswami v. Muhahhad Khan, [1908] 1 KB 302; Guruswami v. Muhahhad Khan, (1932) 63 Mad LJ 761 :
AIR 1933 Mad 112 [LNIND 1932 MAD 157].
6 . Ramanathan v. Kalimuthu, (1912) ILR 37 Mad 163; Janoo v. Mahamad, (1924) ILR 47 Mad 877 : AIR 1925 Mad 155 [LNIND 1924 MAD
131].
7 . Douglas v. Forrest, (1828) 4 Bing 686; London and North-Western Ry. Co. v. Linsay, (1858) 3 Macq 99.
8 . Emanuel v. Symon, [1908] 1 KB 302.
 Page 26 of 28
(IN) Mulla : The Code of Civil Procedure, 18th Edition

9 . Andhra Bank v. Srinivasan, AIR 1962 SC 232 [LNIND 1961 SC 292].

10 . Re Gudaru Marodugula, (1907) ILR 30 Mad 292; Pemberton v. Hughes, [1899] 1 Ch 781.
11 . Vishwanathan v. Abdul Majid, supra.
12 . Sahib Thambi v. Hamid, (1913) ILR 36 Mad 414.
13 . Fakuruddeen v. Official Trustee of Bengal, (1881) ILR 7 Cal 82.
14 . R Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 [LNIND 1962 SC 226].
15 . Santa Singh v. Ralla Singh, (1919) PR 14, p. 30; RHMV Achi v. RMAR Chettiar, AIR 1973 Mad 141 [LNIND 1972 MAD 111]: (1972) 2
MLJ 468.
16 . Sankaran Govindam v. Lakshmi Bharathi, AIR 1974 SC 1764 [LNIND 1974 SC 155].
17 . Chockalinga v. Duraiswami, (1928) ILR 51 Mad 720 : AIR 1928 Mad 327 [LNIND 1927 MAD 216].
18 . R. Vishwanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 [LNIND 1962 SC 226]: (1963) 3 SCR 22 [LNIND 1962 SC 226].
19 . Shriman Goswami Govardhanlalji v. Goswami Shri Girdharlalji, (1893) ILR 17 Bom 620.
20 . R Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 [LNIND 1962 SC 226]: (1963) 3 SCR 22 [LNIND 1962 SC 226].
21 . R Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 [LNIND 1962 SC 226]: (1963) 3 SCR 22 [LNIND 1962 SC 226].
22 . Sankaran Govindam v. Lakshmi Bharathi, AIR 1974 SC 1764 [LNIND 1974 SC 155].
23 . International Wollen Mills v. Standard Wool (UK) Ltd., AIR 2001 SC 2134 [LNIND 2001 SC 1066].
24 . HSBC Bank U.S.A. v. Silverline Technologies Ltd., AIR 2006 Bom 134 [LNIND 2006 BOM 94]: 2006 (3) Mah LJ 107 [LNIND 2006 BOM
94].
25 . Ibid.
26 . Ibid.
27 . Santa Singh v. Ralla Singh, (1919) PR 14, p. 30; RHMV Achi v. RMAR Chettiar, AIR 1973 Mad 141 [LNIND 1972 MAD 111]: (1972) 2
MLJ 468.
28 . Mallappa v. Raghavendra, (1938) ILR Bom 16 : AIR 1938 Bom 173; International Woolen Mills v. Standard Wool (UK) Ltd., [2001] 2 LRI 765.
29 . Keymer v. Viswanatham, (1917) 44 IA 6 : 40 Mad 112 : AIR 1916 PC 121, 21 CWN 308, affirming 39 Mad 95.
30 . Oppenheim and Co v. Mahomed Haneef, (1922) 49 IA 174 : 45 Mad 496 : AIR 1922 PC 120.
31 . KM Abdul Jabbar v. Indo-Singapore Traders Pvt. Ltd., AIR 1981 Mad 118 [LNIND 1980 MAD 327].
32 . Middle East Bank Ltd. v. Rajendra Prasad Sethia, AIR 1991 Cal 335 [LNIND 1990 CAL 274].
33 . Bharat National Bank v. Thakur Das, (1935) 16 Lah 757 : AIR 1935 Lah 729.
34 . Moahomed Kasim v. Seeni Pakir, (1927) ILR 50 Mad 261 : AIR 1927 Mad 265 [LNIND 1926 MAD 313] (FB); overruling Janoo v.
Mahammad, (1924) ILR 47 Mad 877 : AIR 1925 Mad 155 [LNIND 1924 MAD 131]; Ishri Prasad v. Sri Ram, (1928) ILR 50 All 270 : AIR
1927 All 510; Abdul Rahiman v. Mahomed Ali, (1928) 6 Rang 552 : AIR 1928 Rang 319; Arunachellam v. Mahomed, AIR 1928 Mad 133
[LNIND 1927 MAD 45]; Derby Mcintyre v. Mitter and Co., 39 CWN 557.
35 . Sivagaminatha v. Natarajan, AIR 1961 Mad 385 [LNIND 1960 MAD 126].
36 . Firm THFJKD Rajan Singh v. Parmanand, (1959) ILR Punj 613 : AIR 1959 Punj 306.
37 . International Wollen Mills v. Standard Wool (UK) Ltd., AIR 2001 SC 2134 [LNIND 2001 SC 1066].
38 . International Wollen Mills v. Standard Wool (UK) Ltd., IR 2001 SC 2134.
39 . Code v. Harper, (1910) ILR 41 All 521; Meher Singh v. Ishar Singh, (1932) 14 Lah 58 : AIR 1932 Lah 649; Gajanan v. Shantabai, (1939) 41
Bom LR 818 : AIR 1939 Bom 374; Walker v. Walker, AIR 1935 Rang 284.
40 . Sh Abdol Rahim v. Mahamed Din, AIR 1943 Cal 42: 75 CLJ 271.
41 . Wazir Sahu v. Munishi Dass, (1941) ILR 20 Pat 144 : AIR 1941 Pat 109; Kulwant v. Dhunraj, (1935) 16 Lah 768 : AIR 1935 Lah 396; Indian
and General Investment Trust v. Raja of Khalikote, AIR 1952 Cal 508 [LNIND 1952 CAL 9]; Jayaratnam v. Muthusamy supra; East India Trading
Co v. Badat and Co., supra; Govindan v. Sankaran, (1958) ILR Ker 80 : AIR 1958 Ker 203 [LNIND 1957 KER 265]; Varma v. Gehrilal,
(1961) ILR Raj 103 : AIR 1962 Raj 231 [LNIND 1960 RAJ 131]; Trilochan v. Dayanidhi, (1961) ILR Cut 150 : AIR 1961 Ori 158
[LNIND 1960 ORI 25].
42 . International Wollen Mills v. Standard Wool (UK) Ltd., AIR 2001 SC 2134 [LNIND 2001 SC 1066].
43 . Mohammad v. Chinthamani, (1929) ILR 52 Mad 503 : AIR 1929 Mad 469 [LNIND 1929 MAD 23]; Satyanarain v. Balchand, (1954) ILR
Raj 905 : AIR 1955 Raj 59 [LNIND 1954 RAJ 261].
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(IN) Mulla : The Code of Civil Procedure, 18th Edition

44 . AIR 1946 Mad 296 [LNIND 1945 MAD 209]: 225 IC 348.
45 . Rama Shenoi v. Hallagna, (1918) ILR 41 Mad 205.
46 . Godard v. Gray, (1870) LR 6 QB 139.
47 . Hinde v. Ponnath, (1881) ILR 4 Mad 359.
48 . Panchpakesa Iyer v. K.N. Husain, (1934) 66 Mad LJ 209 : AIR 1934 Mad 145.
49 . Barket Lal v. Devi Das, (1952) ILR Hyd 233 : AIR 1953 Hyd 29.
50 . Kunhiman v. Idoise Kutty, (1958) ILR Ker 100 : AIR 1958 Ker 128.
51 . Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC 1764 [LNIND 1974 SC 155].
52 . Rama Shenoi v. Hallagna, (1918) ILR 41 Mad 205.
53 . London Bank v. Harmasji, (1871) ILR 5 Bom 223; London Bank v. Govind, (1881) ILR 5 Bom 223; London Bank v. Burjorji, (1885) ILR 9
Bom 346; Edulji v. Manekji, (1887) ILR 11 Bom 241; Bangarusami v. Balasubramaniam, (1890) ILR 13 Mad 496; Indian and General Investment
Trust v. Raja of Khalikote, supra.
54 . Hari Singh v. Muhammad, (1927) 8 Lah 54 : AIR 1927 Lah 200.
55 . Hari Singh v. Muhammad, supra.
56 . Popat v. Damodar, (1934) 36 Bom LR 844 : AIR 1934 Bom 390; Gajanan v. Shantabai, supra.
57 . Janoo v. Mahamad, (1924) ILR 47 Mad 877 : AIR 1925 Mad 155 [LNIND 1924 MAD 131]; overruled on another point in 50 Mad 261
supra.
58 . 47 Mad 877 : AIR 1925 Mad 155 [LNIND 1924 MAD 131] supra; citing Pemberton v. Huges, [1899] 1 Ch 781.
59 . Viswanathan v. Abdul Wajid, supra.
60 . Vasant v. Dattoba, AIR 1956 Bom 49 [LNIND 1953 BOM 46].
61 . Monoharlal v. Raghunath, AIR 1957 MB 74.
62 . Viswanathan v. Abdul Wajid, supra.
63 . Algemene Bank Nederland NV v. Satish Dayalal Choksi, AIR 1990 Bom 170 [LNIND 1989 BOM 473].
64 . Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC 1764 [LNIND 1974 SC 155].
65 . Sayta v. Teja Singh, (1975) 1 SCC 120 [LNIND 1974 SC 290] : AIR 1975 SC 105 [LNIND 1974 SC 290].
66 . Nistarini Dassi v. Kundo Lal, (1899) ILR 26 Cal 891, 910.
67 . AIR 1941 Mad 387 [LNIND 1940 MAD 348]: (1941) 1 MLJ 140 [LNIND 1940 MAD 348].
68 . N. Khosla v. Rajlakshmi, AIR 2006 SC 1249 [LNIND 2006 SC 160].
69 . Algemene Bank Nederland NV v. Satish Dayalal Choksi, AIR 1990 Bom 170 [LNIND 1989 BOM 473].
70 . International Wollen Mills v. Standard Wool (UK) Ltd., AIR 2001 SC 2134 [LNIND 2001 SC 1066].
71 . See Hari Singh v. Muhammad, (1927) 8 Lah 54 : AIR 1927 Lah 200.
72 . Baijnath v. Vallabhdas, (1933) ILR 56 Mad 951 : AIR 1933 Mad 511 [LNIND 1933 MAD 107].
73 . Nallatambi v. Ponnusami, (1879) ILR 2 Mad 400.
74 . Ganga Prasad v. Ganeshi Lal, (1924) ILR 46 All 119 : AIR 1924 All 161.
75 . East India Trading Co. v. Badat and Co supra; Ganguli Engineering Co. v. Srimathi Susila Bala, AIR 1957 Cal 103 [LNIND 1955 CAL 166]:
60 CWN 289.
76 . Gopaldas v. Dogduram, (1852) ILR Hyd 323 : AIR 1952 Hyd 49.
77 . National Thermal Power Corpn. v. Singer Co and ors, (1992) 3 SCC 551 [LNIND 1992 SC 393].
78 . Northern Sales Co. Ltd. v. Reliable Extraction Industries, AIR 1985 Bom 332 [LNIND 1984 BOM 375], 334, paras 78 (Pendse, J).
79 . Oppenheim and Co. v. Haneef Mahomed, AIR 1922 PC 120: [1922] 1 AC 482; Badal and Co. v. East India Trading Co., AIR 1964 SC 538
[LNIND 1963 SC 170]; OP Verma v. Lala Gehrilal, AIR 1962 Raj 231 [LNIND 1960 RAJ 131]; East India Trading Co., New York v. Badal
and Co., AIR 1959 Bom 414 [LNIND 1958 BOM 130]; Setabganj Sugar Mills v. Benazir Ahmad, AIR 1959 Bom 414 [LNIND 1958 BOM
130]; Gopal Singh Hira Singh v. Punjab National Bank, AIR 1976 Del 115.
80 . Firm Gauri Lal v. Jugal Kishore, (1958) ILR Punj 1211 : AIR 1958 Punj 265(FB).
81 . Bank of India v. Harshadrai Odhavji, AIR 2002 Bom 449 [LNIND 2002 BOM 393].
 Page 28 of 28
(IN) Mulla : The Code of Civil Procedure, 18th Edition

82 . Surinder Kaur Sandhu v. Harbans Singh Sandhu, (1984) 3 SCC 698 [LNIND 1984 SC 108].
83 . Isavell Singh v. Ram Singh, AIR 1985 Raj 30, 35, 36, para 18.
84 . Kuldeep Sidhu v. Chanan Singh, AIR 1989 P&H 103.
85 . Ibid.
86 . Elizabeth v. Arwand, AIR 1987 SC 3 [LNIND 1986 SC 431]; Surinder Kaur v. Harbax Singh, AIR 1984 SC 1224 [LNIND 1984 SC 108];
Marilyn v. Margaret, AIR 1983 NOC 217(P&H), Re HC Infant [1966] 1 All ER 886 : (1966) 1 WLR 381 (QB).
87 . Jacqueline Kapoor v. Surender Pal Kapoor, AIR 1994 P&H 309; Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 [LNIND 1986 SC
431].
88 . Deva Prasad Reddy v. Kamini Reddy, AIR 2002 Kant 356 [LNIND 2002 KANT 252].
89 . Maganbhai Chotubhai Patel v. Mani Ben, AIR 1985 Guj 187 [LNIND 1984 GUJ 64].
90 . Dr Padmini Mishra v. Dr Ramesh Chandra Mishra, AIR 1991 Ori 263 [LNIND 1990 ORI 126].
91 . Anoop Beniwal v. Dr Jagbir Singh Beniwal, AIR 1990 Del 305 [LNIND 1989 DEL 402].
92 . Maganbhai v. Maniben, AIR 1985 Guj 187 [LNIND 1984 GUJ 64].
93 . Neeraja Saraph v. Jayant Saraph, (1994) 6 SCC 461 [LNIND 1994 SC 1565].
94 .Maganbhai v. Maniben, AIR 1985 Guj 187 [LNIND 1984 GUJ 64].
95 . Anubha v. Vikas Aggarwal, AIR 2003 Del 175 [LNIND 2002 DEL 1525].
1 . Bharat Nidhi Ltd. v. Megh Raj, AIR 1967 Del 22 [LNIND 1967 DEL 2].
2 . Ishri Prasad v. Sri Ram, (1927) 25 All LJ 887 : AIR 1927 All 510; Mithalal v. Kapoorchand, (1958) ILR Raj 1140 : AIR 1959 Raj 47
[LNIND 1958 RAJ 44].
3 . For further details see commentary on 2 4, Indian Evidence by Woodroft and Amir Ali by Lexisnexis.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

Place of Suing

S. 15. Court in which suits to be instituted.

Every suit shall be instituted in the Court of the lowest grade competent to try it.

1. Place of Suing. The heading governs ss 1525. The word place in its context means
place in India, the courts referred to therein mean courts in India and the immovable
property referred to also means immovable property in India. These sections thus, regulate
the venue within India and apply only to those places where the Code is in force. They deal
with matters of domestic concern and prescribe rules for the assumption of territorial
jurisdiction by Indian courts in matters within their cognizance and do not govern claims
against persons of things totally outside their jurisdiction.4

One important aspect of the provisions of s 24 of the CPC is that the power of transfer is
conferred on High Court or the District Court; Courts which normally exercise appellate
or supervisory jurisdiction in the scheme of procedure envisaged under the provisions of
the Code of Civil Procedure. The power is conferred on a higher judicial forum. While it is an
accepted judicial norm that the Judges of the higher Judiciary have the choice to hear a
matter in the sense that the Judge himself can recuse from the case and direct the matter to
be posted before any other Judges if the learned Judge has the feeling that one of the
parties to the proceeding may have a reasonable apprehension of bias if the proceedings
should go on before the particular Judge, may be for a variety of reasons such as a
previous acquaintance of one of the parties to the proceedings with the Judge which may
give rise to a reasonable apprehension of bias on the part of the other party, irrespective of
the fact as to whether the Judge is really biased or not; the learned Judge having earlier
dealt with the subject matter of the proceedings before the Court, having been involved in
the proceedings at an earlier stage in any capacity. A classic example being a Judge shall not
sit in appeal over his own judgment, order or decision or even the learned Judge having
expressed his earlier in respect of the subject matter before him in any other context. But,
in so far as the proceedings before the trial Courts are concerned, it is strictly determined
as per the provisions of the Code, particularly having regard to the provisions of s s 15, 16,
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(IN) Mulla : The Code of Civil Procedure, 18th Edition

17, 18, 19 and 20 of the Code of Civil Procedure. What needs to be observed and pointed out
in the scheme of the Code of Civil Procedure is that the Judge of the subordinate judiciary, do
not have the power to recuse themselves from the suit or proceeding pending before the
Court over which they preside.5

2. Scope and object of the section. Section 15 is enacted not merely to avoid
overcrowding in the higher Court but also for the convenience for the parties and
witnesses who may be examined by them.6

The object of the section in requiring a suitor to bring his suit in the court of lowest grade
competent to try it, is that courts of higher grades shall not be overcrowded with suits.
This section is a rule of procedure, not of jurisdiction, and whilst it lays down that a suit
shall be instituted in the court of the lowest grade, it does not oust the jurisdiction of the
courts of higher grades which they possess under the Acts constituting them.7 Although,
therefore, as a matter of procedure, a suit below a certain value ought to be instituted in
the court of the munsif, the subordinate judge has still the jurisdiction to try it.8 Thus,
when a subordinate Judge is invested by notification under the Madras Civil Courts Act,
1873, with power to take cognizance of any proceeding under the Succession Act, his
jurisdiction over such matters is co-extensive with that of the District Judge and the
proceedings should accordingly be instituted in view of s 15 of the Code in the court of the
subordinate judge as being the lower Court but this does not deprive the District Judge of
his jurisdiction to entertain them as the section enacts only a rule of procedure.9 As a
matter of procedure, he ought not to entertain the suit, but should return the plaint to the
plaintiff to be presented to the munsif as provided by O 7, r 10 of the Code of 1882, s 57.10
This is explained fully below.

3. Jurisdiction. The word competent used in this section has reference to the jurisdiction
of a court. Jurisdiction means the extent of the authority of a court to administer justice
not only with reference to the subject matter of the suit but also to the local and pecuniary
limits of its jurisdiction. Thus, A Presidency Small Cause court has no jurisdiction to try
suits in which the amount or value of the subject matter exceeds the prescribed monetary
value; this is said to be the jurisdiction of a court as regards its pecuniary limits. Nor can it
try suits for specific performance of contracts or for an injunction, or for a dissolution of
partnership; this is said to be the jurisdiction of a court as regards the subject matter of a
suit. Nor can it try a suit on a cause of action that has arisen beyond the local limits of the
original civil jurisdiction of the High Court; this is said to be the local limits of its
jurisdiction.

Section 92 of the Code of Civil Procedure lays down specifically that suits relating to public trusts
are to be instituted in the principal civil court of original jurisdiction or in any other Court
empowered in that behalf by the State Government. The Supreme Court held that the
word or used in s 92 denotes an alternative, giving a choice. Even if the State notified any
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other court for instituting a suit relating to Trusts, the jurisdiction of District Court does
not stand substituted.11

In the above case, the State Government, act ing under the Tamil Nadu Civil Courts Act,
1873, had fixed local limits of jurisdiction of any District Court or subordinate Judges
Court and had also invested all Courts of Subordinate Judges with jurisdiction under the
Code in respect of suits relating to Trusts. Explaining the point further, Raveendran, J.,
speaking for the Supreme Court Bench in the above case, observed as follows:

Assuming that there was only need for applying the principles of interpretation, let us next consider whether the word or was used in section 92 of the Code in a
substitutive sense. It is clear from section 92 of the Code that the legislature did not want to go by the general rule contained in section 15 of the Code that every
suit shall be instituted in the court of the lowest grade competent to try it, in regard to suits relating to public Trusts. The intention of the law makers was that
such suits should be tried by the District Court. At the same time, the law makers contemplated that if there was heavy work load on the District Court, the
State Government should be enabled to empower any other court (within the local limits of whose jurisdiction, the whole or any part of the subject-matter is
situate), also to entertain such suits. Therefore, the word or is used in the ordinary and normal sense, that is to denote an alternative, giving a choice. The
provisions of section 92 do not give room for interpreting the word or as a substitutive, so as to lead to an interpretation that when the Government notified any
other court, such notified court alone will have jurisdiction and not the District Court. 12

The jurisdiction of a court may again be original or appellate. In the exercise of its original
jurisdiction, a court entertains original suits. In the exercise of its appellate jurisdiction, it
entertains appeals.

4. Judgment of Court not competent to deliver it. See notes under s 11 under the same
heading. See notes under heading Contract providing for place of suing under s 10 and
agreement as to choice of court under s 20.

5. Court of lowest grade competent to try a suit. There are in India a large number of
courts. The High Courts of Calcutta, Madras, Bombay, Allahabad, Patna and Nagpur each
have been established by a Royal Charter. Under Art. 214(1) of the Constitution, there is now
a High Court for each state. Under Art. 214(2), High Courts exercising jurisdiction in
relation to any province immediately before the commencement of the Constitution have
become High Courts for the corresponding states. Article 225 preserves their existing
jurisdiction, the powers of judges of these High Courts and the laws administered in these
High Courts, subject to the provision of the Constitution and subject to the provisions of
any law made by the appropriate legislature by virtue of the powers conferred on such
legislature by the Constitution. The High Courts of Orissa and Assam were established after
the Independence but before the Constitution by Order of the Governor-General. Other
courts in India have been established almost all by Local Acts and they are of various
grades with different pecuniary limits of jurisdiction.

In each of the three Presidency-towns, there is a High Court and a small cause court. High
Courts are empowered in the exercise of their ordinary original civil jurisdiction to try suits
of any value except suits falling within the jurisdiction of Presidency Small Cause courts of
which the value does not exceed Rs 100.13 The pecuniary jurisdiction of Presidency Small
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Cause courts is confined to suits of which the value does not exceed Rs 2,000.14 Thus, both
a High Court and a Presidency Small Cause court are competent to try a suit for Rs 500,
for damages for breach of contract, but of these two courts it is the small cause court
which is the court of the lowest grade competent to try the suit. The suit, therefore, shall
be instituted in the small cause court as required by the present section. This does not
mean that the High Court has no jurisdiction to entertain the suit. It has jurisdiction to try
the suit, but in order that the High Court may not be overcrowded with suits, the
legislature has established small cause court, and the present section requires that suits
which a Presidency Small Cause court is competent to try shall be brought in that court.
There are, however, certain suits which a small cause court is not competent to try, such as
suits for the recovery or partition of immovable property; or for the foreclosure or
redemption of a mortgage of immovable property; or suits for injunction or for specific
performance.15 These suits must be brought in the High Court, though the value of the
suits may be under Rs 100. There are in Calcutta, Madras and Bombay, courts of original
jurisdiction established under special statutes called City Civil Courts with power to take
cognizance of suits upto a pecuniary limit, not being matters relating to testamentary,
intestate, or matrimonial jurisdiction. It has been held that where there is a conflict
between the original jurisdiction of the High Court under Letters Patent and that of the
City Civil Court, s 15 has no application and that proceedings could be taken in the High
Court even though they could also be instituted in the City Civil Court.16The Hindu
Marriage Act, 1955, confers on the District Court exclusive jurisdiction to try petitions
presented under that Act and its operation is not controlled by s 15. It has accordingly
been held that a petition for declaration of nullity of marriage should be filed in the City
Civil Court and not in the High Court in its original side even though the value of the relief
claimed in the petition exceeds the pecuniary limits of its jurisdiction.17 A suit challenging
an order of suspension against the employee of a panchayat was filed in the court of civil
judge, junior division. The suit cannot be held to be not maintainable on the ground that it
should have been filed in the Court of Civil Judge, Senior Division according to s 32 of the
Bombay Civil Courts Act. Section 15 of the Code of Civil Procedure requires that the suit should
be filed in the court of the lowest grade competent to try it and, in view of the provisions
of s 24 of the Bombay Civil Courts Act, 1869, the suit could have been, and should have
been filed in the Court of Civil Judge only. Panchayat is not government.18

Plaintiffs valuation of a leasehold on the basis of rent would ordinarily be regarded as

reasonable.19 The plaintiffs valuation (unless he has grossly over-valued or under-valued
the suit) should be accepted. mesne profits claimed at Rs 7800 per month for premises of
the nature in question in Calcutta cannot be regarded as fanciful.20

6. Where a suit which ought to be instituted in a Court of lower grade is instituted

in a Court of higher grade. Section 15 of CPC enacts on rule of procedure but it does not
affect the jurisdiction of a Court of higher grade to try the suit entertainable by a Court of
lower grade.21
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When a suit triable by a Court of lower grade is instituted in a Court of higher grade, the
latter Court may return the plaint. It is only discretionary on the part of such latter Court
(i.e. to say the Court of higher grade) either to try the suit itself or to return the plaint for
presentation in the Court of the lower grade. Section 15 is enacted not merely to avoid
overcrowding in the higher Court but also for the convenience for the parties and
witnesses who may be examined by them.22

If a suit which under this section ought to have been instituted in a munsifs court is
brought in the court of a subordinate judge and the subordinate judge, instead of returning
the plaint under O 7, r 10, tries it and passes a decree against the defendant,
notwithstanding an objection taken by the defendant, the decree is not a nullity as the
subordinate judge has jurisdiction to try the suit. It is a case of irregularity, not affecting the
jurisdiction of the court within the meaning of s 99.23 The language of O 7, r 10, though
imperative, is addressed to the suitor and not to the court, which has under this section a
discretion either to return the plaint to be presented to the court of the lowest jurisdiction
or to try it itself.24 The fact that the court of lowest grade has no jurisdiction to try a suit by
summary jurisdiction provided by O 37, r 2(1) does not mean that court is not competent
to try that suit if it is otherwise within its jurisdiction nor does that fact enable the plaintiff
to have his suits tried by a higher court. O 37, r 2(1) has no bearing on the jurisdiction of
that court or on the nature of the suit.25 If a suit under O 21, r 103 is for declaration of title
and possession, the question of jurisdiction in regard to it would be determined by the
market value of the property. If such market value is within the jurisdiction of lower court,
the suit would lie in that court, although the effect of the decree passed therein would be
to upset an order passed by the High Court in favour of an obstructionist.26 If a court has
jurisdiction to entertain a claim, it has the jurisdiction also to pass all appropriate orders in
that suit including even an order staying execution of a decree passed by the Supreme
Court.27

7. Where a suit which ought to instituted in a Court of higher grade is instituted in

a Court of lower grade. In such a case, the court of lower grade ought to return the plaint
to the plaintiff to be presented to the court of higher grade (O 7, r 10). If this is not done,
and the suit is heard by the court of lower grade, the decree is one passed without
jurisdiction. This a case of want of jurisdiction as distinguished from a mere irregularity
within the meaning of s 99 below.28 Where a suit which ought to be instituted in a court of
higher grade is instituted in a court of lower grade and subsequently thereto, the pecuniary
jurisdiction of the lower court is raised so as to cover the suit previously instituted, that
does not cure the defect of want of jurisdiction at the time of the institution.29 In Bansilal v.
Dadus, 30 it was held that when once a suit has been validly instituted in a Court, its
jurisdiction to try it is not affected by subsequent legislation, unless it is express. (As to
cases where a suit is by reason of under-valuation brought in a court of lower grade, see
notes below: Over-valuation and under-valuation.)
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8. Principles regulating pecuniary jurisdiction. It is the plaintiffs valuation in his plaint

which fixes the jurisdiction of the court, and not the amount which may be found and
decreed by the court.31 Thus, where in a suit for accounts the plaintiff values has claim at
less than Rs 5,000 which is the maximum pecuniary jurisdiction of the court in which the
suit is filed and the amount found due on taking the accounts exceeds Rs 5,000, the court
has power to pass a decree for that amount,32 and the court can entertain an application for
execution of the decree.33 On this principle if, in a suit for partition, valuation given by the
plaintiff is such that the suit is within the jurisdiction of the court in which it is filed, that
court can pass a decree in terms of an award of an arbitrator to whom the parties have,
after the filing of the suit, referred the disputes in the suit for arbitration, even though the
award is for an amount exceeding the pecuniary jurisdiction of that court;34 but jurisdiction
may be destroyed if the plaint is so amended as to exceed the pecuniary limits of the court
in which the suit is instituted.35 Where on the allegations in the plaint, the court has
pecuniary jurisdiction to try a suit, any decree or order passed thereon is not open to attack
on the ground that on its true valuation, the claim was beyond the jurisdiction of the court.
It is a defect which is not fundamental and could be waived.36

9. Over-valuation and under-valuation. Although ordinarily, it is the value put by the

plaintiff on his suit that prima facie determines jurisdiction, it does not follow that a
plaintiff is in every case at liberty to assign any arbitrary value to the suit and thus be free
to choose the court in which he should bring the suit.37 In a suit for accounts, the correct
amount payable by one party to the other can be ascertained only when the accounts are
examined and it is not possible to give an accurate valuation of the claim at the inception
of the suit. The plaintiff is, therefore, allowed to give his own tentative valuation.
Ordinarily, the court shall not examine the correctness of the valuation chosen, but the
plaintiff cannot act arbitrarily in this matter. If a plaintiff chooses whimsically, a ridiculous
figure, it is tantamount to not exercising his right in this regard. In such a case, it is not
only open to the court, but, its duty is to reject such a valuation.38 The principles which
regulate the pecuniary jurisdiction of civil courts are well-settled. Ordinarily, the valuation
of a suit depends upon the relief claimed therein and the plaintiffs valuation in his plaint
determines the court in which it can be presented; but the plaintiff cannot invoke the
jurisdiction of a court by either grossly over-valuing or grossly under-valuing a suit. The
court always has the jurisdiction to prevent the abuse of the process of law.39

The Delhi High Court has held that if the plaintiff is allowed to over-value a suit in such a
way as to file the suit in the Court he prefers, then s 15 would become redundant and
would result in forum shopping.40

Cases do occur in which a plaintiff over-values his suit or he under-values it. The over-
valuation or under-valuation may be erroneous, or it may be done intentionally by the
plaintiff for the purpose of bringing the suit in a court different from that in which it
would lie if it were properly valued. If the over-valuation or under-valuation is patent on
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the face of the plaint, it is the duty of the court to which the plaint is presented to return it
to the plaintiff to be presented to the proper court under O 7, r 10. If it is not patent on
the face of the plaint, but objection is taken by the defendant that it is over-valued or
under-valued, the court may require the plaintiff to show that the suit has been properly
valued if there are prima facie grounds for believing that the suit has not been properly
valued,41 but not otherwise.42 Where there is an amendment in the valuation clause of a
plaint, the plaint should be returned for presentation to the proper court having pecuniary
jurisdiction, even if a higher court fee is paid. The court below had committed a manifest
error of law and had illegally held that even by giving a higher valuation by the deponent,
the jurisdiction of the court would remain the same.43

If a suit is over-valued or under-valued so that it is brought in a court whose grade is

higher or lower than that of the court which would have been competent to try it if it had
been properly valued, the decree passed is such a suit is not liable to be set aside or
reversed by the appellate court unless: (i) the objection as to jurisdiction on account of
over-valuation or under-valuation was raised by the defendant in the trial court at or before
the hearing at which the issues were framed; or (ii) such over-valuation or under-valuation
is found by the appellate court to have prejudicially affected the disposal of the suit on
merits.44 It is immaterial whether such over-valuation or under-valuation is erroneous or
intentional.45(See Suits Valuation Act, 1887, s 11 ).

The High Court of Calcutta has held that where a suit is under-valued with the result that
the appeal from the decree in the suit is heard and decided by a District Court instead of
by a High Court, the decree of the District Court is one passed by a court without
jurisdiction and, therefore, a nullity. This happens in cases where a suit of which the true
value exceeds Rs 5,000 is valued at less than Rs 5,000. A brings a suit against B for
possession of immovable property in the court of a subordinate judge. The real value of
the suit exceeds Rs 5,000, but the suit is valued at Rs 2,100 only. A decree is passed in the
suit for A. B files an appeal in the District Court, but the appeal is dismissed. According to
the Calcutta decisions, the decree of the District Court is a nullity as being one passed
without jurisdiction. The reason given is that the true value of the suit being more than Rs
5,000, the proper forum of appeal if the suit had been properly valued, would have been
the High Court, and not the District Court, and the result of the under-valuation was to
oust the jurisdiction of the High Court as the court of appeal.46 In Kiran Singh v. Chaman
Paswan,47 a suit valued at Rs 2,500 was instituted in the Court of the Subordinate Judge,
Monghyr, and against the decree dismissing the suit, the plaintiff preferred an appeal to the
District Court. That appeal also having been dismissed, the plaintiff preferred a second
appeal to the High Court. There, the court determined that the correct valuation of the suit
was Rs 9,880 and the appellant paid the deficit court fee. On the revised valuation, the suit
would be within the competence of the subordinate judge, but an appeal against his
judgment would lie not to the District Judge but to the High Court. The appellant
accordingly contended before the High Court that the appeal to the District Court was
incompetent and its decree a nullity and that the second appeal should be heard as a first
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appeal. The High Court negatived this contention following a full bench decision of the
court in Radio Singh v. Raja Marian 48 and dismissed the appeal as no prejudice had been
shown. The matter was taken in appeal to the Supreme Court and in affirming the decision
of the High Court, the Supreme Court held that even an objection on the ground of
jurisdiction arising out of over-valuation or under-valuation could, in view of the
provisions of s 11 of the Suit Valuation Act, be taken only in the manner mentioned
therein, that the decision of the District Court was therefore, not a nullity and that a mere
change of forum for appeal was not a prejudice contemplated by the section, nor a mere
error on the conclusion reached on the merits.49

10. Where the subject matter of a suit does not admit of being satisfactorily valued.
In some suits, the subject matter is not capable of being estimated at a money value, eg,
suits for restitution of conjugal rights; suits to remove a karnavan, 50 suits to direct
registration of a document under the Registration Act, 1908, s 77,51etc. The court fee in such
suits is Rs 10 as provided by the Court Fees Act, 1870, Sch II, Art. 17, cl (vi). There is a
distinction, however, between valuation for the purpose of jurisdiction and valuation for
the purpose of ascertaining court fee.52 The subject now under consideration is valuation
for purposes of jurisdiction.

In case where the subject matter is not capable of being estimated at a money value, it is
provided by s 9 of the Suits Valuation Act, 1887, that the value of the suit for purposes of
jurisdiction is what the High Court may specify by rules made under that section. Where
no rules are made, the High Courts of Allahabad and Calcutta have said that the safest and
most convenient course is to treat the valuation made by the plaintiff as prima facie the
true valuation, but subject to correction by the court. If the defective valuation has been
due to an improper motive, the court must decide what should be considered to be the
proper value.53 The cases in which the above rule was laid down were suits for restitution
of conjugal rights. In a subsequent case, however, the High Court of Madras said that,
though the rule adopted by the High Courts of Allahabad and Calcutta might be
appropriate in suits for restitution of conjugal rights, it was not so in suits which affected
property, and that the best rule in such cases was to value the suits according to the value
of the property liable to be affected thereby.54 Thus, a suit to compel registration of an
instrument whether the instrument be registrable compulsorily (for example, an instrument
of gift) or voluntarily (for example, a will), is valued in Madras according to the value of
the property that would be affected by the suit;55 and a suit to set aside an instrument
according to the value of the plaintiffs interest in the instrument.56 The Madras High Court
has also held that though the court fee on a suit for the removal of a karnavan is only Rs
10, it does not follow that a district munsif has jurisdiction to try such a suit where the
value of the tarvad property exceeds the pecuniary limits of jurisdiction of the munsifs
court;57 and that a munsif has no jurisdiction to entertain a suit to set aside an adoption, if
the value of the property, which would be lost to the adopted son, if the adoption were set
aside, exceeds the pecuniary jurisdiction of the court.58 The High Courts of Allahabad and
Calcutta would probably not agree. In fact, the High Court of Allahabad has held that the
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value, for the purposes of jurisdiction of a suit to set aside an adoption, is not the value of
the property which may possibly change hands if the adoption be set aside, but the value
put upon his plaint by the plaintiff.59 According to the Bombay view, in a suit to enforce
registration of a document under s 77 of the Registration Act, where the subject matter of the
suit is not capable of monetary value, the valuation placed by the plaintiff would be the
prima facie valuation and if that exceeds the pecuniary jurisdiction of the court of the
lowest grade, the suit can be rightly filed in the higher court;60 but, whichever view be
correct, it is certain since the enactment of the Suits Valuation Act (7 of 1887), s 11, that
when once a suit of this class is decided on its merits by the lower court, the decision will
not be reversed in appeal on the ground of want of jurisdiction unless the cognizance of
the suit by that court has prejudicially affected its disposal on the merits.

It has been held by the High Court of Bombay that where the jurisdiction of a court, eg,
the City Civil Court at Bombay, is limited to try suits not exceeding a certain amount in
value, it cannot entertain a suit, the subject matter of which is not capable of monetary
valuation.61 The Bombay decision has been negatived by s 6 of Maharashtra Act 9 of 1970.

S. 16. Suits to be instituted where subject-matter situate.

Subject to the pecuniary or other limitations prescribed by any law, suits

(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the
property is situate :

Provided that a suit to obtain relief respecting, or compensation for wrong to,
immovable property held by on behalf of the defendant may, where the relief
sought can be entirely obtained through his personal obedience, be instituted
either in the Court within the local limits of whose jurisdiction the property is
situate, or in the Court within the local limits of whose jurisdiction the
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defendant act ually and voluntarily resides, or carries on business, or personally,

works for gain.

Explanation.In this section property means property situate in 62[India].

1. Subject to the pecuniary or other limitations prescribed by law. The pecuniary

limitations have been referred to in the notes on s 15. Instances of other limitations are
suits under s 92, or suits in Bombay against government or an officer of government in his
official capacity,63 which can only be filed in a High Court or a District Court.

High Courts. This section does not apply to High Courts in the exercise of their original
civil jurisdiction (see s 120 ). The nature and extent of the jurisdiction of the High Courts
at Calcutta, Bombay, Delhi and Madras, which are the only courts having original civil
jurisdiction, is defined by the charter for each of these courts which is retained by virtue of
Art. 225 of the Constitution. The original civil jurisdiction of the High Courts of Calcutta,
Madras and Bombay is defined by cl 12 of the charter which empowers them to try suits
for land or other immovable property, if such land or property be situated wholly within
the local limits of the ordinary original civil jurisdiction or, in case leave of the court shall
have been first obtained, in part within such limits. There have been many conflicting
decisions as to the meaning of the expression suits for land or other immovable property
in the Letters Patent, but the more specific and detailed provisions of this section leave no
scope for uncertainty. It has been held by the Calcutta High Court that invocation of
original jurisdiction of this Court in ordinary original civil jurisdiction has to be guided by
the provision of Clause 12 and clause 12 alone, and nothing else unless the Special Act
provides otherwise. Even in case of an arbitration proceeding the principal civil court of
jurisdiction is determinable is the context of the provisions under Clause 12 of the Letters
Patent.64

2. Scope of the section. This is one of a group of sections which refer to courts in India
and to immovable property situated in India. This is specially expressed in the explanation,
lest the proviso be construed as giving a mofussil court jurisdiction in respect of immovable
property out of India, for Indian courts have no such jurisdiction.65 It specifies the court in
which suits relating to immovable property and suits for the recovery of movable property
act ually under distraint or attachment are to be instituted. Section 19 indicates the courts
in which suits for compensation for wrong done to the person or to movable property are
to be instituted. Section 20 is a general section. Sections 3 and 12 of the Bombay City Civil
Courts Act, which confer jurisdiction on the City Civil Court, Bombay, cannot be
construed as excluding s 16 of the Code, and that accordingly, a suit on a mortgage over
properties situated outside greater Bombay is not maintainable in the City Civil Court,
Bombay.66Section 16 has an overriding effect on s 20 as ultimately if relief is granted to the
respondent, he has to work out his remedy against the immovable properties.67 Where the
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court had jurisdiction over the whole of the district of lower Assam but held its sittings
sometimes in Nowgong and sometimes at Gauhati, a suit on a mortgage over properties
situated in Nowgong area could be instituted at Gauhati.68 Compliance with this section is
required at the time of institution of the suit. Hence, if subsequent to such institution, the
area in which the immovable property in the suit is situated is transferred for any reason to
another district, the court in which the suit was instituted is not as a result of such transfer
divested of its jurisdiction to proceed with and decide it.69

3. Section 16 (c) and Section 20 choice of Court. If the suit is governed by s 16 (c)
which has overriding effect over s 20, the court within whose jurisdiction the immovable
properties are situated is the court which has jurisdiction to try the suit.70

Where, in a suit for recovery of loan filed by the finance company there was an agreement
and also a memorandum of understanding by which it was agreed that suit shall be filed
only in the court at Bombay, the suit, however, was filed at Bangalore and from the plaint
it was clear that apparently, all the immovable properties were undisputedly situated in
Bangalore, no part of the contract had taken place in Mumbai. It was clear that the plaintiff
was seeking relief of foreclosure of the mortgage of the properties which were mortgaged
with the finance company, as per the registered documents, the suit was found to be
governed by s 16 (c) which has an overriding affect on s 20, so the Bangalore court was
found to have jurisdiction to try it.71

4. Section 16 (d) and Section 20 Choice of Court. Suit for specific performance and
possession of immovable property agreed to be sold falls under cl (d) of s 16, The Code of
Civil Procedure. Section 20 enacts the rule as to the forums in all cases not falling within the
limitations of ss. 15 to 19, of The Code of Civil Procedure as is made clear by the opening
words Subject to the limitations aforesaid appearing in s 20. Since the suit under s 16 (d) of
the Code of Civil Procedure is maintainable only before the court within jurisdiction of which
the suit property is situate and s 20 has no application, the parties cannot by agreement
vest the jurisdiction in any other court other than the court within jurisdiction whereof the
suit property is situate. Therefore, even if it be assumed that the parties agreed to the
jurisdiction of courts, such agreement being against the law would be bad under s s 23 and
28 of the Indian Contract Act, 1872.72

In a case relating to purchase agreement, there was breach of agreement and a suit was
filed for damages and breach of contract at Nagpur where the manufacturing unit of the
plaintiff was located. The registered office of the defendants was located as Pune where
the purchase agreement was executed. Other defendants also resided at Pune and the
terms of the agreement also restricted the jurisdiction of courts at Pune. Since there were
several causes of act ion, the Supreme Court in appeal permitted the plaintiff to file
separate suit in relation to the purchase order at Pune and further asked him to make
necessary amendments to the plaint filed at Nagpur.73
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5. Judgment of Court not Competent to deliver it. See notes under s 11 under the same
heading. See notes under heading contract providing for place of suing under s 10 and
agreement as to choice of court under s 20.

6. Suit for specific performance of agreement to sell immovable property without

agreement to sell. The suit for specific performance of an agreement for sale of
immovable property without having any relief for possession of the property cannot be a
suit for land. When the plaintiff has asked simply for execution and registration of the
conveyance and no relief for possession has been asked for, since the plaintiff is already in
possession in different capacity, in such a suit for specific performance, the adjudication of
right, title and interest of immovable property is not required and the suit is not suit for
land.74

In the above case Qadri, J., speaking for the Bench of the Supreme Court quoted from a
decision of the Federal Court and observed in para 13 of the judgment as follows:

13. In M/s Moolji Jaitha and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd., (AIR 1950 FC 83 ), there is divergence of opinion among the
learned Judge of five Judge Bench of the Federal Court in regard to the import of the expression suit for land. Chief Justice Kania opined, Taking the suit as a
whole, one has to consider whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something
different but involves the consideration of the question of title to land indirectly. Justice Fazl Ali observed, If I had really felt that I was called upon to decide it,
I would have agreed with the line of cases in which it has been held that, broadly speaking, the expression suit for land covers the following three classes of suits:
(1) suits for the determination of title to land; (2) suits for possession of land; and (3) other suits in which the reliefs claimed, if granted, would directly affect title
to or possession of land. Justice Patanjali Sastri took the view, The words in question, besides obviously covering claims for recovery of possession or control of
land, are apt to connote also suit which primarily and substantially seek an adjudication upon title to immovable property or a determination of any right or
interest therein. Justice Mahajan observed, If an attempt is made to find a comprehensive definition of the phrase, it will eventually be discovered that it has
created further complications. I, therefore, content myself by saying that where the nature of the suit is such that is substance it involves a controversy about land
or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a
change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the
primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit
cannot fall within the four corners of this expression. He added, In my opinion, if the suit is for specific performance and a decree for possession of the land sold
is claimed, such a suit would certainly be a suit for land, but if the suit is simpliciter for specific performance, i.e., for the enforcement of the contract of sale and
for execution of a conveyance, in that event there can be no good ground for holding that such a suit is a suit for determination of title to land or that the decree in
it would operate on the land.75

After discussing the Federal Courts decision in detail, Qadri, J., went on to observe in para
15 as follows:

15. From the above discussion it follows that a suit for land is a suit in which the relief claimed relate to title to or delivery of possession of land or immovable
property. Whether a suit as a suit for land or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief
relates to adjudication of title to land or immovable property or delivery of possession of land or immovable property, it will be a suit for land.76

7. Clause (a): Suits for recovery of immovable property. A suit for the recovery of
immovable property situated in the city of Bombay must be instituted in a court in
Bombay having jurisdiction to entertain the suit. The Small Cause Court in Bombay has no
jurisdiction to try such a suit.77 The suit must, therefore, be brought in the High Court of
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Bombay or the City Civil Court depending upon the monetary value of the subject matter
of the suit. Hence, it is that the section commences with the words subject to the
pecuniary or other limitations prescribed by any law. The insertion of the words with or
without rent or profits is intended to remove any difficulty there may be where the
defendant does not reside within the local limits of the courts within whose jurisdiction the
property is situated.

Since the allotted land under the Displaced Persons (Compensation and Rehabilitation)
Act, 1954, were situated in Jullundur District and the appellants were not claiming
declaration of ownership of land in Pakistan, the High Court was palpably wrong in
holding that the civil court has no jurisdiction to declare that the appellants were owners of
land in Pakistan and entitled to retain the possession of land allotted to them in lieu
thereof.78

The court within whose jurisdiction property which has been mortgaged is situated shall
have the jurisdiction to entertain and try this suit. Operations of all provisions of s 20 are
not relevant, when provision is adequately made by s 15.79

8. Clause (b): Suit for partition of immovable property. (For cases where the property
is in the jurisdiction of different courts, see s 17 post.) If part of the property is outside
India, the court will deal with the property in India while declining jurisdiction as to the
rest.80 The Lahore High Court held that a British court can in a partition suit deal with
property situated in an Indian state;81 but, this is incorrect. Suit was filed for the partition
of joint Hindu family properties, and for accounts. Properties were situated in Delhi,
Jullundur and the State of Jammu and Kashmir. It was held that the Delhi High Court had
territorial jurisdiction to entertain and decide the suit in respect of properties situated in
the State of Jammu and Kashmir also. Although, strictly speaking, ss 16 and 17 of the
Code were not attracted and the doctrine enunciated by court of equity in England in
terms was not applicable in the circumstances of the case and the peculiar situation
prevailing in our country, a new equitable doctrine was to be evolved. That doctrine was
that the principles of enforceability or executability justified a decision in favour of
maintainability of the suit.82

A very interesting case relating to jurisdiction came up before the Supreme Court. In that
case the plaintiff had filed a suit seeking a negative declaration that the Will allegedly made
at Delhi and relied upon by defendants was never made. In fact relief claimed in the suit
was for partition and declaration in respect of properties situate outside the jurisdiction at
Delhi and the negative declaration sought for was superfluous and unnecessary. It was held
by the Supreme Court that the suit comes within the purview of s 16 (b) and (d). The relief
of partition, accounting and declaration of invalidity of sale deed executed in respect of
immovable property situate outside the jurisdiction of Court at Delhi, could not entirely be
obtained by personal obedience to the decree by the defendants in the suit. It was further
held that by ingeniously introducing the pleas regarding oral Will, the property which was
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outside the jurisdiction of Court could not be brought within jurisdiction to get the relief
of partition.83

P.K. Balasubramanyan, J., speaking for the Bench, observed in para 12 of the judgment as
follows:

12. On a reading of the plaint as a whole, it is clear, as we have indicated above, that the suit is one which comes within the purview of section 16 (b) and (d) of
the Code. If a suit comes within Section 16 of the Code, it has been held by this Court in Harshad Chiman Lal Modi v. DLF Universal Ltd., [(2005) 7
SCC 791 [LNIND 2005 SC 730]] that Section 20 of the Code cannot have application in view of the opening words of Section 20 subject to the limitations
aforesaid. This Court has also held that the proviso to Section 16 would apply only if the relief sought could entirely be obtained by personal obedience of the
defendant. The relief of partition, accounting and declaration of invalidity of the sale executed in respect of immovable property situate in Village Pataudi,
Gurgaon, could not entirely be obtained by a personal obedience to the decree by the defendants in the suit. We are in respectful agreement with the view
expressed in the above case.84

Where a plaint is filed in a court having no jurisdiction to try different causes of act ion,
and the court decides that it can deal with only one of the causes of action set out in the
plaint, then it should retain the plaint and strike out from the plaint that part which it holds
as beyond its jurisdiction and then the plaintiff can file another suit in the proper court as
to that cause of act ion so struck off.85

9. Clause (c): Suit for foreclosure, sale or redemption. A mortgages certain immovable
property to B to secure payment of money lent to him by B. Here, A is the mortgagor and
B is the mortgagee. If A does not repay the loan on the due date, B may institute a suit
against A for sale of the mortgaged property, so that the mortgage-debt may be paid out of
the sale proceeds of the property, or he may sue for foreclosure of the mortgage. The
decree in a foreclosure suit provides that if the mortgagor fails to pay the amount that may
be found due to the mortgagee within a time specified by the court (generally six months),
the mortgagor shall be absolutely debarred of all right to redeem the property.1 If A offers
payment of the mortgage-debt to B, but B disputes the amount and refuses to reconvey, A
may sue B for redemption of the mortgage, and the court will pass a decree ordering an
account to be taken of what will be due to B, and directing that upon A paying to B the
amount so due, B shall reconvey the property to A.2 Suits for foreclosure, sale or
redemption must be instituted in the court within the local limits of whose jurisdiction the
mortgaged property is situated. In view of the commencing words of the section, a case
directly under cl (c), s 20 cannot be called in aid,3 where the immovable property regarding
which an equitable mortgage was created as a collateral security for loan advanced by the
plaintiff is situated at Jagadhari in the State of Haryana. Here, a suit for foreclosure or sale
of such mortgaged property could be instituted only before the civil courts at Jagadhari, in
view of explicit and mandatory provisions contained in cl (c) of s 16 of the Code of Civil
Procedure.4

A court cannot declare a charge on property wholly outside its jurisdiction and if it does, a
purchaser under such a decree would be in no better position than a purchaser under a
money decree.5
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10. Clause (d): Suits for the determination of any other right to or interest in
immovable property. There is no definition of immovable property in the Code.
Immovable property is defined in the General Clauses Act, 1897, s 3, cl (25) as including
land, benefits to arise out of land and things attached to the earth or permanently fastened
to anything attached to the earth. Trees standing on land are immovable property;6 but,
once the trees are severed from the land, they become movable property; so also, coal cut
and raised from the mine.7 Growing-crops are movable property.8 Land includes water and
a right of fishery in an enclosed water is immovable property.9 Benefits to arise out of land
include incorporeal hereditaments such as a right of ferry,10 pensions and allowances
charged upon land and rents. Thus, a haat is immovable property11 and so is the life interest
of a widow in the rents and profits of her husbands estate.12 Immovable property as stated
above, includes benefits to arise out of land. Rent that has already accrued due is movable
property, for it is a benefit which has arisen out of land, but rent that is to accrue due is
immovable property, for it is a benefit to arise out land. Hence, a suit for arrears of rent is
governed not by the provisions of this section, but by those of s 20, and it may be
instituted in any one of the courts specified in that section, although in such suit the
plaintiffs title to the property for which the rent is claimed may incidentally come in
question.13 A Suit for specific performance and possession of immovable property agreed
to be sold falls under clause (d) of s 16 of the Code of Civil Procedure.14 A suit for refund of
premium paid by a lessee on the ground that the lease had become impossible of
performance is not a suit for the determination of any right to or interest in immovable
property and is governed not by s 16 but by s 20 of the Code;15 but, a suit for a declaration
of the plaintiffs right to rent where such right is denied comes under cl (d) of the present
section, and must be instituted in the court within the local limits of whose jurisdiction the
property is situated.16 So also, a suit for rent and ejectment under s 66 of the Bengal
Tenancy Act.17 A suit to recover a share of the sale proceeds of land which have already
been realised is a suit for money governed by the provisions of s 20 ;18 but, a suit by a
vendor of land for the recovery of unpaid purchase money against the buyer who refuses
to complete the purchase, is a suit for the determination of any right to or interest in
immovable property within the meaning of cl (d).19 A claim for a beneficial interest under
an endowment cannot be considered de hors the immovable properties covered by the
endowment and therefore, such a claim would fall under this clause. A suit by a mortgagee
to recover the mortgage-debt from the mortgagor personally is a suit for debt governed by
the provisions of s 20 ; but if in addition to the claim against the mortgagor personally, the
mortgagee seeks to recover the mortgage-debt by sale of the mortgaged property, the suit
will come under cl (c) of the present section.20 A suit by a mortgagee complaining of the
deprivation of the whole of the security by or in consequence of a wrongful act by the
mortgagor is in the nature of a wrong done to immovable property and therefore, can only
be filed in the court within whose jurisdiction it is situated.21 Clause (d) relates to such suits
in which the determination of any right to or interest in immovable property not covered
by cls (a), (b) and (c) is involved. Hence, a suit for injunction restraining interference with
the plaintiffs possession of land and his operating a tube-well therein, is a suit falling under
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cl (d).22 Wherein a suit for maintenance the plaintiff claims that she is entitled to a charge
on immovable property in the hands of the defendant, the case is one within cl (d) of this
section; so where the claim is for a decree by a muhammedan lady with a prayer for
declaring charge on her husbands immovable property, it falls within cl (d) of the section.23
Though a court has jurisdiction to declare a charge only over immovable properties
situated within its jurisdiction, it is competent under s 8 of the Bombay Hindu Divorce Act
of 1947, to declare a charge over properties outside its jurisdiction as security for the
amount awarded as maintenance to the wife.24 A suit for damages for breach of contract to
assign a lease entered into at Madras was filed in the subordinate court at Ottapalem in
Malabar on the strength of a prayer that the decree amount should be charged on the
leasehold estate which was within the jurisdiction of that court. It was held that the court
at Ottapalem had no jurisdiction to entertain the suit under s 16 (d) as that section applied
only if the dispute related to title or interest in immovable property existing at the date of
the suit and not if it is to arise as a result of the decree.25 It has been held by the High
Court of Orissa that a suit for reduction of maintenance awarded by a decree and charged
on immovable property does not fall within s 16 (1)(d) as the relief has reference only to
the quantum of maintenance and not to the subsistence of the charge therefore.26 A suit
for accounts of a dissolved partnership against a defendant who is residing within the
jurisdiction of the court in which the suit is filed is maintainable in that court, although the
partnership assets in the shape of immovable properties are situated in a foreign country.
Such a suit does not fall under any of the cll (a)(e) of this section.27 A suit for dissolution of
partnership with the usual ancillary reliefs is not a suit within cl (d) merely because a part of
the partnership assets consist of a factory.28 Machinery is movable property unless it is
shown to have been attached or permanently fastened to earth and a suit with reference
thereto does not fall within cl (a) or (d) of s 16.29

In a case Joint Venture Agreements (JVA) were entered into by parties at Delhi for
development of a commercial complex on a plot of land situated in Haryana. According to
the agreement, money were also payable at Delhi and the parties had further agreed that
Court at Delhi shall have jurisdiction to decide disputes, that since ownership and title to
the property was not in question, the Delhi High Court will have jurisdiction.30 It was
observed by the Court as follows:

The parties having entered into the contract of their own free will and volition and with open eyes, the respondent cannot be heard to state that a petition of the
present nature ought to be treated at par with a suit for specific performance in respect of an immovable property and that as the subject premises is not situated
within the local limits of this Court, the petition is liable to be rejected for lack of territorial jurisdiction. Nature of disputes raised by the petitioner hinges on the
JVA and the clauses contained therein.31

On this point the observation of the Supreme Court in Jatinder Nath v. M/s Chopra Land
Developers Ltd.,32 finally settles the matter:

In the present case, a bare reading of the agreement indicates that it is an agreement to develop. The appellant remains the owner, the Developer remains the
contractor. The Developer is the financer. The appellant is the owner of an asset. The contractor/Developer agrees to exploit that asset on behalf of the owner.
The Developer funds the scheme. The building plans remained in the name of the owner. The D.D.A. informs the owner regarding revocation of the building
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plan. The owner files the writ petition challenging the revocation. The contractor is paid consideration in terms of a part of the property. In the circumstances, it
cannot be said that this case is similar to a suit for land.

Plaintiff-tenant was occupying a building at Puri (Orissa). He was taken by the landlord to
Calcutta and there compelled by fraud to sign an agreement surrendering his tenancy.
Plaintiffs suit challenging the agreement can be filed in the Calcutta City Civil Court,
because the cause of act ion arose at Calcutta, where fraud was practiced and the Calcutta
court had jurisdiction under s 20 (c). The plaintiff had not sought for any determination of
a right to immovable property. It was true that if the suit was decreed the plaintiffs tenancy
rights would be restored. However, merely because of that, it cannot be said that the suit
was one for determination of a right to or interest in immovable property.33

Property situated beyond the jurisdiction of City Civil Court, Calcutta, was acquired. The
Land Acquisition Officer who awarded compensation, had his office within the
jurisdiction of the City Civil Court, Calcutta and the plaintiffs office was also within
Calcutta. The plaintiff sued at Calcutta for determination of his right and status in regard
to the property. It was held that the Calcutta court had no jurisdiction under s 16 (d). Only
the court within whose jurisdiction the property was situated could try the suit. The plaint
must be returned under O 7, r 10.34

Income and mesne Profits of Land Situated Outside India. A suit will lie in an Indian court to
establish a right to a share in income derived from grants of land situated outside India,
but received by the defendant within the local limits of an Indian court.35 Similarly, a suit
to recover mesne profits of land situate outside Indian, of which the defendant was in
wrongful possession but of which he subsequently delivered possession to the plaintiff,
may be instituted in a court in India.36 Both these cases fall under s 20, below. A suit for
arrears of rent due in respect of a house in Pakistan was held to be maintainable in the
small cause court, Calcutta, within whose jurisdiction the parties resided.37

11. Clause (e): Wrong to immovable property. This refers to torts affecting immovable
property such as trespass,38 nuisance, infringement of easement etc.

Where a reading of the plaint leads to one conclusion only, viz, that it was for damages
relating to immovable property in Mathura, s 16 (e) of the Code of Civil Procedure would apply,
then s 20 of the the Code of Civil Procedure is of no avail to the plaintiff. The mere factum of
the execution of the sale deed and payment of the sale consideration being in Delhi, does
not comprise any part of cause of action relating to the claim for damages to immovable
property raised in this suit. Even if s 16 (e) is assumed not to have any applicability to the
facts of the case, Delhi courts do not possess territorial jurisdiction because the defendant
does not have its principal office in this city. The fact that it has a subordinate office in
Delhi, seems to be of little consequences, since no part of cause of action voiced in the
plaint has arisen in Delhi.39
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12. Clause (f): movable property actually under distraint or attachment. Movable
property under attachment constitutes an exception to the general rule that movables
follow the person.40 This exception is probably based on the principle that a movable
property under attachment is one in session of the court.41 The Code follows this rule for
the sake of convenience of judicial administration.42 The clause applies to courts in India,
where movables are under an attachment by a foreign court and the defendant is a resident
in India, and is able to get the attachment decree to recover the property.43

13. Proviso to the section. The proviso is an exception to the main part of the section
which cannot be interpreted or construed to enlarge the scope of the principal provision. It
would apply only if the suit falls within one of the categories specified in the main part of
the section and the relief sought could entirely be obtained by personal obedience of the
defendant.44 In the above case, the suit for specific performance of agreement related to a
property situated in Gurgaon (Haryana). The defendants were having their Head Office at
Delhi and the agreement entered into between the parties at Delhi provided for payment
to be made at Delhi. It was held by the Supreme Court that court at Haryana has
jurisdiction to try the suit and the fact that parties had agreed that Delhi High Court alone
has jurisdiction was immaterial as such agreement was void being against public policy.

Thakker, J., speaking for the Supreme Court Bench in the above case, observed as follows:

16. The proviso is thus an exception to the main part of the section which in our considered opinion, cannot be interpreted or construed to enlarge the scope of the
principal provision. It would apply only if the suit falls within one of the categories specified in the main part of the section and the relief sought could entirely be
obtained by personal obedience of the defendant.

17. In the instant case, the proviso has no application. The relief sought by the plaintiff is for specific performance of agreement respecting immovable property by
directing the defendant No. 1 to execute sale deed in favour of the plaintiff and to deliver possession to him. The trial Court was, therefore, right in holding that
the suit was covered by clause (d) of section 16 of the Code and the proviso had no application.

18. In our opinion, the submission of the learned counsel for the appellant that the parties had agreed that Delhi Court alone had jurisdiction in the matter
arising out of the transaction has also no force. Such a provision, in our opinion, would apply to those cases where two or more courts have jurisdiction to
entertain a suit and the parties have agreed to submit to the jurisdiction of one court.45

Hakam Singhs case46 was the first leading decision of the Supreme Court on the point. In
that case a contract was entered into by the parties for construction work. An agreement
provided that not with standing where the work was to be executed, the contract shall be
deemed to have been entered into at Bombay and Bombay Court alone shall have
jurisdiction to adjudicate the dispute between the parties. In that case it was held as
follows:

By Clause 13 of the agreement it was expressly stipulated between the parties that the contract shall be deemed to have been entered into by the parties concerned
in the city of Bombay. In any event the respondents have their principal office in Bombay and they were liable in respect of a cause of action arising under the
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terms of the tender to be sued in the courts of Bombay. It is not open to the parties by agreement to confer by their agreement jurisdiction on a court which it does
not possess under the Code. But where two courts or more have under the Code of Civil Procedure Jurisdiction to try a suit or proceeding on agreement between
the parties that the dispute between them shall be tried in one of such courts is not coutrary to public policy. Such an agreement does not contravene Section 28 of
the Contract Act.

As the plaintiff has the option of suing in the local jurisdiction, the scope of the proviso is
more limited than in the rule of English equity. The proviso is an exception to the main
clauses and should not be construed as enlarging their scope. It applies therefore, only if
the suit falls within one of the categories mentioned in the section and complete relief
could be granted by compelling obedience of the defendant to the decree.47

The last para of the section provides that suits to obtain relief respecting, or compensation
for wrong to immovable property, may be instituted at the plaintiffs option either in the
court within the local limits of whose jurisdiction the property is situated, or in the court
within the local limits of whose jurisdiction the defendant act ually and voluntarily resides,
or carries on business, or personally works for gain, provided:
(i) the property is held by or on behalf of the defendant;
(ii) the relief sought can be entirely obtained through the personal obedience of the
defendant;48 and
(iii) the property is situate in, and not beyond, India.49

The proviso does not apply when the property is in the possession of the plaintiff.50 As the
plaintiff has the option of suing in the local jurisdiction, the scope of the proviso is more
limited than in the rule of English Equity. The proviso is an exception to the main clauses
and should not be construed as enlarging their scope. It applies therefore only if the suit
falls within one of the categories mentioned in the section and complete relief could be
granted by compelling obedience of the defendant to the decree.51 If the relief sought by
the plaintiff is for specific performance of agreement respecting immovable property by
directing the defendant No 1 to execute sale deed in favour of the plaintiff and to deliver
possession to him. That the suit was covered by clause (d) of Section 16 of the Code and
the proviso had no application. 52

14. Equity acts in personam . This proviso is an application, though in a highly modified
form, of the maxim Equity Acts in Personam. When it is said that Equity Acts in Personam
what is meant is that the court of equity in England (now the Chancery Division of the
High Court of Justice) has jurisdiction to entertain certain suits (suits in cll (a)(c) of the
present section being entirely excluded), respecting immovable property, though the
property may be situate abroad, if the relief sought can be obtained through the personal
obedience of the defendant. The personal obedience of the defendant can be secured only
if the defendant resides within the local limits of the jurisdiction of the court, or carries on
business within those limits. For in the one case, the person of the defendant being within
the jurisdiction and in the other his personal property, the court may if he does not comply
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with the judgment, direct and arrest of the defendant and commit him to jail or order that
his goods be attached until he complies with the order of the court;53 but, if neither the
person of the defendant nor his personal property is within the jurisdiction, the court will
not entertain a suit for a relief respecting immovable property situated beyond its
jurisdiction, for the court cannot in that event execute its decree either in rem or in
personam and a court does not entertain a suit if it cannot enforce its decree in the suit.54

15. Suits in personam . Suits in respect of which courts of equity in England exercise
jurisdiction in personam are called suits in personam. The essential feature of suits in personam
is that the land in respect of which the suit is brought is situated abroad, but the person of
the defendant or his personal property is within the jurisdiction of the court in which the
suit is brought. The land being situated abroad, the decree cannot be executed in rem, that
is to say, it cannot be executed against the land; but, the person or the personal property of
the defendant being within the jurisdiction, the decree can be executed in personam that is to
say, against the person or personal property of the defendant. It must, however, be noted
that the only class of cases in which courts of equity in England entertain suits relating to
land situated abroad are cases of contracts, fraud, and trust. In the jurisdiction clause of the
agreement, words like alone, only, exclusive and like are not used and in the absence
thereof, it cannot be held that the said condition excluded the jurisdiction of the court,
who was otherwise competent to try the suit by reason of a part of a cause of act ion
having accrued within its jurisdiction.55 Thus, suits for specific performance of contracts
for sale of land56 and suits for foreclosure57 sale58 or redemption59 in the case of a
mortgage of land are cases of contract and the court of equity in England will entertain
such suits if the contract is made in England, and the defendant resides or carries on
business in England, though the land may be situated abroad. Similarly, where lands
abroad have been acquired by the fraud of a party residing in England, a suit to set aside
the transaction will be entertained by the court of Equity in England.60 The Court of
Equity will also entertain a suit to enforce express trusts affecting land situated in a foreign
country, or for preservation or protection of the trust fund situated in a foreign country if
the trustee resides in England,61 but has no jurisdiction to interfere with the administration
of a trust which has to be conducted in a foreign territory.62 It has also no jurisdiction to
entertain suits for recovery63 or for partition64 of land, or for damages for trespass of
land.65 (See cll (a)(e) of this section).

16. Actually and Voluntarily Resides. See notes to s 20 under the same heading.

17. Carries on Business. See notes to s 20 under the same heading.

18. Personally Works for Gain. See notes to s 20 under the same heading.
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S. 17. Suits for immovable property situate within jurisdiction of different Courts.

Where a suit is to obtain relief respecting, or compensation for wrong to, immovable
property situate within the jurisdiction of different Courts, the suit may be instituted in any
Court within the local limits of whose jurisdiction any portion of the property, is situate:

Provided that, in respect of the value of the subject-matter of the suit, the entire claim is
cognizable by such Court.

1. Scope and object of the section. This section supplements the provisions of s 16, and
applies only to suits falling within cll (a)(e) of that section.66 It is intended for the benefit of
suitors, the object being to avoid multiplicity of suit.67A sues B in a court in district X on a
mortgage of two properties, one situated in district X and the other in district Y. The court
in district X has jurisdiction under this section to order the sale not only of the property in
district X, but also of the property in district Y, and to sell execution of its decree the
property in district Y.68A is not obliged to bring two suits, one in the court of district X
and the other in the court of district Y. He may bring only one suit in either court, and it
matters not if the properties are several, one in each district, or one property extending
over two or more districts.69 The same rule applies to suits for partition70 and to suits for
the recovery of immovable property.71A can sue in any court in which any part of the
immovable property is situated and he has the right to select his own forum;72 though this
right may be controlled by the court of appeal or the High Court; (see ss 22 and 23 below);
but, no partition can be made of property situated outside India.73

A bona fide compromise will not divest the court of jurisdiction once jurisdiction has
properly vested in it. A sues B in a court in district X to recover possession of two
properties, one situated in district X and the other in district Y. The suit is compromised as
regards the property situated in district X. This does not take away the jurisdiction of the
court in district X to proceed with the suit as regards the property situated in district Y,
unless it be shown that the compromise was a mere contrivance to defeat the policy of the
rule of procedure as to local jurisdiction.74

2. May be instituted. Cases are conflicting as to whether a plaintiff suing in respect of a

part of a property in one district only is barred from suing as to the other part or the rest
of the property in another district in the jurisdiction of another court. But the better
opinion is that there is no bar and that the section is permissive.75 Thus, if A succeeds as
heir to two properties, one in district X and the other in district Y, A may sue in the court
of district X for the recovery of both properties. But, if A sues in the court of district X
for the recovery of the property in that district only, he will not be barred from suing
subsequently in the court of district Y for the recovery of the property in that district. In
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an export transaction, a corporation provided credit limit facility to an export firm. The
export firm made payments for losses as per agreement at the headquarters of the
corporation by demand draft which were encashed by the corporation at that place.
Dispute arose as to liability for losses. It was held that the suit can be filed at the place of
encashment.76

3. Judgment of the Court not competent to deliver it. See notes under s 11 under the
same heading. See notes under heading Contract providing for place of suing, under s 10
supra, and agreement as to choice of court, under s 20 infra.

4. Section 17 Inapplicable if cause of action as to property outside local limits of

jurisdiction is different. The plaintiff filed a suit in a Oudh Court to recover one
immovable property within its jurisdiction and two immovable properties situated in the
Punjab without jurisdiction. The plaintiff claimed to be entitled to these three properties
under a Will. He also joined in the suit a prayer to be declared mutawalli of a wakf of
another property situated in Punjab called the Khalikabad estate. The plaintiff had a right
to include the first two Punjab properties in the Oudh suit; but as to the other Punjab
property, the Privy Council said:

There remains the question of the Khalikabad estate. Here the respondent cannot succeed
unless he shows that under the terms of the deed creating the wakf he is the trustee. That
question depends upon the construction of the deed. It is a separate and different cause of
act ion from those which found the proceedings in respect of the other three properties.
Their Lordships are unable to find any justification for bringing the suit in respect of this
property elsewhere than in the court of the district where the property is situated. Such
justification cannot, in their Lordships judgment, be found in s 17, Code of Civil Procedure,
upon which the respondent relied.77

However, if a plaintiff has a single cause of action in respect of properties, some of which
are situate at Delhi and the rest in Hissar, Haryana, he can file a suit in respect of all of
them either at Delhi or in Hissar. Since this section gives him such a right, inconvenience
to the defendants who may be residing in Hissar is no ground for preventing him to
choose his forum at Delhi.78 A suit filed in the court of the sub-judge, Arrat challenging
the gift deed as a forged document was a validly filed suit although properties which were
the subject matter of the suit were situated in Arrat and other different places. The plaintiff
was not expected to challenge such a gift piecemeal in different courts within whose
jurisdiction different properties were situated.79 The principle is that it is only in those
cases where there is one cause of act ion and the basis of the plaintiffs claim is the same in
all this claims that one joint suit in respect of all the immovable properties, whether
situated within the jurisdiction of that court or within the jurisdiction of different courts,
can be taken cognizance of, provided that a part of the property lies within the territorial
jurisdiction and the total claim is also within the pecuniary jurisdiction.80 A suit by
reversioner challenging several alienations by a widow of properties situated in different
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jurisdictions could be instituted under this section in any one of the courts if the
alienations formed part of a series.81 The section was also applicable where a plaintiff was
dispossesed of one property in one district in one month and of another property in
another district where the dispossessions were by the same defendant and under the same
alleged right.82

5. Immovable property within the jurisdiction of different Courts. As already stated,

the immovable property to which this section refers must be situated in India, for, the
courts in India have no jurisdiction over a property situated outside India.83 Thus, the
court in British India had no jurisdiction to pass a decree in respect of property in Berar
before the Independence.84 When a mortgagee sued for sale, in the court of the sub-judge
of Satara, of a mortgage of properties situated in Satara, Belgaum and Kolhapur, it was
held that the court had jurisdiction to deal with the Satara property and with the Belgaum
property situate in the jurisdiction of another court in British India, but not with the
Kolhapur property situated outside British India.85

The court will deal with property in India, if the suit is for partition, while declining
jurisdiction as to the rest.86 So also, if part of the property is in a scheduled district outside
the local limits of the jurisdiction of the court and which is outside the local extent of the
Code.87 Where the properties which were the subject matter of a suit for partition were
situated, some of them in British India and others in Chandranagore which was then a
foreign state, it was held that a decree for partition could be made only with respect to the
former and not the latter properties.88 Where the family owned properties, both in India
and in a foreign state, it was held that while courts in this country could not pass any
decree for partition of the foreign properties, it could direct the parties to account for
income derived therefrom.89 Where a suit was filed after Independence in the court of the
subordinate judge of Ludhiana, East Punjab, for partition of properties, bulk of which was
situated in Pakistan, it was held that no relief could be granted in respect of those
properties and that the immovable properties referred to in ss 16 and 17 had reference to
properties situated in India.90

6. Appeal. In a suit, property in dispute lay partly in Lucknow and partly in Cawnpore
district. The suit was brought in a court in Lucknow district. After the decree in the court
dismissing the suit, the plaintiff submitted to the decree so far as property in the Lucknow
district was concerned, but went in appeal to the Oudh Chief Court as regards the decision
relating to Cawnpore property. It was contended that as the subject matter under appeal
was not within the jurisdiction of the Oudh Chief Court, the appeal could not be heard by
that court. Held that the suit as filed was proper and that the only court that could hear the
appeal was the Oudh Chief Court.91

7. Execution. When the court has power to pass a decree as to immovable property in a
different jurisdiction, it has also power to execute it. (See note under s 38, Jurisdiction of
court executing a decree.)
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8. Courts. Courts in this section mean courts to which the Code of Civil Procedure applies.92

9. High Courts. This section does not apply to High Courts in the exercise of their
original civil jurisdiction. See s 120 and notes to s 16, High Courts.

S. 18. Place of institution of suit where local limits of jurisdiction of Courts are
uncertain.

(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which
of two or more Courts any immovable property is situate, any one of those Courts
may, if satisfied that there is ground for the alleged uncertainty, record a statement
to that effect and thereupon proceed to entertain and dispose of any suit relating to
that property, and its decree in the suit shall have the same effect as if the property
were situate within the local limits of its jurisdiction:

Provided that the suit is one with respect to which the Court is competent as
regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under sub-section (1), and an objection is
taken before an Appellate or Revisional Court that a decree or order in a suit
relating to such property was made by a Court not having jurisdiction where the
property is situate, the Appellate or Revisional Court shall not allow the objection
unless in its opinion there was, at the time of the institution of the suit, no
reasonable ground for uncertainty as to the Court having jurisdiction with respect
thereto and there has been a consequent failure of justice.

1. Uncertainty of local limits of jurisdiction. The uncertainty which legislature had in

view was the alteration of boundaries of fluvial action.93 The absence of a notification of
the boundaries of a district was held to create a reasonable uncertainty.94

2. And there has been a consequent failure of justice. These have been added in order
to further restrict the taking of technical objections as to jurisdiction. Alla Ditta v. Abdul
Qadir 1 is an instance of an objection to jurisdiction being disallowed although no
statement was recorded as required by sub-s (1).

3. Judgment of the Court not competent to deliver it. See notes under s 11 under the
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same heading.

S. 19. Suits for compensation for wrongs to person or mova-bles.

Where a suit is for compensation for wrong done to the person or to movable property, if
the wrong was done within the local limits of the jurisdiction of one Court and the
defendant resides, or carries on business, or personally works for gain, within the local
limits of the jurisdiction of another Court, the suit may be instituted at the option of the
plaintiff in either of the said Courts.

ILLUSTRATIONS

(a) A, residing in Delhi beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A
either in Calcutta or in Delhi.

1. Scope of Section. Section 16 refers to suits for immovable property which have to be
filed in the local jurisdiction. Section 20 refers to personal act ions such as action in tort or
contract, where jurisdiction depends upon the residence of the defendant or the accrual of
the cause of act ion. Section 20 overlaps this section which gives an option where the cause
of action accrues in the jurisdiction of one court and the defendant resides in the
jurisdiction of another court. The section is limited to act ions in torts committed in India
and to defendants residing or carrying on business or personally working for gain in India.2
It excludes suits for an injunction and suits in respect of torts committed outside India.
Such suits fall, where the defendant is resident in India, not under this section, but under s
20.

2. Wrong. Wrong means a tort or actionable wrong, i.e., an act which is legally wrongful as
prejudicially affecting a legal right of the plaintiff;3 but, it must be a tort affecting the
plaintiffs person, or his reputation as in the illustrations, or his movable property; for torts
affecting immovable property such as trespass or nuisance or infringement of easement fall
under s 16 (e). Likewise, when the tort for which the claim for compensation is made is
malicious prosecution, the suit will fall within the section only when the injury resulting
therefrom is to the person or to reputation.4 Where a vendor of goods continued in
possession thereof after sale, a suit by the purchaser for damages for non-delivery of goods
is not a suit for wrong done to property within s 19 but one for damages for breach of
contract and must be instituted under s 20 in the court within whose jurisdiction the
defendant resides or the cause of act ion has arisen wholly or in part.5
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The plaintiff may sue either where the defendant resides or the wrong was committed.6 A
wrong may, however, consist of a series of acts and it is sometimes not easy to specify the
place where it was committed. Thus, in a case from Burma7 the defendant at Pyapon
wrongfully obtained a magistrates order for the seizure of plaintiffs boats at Rangoon and
it was held that the Rangoon court had jurisdiction as the wrong was done at Rangoon. In
an act ion for malicious prosecution, the court within whose jurisdiction the plaintiff was
served with the summons in the criminal case instituted against him has jurisdiction to
entertain the suit. The reason given is that though such service is not part of the cause of
action for such a suit, the essence of malicious prosecution is the malicious abuse of the
process of the court viz service of the summons. Hence, the court within whose
jurisdiction such abuse has taken place can entertain such a suit under this section;8 but it is
only at either of the two places mentioned in the section that the suit lies.9 The High Court
of Bombay, however, has extended the meaning of the words wrong done to include not
only the place where the wrong was done but also the place where its consequences
occurred. Hence, a plaintiff may also file his suit at the place where damage of the wrong
was sustained.10 According to the Gauhati High Court, the expression wrong done, in s 19,
covers not only the act which caused the wrong, but also the effect of the act.11 However, a
Tribunal is constituted under s 165 of the MV Act, for the purpose of adjudicating upon
claims for compensation in respect of accidents involving the death of, or bodily injury to,
persons arising out of the use of motor vehicles or damage to any property of a third party.
Section 165 does not authorise such a Tribunal to adjudicate upon any claim for damages
to property of the insured or the 1st party.12

The provisions of Indian Fatal Accidents Act, 1855, are supplemental in addition to the
rights of the plaintiff to claim damages under the ordinary civil law.13

3. Suits against Government. The word resides refers only to natural persons. The words
carries on business refer to commercial business. The section, therefore, does not apply to
suits against the government for damages for a tort where the tort is committed outside
the jurisdiction. Such suits can only lie in the court of the place where the tort is
committed.14

4. Judgment of the Court not Competent to deliver it. See notes to s 11 under the
same heading.

S. 20. Other suits to be instituted where defendants reside or cause of action arises.
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Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local
limits of whose jurisdiction

(a) the defendant, or each of the defendants where there are more than one, at the time
of the commencement of the suit, act ually and voluntarily resides, or carries on
business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business,
or personally works for gain, provided that in such case either the leave of the
Court is given, or the defendants who do not reside, or carry on business, or
personally works for gain, as aforesaid, acquiesce in such institution: or
(c) the cause of act ion, wholly or in part, arises.
15[* * *]

16[Explanation.]A corporation shall be deemed to carry on business at its sole or

principal office in India or, in respect of any cause of action arising at any place
where it has also a subordinate office, at such place.

ILLUSTRATIONS

(a) A is a tradesman in Calcutta. B carries on business in Delhi. B, by his agent in

Calcutta, buys goods of A and request A to deliver them to the East Indian
Railway Company. A delivers the goods accordingly in Calcutta. A may sue B
for the price of the goods either in Calcutta, where the cause of action has
arisen, or in Delhi, where B carries on business.
(b) A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at
Benaras, B and C make a joint promissory note payable on demand and deliver it
to A. A may sue B and C at Benaras, where the cause of action arose. He may
also sue them at Calcutta, where B resides, or at Delhi where C resides; but in
each of these cases, if the non-resident defendant objects, the suit cannot
proceed without the leave of the Court.

1. Legislative changes. The Code of 1882 substituted the words every suit for the words
all other suits. The Code of 1908 added the words wholly or in part in cl (c). The 1908
Code also deleted Explanation III to s 17 of the 1882 Code which related to cause of act
ion in cases of contracts. That was done on account of the words wholly or in part having
been inserted in cl (c). See Notes below cause of action in suits on contracts. The
Amendment Act, 1976 has omitted Explanation I which provided:
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Where a person has a permanent dwelling at one place and also a temporary residence at
another place, he shall be deemed to reside at both places in respect of any cause of action
arising at the place where he has such temporary residence.

With the omission of Explanation I, Explanation II has remained the only Explanation
and has accordingly, been renumbered as Explanation.

2. Subject to the limitations aforesaid. Section 20 of the Code of Civil Procedure enacts the
rule as to the forums in all cases not falling within the limitations of ss 15 to 19, of the Code
of Civil Procedure, as is made clear by the opening words Subject to the limitations aforesaid
appearing in s 20.17

The limitations are the pecuniary and other limitations referred to in s 16. (See note under
the same heading below that section.) The former section was a residuary section referring
to all other suits and as such was held to be subject to s 19.18 The present section overlaps
s 19 and is subject to s 16 and by implication to s 15. Therefore, a suit involving
adjudication of title to land situated wholly outside the city of Calcutta cannot be instituted
in the original side of the High Court of Calcutta, even though the cause of act ion might
have arisen within its limits.19

3. High Courts. Section 120 provides that the section is not to apply to High Courts
exercising their original civil jurisdiction.20

4. Scope and principle of the Section. Clauses (a), (b) and (c) of s 20 are independent of
each other.21

This is a general section embracing all personal actions. At common law, act ions are either
personal or real. Personal actions are also called transitory because they may occur
anywhere, such as act ions for tort to persons or to movable property or suits on contracts.
Real actions are act ions against the res or property and are called local because they must
be brought in the forum where the immovable property is situated. An action may also be
a mixed act ion being partly real and partly personal. Torts to immovable property such as
trespass and nuisance are mixed actions and are referred to in s 16 (e). Otherwise, s 16
deals with real and local act ions, while ss 19 and 20 deal with personal or transitory
actions. Thus, a suit for a declaration that certain documents are void as having been
obtained fraudulently and for injunction restraining the defendant from using them is one
of the personal reliefs falling under this section and not under s 16 (d) as it is not for
determining any right to or interest in an immovable property though such property is the
subject matter of the impugned documents.22 The principle underlying s 20 (a) and s 20 (b)
is, that the suit is to be instituted at the place where the defendant can defend the suit
without undue trouble.23
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The limitations mentioned in this section exclude the real and mixed act ions of s 16 and
confine the section to personal actions. The plaintiff has the option of suing either: (i)
where the cause of act ion has accrued; or (ii) in the forum of the defendant, i.e., where the
defendant resides, or carries on business or personally works for gain.24 This alternative is
shown in the illustrations which are taken from two old cases, the first from Winter v. Way
25 and the second from DeSouza v. Coles.26 Before the jurisdiction of a court can be invoked

under this section, it must be shown that the defendant was actually and voluntarily
residing or carrying on business or personally working for gain within its jurisdiction at the
time of the suit. Neither the fact that he once resided there nor that he became a resident
thereafter the suit was instituted would confer jurisdiction on the court if he was not
residing there at the commencement of the suit.27

( a) Defendant. The expression Defendant includes corporation or a company registered

under the Companies Act.28 When the court finds that it has no jurisdiction to entertain the
suit on the ground that the defendants are staying outside its territorial jurisdiction, the
court should reject the plaint or return it to the plaintiff for presentation before the proper
court or dismiss the same in accordance with provisions contained in the Code of Civil
Procedure.29

( b) Actually and Voluntarily Resides. The word actually does not necessarily include domicile
and excludes constructive residence. The word voluntarily likewise excludes compulsory
residence as when a person is confined to a particular place. The word resides means to
make an abode for a considerable time, to dwell permanently or for a length of time, to
have a settled abode for a time. The word actually means something real and constructive
as opposed to speculative. Residence may be legal and technical or actual and physical. If
the family of a person lives at one place and he himself lives for the greater part of the time
at another place, he has legal residence where his family resides and act ual residence where
he resides.30 The residence contemplated by cll (a) and (b) is of such a nature as to show
that the court in which the defendant is sued is his natural forum. On the other hand, if a
person has been continuously residing in a particular place, his temporary absence
therefrom will not take away the case out of the scope of cl (a). Also, if a person has a
house where he ordinarily resides, the fact that he has made available for himself another
house at a different place where he resides in summer, does not mean that he is a
permanent resident of that place also.31 The fact that a person has a house at the place of
his birth but has made a permanent home at another place where he actually resides and
carried on his vacation, does not mean that it is the former place where he act ually
resides.32

The word resides is a flexible one and has many shades of meaning but it must take its
colour and content from the context in which it appears and cannot be read in isolation.
According to Websters Dictionary, to reside has been defined as meaning to dwell
permanently or for any length of time. The expression resides brings with it the concept or
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incidence of some permanency or continuity. The Kerala High Court has held that Even if
there be any confusion of thought on this aspect, the legislature did not evidently want to
leave any ambiguity in the expression and that is why the word resides was qualified by the
expression actually and voluntarily.33 In the above case, which was a suit for recovery
based on pronote, the plaintiff and the defendant were both employed in foreign country
and at the time of executing the promissory note, the defendant was in a foreign country.
Even at the time of filing of suit the defendant was in foreign country and not at his
permanent residence in India. It was held in the above case that Court in India did not
have territorial jurisdiction. However, the defendant had started residing in India
permanently. Therefore, it was observed that accepting the plea regarding jurisdiction, even
if the plaint were to be returned, it will be presented again before the same in view of
changed circumstances regarding defendants permanent residence. In that view of the
matter the suit was allowed to be disposed of by the same Court.34

When the matter was taken to Supreme Court, S.B. Sinha, J., speaking for the Bench
explained the point of law involved in the following words:

Determination in regard to maintainability of the suit, it is trite, must be made with reference to the date of the institution of the suit. If a cause of action arises
at a later date, a fresh suit may lie but that would not mean that the suit which was not maintainable on the date of its institution, unless an exceptional case is
made out therefor can be held to have been validly instituted. Discretion, as is well known, cannot be exercised, arbitrarily or capriciously. It must be exercised in
accordance with law. When there exists a statute, the question of exercise of jurisdiction which would be contrary to the provisions of the statute would not arise
application of doctrine of dominus litus is confined only to the cause of act ion which would fall within Sections 1518 Code of Civil Procedure. It will have no
application in a case where the provisions of Section 20 thereof is sought to be invoked.35

The legislature has used the word resides at various places in different contexts in the code.
It is sometimes used in a more restricted sense and sometimes in an extended sense; (see s
136 and O 25, r 1). The word, therefore, has to be construed according to the intention of
the legislature. However, there is no distinction between the word resides as used in ss 16,
19 and 20 and the word dwell in cl 12 of the Letters Patent. Hence, cases decided on the
latter word would be authorities on the construction of the former. The words actually and
voluntarily resides in cll (a) and (b) refer to natural and not juristic persons. They have,
therefore, no application to government or legal persons like registered companies.

As regards personal actions, residence gives jurisdiction even when the cause of act ion has
arisen outside India.36 Thus, a partner could sue in the court at Bulsar for dissolution of
partnership commenced and carried on in foreign territory since the defendant partner
resided in Bulsar at the time of the institution of the suit.37 On the other hand, if the cause
of action has arisen within its jurisdiction, a court in India can entertain a suit against a
non-resident foreigner.

Where in a suit for damages the telegram was sent from place C by defendant to Americn
Consulate, for deciding cause of action, it was observed that since the defendants were
residing at place H, the plaintiff can file suit either at place H or at place C from where
telegram was sent.38
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The court has no jurisdiction in a suit against a non-resident foreigner on a cause of act ion
which arose wholly outside the Indian territory.39 As already stated, the court has
jurisdiction to entertain a suit against a foreigner resident within the limits of its jurisdiction
in respect of a cause of action that has accrued abroad.40 A foreigner is not exempt from
the jurisdiction of Indian courts.41 If a foreigner resident, himself carries on business or
personally works for gain, in India, it is clear that he is amenable to the jurisdiction of
Indian courts. But what if a foreigner does not reside, or does not himself carry on
business or personally work for gain, in India, and:

(i) the cause of act ion arises within the local limits of an Indian court; or

(ii) the cause of action arises outside India but the foreigner carries on business through his
agent within the local limits of an Indian court.

As to case (a), it is settled that a non-resident foreigner, who is a subject of a foreign state
such as a protected native state before independence may be sued in the court of India, if
the cause of act ion arises within the jurisdiction of such court.42

Thus, if A, a subject of the native state of Sangli and residing at Sangli, borrows money
from B at Belgaum, B may sue A for recovery of money in the Belgaum court, for the
cause of action arises at Belgaum. The rule of private international law that a court has no
jurisdiction to entertain a suit against a foreigner who does not reside within its jurisdiction
and who has not submitted to it, is subject to the rules of municipal law. A suit is
accordingly, maintainable in an Indian court within its jurisdiction.43 A decree passed in
such a suit, however, would not be enforceable in a foreign court and where the decree is
against several defendants, some of whom are residing within the jurisdiction and some
others not, it will be executable against all within the state; outside the state it will not be
executable against non-resident foreigners.44

As to case (b), the High Court of Bombay in one case held that where no part of the cause
of act ion arose in Bombay, it had no jurisdiction to entertain a suit against a foreigner who
did not reside in Bombay, but carried on business through an agent in Bombay;45 but this
decision was disapproved in the later case of Girdhar v. Kassiga.46 The point arose in a later
case before the Privy Council, but it was left open.47 The Madras High Court has held that
the expression carrying on business in cl 12 of the Letters Patent included carrying on
business through an agent in British India by foreigners living outside jurisdiction.48 It has
been held that a suit for specific performance of an agreement to convey immovable
property situated within India could be instituted in the court within whose jurisdiction the
properties are situated, wherever the agreement might have been entered into and even
when the defendant is a non-resident foreigner.49 The question whether the defendant
resides within jurisdiction is relevant only when he is a foreigner. A decree passed by a
court against its own citizen who owns a permanent dwelling house at the place is not
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open to attack on the ground that at the time of the action, he was not act ually residing
there or submitted to its jurisdiction.50 The fortuitous presence of the ship in the Bombay
harbour will not entitle the owner to file a Limitation Action in the absence of any claim
being made or apprehended against him or the vessel in that court. Therefore, bringing the
ship to the Bombay Port, in order to confer jurisdiction on Bombay High Court, has the
character of forum shopping, rather than anything else. The presence of a foreign
defendant, who appeared under protest to contest jurisdiction, cannot be considered as
conferring jurisdiction on the court to take act ion. Unless a foreign defendant either
resides within jurisdiction or voluntarily appears or has contracted to submit to the
jurisdiction of the court, it is not possible to hold that the court will have the jurisdiction
against the foreign defendant.51 Where the cargo was discharged by the vessel at the
Madras port instead of Calcutta port where it was agreed to be discharged, Madras High
Court would have admiralty jurisdiction to decide the suit filed by the owner of goods for
damages for breach of court act when the suit was filed at the time when the ship was
berthed in the Port of Madras. It cannot be said in such a case that the Madras High Court
would have no such jurisdiction as the agreement between parties conferred jurisdiction on
the courts in the country where the carrier has his principal place of business namely that
of Canada in the instant case. It was more so when there was no ouster of jurisdiction in
respect of other courts.52

A contract was entered into by the plaintiff with a foreign company incorporated in United
States of America for the supply of brass dross of guaranteed 90 per cent of metallic
recovery. The foreign company had been carrying on its business in India through agents.
The offer for supply was given and a contract signed by an Indian agency on behalf of a
foreign company in New Delhi. It was held that a suit against the foreign company can be
filed in New Delhi.53

(c) Dwells within the Meaning of Clause 12 of Letters Patent. The dwelling or residence must be of
a more or less permanent character. It must be of such a nature as to show that the High
Court in which a defendant is sued is his natural forum.54 Therefore, when the defendant
has a permanent dwelling at one place, he cannot be said to dwell at a place where he has
lodged for a temporary purpose only; eg, to defend a suit brought against him,55 or for a
change while on leave.56

Every person is deemed in law to have a dwelling or place of residence, and so if he has no
permanent place of residence, he will be deemed to dwell where he is act ually staying at
the time. Thus, where a defendant, who was a political agent in Kolhapur, residing in a
government building there, sold his furniture and other effects and left Kolhapur on a
years furlough, and while en route of England stayed in Bombay for three days before
sailing, he was held to dwell in Bombay so as to give jurisdiction to the High Court in a
suit instituted against him during his stay in Bombay.57 In a Calcutta case, a racing man,
who had come to Calcutta for a month for racing, was held to dwell in Calcutta for he had
no other residence at the time when the suit was instituted against him.58
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On the other hand, a person may have more than one permanent place of residence at the
same time. If so, he will be deemed to dwell in any one of the places where he is actually
staying for the time being, and he may be sued in that place. In Order v. Skinner, 59 the
defendant, who had a dwelling place in Mussoorie, was held under the circumstances of
the case, to have another dwelling place in Bilaspur. Similarly, where a defendant spent his
time alternately in Calcutta and the mafussil, it was held that he could be sued in Calcutta
where he was residing at the time of institution of the suit;60 but a person who has been
living and carrying on business in Bombay for 20 years cannot be said to be residing at
Ahmedabad because he has a family house in Ahmedabad which he visits occasionally; in
such a case, Ahmedabad cannot be said to be one of his places of residence.61 Where an
Acharya (Hindu head-priest), who had his permanent place of residence at Nathdwar,
where he had been installed on the gadi in 1879, came to Bombay for the first time in April
1889 at the invitation of his devotees and stayed in a house which he had purchased in
1888 for occasional residence and exchanged visits with his followers, it was held in a suit
could be brought against him in Bombay in May 1889 that he did not dwell in Bombay.62
Where a person who was domiciled and resided in Mysore left his house in charge of a
servant, and hired a house in Madras to which he brought his wife and family, and
apprenticed himself for a year to a vakil in Madras, it was held in a suit brought against him
in Madras some months after his residence there that inasmuch as he had taken up his
abode in Madras, meaning to remain there for several months, and was actually living there
when the suit was instituted, he dwelled in Madras within the meaning of cl 12 of the
Letters Patent.63

(d) Carries on business. These words also occur in cl 12 of the Letters Patent, and the
decisions under that clause apply equally to cases arising under ss 16, 19 and 20. The word
business is used in a restricted sense64 and is limited to commercial business. The
expression carries on business is intended to relate to business in which a man may
contract debts and is liable to be sued by persons having business transactions with him.65
In the case of a works contract, the place where the contract was executed and the place
where it was performed would both, give jurisdiction.66 A Hindu priest who receives
offerings from his followers cannot be said to carry on business, although the offerings are
on such a large scale that he employs servants to collect and keep an account of them.67 A
zamindari business has been held not to be the kind of business contemplated by this
section.68 A person may be carrying on business at a place where he has no office or
regular establishment. Thus, a person residing in the mofussil who goes once or twice a
week from the mofussil to a friends house in Calcutta and does business there will be said
to carry on business in Calcutta.69 The business need not be carried on personally.70 The
phrase carries on business is used as distinct from the phrase personally works for gain. It
does not involve act ual presence or personal effort and a man may carry on business in a
place through an agent or through a manager or by his servants without having ever gone
there. It means having an interest in a business at that place, a voice in what is done, a
share in the gain or loss and some control, if not over the actual method of working, at any
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rate upon the existence of the business.71 The expression carries on business, has the
cannotation of permanence and or regularity in order to distinguish it from an isolated act
or activity. The amplitude of the expression carries on business cannot, however, be
restricted, merely because it is used in conjunction with the words personally works for
gain. Nor is it possible to read into the expression carries on business, the element of gain
or of profit in the act ivity that is carried on. The expression is much wider than what the
expression in normal parlance cannotes, because of the ambit of a civil action within the
meaning of s 9 of the Code;72 but it is necessary that the following three conditions should
concur, namely:
(i) The agent must be a special agent who attends exclusively to the business of the
principal and carries it on in the name of the principal and not a general agent who
does business for any one that pays him. Thus, a trader in the mofussil who habitually
sends grain to Madras for sale by a firm of commission agents who have an
independent business of selling goods for others on commission, cannot be said to
carry on business in Madras.73 So, a firm in England, carrying on business in the
name of AB & Co, which employs upon the usual terms a Bombay firm carrying on
business in the name of CD & Co, to act as the English firms commission agents in
Bombay, does not carry on business in Bombay so as to render itself liable to be
sued in Bombay.74
(ii) The person acting as agent must be an agent in the strict sense of the term. The
manager of a joint Hindu family is not an agent within the meaning of this
condition.75
(iii) To constitute carrying on business at a certain place, the essential part of the
business must take place in that place. Therefore, a retail dealer who sells goods in
the mofussil cannot be said to carry on business in Bombay merely because he has an
agent in Bombay to import and purchase his stock for him. He cannot be said to
carry on business in Bombay unless his agent made sales there on his behalf.76 A
Calcutta firm that employs an agent at Amritsar who has no power to receive
money or to enter into contracts, but only collects orders which are forwarded to
and dealt with in Calcutta, cannot be said to do business in Amritsar;77 but, a
Bombay firm that has a branch office at Amritsar, where orders are received subject
to confirmation by the head office at Bombay, and where money is paid and
disbursed, is carrying on business at Amritsar and is liable to be sued at Amritsar.78
Similarly, a Life Assurance Company which carries on business in Bombay and
employs an agent at Madras who acts merely as a Post Office forwarding proposals
and sending moneys cannot be said to do business in Madras.79 Where a contract of
insurance was made at place A and the insurance amount was also payable there, a
suit filed at place B where the insurance company had a branch office was held not
maintainable.80 Where the plaintiff instituted a suit at Kozhikode alleging that its
account with the defendant Bank at its Calcutta branch had been wrongly debited
and it was claimed that that court had jurisdiction as the defendant had a branch
there, it was held that the existence of a branch was not part of the cause of action
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and that the Kozhikode court therefore, had no jurisdiction;81 but, when a company
though incorporated outside India gets itself registered in India and does business
in a place in India through its agent authorised to accept insurance proposals, and
to pay claims, and to do other business incidental to the work of agency, the
company carries on business at the place of business in India.82

Government and Railways. Regarding the words carries on business in cll (a) and (b), there
was at one time a conflict of judicial opinion as to whether they can apply to government.
Some decisions drew a distinction between the act ivities of a government attributable to
its sovereign character such as war, defence and the like and the commercial activities in
which it engages like any of its subjects and held that in respect of the latter, the suit
relating to such act ivities could be instituted in the court within whose jurisdiction the
head office is situated.83 A number of other decisions, on the other hand, held that though
this distinction may be material on the question of liability of the government, it had no
relevance on the question of the forum wherein the government could be sued, that it
could not be said of the government that it carries on business within the meaning of s 20
and therefore a suit against the government could be instituted where the cause of action
arose wholly or in part.84 The controversy is now set at rest by the Supreme Court in Union
of India v. Sri Ladulal Jain 85 where it stated that the principle underlying cll (a) and (b) is that
the suit should be instituted at a place where the defendant would be in a position to
defend the act ion against it effectively and without trouble and that the running of
railways by the government was a business activity and that accordingly, the court of the
subordinate judges at Gauhati within whose jurisdiction the railway has its head-quarters
had jurisdiction to entertain the suit. The mere fact, however, that the particular railway
run by the government has its headquarters within the jurisdiction of the court is not
enough. In order to attract the jurisdiction of that particular court the plaintiff would have
to show that the railway administration in respect whereof the liability arose is the one to
which liability can be fastened by virtue of the provisions of the Railways Act. If there is a
claim against the Union of India in respect of loss which occurred either at the dispatching
station or the destination station or along the railway line, such a claim can be entertained
against the Union of India, although the place where the loss occurred is outside the
jurisdiction of the court, provided the Union of India is carrying on administration of the
railways within its jurisdiction.86 Conversely, if the headquarters of a railway administration
are situate within the jurisdiction of the court where the suit is filed, the jurisdiction of that
court would be attracted if the cause of action has arisen wholly or in part within the local
limits of its jurisdiction.87

Where a suit is governed by s 80, Indian Railways Act, 1890, the forum has to be
determined solely on the basis of that section. The provisions of s 20, Code of Civil Procedure
or of s 18, Presidency Small Cause Courts Act, 1882, do not apply.88 Under s 80, Indian
Railways Act, 1890, a suit for compensation for loss of life of, or personal injury to, a
passenger, or for damage, deterioration or non-delivery of animals or goods, could be
instituted at the court having jurisdiction: (i) over the place at which the passenger
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obtained his pass or purchased his ticket or the animals or goods were delivered for
carriage, as the case may be; or (ii) over the place in which the destination station lies; or
(iii) loss, injury, destruction, damage or deterioration occurred.89 In a Bombay case, a suit
was filed for damages against the railway administration for the loss of goods in transit.
Another party was also made defendant and leave of the court was obtained under s 20 (b)
for filing the suit in the particular court, even though that court did not have jurisdiction
against the railway administration under s 80, Indian Railways Act, 1890. It was held that
while s 20 of the Code of Civil Procedure is a general provision for suits, s 80, Indian Railways
Act, is a special provision for railways and therefore, permission granted under s 20 of the
Code of Civil Procedure would be of no avail in the circumstances.90 Contract was entered into
with the Divisional Superintendent of Railways at Lucknow. Lucknow being in Northern
Railways and headquarters of Northern Railways being at Delhi, the suit could be filed
against the Union of India in Delhi. The contract was for building or maintenance of the
staff quarters which are all necessary and incidental adjuncts to the business of running of
railways. The running of railways does not mean only the transporting of passengers and
goods, but would also inevitably include within it all the works like building quarters, laying
down rails and all acts connected with the running of the railways.91 The impugned orders
of the Central Government (at Delhi) fixed the selling price and retention price of
aluminium. The petitioner company, with its head office at Calcutta, alleged that it had
suffered loss owing to such fixation. It was held that the cause of action arose, in part at
Calcutta and the Calcutta High Court could entertain the writ petition.92 A writ petition is
not entertained unless the petitioner comes with a case that he has been prejudiced by state
act ion. In this case, the state action had caused prejudice at Calcutta.93 Certain charitable
endowments were created by a will. The will related to a few temples within the East
Thanjore District. Some matter relating to the endowment had been disposed off by the
Deputy Commissioner. The Commissioner had suo moto reopened the matter. A suit to set
aside the order of the commissioner was filed in the City Civil Court at Madras, in which
the office of the Commissioner was situated. An objection to territorial jurisdiction of the
court was raised in the written statement. It was held, that only the subordinate judge who
had got jurisdiction over the properties situated in Sirkali Taluka (which was dealt with by
the Will), could entertain the suit. Consequently, the City Civil Court, Madras had no
jurisdiction.94 Courts were concerned with the central control and management of the
business concerned. Where the business is not of a commercial nature, the suit must be
filed against the government at the place where the cause of act ion arises, wholly or in
part. The expression business (as used in s 20 ) means commercial business and not duties
or functions of a sovereign character. The place where the state is carrying on business, is a
pure question of fact. The test is: what is the nature and purpose of the activity in
question? If it is commercial in character, the suit can be filed: (i) at the principal place of
business or principal office; and (ii) also at the place where the cause of act ion arises,
wholly or in part.95 A construction contract between the plaintiff and the state government,
provided that the chief engineer of the state government would have control in the matter.
The chief engineers office was at Jaipur, which was also the headquarters of the state
government. It was held, that the suit should be filed at Jaipur. The suit was against both
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the state government and the chief engineer. The main object of s 20 is that the defendants
should be able to defend the suit without undue trouble.96 The courts at Delhi cannot be
said to have the jurisdiction in regard to all disputes relating to all contracts executed by the
Union of India simply because the Union of India has its office in Delhi. It is not possible
to accept the view that Union of India carried on business or worked for gain through the
Director of Supplies and Disposals, New Delhi to confer jurisdiction on the courts at
Delhi. The expression voluntarily resides in s 20 is significant. It necessarily refers to
natural persons and not to legal entities. Likewise, the expression carries on business or

personally works for gain do not refer to functions carried on by the Union of India in
discharge of its executing powers conferred by the Constitution of India.1

(e) Place of Residence or Work of Plaintiff. Unlike defendant(s) the place of residence or
business or work of the plaintiff is immaterial to ascertain the jurisdiction of the court. It is
another matter if the plaintiff and defendant are residing or working for gain or doing
business within the same locality or the territorial jurisdiction of the same court. But in that
case also it is the dwelling place, business place or working place of the defendant which
attracts the jurisdiction of the court with regard to dispute between the parties pertaining
to movable properties, contract, etc. The point is that it is the place of residence, business
and work of the defendant(s) which has a bearing on the question of jurisdiction of the
court under ss 20(a) and (b) of the Code of Civil Procedure.

Where the suit is filed at place G, suit property is situated at place S and the defendant also
resides at place S. In such a case territorial jurisdiction of the trial court extends to place S,
also the application filed by the defendant seeking hearing of the suit at place S, cannot be
rejected on the ground that the plaintiff resides at place G.2

5. Old Explanation I, Temporary residence. The Calcutta High Court on the strength
of Explanation I as it stood before its omission held in a case where the defendant had a
permanent residence at Gopalganj but resided at Calcutta where he carried on business
that a suit in which the cause of action arose at Calcutta could be brought in the Court at
Gopalganj.3 Thus Explanation I was relevant only in relation to the Court having
jurisdiction where the defendant had a dwelling elsewhere.4 Under the deeming provision
in Explanation I, if a person had a permanent dwelling at one place and a temporary
residence elsewhere he was said to reside at both the places. Under the main part of the
section, a suit can be filed (i) where the defendant act ually and voluntarily resides or (ii)
where he carries on business or (iii) where he personally works for gain or (iv) where the
cause of action arises wholly or in part. By providing deemed residence at both the places,
was the object to extend the scope of the operative part of the section? If that was so,
there was no point in providing a further requirement of the cause of act ion arising at the
place of his temporary residence. If the object was as the Madras High Court said to give
jurisdiction to the Court where the permanent dwelling is situate, the requirement of the
cause of action arising at the temporary residence was unnecessary. The deeming double
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residence did not also specify that both were places of his act ual and voluntary residence
so as to be in harmony with the main part of the section. Explanation I has thus been
rightly omitted.

6. Section 16 (c) and Section 20 Choice of Court. See notes to s 16 under the same
heading.

7. Section 16 (d) and Section 20 Choice of Court. See notes to s 16 under the same
heading.

8. Judgment of the Court not Competent to deliver it. See notes under s 11 under the
same heading. See notes under heading Contract providing for place of suing, under s 10
(supra), and agreement as to choice of court, under s 20 (infra).

9. Leave of the Court. Leave of court is required when some of the defendants are within
and others outside jurisdiction. Thus, a suit against the members of a firm, one of whom
resides within jurisdiction, may be instituted with leave of the court as the non-resident
defendants;5 and if the court refuses leave, the suit cannot proceed unless the non-resident
defendants acquiesce.6 Goods kept at a place, A, were damaged by fire. Goods were
insured at A, with companies B and C. Claim was filed in the court at A. Court at A had
jurisdiction against B to entertain the claim, but not against C. Court at A can grant leave
under s 20 (b) to file a claim against C.7 Plaintiff filed a suit for the recovery of certain
amounts against six defendants. The sixth defendant was a bank, a body corporate
incorporated in West Germany and it had a branch at Bombay. By an application under s
20 (b), leave was sought by the plaintiff to institute the suit against the sixth defendant. It
was held by the trial court, that the leave sought for could not be given arbitrarily,
especially when the defendant not residing within the territorial jurisdiction of the court
happened to be the main defendant. On revision, it was held that allegations in the plaint
showed that the plaintiff was seeking a decree against the sixth defendant in the alternative
only. In such a situation, it could not be said at that stage that the sixth defendant was the
main defendant. All the five defendants and the plaintiff were carrying on business at
Delhi. Evidence to be produced on their behalf was available mostly in Delhi. It was,
therefore, in the interest of justice to grant the leave sought for, so as to avoid hardship to
the plaintiff and to the five defendants.8 Leave may be given even after institution of the
suit,9 and even at the stage of appeal.10 There is an obligation upon the court before
granting leave to consider the position of non-resident defendants who do not appear as
well as to consider the objections of those who appear, and especially, when they are the
real contestants.11 Non-residents include even residents outside India.12 The merits of an
order refusing leave under s 20 (b), cannot be attacked in an appeal from an order
returning a plaint to be presented to the proper court.13

10. Acquiesce. Section 20 of the Code of 1882 provided that if a defendant, not residing
within the jurisdiction, did not apply to the court for a stay of proceedings he should be
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deemed to have acquiesced in the institution of the suit.14 The clause has been omitted
from the present Code. There is no provision for such a presumption also in ss 2224.
Accordingly, the Calcutta High Court held that a defendant could not be deemed to have
acquiesced on the ground that he failed to apply for a transfer.15 In a divorce petition
under the Hindu Marriage Act, 1955, the defendant had raised objection to territorial
jurisdiction in the written statement and issue had also been framed on the said objection.
The Madhya Pradesh High Court held regarding the plea that as the objection was not
raised about territorial jurisdiction at earliest opportunity, the same cannot be raised at later
stage, is intenable.16

However, if a party to the suit has admitted the territorial jurisdiction of a court, he would
be estopped from denying it at a later stage on the ground that he could not both,
approbate and reprobate.17 One defendant carried on business or resided within
jurisdiction of the court. Another defendant was not residing or carrying on business or
personally working for gain within the jurisdiction of that court. It is only if he acquiesced
that the court would have jurisdiction unless leave of court is obtained.18

11. Personally works for gain. These words were inserted to give jurisdiction where a
person lives outside the local limits of jurisdiction but comes within them to work for gain
as the case of a pleader who lives outside the jurisdiction of the High Court where he
practices.19 The word works implies mental or physical effort and does not apply to the
receipt of offerings by a Hindu priest.20 As already stated, the phrase works for gain is not
applicable to the government,21 nor to companies or corporations.22

12. Cause of action. Section 20 of the Code of Civil Procedure recognises the territorial
jurisdiction of courts, inter alia, wherever the cause of action wholly or in part arises.23

The expression cause of act ion has acquired a judicially settled meaning. In the restricted
sense, cause of action, means the circumstances forming the infraction of the right or the
immediate occasion for the act ion. In the wider sense it means the necessary conditions
for the maintenance of the suit, including not only the infraction of the right, but the
infraction coupled with the right itself. Compendiously the expression means every fact by
which it would be necessary for the plaintiff to prove, if traversed, in order to support his
right to the judgment of the court. Every fact which is necessary to be proved, as
distinguished from every piece of evidence which is necessary to prove each fact,
comprises cause of action. It has to be left to be determined in each individual case as to
where the cause of act ion arises.24 The cause of action means the circumstances forming
infraction of the right or immediate occasion for act ion. It is left to be determined in each
individual case as to where the cause of action arises. The cause of act ion in suit/petition
has no reference to the defence taken in the suit nor is it related to the evidence by which
the cause of action is established.25

A suit is always based on a cause of act ion. There can be no suit without a cause of action
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and such cause of act ion having accrued to the plaintiff, the jurisdiction of the court in a
matter of contract will depend on the situs of the contract and the cause of action arising
through connecting factors. A cause of act ion is a bundle of facts which taken with the
law applicable, gives the plaintiff a right to relief against the defendant.26 It must include
some act done by the defendant since in the absence of an act no cause of action can
possibly accrue.27 It is not limited to act ual infringement of right sued on, but includes all
the material facts on which it is founded.28 It does not comprise evidence necessary to
prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain
a decree.29 Everything which if not proved would give the defendant a right to immediate
judgment must be part of the cause of action;30 but it has no relation whatever to the
defence which may be set up by the defendant nor does it depend upon the character of
the relief prayed for by the plaintiff.31 A cause of act ion means every fact, which, if
traversed, it would be necessary for the plaintiff to prove in order to support his right to a
judgment of the court.32 It is a media upon which the plaintiff asks the court to arrive at a
conclusion in his favour.33 In legal parlance the expression cause of action is generally
understood to mean a situation or a state of facts that entitle a party to maintain an act ion
in a court or a tribunal; a group of operative facts giving rise to one or more bases for
suing; a factual situation that entitles one person to obtain a remedy in court from another
person. The mere fact that the FIR was registered in a particular state is not the sole
criteria to decided that no cause of action even partly with the territorial limits of
jurisdiction of another state.34

The cause of act ion must be antecedent to the institution of the suit.35 Accordingly, when
a plaintiff filed a suit for ejectment 15 days before he was entitled to possession, he failed
for want of cause of action.36 The death of the assured is a material part of the cause of act
ion, the plaintiff is bound to prove the fact if traversed and if not proved, the defendant
will have an immediate right to judgement. Hence, the court at the place where the assured
died has jurisdiction to try a suit for recovery of the insurance money.37 Courts in whose
jurisdiction the cheques were dishonoured shall have the jurisdiction.38

Where the work in question was awarded and executed in Maharashtra, the show cause
notice was in Maharashtra by the Assistant Labour Commissioner, the whole cause of
action took place in Maharashtra and respondents 7 to 9, against whom petitioner claims a
cause of act ion, are based in Maharashtra, mere impleadment of Coal India Ltd, the nodal
authority, or of Union of India will not confer jurisdiction to Delhi High Court.39

In a case relating to agreement of settlement between Bank and loanee a dispute arose as
to territorial jurisdiction of Court. Every act connected with the loan was performed by the
parties at Delhi, like communication as regards increased offer in the original proposal was
made by the plaintiff to the office of the Bank at Delhi, the draft attached to the said
communication was also issued by Bank at Delhi, even proceedings of meetings of the
independent settlement advisory, wherein the plaintiff participated, took place at the Head
Office of the Bank at Delhi. The High Court of Delhi held that mere communication of
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the letter of repudiation of the settlement agreement was sent from Meerut to Ghaziabad
would not divest the High Court at Delhi of territorial jurisdiction.40

In a case where petition seeking appointment of arbitrator was filed, it was held that major
part of cause of act ion arose within the jurisdiction of Jharkhand State and within the
district of Bokaro and, therefore, s 20 of CPC read with s 2 (1)(c) and s 11 (XII)(b) of the
Arbitration and Conciliation Act, 1996 confers territorial jurisdiction to Jharkhand High
Court.41

In a suit for injunction in the case of infringement of patent under the Patents Act, 1970, it
was held that the industrial unit where two products was manufactured by the plaintiff was
situated in SIDCUL, Pant Nagar within the limits of Udham Singh Nagar, Uttarakhand
and hence the Court at Uttarakhand would have jurisdiction. However, because of
suppression of facts the discretionary relief of injunction was refused.42

The provisions of Hindu Adoption and Maintenance Act, 1956 are beneficial for women
and infirm old parents for their maintenance while in distress. It cannot be presumed by
any str etc h of imagination that such person in distress would have to run from pillar to
post for relief under the provisions of Hindu Adoption and Maintenance Act, if the
husband or son keeps on changing his residence or prefers to reside in a far away town
from the town of wife or parents. In view of this taking of recourse to cl (c) of s 20 of the
Code of Civil Procedure, the proceedings could be instituted at the place of residence of wife,
who is residing at a different place than her husband. The family court at the place where
wife and daughter reside, therefore, shall have jurisdiction to entertain the said petition
filed by the appellants under the provisions of Hindu Adoption and Maintenance Act and
Special Marriage Act, 1954.43

13. Cause of action in writs. In order to confer jurisdiction on a High Court to entertain
a writ petition or a special civil application, the High Court must be satisfied from the
entire facts pleaded in support of the cause of act ion that those facts do constitute a cause
so as to empower the court to decide a dispute which has, at least in part, arisen within its
jurisdiction. It is clear that each and every fact pleaded in the application does not ipso facto
lead to the conclusion that those facts give rise to a cause of action within the courts
territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance
with the lis that is involved in the case. Facts which have no bearing with the lis or the
dispute involved in the case, do not give rise to a cause of action so as to confer territorial
jurisdiction on the court concerned.44

The entire bundle of facts pleaded need not constitute a cause of act ion as what is
necessary to be proved before the petitioner can obtain a decree in the material facts.

The expression material facts is also known as integral facts. Keeping in view the
expressions used in cl (2) of Art. 226 of the Constitution of India, indisputably even if a small
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fraction of cause of action, accrues within the jurisdiction of the court, the court will have
jurisdiction in the matter. However, even if a small part of cause of act ion, arises within
the territorial jurisdiction of the High Court, the same by itself may not be considered to
be a determinative factor compelling the High Court to decide the matter on merit. In
appropriate cases, the court may refuse to exercise its discretionary jurisdiction by invoking
the doctrine of forum conveniens.45

In a dispute arising out of breach of contract, it was held by the Allahabad High Court that
acceptance of tender and its communication by respondents to petitioners by e-mail at the
place where petitioner carried on his business amounted to completion of contract.
Therefore, part of cause of action having arisen at that place in the State of U.P., the
Allahabad High Court has territorial jurisdiction to entertain writ petition. It was further
held in the case that any ouster clause in the contract can oust the territorial jurisdiction of
civil court but not of the High Court under Ar. 226, which cannot be curtailed even by
statute.46

14. Cause of action in suits on contracts. The corresponding section of the Code of
1882 merely referred to the place where the cause of act ion arose. It was not clear whether
this meant the whole cause of action or any part to the cause of act ion. The section was
therefore amended by s 7 of Act 7 of 1888, which added an Explanation as to the
significance of the term when applied to contracts. The Explanation was as follows :

Explanation III In suits arising out of contract, the cause of act ion arises within the
meaning of this section of any of the following places, namely:
(i) the place where the contract was made;
(ii) the place where the contract was to be performed or performance thereof
completed;
(iii) the place wherein performance of the contract any money to which the suit relates
was expressly or impliedly payable.

This Explanation made it clear that in suits on contracts, cause of action meant the whole
or any part of the cause of act ion, but it was still not clear that it meant the same in other
suits.47 In the present Code, the words wholly or in part have been inserted after the words
cause of action which make it plain that all suits may be instituted where the cause of act
ion arises wholly or in part.48 Explanation III has been omitted as no longer necessary but
it is nevertheless a correct statement of what is still the law.49 The Supreme Court has laid
down the following propositions regarding venue for suits on contract:
(i) Ordinarily, acceptance of an offer and its intimation, result in a contract, hence a
suit can be filed in a court within whose jurisdiction the acceptance was
communicated.
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(ii) The performance of a contract is part of the cause of action and a suit in respect of
the breach can always be filed at the place where the contract should have been
performed or its performance completed.
(iii) In suits for agency act ions, the cause of action arises at the place where the
contract of agency was made or the place where the act ions are to be rendered and
the payment is to be made by the agent.
(iv) Part of the cause of action arises where money is expressly or impliedly payable
under a contract.
(v) In cases of repudiation of a contract, the place where the repudiation is received, is
the place where the suit would lie.
(vi) If a contract is pleaded as part of the cause of act ion giving jurisdiction to the court
where the suit is filed and the contract is found to be invalid, such part of the cause
of action disappears.50

Some of the connecting factors have been thus set out in the judgment of the Supreme
Court. In a suit for damages for breach of contract, the cause of act ion consists of the
making of the contract, and of its breach, so that the suit may be filed either at the place
where the contract was made or at the place where it should have been performed and the
breach occurred. The making of the contract is part of the cause of action. A suit on a
contract, therefore, can be filed at the place where it was made. The determination of the
place where the contract was made is part of the law of contract; but, making of an offer
on a particular place does not form cause of act ion in a suit for damages for breach of
contract. Ordinarily, acceptance of an offer and its intimation results in a contract and
hence, a suit can be filed in a court within whose jurisdiction the acceptance was
communicated. The performance of a contract is part of cause of action and a suit in
respect of the breach can always be filed at the place where the contract would have been
performed or its performance completed. If the contract is to be performed at the place
where it is made, the suit on the contract is to be filed there and nowhere else. In suits for
agency actions, the cause of act ion arises at the place where the contract of agency was
made or the place where actions are to be rendered and payment is to be made by the
agent. Part of the cause of act ion arises where money is expressly or impliedly payable
under a contract. In cases of repudiation of a contract, the place where repudiation is
received is the place where the suit would lie. If the contract is pleaded as part of the cause
of action giving jurisdiction to the court where the suit is filed and the contract is found to
be invalid, such part of the cause of act ion disappears. The above are some of the
connecting factors.51

In a case relating to breach of confidentiality clause in service contract, the Supreme Court
has held that cause of action and applicability of law are two distinct, different and
independent things and one cannot be confused with the other. The fact that service
contract was entered into outside India would not be relevant when the breach of
confidentiality clause took place at Delhi and consequently a court at Delhi would have
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jurisdiction to try the suit. It was observed that though s 20 of the Code has been designed
to secure that justice might be brought as near as possible to every mans hearthstone and
that the defendant should not be put to the trouble and expense of travelling long
distances in order to defend himself, but in a case of breach of confidentiality clause in a
service contract, the place where the breach has taken place will have jurisdiction.52

All terms of the contract were negotiated and finalised in Bombay. It was, thereafter, that
the formal contract was engrossed and sent to Ludhiana for the signatures of respondent.
The respondents director signed the contract, document and forwarded it to its broker at
Bombay, for onward transmission to the petitioner for taking necessary act ion. This issue
can be looked at in two ways. If the contract is said to have been concluded when the
terms were prepared, then obviously that took place in Bombay. If the contract is said to
have been finalised only after both parties had signed, then it is clear that only one of the
parties signed at Ludhiana and other signed it in Bombay.53

In a suit for damages for breach of contract, the cause of action consists of the making of
the contract, and of its breach; so that the suit may be filed either at the place where the
contract was made or at the place where it should have been performed and the breach
occurred.54 Thus, if a contract is made in Poona to be performed in Poona, the whole
cause of act ion arises in Poona and the suit for breach can only be filed in the Poona
Court; but, if the contract is made in Poona to be performed in Belgaum the suit for its
breach can be filed either in the Poona or the Belgaum court. No leave of the court is
required in respect of a suit where part of the cause of action arises out of jurisdiction as in
the case of High Court suits governed by cl 12 of the Letters Patent. But if the suit is for
damages for breach of contract to ship goods to Calcutta and the goods are rejected at
Calcutta, the rejection is part of the cause of act ion and the suit can be filed in the High
Court at Calcutta with leave under cl 12 of the Letters Patent.55 A suit seeking
compensation for non-delivery and short delivery of the goods instituted in a court within
whose jurisdiction neither goods were booked nor were delivered, it was held that such
court would not have the jurisdiction to entertain the suit.56 The real place of making of
contract is a place where communication came to hand or was received and in case of
communication by post or telegram, the place where it started its journey and not at the
place where it ended is the place where cause of action in part would arise and not the
place where it came to be received.57 In this case, the petitioner entered into an agreement
with the Government of Maharashtra in 1968. In 1972, the petitioner abandoned the work.
Under cl 3(b) of the agreement, the appropriate authority of the Government of
Maharashtra determined a sum to be recovered from the petitioner. Thereafter, a recovery
certificate was issued by the Officer of Maharashtra to the collector of Jhansi (UP) for
recovering the above amount as arrears of land revenue. The construction contract was
executed in the State of Maharashtra. The liability of the contractor for abandonment of
the contract arose in Maharashtra. It was held that the challenge to the liability as
determined by the officer of Maharashtra cannot be challenged in the courts in Uttar
Pradesh.58 When, port of loading was Bombay, and the consignee was located in Zurich,
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Switzerland, no part of cause of act ion, had arisen in Delhi, the defendant did not have
principal place of business or habitual residence in Delhi, the goods were to travel firstly by
sea and thereafter by road, rail or air, the subject carriage would constitute [multimodal
transport] thereby attracting the provisions of s 20. It was held that Delhi High Court has
no jurisdiction to entertain the suit.59

(a) Making of a Contract. The making of a contract is part of the cause of action. A suit on a
contract, therefore, can be filed at the place where it was made.60 The determination of the
place where it was made is part of the law of contract. When offeror and offeree are not at
one place and exchanging the offer and acceptance through post then the contract would
be deemed to have been entered into at the place where the offer was received and the
acceptance was posted. The place of delivery of acceptance is irrelevant and does not
provide any cause of act ion.61 Where the goods were sent from place A to place B and the
goods, forwarding note contained a clause that jurisdiction for deciding disputes between
the parties would be at place C and subsequently the letter of subrogation and Power of
Attorney was granted at place D in favour of the insurer, who compensated the consignee
for the loss sustained by him in an accident during the said transportation, the suit for
recovery of damages by the consignee and the insurer against the carrier is maintainable
before the trial court at place D as subrogation was also a part of cause of action, which
has arisen at place D.62

A contract by correspondence is made at the place where the letter of acceptance is posted
so far as the proposer is concerned;63 it is repudiated at the place where the letter of such
repudiation is received.64 If acceptance is by performance of a condition, the suit may be
instituted at the place where the condition is performed.65 If the petitioner carries business
at Calcutta or replies by mails to correspondence made by it, received at Calcutta, this is
not an integral part of cause of act ion, so, Calcutta High Court has no jurisdiction to
entertain writ petition.66 In Bombay Steam Navigation Co Ltd. v. Union of India 67 the High
Court of Bombay held that the making of an offer is part of the cause of action and
therefore, a suit could be instituted in the court within whose jurisdiction the offer was
made. The court held that the receipt of acceptance of an offer was part of the cause of act
ion and that therefore, the suit could be filed at the place where it was received. Both these
points were dissented from by the same High Court in a subsequent decision on the
grounds, firstly, that an offer would be complete only when communicated and therefore
the mere dispatch of an offer was not sufficient to give jurisdiction of the court, and
secondly, that as a contract is complete when it is accepted, the communication thereof is
not a part of the cause of action.68 It is well-settled that making of an offer at a particular
place does not form part of the cause of act ion in a suit for damages for breach of
contract. Ordinarily, acceptance of such an offer and its intimation result in a contract
unless the offeror has waived such intimation or the course of negotiations implies an
agreement to the contrary. Revocation of a contract is part of the cause of action. Hence, a
suit can be filed in a court within whose jurisdiction it was communicated.69 A tender for
the construction of a building at Kolhapur was accepted by the government. The
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acceptance was communicated to the contractor by the government at the contractors

head office in Pune. It was held that part of the cause of act ion arose at Pune. Hence, the
Pune court had jurisdiction to entertain a petition under s 8 (1)(b), read with s 2 (b),
Arbitration Act, 1940 (now replealed by the Arbitration and Conciliation Act, 1996).70 Plaintiff
entered into an agreement for the sale of silicon by the plaintiff to the defendant. There
was preliminary negotiation at New Delhi. The agreement was sent by the defendant to the
plaintiff and the plaintiff later signed the same at Bhubaneswar, making part payment
there. Therefore, the acceptance of offer and payment was made at Bhubaneswar, where
the cause of action arose.71 The High Court of Punjab held that the place where an
agreement was accepted, that is to say, where the acceptance of the agreement was
conveyed, gives rise to cause of act ion and to jurisdiction under s 20 (c).72

The High Court in the above cases elaborated its reasoning in these words:

Clause (c) of s 20 of the Code deals with cause of action. In the suit based on a contract,
the cause of act ion will consist of the making of the contract and of its breach at the place
where it is to be performed. An action, therefore, for breach of a contract at the opinion of
the plaintiff can be brought either at the place where the contract was made or at the place
where the breach was committed. In deciding the question as to where the contract is
made, the court must take into consideration the provisions of s 4 of the Contract Act. A
contract is made when an offer of one party is accepted by the other party.73

An action for breach of contract can be brought, either at the place where the contract was
made or at the place where the breach was committed. In deciding the question as to
where the contract is made, the court must take into consideration the provision of s 4 of
the Contract Act. A contract is made when an offer of one party is accepted by the other
party. Where acceptance is conveyed to the plaintiff at C, a part of the cause of action
arises there and the civil court has jurisdiction to entertain petition under ss 14 and 17 of
the Arbitration Act, 1940.74 In case of a contract by post or telegram, the contract is
complete when acceptance of the offer is put in the cause of transmission of the offeror by
the offeree by posting a letter or dispatching a telegram and it is the place where
acceptance is posted which is the place where the contract is made. However, in the case
of a contract by telephone though the offeror and the offeree may be at different places
separated by space, they are in a sense in the presence of each other in as much as they can
instantaneously hear each other. Communications by telephone or telex, which are
instantaneously heard, stand for that reason on a different footing than those by post or
telegram and therefore the rule in regard to contracts by post or telegram does not apply to
those by telephone and telex. In the case it is the latter, place where acceptance of the offer
is received is the place of the contract.75 Accordingly, where the offer was made by the
plaintiff by telephonic conversation from Ahmedabad and the same was accepted by the
defendant by telephonic conversation from Khamgaon, the contract was held to have been
made at Ahmedabad where the acceptance was communicated and a part of the cause of
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action in a suit for damages for breach of contract arose within the jurisdiction of the
Ahmedabad court.76

In a suit arising out of contract, making or conclusion of the contract and payment form
important parts in determining the cause of act ion and consequently the territorial
jurisdiction of the Court. Thus, a suit based on contract can be filed at the place where the
contract was made or concluded. On acceptance of offer upon making of demand, the
contract would be complete. Thus, where demand drafts were accepted, the place of
acceptance of payment would furnish cause of action.77

When the contract is entered into between the parties at a distance, such a contract can
invariably be made only by correspondence. In a contract by correspondence, the
acceptance must be communicated in some perceptible form as suggested or indicated in
the correspondence between the parties, or by speech or other act s. Thus, the question
whether a concluded contract has been made between parties at a distance depends on the
facts of the case, and such facts must be established by usual evidence. Where a suit is
based on a tripartite agreement between the parties having their headquarters at distant
places and it is clear from the contract that the effective date of contract is the date of
acceptance of advance payment of money by one of the parties as a part of the
performance of the contract and it is agreed to pay the advance by demand draft payable in
the bank at Cochin, the court in Cochin would have the jurisdiction to entertain the suit.78
As regards repudiation of a contract, the place where such repudiation is received is the
place where the suit would lie.79 If a contract is pleaded as part of the cause of action
giving jurisdiction to the court where the suit is filed and that contract is found to be
invalid, such part of the cause of act ion disappears. Hence, the suit cannot be said to be
within the jurisdiction of the court.80

(b) Termination. Revocation or termination of a contract constitutes a part of the cause of

action, and the place where the same takes place, can vest jurisdiction in the court situated
therein. In the instant case, although, ostensibly, the letter dated 8 February 1983 tended to
formally communicate termination of contract by the respondent to the petitioner, yet, in
reality, that termination and repudiation took place when the petitioner had unmitigatingly
conveyed to the respondent at B, that the agreed rates could not remain in force from 4
December 1979. Petitioner thereby declined to carry out the remaining part of the
contract, unless the rates were revised. So far as the existing rates were concerned, there
was thus, a clear repudiation. That having taken place at B with the receipt of the
communication from the petitioner, the court at B alone had jurisdiction to entertain the
petitioner for reference under the Arbitration Act.81 State of Orissa appointed the plaintiff
company as mining agent to raise coal in a colliery within Orissa. Later, the state
terminated the contract. This was done by serving a notice of termination. Two notices
were served, the first one being served on the plaintiffs agent at A, and the second one on
the plaintiff company itself at its registered office at B. The agent at A had no authority to
receive the notice of termination, as per the contract clause. It was held that in the
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circumstances the termination by the first notice (served on the agent) was ineffective and
s 229 of the Contract Act did not help. It was the notice at B that effectively terminated
the contract. As the termination at B constituted a part of the cause of action, the plaintiff
was entitled to sue at B.82

(c) Performance. The performance of a contract is part of the cause of act ion and a suit in
respect of breach can always be filed at the place where the contract should have been
performed or its performance completed.83 An intention was shown in the bank guarantee
itself that the amount shall be paid to the Finance Secretary to the Government of Sikkim
at Gangtok. Accordingly part of the contract was performable at Gangtok so as to satisfy s
49 and there was jurisdiction to entertain the suit. When a promise is to be performed
without application by the promisee and no place is fixed for the performance of it, it is
the duty of the promisor to apply to the promisee to appoint a reasonable place for the
performance of the promise and to perform it at such place.84 The usual case is that of a
contract for the sale of goods and a suit on such a contract may be filed at the place where
the goods are deliverable or the price payable.85 Thus if, goods for delivery at Allahabad are
sold according to sample and paid for in Bombay, the buyer may sue in Allahabad if the
goods prove not to be of sample quality.86 When a buyer at Kasganj ordered dyes from a
seller at Delhi, but after paying for and opening the parcel found it to contain only clay, he
was entitled to sue for damages at Kasganj.87 Where the textile mill was situated in
Bombay, the order for purchase of cloth was placed by the party having business in
Calcutta, the supply of cloth was to be made ex-factory from Bombay, the writ petition by
the purchaser/petitioner against the mill was found maintainable at Bombay and not in
Calcutta.88 If not otherwise provided by the contract, goods sold are deliverable at the
place where they are sold, or if not ready, at the place of manufacture. If they are sent by
common carrier at sellers risk, the contract is performed at the place where they are
delivered to the buyer or if at buyers risk, at the place where they are delivered to the
carrier.89 In the case of a contract FOB, Bombay, the place of performance is Bombay.90 A
suit against railway administration for breach of contract for failure to deliver goods could
be filed at the place where the goods were consigned as that is part of the cause of action.91
Such a suit is also maintainable at the place where the goods were deliverable.92 Where a
contract for the sale of goods made at Calcutta provided for delivery of goods and
payment of price at Calcutta, the entire cause of act ion arises there, and a suit for damages
for breach of the agreement on the ground that the goods were not according to the
contract does not lie at Madras where the purchaser was to take delivery.93 Where goods
delivered to a common carrier were lost through fire while in transit, a suit based on tort
would fall under s 19.94

The place of performance is generally expressed in the contract and if not so expressed, it
may be inferred from the nature of the act. Thus, a contract to repair a house must be
performed where the house is situated, and an agreement to register a mortgage must be
performed at the place where the law requires it to be registered.1 If the place is neither
expressed in the contract, nor implied from the necessities of the case, it will be
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determined by the court according to the intention of the parties,2 or the provisions of ss
4849 of Contract Act.

Thus, in Llewhellin v. Chunilal 3 the court said that looking to the ordinary course of
business it was the intention of the parties that payment should be made at plaintiffs place
of business. Similarly, in Sreenath Roy v. Cally Das 4 a suit for breach of an agreement to
mortgage property outside Calcutta was held to lie in Calcutta as the plaintiffs place of
business was in Calcutta and the defendant would have to repay the money there to
redeem. Ordinarily, in the case of goods purchased or money borrowed, payment must be
made at the residence of the seller or lender as the case may be.5 In a contract of service
which did not fix the place of payment of salary, the salary was held to be payable at the
place where the service was rendered.6 In a suit for arrears of salary and travelling
allowance against the state government, it is the place where the plaintiff was posted and
served and not his place of residence which matters for the purpose of jurisdiction.7 The
fact that such a person serves a notice under s 80 of the Code of Civil Procedure does not
confer jurisdiction on the court where it is served, as giving of notice does not constitute
part of the cause of action.8 When A sued B on a contract of service made at Hyderabad
for service was rendered at Hyderabad, alleging that after service was rendered B promised
to pay in Madras, the court held that there was no consideration for the latter promise, no
contract to pay in Madras, and therefore, no breach of contract in Madras so as to enable
A to sue in Madras.9 The State of Orissa appointed the plaintiff company as mining agent,
to get and raise coal from a colliery within Orissa. Plaintiffs contract was terminated by the
State of Orissa. Plaintiff sued for damages for breach of contract in West Bengal (Alipore,
Calcutta), on the ground that he had made purchase of machinery at Calcutta, to enable
him to perform the contract and that the Alipore court had jurisdiction. It was held that
this did not give the Alipore court jurisdiction. However, in this case, under another head,
that court was held to have jurisdiction.10 Where a suit is filed for the recovery of amount
paid in advance, jurisdiction vests in the court where the advance is made or where the
goods are to be delivered.11 The principle, that the court of the place where the contract of
sale of goods is to be performed by delivery of the goods will have jurisdiction to entertain
a suit in respect of non-delivery as per contract, is well accepted.12 Where there is a
contract for sale of goods, the title to the goods would pass where documents of title are
delivered, if payment is made through banks on receipt of document. Performance of the
contract in such case has to be completed at the destination, by delivery of documents
through bank at the destination. Hence, a part of the cause of act ion arises at the
destination.13 If the contract is to be performed at the place where it is made, the suit on
the contract must be filed there and nowhere else. A suit for prompt dower by a
Mahomeddan wife is a suit on contract and the place of performance must be deemed to
be the place where the wife has been residing.14 In Dadabhai v. Diogo,15A at Karwar sent
money to his agent in Bombay with instructions to negotiate a contract for the purchase
and shipment of goods from Bombay to Karwar. The agent entered into a contract with B
and paid him the money, but B failed to ship the goods. A sued B at Karwar, but the court
there had no jurisdiction for the contract was made and the money paid in Bombay, and
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the performance was also to be in Bombay by the shipment of goods from there. A suit
for damages for breach of contract and refund of earnest money paid thereunder can be
filed at the place where the earnest money was paid as that is part of the cause of action
and where that was paid by bill and that was accepted, that amount must be deemed to
have been paid at the place of acceptance and a suit can be instituted at the place.16 The
rejection or repudiation of a claim under a contract of insurance has been held not to be
part of the cause of act ion.17

15. Cause of action in other suits. In an administration suit, the undertaking to

administer is part of the cause of act ion.18 The grant of probate or letters of administration
is part of the cause of action in a suit for a legacy or for a distributive share in the estate of
an intestate, or in a suit for the administration of the estate of the deceased testator or
intestate.19 A suit against executors for administration of estate and for accounts is not a
suit for immovable property within s 16 as an inquiry into title of property is only
incidental and can be instituted at any court where the cause of act ion arises wholly or in
part.20 In a contract of bailment, the payment of the bailees charge is part of the
performance of the contract,21 and part of the cause of action also accrues at the place
where the goods bailed are stored.22 In the suit where material alteration of a cheque
fraudulently made is alleged; that fact of the issuance of the cheque constitutes part of the
cause of act ion. Hence, the court at the place where the cheque was issued has jurisdiction
to try such a suit.23 A suit for a breach of a contract of betrothal may be filed where the
breach takes place,24 and in case of a contract to marry, at the place where the marriage was
to have been celebrated.25 A suit for damages for misrepresentation will lie at the place
where the misrepresentation was made,26 or for wrongful arrest at the place of arrest,27 or
for death caused by negligence at the place where the death took place,28 or for libel at the
place of publication.29 In actions in tort, aggravation of damages is not part of the cause of
act ion and no jurisdiction can be founded solely thereon.30 The cause of action in a suit to
set aside a forged Will arises at the place where the Will was published,31 or if plaintiffs
interest in any property is prejudicially affected by the Will, the suit may be filed at the
place where that property is situated.32 In a suit to set aside a deed of release [executed in]
Calcutta in plaintiffs interest in property in Bombay, it was said that the cause of act ion
did not arise wholly in Calcutta but included the effect of the release on the Bombay
property.33 In a contract of insurance of goods made in Rangoon, and providing for
payment at Rangoon, the Rangoon High Court held that the cause of action was at
Rangoon and not at the place where the goods were destroyed or damaged.34 However, the
Bombay High Court has dissented from this case on the ground that the destruction or
damage of the goods is part of the cause of act ion. In case of life assurance, it has been
held that part of the cause of action arises at the place where the death occurs.35 A suit for
restitution of conjugal rights may be brought in the court of the place where the husband
resides, or it may be brought in the court of the place where the wife resides;36 but, if the
wife has never lived in the husbands house, the suit must be brought at the place where the
wife resides.37 A suit for restitution of conjugal rights by Mohammedan husband can be
filed in the court within whose jurisdiction the marriage took place as under the
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Mohammedan Law; marriage is a contract and not a sacrament.38 A suit for restitution of
conjugal rights can be filed in court within whose jurisdiction the parties are residing and
that jurisdiction is not lost by either of the parties subsequently leaving the place.39 Where
a suit for restitution of conjugal rights against the wife was filed in a court within whose
jurisdiction she was living and further relief by way of injunction was claimed against her
relations who were alleged to have prevented her from joining the plaintiff and they were
neither residing nor carrying on business within the jurisdiction, it was held that the suit
was not maintainable as against them.40 A right to specific relief for declaration of marriage
as void is a suit of a civil nature. A suit to declare invalid a marriage between a Hindu and a
Christian can be filed in the court within whose jurisdiction the parties were residing, even
if the marriage took place elsewhere.41 A suit by a guardian for the custody of his ward
removed by the defendant from Allahabad to Lahore may be brought in the court at
Lahore, or it may be brought in the court at Allahabad.42 A suit for damages for
infringement of a trademark may be brought in the court of the place where the defendant
resides or in the court of the place where the defendant publishes advertisement
constituting infringement of the trademark.43

In another case relating to trademark violation under the Trade Marks Act, 1999, a Division
Bench of the Delhi High Court held that the provisions of s 134 of the Act do not
override the provisions of s 20 of the Code but provide an additional forum and place for
filing suit under the Act.44 Explaining the applicability of s 134 of the Act in view of s 20
of the Code, Mr. M. Sharma, J., (as he then was) observed as follows:

12. Now, coming to section 20 of the Code of Civil Procedure, a perusal of the same make it manifest that it is possible to invoke the jurisdiction of a particular
Court if the defendants or any of the defendants resides or carries on business or personally works for gain within the jurisdiction of the said Court. When the
Trade Marks Act was enacted, the Legislature was fully conscious of the fact that Section 20 of the Code of Civil Procedure provides for a forum and the place
in which a suit is required to be instituted. Despite the said fact, Section 134 of Trade Marks Act, 1999 was enacted and while enacting the said provision,
which was in addition to the provisions of the Code of Civil Procedure, the Legislature specifically included the non obstante clause, which states notwithstanding
anything contained in the Code of Civil Procedure.

13. Therefore, in our opinion, in view of the inclusion of the aforesaid expression in the statutory provision notwithstanding anything contained in the Code of
Civil Procedure the provisions of Section 134 of the Trade Marks Act, 1999 shall have to be read in addition to the provisions of Section 20 of the Code of
Civil Procedure.45

In Dhodha House Case,46 which was under the Trade and Merchandise Marks Act, 1958 (Now
repealed by the Trade Marks Act, 1999) the Supreme Court held that under the Act, to
invoke the jurisdiction of the Court, the plaintiff must actually and voluntarily reside at the
place or carry out business or personally work for gain. Therefore, where the plaintiff
neither resided at the place nor carried on business, the Court at the place would not have
territorial jurisdiction merely because its goods are sold at the place. The distinction
between the provisions relating to territorial jurisdiction in the Copyright Act, 1957, Trade
and Merchandise Marks Act, 1958 and the Trade Marks Act, 1999 has been explained by the
Supreme Court in the following words:
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43. A cause of action in a given case both under the 1957 Act as also under the 1958 Act may be overlapping to some extent. The territorial jurisdiction
conferred upon the Court in terms of the Code of Civil Procedure indisputably shall apply to a suit or proceeding under the 1957 Act as also the 1958 Act.
Sub-Section (2) of Section 62 of the 1957 Act provides for an additional forum. Such additional forum was provided so as to enable the author to file a suit
who may not otherwise be in a position to file a suit at different places where his copyright was violated. The Parliament while enacting the Trade and
Merchandise Marks Act in the year 1958 was aware of the provisions of the 1957 Act. It still did not choose to make a similar provision therein. Such an
omission may be held to be a conscious act ion on the part of the Parliament. The intention of the Parliament in not providing for an additional forum in
relation to the violation of the 1958 Act is, therefore, clear and explicit. The Parliament while enacting the Trade Marks Act, 1999 provided for such an
additional forum by enacting sub-section (2) oRL94---- of the Trade Marks Act. The Court shall not, it is well-settled, readily presume the existence of
jurisdiction of a Court which was not conferred by the statute. For the purpose of attracting the jurisdiction of a Court in terms of sub-section (2) of Section 62 of
the 1957 Act, the conditions precedent specified therein must be fulfilled, the requisites where for are that the plaintiff must act ually and voluntarily reside to
carry on business or personally work for gain.47

It was further held in the case that activities on the part of the defendant may give to act
ion both under the 1958 Act as also under the 1957 Act. But it would not entitle the
plaintiff to invoke the jurisdiction of Court in terms of s 62 (2) of the 1957 Act. Although
O 2 r 3 of the Code contemplates uniting of several causes of action in the same suit.
However, application of O 2 r 3 of the Code ipso facto would not confer jurisdiction upon a
court which had none so as to enable it to consider infringement of trade mark under the
1957 Act as also the 1958 Act.48

In the Dabur India Ltd. case49 this question again came up for consideration before the
Supreme Court. In that case a suit for copyright infringement was filed wherein the relief
for passing off action was also claimed. The suit had been filed at the Court where the
plaintiff resided. It was held that such composite suit is not maintainable. Explaining the
decision given earlier in Dhodha House case (supra), it was observed as follows:

29. What then would be meant by a composite suit? A composite suit would not entitle a court to entertain a suit in respect where of it has no jurisdiction,
territorial or otherwise. Order II, Rule 3 of the Code specifically states so and thus, there is no reason as to why the same should be ignored. A composite suit
within the provisions of the 1957 Act as considered in Dhodha House (supra), therefore, would mean the suit which is founded on infringement of a copyright
and wherein the incidental power of the Court is invoked. A plaintiff may seek a remedy which can otherwise be granted by the court. It was that aspect of the
matter which had not been considered in Dhodha House (supra) but it never meant that two suits having different causes of act ions can be clubbed together as a
composite suit.

In a suit for infringement of trade mark, the Madras High Court has held that the term
carries on business in s 62 of Copyright Act, 1957 and s 134(2) of Trade Marks Act, 1999 is not
confined to only principal place of business but covers branch or branches where business
is carried out. It has been observed that in the scheme of the two enactments, there is a
complete departure from the provisions of s 20 of the Code. If the contrast as between
two expressions namely, actually and voluntarily resides and carries on business is correctly
perceived, it would reveal that while there is limitation regarding residence, there is no such
restriction with reference to carrying on business.50

Suit was filed for infringement of trademark. Defendants were manufacturing and selling
their product in Madhya Pradesh by camouflaging registered trademark of plaintiffs.
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Registration of plaintiffs trademarks was at Madras and their manufacturing, marketing and
selling their product throughout the country was not disputed by the defendants. It was
held that part of the cause of act ion arose at Madras. It was held that High Court of
Madras could try it. Since the defendants had not disputed the registration of the
trademark of the plaintiffs at Madras and their manufacturing, marketing and selling their
product throughout the country, there was no difficulty in holding that on a combined
perusal of cl 12 of the Letters Patent and s 20 of the Code of Civil Procedure as well as s 105 of
the Act, it can be safely held that the suit can be filed in Madras High Court and the court
has jurisdiction to try the same.51 A suit for passing-off can be filed at the place where the
plaintiff has substantial market for his product. Suit is not required to be filed only at the
place where the plaintiff resides.52 In a suit for passing-off or for injunction on account of
infringement of trademark, the cause of act ion partly or wholly can arise in a given
jurisdiction, only if the defendant is proved to have directly made a sale of goods under the
impugned trademark, within the jurisdiction, not to an individual consumer but to a
distributor, wholesaler or retailer and if such a sale is on a commercial scale. In the instant
case, there was no evidence to show any transaction of sale of goods under the impugned
trademark at the place where the suit was instituted, and so, the court at the place had no
jurisdiction to entertain the suit.53 A suit relating to infringement of trademarks, and for
passing-off, cannot be filed in Bombay if the defendants carry on business in Calcutta and
there is no proof that the defendants dispatched goods for being sold in Bombay, or that
such supply was on commercial basis.54 As death of the insured person is a part of the
cause of action of suit for recovery of money due on the insurance policy, it can be
brought in court having territorial jurisdiction over the place where the insured had died.55
A suit for damages for conversion may be brought in the court of the place where the
conversion originally took place.56A sells and delivers goods to B in Bombay. A then
assigns the debt for the price of the goods to C and gives notice of the assignment to B. C
may sue B in Poona as the assignment is part of the cause of action.57 A suit to set aside a
deed can be brought at the place where the deed was registered.58 A suit for a declaration
that a new Constitution framed by a society is invalid can be filed at the place where it was
framed.59 A suit by a public servant for setting aside an order of dismissal on the ground
that he had not been given an opportunity to be heard as required under Art. 331 could be
filed at the place where the order was passed, as failure to give an opportunity was part of
the cause of act ion and that must be held to have occurred at the place where the order
was passed.60 A suit for damages for wrongful termination of services can be filed at the
place where the services were terminated.61 A suit on an award can be filed in a court
within whose jurisdiction the agreement to refer the dispute to arbitration was entered into
as that is a part of the cause of action.62 In a suit for malicious prosecution, the High Court
of Rajasthan held that since the essence of a malicious prosecution is the malicious abuse
of the process of the court in a particular place, wrong is done to the person, maliciously
prosecuted, by serving that process upon him at the place where he is served. Hence, the
court within the local limits of whose jurisdiction that place is situated has jurisdiction.63
When a bank has branches in different places, each branch is considered as an entity in
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itself and a suit in respect of dealings with the branch should be filed in the court within
whose jurisdiction the branch has its office and not where the head office is situated.64

Military contract was entered into in Uttar Pradesh. The work was executed in Uttar
Pradesh and the award was passed by the arbitrator. Proceedings were instituted in Delhi
High Court for making the award a rule of court. It was held that Delhi High Court had no
jurisdiction.65 There was reference to arbitration of disputes regarding properties located
within jurisdiction of two courts. One property was located within the jurisdiction of one
of the courts. That court has jurisdiction to entertain proceedings relating to the award.66
The doctrine of implied repeal is based on the postulate that the legislature which is
presumed to know the existing state of law did not intend to create any confusion by
retaining conflicting provisions. Courts in applying this doctrine are supposed merely to
give effect to the legislative intent by examining the object and scope of the two
enactments. It is a matter of legislative intent that the two sets of provisions of s 20, Code of
Civil Procedure and s 18, Presidency Small Causes Courts Act, 1882, were not expected to be
applied simultaneously.67

16. Section 20 (c) and Article 226 (2) of the Constitution of India. Although in view of
s 141 of the Code of Civil Procedure, the provisions thereof would not apply to a writ
proceeding, the phraseology used in s 20 (c) of the Code of Civil Procedure and cl (2) of Art.
226, being in pari materia, the decisions of Supreme Court rendered on interpretation of s
20 (c) of the Code of Civil Procedure shall apply to the writ proceedings also. Before proceeding
to discuss the matter further it may be pointed out that the entire bundle of facts pleaded
need not constitute a cause of action as what is necessary to be proved before the
petitioner can obtain a decree in the material facts. The expression material facts is also
known as integral facts.68

17. Contract of agency. In suits for an agents account, the cause of act ion arises at the
place where the contract of agency was made or the place where accounts are to be
rendered and payment is to be made by the agents.69 It does not arise at the place where a
demand for account was made.70 In Lal Singh v. Kadir Baksh,71 a Sialkot firm sent hides for
sale to their commission agent at Calcutta and were held entitled to sue at Sialkot for the
sale proceeds, as the account were to be rendered there and the money was payable there.
In Motilal v. Surajman 72 a Bombay merchant A ordered goods from time to time from B
who acted as his pucca aditia at Phulgaon. A sued B in Bombay for the amount due to him
on the account. Tyabji J held that: (a) instructions were sent by A to B from Bombay; and
(b) as accounts were rendered by B to A at Bombay; and (c) as demand was made for
payment of the amount due from Bombay, payment of the money was intended to be
made in Bombay and that a material part of the cause of action arose in Bombay. This case
was dissented from in Tika Ram v. Daulat Ram,73 where the Allahabad High Court held that
a commission agent doing an independent business of his own is liable to account at his
own place of business. This is the view taken in a later Bombay case74 and is in accordance
with the decisions of the Punjab75 and Lahore76 courts. Conversely, a commission agent
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may sue at the place where he carries on business.77 The mere sending of goods does not
constitute part of the cause of act ion and does not give jurisdiction of the court of the
place from which the goods were sent.78 So also, where a contract of commission agent
was concluded at Calcutta and goods were sent pursuant to the orders of the commission
agent to Amritsar, the cause of action for a suit for accounts against the commission agent
arose wholly in Calcutta and the court at Amritsar had no jurisdiction to entertain it.79 In
Bilticut transactions, the buyer gets title to the goods only when the railway receipts are
endorsed to him and that being part of the cause of act ion a suit can be instituted for
refund of price paid at the place where they are delivered and it had been further observed
that a suit against a commission agent on a Bilticut transaction can be brought at a place
where part of the cause of action has arisen even if he does not carry on business there.80

18. Place where money is expressly or impliedly payable. Part of the cause of act ion
arises where money is expressly or impliedly payable under a contract.81 In Lal Singh v.
Kadir Baksh,82 the case referred to in the last paragraph, the suit could be instituted at
Sialkot as it was an implied term of the contract that the agent should pay his principal
there. When the place of payment is not specified, the court will be guided by the intention
of the parties.83 In a suit based on the refusal of the government to refund sales tax paid by
the plaintiff in spite of the order of the sales-tax authority having been set aside, it was held
that it would be the court in Bihar State which would have the jurisdiction. The fact that rr
4043 of the Bihar Sales Tax Rules 1949, provided for an application of refund to be made
to the commissioner for sales tax only and the refund being made payable under these
rules only through one of the Bihar State Treasuries implied that the refund was payable at
one of those treasuries in Bihar.84 The amount due on a balance struck at the foot of an
account is payable at the place where the balance was struck although the transactions
which were the subject of the account took place elsewhere.85 In Luchmee Chund v. Zorawar
Mal,86 an account was taken and balance struck on dissolution of a partnership business at
Muttra and the Privy Council held that although the partnership agreement had been
entered into at Rutlam, the suit for the balance was properly instituted at Muttra as that
was the place where the balance was struck and the amount became due and payable. If a
seller of goods at Rangoon draws hundies on the purchaser at Tuticorin in favour of a bank
at Tuticorin, the suit for amount due in respect of the transaction may be instituted at
Tuticorin for that is the place where the purchaser has to pay for the goods and it makes
no difference that the vendor has discounted the hundies at Rangoon.87 On the other hand,
the mere fact that a cheque is sent in payment from a particular place will not alter the
locality of the suit.88 When payment is made by cheque and that is honoured, the payment
must be held to have been made at the place where the cheque is received and not at the
place where it has been cashed.89 It is the general agency with liability to account and
refund the balance, that is the cause of action, and the fact that a particular collection is
made by the agent at a different place will not give jurisdiction to sue at that place.90 If
under a contract for the sale of goods the price is payable at the sellers place of business,
but the buyer failing to pay the seller sends his man to the buyers residence and the buyer
pays at his residence, the buyer cannot in a suit for compensation for inferiority of the
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goods take advantage of that fact and sue in the court of the place where he resides.91 The
fact that the creditor is described in a promissory note made at Y as resident of K does not
make K the place of payment so as to give jurisdiction to the court at K. No place of
performance being fixed, the question, as stated above is one of intention to be gathered
from the contract and the surrounding circumstances.92

19. The debtor must find his creditor. Under the English law, if a place is appointed for
the performance of a contract, it is the duty of the creditor to attend at the place named to
receive payment; but if no place is appointed, the debtor is bound to find the creditor and
tender him the money. In other words, there is an implied promise to pay inter alia where
the creditor resides or carries on business. Under the Indian law as enacted in s 49 of the
Indian Contract Act, 1872, where no place is fixed for the performance of a promise,
whether the promise is to deliver goods or to pay money,93 it is the duty of the debtor to
apply to the creditor to appoint a reasonable place for the performance of the promise, and
to perform it at such place. But what if the debtor does not apply to the creditor to
appoint a place? In such a case, it has been held in some cases94 that the common law rule
applies and there is an implied promise to pay the

creditor wherever he might be, and in some1 that there is no such duty and no implied
promise arises. This question was considered by the judicial committee in Soniram v. RD
Tata & Co. Ltd. 2 which arose out of a suit instituted by the respondents in Rangoon for
the recovery of the balance due on dealings which they had with the appellants in Calcutta.
The contention of the defendant before the Privy Council was that the court at Rangoon
had no jurisdiction as he did not reside or carry on business there and that the rule of the
common law that debtors should seek the creditor had no application. It was held by the
judicial committee that on the terms of the contract the amounts were by implication
payable at Rangoon. On this finding, the question of the application of the common law
rule did not arise for decision. The Privy Council however observed after discussing the
decisions of the Indian courts:

Their Lordships do not think that in this state of the authorities it is possible to accede to
the present contention that s 49 of the Contract Act gets rid of inferences, that should
justly be drawn from the terms of the contract itself or from the necessities of the case
involving in the obligation to pay the creditor the further obligation of finding the creditor
so as to pay him.

There has been a divergence of judicial opinion on the precise scope of this decision. On
one hand, it has been held that when the debtor does not apply under s 49 and the
agreement does not expressly name any place for payment, it would be reasonable and in
conformity with justice to invoke the rule of common law.3 It is also observed that
recourse can be had to that rule in interpreting the agreement where it is silent on the
subject.4 On the other hand, it has been held that the decision in Soniram’s case is one on
the terms of the particular contract, that the Rangoon court was held to have jurisdiction
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because the money was payable there and that the observations relating to the applicability
of the common law rule did not amount to a decision on the question and that to apply the
technical rule of the common law would be to abrogate the provisions of the Code.5 It has
further been observed that great caution should be exercised in applying this rule.6 The
trend in more recent times is that even if the common law rule may not be extended to
India as a rule of law, courts in India would, in contracts where the place of payment is not
provided for expressly or by implication, infer that the parties had implied that payment
must be made at the place where the creditor resided or carried on business.7 In spite of
the disinclination to adopt the common law maxim, it is well-settled that the place of
payment would be determined taking into account: (i) the terms of contract; (ii) the
attendant circumstances; (iii) the necessities of the case; and (iv) the provisions of the
contract and this Code.8 The rule does not apply where the facts of the case lead to an
inference that payment was intended to be made at a particular place.9

In a suit for recovery payment against fixed deposits wrongfully with held by Bank, the
case of the plaintiff was that all decisions with regard to non-payment of due amount in
respect of the Fixed Deposits were taken by the Head Office of the Bank at Delhi. The
cause of action in the suit was for non-payment of money due and payable from Branch
Office of the Bank at Khidderpore (W.B.). However, the said Branch office is situated
outside the ordinary original Civil Jurisdiction of Calcutta High Court. It was held by the
Calcutta High Court that neither there was jurisdiction nor leave under Clause 12 of the
Letters Patent had been sought. Therefore, the suit could have been instituted within
whose jurisdiction the branch of the Bank is situated, i.e., the District Court of Alipore or
at Delhi.10

The rule of the debtor seeking the creditor is not applicable in India for the purpose of
determining the local jurisdiction of the courts because that would be engrafting something
on to s 20 of the Code of Civil Procedure.11 The common law rule, however, applies only when
the creditor is within the realm. If he is not, the court will infer a negative intention and
not apply the rule.12 Accordingly, a debtor in an Indian state was held not bound before
independence to find and pay a creditor in British India;13 But, if the loan was made at a
place in British India (Surat), there was an implied obligation to repay it at that place,
although the debtor was a resident of an Indian State.14 In a claim for the return of a fixed
deposit with a bank, it is essential for the plaintiff to prove the terms of the written
contract governing the fixed deposit and the place of repayment. In the absence of such
proof, the fixed deposit cannot be said to be repayable at any place where the plaintiff
resides and makes the demand.15 Conversely, it has been held in Mahaluxmi Bank v. Chota
Nagpur Industrial and Commercial Association 16 that a suit by a bank to recover amounts
borrowed by a customer on overdraft account at its branch at Ranchi was not maintainable
in Calcutta by reason of its head office being located there, even though the branch at
Ranchi had been closed. The common law rule has no application to suits on negotiable
instruments which are governed by Law Merchant.17 It has accordingly been held that a
suit on a promissory note cannot be filed in the place where the payee resides if it was
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executed in a different place and the maker also resided there.18 The common law rule has
no application if the parties do not stand in the relation of debtor and creditor.19 Where
sales-tax payable under an order of assessment by the State of Bihar was paid by cheque at
Calcutta, and subsequently, the order of assessment was set aside, a suit for the refund of
the amount is maintainable at Calcutta on the basis of the common law rule that the debtor
should seek the creditor.20

20. Negotiable Instruments. It is evident from s s 64 and 70 of the Negotiable Instruments

Act that in the case of a pronote, just as in the case of bills of exchange or cheques,
presentment is necessary with the exception that in the case of pronote payable on demand
and not payable at a specified place no presentment is necessary to charge the maker. The
place of presentment indicated in s 70 would apply necessarily only to a case where
presentment is contemplated. If presentment is not a requirement even without such
presentment the claim would be valid and such a case is one contemplated by the
exception in s 64, namely, where a maker of a pronote is sought to be charged on a
pronote payable on demand and not payable at a specified place.21

If merely by making an endorsement on the negotiable instrument it is permitted to give

rise to jurisdiction of a particular court, it would definitely defeat the purpose of s 20 (c) of
the Code of Civil Procedure.22

The cause of act ion in a suit on a negotiable instrument arises wherever any one of the
facts the proof of which is essential to plaintiffs case occurs. Thus, a suit may be filed at
the place where the bill was drawn, or where it was accepted or dishonoured, or where it
was payable. A suit may be instituted at the place where a hundi was drawn.23 Where a
promissory note was signed by the defendant at Secunderabad and delivered to the
plaintiff at Madras, the Madras court had jurisdiction as delivery was necessary to complete
the plaintiffs title.24 If the promissory note is drawn in the jurisdiction of the court, the suit
may be filed there, although the promisee is described in the note as resident of another
place;25 but a promissory note is presumed to have been drawn at the place where it
purports to have been executed.26 If a hundi was neither drawn nor payable in Bombay, it
cannot be sued on in the Bombay High Court although it was for the balance of an
account of Bombay transactions.27 A hundi may be sued on at the place where it was
dishonoured28 or where it was payable.29 Courts within whose jurisdiction cheques were
dishonoured will have jurisdiction.30 A suit on a promissory note executed at Viz anagram
and payable at Secunderabad or Madras, is maintainable in the High Court of Madras.31
The export firm made payments for losses as per agreement at the headquarters of the
corporation by a demand-draft which was encashed by the corporation at that place.
Dispute arose as to liability for losses. It was held that the suit can be filed at the place of
encashment.32 A promissory note not expressly payable at Delhi was delivered to the payee
there and it was presumed to be payable, so as to give jurisdiction to the Delhi Court.33
The presumption in the case of a promissory note not made payable at a specified place is
that it is payable at the usual place of business of the creditor.34 In the case of a cheque
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where it is drawn on a bank at place A but the creditor hands it over to his bankers at
place B for collection, the court at A has jurisdiction as payment which is part of the cause
of action takes place at place A.35 The whole cause of act ion in such a case stems from the
draft which was obtained at Madras and which was not encashed by the payee but had
been encashed by a totally different person through the help and assistance of the Bank of
Madras as well as the Bank at Bombay. As such, the obtaining of the draft at Madras
would furnish part of the cause of action for the institution of the suit at Madras, within
the meaning of s 20 (c). The whole suit is based upon an infringement of the rights under
the draft. Such infringement has necessarily to be established before the relief could be
granted and the right to complain about the infringement arose, only on account of the
obtaining of the draft at the place where it was obtained, namely, Madras. It is that place
where the right is created, though the infringement of those right have taken place either
place either in Madras or else where.36 A draft was obtained by a firm at Madras, payable to
R at Bombay. The draft was lost. Bank was instructed to stop the payment. Draft was
presented and collected by a third person. Suit was filed against the bank at Madras. The
civil court at Madras has jurisdiction to try it.37 Promissory Note was executed at B, stating
it as payable at B or any part of India. Promisee settled down at D and made demands
from there. It was held that suit to recover the debt could lie at D. Debtor did not require
specification of reasonable place for payment under s 49, Contract Act. Common principle
that the debtor shall seek the creditor and pay to him where he resides, applied. Further, in
this case, no presentment was necessary as against the maker, vide s 64, Exception, Negotiable
Instruments Act.38 Where hundies are drawn at Delhi and accepted at Calcutta, part of the
cause of action arises at Delhi and the Delhi High Court has jurisdiction.39 A bill of
exchange was drawn by A in Bombay on B, having his registered office in England. Bill
was discounted by A with the plaintiff bank in Bombay. Bill was accepted by B in England,
but dishonoured on the due date. It was held that material part of the cause of action arose
at Bombay. Hence, leave under cl 12, Letters Patent (Bombay), had been properly
granted.40

There has been some conflict of judicial opinion on the question whether a suit can be
filed in a court within whose jurisdiction a negotiable instrument has been assigned. In
support of the view that an assignment is not in itself part of the cause of act ion, it is said
that otherwise the provision in s 20 (c) might be evaded;41 but the preponderance of
authority is in favour of the view that the words cause of action would, in their accepted
sense, include assignment and that the court where the assignment took place would have
jurisdiction under s 20 (c).42 This view would bring the law relating to assignment of
negotiable instruments in line with that relating to assignment of chooses in act ion and
other rights.43

The Calcutta High Court has held that an endorsee may sue the drawer and acceptor at the
place of endorsement. For when D drew a hundi at Benaras on his firm at Bombay in
favour of BP & Co, a firm at Calcutta, and the hundi was endorsed by BP & Co to P in
Calcutta, part of the cause of action was held to arise in Calcutta where the endorsement
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was made and P could sue in the Calcutta High Court after obtaining leave under cl 12 of
the Charter.44 Howver, the case is different when the drawer of a hundi raises money by
negotiating his own hundi. A seller of goods drew hundies outside Madras on the buyer firm
in Madras and negotiated them outside Madras. The Madras firm paid the endorsee and
was held entitled to sue the drawer in madras to recover moneys overpaid as the amount
of the hundi was in excess of what was due for the price of goods.45 The overpayment in
Madras was part of the cause of act ion, but the payment received by the drawer from his
endorsee could not be treated as a payment towards the contract. The negotiation by the
drawer was only a provisional method of realizing the money from person who were
willing to accept the hundi for a small profit and take the trouble of getting paid. The High
Court of Calcutta has held that if P accepts and pays a hundi in Calcutta for the
accommodation of D in Cawnpore and D fails to pay, part of the cause of action arises in
Calcutta.46 On the question whether a suit can be filed in the place where a railway receipt
is assigned, judicial opinion is divided. One view is that the assignment is sufficient to give
jurisdiction to the court.47 Another is that it is not;48 and a third view is that while as
assignment for consideration would give jurisdiction, an endorsement which merely
authorises the endorsee to take delivery of the goods will not.49

21. Bill of lading. A bill of lading is a memorandum signed by the master of a ship or
captain of a ship, acknowledging the receipt of goods to be delivered by them at a certain
place, subject to certain casualties for which they are not to be answerable, those being
provided for by insurance. The bill of lading is signed in three parts one part being kept by
the consignor, another being sent to the consignee, and the third is kept by the captain.50

As the bill of lading confers right of possession; if lawfully obtained, the captain is justified
in delivering the goods to the person who presents it to him, as the bill is transferable by
indorsement, unless it is presented under suspicious circumstances.51

A bill of lading serves three purposes, viz,-

(i) it is receipt, for the goods shipped, containing the terms on which they have been
received;

(ii) it is evidence of the contract for carriage of goods, and

(iii) it is a document of title for the goods specified therein.

The contract of the ship-owners in the bill-of-lading is that they will deliver the goods at
their destination, in the like good order and condition, in which they were when shipped.52
On a bare reading of cl 3 of bill of lading, it is clear that any dispute arising under the bill
of lading shall be decided in the country where the carrier has its principal place of
business and the law of such country shall apply except as provided elsewhere in the bill of
lading. Therefore, the exclusion clause refers to the jurisdiction of a court where the carrier
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has its principal place of business. Unless and until it is established that the defendant-
carrier has its principal place of business at Singapore, the exclusion clause has no
application. Simply because in the cause title of the plaint, the plaintiffs have described
defendant no 2, Trustrade Enterprises PTE Ltd. to be carrying on business at Singapore,
would not ipso facto establish the fact that the principal place of business of defendant no 2
(respondent herein) is/was at Singapore to exclude the jurisdiction of the Calcutta court
which admittedly has the jurisdiction to try the suit. Therefore, absence of reference of cl 3
of bill of lading in the pleadings cannot be said to be suppression of the material fact as the
question of jurisdiction would be required to be adjudicated and decided on the basis of
the material placed on record at the trial.53

Where the contract was made to carry logs on board the vessel under bills of lading from
foreign port for discharge at port of Calcutta. Logs were found to be missing and landed at
Calcutta, the suit by plaintiff at Calcutta for recovery of value of the logs and other charges
was held, maintainable as part of cause of act ion, arose within jurisdiction of Calcutta
court.54

22. Partnership. A suit for the dissolution of partnership and for accounts may be
instituted either where the contract of partnership was entered into55 or where the business
of the partnership was carried on;56 and if the business was carried on in two places, the
suit may be filed at either place.57 If the partnership has been dissolved and the accounts
taken and balance struck, a suit for the balance will lie at the place where the balance was
struck.58 The fact that a partnership owns immovable property does not make a suit for the
dissolution of partnership and for accounts a suit for immovable property.59

23. Suit on foreign judgment. A suit on a foreign judgment instituted in a court

governed by the Code must satisfy the conditions of s 20. Where, therefore, a suit on a
judgment of District Court of Colombo was filed in the Court of Subordinate Judge,
Tiruchirapalli and the defendant did not either reside or carry on business or permanently
work for gain within the jurisdiction of the court, it was held that the mere possession of
property by the defendant within the jurisdiction of that court was not sufficient to satisfy
the requirements of s 20 and that the suit was not maintainable.60

24. Place of suing in suits to set aside the decree on the ground of fraud. The
question whether a suit can be instituted in one district for setting aside a decree passed by
a court in another district has been the subject of many decisions. The result of the actual
decisions ignoring what are merely obiter dicta may be stated thus. A suit to set aside a
decree obtained by fraud in court X, where nothing is done beyond transferring a decree
for execution to court Y, can only be maintained in court X, that is, the court which passed
the decree.61 Where, however, a decree passed by court X is transferred for execution to
court Y and the decree-holder makes an application to court Y for execution of the
decree,62 or property belonging to the judgment-debtors is attached in execution by court
Y, 63 or the judgment-debtor is arrested by court Y in execution and released on giving
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security,64 the judgment-debtor may institute a suit in court Y for a declaration that the
decree passed by court X was obtained by fraud, and for an injunction restraining the
decree-holder from executing the decree. Similarly, if the judgment-debtors property is
sold by court Y in execution he may sue the decree-holder in court Y for a similar
declaration and for setting aside the sale and for possession.65 In all these cases, the cause
of act ion arises in part within the jurisdiction of court Y; but, where the decree-holder has
done nothing beyond getting the decree transferred for execution to court Y, and has not
made an application to court Y for execution, the judgment-debtor, as stated above,
cannot institute a suit in court Y for setting aside the decree, not even if the plaint includes
a relief for injunction restraining the decree-holder from executing the decree.66 A High
Court will grant leave under its Charter and entertain a suit to set aside a decree of a
mofussil court for fraud if part of the cause of action has arisen in its jurisdiction.67 Where
a decree is passed by court A but the fraud on which the decree is sought to be set aside is
alleged to have been practised within the jurisdiction of court B, a suit to set aside the
decree could be instituted at court B as part of the cause of action has arisen there.68

25. Explanation : Suit against corporation. Normally, under cll (a) to (c) plaintiff has a
choice of forum and cannot be compelled to go to the place of residence or business of
the defendant and can file a suit at place where the cause of act ion arises. If the defendant
desires to be protected from being dragged into litigation at some place merely because the
cause of action arises there, it can save itself from such a situation by an exclusion clause.
The clear intendment of the Explanation, however, is that where the corporation has a
subordinate office in the place where the cause of act ion arises it cannot be heard to say
that it cannot be sued there because it does not carry on business at the place. Clauses (a)
and (b) of s 20 inter alia refer to a court within local limits of whose jurisdiction the
defendant inter alia carries on business. Clause (c) on the other hand refers to a court
within local limits of whose jurisdiction the cause of action wholly or in part arises.69

The Explanation to s 20 is really an Explanation to cl (a). It is in the nature of a

clarification on the scope of cl (a) viz, as to where the corporation can be said to carry on
business. The Explanation is in two parts, one before the word or occurring between the
words office in India and the word in respect of and the other, thereafter. The first part of
the Explanation applies only to such a corporation which has its sole or principal office at
a particular place. In that event, the courts within whose jurisdiction the sole or principal
office of the defendant is situated will also have jurisdiction inasmuch as even if the
defendant may not be carrying on the business at that place, it will be deemed to carry on
business at that place because of fiction created by the Explanation. The latter part of the
explanation takes care of the case where the defendant does not have a sole office but has
a principal office at one place and has also a subordinate office at another place. The
words at such place occurring at the end of the Explanation and the word or referred to
above, which is disjunctive, clearly suggest that if the case falls within the latter part of the
Explanation it is not the court within whose jurisdiction the principal office of the
defendant is situated, but the court within whose jurisdiction it has a subordinate office
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which alone shall have jurisdiction in respect of any cause of action arising at any place
where it has also a subordinate office. The linking together of the place where the cause of
act ion arises with the place where the subordinate office is located clearly shows that the
intention of the legislature was that in the case of a corporation, for the purposes of cl (a),
the location of the subordinate offices, within the local limits of which a cause of action
arises, is to be the relevant place for the filing of the suit and not the principal place of
business.70

The clear intendment of the Explanation, however, is that, where the corporation has a
subordinate office in the place where the cause of act ion arises, it cannot be said to say
that it cannot be sued there because it does not carry on business at that place. It would be
a great hardship if, despite the corporation having a subordinate office at the place where
the cause of action arises, the plaintiff is to be compelled to travel to the place where the
corporation has its principal place. The place should be convenient to the plaintiff; since
the corporation has an office at such place, it will also be under no disadvantage. The
Explanation provides an alternative locus for the corporation place of business, and not
additional one. However, where the defendant chooses to challenge the choice of forum
by the plaintiff on the basis of the alternative locus provided by the Explanation, it is
required of him to bring sufficient evidence before the Court to show that the alternative
forum in accordance with the Explanation would be more convenient, less expensive and
more appropriate. But in arriving at a conclusion as to the principal place of business,
parties are required to place sufficient material before the Court. The Supreme Court
explained the point in the under-noted case71, in the following words:

From this, it appears that the principal place of business would be where the governing power of the corporation is exercised or the place of a Corporations Chief
Executive Offices, which is typically viewed as the nerve center or the place designated as the principal place of business of the Corporation in its incorporation
under the various statutes. Therefore, to arrive at a finding as to which is the principal place of business, the parties would be required to place the relevant
material before the Court.

The word corporation in the Explanation takes in not only statutory corporations but also
companies registered under the Companies Act.72 Irrespective of the Companies Act, 1956, the
domicile of a trading company is fixed by the situation of its principal place of business,73
that is to say, its chief office where the central management and control are act ually to be
found.74 In the case of a company registered under the Companies Act, the controlling
power is, as a fact, generally exercised at the registered office, and that office is, therefore,
not only for the purposes of the Act, but for other purposes, the principal place of
business.75 This is not, however, necessarily the case;76 and the question whether that or
some other place is the principal place of business of the company is in each case a pure
question of fact to be determined upon a security of the course of business and trading;77
but, a company may have subordinate or branch offices in fifty different jurisdictions and
it may be sued in any one of such jurisdictions in respect of a cause of action arising
there.78 It will be noticed that cl (c) of this section is independent of cll (a) and (b).
Therefore, where the cause of act ion has arisen within the jurisdiction of the court in
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which the suit is filed, it would not be necessary in the case of a corporation, to rely on this
explanation.79 This Explanation contains a deeming provision that a corporation shall be
deemed to carry on business at its sole or principal office irrespective of the fact that it
carries on business at various purpose of deciding the question of jurisdiction under that
clause, the test would be whether the corporation did in fact carry on business within the
courts jurisdiction at the time the suit was instituted.80Section 446(2) of the Companies Act
rules out this section. Under that section, it is the court which is winding up a company
which has jurisdiction to try suits filed by or against such a company.81

Section 20 embodies a common treatment of all defendants, whether natural persons or

juristic persons. Hence, there must be a common treatment qua the presence of the
defendant in the particular place, whether with reference to the residence or with reference
to the act ivity in which the defendant may be engaged.82 The plaintiff sued the State Bank
of Amritsar. Since the plaintiff failed to show that any part of the cause of action has arisen
at Amritsar, it was held that Amritsar court had no jurisdiction and it will be either the
Bombay court within whose jurisdiction the principal office of State Bank of India is
situated or the Ghaziabad court within whose jurisdiction the branch where the account
and locker are, which will have jurisdiction to try the suit against the SBI.83 Where
defendant is a corporation as per the explanation attached to s 20 (b), a corporation shall
be deemed to carry on business at its sole or principal office in India, or in respect of any
cause of act ion arising at any place where it has also a subordinate office, at such place.
The Explanation to s 20, while providing a plaintiff a wider field to institute a suit against a
corporation, takes care to see that the defendant in such a suit can conveniently put up its
defence through its sole principal or subordinate office.84 Where the defendant/applicant
has admitted that it has a branch office at 5A Bahadur Shah Zafar Marg, New Delhi and 5
Sansad Marg, New Delhi, and therefore the present case is not of the genre where the
defendant had been put to a disadvantage, because of the plaintiffs choice of filing the suit
in New Delhi. Even if the convenience consideration is set apart, the cause of action had
arisen in Delhi. The plaintiff has asserted in the plaint that the order was accepted in Delhi,
and this fact has not even been denied or even traversed by the defendant/applicant. It is
immaterial whether dealings between the parties were through the defendants Madras
office, or that delivery of the software was to be effected in Cochin. It is trite to state that
the cause of act ion arises at different times, and at different places, and any of these would
be a legitimate venue for suing.85

26. Suit against non-resident foreigners. The court has no jurisdiction in a suit against a
non-resident foreigner on a cause of action which arose wholly outside the Indian
territory.86 As already stated, the court has jurisdiction to entertain a suit against a foreigner
resident within the limits of its jurisdiction in respect of a cause of act ion that has accrued
abroad.87 A foreigner is not exempt from the jurisdiction of Indian courts.88 If a foreigner
resident, himself carries on business or personally works for gain, in India, it is clear that he is
amenable to the jurisdiction of Indian courts. But what if a foreigner does not reside, or
does not himself carry on business or personally work for gain, in India, and:
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(i) the cause of action arises within the local limits of an Indian court; or
(ii) the cause of act ion arises outside India but the foreigner carries on business through
his agent within the local limits of an Indian court?

As to case (a), it is settled that a non-resident foreigner, who is a subject of a foreign state
such as a protected native state before Independence may be sued in the court of India, if
the cause of action arises within the jurisdiction of such court.89

Thus, if A, a subject of the native state of Sangli and residing at Sangli, borrows money
from B at Belgaum, B may sue A for recovery of money in the Belgaum court, for the
cause of action arises at Belgaum. The rule of private international law that a court has no
jurisdiction to entertain a suit against a foreigner who does not reside within its jurisdiction
and who has not submitted to it is subject to the rules of municipal law. A suit is
accordingly, maintainable in an Indian court within its jurisdiction.90 A decree passed in
such a suit, however, would not be enforceable in foreign court and where the decree is
against several defendants, some of whom are residing within the jurisdiction and some
others not, while it will be executable against all within the state; outside the state it will not
be executable against non-resident foreigners.91

As to case (b), the High Court of Bombay in one case held that where no part of the case
of act ion arises in Bombay, it had no jurisdiction to entertain a suit against a foreigner
who did not reside in Bombay, but carried on business through an agent in Bombay;92 but
this decision was disapproved in the later case of Girdhar v. Kassiga.93 The point arise in a
later case before the Privy Council, but it was left open.94 The Madras High Court has held
that the expression carrying on business in cl 12 of the Letters Patent included carrying on
business through an agent in British India by foreigners living outside jurisdiction.95 It has
been held that a suit for specific performance of an agreement to convey immovable
property situated within India could be instituted in the court within whose jurisdiction the
properties are situated, wherever the agreement might have been entered into and even
when the defendant is a non-resident foreigner.96 The question whether the defendant
resides within jurisdiction is relevant only when he is a foreigner. A decree passed by a
court against its own citizen who owns a permanent dwelling house at the place is not
open to attack on the ground that at the time of the action, he was not act ually residing
there or submitted to its jurisdiction.97 The fortuitous presence of the ship in the Bombay
harbour will not entitle the owner to file a Limitation Action in the absence of any claim
being made or apprehended against him or the vessel in that court. Therefore, bringing the
ship to the Bombay Port, in order to confer jurisdiction on Bombay High Court, has the
character of forum shopping, rather than anything else. The presence of a foreign
defendant, who appeared under protest to contest jurisdiction, cannot be considered as
conferring jurisdiction on the court to take act ion. Unless a foreign defendant either
resides within jurisdiction or voluntarily appears or has contracted to submit to the
jurisdiction of the court, it is not possible to hold that the court will have the jurisdiction
against the foreign defendant.98 Where the cargo was discharged by the vessel at the
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Madras port instead of Calcutta port where it was agreed to be discharged, Madras High
Court would have admiralty jurisdiction to decide the suit filed by the owner of goods for
damages for breach of court act when the suit was filed at the time when the ship was
berthed in the Port of Madras. It cannot be said in such a case that the Madras High Court
would have no such jurisdiction as the agreement between parties conferred jurisdiction on
the courts in the country where the carrier has his principal place of business namely that
of Canada in the instant case. It was more so when there was no ouster of jurisdiction in
respect of other courts.99

A contract was entered into by the plaintiff with a foreign company incorporated in United
States of America for the supply of brass dross of guaranteed 90 per cent of metallic
recovery. The foreign company had been carrying on its business in India through agents.
The offer for supply was given and contract signed by Indian agency on behalf of foreign
company at New Delhi. It was held that a suit against the foreign company can be filed at
New Delhi.100

27. Agreement as to the choice of Court. In regard to jurisdiction of court under the
Code of Civil Procedure over a subject-matter one or more courts may have jurisdiction to
deal with it having regard to the location of immovable property, place of residence or
work of a defendant or place where cause of action has arisen. Where only one court has
jurisdiction it is said to have exclusive jurisdiction; where more courts than one have
jurisdiction over a subject-matter, they are called courts of available or natural jurisdiction.
The growing global commercial act ivities gave rise to the practice of the parties to a
contract agreeing beforehand to approach for resolution of their disputes thereunder, to
any of the available courts of natural jurisdiction and thereby create an exclusive or non-
exclusive jurisdiction in one of the available forum or to have the disputes resolved by a
foreign court of their choice as a neutral forum according to the law applicable to that
court.101

By a long series of decisions it has been held that (where two courts or more have under
the Code of Civil Procedure jurisdiction to try a suit or proceeding, an agreement between the
parties that the dispute between them shall be tried in any one of such courts is not
contrary to public policy and in no way contravenes s 28 of the Indian Contract Act, 1872.)102
Therefore, if on the facts of a given case more than one court has jurisdiction, parties by
their consent may limit the jurisdiction to one of the two courts. But by an agreement
parties cannot confer jurisdiction to a court which otherwise does not have jurisdiction to
deal with a matter.103

Normally, under cll (a) to (c) of s 20 of the Code of Civil Procedure, plaintiff had a choice of
forum and cannot be compelled to go to the place of residence or business of the
defendant and can file a suit at a place where the cause of action arises. If the defendant
desires to be protected from being dragged into a litigation at some place merely because
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the cause of act ion arises there it can save itself from such a situation by an exclusion
clause.

In view of the non-obstante clause in s 46 of the Insurance Act 1938, a clause in an insurance
policy providing for a choice of forum does not bind the policy holder.104

Where two or more courts have jurisdiction to try a suit or a proceeding, an agreement
between the parties that the dispute between them shall be tried in one of such courts is
valid and is not contrary to the public policy.105 Such agreement does not contravene s 28
of the Contract Act.106 Thus, where the cause of action has arisen wholly or in part within
the local limits of the jurisdiction of another court, the parties can agree that the disputes
between them shall be decided by one of such courts.107 Accordingly, the words Subject to
Rajkot jurisdiction only in a contract between the parties have the effect of excluding the
jurisdiction of courts other than those at Rajkot having jurisdiction otherwise to try the
suit.108 In such a case, the plaintiff by such agreement waives his right to file the suit in a
particular court and therefore cannot object to an order by that other court returning the
plaint for presentation to the court agreed to by him and defendant.109

According to s 19 of the Code, in case of suits for compensation for wrong done to the
person or to movable property, if the wrong was done within the local limits of the
jurisdiction of one Court and the defendant resides or carries on business or personally
works for gain, within the local limits of jurisdiction of another Court, the suit may be
instituted at the option of the plaintiff at either of the said courts. But filing of suit in a
wrong court is no ground for rejecting the plaint under O 7, r 11 of the Code. Rather it
should be returned for presentation before proper Court.110

Where in a dispute arising out of contract, the contract was made at Calcutta, the
defendants principal office was situated at Calcutta. The clause in the contract required all
communications to be addressed to the Managing Director at Calcutta, implementation
and execution of contract was monitored from Calcutta and even the arbitration
proceedings were required to be taken under the jurisdiction of Calcutta High Court, it was
held by the Bombay High Court that were absence of words like only, alone or exclusively
in clause in contract would not mean that exclusive jurisdiction was not conferred on
Calcutta High Court.111

On the point of ouster of jurisdiction by terms of contract, the Supreme Court has
explained this aspect in ABC Laminart Pvt. Ltd. v. A.P. Agencies.112 It has been stated in para
20 of the decision as follows:

When the Court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or clause properly. Often
the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the courts
of that place in the matter of any dispute on or arising out of the contract. It would not, however, ipso facto take away jurisdiction of other courts.
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In para 21, the Supreme Court further went on to observe as follows:

. .. Where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and
specific accepted nations of contract would bind the parties and unless the absence of an ad idem can be shown, the other courts should avoid exercising
jurisdiction. As regards construction of the ouster clause when words like alone, only, exclusive and the like have been used there may be no difficulty. Even
without such words in appropriate cases the maxim expressio unius est exclusio alteriusexpression of one is the exclusion of anothermay be applied. What is an
appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified
in a contract an intention to exclude all other from its operation may in such cases be inferred. It has therefore to be properly construed.

Similar issue came up before the Supreme Court in another case,113 wherein it was
observed as follows:

Clause 17 saysany legal proceedings arising out of the order shall be subject to the jurisdiction of the Courts in Mumbai. The clause is no doubt not qualified by
the words like alone, only or exclusively. Therefore, what is to be seen is whether in the facts and circumstances of the present case, it can be inferred that the
jurisdiction of all other Courts except Courts in Mumbai is excluded. Having regard to the fact that the order was placed by the defendant at Bombay; the said
order was accepted by the branch office of the plaintiff at Bombay; the advance payment was made by the defendant at Bombay; and as per the plaintiffs case the
final payment was to be made at Bombay; there was a clear intention to confine the jurisdiction of the Courts in Bombay to the exclusion of all other Courts.
The Court of Additional District Judge, Delhi had, therefore, no territorial jurisdiction to try the suit.

In a case where the parties agreed in MOU that all matters between them must be settled
before Court of Hyderabad, it was held that though words like alone, only and exclusively
and the like have not been used, mentioning of certain jurisdiction shows intention of
parties to exclude all other courts.114

Plaintiff, who was proprietor of a theatre at Kallakurichi, had sued the defendant, a film
distributor, on the basis of a contract for the exhibition of movie, part of cause of act ion
had taken place at Kallakurichi, but no cause of action took place at Chennai. The Madras
High Court held that Court at Kallakurichi has jurisdiction to deal with the matter even
though the contract conferred jurisdiction on Court at Chennai.115

Where two or more courts have jurisdiction, the parties can, in agreement, choose one of
those courts and give it exclusive jurisdiction.116 Where there are two or more competent
courts which can entertain a suit, the parties to the concerned transaction can contract to
vest jurisdiction in one of such courts to try their disputes. If such a contract is clear,
unambiguous and explicit, it is not hit by s 28 of the Indian Contract Act, 1872 either.117
Parties can choose one of the two competent courts which deal with the subject matter of
litigation.118 Unless oppressive, such an agreement should be enforced by the court.119

Where a part of the cause of act ion arises within the jurisdiction of two courts, the parties
can agree that any dispute arising between them shall be tried by one of those courts only.
It is also an accepted principle, that, though the choice of forum made by the parties by
consent is to be respected, the enforcement of the choice by the courts cannot be ruled as
imperative in all circumstances. It depends on the facts of each case and taking them into
consideration, it is open to the court to hold that despite such an agreement between the
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parties, since the clause becomes oppressive for the plaintiff, it may not enforce the clause
in a particular case. Thus, where no independent material has been produced to show that
there was an agreement between the parties to oust the jurisdiction of the competent court,
the view of the lower court that its jurisdiction stands ousted merely because of the clause
printed on the reverse of the consignment note, would be unsustainable.120

So long as the parties to a contract do not oust the jurisdiction of all the courts which
would otherwise have jurisdiction to decide the cause of action under the law it cannot be
said that the parties have by their contract ousted the jurisdiction of the court. When there
may be two or more competent courts which can entertain a suit consequent upon a part
of the cause of act ion having arisen there within, if the parties to the contract agreed to
vest jurisdiction in one such court to try the dispute which might arise as between
themselves, the agreement would be valid. This cannot be understood as parties
contracting against the statute.

When the court has to decide the question of jurisdiction pursuant to an ouster clause, it is
necessary to construe the ousting expression or clause properly to see whether there is
ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific,
accepted notions of contract would bind the parties and unless the absence of ad idem can
be shown, the other courts should avoid exercising jurisdiction. (However in, construction
of the ouster clauses when words like alone only exclusive and the like are used, there may
be no difficulty. In such cases, the maxim expressio unius est exclusio alterius expression of one
is the exclusion of another, may be applied.)

Often the stipulation is that the contract shall be deemed to have been made at a particular
place. This would provide connecting factor for jurisdiction to the courts of that place in
the matter of any dispute on or arising out of that contract. It would not, however, ipso facto
take away jurisdiction of other courts.121

It is open to the parties to choose one of the forums for filing the suit by agreement and
exclude the other forums, but it is not competent to the parties to invest jurisdiction on a
court when it has no jurisdiction as consent cannot confer jurisdiction.122

Choice of forum by the parties cannot be allowed by the agreement, where only one court
has jurisdiction.123 Parties chose to restrict dispute to a particular court. Such option does
not oust jurisdiction of the court which is competent. Revisional court cannot interfere in
such a case. Such interference is possible only if the revisional court comes to the
conclusion that the conclusion reached by the trial court is illegal, perverse, arbitrary or
mala fide.124

In a Calcutta case, a contract was entered into between the parties, at a place where the
corporation had its subordinate office. No stipulation conferring exclusive jurisdiction on a
particular court existed. Cause of action arose in relation to a transaction entered into at
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the subordinate office. It was held, that the civil court at the place where the subordinate
office was situated, was not debarred from entertaining the suit.125

28. Agreement as to Choice of foreign Court. The parties to a contract in international

trade or commerce may agree in advance on the forum which is to have jurisdiction to
determine disputes which may arise between them and the chosen court may be a court in
the country of one or both the parties, or it may be a natural forum. If this is the settled
position then, even if it is found that the applicants 1 and 3 have signed the agreements in
France and not in England, even then the parties will be governed by the English laws in
terms of Arts. 15.1 and 8.1 of the agreements which they have undisputedly executed and
therefore the same will be binding on them. 126

The plaintiff purchased some materials from a foreign company situated in West Germany.
The bill of lading was executed in Germany. Consignment was shipped from Germany,
under a marine insurance policy. The insurance company was also situated in Germany.
The contract of insurance covered the risk of transit upto place S, where the plaintiff
resided. The consignment was short of 799 kg. The plaintiff filed a suit in the court at K,
having jurisdiction over place S. It was contended that as per Art. 12 the court at K, has
jurisdiction over place S. It was further contended that as per Art. 12 of insurance
conditions read with Art. 48 of VVG (stated to be the German law relating to insurance
matters), the suit could be filed only in Germany. It was held that the court at K had
jurisdiction to try the suit. The ends of justice would be better served by a trial in the court
at K, rather than in Germany.127

In a particular case by cl 12 of the agreement, the parties agreed to submit to the non-
exclusive jurisdiction of the English court (without reference to English conflict of law
rules). In a case of this type where the parties have agreed on a neutral forum, the question
of granting injunction would arise only when the proceedings are brought in a foreign
court in breach of the contract, i.e., in a court other than the court which is chosen by the
parties. Where the agreement confers non-exclusive jurisdiction on the designated court
and where the proceedings are brought in that court, it is not permissible to contend that
the institution of the proceedings is breach of contract and any application for stay of such
proceedings on the ground that there was another forum which was more appropriate will
have to be made to that court. The remedy of the plaintiffs is to raise objection before the
court in England where the defendant has instituted its claim.128

An agreement providing that suits relating to disputes thereunder should be filed in a

foreign court is not void but it cannot deprive courts in India of their jurisdiction to try
them, and a suit filed in India in contravention of the agreement is not incompetent.129 The
court in India may adjudicate such a suit if it considers that the ends of justice will be
better served by the trial of suit in this country.130

An agreement totally barring the jurisdiction of Indian courts is void by reason of the
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prohibition in s 28 of the Indian Contract Act. An agreement which restricts a party absolutely
from enforcing rights under a contract in the usual legal proceedings in ordinary tribunals,
is void. It is no answer that the aggrieved party could take proceedings in England.131

Indian courts certainly have jurisdiction to restrain the defendant from proceeding in the
suit which he has filed in another country though generally speaking when the parties have
agreed to abide by a particular forum, the court must hold the parties to their bargain.
However, this is not an absolute rule. How discretion of court has to be exercised in a
given case would depend upon various circumstances. But to grant stay of the suit is still a
matter within the discretion of the court.132 Any bilateral agreement in which exercise of
option of jurisdiction of courts in a particular country can be effectively made is not
opposed to public policy and will not be hit under s s 23 or 28 of the Indian Contract Act. In
fact, what was opposed to public policy was indicated as an option to exercise the
jurisdiction of a particular court, which originally lacks jurisdiction for the parties
concerned, that resort to a private tribunal. In this case, the option was to exclude Indian
courts. The parties lived in Connecticut, United States of America. They had jurisdiction
there and it was not the case that the petitioner and the respondent herein were going to
permanently reside in United States of America. Hence, there is nothing wrong in the
contract to have chosen except the courts in India, thereby including the courts in United
States of America.133

29. Agreement as to choice of courtconstruction of ouster clause. (As regards

constructions of the ouster clause when words like alone, only, exclusive and the like have
been used, there may be no difficulty. Even without such words in appropriate cases, the
maxim expressio unius est exclusio alterius (expression of one is the exclusion of another), may
be applied.)

A clause in the agreement provided that litigation under the contract would be taken up in
a court at Kerala. It did not indicate that only the Kerala Court, would have jurisdiction. In
the suit filed in the Calcutta High Court, the only dispute was whether the manufacturer in
Calcutta, who had undertaken to supply gunny bags to the purchaser in Kerala, was
entitled to the benefit of force majeure clause on the ground of strike. It was held, that it
could not be said that the Calcutta High Court would not have jurisdiction.134

In a case of filing of a petition for arbitration, the owner of a property situated in Delhi
had entered into an agreement with a developer to develop the property. The agreement
was entered into at Faridabad where the owner resided. By the said agreement the parties
agreed to refer all disputes to Court at Faridabad. The Supreme Court held that it was not
a suit for land and as such it will come under Section 20 of the Code.135 It was observed by
the Court as follows:

One cannot look at para 16 alone in isolation. On the other hand, with open eyes, the parties had entered into the contract, they had agreed to refer all disputes
to an arbitrator at Faridabad and they had agreed that the Faridabad Court alone shall have jurisdiction. In a matter of this kind, it cannot be said that the
claim is similar to a suit for land. A housing complex has to be constructed at the site when dispute arises, it will not be confined only to immovable property.
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Such disputes also require accounts to be maintained. The disputes also involve rendition of accounts. In the circumstances, in our view, Section 20 CPC alone is
attracted.136

An application under s 9 of the Arbitration and Conciliation Act, 1996 in a Court (including
High Court) as mentioned in s 2 (1)(e) of the Act, when it would have jurisdiction to
decide the question forming the subject-matter if the same had been subject-matter of a
suit. But, where in a case, the cause of act ion arose at Mumbai and the arbitration clause
of the agreement between parties also provided that only Courts at Mumbai shall have
jurisdiction, the application under s 9 cannot be entertained by Delhi High Court.137

The order form had a clause that any legal proceedings in respect of any matters or claims
or dispute on any account shall be instituted by the purchaser in Delhi High Court only.
Bill issued also contained the words subject to Delhi jurisdiction. Suit to recover price by
the seller was filed. It was held that the jurisdiction of the court at Jaipur (the place where
contract was entered) was not ousted by the above condition in order form and bill.
Condition in order form applied only to legal proceedings instituted by plaintiff. As regards
the condition in bill, there was no word only, used after the words subject to Delhi
jurisdiction in the bill. The mere use of words subject to Delhi jurisdiction cannot mean
that only Delhi courts have jurisdiction.138

The High Court of Andhra Pradesh has held that if the jurisdiction of a civil court under s
20 of the Code of Civil Procedure is to be excluded, that must be done by clear and specific
language in the agreement. A condition in a purchase order, subject to jurisdiction of
Bangalore court, cannot be taken as excluding jurisdiction. The clause or condition did not
use the word only or alone.139

The intention of the parties can be culled out from use of the expressions only, exclusive,
and the like with reference to a particular court. But the intention to exclude a courts
jurisdiction should be reflected in clear, unambiguous, explicit and specific terms. In such
case only the accepted notions of contract would bind the parties.140

Where parties to the agreement have unambiguously, clearly and explicitly arrived at a
consensus that any dispute under the respective agreement shall be tried only before the
court having a definite jurisdiction mentioned in the said agreement, then it would operate
as bar to the filing of suit in a court other than specified in the agreement. Merely because
the clause relating to the jurisdiction of the court does not contain the exclusionary words
like exclusive alone, only and the like, the jurisdiction of the court other than specified in
the agreement cannot be invoked.141

30. Agreement as to choice of court-ignoring of Ouster Clause. The court would

ordinarily have regard to the choice of the parties but where, however, the court whose
jurisdiction has been ousted is satisfied that the stipulation would operate harshly, is
oppressive in character, inequitable or unfair, for the ends of justice, it can relieve the party
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of the bargaining. The ouster clause can be ignored, in a case where the plaintiff having
filed the suit for permanent injunction, at a place where seizure was attempted and as such
cause of action arose for restraining the respondent from interfering with his possession of
the truck in question, as it would have definitely caused him hardship, if he was to run to
court in another state for such relief.142

An agreement to refer a dispute to a particular court may be ignored if the facts demand
that the other court (excluded by the agreement) should entertain the suit in the interest of
justice.143

Agreement was made regarding the forum of suing where the plaintiffs goods were
consigned by agent through the defendants carrier, but not delivered. Suits for
compensation filed in Nowgong were met with plea of defendant that agreement under
contract was to file suits only in Malda. It was held that the agreement regarding the forum
of suing contained in the consignment note, could not be enforced in the light of the
principles relating to the enforceability of such an agreement. The plaintiff as principal was,
no doubt, bound by what was agreed by his agent. It was, however, doubtful if the plaintiff
had knowledge about the said agreement, regarding the forum of suing. The plaintiff was
an inhabitant of Hojai, which was near Nowgong and far removed for Malda. What was
more important was, that the defendant carrier had also its branch office at Hojai. All these
showed that the trial at Nowgong court would be perfectly just, with no real inconvenience
to any side.144

In a case where the Calcutta High Court entertained the plaintiffs plea and granted an
order of injunction restraining the defendant from proceeding with the arbitration
proceeding ignoring the jurisdictional clause in the agreement between parties, the
Supreme Court held that when contract between parties contained a clause that dispute
under the contract shall be decided by Court at Bombay, the High Court have no
jurisdiction to try the suit and grant injunction staying the arbitration proceedings at
Bombay. It was observed that before granting injunction, the High Court should has
recorded a clear finding that it has territorial jurisdiction instead of a general remark that
the plaintiff has an arguable case.145

The contract between the parties vested jurisdiction in courts at Bombay. If the district
munsif, Coimbatore entertains and disposes off the suit, it will only be an irregular exercise
of jurisdiction and the resultant decree will not be a nullity. In such a situation, when the
matter is brought before High Court under s 115, it has a discretion not to interfere with
the order complained of, unless the order, if allowed to stand would occasion failure of
justice and cause irreparable injury to the party against whom it was made.146

31. Agreement as to choice of Courtjurisdiction cannot be conferred upon a Court

which lacks it. Before the parties can agree to vest the jurisdiction in a particular court,
two or more courts including the one in whom the jurisdiction is agreed to be vested must
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have the jurisdiction under s 20, Code of Civil Procedure. The parties cannot agree to vest
jurisdiction in a court which does not have the jurisdiction. Such an agreement would be
against the statute and, thus, would be hit by s s 23 and 28 of the Indian Contract Act.147

Neither counsel can waive the jurisdiction, nor consent to confer jurisdiction on courts,
which do not otherwise have the jurisdiction.148

But, it is not open to the parties to confer by their agreement jurisdiction on a court which
does not possess it under the Code of Civil Procedure and accordingly where the parties agree
that a suit should be instituted at place A where there is only a district munsifs court, that
court has no jurisdiction by virtue of the agreement of the parties to entertain a suit
beyond its pecuniary jurisdiction.149

Suit was instituted at Karur for the recovery of damages, on the ground that consignment
of goods entrusted at Karur for the recovery of damages for being carried to Calcutta and
for being delivered to consignee there, was not so delivered. Contract conferred
jurisdiction on Bangalore courts. It was held that the court in Bangalore did not have any
jurisdiction. By mere agreement between the parties, such jurisdiction cannot be conferred
upon the courts in Bangalore. It is not open to the parties by agreement to invest the court
with jurisdiction, which it did not otherwise have, having regard to the provisions of ss 20
(a) and (c), read with the Explanation. Hence, it was not open to the petitioner to object to
the jurisdiction of the court at Karur.150

It is a wellsettled principle that by agreement the parties cannot confer jurisdiction, where
none exists on a court to which the Code of Civil Procedure applies, but this principle does not
apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a
foreign court, indeed in such cases the English courts do permit invoking their jurisdiction.
Thus, it is clear that the parties to a contract may agree to have their disputes resolved by a
foreign court termed as a neutral court or court of choice creating exclusive or non-
exclusive jurisdiction in it.151

In a suit for recovery, the contract between parties was for release and exhibition of a
movie. Plaintiff, the proprietor of a theatre was seeking recovery of dues from the
defendant distributor. The theatre was situated at place K, so part of cause of action had
arisen at place K. No cause of action took place at place C. It was held that the court at
place K has got jurisdiction to deal with the matter even though contract conferred
jurisdiction on court at place C.152

32. Agreement as to choice of Courteffect on third party. Forum selection clauses are
binding on the parties but cannot bind a third party, unless it is shown that he had been
made aware of its implications.153

The mere fact that a person not a party to such an agreement is added to as defendant
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makes no difference, provided the courts referred to under the agreement has jurisdiction
against such a person.154 Since such an agreement does not tie the hands of the court, the
court in an appropriate case may refuse to drive a party to the court agreed to under the
agreement.155

33. Agreement as to choice of Courtmandatory in nature. Where an agreement

confers exclusive jurisdiction on the court at Gorakhpur and the court would be one of the
competent courts under s 20, the agreement is valid and Calcutta High Court has no
jurisdiction.156

Such an agreement does not oust the jurisdiction of the court having jurisdiction.
Nevertheless, court would ordinarily compel the parties to abide by such an agreement.157

If through clause of the agreement, the parties have bound themselves that any matter
arising between them under the said contract, it is the courts in Calcutta alone which will
have jurisdiction. Once parties bound themselves as such it is not open for them to choose
a different jurisdiction as in the present case by filing the suit at Bhubaneswar. Such a suit
would be in violation of the said agreement. For the said reasons the suit filed in the civil
court at Bhubaneswar would not be valid in view of the said agreement.158

34. Choice of Courtinvoice, insurance policy, lottery, purchase order, etc.

containing printed clause. A mere allegation by a plaintiff for the purpose of creating a
jurisdiction should not be enforced for conferring jurisdiction. More so, a fact, which does
not have any direct relevance with the lis but is made to occur only to defeat statutory
provisions of s 20 (c) of the Code of Civil Procedure in order to deprive the court which must
have territorial jurisdiction over the subject-matter of the suit, should not be accepted for
the reason that the act has knowingly or purposely been performed to harass the defendant
and deprive the court, which has territorial jurisdiction over the subject-matter to try the
suit. Thus, if merely by making an endorsement on the negotiable instrument, it is
permitted to give rise to jurisdiction of a particular court, it would definitely defeat the
purpose of s 20 (c) of the Code of Civil Procedure.159

It is settled law that the jurisdiction of the court where the cause of act ion, wholly or
partly arises, cannot be taken away by the choice of the party to the contract merely on the
basis of the condition printed on the bills or the bilty as the case may be. The parties
cannot create a jurisdiction in the court in whose territorial jurisdiction no cause of action
has at all arisen.160

Purchaser of lottery ticket is not bound by the clause of forum selection printed in small
print on the reverse side of the lottery ticket. There is a distinction between the bilateral
contract and unilateral stipulation.161

The contract having been concluded in Delhi, payments being received in Delhi, material
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part of cause of act ion had arisen in Delhi, the courts of Delhi would have jurisdiction,
even if the term of invoice conferring exclusive jurisdiction to Goa is not considered. The
plea and objection of defendant of lack of jurisdiction is devoid of merit.162

In view of the non-obstante clause in s 46 of the Insurance Act, a clause in an insurance policy
providing for a choice of forum does not bind the policy-holder.163

Where two or more courts have got concurrent jurisdiction, the parties can agree that any
claim arising between them shall be instituted in one of the courts which has got
jurisdiction; but, the parties cannot confer jurisdiction on a court which has got none in
law. In this case, the cause of act ion did not arise wholly or in part in Delhi and the head
office of the company was situated in Bombay. The Delhi court had no jurisdiction.
Hence, the condition in the policy was not binding on the parties. Since the cause of action
arose at A, the court at A had jurisdiction to entertain the claim.164

Where the consignment note contained printed words subject to Bombay jurisdiction
alone and, apart from existence of these printed notes, the carrier had no case that there
was meeting of minds between the consignor and the carrier, nor was there specific
agreement in that behalf and the consignment note was signed only by employer of the
carrier and was handed over to the consignor, but there was nothing to indicate that there
was an agreement between the parties conferring exclusive jurisdiction on the Bombay
court, it was held that the printed words, by themselves and without anything more, would
not be sufficient to constitute an agreement to oust the jurisdiction of all courts other than
the court specified.165

For ouster of exclusion of jurisdiction of court having concurrent jurisdiction, the language
in the agreement must be unambiguous, clear and specific. From condition in the purchase
order subject to jurisdiction to Bangalore courts, ouster of jurisdiction of other courts
cannot be implied, position is different, if the condition is subject to jurisdiction of
Bangalore courts only or alone. Purchase order was with the condition subject to
jurisdiction of Bangalore courts. Party from Andhra Pradesh supplied goods in response to
purchase order. The sale order contained the condition subject to Andhra Pradesh state
jurisdiction. It could not be said that there was any consensus or agreement between the
parties on the question of jurisdiction of courts; courts at both places had jurisdiction. The
plaintiff (ie, the party supplying goods) had, in the absence of exclusion of jurisdiction,
choice in the matter of filing suit in a particular court.166

Where, the machinery was purchased and the whole transaction from the submission of
quotation, accepting order and receiving payment was handled by the branch office of the
manufacturer at Delhimere mention of subject to Bombay jurisdiction in the quotation of
the manufacturer will not oust jurisdiction of Delhi court.167

35. Notice Under Section 80. A notice under s 80 presupposes the existence of a cause
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of act ion complete and enforceable. It is itself not part of the cause of action and a court
therefore, would have no jurisdiction to entertain a suit solely on the basis of the issue of a
notice under that section.168

4 . Bhamboo v. Ram Narain, (1928) 9 Lah 455 : AIR 1928 Lah 297; Venkatachallam v. Surya Narayan Murti, AIR 1941 Mad 129 [LNIND
1939 MAD 213]: (1940) 2 MLJ 520 [LNIND 1939 MAD 213].
5 . M.V. Ganesh Prasad v. M.L. Vasndevamurthy, AIR 2003 Kant 39 [LNIND 2002 KANT 249].
6 . Germanthangi v. F. Rokunga, AIR 2004 Gan 42.
7 . Mohini Mohan v. Kunja Behari, (1943) 47 CWN 720 : 77 CLJ 309; Dakor Temple Committee v. Shankerlal, AIR 1944 Bom 300: 46 BLR 653;
Nidhi Lal v. Mazhar, (1885) ILR 7 All 230; Balgonda Appanna v. Ramgonda, (1969) 71 Bom LR 582; Germanthangi v. F. Rokunga, AIR 2004
Gau 42 [LNIND 2003 GAU 283].
8 . Ratan Sen v. Bhau, (1944) ILR All 20 : AIR 1944 All 1; Marta Mondal v. Hari, (1890) ILR 17 Cal 155; Krishnasami v. Kanakasabai, (1891)
ILR 14 Mad 183; Augustine v. Medly Cott., (1892) ILR 15 Mad 241; Goura Chandra v. Vikrama Deo, 23 Mad 367; Ramamirtham v. Rama Film
Service, (1951) 2 MLJ 121 : (1951) ILR Mad 93 (FB); Venkateswarlu v. Satyanarayana, AIR 1957 AP 49 [LNIND 1955 AP 206]: 1956 And
WR 117 (FB).
9 . Ramasubbarayalu v. Rangammal, (1962) ILR Mad 1001 : (1962) 2 Mad LJ 318 : AIR 1962 Mad 450 [LNIND 1962 MAD 301]: 75 LW 452
(FB).
10 . Nidhi Lal v. Mazhar, (1885) ILR 7 All 230.
11 . Sri Jeyaram Educational Trust v. A.G. Syed Mohideen, AIR 2010 SC 671 [LNIND 2010 SC 95]: (2010) 2 SCC 513 [LNIND 2010 SC 95].
12 . Ibid, para 8.
13 . See Cl 12 of the Letters Patent, Appendix II.
14 . Presidency Small Cause Courts Act 1882, s 18.
15 . Ibid, s 19.
16 . Ramavatharam v. Rama Films Service supra; Bank of Chettinad v. SPS KRV Firm, AIR 1935 Rang 517; Manindra v. Lal Mohan (1929) ILR 56
Cal 940.
17 . Monika Das v. Promode Kumar, AIR 1960 Cal 577 [LNIND 1959 CAL 205].
18 . Natvarlal Khodidas Parmar v. District Panchayat, Jamnagar, AIR 1990 Guj 142 [LNIND 1989 GUJ 175].
19 . Tara Devi v. Sri Thakur Radha Krishna Maharaj, (1987) 4 SCC 69.
20 . Nandita Bose v. Ratanlal Nahata, (1987) 3 SCC 705 [LNIND 1987 SC 509].
21 . Germanthangi v. F. Rokunga, AIR 2004 Gau 42 [LNIND 2003 GAU 283].
22 . Ibid.
23 . Nidhi Lal v. Mazhar Hisain, (1885) ILR 7 All 230; Matra Mondal v. Hari, (1890) ILR 17 Cal 155, both cases of overvaluation; but decided
without reference to the Suits Valuation Act 1887;Bishambar Dayal v. Girdharlal, AIR 1953 All 158; Krishnamurthi v. Ramamurthi, AIR 1951
AP 654; Vidyamba v. Venkayamma, AIR 1958 AP 218 [LNIND 1957 AP 67]; Arya Pratinidhi Sabha v. Devaraj, AIR 1963 Punj 208.
24 . Bhuvaneswari v. Raghubansh, AIR 1954 Pat 34; Bipan Kumar v. Sham Sunder, AIR 1977 HP 90 [LNIND 1977 HP 16].
25 . J.K. Sharma v. Ram Chandra Setty, AIR 1965 Mys 248.
26 . Paul Vaz v. Elizabeth, AIR 1967 Bom 389 [LNIND 1966 BOM 2].
27 . Kurella Ratnam v. Mokhamatla Bhadriah, AIR 1969 AP 236 [LNIND 1968 AP 84].
28 . Matra Mondal v. Hari, (1890) ILR 17 Cal 155, 160; a case of over-valuation, but decided without reference to the Suits Valuation Act
1887.
29 . Kesarimal v. Bansilal, AIR 1952 MB 196.
30 . (1957) ILR Raj 241; but see Sri Bhagwan v. Omkarmal, AIR 1952 Bom 365 [LNIND 1951 BOM 179]; Fazle Hussein v. Yusuf Ali, AIR
1955 Bom 55 [LNIND 1950 BOM 47]. It is submitted that these decisions require reconsideration.
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31 . Lakshman v. Babaji, (1883) ILR 8 Bom 31; Mahabir Singh v. Behari Lal, (1891) ILR 13 All 320; Madho Das v. Ramji, (1894) ILR 16 All 286;
Ishwarappa v. Dhanji, (1932) ILR 56 Bom 23 : AIR 1932 Bom 337; Ishwar Din v. Md Ishaq, AIR 1952 All 496 [LNIND 1952 ALL 22];
Debi Sahai v. Ganga Sahai, AIR 1954 All 749 [LNIND 1954 ALL 72]; Radha Charan Das v. Th Mohni Behariji, AIR 1975 All 368.
32 . Krishnaji v. Motilal, (1929) 31 Bom LR 476 : AIR 1929 Bom 337; Chidambarum v. Muthia, (1937) Rang 214 : AIR 1937 Rang 320.
33 . U Po Mya v. Father Rionpreyt, (1939) Rang 134 : AIR 1939 Rang 115.
34 . Mahadeo v. Hanumanmal, AIR 1969 Raj 304.
35 . Chandu v. Kombi, (1886) ILR 9 Mad 208.
36 . Syam Nandan v. Danpati Kauer, AIR 1960 Pat 244: (1960) Pat LR 4.
37 . Boidya Nath v. Makhan Lal, (1890) ILR 17 Cal 680, 683; Dayaram v. Gordhandas, (1906) ILR 31 Bom 73, 78; Raj Krishna v. Bipin, (1912)
ILR 40 Cal 245, 249; Balgonda Appanna v. Ramgonda, (1969) 71 Bom LR 582.
38 . Abdul Hamid Shamsi v. Abdul Nazid, (1988) 2 SCC 575 [LNIND 1988 SC 226].
39 . Nandita Bose v. Ratan Lal Nahata, (1987) 3 SCC 705 [LNIND 1987 SC 509].
40 . Mahesh Gupta v. Ranjit Singh, AIR 2010 (NOC) 385(Del).
41 . Appa Rao v. Sobhanadri, (1901) ILR 24 Mad 158; Hamidunnissa v. Gopal, (1897) ILR 24 Cal 661, 667.
42 . Koti Pujari v. Manjaya, (1898) 21 ILR Mad 271.
43 . Devendra Singh v. Bhola Ram, AIR 1991 All 157 [LNIND 1990 ALL 465].
44 . Sheo Deni v. Tulsi, (1893) ILR 15 All 378, 380; Raman v. Secretary of State, (1901) ILR 24 Mad 427; Jose Antonio v. Francisco, (1910) ILR 35
Bom 24.
45 . Hamidunnissa v. Gopal, (1897) ILR 24 Cal 661; Krishnasami v. Kanakasabai, (1891) ILR 14 Mad 183.
46 . Rajlakshmi v. Katyayani, (1911) ILR 38 Cal 639.
47 . Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 [LNIND 1954 SC 67]: [1955] 1 SCR 117 [LNIND 1954 SC 67] : 1954 SCJ 514
[LNIND 1954 SC 67].
48 . AIR 1949 Pat 278: (1948) ILR 27 Pat 1091(FB).
49 . Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 [LNIND 1954 SC 67]; Kelu Achan v. Parvatghi, (1923) ILR 46 Mad 631 : (1923) 45 Mad
LJ 135 (FB); Moolchand v. Ramakrishna, (1933) ILR 55 All 315; Ram Deo Singh v. Raj Narain, AIR 1949 Pat 278: (1948) ILR 27 Pat 1091,
(FB).
50 . Govindan Nambiar v. Krishnan Nambiar, (1882) ILR 4 Mad 146.
51 . Savarimuthu v. Alagium, (1902) 12 Mad LJ 88; Ramu Aiyar v. Sankara Aiyar, (1908) ILR 31 Mad 89.
52 . Dayaram v. Gordandas, (1907) ILR 31 Bom 73.
53 . Zair Husain Khan v. Khurshed Jan, (1906) ILR 28 All 545; Jan Mahomed v. Mahar Bibi, (1907) 34 ILR Cal 352.
54 . Ramu Aiyar v. Sankara Aiyar, (1908) ILR 31 Mad 89.
55 . Ramkrishnama v. Bhagamma, (1890) ILR 13 Mad 56 (deed of gift); Ramu Aiyar v. Sankara Aiyar, (1908) ILR 31 Mad 89.
56 . Kanaran v. Komappan, (1891) ILR 14 Mad 169; Parathayi v. Sankumani, (1892) ILR 15 Mad 294.
57 . Krishna v. Raman, (1888) ILR 11 Mad 266.
58 . Keshava v. Lakshminarayana, (1883) ILR 6 Mad 192.
59 . Sheo Deni Rani v. Tulsi Ram, (1883) ILR 15 All 378.
60 . Leela v. EC Shinde, AIR 1970 Bom 109 [LNIND 1968 BOM 86].
61 . Indumati Ben v. Union of India, AIR 1969 Bom 423 [LNIND 1968 BOM 80]; Paras Ram v. Janki Bai, AIR 1961 All 395 [LNIND 1961
ALL 16]: (1961) ILR 1 All 932, (FB).
62 . Subs. for words the States by Act 2 of 1951.
63 . Bombay Civil Courts Act, 1869, s 32.
64 . IMR Metal lurgical Resources AG v. Hindustan Newsprint Ltd., AIR 2006 Cal 141 [LNIND 2006 CAL 31]: 2006 (2) ICC 263.
65 . Venkatachallam v. Suryanarayan Murty, AIR 1941 Mad 129 [LNIND 1939 MAD 213]: (1940) 2 Mad LJ 520; Krishna Swami v. Venugopala,
AIR 1942 Mad 614 [LNIND 1941 MAD 247]: (1942) ILR Mad 376; Nachiappa Chettiar v. Muthu Karuppan Chettiar, AIR 1946 Mad 398
[LNIND 1945 MAD 306]: (1946) ILR Mad 858; Krishnaji v. Gajanan, (1909) ILR 33 Bom 373.
66 . Urmila Bai v. Pastakia, AIR 1953 Bom 75 [LNIND 1951 BOM 26].
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67 . Shree Shanthi Homes Pvt. Ltd. v. CREF Finance Ltd., AIR 2002 Kant 252 [LNIND 2002 KANT 6].
68 . Jiban Ram v. Dasuram, AIR 1955 Assam 217: (1955) ILR Ass 275.
69 . Re District Judge, Puri, AIR 1971 Ori 89 [LNIND 1970 ORI 76] (FB).
70 . Shree Shanthi Homes Pvt. Ltd. v. CREF Finance Ltd., AIR 2002 Kant 252 [LNIND 2002 KANT 6].
71 . Ibid.
72 . Ranjana Nagpal v. Devi Ram, AIR 2002 HP 166 [LNIND 2001 HP 76].
73 . Sandeep Polymers Pvt. Ltd. v. Bajaj Auto Ltd., AIR 2007 SC 2656 [LNIND 2007 SC 884]: (2007) 7 SCC 148 [LNIND 2007 SC 884].
74 . Adcon Electronics Pvt. Ltd. v. Daulat, AIR 2001 SC 3712 [LNIND 2001 SC 2019]: (2001) 7 SCC 698 [LNIND 2001 SC 2019]; Deepak
Prakash v. Jayanta Kumar Bose, AIR 2003 Cal 153 [LNIND 2002 CAL 375].
75 . Adcon Electronics Pvt. Ltd. v. Daulat, AIR 2001 SC 3712 [LNIND 2001 SC 2019] at page 3714-15 : (2001) 7 SCC 698 [LNIND 2001 SC
2019] : 2001 (4) Mah LJ 469.
76 . Ibid, at page 3715 (of AIR); See also Inox AIR Products Ltd. v. Rathi Ispat Ltd., AIR 2007 Del 53 [LNIND 2006 DEL 1217]: 2007 (136)
DLT 101 [LNIND 2006 DEL 1217]; Mrs. Bhawna Seth v. DLF Universal Ltd., AIR 2007 Del 189 [LNIND 2007 DEL 898]: 2007 (138)
DLT 639 [LNIND 2007 DEL 898].
77 . Presidency Small Cause Courts Act 1882, S 19.
78 . Dalip Chand v. Union of India, 1995 Supp (1) SCC 233.
79 . Praking v. State Bank of Indore, AIR 1996 MP 28 [LNIND 1995 MP 105].
80 . Nachiappa Chettiar v. Muthu Karuppan Chettiar, AIR 1946 Mad 398 [LNIND 1945 MAD 306]; Punchanna v. Shib Chandar, (1887) ILR 14
Calwn 835 (a case under cl 12 of the Letters Patent); Harmindar Singh v. Balbir Singh, AIR 1957 Punj 214: (1957) ILR Punj 1032.
81 . Ram Kishan v. Ranshan, AIR 1923 Lah 551.
82 . Dewan Izzat Rai Nanda v. Dewan Iqbal Nath Nanda, AIR 1981 Del 262 [LNIND 1980 DEL 248].
83 . Begum Sabiha Sultan v. Nawab Mansur Ali Khan, AIR 2007 SC 1636 [LNIND 2007 SC 467]: (2007) 4 SCC 343 [LNIND 2007 SC 467].
84 . Ibid, at p. 1640.
85 . State Bank of India v. Sanjeev Mallik, AIR 1996 Del 284 [LNIND 1996 DEL 200] (DB).
1 . Transfer of Property Act 1882, ss 8687, now O 34, rr. 23.
2 . Transfer of Property Act ss 9393, now O 34, rr. 78.
3 . Rosy Joseph v. Union Bank of India, AIR 1978 Ker 209 [LNIND 1978 KER 39].
4 . Central Bank of India v. Eleena Fasteners Pvt. Ltd., AIR 1999 HP 104.
5 . Gudri Lall v. Jagannath, (1886) ILR 8 All 117.
6 . Sakharam v. Vishram, (1895) ILR 19 Bom 207; Bapu v. Dhondi, (1892) ILR 16 Bom 353; Umed Khan v. Daulat Ram, (1883) ILR 5 All 564.
7 . Mannibai v. Cambetta, AIR 1948 Nag 286: (1948) ILR Nag 200.
8 . See s 2, cl (13).
9 . Shibu Haldar v. Gopi Sundari, (1897) ILR 24 Cal 449.
10 . Krishna v. Akilanda, (1887) ILR 13 Mad 54.
11 . Surendra v. Bhai Lal, (1897) ILR 22 Cal 449.
12 . Natha v. Dhunbhaiji, (1898) ILR 23 Bom 1.
13 . Chintaman v. Madhavrao, (1869) 6 BHC AC 29; Rango Lal v. Wilson, (1901) ILR 26 Cal 204; Kunja v. Manindra, AIR 1923 Cal 619: (1923)
27 Cal WN 542; Neelakanda Pillai v. Kunju Pillai, AIR 1935 Mad 545 [LNIND 1934 MAD 363]: (1935) 68 Mad LJ 506; Hardayal Singh v.
Ram Ujagar, AIR 1955 All 416 [LNIND 1954 ALL 196].
14 . Ranjana Nagpal v. Devi Ram, AIR 2002 HP 166 [LNIND 2001 HP 76].
15 . Dada Siba Estate v. Dharan Dev Chand, AIR 1961 Punj 143: (1960) ILR 1 Punj 384.
16 . Keshav v. Vinayak, (1899) ILR 23 Bom 22.
17 . Kunja v. Manindra, AIR 1923 Cal 619: (1923) 27 Cal WN 542.
18 . Venkata v. Krishnasami, (1883) ILR 6 Mad 344; Ahmad v. Abdul Rahman, (1904) ILR 26 All 603.
19 . Maturi v. Kota, (1905) ILR 28 Mad 227.
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20 . Vithalrao v. Vaghoji, (1893) ILR Bom 570.

21 . Hadibandhu v. Chandra Shekar, AIR 1973 Ori 141 [LNIND 1972 ORI 57].
22 . Om Prakash v. Anar Singh, AIR 1973 All 555.
23 . Mst Gauhar Jehan v. Mt Imteyaz Jehan, AIR 1948 Pat 384: (1947) ILR 26 Pat 523; New Mofussil Co. v. Shankerlal, AIR 1941 Bom 247:
(1941) ILR Bom 361 : 43 BLR 293; Muhamed Eusoof v. Subramanian, AIR 1950 Mad 272 [LNIND 1949 MAD 119]; Sitabai v. Laxmibai,
(1916) ILR 40 Bom 337; Snehalata Devi v. Samantha Radha, AIR 1953 Ori 25: (1952) Cut 451; Gouri Gupta v. Taran Gupta Chaudhary, AIR
1968 Cal 305 [LNIND 1967 CAL 156]; Nagubai v. B. Sharma Rao, AIR 1953 SC 593, 597; Kanji Mulji v. Manglaben, AIR 1969 Guj 308
[LNIND 1968 GUJ 16].
24 . Ambalal v. Sarada Gowri, (1955) ILR Bom 759 : (1955) 57 Bom LR 499.
25 . Pulikkal Estate v. Joseph, (1955) 2 Mad LJ 228 wherein the scope of the decisions in 26 Pat 523; ILR 40 Bom 337 are discussed.
26 . Satyabhama v. Krishna Chandra, AIR 1961 Ori 69 [LNIND 1959 ORI 66].
27 . Dorairaj v. Karuppiah Ambalam, AIR 1970 Mad 119 [LNIND 1968 MAD 296].
28 . Durga Das v. Jai Narain, AIR 1922 Bom 188: (1917) ILR 41 All 513.
29 . Standard Tubewell and Engg. Works Ltd. v. Jogindra, AIR 1959 Cal 461 [LNIND 1956 CAL 140].
30 . Suresh Jain v. Dinesh Kumar, AIR 2008 Del 127 [LNIND 2008 DEL 902].
31 . Ibid, at p. 131.
32 . AIR 2007 SC 1401 [LNIND 2007 SC 278], at p. 1408. Kapadia, J. (as he then was) speaking for the Bench.
33 . Parimal Mitra v. Paresh Chandra, AIR 1982 Cal 361 [LNIND 1982 CAL 92].
34 . Trustee for Improvement of Calcutta v. Bahadur Khan, AIR 1984 Cal 412 [LNIND 1984 CAL 241].
35 . Kashinath v. Anant, (1900) ILR 24 Bom 407.
36 . Mahadeo v. Ramchandra, AIR 1922 Bom 188: (1922) ILR 46 Bom 108.
37 . Debendra v. Pramatha, AIR 1958 Cal 700 [LNIND 1954 CAL 150]: (1956) ILR 1 Cal 503.
38 . Crisp v. Watson, (1893) ILR 20 Cal 689.
39 . Anant Raj Industries Ltd. v. Balmer Lawrie and Co. Ltd., AIR 2003 Del 367 [LNIND 2003 DEL 179].
40 . Companhia de Mocambique v. British South Africa Co., [1892] 2 QB 358, 367.
41 . State of Assam v. Biraj Mohan, AIR 1965 Assam 35.
42 . Woodroffe, Evidence, p. 74.
43 . Kottich v. Udaya, (1912) Mad WN 524.
44 . Harshad Chiman Lal Modi v. DLF, Universal Ltd., AIR 2005 SC 4446 [LNIND 2005 SC 730]: (2005) 7 SCC 791 [LNIND 2005 SC 730].
45 . Ibid, at page 4451 (of AIR).
46 . Hakam Singh v. Gamon (India) Ltd., AIR 1971 SC 740 [LNIND 1971 SC 21]: (1971) 3 SCR 341. (Shah, C.J., speaking for the Bench).
47 . Pulikal Estate v. Joseph, (1955) 2 Mad LJ 228.
48 . Westlakes Private International Law, p. 58; Mahadeo v. Ramchandra, AIR 1922 Bom 188; Arunachalla v. Mathiali, (1912) 23 Mad LJ 679.
49 . Krishnaji v. Gajanan, (1909) ILR 33 Bom 373.
50 . Crisp v. Watson, (1893) ILR 20 Cal WN 689; SK Jawala v. Helen Jan Haong Lee, AIR 1978 Cal 247 [LNIND 1977 CAL 317].
51 . Pulikal Estate v. Joseph, supra.
52 . Harshad Chiman Lal Modi v. DLF, Universal Ltd., AIR 2005 SC 4446 [LNIND 2005 SC 730]: (2005) 7 SCC 791 [LNIND 2005 SC 730].
53 . Penn v. Lord Baltimore, (1750) 1 Ves Sen 444.
54 . Trimbak v. Lakshman, (1896) ILR 20 Bom 495.
55 . K.L. Shroff v. State of Haryana, AIR 1998 Del 404 [LNIND 1998 DEL 306].
56 . Colyer v. Finch, (1856) 5 HL Ca 905.
57 . Paget v. Ede, (1874) LR 18 Eq 118.
58 . 2 Spences Eq Jur 678
59 . Bent v. Young, (1838) 9 Sim 180, 190.
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60 . Lord Cranstown v. Johston, (1796) 3 Ves 170.

61 . Bilasrai Joharmal v. Shivanarayan Sarupchand, AIR 1944 PC 36: 71 IA 47 : 46 BLR 518 : 48 Cal WN 448; Nelson v. Bridport, (1826) 8 Beav
547.
62 . Bilasrai Johormull v. Shivanarayan Sarupchand, AIR 1944 PC 36.

63 . Re Hawthom, (1883) 23 Ch D 748 .

64 . Cartwright v. Pettus, (1875) 2 Ch Cas 214.
65 . British South Africa Co. v. Companhia de Mocambique, AIR 1893 Cal 602: [1892] 2 QB 358.
66 . Satya Narayan Banerjee v. Radha Nath Das, AIR 1942 Cal 69: (1942) ILR 1 Cal 235 : 45 Cal WN 1085.
67 . Harchandar v. Lal Bahadur, (1894) ILR 16 All 359.
68 . Maseyk v. Steel, (1887) ILR 14 Cal 661; Gopi Mohan v. Doybaki, (1892) ILR 19 Cal 13; Tinkcouri v. Shib Chandra, (1894) ILR 21 Cal 639.
69 . Shurrop Chander v. Ameerrunissa, (1882) ILR 8 Cal 703.
70 . Khatija v. Ismail, (1889) ILR 12 Mad 380.
71 . Kubra Jan v. Ram Bali, (1908) ILR 30 All 560.
72 . Ratnagiri Pillai v. Vava Ravuthan, (1890) ILR 19 Mad 477; Zamiran v. Fateh Ali, (1905) ILR 32 Cal 146.
73 . Ramacharya v. Anantacharya, (1894) ILR 18 Bom 989.
74 . Khatija v. Ismali, (1889) ILR 12 Mad 380; Kubra Jan v. Ram Bali, (1908) ILR 30 All 560.
75 . Subba Rau v. Rama Rau, (1867) 3 Mad HCR 376 (decided under the Act of 1859 where leave of a superior court was required); Nihal
Singh v. Sowaya, (1884) PR 162; Hari Narayan v. Ganpatrao, (1883) ILR 8 Bom 272; contra Jamoona v. Bhamasoondaree, (1865) 2 WR 148.
76 . HP State Small Industries Export Corpn. v. Export Credit and Guarantee Corpn., AIR 1992 HP 17 [LNIND 1990 HP 3].
77 . Nisar Ali v. Mohamad Ali, AIR 1932 PC 172: (1932) 59 IA 268 : 7 Luck 324; Administrator General v. Sulajini Debi, AIR 1962 Cal 616.
78 . Prem Kumar v. Dharam Pal, AIR 1972 Del 90 [LNIND 1971 DEL 179].
79 . Chitranjan v. Addl Commissioner, AIR 1967 All 375.
80 . Janki Devi v. Manilal, AIR 1975 All 91: 1975 All LJ 53.
81 . Ramdhin Baldeo Prasad v. Thakuram, AIR 1952 Nag 303: (1952) ILR Nag 182.
82 . Harchandar v. Lal Bahadur, (1894) ILR 16 All 359.
83 . Krishna v. Gajanan, (1909) ILR 33 Bom 373.
84 . Kurusinga v. Narsinha, AIR 1938 Bom 121: (1937) ILR Bom 895.
85 . Nilkanth v. Vidya Narsing, AIR 1930 PC 188: ILR 54 Bom 495 : (1930) 57 IA 194.
86 . Punchanan v. Shib Chandar, (1887) ILR 14 Cal 936; Balaram v. Ramchandra, (1898) ILR 22 Bom 922.
87 . Setrucherla v. Maharaja of Jeypur, (1919) 46 IA 151 : (1919) ILR 42 Mad 813.
88 . Debendra v. Amarenda, AIR 1955 Cal 159 [LNIND 1954 CAL 151].
89 . Ramanathan Chettiar v. Narayanan Chettiar, AIR 1955 Mad 629 [LNIND 1955 MAD 43].
90 . Harmindar Singh v. Balbir Singh, AIR 1957 Punj 214: (1957) ILR Punj 1032.
91 . B. Sunder Lal v. B. Gur Saran Lal, AIR 1938 Oudh 65.
92 . Setrucherla v. Maharaja of Jeypur, (1919) 42 Mad 813; Nrisingha v. Rajniti, AIR 1936 PC 189: (1936) 63 IA 311 : (1934) ILR 15 Pat 567.
93 . Mr Scobles speech, Legislative Council, 10 March 1888.
94 . Shibu Haldar v. Gupi Sundari, (1897) ILR 24 Cal 449.
1 . (1901) PR 1, p. 5.
2 . Govindan Nair v. Achutha Menon, (1916) ILR 39 Mad 433.
3 . Templeton v. Laurie, (1900) 2 Bom LR 244.
4 . Gokuldas v. Baldev Das, AIR 1961 Mys 188.
5 . Misrilal v. Moda, (1951) ILR Raj 662.
6 . Haveli Shah v. Painda Khan, AIR 1926 Cal 88: (1926) 31 Cal WN 174; Jahar Deb v. National Insurance Company Ltd., AIR 2006 Gau 143
[LNIND 2006 GAU 66] (DB).
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7 . Re Ma Myity Shwe Tha, (1917) 3 LBR 164.

8 . Khandchand v. Harumal, (1964) 66 Bom LR 829.
9 . Sreepathi Hosiery Mills v. Chitra Knitting Co., AIR 1977 Mad 258 [LNIND 1976 MAD 261]: (1977) Mad LJ 222.
10 . State v. Sarvodaya Industries, AIR 1975 Bom 197 [LNIND 1974 BOM 54]: (1974) Mah LJ 966 [LNIND 1974 BOM 54].
11 . State of Meghalaya v. Jyotsna Das, AIR 1991 Gau 96 [LNIND 1990 GAU 6].
12 . Jahar Deb v. National Insurance Company Ltd., AIR 2006 143 : 2006 (6) AIR Bom R 1002 (NOC) (DB) (Agartala Bench).
13 . Pratap Singh v. Gurdial Kaur, AIR 1999 P&H 86.
14 . Govindarajulu v. Secretary of State, AIR 1927 Mad 689 [LNIND 1926 MAD 388]: (1927) ILR 50 Mad 449.
15 . Explanation I omitted by CPC (Amendment) Act 104 of 1976, s 7 (w.e.f. 1-2-1977).
16 . Subs. for Explanation II by Ibid.
17 . Ranjana Nagpal v. Devi Ram, AIR 2002 H P 166.
18 . Fazlur Rahim v. Dwarka Nath, (1903) ILR 30 Cal 453.
19 . Probirendra v. State of Bihar, (1959) ILR Cal 767.
20 . Babulal v. Caltex (India) Ltd., AIR 1967 Cal 205 [LNIND 1965 CAL 195].
21 . Sucheta Dilip Ghate v. Dilip Shantaram Ghate, AIR 2003 Bom 390 [LNIND 2003 BOM 281] (DB).
22 . Shyama Sundari Dasi v. Ramapati, AIR 1973 Cal 319 [LNIND 1972 CAL 218].
23 . Union of India v. Ladulal Jain, AIR 1963 SC 1681 [LNIND 1963 SC 98].
24 . Ratnagiri v. Syed Vava, (1896) ILR 19 Mad 477; Velupillai Narayan Pillai v. N. Gopala Pillai, AIR 1974 Ker 27 [LNIND 1972 KER 157];
Ram Rattan v. Food Corpn. of India, AIR 1978 Del 183 [LNIND 1977 DEL 98].
25 . (1863) 1 Mad HC 200.
26 . (1868) 3 Mad HC 384.
27 . Permnath v. Kandoomal, AIR 1958 Punj 361: (1958) ILR Punj 682; Suraj Karan v. Sitaram, AIR 1952 Raj 31 [LNIND 1950 RAJ 64].
28 . Patel Roadways Ltd. Bombay v. Prasad Trading Co., (1991) 4 SCC 270 [LNIND 1991 SC 347].
29 . Neela Productions, Sreekumar Theatre, Trivandrum v. S. Kumarswami, AIR 1996 Ker 239.
30 . Mohan Singh v. Lajya Ram, AIR 1956 Punj 188.
31 . M.S.M. Buhari v. S.M. Buhari, AIR 1971 Mad 363 [LNIND 1970 MAD 96].
32 . Ibid.
33 . Mohanakumaran Nair v. Vijayakumaran Nair, AIR 2006 Ker 243 [LNIND 2006 KER 180]: 2006 (3) Ker LT 293.
34 . Ibid.
35 . Mohanakumaran Nair v. Vijayakumaran Nair, AIR 2008 SC 213 [LNIND 2007 SC 1195] (at page 215) : (2007) 14 SCC 426 [LNIND
2007 SC 1195].
36 . Muthia Chettiar v. Shamungham, AIR 1969 SC 552 [LNIND 1968 SC 177].
37 . Ismailji v. Ismail, AIR 1921 Bom 460: (1921) ILR 45 Bom 1228; DeSilva v. Soosai Pillai, AIR 1954 TC 141.
38 . SC Bose & Co v. G. Srikanth, AIR 2006 Andh Pra 337.
39 . Bhamboo v. Ram Narain, AIR 1928 Lah 297: (1928) 9 Lah 455.
40 . Isnailiji v. Ismail, AIR 1921 Bom 460: (1921) ILR 45 Bom 1228; Bhujbal v. Nanheju, (1897) ILR 19 All 450.
41 . Smith v. Indian Textile Co., AIR 1927 All 413: (1927) ILR 49 All 669.
42 . Chunilal Kasturchand v. Dundappa Damppa, AIR 1951 Bom 190 [LNIND 1950 BOM 14]: (1950) ILR Bom 640; Ram Ravji v. Pralhaddas,
(1896) ILR 20 Bom 133; Girdhar v. Kassigar, (1893) ILR 17 Bom 662; Tadepalli v. Nawab Sayed, (1906) ILR 29 Mad 69; Annamalai v.
Murugasa, (1903) ILR 26 Mad 544 : 30 IA 220; Rambhat v. Sankar, (1901) 25 Bom 258; Srinivasa v. Venkata, (1911) 38 IA 129 : (1911) ILR
34 Mad 257; affirming ILR 29 Mad 239; Swaminathan v. Somasundaran, AIR 1938 Mad 731: (1938) ILR Mad 1080; Neelakanda v. Kunju,
AIR 1935 Mad 545 [LNIND 1934 MAD 363]: (1935) 68 Mad LJ 506.
43 . Narain v. Balabadra, AIR 1957 Pat 256.
44 . Narasinga Rao v. Sankar Saran, AIR 1958 All 775 [LNIND 1957 ALL 157]; Maloji Nar Singh Rao v. Shankar Saran, affirmed in AIR 1962
SC 1737 [LNIND 1962 SC 199]; Karnataka Films v. Official Receiver, Madras, AIR 1952 Mad 481 [LNIND 1950 MAD 240].
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45 . Kesowji v. Khimji (1888) ILR 12 Bom 507.

46 . (1893) ILR 17 Bom 662 (a case under the Presidency Small Cause Courts Act 1882, s 18).
47 . Annamalai v. Murugasa, (1903) ILR 26 Mad 544 : 30 IA 220 (a case under s 17 of the Code of 1882, corresponding with s 20 of the
present Code of Civil Procedure).
48 . Janoo v. Batchu, AIR 1924 Mad 158: (1936) 45 Mad LJ 471; dissenting from ILR 12 Bom 507; following ILR 17 Bom 662, supra.
49 . Md Yusuf v. Subramaniam Chettiar, AIR 1950 Mad 27 [LNIND 1949 MAD 270]: (1949) 2 Mad LJ 735; Panchanan v. Tarapada, AIR 1961
Cal 193 [LNIND 1960 CAL 86]: 65 Cal WN 661.
50 . Jhumarla v. Tansukrai, AIR 1957 Assam 127.
51 . World Tanker Carrier Corpn. v. SNP Shipping Services Pvt. Ltd., (1998) 5 SCC 310 [LNIND 1998 SC 461].
52 . Supreme Paper Mills Ltd. v. Owner and other persons Interest in the Motor Vessel ARABELLA, AIR 1999 Mad 118 [LNIND 1998 MAD 855].
53 . Nandan Iron and Metal Industries v. Fensty Inc., AIR 1992 Del 364 [LNIND 1992 DEL 321].
54 . Goswami v. Goverdhanlalji, (1890) ILR 14 Bom 541 (SC); in appeal (1894) ILR 18 Bom 290; in appeal to PC (1894) ILR 18 Bom 294; but
see Srinivasa v. Venkata, (1906) ILR 29 Mad 239; SC on appeal (1911) 38 IA 129, 139.
55 . Emritloll v. Kidd, (1864) 2 Hyd 119.
56 . Kavasji v. Wallace, (1863) 1 Bom HC 113; Kissun Singh v. Sturt, (1870) 5 Mad HC 471.
57 . Fernandez v. Wray, (1901) ILR 25 Bom 176.
58 . Morris v. Baumgarten, (1865) Coryton 152; Mayhew v. Tullock, (1872) 4 NWPHCR 25.
59 . (1881) ILR 3 All 91 : 7 IA 196.
60 . Nishadiney v. Kally, (1864) Coryton 24.
61 . Ugar Chand v. Surajmal, (1900) 2 Bom LR 605; Guranditta Mal v. Ram Das, (1916) PR No 112, P 343; Suraj Karon v. Sitaram supra, Mohan
Singh v. Lajya-ram, AIR 1956 Punj 188: (1956) ILR Punj 1299; Mannalal v. Paney Chand, AIR 1959 Raj 166 [LNIND 1958 RAJ 88]: (1959)
ILR Raj 62,.
62 . Goswami v. Goverdhanlalji, (1890) ILR 14 Bom 541.
63 . Srinivasa v. Venkata, (1911) ILR 34 Mad 257 : 38 IA 129; in app from 29 Mad 239.
64 . Daya Narain v. Secretary of State, (1887) ILR 14 Cal 256; Govindarajulu v. Secretary of State, AIR 1927 Mad 689 [LNIND 1926 MAD 388]:
(1927) ILR 50 Mad 449.
65 . Goswami v. Goverdhanlalji, (1890) ILR 14 Bom 541.
66 . Sarkar & Sarkar v. State of West Bengal, AIR 1992 Cal 365 [LNIND 1991 CAL 180].
67 . Goswami v. Goverdhanlalji, (1890) ILR 14 Bom 541 (SC).
68 . Nobin Chander v. Buroda, (1875) 19 WR 341; Anonymous case (1875) 23 WR 223.
69 . Greschunder v. Collins, (1864) 2 Hyde 79.
70 . Muthaya v. Allan, (1882) ILR 4 Mad 209; Shivbhagwan v. Onkarmal, AIR 1952 Bom 365 [LNIND 1951 BOM 179].
71 . Kirpa Ram v. Mangal Sen, AIR 1922 All 367: (1921) 19 All LJ 696.
72 . Bakhtawar Singh Balkrishna v. Union of India, AIR 1983 Del 201 [LNIND 1982 DEL 112].
73 . Chinnammal v. Tulukannatammal, (1866) 6 MHC 146.
74 . Khimji v. Forbes, (1871) 8 Bom HC 102.
75 . Annamalai v. Murugasa, (1903) ILR 26 Mad 544 : 30 IA 220.
76 . Framji v. Hormasji, (1865) 1 Bom HC 220.
77 . Hiranand v. Gurmukh Rai, AIR 1923 Lah 427; Md Kasim v. Hanuman Industries, AIR 1956 TC 200.
78 . Kanshi Ram v. Dule Rai, AIR 1933 Lah 11(1933) 14 Lah 42.
79 . Pachaimmal v. Hindustan CI Society, AIR 1941 Mad 270: (1941) ILR Mad 109; John v. Oriental Insurance Co. Ltd., AIR 1929 Mad 347
[LNIND 1928 MAD 319]: (1928) 56 Mad LJ 299.
80 . Bharat Insurance Co. v. Wasudev, AIR 1956 Nag 203: (1956) ILR Nag 494.
81 . Nedungadi Bank Ltd. v. Central Bank of India, AIR 1961 Ker 50 [LNIND 1960 KER 157]: (1960) ILR Ker 1444.
82 . Guardian Assurance v. Shiva Mangal, AIR 1937 All 208: (1937) ILR All 234.
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83 . Pratap Chandra Biswas v. Union of India, AIR 1956 Assam 85: (1956) ILR Assam 51; Golab Roy v. Secy. of State, (1941) ILR 2 Cal 160;
unreported judgment of the Madras High Court in CRP 1573 and 1574 of 1950; discussed in Azizuddin v. Union of India, AIR 1955 Mad
346: (1955) ILR Mad 912.
84 . Daya Narayana v. Secy. of State, (1887) ILR 14 Cal 256; Govindarajulu v. Secy. of State, AIR 1927 Mad 689 [LNIND 1926 MAD 388]: (1927)
ILR 50 Mad 449; Calcutta Motor Cycle Co v. Union of India, AIR 1954 Bom 129 [LNIND 1953 BOM 1]: (1953) ILR Bom 1157; Lakmichand
v. State of Punjab, AIR 1954 Punj 181: (1954) ILR Punj 613; Achut Anant v. GG-in-Council, AIR 1955 Cal 331 [LNIND 1954 CAL 152];
Azizuddin v. Union of India, AIR 1959 Cal 273 [LNIND 1958 CAL 142]; Elias & Co. v. State of West Bengal, AIR 1959 Cal 247 [LNIND
1958 CAL 57]; Trilokchand v. Dominion of India, AIR 1959 Cal 281 [LNIND 1958 CAL 162]: (1958) 62 Cal WN 900; Kalwani v. Union of
India, AIR 1960 Cal 430 [LNIND 1960 CAL 34]: (1960) 64 Cal WN 765; Badri Narain v. Excise Commissioner, AIR 1962 AP 382
[LNIND 1961 AP 151]: (1962) 1 Andh WR 133.
85 . AIR 1963 SC 1681 [LNIND 1963 SC 98]: (1964) 1 SCJ 101.
86 . Jagannath v. Union of India, AIR 1966 Cal 540 [LNIND 1966 CAL 46].
87 . Maniklal v. Union of India, AIR 1966 MP 243 [LNIND 1964 MP 13].
88 . Assam Cold Storage Co. v. Union of India, AIR 1971 Assam 69 dissented from.
89 . Ratanlal Adukia v. Union of India, (1989) 3 SCC 537 [LNIND 1989 SC 343].
90 . South Eastern Railway Administration v. Govind Lal, AIR 1984 Bom 223.
91 . Kuldeep Singh v. Union of India, AIR 1986 Del 56 [LNIND 1985 DEL 223] (FB).
92 . Advocate General v. MP Khaer Industries, AIR 1980 SC 846 distinguished.
93 . Union of India v. Hindustan Aluminium Corpn., AIR 1983 Cal 307 [LNIND 1982 CAL 303].
94 . Commissioner, Hindu Religious and Charitable Endowments Dept., Madras v. Govindrajan, AIR 1982 Mad 417 [LNIND 1982 MAD 143].
95 . Gupta Sanitary Stores v. Union of India, AIR 1985 Del 122 [LNIND 1984 DEL 292].
96 . Hotchand Moolchand v. Stage, AIR 1987 Raj 154.
1 . Bakhtawar Singh Bal Kishan v. Union of India, (1998) 2 SCC 293.
2 . Gopal Jat v. Gheesa Lal, AIR 2003 Raj 312.
3 . Sitnath v. Jatindra, (1930) 57 Cal. 65, (30) A.C. 347.
4 . M.S.M. Buhari v. S.M. Buhari, 1971 A.M. 363.
5 . Alagappa v. Annamalai, (1916) 35 IC 74.
6 . Mahomedbhai v. Adamji, AIR 1922 Bom 152: (1922) ILR 46 Bom 229.
7 . Firm Babu Lal, Mandi v. New India Assurance Co. Ltd., New Delhi AIR 1980 Raj 126.
8 . Bank of India v. Mehta Brothers, AIR 1984 Del 18 [LNIND 1983 DEL 129].
9 . Nayayan v. Secretary of State, (1906) ILR 30 Bom 570.
10 . Dwarakadas v. Hanuman Das, AIR 1961 Raj 187 [LNIND 1940 RAJ 1]: (1960) ILR Raj 1497; Manoramabai v. Ibrahim Khan, AIR 1969
Bom 366 [LNIND 1968 BOM 57].
11 . Dalsukh Nathmal v. Motilal, AIR 1938 Nag 262: (1940) ILR Nag 502; BG Guttal v. RR Diwakar, AIR 1977 Kant 211 [LNIND 1976
KANT 207]: (1977) 1 Kant 287.
12 . Swaminathan v. Somasudran, (1938) ILR Mad 1080 : AIR 1938 Mad 731.
13 . Allan Brothers v. Anrui Mal, AIR 1925 Lah 338: (1925) 7 Lah LJ 68.
14 . Venkata v. Krishnasami, (1883) ILR 6 Mad 344; Ramappa v. Ganpat, (1906) ILR 30 Bom 81.
15 . Ratan Chand v. Secretary of State, (1914) 18 Cal WN 1340; Manuranabhai v. Ibrahim Khan, AIR 1969 Bom 366 [LNIND 1968 BOM 57].
16 . Rajesh Makhija v. Smt. Mamta alias Shalu, AIR 2006 MP 23 [LNIND 2005 MP 214]: 2005 (3) MPLJ 564 (Gwalior Bench).
17 . Controller of Insurance v. Vanguard Insurance Co. Ltd., AIR 1966 Mad 437 [LNIND 1965 MAD 209].
18 . Orient Middle East Lines Ltd. Bombay v. Brace Transport Corpn. of Montovia, AIR 1986 Guj 63.
19 . Rai Narain v. Newtaon, (1873) 6 NWP HCR 25.
20 . Goswami v. Goverdhanlalji, (1890) ILR 14 Bom 541.
21 . Daya Narain v. Secretary of State, (1887) ILR 14 Cal 256, pp 273-74; Union of India v. Ladulal, AIR 1963 SC 1681 [LNIND 1963 SC 98].
22 . ST&E Works v. J.N. Sen, AIR 1959 Cal 461 [LNIND 1956 CAL 140].
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23 . KLG Systel Ltd. v. Fujitsu, ICIM Ltd AIR 2001 Del 357 [LNIND 2001 DEL 524].
24 . Rajasthan High Court Advocates Association v. UOI, AIR 2001 SC 416 [LNIND 2000 SC 1896]: AIR 2001 SCW 1.
25 . Sucheta Dilip Ghate v. Dilip Shantaram Ghate, AIR 2003 Bom 390 [LNIND 2003 BOM 281] (DB).
26 . Dhanajishaw v. Fforde, (1887) ILR 11 Bom 649; Musa v. Manilal, (1905) ILR 29 Bom 368; Raghoonath v. Gobindnarain, (1895) ILR 22 Cal
451.
27 . Radhakrishnamurthy v. Chandrasekhara, AIR 1966 AP 334 [LNIND 1965 AP 206]; Ram Avalamb v. Jata Shankar, AIR 1969 All 526, p.
536; Ujjal Talukdar v. Natichand, AIR 1969 Cal 224 [LNIND 1968 CAL 123]; LV Veeri Chettair v. ST Officer, Bombay, AIR 1971 Mad 155
[LNIND 1970 MAD 44]; Salik Ram v. Ram Lakhan, AIR 1973 All 107.
28 . Puranmal v. Onkarmath, AIR 1959 Pat 128: (1959) ILR 38 [LNIND 1958 RAJ 87] Pat 247.
29 . Dhanraj Mills v. N.P. Boobna, AIR 1949 Pat 270: (1948) ILR Pat 723; Arthur Butler v. District Board of Gaya, AIR 1947 Pat 134: (1946) ILR
Pat 292; Reed v. Brown, [1888] 22 QBD 128, p. 131; Murti v. Bhola Ram, (1893) ILR 16 All 165 (FB); Salima Bibi v. Sheik Muhammad, (1896)
ILR 18 All 131; Muhammad Zakaria v. Muhammad Hafiz, (1917) ILR 39 All 506; Baroda Oil Cakes Traders v. Prarshotham, AIR 1954 Bom 491
[LNIND 1954 BOM 11]; Yar Mohamed v. Lakshmi Das, AIR 1959 All 1 [LNIND 1957 ALL 231]; Baku Mahton v. Widow of Anathi Thakur,
AIR 1978 Pat 146.
30 . Arthur Butler v. District Board of Gaya, (1936) ILR15 Pat 292; Reed v. Brown, (1888) 22 QBD 128; Joshi v. State of Bombay, AIR 1959 Bom 363
[LNIND 1958 BOM 165]: (1959) ILR Bom 1267.
31 . ABC Laminart Pvt. Ltd. v. AP Agencies Salem, (1989) 2 SCC 163 [LNIND 1989 SC 150] : (1994) 6 SCC 322 [LNIND 1994 SC 833].
32 . Cook v. Gill, (1873) 8 CP 107; London Bombay Bank v. Badee, (1880) ILR 5 Bom 42; Narayan v. Secretary of State, (1906) ILR 30 Bom 570;
Alexander Brault v. Indra Krishna, AIR 1933 Cal 706, (1933) ILR 60 Cal 918; Amrit Kunwar v. Gur Charan, AIR 1934 All 226; Narayanamurthy
v. Gangaraju, AIR 1958 AP 451.
33 . Gauda Singh v. Zora Singh, AIR 1950 Pepsu 21; Chand Kour v. Partab Singh, (1889) ILR 16 Cal 98, 102, 15 IA 156; Venkatesha Bhat v. Kamal
Pat Motila, AIR 1957 Mad 201 [LNIND 1956 MAD 157]; Gupta v. Vishnu, AIR 1958 Nag 204: (1956) ILR Nag 556.
34 . Navin Chandra N. Majithia v. State of Maharashtra, [2000] 3 LRI 1013.
35 . Dominion of India v. Nath & Co., AIR 1950 Cal 207; Mahant Gobind v. Rani Debendrabala, (1919) 4 Pat LJ 387, 393.
36 . Gulzar Singh v. Kalyan Chand, (1893) ILR 15 All 399.
37 . Life Insurance Corporation of India v. Krishna Singh, AIR 1999 Pat 106.
38 . Chanana Steel Tubes Pvt Ltd v. Jaitu Steel Tubes Pvt. Ltd., AIR 2000 HP 48 [LNIND 1999 HP 53]; Board of Trustee for the Port of Calcutta v.
Bombay Flour Mills Pvt. Ltd., (1995) 2 SCC 559 [LNIND 1994 SC 959].
39 . Groheven Tradex Private Ltd. v. UOI, AIR 2001 Del 37 [LNIND 2000 DEL 865].
40 . Maharaji Educational Trust v. Punjab and Sind Bank, AIR 2006 Del 226 [LNIND 2006 DEL 1698]: 2006 (127) DLT 161 [LNIND 2006
DEL 1698].
41 . Rungta Projects v. Tenughat Vidyut Nigam Ltd., AIR 2006 Jhar 64 [LNIND 2005 JHAR 55]: 2005 Cal WN 1084.
42 . Acme Tele Power Ltd. v. Sintex Industries Ltd., AIR 2008 Uttr 49 [LNIND 2008 UTTAR 183]: MIPR 2009 (1) 321.
43 . Sucheta Dilip Ghate v. Dilip Shantaram Ghate, AIR 2003 Bom 390 [LNIND 2003 BOM 281] (DB).
44 . UOI v. Adavi Exports Ltd., AIR 2002 SC 126 [LNIND 2001 SC 2467].
45 . Kusum Ingots & Alloys Ltd. v. UOI, AIR 2004 SC 2321 [LNIND 2004 SC 573].
46 . P.R. Transport Agency v. Union of India, AIR 2006 All 23: 2005 All LJ 3568 (DB).
47 . Banke Behari v. Pokhe Ram, (1903) ILR 25 All 48.
48 . Salig Ram v. Chaha Mal, (1912) ILR 34 All 49; BC Paul & Sons v. Union of India, AIR 1978 Cal 423 [LNIND 1978 CAL 341].
49 . Peoples Insurance Co. v. Benoy Bhusan, AIR 1943 Cal 199: (1943) ILR 1 Cal 564; Sita Ram v. Ram Chandra, (1918) PR 26.
50 . ABC Laminart Pvt. Ltd. v. AP Agencies, Salem, AIR 1989 SC 1239 [LNIND 1989 SC 150].
51 . ABC Laminart Pvt. Ltd. v. AP Agencies, Salem, AIR 1989 SC 1239 [LNIND 1989 SC 150].
52 . Laxman Prasad v. Prodigy Electronics Ltd., AIR 2008 SC 685 [LNIND 2007 SC 1442]: (2008) 1 SCC 618 [LNIND 2007 SC 1442].
53 . Toepfer International Asia Pvt. Ltd. v. Thapar Ispat Ltd., AIR 1999 Bom 417 [LNIND 1999 BOM 363].
54 . ABC Laminart Pvt. Ltd. v. AP Agencies, Salem, AIR 1989 SC 1239 [LNIND 1989 SC 150]; Arthur Butler v. District Board of Gaya, (1936)
ILR 15 Pat 292; Dhunjisha v. Fforde, (1887) ILR 11 Bom 649, p. 652; Mulchand v. Suganchand, (1876) ILR 1 Bom 23 (hundi); Doya v. Secretary
of State, (1887) ILR 14 Cal 256; Rampurtab v. Premsuk, (1891) ILR 15 Bom 93; Dobson v. Bengal Spg & Wvg Co., (1897) ILR 21 Bom 126;
Seshagiri Row v. Nawab Askur, (1904) ILR 27 Mad 494.
55 . Engineering Supplies v. Dhandhania, AIR 1931 Cal 659: (1931) ILR 58 Cal 539.
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56 . Union of India v. New India Assurance Co. Ltd., AIR 1997 Del 54 [LNIND 1996 DEL 572].
57 . ONGC v. Muderu Construction & Co., AIR 1998 Guj 46 [LNIND 1997 GUJ 158] (DB).
58 . Chetan Swarup v. Collector, Jhansi District, AIR 1994 All 269 [LNIND 1994 ALL 3] (DB).
59 . Bhat Carpets v. AMI India Logistics Pvt. Ltd., AIR 2004 Del 404 [LNIND 2004 DEL 508].
60 . D Muhammad Shafi v. Karamat Ali, (1896) PR 76; Sita Ram v. Ram Chandra, (1918) PR 26; Salig Ram v. Chaha Mal, (1912) ILR 34 All 49;
Jupiter General Insurance Co. v. Abdul Aziz, AIR 1924 Rang 2, (1923) 1 Rang 231; Dobson v. Bengal Spg & Wvg Co., (1879) ILR 21 Bom 126;
Asa Ram v. Bakshi, (1920) 1 Lah 203.
61 . Progressive Construction Ltd. v. Bharat Hydro Power Corpn. Ltd., AIR 1996 Del 92 [LNIND 1995 DEL 489].
62 . Kalpala Transport Co. Ltd. v. Oriental FRG I Co. Ltd., AIR 2001 Mad 264.
63 . Dhanraj Mills Ltd v. Boobna, AIR 1949 Pat 270; Manilal v. Venkatachalapathi, AIR 1943 Mad 471 [LNIND 1943 MAD 108]; Ratanla v.
Harcharan, AIR 1947 All 337: (1947) ILR All 44; Kamisetti v. Katha, (1904) ILR 27 Mad 355; Muhamnad Esuff v. M Haleem & Co., AIR 1934
Mad 581 [LNIND 1934 MAD 79].
64 . Dhanraj Mills Ltd. v. Boobna, AIR 1949 Pat 270.
65 . Sitaram v. Thompson, (1905) ILR 32 Cal 884.
66 . National Textile Corpn. Ltd. v. Haribox Swalram, AIR 2004 SC 1998.
67 . AIR 1954 Bom 145 [LNIND 1952 BOM 22].
68 . Baroda Oil Caks Traders v. Purshottam, AIR 1954 Bom 491 [LNIND 1954 BOM 11]: 1954 (ILR) Bom 1137; Firm Kanhayalal v. Dinesh
Chandra, AIR 1959 MP 234 [LNIND 1959 MP 35].
69 . Arthur Butler & Co. Ltd. v. District Board of Gaya, 15 Pat 292; Firm Hajarimal v. Firm Gulab Chand, AIR 1956 Nag 118: (1955) ILR Nag
722; Venkatesh Bhat v. Kamal Pat Motila, AIR 1957 Mad 201 [LNIND 1956 MAD 157].
70 . State v. Ranjeet Construction, AIR 1986 Bom 76 [LNIND 1985 BOM 207].
71 . Minerals and Metals Trading Corpn. of India Ltd. v. Indian Metal & Ferro Alloys Ltd., AIR 1981 Ori 76 [LNIND 1980 ORI 65].
72 . Union of India v. Shibboomal & Sons, AIR 1989 P&H 205.
73 . Ibid.
74 . Union of India v. Shibboomal & Sons, Chandigarh, AIR 1989 P&H 205.
75 . Entores v. Miles Far East Corpn., [1955] 2 QB 327.
76 . Bhagwandas v. Girdharlal & Co., AIR 1966 SC 543 [LNIND 1965 SC 210].
77 . Shriram Steel, Raipur v. Vandana Trailers, Sakti, AIR 2008 Chhat 34: 2008 Cglj 358.
78 . Shakti Cement Co. Pvt. Ltd. v. FACT, AIR 1990 Ker 86 [LNIND 1989 KER 501].
79 . Fertilizer Corpn. of India v. S. Kumar, AIR 1965 Punj 107; Dhanraj Mills Ltd. v. Boobna, AIR 1949 Pat 270: (1948) ILR Pat 723, p. 728.
80 . Surjit Singh v. Union of India, AIR 1965 Cal 191 [LNIND 1964 CAL 107].
81 . Span Consulations Pvt. Ltd. v. Rashtriya Chemicals and Fertilizer Ltd., AIR 1982 Del 157 [LNIND 1981 DEL 294].
82 . State of Orissa v. Goenka Investment, AIR 1983 Cal 438 [LNIND 1983 CAL 57] (DB).
83 . Gopikishna v. Nikomul, (1974) 13 Beng LR 461 : 22 WR 79; Chunilal v. Mahiputrav, (1870) 5 Bom HC 33 (AC); Premji v. Ghulam, (1908)
PR 36; Bhuttacharya v. Cawnpore Woollen Mills, (1911) 16 Cal WN 325; Champaklal v. Nectar Tea Co., AIR 1933 Bom 179: (1933) ILR 57
Bom 306.
84 . State of Sikkim v. Jammu & Kashmir Bank Ltd., AIR 2002 Sikkim 8.
85 . Battepati v. Calcutta Glass and Silicate Works, AIR 1949 Mad 145 [LNIND 1948 MAD 63]; Llewhellin v. Chunni Lal, (1882) ILR 4 All 423;
Sheo Charan v. Taj Bhai, (1917) ILR 39 All 368; Abdur Rashid v. Sizing Material Co., (1920) ILR 42 All 480 : 56 TC 192; Patel Bros. v. Vadilal,
AIR 1959 Mad 227 [LNIND 1958 MAD 81]: (1959) 1 MLJ 106 [LNIND 1958 MAD 81].
86 . Sheo Charan v. Taj Bhai, (1917) ILR 39 All 368.
87 . Ram Lal v. Bholo Nath, (1920) ILR 42 All 629.
88 . National Textile Corpn. Ltd. v. Haribox Swalram, AIR 2004 SC 1998.
89 . Winter v. Way, (1964) 1 Mad HC 200.
90 . Benaim & Co. v. Debono, AIR 1924 Cal 514: 1924 AC 514.
91 . Ramco Textiles v. Union of India, AIR 1960 Ker 275: (1960) ILR Ker 435 : (1960) Ker LT 352 [LNIND 1959 KER 340] : 1960 Ker LJ
408; Gaya Muzaffarpur Roadways v. FG Industries Ltd., AIR 1971 Cal 494 [LNIND 1971 CAL 110].
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92 . Lakshmi Narain v. Union of India, AIR 1958 Pat 489; Fertilizers Corpn. of India v. Tata Iron & Steel Co., AIR 1965 Punj 143.
93 . Parthasarathy v. Calcutta Glass & Selicate Works Ltd., (1948) 2 Mad LJ 101; Subbarao v. PK Ginning & Pressing Factory, AIR 1953 Mad 389
[LNIND 1952 MAD 8]: (1952) 1 Mad LJ 548.
94 . Kalaswamy v. Ponnuswamy, AIR 1962 Mad 44 [LNIND 1961 MAD 225]: (1961) ILR Mad 1091.
1 . Sami v. Gopal, (1873) 7 Mad HC 176; Patel Bros v. Vadilal, AIR 1959 Mad 227 [LNIND 1958 MAD 81].
2 . Dhunjisha v. Fforde, (1887) ILR 11 Bom 648; Muhamad v. Muhammad, (1916) PR 2; Venkatesh Bhat v. Kamal Pat Motilal, AIR 1957 Mad 201
[LNIND 1956 MAD 157].
3 . (1882) ILR 4 All 423.
4 . (1879) ILR 5 Cal 82.
5 . Bangali Mal v. Ganga Ram, AIR 1923 All 465.
6 . Beg Mohammed v. Kavasji, (1900) 2 Bom LR 514.
7 . State of Uttar Pradesh v. Raja Ram, AIR 1966 All 159 [LNIND 1965 ALL 21].
8 . S. Shyam Sunder v. Sharma, AIR 1973 MP 233 [LNIND 1973 MP 12].
9 . Seshagiri Raw v. Nawab Askur Jung, (1907) ILR 30 Mad 438; Kamiseui v. Katha, (1904) ILR 27 Mad 355.
10 . State of Orissa v. Goenka Investment and Mining Industries, AIR 1983 Cal 438 [LNIND 1983 CAL 57] (DB).
11 . Jaipur Udyog Ltd. v. Indian Drugs and Pharmaceutical Ltd., AIR 1984 All 305 [LNIND 1984 ALL 37].
12 . Venkatesa v. Kamlapati Motialal, AIR 1957 Mad 201 [LNIND 1956 MAD 157]; Hindustan Malleables v. Indian Furnace Co. Ltd., AIR 1979
Pat 146.
13 . R.K. Janakiah Chetty v. A.K. Mohan, AIR 1980 AP 41 [LNIND 1979 AP 46].
14 . Tulsiman Bibi v. Abdul Latif, AIR 1936 Cal 97: (1936) ILR 63 Cal 726.
15 . (1894) ILR 14 Bom 43.
16 . Ramdas v. Kaluram, AIR 1960 All 557 [LNIND 1959 ALL 221].
17 . Kamla Chopra v. LIC of India, AIR 1975 Del 15 [LNIND 1973 DEL 263].
18 . Srinivasa v. Vencatta, (1906) ILR 29 Mad 239, p. 259.
19 . Re Fuller, (1854) 2 E&B 573.
20 . Hemchandra v. Direndra, AIR 1960 Cal 691 [LNIND 1959 CAL 129]: 69 Cal WN 711.
21 . Boseck v. Mandlestan, (1906) PR 70.
22 . Ganesh Prasad v. Bansidhar, (1917) 15 All LJ 513.
23 . KV Bank Ltd. v. RC Oza, AIR 1974 Mad 209 [LNIND 1973 MAD 58].
24 . Bhagsingh v. Labhsing, (1916) PR 93.
25 . Mathura Prasad v. Satya Narayan, (1922) 65 IC 812.
26 . Bengal Coal Co. v. Elgin Cotton Co., (1870) 2 NWP 13.
27 . Luddy v. Johnson, (1871) 6 Beng LR 141.
28 . Shiam Narain v. BB & CI Rly., (1919) ILR 41 All 488.
29 Geffert v. Rukchand, (1888) ILR 13 Bom 178; Chiranjilal v. Rikhabdass, AIR 1955 Raj 291(for what amounts to publication).
30 . Barwankar v. Satyanarain Prasad, AIR 1957 Pat 128.
31 . Sheodial v. Durga Kaur, (1883) Cal WN 128.
32 . Nittala Achayya v. Nittala Yellamma, AIR 1923 Mad 109 [LNIND 1922 MAD 116]: (1923) 43 Mad LJ 615.
33 . Hadjee Ismael v. Hadjee Mohommed, (1874) 13 Beng LR 91.
34 . Jupiter General Insurance Co v. Abdul Aziz, AIR 1924 Rang 2: (1923) 1 Rang 231.
35 Peoples Insurance Co. Ltd. v. Benoy Bhusan, AIR 1943 Cal 199: (1943) ILR 1 Cal 564; dissenting from Jupiter General Insurance Co. v. Abdul
Aziz, AIR 1924 Rang 2: (1923) 1 Rang 231; Vishvendra v. National Insurance Co., AIR 1918 Mad 635; Light of Asia Insurance Co. Ltd. v. Bai
Chanchal, AIR 1932 Bom 392: (1932) 34 Bom LR 815; Punjab Mutual Hindu Family Relief Fund v. Sardari, (1918) PR 98.
36 . Lalitagar v. Bai Suraj, (1894) ILR 18 Bom 316.
37 . Lakshmi Ammal v. Venugopal, AIR 1934 Mad 407: (1934) 67 Mad LJ 271.
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38 . Nizamuddin v. Huseni, AIR 1960 MP 212 [LNIND 1960 MP 109].

39 . Zahoor Ahmed v. Tahra Bi, AIR 1954 Nag 51.
40 . Kaluram v. Mangilal, AIR 1956 MB 160.
41 . Sanjay Mishra v. Eveline, AIR 1993 MP 54 [LNIND 1992 MP 49]; Gangabai v. Vijay Kumar, AIR 1974 SC 1126 [LNIND 1974 SC 142];
Secretary of State v. Mask & Co., AIR 1940 PC 105 [LNIND 1940 PC 9].
42 . Charat Chandra v. Foram, (1890) ILR 12 All 213.
43 . Kheshtra Pal v. Pancham Singh, (1915) ILR 37 All 446.
44 Intas Pharmaceuticals Ltd. v. Allergan Inc., AIR 2007 Del 108: 2006 (132) DLT 641 (DB).
45 Ibid, at page 111 (of AIR).
46 Dhodha House v. S.K. Maingi, AIR 2006 SC 730 [LNIND 2005 SC 971]: 2006 (1) ALJ 669 : (2006) 9 SCC 41 [LNIND 2005 SC 971].
47 . Ibid, at page 739 (of AIR). S.B. Sinha, J. speaking for the Bench.
48 Ibid, at page 735-736.
49 . Dabur India Ltd. v. K.R. Industries, AIR 2008 SC 3123 [LNIND 2008 SC 1231]. (S.B. Sinha, J., speaking for the Bench).
50 Wipro Limited v. Oushadha Chandrika Ayurvedic India (P.) Ltd., AIR 2008 Mad 165 [LNIND 2008 MAD 652]: 2008 (3) Mad LJ 1 (D.B.).
51 . Amrutanjan Limited v. Ashwin Fine Chemicals and Pharmaceuticals, Kashi Mira District, AIR 1991 Mad 277 [LNIND 1990 MAD 318].
52 . Cadilla Laboratories Pvt. Ltd. v. Ramnath Atul & Co., AIR 1991 Kant 303 [LNIND 1990 KANT 220].
53 . HP Horticulture Produce Mktg. and Processing Corpn. Ltd. v. Mohan Meakin Breweries Ltd., AIR 1981 P&H 117.
54 . Gold Seal Engg Product Pvt. Ltd. v. Hindustan Manufacturers, AIR 1992 Bom 144 [LNIND 1991 BOM 459].
55 . Peoples Insurance Co. Ltd. v. Benoy Bhusan Bhowmik, (1943) 47 Cal WN 293.
56 Kartick Churn v. Gopalkisto, (1877) ILR 3 Cal 264.
57 . Reed v. Brown, [1888] 22 QBD 128, p. 131.
58 . Rajlakshmi Dassi v. Bonomali Sen, AIR 1950 Cal 510 [LNIND 1949 CAL 35]: 85 CLJ 270.
59 . Sridhar v. Jaychandra, AIR 1959 All 598 [LNIND 1958 ALL 176].
60 Hiralal v. State of Saurastra, AIR 1956 Sau 75.
61 T.R.S. Mani v. IRP Radio Pvt. Ltd., AIR 1963 Mad 30 [LNIND 1962 MAD 33]: (1962) ILR Mad 1141 : (1962) 2 Mad LJ 270.
62 . East India Trading Co. v. Badat Trading Co., AIR 1959 Bom 414 [LNIND 1958 BOM 130]: (1959) ILR Bom 1004.
63 R.P. Goala v. Amarpal Singh, AIR 1972 Raj 142 [LNIND 1971 RAJ 37]; Khanchand Pokardas v. Harumal, AIR 1965 Bom 109 [LNIND
1964 BOM 12].
64 Hansraj v. Indian Overseas Bank Ltd., AIR 1956 Cal 33 [LNIND 1955 CAL 98]; Nedungadi Bank v. Central Bank, AIR 1961 Ker 50
[LNIND 1960 KER 157]: (1960) ILR Ker 1444.
65 Bakhtawar Singh Balkrishna v. Union of India, AIR 1988 SC 1003.
66 Madhao Deshpande v. Madhav Dhamadhikari, AIR 1988 SC 1347 [LNIND 1988 SC 248].
67 . Ratanlal Adukia v. Union of India, (1989) 3 SCC 537 [LNIND 1989 SC 343].
68 Kusum Ingots & Alloys Ltd. v. UOI, AIR 2004 SC 2321 [LNIND 2004 SC 573].
69 . Ramdass v. Danpat, (1925) 6 Lah 153 : AIR 1925 Lah 387; Annamalai Chettyar v. Daw Hnin U, AIR 1936 Rang 251.
70 Dharam v. Ramlal, AIR 1961 Punj 567.
71 . (1922) 3 Lah LJ 499 : AIR 1922 Lah 36.
72 (1906) ILR 30 Bom 167, a case under cl 12 of the Letters Patent.
73 (1924) ILR 46 All 465 : AIR 1924 All 530.
74 Mahomed Haji v. Jute and Gunny Brokers Ltd., (1931) 33 Bom LR 1364 : AIR 1932 Bom 42; dissenting from Motilal v. Surajmal, (1906) ILR
30 Bom 167; Devidatt v. Shriram, AIR 1932 Bom 291: (1932) ILR 56 Bom 324.
75 Muhammad Shafi v. Karamat Ali, (1896) PR 76.
76 Bhamboo v. Ram Narain, AIR 1928 Lah 297: (1928) 9 Lah 455,; Ramditta Mal v. Seth Jot Mal, (1940) AI 1471; Premnath v. Kaudomal, AIR
1958 Punj 361: (1958) ILR Punj 682.
77 Chandu Lal v. Ganeshi Lal, AIR 1935 Lah 68.
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78 Nandlal v. Kishan lal, AIR 1928 Bom 548: (1928) 30 Bom LR 1391; Puran Chand v. Jodh Raj, AIR 1922 All 448.
79 . Firm Brijraj v. Firm Sagarmal, AIR 1952 Punj 119; Pasu & Co. v. Gulzarilal, AIR 1958 MP 409 [LNIND 1957 MP 102].
80 Firm Shah Chandran Mal v. Hazarilal, AIR 1962 Raj : (1962) ILR Raj 225; Firm Hazarilal v. Firm Gulab Chand, AIR 1956 Nag 118: (1955)
ILR Nag 722.
81 Union of India v. K.K. Goswami, AIR 1974 Cal 231 [LNIND 1973 CAL 133]: (1973) ILR 1 Cal 421 : 78 Cal WN 154: State of Sikkim v.
Jammu & Kashmir Bank Ltd., AIR 2002 Sikk 8.
82 AIR 1922 Lah 36: (1922) 3 Lah LJ 499; Galley & Co. v. Dahi China Appalaswami Naidu, AIR 1946 Mad 300; Appanna v. Subbarayulu, AIR
1957 AP 530 [LNIND 1955 AP 183].
83 Galley & Co. v. Dahi China Appalaswami Naidu, supra; Dhunjisha v. Fforde, (1887) ILR 11 Bom 649; Darragh & Co. v. Purshotam, (1881) ILR
4 Mad 372; Sailendra Nath v. Ramsundar, (1912) 16 CLJ 279; Gafurunissa v. Narayan, (1919) 49 IC 950; Muhammad v. Muhammad, (1916) PR
2; Venkatesh Bhat v. Kamal Pat Motilal, AIR 1957 Mad 201 [LNIND 1956 MAD 157].
84 State of Bihar v. Oriental Coal Co., AIR 1972 SC 378 [LNIND 1971 SC 518].
85 . Haimraj v. Ram Bux, (1866) 1 Agra 115.
86 . (1860) 8 MIA 291 (a case under Bengal Regulation Act 2 of 1803).
87 . Venkatachalam v. Rajaballi, AIR 1935 Mad 663 [LNIND 1934 MAD 390]: (1935) 68 Mad LJ 504 (FB); Ganesh Parshad v. Firm
Jawaharsingh, AIR 1952 Punj 381.
88 . Sohan Singh v. Riddick, AIR 1922 Lah 164: (1922) 65 IC 865.
89 . Commissioner of Income-tax v. Ogale Glass Works, AIR 1954 SC 429 [LNIND 1954 SC 70]: (1955) 1 SCR 185 [LNIND 1954 SC 70] 1954
SCJ 577 [LNIND 1954 SC 73]; Jagdish Mills v. Commissioner of Income-tax, AIR 1959 SC 1160 [LNIND 1959 SC 115]; Horsburgh v.
Chandroji, AIR 1957 MB 90.
90 . Shah Sankalchand v. Ambalal, AIR 1930 Bom 150: (1930) ILR 54 Bom 192.
91 . Damri Shah v. Ralia Mal, (1920) 2 Lah LJ 555.
92 . Raman v. Gopalachari, (1908) ILR 31 Mad 223.
93 . Soniram v. RD Tata & Co., AIR 1927 PC 156: (1927) 54 IA 265 : 271, 5 Rang 451. The dicta to the contrary in Tika Ram v. Daulat Ram,
AIR 1924 All 530: (1924) ILR 46 All 465, at pp 467-68 are erroneous.
94 . Dhunjisha v. Fforde, (1887) ILR 11 Bom 649, 656; Motilal v. Surajmal, (1906) ILR 30 Bom 167, 171; Gokul Das v. Nathu, AIR 1926 All 477:
(1926) 48 ILR All 310; RSEB v. Dayal Wood Work, AIR 1998 AP 381 [LNIND 1998 AP 94].
1 . Piyara Singh v. Bhagwan Das, AIR 1951 Pat 33; Kadarmal v. Surajmal, (1907) 9 Bom LR 903 [LNIND 1907 BOM 99]; Raman v. Gopalachari,
(1908) ILR 31 Mad 223.
2 . 54 IA 265 : 5 Rang 451 : (1927) PC 156; distinguishing Pritappa v. Virabadrappa, (1905) 7 Bom LR 993.
3 . Bharumal v. Sakhawatmal AIR 1956 Bom 111 [LNIND 1955 BOM 61]; Borakur Engineering and Foundry Works Ltd v. State of Bihar AIR
1960 Cal 513 [LNIND 1960 CAL 52]: (1960) 64 Cal WN 744.
4 . Johrimull v. Hiralal AIR 1961 Pat 198; Adinarayana v. Lakshminarayana (1940) 1 MLJ 558 [LNIND 1939 MAD 76] : AIR 1940 Mad 588
[LNIND 1939 MAD 76].
5 . Firm Hiralal v. Brijnath, (1960) ILR 2 Punj 291 : AIR 1960 Punj 450(FB); Niranjan v. Jagjit Singh, AIR 1955 Punj 128.
6 . Mahalauxmi Bank Ltd v. Chota Nagpur Industrial and Commercial Assn, AIR 1955 Cal 413 [LNIND 1954 CAL 172]; Ramalinga v.
Jayalakshmi, AIR 1945 Mad 695.
7 . M/s Manohar Oil Mills v. Bhawani Din Bhagwandin, AIR 1971 All 326; Great Eastern Shipping Co v. Union of India, AIR 1971 Cal 150
[LNIND 1970 CAL 169]; Shoba Singh & Sons v. Saurashtra Iron Foundry, AIR 1968 Guj 276 [LNIND 1967 GUJ 32]; State of Uttar Pradesh
v. Raja Ram, AIR 1966 All 159 [LNIND 1965 ALL 21].
8 . EMES Chettiar v. RMANA Chettiar, AIR 1974 Mad 305 [LNIND 1973 MAD 222].
9 . Baidyanath v. Cool Purchase and Inspection Agency, AIR 1971 Pat 229; Munnisa Begum v. Noor Mohammad, AIR 1965 AP 231 [LNIND 1963
AP 235].
10 . Oriental Bank of Commerce v. Santosh Kumar Agarwal, AIR 2008 Cal 148 [LNIND 2008 CAL 478]: 2008 (2) Cal LT 509 (DB).
11 . Jose Paul v. Jose, AIR 2002 Ker 397 [LNIND 2002 KER 188] (DB).
12 . SPC Engineering Co v. Union of India, AIR 1966 Cal 259 [LNIND 1965 CAL 78], 264.
13 . Bansilal v. Ghulam, AIR 1925 PC 290: (1926) 531 A 58 : 53 Cal 88.
14 . Nathubhai v. Chabildas, AIR 1935 Bom 283: (1935) ILR 59 Bom 365.
15 . Allahabad Bank Ltd v. Gullilal, AIR 1940 All 243: (1940) ILR All 207.
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16 . AIR 1955 Cal 413 [LNIND 1954 CAL 172].

17 . Sahni v. State of Madhya Bharat, AIR 1954 MB 184: (1954) ILR MB 343 (FB); Horsburgh v. Chandroji, AIR 1957 MB 90; Jagdish Chandra v.
Santhi Moyee, AIR 1961 Cal 321 [LNIND 1960 CAL 175]: 65 Cal WN 113.
18 . Sailum Easwarayya v. Thakur Devi Singh, AIR 1953 Hyd 289: (1953) ILR Hyd 510.
19 . Adinarayana v. Lakshminarayana supra; Galley & Company v. Appalaswamy, (1946) 1 Mad LJ 11; Shimoga Oil Mills v. Radhakrishna Oil Mills,
AIR 1952 Mys 111; Sundarlal v. Jai Narain, AIR 1955 All 669 [LNIND 1955 ALL 118]; Rampal v. Girdhar Lal, AIR 1955 Ajmer 49;
Kadirsa v. Shanmugha, AIR 1960 Ker 188 [LNIND 1959 KER 330], 1960 Ker 150.
20 . Borakar Engineering and Foundry Works v. State of Bihar, AIR 1960 Cal 513.
21 . Ramasubramoniam v. Ranganthan, 1978 Ker LT 906; Jose Paul v. Jose, AIR 2002 Ker 397 [LNIND 2002 KER 188] (DB).
22 . Mohna Ramakrishanan v. Yogam Bala Dev Raj, AIR 2003 Raj 88.
23 . Canara Industrial and Banking Syndicate v. Narayan Venkatesh, AIR 1942 Bom 15: (1942) ILR Bom 101 43 BLR 916; Rampurtab v. Premsuk,
(1890) ILR 15 Bom 93; Shivji v. Hemraj, (1900) PR 57; Jewan Lal v. Oudh Commercial Bank, (1916) 34 IC 191; Basant Ram v. Kolahal, (1878)
ILR 1 All 392.
24 . Winter v. Round, (1867) 1 MHC 202.
25 . Roman v. Gopalachari, (1908) ILR 31 Mad 223.
26 . Meenakshi v. Myle, (1905) ILR 28 Mad 19.
27 . Sewaram v. Bajrangdat, (1916) ILR 40 Bom 473.
28 . D. Mulchand v. Suganchand, (1877) ILR 1 Bom 23; Narain Das v. Kotumal, (1883) PR 132.
29 . Damodar Das v. Benares Bank, (1920) 5 Pat LJ 536.
30 . Chanana Steel Tubes Pvt. Ltd. v. Jaitu Steel Tubes Pvt. Ltd., AIR 2000 HP 48.
31 . Surji Mull v. Hudson, (1904) ILR 24 Mad 259.
32 . HP State Small Industries Export Corpn. v. Export Credit and Guarantee Corpn., AIR 1992 HP 17 [LNIND 1990 HP 3].
33 . Muhammad v. Muhammad, (1916) PR 2.
34 . Nanu Mal v. Firm Shiba Mal, AIR 1939 Lah 18.
35 . Bodh Raj v. Earl Chawla & Co. Pvt. Ltd., AIR 1974 P&H 2.
36 . Vijaya Bank, Egmore, Madras v. Kiran & Co., AIR 1983 Mad 357 [LNIND 1983 MAD 334].
37 . Ibid.
38 . L.N. Gupta v. Tara Mani, AIR 1984 Del 49 [LNIND 1983 DEL 156].
39 . Delhi Cloth Mills v. Ramjilal, AIR 1982 Cal 34 [LNIND 1981 CAL 254].
40 . Dena Bank Ltd. v. Ironside Ltd., AIR 1987 Bom 227 [LNIND 1986 BOM 143].
41 . Jupiter General Assurance Co. v. Abjul Aziz, AIR 1924 Rang 2, 1 Rang 231; Rameshwar Lal v. Gulabchand, AIR 1960 Raj 243 [LNIND 1959
RAJ 85].
42 . Suganchand v. Mulchand, 9 Bom High Court 272; Mangamma v. Satya Raju, 31 Mad LJ 816; Dilbagh Raj v. Valuram, AIR 1933 Lah 940;
Harnath Raj v. Choramani Sha, AIR 1953 Nag 192.
43 . Abdul Gafoor v. Sensmal, AIR 1955 Raj 53 [LNIND 1954 RAJ 134], (1955) ILR Raj 269; Muzaffar Ali Khan v. Jawandmal, AIR 1955 Punj
93.
44 . Raghoonath v. Gobindnarain (1885) ILR 22 Cal 451.
45 . Ponnusami v. Damodarta, AIR 1924 Mad 646 [LNIND 1923 MAD 322]: (1924) ILR 47 Mad 403.
46 . Ramchandar v. Ganapatran, (1920) ILR 47 Cal 583.
47 . Alliance Assurance Co. v. Union of India, AIR 1959 Cal 563 [LNIND 1959 CAL 2]: 63 Cal WN 806.
48 . Union of India v. Adom Hajee, AIR 1954 Tr & Coch 362; Rama Rao v. Union of India, AIR 1961 AP 282 [LNIND 1960 AP 225].
49 . Fushraj Thanmull v. Union of India, AIR 1966 Cal 458; ISP Trading Co. v. Union of India, AIR 1973 Cal 74 [LNIND 1972 CAL 47];
Commissioner for the Port of Calcutta v. General Trading Corpn. Ltd., AIR 1964 Cal 290 [LNIND 1963 CAL 172].
50 . See S. Krishnamurthi Aiyars Law Relating to the Negotiable Instruments Act, 9th edn, Universal Law Publishing Co., (Revised by SK Sarvaria)
at p. 30.
51 . Ibid.
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52 . Ibid; Ellerman & Bucknall Co. Ltd. v. Misrimal Bherajee. (1966) SCC 1892, p. 1896 : (1966) Supp SCR 92.
53 . Mayur (HK) Ltd. v. Owners & Parties, Vessel MV Fortune Express, AIR 2006 SC 1828 [LNIND 2006 SC 57].
54 . Ibid, para 17.
55 . Durga Das v. Jai Narain, (1917) ILR 41 All 513; Jagan v. Gainda Mal, (1897) PR 62Jaganandan v. Kishna Chand, (1908) PWR 100.
56 . Alla Ditta v. Shankar Das, (1916) PR 42; N. Singh v. Tulshi Ram, (1919) 17 All LJ 1015.
57 . Thimmappa v. Kalakrishna, AIR 1926 Mad 427 [LNIND 1925 MAD 429]: (1926) 50 Mad LJ 298.
58 . Luchmee Chund v. Zorawur Mal, (1860) 8 MIA 291.
59 . Durga Das v. Jai Narain, (1917) ILR 41 All 513.
60 . Rajaratnam v. Muthuswami, AIR 1958 Mad 203 [LNIND 1957 MAD 171]: (1958) 1 MLJ 194 [LNIND 1957 MAD 171].
61 . Umrao Singh v. Hardeo, (1907) ILR 29 All 418.
62 . Banke Behari v. Pokhe Ram, (1903) ILR 25 All 48; India Provident Co. Ltd. v. Govinda, AIR 1923 Cal 425: (1922) 27 CWC 359 : AIR 1923
Cal 425; Asgar Aly & Co. v. Satyanarayana, AIR 1957 Cal 317.
63 . Jawahir v. Nekiram, (1915) ILR 37 All 189; Jawahir Singh v. ED Sassoon & Co., (1926) 7 Lah 61 ; AIR 1926 Lah 277; Danaji v. Firm Puran
Mal, AIR 1928 Oudh 88, (1928) 3 Luck 142; contra Dan Dayal v. Mumalal, (1914) ILR 36 All 564.
64 . Khushali Ram v. Gokul Chand, (1917) ILR 39 All 607.
65 . Kedar Nath v. Prosonna Kumar, (1901) 5 Cal WN 559; Gauri Devi v. Bishwanath Banerjee, AIR 1970 All 185 [LNIND 1968 ALL 70].
66 . Dan Dayal v. Mumalal, (1914) ILR 36 All 564.
67 . Nistarini Dasi v. Nundo Lal, (1905) ILR 30 Cal 369.
68 . Natarajan v. Saraswathi, AIR 1958 Mad 516: (1958) ILR Mad 657 71 LW 167; Nand Lal v. Abdul Hafiz, AIR 1960 J&K 76.
69 . New Moga Transport Co. v. United India Insurance Co. Ltd., AIR 2004 SC 2154 [LNIND 2004 SC 554].
70 . Patel Roadways Ltd, Bombay v. Prasad Trading Co., AIR 1992 SC 1514 [LNIND 1991 SC 347]: (1991) 4 SCC 270 [LNIND 1991 SC 347].
See also New Moga Transport Co. v. United India Insurance Co. Ltd., AIR 2004 SC 2154 [LNIND 2004 SC 554]; Anant Raj Industries Ltd v.
Balmer Lawrie & Co. Ltd., AIR 2003 Del 367 [LNIND 2003 DEL 179].
71 . Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express, AIR 2006 SC 1828 [LNIND 2006 SC 57]: (2006) 3 SCC 100
[LNIND 2006 SC 57] [P.P. Naolekar, J., speaking for the Bench].
72 . Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740 [LNIND 1971 SC 21]; Sasa Musa Sugar Works v. Chunilal, AIR 1975 Gau 34;
Associated Traders and Engineers v. USCS Industries, AIR 1975 Mad 29 [LNIND 1974 MAD 120]: (1975) 1 Mad LJ 96.
73 . Jones v. Scottish Accident Insurance Co., (1886) 17 QBD 421.
74 . Ibid; De Beers Consolidated Mines Ltd. v. Howe, AIR 1906 Cal 455; Gopal Singh v. Punjab National Bank, AIR 1976 Del 115.
75 . Watkins v. Scottish Imperial Insurance Co., (1889) 23 QBD 285.
76 . D. Keynsham Blue Lias Co. v. Barker, (1863) 2 H&C 729.
77 . De Beers Consolidated Mines Ltd. v. Howe, AIR 1906 Cal 455.
78 . Peoples Insurance Co. v. Benoy Bhusan, AIR 1943 Cal 190: (1943) ILR 1 Cal 564; Home Insurance Co. v. Jagatjit Sugar Mills Co., AIR 1952 Punj
142; Prag Oil Mils Depot v. Transport Corpn. of India, AIR 1978 Ori 167 [LNIND 1978 ORI 6].
79 . Central Warehousing Corpn. v. Central Bank of India, AIR 1973 AP 387 [LNIND 1973 AP 31] (FB).
80 . Babulall v. Calted (India) Ltd., AIR 1967 Cal 205 [LNIND 1965 CAL 195].
81 . Globe United E&F Co v. HB Boveri Ltd, AIR 1974 Del 200 [LNIND 1973 DEL 196]: (1974) 1 Del 398.
82 . State Bank of India v. Neelam Sharma, AIR 1980 P&H 251.
83 . Ibid.
84 . Fertilizer Corpn. of India Ltd. v. Ranjit Misra, AIR 1980 Ori 152 [LNIND 1979 ORI 36].
85 . KLG Systel Ltd. v. Fujitsu ICIM Ltd., AIR 2001 Dec 357.
86 . Bhamboo v. Ram Narain, AIR 1928 Lah 297: (1928) 9 Lah 455.
87 . Isnailiji v. Ismail, AIR 1921 Bom 460: (1921) ILR 45 Bom 1228; Bhujbal v. Nanheju, (1897) ILR 19 All 450.
88 . Smith v. Indian Textile Co., AIR 1927 All 413: (1927) ILR 49 All 669.
89 . Chunilal Kasturchand v. Dundappa Damppa, AIR 1951 Bom 190 [LNIND 1950 BOM 14]: (1950) ILR Bom 640; Ram Ravji v. Pralhaddas,
(1896) ILR 20 Bom 133; Girdhar v. Kassigar, (1893) ILR 17 Bom 662; Tadepalli v. Nawab Sayed, (1906) ILR 29 Mad 69; Annamalai v.
 Page 92 of 94
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Murugasa, (1903) ILR 26 Mad 544 : 30 IA 220; Rambhat v. Sankar (1901) 25 Bom 258; Srinivasa v. Venkata, (1911) ILR 34 Mad 257 :
(1911) 38 IA 129; affirming ILR 29 Mad 239; Swaminathan v. Somasundaran, AIR 1938 Mad 731: (1938) ILR Mad 1080; Neelakanda v.
Kunju, AIR 1935 Mad 545 [LNIND 1934 MAD 363]: (1935) 68 Mad LJ 506.
90 . Narain v. Balabadra, AIR 1957 Pat 256.
91 . Narasinga Rao v. Sankar Saran, AIR 1958 All 775 [LNIND 1957 ALL 157]; affirmed in AIR 1962 SC 1737 [LNIND 1962 SC 199]
supra; Karnataka Films v. Official Receiver, Madras, AIR 1952 Mad 481 [LNIND 1950 MAD 240].
92 . Kesowji v. Khimji, (1888) ILR 12 Bom 507.
93 . (1893) ILR 17 Bom 662 (a case under the Presidency Small Cause Courts Act 1882, s 18).
94 . Annamalai v. Murugasa, (1903) ILR 26 Mad 544 : 30 IA 220 (a case under s 17 of the Code of 1882, corresponding with s 20 of the
present Code).
95 . Janoo v. Batchu, AIR 1924 Mad 158: (1936) 45 Mad LJ 471; dissenting from ILR 12 Bom 507; following Girdhar v. Kassigar, (1893) ILR 17
Bom 662.
96 . Md. Yusuf v. Subramaniam Chettiar, AIR 1950 Mad 27 [LNIND 1949 MAD 270]: (1949) 2 Mad LJ 735; Panchanan v. Tarapada, AIR 1961
Cal 193 [LNIND 1960 CAL 86]: 65 Cal WN 661.
97 . Jhumarla v. Tansukrai, AIR 1957 Assam 127.
98 . World Tanker Carrier Corpn. v. SNP Shipping Services Pvt Ltd., (1998) 5 SCC 310 [LNIND 1998 SC 461].
99 . Supreme Paper Mills Ltd v. Owner and other persons Interest in the Motor Vessel ARABELLA, AIR 1999 Mad 118 [LNIND 1998 MAD 855].
100 . Nandan Iron and Metal Industries v. Fensty Inc., AIR 1992 Del 364 [LNIND 1992 DEL 321].
101 . Modi Entertainment Network v. WSG Cricket Pte Ltd, AIR 2003 SC 1177 [LNIND 2003 SC 74].
102 . New Moga Transport Co. v. United India Insurance Co. Ltd., AIR 2004 SC 2154 [LNIND 2004 SC 554]; See also Dilip Kumar Ray v. Tata
Finance Ltd, AIR 2002 Ori 29 [LNIND 2001 ORI 29].
103 . New Moga Transport Co. v. United India Insurance Co. Ltd., AIR 2004 SC 2154 [LNIND 2004 SC 554]; See Hakam Singh v. Gammon (India)
Ltd., AIR 1971 SC 740 [LNIND 1971 SC 21] and Shriram City Union Finance Corporation Ltd v. Rama Mishra, AIR 2002 SC 2402: AIR
2002 SCW 2617.
104 . Isaq Mahmad v. United India Fire & General Insurance Co., AIR 1978 Guj 46.
105 . Bhagat Ram v. Ramnivas, AIR 1949 Ajmer 44; National Petroleum Co. Ltd. v. Meghraj, AIR 1937 Nag 334; Hakam Singh v. Gammon (India)
Ltd., AIR 1971 SC 740 [LNIND 1971 SC 21]; Bombay Goods Carriers v. Sha Multhanmal Haslinal & Sons, AIR 1974 Kant 1 [LNIND 1973
KANT 168]; Manganlal v. Satya Narain, AIR 1978 All 455.
106 . Achratlal Kesavalal Mehta & Co. v. Vijayan & Co., AIR 1925 Mad 1145 [LNIND 1925 MAD 30]: 49 Mad LJ 189; Raghaviah v. Vasudeviah
Chetty, AIR 1944 Mad 47: (1943) 2 Mad LJ 375; HK Doda (India) Ltd v. MP Sugar Mills Co. Ltd., AIR 1954 Mad 845 [LNIND 1953 MAD
186]: (1954) ILR Mad 885(1954) 1 Mad LJ 434 Tilak Ram Chowdary v. Kodumal Jethanand, AIR 1928 Bom 175; Haji Abdulla v. Stamp, AIR
1924 Bom 381; Lakshmi Vilas Mills v. Vinayak, AIR 1935 Bom 195; Nilton & Co. v. Ojha Automobiles Engineering Co., ILR 57 Cal 1280 :
AIR 1931 Cal 279; Continental Drug Co. v. Chemoids and Industries Ltd., AIR 1955 Cal 161; Musaji Luknanji v. Durga Das, AIR 1946 Lah 57:
(1945) Lah 281 (FB); National Petroleum Co. Ltd. v. Meghraj, AIR 1973 Nag 334; Muhammad Khasim v. Shri Hanuman Industries, AIR 1956 T
C 200.
107 . Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740 [LNIND 1971 SC 21]; Ms Timber Pvt. Ltd. v. Skankia Ins Co., AIR 1973 J&K 86;
Singhal Transport v. Jesram, AIR 1968 Raj 89.
108 . Kanpur Sugar Supply v. Harsukhal, AIR 1971 All 502; Jhun Jhunwala Bros. v. Subbaramier, AIR 1968 Mad 194 [LNIND 1966 MAD 122];
Beacon Pharmaceutical v. Khosla, AIR 1973 Punj 160.
109 . Rajendra Mills v. HVM Haji Hasan Dada, AIR 1970 Cal 342 [LNIND 1969 CAL 144].
110 . S.C. Bose and Co. v. G. Srikanth, AIR 2006 AP 337 [LNINDORD 2006 AP 68]: 2006 (4) Andh LT 589 [LNINDORD 2006 AP 68].
111 . Pacific Refractories Ltd. v. Stein Heurtey India Projects Pvt. Ltd., AIR 2006 Bom 231 [LNIND 2006 BOM 119]: 2006 (3) Mah LJ 438
[LNIND 2006 BOM 119].
112 . AIR 1989 SC 1239 [LNIND 1989 SC 150]: (1989) 2 SCC 163 [LNIND 1989 SC 150].
113 . Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd., AIR 2004 SC 2432 [LNIND 2004 SC 501]: (2004) 4 SCC 671 [LNIND 2004 SC 501]
(Mathur, J., speaking for the Bench).
114 . Andhra Pradesh State Trading Corporation v. Auro Logistic Ltd., AIR 2006 Mad 205: (2007) II BC 683.
115 Arputham Line Release v. Raja Theatre, AIR 2006 Mad 344 [LNIND 2006 MAD 1268]: 2006 (3) Mad LJ 795.
116 . Globe Transport Corpn. v. Triveni Eng. Corpn., (1983) 4 SCC 707.
117 . Chandeshwar Singh v. Dahu Mohd., AIR 1983 Pat 257(FB).
118 . EDI Parry (India) Ltd v. Sanami Transport, AIR 1980 AP 30 [LNIND 1978 AP 176], 32.
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119 . Ganpatrai Agarwal v. Fertiliser Corpn. of India, AIR 1984 Cal 35 [LNIND 1983 CAL 146].
120 . Paradeep Port Trust v. Hindusan Fercantile Transport Cropn., AIR 1985 Ori 106 [LNIND 1984 ORI 58].
121 . ABC Laminart Pvt. Ltd. v. AP Agencies Salem, (1989) 2 SCC 163 [LNIND 1989 SC 150]; Cheema Enterprise v. Mayur Enterprise, AIR 1998
Gau 86; Rajaram Maize Products v. MPEB, Jabalpur, AIR 1999 MP 44 [LNIND 1997 MP 84]; Neyvelli Lignite Corpn. v. Vinay Engineering,
AIR 1992 Mad 333; Kitax v. D. Surekha, AIR 1992 Ker 334(DB).
122 . Prakash Roadline Pvt. Ltd. v. HMT Bearing Ltd., AIR 1999 AP 106 [LNIND 1998 AP 415] (DB); Nagesh Sales Corpn. v. Kerala Soaps and
Oils Ltd., AIR 1994 Ker 150 [LNIND 1993 KER 456]; Jabalpur Cable Network Pvt. Ltd. v. ESPN Software India Pvt. Ltd., AIR 1999 MP
271; Patel Roadways Ltd., Bombay v. Prasad Trading Co., (1991) 4 SCC 270 [LNIND 1991 SC 347].
123 . GM, ONGC, Sibsagar v. Raj Eng. Corpn., supra.
124 . State of Rajasthan v. GS Construction Corpn. Ltd., AIR 1988 Guj 73 [LNIND 1987 GUJ 30].
125 . National Hydroelectic Power Corpn. Ltd. v. Sova Enterprises, AIR 1991 Cal 324 [LNIND 1991 CAL 156] (DB).
126 . Rhodia Ltd. v. Neon Laboratories Ltd., AIR 2002 Bom 502 [LNIND 2004 BOM 522].
127 Wruttemberquische Und Badshee Vereiniahe Verisicherung Sqeseli Schaften Aktienqwselishaft Hell v. Coromandel Crucibles Industry, AIR 1990 AP 97
[LNIND 1989 AP 213] (DB).
128 . WSG Cricket Pte. Ltd. v. Modi Entertainment Network, AIR 2002 Bom 365 [LNIND 2002 BOM 319] (DB); Spiliade Maritime corp. v.
Consulex Ltd., [1987] AC 460.
129 . LT Societa v. Lakshminarayan, AIR 1959 Cal 669 [LNIND 1958 CAL 188]; Lakshminarayan v. Vereenigde, AIR 1960 Cal 45 [LNIND
1958 CAL 286]; Motabhai v. Mahalakshmi Cotton Mills, 91 CLJ 1.
130 . UL Lastochkina Odesea, USSR v. Union of India, AIR 1976 AP 103 [LNIND 1975 AP 65].
131 . Rajendra Sethia v. Punjab National Bank, AIR 1991 Del 285 [LNIND 1991 DEL 56].
132 Modi Entertainment Network v. WSG Cricket Pte. Ltd., AIR 2002 Bom 222 [LNIND 2002 BOM 92].
133 Nirmala Balagopal v. Venkatesulu Balagopal, AIR 2004 Mod 255.
134 . Periwal Packing Industries v. Fertilizers, AIR 1982 Cal 350 [LNIND 1982 CAL 67].
135 Jatinder Nath v. Chopra Land Developers Pvt. Ltd., AIR 2007 SC 1401 [LNIND 2007 SC 278]: (2007) 11 SCC 453 [LNIND 2007 SC 278].
136 Ibid, at page 1408; Kapadia, J. (as he then was) speaking for the Bench.
137 Jay Polychem (India) Ltd. v. Kotak Mahindra Bank Ltd., AIR 2009 Del 187 [LNIND 2009 DEL 2183]: 2009 (158) DLT 363 [LNIND 2009
DEL 2183].
138 . Jaishree Luxury House Kota v. Kathotia Sons, Delhi, AIR 1980 Raj 42.
139 . Sponge Iron India v. Andhra Steel Corpn., AIR 1989 AP 206 [LNIND 1988 AP 133].
140 New Moga Transport Co. v. United India Insurance Co. Ltd., AIR 2004 SC 2154 [LNIND 2004 SC 554].
141 . Consolidated Agencies v. Gujrat Carbon & Industries Ltd., AIR 2002 Mad 396 [LNIND 2002 MAD 174] (DB).
142 Tara Chand Boid v. Shikam Chand Bhora, AIR 1995 Ori 199 [LNIND 1994 ORI 99].
143 . Rajasthan Golden Transport Co. Ltd. v. United India Fire and General Insurance Co. Ltd., AIR 1980 Guj 184 [LNIND 1979 GUJ 239].
144 . All Bengal Transport Agency v. Hare Krishna Bank, AIR 1985 Gau 7(RL Hansaria J).
145 . Shree Subhlaxmi Fabrics Pvt. Ltd. v. Chand Mal Boradia, AIR 2005 SC 2161 [LNIND 2005 SC 305]: (2005) 10 SCC 704 [LNIND 2005 SC
305].
146 . Renown Biscuit Co. Bombay v. Kamalanathan, AIR 1980 Mad 28 [LNIND 1979 MAD 28].
147 . Ranjana Nagpal v. Devi Ram, AIR 2002 HP 166 [LNIND 2001 HP 76]. See also Dilip Kumar Ray v. Tata Finance Ltd., AIR 2002 Ori 29
[LNIND 2001 ORI 29].
148 . State of Gujarat v. Sarti Devi, AIR 1996 SC 937 [LNIND 1995 SC 1191].
149 . Dharmal v. Jhankidas, 49 Cal WN 123; Ram Bahadur Takur & Co. v. Devi Dayal (Sales) Ltd., AIR 1954 Bom 176 [LNIND 1953 BOM 84]:
(1954) ILR Bom 334; HK Dada (India) Ltd. v. MP Sugar Mills, AIR 1954 Mad 845 [LNIND 1953 MAD 186]; Sanghvi v. Asher Textiles Ltd.,
(1961) 2 Mad LJ 337.
150 . Prakash Poadlines Pvt. Ltd. v. PM Gounder & Co., AIR 1995 Mad 84.
151 . Modi Entertainment Network v. WSG Cricket Pte. Ltd., AIR 2003 SC 1177 [LNIND 2003 SC 74] See Also Hakim Singh v. Gammon (India)
Ltd., AIR 1971 SC 740 [LNIND 1971 SC 21]; Patnaik Industries Pvt. Ltd. v. Kalinga Iron works, AIR 1984 Ori 182 [LNIND 1984 ORI
147]; Mahesh Chand Gupta v. Assistant Collector Delhi, AIR 2004 Del 101 [LNIND 2003 DEL 735].
152 . Arputham Give Release by its proprietor, Pondicherry v. Raja Theater, AIR 2006 Mad 344 [LNIND 2006 MAD 1268].
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153 . Indian Contract Act 1872, s 37.

154 . Shah Prabhudas v. Eurasian Equipments, AIR 1977 Cal 449 [LNIND 1977 CAL 142].
155 . S. Sarabhai v. ET Organisation, AIR 1975 Guj 72.
156 . Kumud v. Fertiliser Corpn. of India, AIR 1985 Cal 89 [LNIND 1984 CAL 84] (reviews case law).
157 . Bhagat Ram v. Gupta Cables, AIR 1977 Cal 451 [LNIND 1977 CAL 183]; Ghatge and Patil (Transport) Ltd. v. Madhusudan, AIR 1977 Bom
299 [LNIND 1976 BOM 245]: 79 Bom LR 378.
158 . Dilip Kumar Ray v. Tata Finance Ltd., AIR 2002 Ori 29 [LNIND 2001 ORI 29].
159 . Mohna Ramakrishanan v. Yogam Bala Dev Raj, AIR 2003 Raj 88.
160 . Hindustan Metals v. Vishal Goods Transport Co., AIR 2002 Raj 248.
161 . Special Secretary v. Venkataramana Sesha Iyer, AIR 1984 AP 5 [LNIND 1983 AP 193] (DB).
162 . Dura-Live India Pvt. Ltd. v. BPL Broadband Network Pvt. Ltd., AIR 2004 Del 186 [LNIND 2003 DEL 1189].
163 . Isaq Mahmad v. United India Fire and General Insurance Co., AIR 1978 Guj 46.
164 . Babu Ram Lal, Mandi v. New Delhi Assurance Co. Ltd, New Delhi, AIR 1980 Raj 126.
165 . United India Insurance Co. Ltd. v. ATC Pvt. Ltd., AIR 1989 Ker 36.
166 . Sponge Iron India Ltd. v. Andhra Steel Corpn. Ltd., Bangalore, AIR 1989 AP 206 [LNIND 1988 AP 133] (DB).
167 . Baldev Steel Ltd. v. Empire Dyeng & Manufacturing Co. Ltd., AIR 2001 Del 391 [LNIND 2001 DEL 669].
168 . Bata Shoe Co. v. Union of India, AIR 1954 Bom 129 [LNIND 1953 BOM 1].

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

S. 21. Objections to jurisdiction.

169[(1)] No objection as to the place of suing shall be allowed by any Appellate or

Revisional Court unless such objection was taken in the Court of first instance at
the earliest possible opportunity and in all cases where issues are settled at or before
such settlement, and unless there has been a consequent failure of justice.
170[(2) No objection as to the competence of a Court with reference to the
pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional
Court unless such objection was taken in the Court of first instance at the earliest
possible opportunity, and in all cases where issues are settled, at or before such
settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the
local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court
unless such objection was taken in the executing Court at the earliest possible
opportunity, and unless there has been consequent failure of justice.]

1. Scope. Sub-section 1 of s 21 was inserted with a view to expedite disposal of the suits
and to avoid entertainment of technical objections about territorial jurisdiction, unless
there is a failure of justice. Sub-section (1) of s 21, provides that the objection regarding
territorial jurisdiction can be raised at the earliest possible opportunity and even if it is so
raised, it would not be fatal, unless there is a failure of justice. Thus, the mandatory
provisions as envisaged under sub-s (1) of s 21 of the Code of Civil Procedure, clearly provides
that before raising objections with regard to territorial jurisdiction before the appellate or
the revisional courts, the appellants are required to satisfy three conditions precedent with
regard to such an objection about the territorial jurisdiction, which are as follows:
(a) the objection must be taken in the court of first instance;
(b) the objection must be taken at the earliest possible opportunity i.e. before the issues
are settled ; and
(c) there has been consequent failure of justice.
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It is thus, easily deducible that within the meaning of sub-s (1) of s 21, a statutory
recognition has been given to the principle that the objection regarding territorial
jurisdiction can be waived if the defendant waives this objection by his conduct or
otherwise than subsequently on account of this waiver, he can be precluded from taking
any such objection before the appellate or revisional courts.171

However, the same High Court, relying upon Kiran Singh v. Chaman Paswan 172 has held that
the objection regarding jurisdiction can be raised at any time even during the appeal. It was
observed that when the court, which has decided the matter, and had no jurisdiction to
adjudicate the dispute, the decree passed by such court is nullity and its validity can be
questioned at any time even in an appeal or even during the execution proceedings.
Consent of the parties or the silence or the inaction of parties in challenging the
jurisdiction will not confer jurisdiction on the court to adjudicate the dispute, which
otherwise the court has no jurisdiction to decide.

The plea of jurisdiction goes to the very root of the matter. The trial court having held that
it had no territorial jurisdiction to try the suit, the High Court should have gone deeper
into the matter and until a clear finding was recorded that the court had territorial
jurisdiction to try the suit. No injunction could have been granted in favour of the plaintiff
by making a general remark that the plaintiff has an arguable case that he did not
consciously agree to the exclusion of the jurisdiction of the court.173

2. High Courts. This section does not apply to High Courts in the exercise of their
original jurisdiction.174Section 21 of the Code of Civil Procedure is not applicable to the original
side of the High Court; but, waiver can operate independently of s 21. Section 21 is a
statutory recognition of the principle that the defect as to the place of suing (under ss
1520) may be waived independently of this section, and the defendant who may waive the
objection may be subsequently precluded from taking it.175

However, the observations of Lord Derbyshire, C.J., speaking for the Division Bench of
Calcutta High Court in the undernoted case176 is very illuminating:

It must be noted at this stage that Cl. 12 gives this Court its jurisdiction. The jurisdiction of the Original Side of this Court is not given to it by Sec. 20 of the
Code of Civil Procedure. Section 20, C.P.C., does not apply to the Original Side of the Chartered High Court, (see Sec. 120 of the Code of Civil Procedure ).
If this Court has jurisdiction to entertain the suit, there is no need to invoke the aid of Sec. 21 of the Code of Civil Procedure. If this Court has no jurisdiction
to entertain this suit, then the Judge in the Court of first instance has no jurisdiction to hear the case and this Court sitting as an Appellate Court has no
jurisdiction to entertain the appeal. That being so, this Court has no jurisdiction to consider the matter and has no jurisdiction to apply Sec. 21 of the Code of
Civil Procedure, and it seems to me, therefore, that Sec. 21 of the Code can have no application in a case of this kind which is brought on the Original Side of
this Court

In a recent decision, the Calcutta High Court reiterated the decision given in the Maharaja
Bahadur of Hathwa case (supra) and held that s 21 of the Code does not apply to High Court
in exercise of its original civil jurisdiction. It further held that cases relating to banking
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transactions form exception to the rule that debtor should seek his creditor. Therefore,
Bank cannot be prevented from re-arguing point of jurisdiction over again.177

3. Sections 21 and 99 of the Code of Civil Procedure and Section 11 of the Suits
Valuation Act, 1987 Policy underlying. The policy underlying s s 21 and 99 of the Code of
Civil Procedure and s 11 of the Suits Valuation Act, 1887 is the same, namely, that when a case
had been tried by the court on the merits and the judgment rendered, it should not be
liable to be reversed purely on technical grounds, unless it had resulted in failure of justice,
and the policy of the legislature has been to treat objections to jurisdiction both, territorial
and pecuniary, as technical and not open to consideration by an appellate court, unless
there has been a prejudice upon merits.178 The mere defect in the territorial or pecuniary
jurisdiction, such as can be cured by s 21 of the Code of Civil Procedure 1908 or s 11 of the Suits
Valuation Act, 1887, does not make the decree a nullity. Therefore, a decree based on
compromise between parties to a suit is not void ab initio or a nullity merely because it
involves an amount which exceeds the pecuniary limits of the jurisdiction of the court that
passed it.179 A decree based on compromise, involving an amount exceeding the pecuniary
limits of jurisdiction of the court passing it, is an irregularity which does not nullify a
decree.180

4. Meaning of jurisdiction in relation to. The jurisdiction of a court may be classified

into several categories. The important categories are (i) territorial or local jurisdiction; (ii)
pecuniary jurisdiction; and (iii) jurisdiction over the subject matter. So far as territorial and
pecuniary jurisdictions are concerned; objection to such jurisdiction has to be taken at the
earliest possible opportunity and in any case at or before settlement of issues. The law is
well settled on the point that if such objection is not taken at the earliest, it cannot be
allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is
totally distinct and stands on a different footing. Where a court has no jurisdiction over the
subject matter of the suit by reason of any limitation imposed by statute, charter or
commission, it cannot take up the cause or matter. An order passed by a court having no
jurisdiction is a nullity.181 The views expressed by the Supreme Court in the DLF Universals
case (supra) has been reiterated in a later decision.182 In para 23 of the judgment, S.B.
Sinha, J., has observed as follows:

23. We may, however hasten to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the
light of Section 21 of the Code of Civil Procedure; and a decree passed by a court having no jurisdiction in regard to the subject matter of the suit. Whereas in
the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with.

In Harshad Chiman Lal Modis case (supra), the Supreme Court quoted with approval an
earlier decision in Kiran Singhs case,1 wherein it has been observed as follows:

It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever it is
sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdictionstrikesat the very authority of the
Court to pass any decree, and such a defect cannot be cured even by consent of parties.
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In a case relating to termination of service of an employee, where the Supreme Court

found the dispute to be one under the Industrial Disputes Act and the jurisdiction of civil
court barred, it was held that it was not material whether the objection to jurisdiction was
raised at the initial stage or not.2 Sirpurkar, J., speaking for the Bench, observed as follows:

Once the original decree itself has been held to be without jurisdiction and hit by the doctrine of coram non judice, there would be no question of upholding the
same merely on the ground that the objection to the jurisdiction was not taken at the initial, First Appellate or the Second Appellate stage.

In a recent decision, the Supreme Court has held that it is permissible to raise objection to
the jurisdiction as any stage when the objection is as regards the subject matter of the suit.3
It has been observed in the above case as follows:

19. A distinction, however, must be made between a jurisdiction with regard to subject-matter of the suit and that of territorial and pecuniary jurisdiction.
Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal had no
jurisdiction in relation to the subject-matter of claim. As a matter of fact the civil court had no jurisdiction to entertain the suit. If the Tribunal had the
jurisdiction to entertain a claim petition under the Motor Vehicles Act, in our opinion, the Court should not have, in the absence of any finding of sufferance of
any prejudice on the part of the first respondent, entertained the appeal.

By jurisdiction is meant the authority which a court has, to decide matters that are litigated
before it or to take cognizance of matters presented in a formal way for its decision. The
limits of this authority are imposed by the statute, charter, or restricted by the like means.
If no restriction or limit is imposed, the jurisdiction is said to be unlimited.4

A limitation may be : (a) as to the subject matter; (b) as to person; (c) as to the pecuniary
value of the suit; or (d) as to place; or it may partake of two or more of these
characteristics.5

(a) Subject Matter. Subject matter depends upon the nature of the cause of act ion and the
relief prayed for. Thus, a Presidency Small Causes court has no jurisdiction to entertain
certain suits such as suits for the recovery or partition of immovable property; suits for
compensation for defamation; suits for dissolution of partnership, etc.6 If a Presidency
Small Causes Court or a Provincial Small Causes Court entertains a suit which is excluded
from its cognizance, its decree is a nullity.7

(b) Person. The general rule as stated by Garth CJ in Olner v. Lavezzo 8 is that civil courts
here, as in England have jurisdiction to try all civil suits against all persons of any
nationality, within the local limits of their jurisdiction. Independent foreign sovereigns are
exempt but may submit themselves to jurisdiction by appearance to a writ.9

(c) Pecuniary Value of the Suit. Throughout India, there are courts of different grades having
jurisdiction in suits of different amounts in different local areas. These have been set forth
in the notes to s 15 where the principles regulating pecuniary jurisdiction are also
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discussed. A suit may be over-valued and instituted in a court of a higher grade; or it may
be under-valued and instituted in a court of a lower grade, but s 11 of the Suits Valuation Act
7 of 1887, now provides, that an objection on this ground shall not be entertained by an
appellate or a revisional court unless; (1) the objection was taken in the court who first
framed and recorded it, or (2) the appellate or revisional court is satisfied that the over-
valuation or under-valuation has prejudicially affected the disposal of the suit on its
merits.10

The Himachal Pradesh High Court has held that the plea of under-valuation raised for the
first time in appeal is not sustainable in the absence of merits of the case having been
prejudicially affected. Further, no objection as to the competence of a Court with reference
to its pecuniary jurisdiction shall be allowed unless there has been a consequent failure of
justice.11

(d) Place of Suing. This phrase may refer to territorial jurisdiction in its wider sense as where
the suit is not cognizable by an Indian court, being for instance, a suit for partition of land
outside India; or in its narrower sense of the local venue in India for suits cognizable by
Indian courts.

Judicial opinion has been divided as to in which of the two senses the phrase place of suing
has been used in this section. Some decisions hold that it is limited to local venue for
which rules have been enacted in ss 1520;12 while others take the view that it applies to all
questions of territorial as contrasted with inherent jurisdiction.13 The question is now
concluded by the decision of the Supreme Court in Hiralal v. Kalinath.14 There, a suit was
filed in the original side of the High Court of Bombay after obtaining leave under cl 12 of
the Letters Patent on the allegation that part of the cause of act ion arose in Bombay. The
suit was then referred to arbitration and it resulted in an award in favour of the plaintiff. A
decree was passed in terms of the award and that was put in execution. The judgment-
debtor resisted it on the ground that no part of the cause of action had arisen in Bombay,
and therefore, the High Court had no jurisdiction to try the cause and that the decree was a
nullity. In rejecting his contention, the Supreme Court observed:

It is well-settled that the objection as to local jurisdiction of a court does not stand on the
same footing as an objection to the competence of a court to try a case which goes to the
very root of the jurisdiction and where it is lacking, it is a case of inherent lack of
jurisdiction. On the other hand, and objection as to the local jurisdiction of a court can be
waived and this principle has been given a statutory recognition by enactments like s 21 of
the Civil Procedure Code.

In view of this decision, the question whether s 21 applies in terms to objections to local
jurisdiction other than those covered by ss 1520 would appear to be academic as the
general principal underlying the section would in any event be applicable.
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This decision also settles the controversy in the Indian courts15 as to the validity of the
decree passed by court A in a suit which had been instituted in that court in violation of
the agreement of the parties specifying court B as the forum for adjudication of disputes
under the contract. As already stated, courts in India derived their jurisdiction from the
Code and it is not open to the parties by agreement to invest them with or divest them of
their jurisdiction.16 There being therefore, no inherent lack of jurisdiction in court A, any
objection based on the agreement is one relating to a place of suing and that falls within
the saving of s 21. The decisions therefore, which hold that the decree passed by court A
would be a nullity are no longer good law.17 In s (21)(1), the expression place of suing
covers also objection to the place of suing on the ground that the forum chosen is in
violation of the forum selection clause.18 The plaintiff had submitted to the jurisdiction of
a court by valuing his suit at a particular level. He had sought a relief from the court and,
on being denied the relief, had agitated against the decision in the appellate forum, without
raising any objection. It was held that the objection as to under-valuation and want of
jurisdiction, cannot be raised by the plaintiffs legal representatives, who had been
substituted for the plaintiffs.19

5. Judgment of the Court not competent to deliver it. See notes to s 11 under the same
heading.

6. Execution Proceedings: Sub-section 3. The section before its recent amendment did
not apply to execution proceedings.20 The new sub-s (3) however extends the rule of
waiver laid down in this section to execution proceedings also. Hence, an objection as to
the competence of the executing court with reference to the local limits of its jurisdiction
would be disallowed by the appellate or revisional court, unless the conditions therein laid
down, viz, that such objection was preferred in the executing court at the earliest
opportunity and that there has been a consequent failure of justice, are complied with. The
words of sub-s (3) are mandatory. Hence, the appellate or revisional court must reject the
objection unless both the conditions which are cumulative have been complied with.

7. Waiver of objection to jurisdiction

(a) General Rule. It is a fundamental rule that a judgment of a court without jurisdiction is a
nullity.21 Where by reason of any limitation imposed by statute, charter, commission, a
court is without jurisdiction to entertain any particular act ion or matter, neither the
acquiescence nor the express consent of the parties can confer jurisdiction upon the court
nor can consent give a court jurisdiction if a condition which goes to the jurisdiction has
not been performed or fulfilled. Where a limited court takes upon itself to exercise a
jurisdiction it does not possess, its decision amounts to nothing.22 The general rule,
therefore, is that consent cannot give jurisdiction, and, want of jurisdiction cannot be
waived.
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(b) Want of Jurisdiction and Irregular Exercise of Jurisdiction. There is an apparent conflict in the
reported cases on this subject owing to the failure to keep clearly in view, the distinction
between want of jurisdiction and irregularity in the exercise of jurisdiction, or to use the
phrase of Mookerjee J., irregularity in the assumption of jurisdiction.23 The leading case on
the subject is Ledgard v. Bull 24 decided by the Privy Council in 1886. The suit was for
damages and an injunction for infringement of a patent. Under the Patents and Designs
(Amendment) Act, 1950 (Now stands repealed), such a suit could only be brought in a
District Court, but it was brought in the court of a subordinate judge who had no
jurisdiction to entertain it. The suit was eventually transferred from the subordinate judges
court to the District Court, and there heard and decided. The defendant contended that an
order for transfer of a suit from one court to another under s 24 could not be made, unless
the suit had been brought in a court having jurisdiction, but his contention was overruled.
The same view was taken by the High Court on appeal. The judicial committee held that
the suit having been instituted in a court which had no jurisdiction, no order of transfer
could be made, but that the District Court being competent to entertain and try the suit if
it were competently brought, the defendant could waive the objection to the irregularities
of its institution, but that he had not done so, and the decree of the District Court could
not, therefore, stand and it ought to have been set aside by the High Court. Lord Watson
in delivering the judgment of the Board said:

The District Judge was perfectly competent to entertain and try the suit if it were competently brought, and their Lordships do not doubt that, in such a case, a
defendant may be barred, by his own conduct, from objecting to irregularities in the institution of the suit. [But] when the judge has no inherent jurisdiction over
the subject matter of a suit, the parties cannot, by their mutual consent convert it into a proper judicial process, although that may constitute the judge their
arbiter, and be bound by his decision on the merits when these are submitted to him; but there are numerous authorities which establish that when in a cause
which the judge, competent to try the parties without objection, joins issue and goes to trial upon the merits, the defendant cannot subsequently dispute his
jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit.

The principles laid down in Ledgard v. Bull were reiterated by their Lordships of the Privy
Council in Meenakshi Naidu v. Subramania Sastri.25 That was a case in which no appeal was
provided for by an enactment. Their Lordships held that the decree of the High Court was
a nullity. In the course of the judgment their Lordships said:

In the present case there was an inherent incompetency in the High Court to deal with the question brought before it and no consent could have conferred upon
the High Court that jurisdiction which it never possessed.

These two cases illustrate the distinction between want of jurisdiction and irregular
exercise or assumption of jurisdiction. Irregular exercise or assumption may be waived as it
could have been in Ledgard v. Bull and therefore, if a court were erroneously to assume
jurisdiction, to try a suit over which it has inherent jurisdiction its decree may be set aside
but it cannot be treated as a nullity;26 but, when the court is not competent to entertain to
try the suit, there is want of inherent jurisdiction which cannot be waived. Thus, where a
suit was exclusively triable by the revenue court under s 38 of the Rajasthan Tenancy Act,
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1955 but was tried by a civil court, it was held that the objection as to jurisdiction could be
raised at thze stage of appeal.27 If the railway at the destination station is not liable for
damages to goods or person as under the unamended s 80 of the Indian Railway Act, the
court at the destination station is incompetent to entertain the suit. Such an infirmity being
of inherent lack of jurisdiction, the section is inapplicable to such a situation.28

(c) Interlocutory Orderseffect on. If the court had no jurisdiction at all to entertain the suit, then
anything done by it, e.g., interlocutory orders passed by assuming such jurisdiction, would
be totally without competence. The mere fact that such incompetence is discovered
subsequently, would not render the intermediate acts and findings till the date of discovery
of such incompetence as valid. To accept this argument, would lead to a very strange
situation. Orders passed by a court, which is incompetent to entertain the proceedings: (i)
would then be valid between the date when the proceedings are entertained and the
discovery of its incompetence; but (ii) would not be either binding or operative, after the
date of discovery of the incompetence of the court. Either the court is competent, or it is
incompetent, to entertain suits and to pass orders therein;29 but here again, there are
certain exceptions. If the objection to the jurisdiction is on the ground that the trial court
had no jurisdiction because the suit being of a small cause nature, was not cognizable by it,
such objection, if not taken in the trial court, cannot be raised in revision.30 Similarly,
objection to the assumption of jurisdiction by the District Judge in a suit for dissolution of
marriage under the Muslim Marriages Act, 1939, after the District Judge had recorded the
finding of the husbands impotence was held impermissible under this section, save where
failure of justice was established.31 If the court has no owing jurisdiction to some privilege
attached to a party, that party can waive such privilege. Thus, a defendant may waive his
status as an agriculturist. Another exception is in the case of pecuniary jurisdiction enacted
in s 11 of the Suits Valuation Act 7 of 1887, and this section proceeds on the lines of that
section. A third expression to this section is that to a place of suing or the local venue of
suits within the cognizance of Indian courts.

8. Objection as to place of suing. The words place of suing occur in the heading of ss
1525, a group of sections which refer to the local venue of suits cognizable by Indian
courts in India and in places to which the Code applies. Sections 1520 lays down rules as
to place of suing and there is no doubt that in that section the expression is used with
reference to those rules. Those rules regulate the venue in places in India where the Code
applies. They deal with matters of domestic concern and prescribe rules for assumption of
territorial jurisdiction by Indian courts in matters within their cognizance. Section 21 is,
therefore, limited in the same way and has no application to a case not cognizable by
Indian courts.32 The decision of the Privy Council in Setrucherla v. Maharaja of Jeypore 33
makes this clear. The suit was instituted in the court of subordinate judge of Viz agapatam
on a mortgage of property which was partly situated in Viz agapatam and partly in a
scheduled district to which the Code did not apply. The defendant did not object to the
jurisdiction of the court and a decree was passed for the sale of the whole of the property.
On appeal, the defendant objected for the first time to the jurisdiction of the trial court.
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The High Court overruled the objection in view of the provision of s 21. The Privy
Council, however, upheld the objection on the ground that s 21 only applied when the
right place of suing was one subject to the Code. Their Lordship said:

This is not an objection to the place of suing: it is an objection going to the nullity of the order on the ground of want of jurisdiction.

Another instance is the case of Manjappa v. Rajagopala,34 where a court in the Madras
Presidency passed a decree in a suit which was in the cognizance of a foreign court in
Mysore, and the High Court held that the defect of jurisdiction could not be curbed by s
21. Again, when a subordinate judge passed a decree on a mortgage of lands in the Santhal
Parganas, in a suit which the legislature had withdrawn from the cognizance of the civil
court as they were under settlement, there was no question of the application of s 21, and
the court of execution was entitled to treat the decree as a nullity and to refuse to execute
it.35 In the courts of the jurisdiction it was, however, observed that where the decree
presented for execution was made by a court which apparently had [no] jurisdiction
whether pecuniary or territorial or in respect of the judgment-debtors person to make the
decree the executing court is entitled to refuse to execute it on the ground that it was made
without jurisdiction. (See the interpretation put upon the word apparently occurring in this
passage in Amalabala Dasi v. Sarat Kumar Dasi.36 A defect in the territorial or pecuniary
jurisdiction such as can be cured by s 21 of the Code or s 11 of the Suits Valuation Act, does
not make the decree a nullity and so, the execution court cannot refuse to execute it.37

On the other hand, when the suit is one within the cognizance of Indian courts and the
want of jurisdiction is only as to its local venue under ss 1520, the defect may be waived
under this section. This section is a statutory recognition of the principle that the defect as
to place of suing under ss 1520 may be waived. Where the defendant allows the trial to
proceed to judgment without raising the objection and takes the chance of a verdict in his
favour, he waives the objection. Long and continued participation in the proceedings
without any protest may, in an appropriate case, also amount to a waiver. Such a waiver is,
however, limited to objections as to jurisdiction in the appellate and revisional court.38
Thus, if the defendant, a resident in the jurisdiction of court A, is sued in court B on the
allegation that he resides in its jurisdiction, he cannot raise this objection for the first time
in appeal,39 nor can in a subsequent suit the decree be set aside as a nullity.40 If a suit on a
mortgage of land in the jurisdiction of court B is instituted in court A contrary to the
provisions of s 16, and the defendant does not object, the decree is not a nullity.41 So also,
where the territorial jurisdiction of the court is altered by a notification during the
pendency of the suit.42

Where a suit pending in a civil court in its original jurisdiction was transferred to a small
cause court which had no jurisdiction to try it, it was held that the decree was nullity and
that the objection, thereto did not fall within s 21 as it related not to the place of suit, but
to a court.43 A passing of act ion founded on an allegation of infringement of trade mark
must be filed under s 73 of the Act in the court not inferior to the District Court. The City
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Civil Court has no jurisdiction to entertain the suit and the decree passed therein is a nullity
and, that is an objection which can be raised in execution proceedings.44

9. Objection as to place of suing, when to be taken (a) General Rule. The general rule is
that an objection to jurisdiction may be taken at any stage of the proceedings provided
there are materials on the record to sustain it.45 A plea regarding under-valuation and
insufficiency of court fee can be taken in the written statement and separate application is
not necessary.46 It must be taken for the first time in appeal or in second appeal,47 or in
revision,48 or after remand in second appeal,49 or in appeal to the Supreme Court, provided
the objection is patent on the face of the proceedings.50 This section which is framed on
the analogy of s 11 of the Suits Valuation Act, 1887 is an exception to this general rule.51

(b) Objection to be Taken at Earliest Stage of the Suit. The law is well-settled that if objection to
territorial and pecuniary jurisdiction is not taken at the earliest, it cannot be allowed to be
taken at a subsequent stage.52

As a matter of interpretation it will be seen that forum can be chosen by the parties on
their options and all objections regarding choosing the forum is to be determined at the
first instance and if necessary by passing order returning the plaint (O 7, r 10) for
presentation in proper court. It is also the settled question of law that all objections
towards jurisdiction is to be taken at the earliest point of time as per mandate of s 21 of the
Code of Civil Procedure 1908. It is not proper on the part of the appellate court to set aside
the judgment and order of the trial court on this technical ground, unless there was a
finding that due to assumption of such jurisdiction the case is likely to end in a case of
failure of justice.53

In a suit for declaration of right, title, interest and possession of property in dispute, the
defendant did not in the original written statement, raise the question of want of pecuniary
jurisdiction. Long after the issues were settled and the suit set down for hearing, an
amendment on the ground of pecuniary jurisdiction cannot be allowed. If the plea was
accepted, the jurisdiction of the trial court would be ousted. An amendment to oust
jurisdiction of a court should not ordinarily be granted, particularly on a belated application
for amendment.54 The only objection of the judgment-debtor was that the properties
which were the subject matter of the mortgage suit were outside the territorial jurisdiction
of the court. Having taken this objection, the judgment remained ex parte, both at the stage
of the preliminary decree and at the stage of the final decree in the suit. It was held that the
judgment-debtor must be deemed to have waived whatever objection to the territorial
jurisdiction he might have put forth in his written statement which he filed in answer to
the claim.55 If the objection of pecuniary jurisdiction is taken after the evidence is
recorded, the prayer of de novo recording of evidence (in the transferee court to which the
suit is transferred from the incompetent court), cannot be granted.56

The section does not refer to the court of first instance and objection may be taken at any
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time before the final judgment.57 It can be raised even before the filing of written
statement58 or by the court itself even if it is not raised by the defendant.59

The objections relating to the pecuniary or territorial jurisdiction should be raised at the
earliest, and if the parties omit to plead and raise the objection at a later stage, the
unsuccessful party would be precluded to raise lack of jurisdiction.60

(c) Outer Limit for Taking Objection. Under s 21 of the Code of Civil Procedure it is clear that no
objection as to place of suing shall be allowed by any appellate or revisional court unless
the same objection was taken in the court of first instance at the earliest possible
opportunity and before the settlement of issues. Therefore, under the terms of the section,
the following position is clear: (a) normally objection as to place of suing should be taken
at the court of first instance at the earliest possible opportunity and (b) the outer limit of
this earliest opportunity is the time before the issues are settled. The issues are settled by
the court under O 14 of the Code of Civil Procedure only after the pleadings are filed under O
7 and O 8.61

In writ proceedings, there is no procedure for settlement of issues but if at the threshold of
hearing after the pleadings have been filed these issues of jurisdiction have been raised by
the respondents. Therefore, the respondents are well within their right to raise the issue.62

(d) Appeal and Revisionconditions and Instances. Conditions to be fulfilled, if the appellate or
revisional court is to entertain an objection to the territorial jurisdiction of the trial court:

(i) the objection was taken in the trial court;

(ii) it was taken at the earliest opportunity and, where issues have been framed, it was taken
before the issues were framed;

(iii) trial in the wrong court has occasioned failure of justice.

All these three conditions must be satisfied.63 Even if objection of jurisdiction has been
taken by the petitioner at the earliest possible opportunity, what has to be established
under s 21 (1) is that entertainment of the suit by the trial court, had caused failure of
justice.64 Plea of want of territorial jurisdiction on the part of the trial court must be
rejected in appeal, unless it be shown that want of territorial jurisdiction had led to the
failure of justice.65

But, under this section, a court of appeal or revision will entertain the objection if it has
been taken at the earliest possible opportunity in the court of first instance, and if issues
have been settled, at or before the settlement of issues. Even then the court of appeal or
revision will not allow the objection unless there has been a failure of justice.66 The new
sub-s (2) makes these two requirements necessary to the objection as to the pecuniary
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limits of the courts jurisdiction. If the objection is raised for the first time in appeal or
revision, it is excluded by the terms of the section;67 but, in a case where the court of small
cause sets aside an ex parte decree, although the application should have been made to the
munsif of another court, the objection was entertained in revision on the ground that it
referred not only to the place of suing but to the nature of the court itself.68 So also, where
the defendant appeared and orally objected to the jurisdiction of the court and was
directed to raise the same in his written statement, he cannot be held to have waived his
objection by complying with the order of the court and is entitled to put forth the same in
the suit.69

Objection to the pecuniary jurisdiction of the court, raised for the first time in revision,
could not be allowed. Section 21(2) of the Code of Civil Procedure, specifically provides that an
objection to the pecuniary jurisdiction of a court should be raised at the earliest stage of
proceedings in a suit and that it should further be shown that some prejudice had resulted
to the aggrieved party, before the proceedings of the court not having the requisite
pecuniary jurisdiction could be set aside. An order passed in revision, allowing the
objection regarding want of pecuniary jurisdiction in ignorance of the Code of Civil Procedure,
was clearly erroneous and, as such, could be reviewed.70

Where, preliminary issue pertaining to jurisdiction was decided by the trial court in
affirmative but no decision regarding pecuniary jurisdiction was given in the order, the
plaintiff amended the plaint and defendant thus having no opportunity to file appeal
/revision against order on the question of pecuniary jurisdiction of the court, additional
written statement was filed by defendant subsequent to amendment of plaint and objection
as to pecuniary jurisdiction reiterated therein, while passing decree, trial court gave finding
as to pecuniary jurisdiction though no specific issue to that effect was framed, such finding
being given for the first time, the defendant was found entitled to raise objection against it
in first and second appeal.71

(e) Legal Representativeslimitation of. Where the plaintiff had submitted to the jurisdiction of a
court, by valuing his suit at a particular value, and the finding went against him, he
appealed to the District Judge, but died during the pendency of the appeal. On his death,
his legal representatives sought to challenge the valuation praying for leave to amend the
plaint, stating that the valuation was much higher and that the court below had no
jurisdiction. It was held that the legal representative could not do so. Legal representative
of a decreased party cannot take a plea which the deceased himself could not have raised.72

10. Parties not raising objection to jurisdictionrejection of plaint improper. When

there was neither an application for rejection of the plaint nor for return of the plaint
under O 7, rr 10 and 11 of the Code of Civil Procedure 1908, filed by the
respondents/defendants and the order of the High Court directing return of the plaint was
wholly outside the scope of the pending appeals. In fact, the issue relating to territorial
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jurisdiction of the High Court to entertain the appellants suit was not even raised in the
Memorandum of Appeal.73

Besides when an objection to jurisdiction is raised by way of demurrer and not at the trial,
the objection must proceed on the basis that the facts as pleaded by the initiator of the
impugned proceedings are true. The submission in order to succeed must show that
granted those facts the court does not have jurisdiction as a matter of law. In rejecting a
plaint on the ground of jurisdiction, the High Court should have taken the allegations
contained in the plaint to be correct.74

Apart from the ex-facie contradiction of this statement in the judgment itself, the High
Court erred in going beyond the statements contained in the plaint.75

11. Applicability of the rule in Section 21(1) to execution proceedings. The rule of
waiver embodied in s 21 (1) extends to execution proceedings. If a defendant has not
raised during the trial any objection as to the place of suing, he will not be permitted to do
so during execution proceedings. The extension was formulated by Wallis C.J. in Zamindar
of Ettiyapuram v. Chidambaram 76 in the following words:

The effect of the section in my opinion is that objections which the appellate or revisional court is thereby precluded from allowing, must be considered cured for all
purposes, unless taken before the passing of the decree of the original court. The ordinary way of questioning a decree passed without jurisdiction is on appeal or
revision, and if this is forbidden, a court of first instance cannot by execution do that which the appellate or provisional court is precluded from doing.

Dealing with this matter, the Supreme Court observed in Hiralal v. Kalinath:77

The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction
in the sense that it could not have seized of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the
suit was instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the
subject-matter of the suit or over the parties to it.78

But, it is different where after the passing of a preliminary mortgage decree, the court
which passed it ceased to have territorial jurisdiction over any of the mortgaged properties.
In such a case, failure on the part of the mortgagor to object to the passing of the final
decree, precludes him from disputing the validity of the decree, but not from objection to
the jurisdiction of the court to order a sale.79

When a court executing a decree transferred to it, attached and sold properties after
territorial jurisdiction had been withdrawn from it, the Madras High Court held that the
judgment-debtors failure to object estopped him from questioning the validity of the sale;
but that there was no estoppel against a subsequent purchaser of the same property at a
sale held in execution of a decree passed against the same judgment-debtor in another suit,
for the estoppel of the judgment-debtor did not operate against such purchaser.80 The
same court has also held that if a court continues to execute a decree against immovable
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property after territorial jurisdiction has been withdrawn from it, the judgment-debtors
failure to object will preclude him from raising the point in appeal.81 So also, where the
executing court sold properties outside its territorial jurisdiction in addition to some
properties within its jurisdiction, it was held that objection, not having been taken before
sale, could not be raised at a later stage.82

The rule of waiver enactment in sub-s (1) is now extended to the executing court by the
new sub-s (3) which requires that the objection as to the local limits of jurisdiction of the
executing court must have been raised in the executing court at the earliest opportunity,
and even where it has been so raised, there must have been consequent failure of justice.

12. Condition as to Consequent Failure of Justice. Even though the objection has been
raised at the earliest opportunity and wrongly disallowed, the judgment will not be
disturbed unless the trial in the wrong court had led to a failure of justice.83 In order to
ascertain whether there has been a failure of justice, the appellate court must go into the
merits of the case and form an opinion upon the justice or otherwise of the decision of the
first court.84 Where a defendant has raised an objection as to the place of suing but has not
pressed it for decision and has participated in the trial taking the chance of obtaining the
favourable verdict, he cannot be heard to say that he was prejudiced or that there was
failure of justice.85 Even though the objections to the pecuniary jurisdiction was taken
before the courts at the earliest opportunity, there was no consequent failure of justice
hence, the objection of the jurisdiction was rejected.86 The Madras High Court relying
upon RSD v. Finance Co. Pvt. Ltd. 87 held that even if the objection was raised by the
defendant in the trial court at the earliest opportunity, unless it is shown in the appellate
court that on account of the trial by the wrong court, there has been failure of justice, the
appellate court cannot interfere in the finding of the trial court on the ground of
jurisdiction of the court.88

13. Remand. There is no question of territorial jurisdiction when a suit is remanded by a

court of appeal, for, jurisdiction then depends entirely upon the order of remand.89

90[S. 21A. Bar on suit to set aside decree on objection as to place of suing.

No suit shall lie challenging the validity of a decree passed in a former suit between the
same parties, or between the parties under whom they or any of them claim, litigation
under the same title, on any ground based on an objection as to the place of suing.

Explanation.The expression formal suit means a suit which has been decided prior to the
decision in the suit in which the validity of the decree is questioned, whether or not the
previously decided suit was instituted prior to the suit in which the validity of such decree
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is questioned.]

1. Scope. Section 21 lays down that no objection as the place of suing shall be allowed by
any appellate or revisional court, unless such objection was taken in the court of the first
instance at the earliest opportunity. The section does not expressly provide as to whether
such an objection can be permissible in a separate suit challenging the decree. On that
question, there was a conflict of judicial opinion. The Madras High Court91 and the Lahore
High Court92 held that if the defendant did not object to jurisdiction and allowed a decree
to be passed against him, he could not in a subsequent suit, set aside the decree for want of
jurisdiction. The Nagpur High Court held that s 21 was not limited to appeals and
revisions in the same suit,93 and this was also the view taken by the Oudh Chief Court;94
but, the Allahabad High Court considered that it was not legitimate to extend the bar of s
21 beyond the limits provided by the section, and that in such a case, the plaintiff was
entitled to maintain an independent suit for the avoidance of the decree.95 In a later
decision, the same High Court took the view that if the objection as to jurisdiction has not
been taken in the trial court and the suit has been allowed to be disposed by a judgment
and no appeal has been filed against such a judgment, the decree became final and was a
bar in a subsequent suit, wherein the objection as to local jurisdiction would not be
permissible.96 It is submitted that the view taken by the Madras and Lahore High Courts
was correct, for, once the objection as to jurisdiction was waived under s 21, it was waived
for all purposes. The contrary view was opposed to the policy underlying the section, in
that though such an objection was impermissible in an appeal or a revision against the
decree, it was still permissible to be raised in a subsequent suit. This section gives effect to
the view taken by the Madras, Lahore and Nagpur High Courts and the Chief Court of
Oudh.

The expression former suit means a suit decided before the decision in the suit filed to
question the validity of the decree and, it is immaterial whether it was filed before or after
the suit which challenges such validity.

2. Former suit. See notes to s 11 under the same heading.

3. The same parties, or between the parties under whom they or any of them claim.
See notes to s 26 (B) Condition II. See notes to s 11 under the same heading. Also see sub-
headings under s 11. As to synopsis (a)-(j) see notes under s 11.

4. Litigating under the same title. See notes to s 26 (B) Condition III. See notes to s 11
under the same heading.

5. Objection as to place of suing. Section 21A was inserted in the Code by Amendment
Act of 1976 on the recommendation of the Law Commission of India. The object,
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meaning and purpose of s 21 A has been explained by the Supreme Court in the case of
Subhas Mahadevasa Habib,97 in the following words:

Though Section 21A of the Code speaks of a suit not being maintainable for challenging the validity of a prior decree between the same parties on a ground
based on an objection as to the place of suing, there is no reason to restrict its operation only to an objection based on territorial jurisdiction and excluding from
its purview a defect based on pecuniary jurisdiction. In the sense in which the expression place of suing has been used in the Code it could be understood as
taking within it both territorial jurisdiction and pecuniary jurisdiction. Section 15 of the Code deals with pecuniary jurisdiction and, Sections 15 to 20 of the
Code deals with place of suing. The heading place of suing covers Section 15 also. This Court in the Bahrein Petroleum Co. Ltd. v. P.J. Pappu [(1996) 1 SC
R 461 ] made no distinction between Section 15 on the one hand and Sections 16 to 20 on the other, in the context of Section 21 of the Code. Even otherwise,
considering the interpretation placed by this court on Section 11 of the Suits Valuation Act and treating it as equivalent in effect to Section 21 of the Code of
Civil Procedure, as it existed prior to the amendment in 1976, it is possible to say, especially in the context of the amendment brought about in Section 21 of
the Code by Amendment Act 104 of 1976, that Section 21A was intended to cover a challenge to a prior decree as regards lack of jurisdiction, both territorial
and pecuniary, with reference to the place of suing, meaning thereby the court in which the suit was instituted.

S. 22. Power to transfer suits which may be instituted in more than one Court.

Where a suit may be instituted in any one of two or more Courts and is instituted in one of
such Courts, any defendant, after notice to the other parties, may, at the earliest possible
opportunity and in all cases where issues are settled at or before such settlement, apply to
have the suit transferred to another Court, and the Court to which such application is
made, after considering the objections of the other parties (if any), shall determine in
which of the several Courts having jurisdiction the suit shall proceed.

1. Scope of sections 2225. This and the next section are concerned with a case where the
plaintiff has the choice of two or more courts in which he may properly institute a suit.
They deal with the right of a defendant to apply to a court to have the case transferred
from the court in which it is filed to another court. They postulate that the several courts
concerned shall each have jurisdiction. It follows that an application by the defendant
under s 23 for transfer cannot be entertained where he has pleaded want of jurisdiction of
the court in which the suit has been instituted.98 The two sections contemplate three
possibilities: (a) where the alternative courts are subordinate to the same appellate court;
(b) where they are subordinate to different appellate courts but to the same High Court;
and (c) where they are subordinate to different High Courts.

The case where the two courts are High Courts is not expressly dealt with. Sections 24 and
25 are concerned with an entirely different kind of case. They are not concerned with the
right in the defendant alone to apply to have transferred to one of alternative possible
courts, a suit which his opponent, the plaintiff, has filed in one of those possible alternative
courts. The sections are broken up into two different categories. The first category is dealt
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with in s 24 and the second in s 25.99The Specific Relief Act, 1963, does not confer a power
of transfer. What could not have been asked for originally, cannot be asked for by
amendment.100 An order of transfer under s 22 is based on balance of convenience. The
fact that the suit was filed earlier, is immaterial.101 When a transfer petition is filed making
allegations against the additional District Judge, impugning his fairness, independence and
impartiality in the transfer application, the report if any, and when called for, should
normally be confined to the allegations made against the impartiality or fairness of the
judge and not with respect to the correctness or otherwise of the order passed by him.102

Apprehending injustice on the ground of earlier decision against the applicant in another
case by the munsif is no ground for transfer of case. Allowing transfers on such grounds
would hamper course of justice.103

2. Transfer where Plaintiff has a choice of Courts. The power of transfer given by this
section is not a general power as in s 24. It is limited to cases in ss 16 and 20 where the
plaintiff has the option to sue in more courts than one.104Prima facie, a plaintiff as arbiter
litis has the right to select his own forum.105 That right is controlled by the power of
transfer; but it is a right that ought not lightly to be interfered with.106 The words shall
determine in the section clearly mean shall make an order of transfer.107 Wifes application
for custody was pending as the husband instituted the suit in a court at another place.
Transfer application was made by the wife as the nature of both the proceedings was such,
that they should be heard by the same court. No suggestion by husband was made, that
financial difficulties prevented proper prosecution of the proceedings at the place where
the wifes application was pending. Here, the prejudice to husband could not be assumed
from the mere fact that he would have to undertake the journey. In this case, keeping in
mind the abovementioned facts, the suit filed by the husband was transferred.108

3. Grounds of Transfer. See notes to s 24 under the same heading.

4. Notice. The provisions of this section as to notice and time of application are
mandatory.109 Notice should be given to all parties impleaded in the suit, whether as
plaintiff or as defendant and not merely to parties arrayed on the opposite side.110 Under
the terms of the section, notice must be given of the application before it is made, but it
has been held that the defect could be cured by notice on the application itself.111

5. Stay of Suit. Section 20 of the Code of Civil Procedure 1882, provided for stay of proceedings
in order to compel the plaintiff to take his case to another court. This has been omitted, as
sufficient provision has been made by the power of transfer in ss 2224; but, the court has
an inherent jurisdiction to stay any suit which is an abuse of its process.

Whether the institution of the suit in a particular court is an abuse of the process of that
court is a question of fact. In a suit filed in the Bombay High Court, the fact that both the
parties and the witnesses of the defendants were residents of Wardha in the Central
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Provinces (now Madhya Pradesh), was held not to justify an order for the stay of the
suit.112 The High Court has also power to stay a suit in another court.113

S. 23. To what court application lies.

(1) Where the several Courts having jurisdiction are subordinate to the same Appellate
Court, an application under Section 22 shall be made to the Appellate Court.
(2) Where such Courts are subordinate to different Appellate Courts but to the same
High Court, the application shall be made to the High Court.
(3) Where such Courts are subordinate to different High Courts, the application shall
be made to the High Court within the local limits of whose jurisdiction the Court in
which the suit is brought is situate.

1. High Courts. Sections 22 and 23 do not apply to High Courts in the exercise of their
ordinary original civil jurisdiction.114

2. Scope of sections 22 and 23. Sections 22 and 23 are complementary to each other.
While s 22 confers a power on the defendant to apply for transfer subject to the conditions
mentioned therein, s 23 specifies the court to which the application should be made. An
application under s 23 must therefore, fulfil the conditions mentioned in s 22 and is liable
to be dismissed if it is not made before the settlement of issues.115

3. Subordinate Courts. Subordination of court is regulated by s 3. A court of a

subordinate judge is subordinate to the District Court no matter what the forum of appeal
may be in the particular case for the transfer of which application is made.116

A full bench of the Rangoon High Court has held that for the transfer of a suit pending in
a court on the original side of the High Court, an application should be made to that court
which has hold of the case and that court has power to transfer under s 151 of the Code.117
Prior to the filing of the petition by the husband against the wife for divorce under s 13,
Hindu Marriage Act, 1955, in the court of the additional District Judge at Jind in Haryana,
the respondent (wife) had already filed a petition under s 9 of the Hindu Marriage Act, 1955,
for restitution of conjugal rights, against the petitioner-husband. An application under s 10
of the Code of Civil Procedure was filed by the wife (before the Jind court) for saying the
proceedings therein, in view of the petition already filed by her at Delhi. The additional
District Judge, Jind, allowed the wifes petition under s 10 of the Code of Civil Procedure on the
ground that if the petition under s 13, Hindu Marriage Act was allowed to continue, the
petition filed by the wife under s 9 of the Act would be rendered infructuous.
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The order of the additional District Judge, Jind, staying proceedings was vacated by the
High Court. In the interest of justice, the petition under s 13 of the Act, brought by the
husband and pending in the court at Jind, was transferred to the court at Delhi.118

4. Different High Courts. From sub-s (3) of s 23 extracted above, it is clear that an
application for transfer has to be made in the High Court in which the suit brought is
situated. The suit was instituted in the court at Surat, and since Surat is not within the
jurisdiction of Andhra Pradesh High Court, the application for transfer has to be filed in
the High Court to which the court at Surat is subordinate but not in this High Court. It
does not matter that. the petitioner wants the suit to be brought to the jurisdiction of
Andhra Pradesh court, which is subordinate to this court. Andhra Pradesh High Court has
no jurisdiction to entertain the application for transfer. The expression suit is brought in s
23 (3) of the Code of Civil Procedure and relates to the place where the suit was instituted, and
it cannot be interpreted to mean, the court to which suit has to be brought. So, the petition
to transfer a suit instituted at Surat to a court, which is subordinate to Andhra Pradesh
High Court, is not maintainable.119

If suits between the same parties are instituted in courts subordinate to different High
Courts, either High Court can transfer the suit from the court which is subordinate to it,120
and the transfer can be made to a court subordinate to another High Court.121 A judge on
the original side of the High Court is not a court subordinate to the High Court and a
Bench of the High Court cannot entertain an application for the transfer of a suit from
him to another court.122 In a case where the plaintiff in abuse of his power as dominus litis
and in disregard of the convenience of both parties filed his suit in a court subordinate to
the High Court at Allahabad, that High Court in its inherent jurisdiction transferred the
suit to the Chief Court at Oudh.123

The provisions relating to transfer of suits contained in ss 22 to 25 of the Code have been
interpreted by various High Courts of the country. But on the interpretation of s 23 (3) of
the Code there has been divergence of views. While some of the High Courts held the
view that a High Court acting under s 23 (3) of the Code, cannot transfer a suit pending in
a Court subordinate to it, to some other Court subordinate to another High Court and the
power to make such inter-state transfer vested in the Supreme Court under s 25 of the
Code, some of the High Courts held a contrary view about the powers of the High Courts
under s 23 (3) of the Code. Even the decision of the Supreme Court in Vijayalakshmis
case,124 did not set the controversy at rest, although the apex Court doubted the
correctness of the decision of Bombay High Court (Nagpur Bench) in Priyavari Mehtas
case.125

However, a recent decision of the Supreme Court has set the controversy at rest and laid
down the correct law.126 It was held by the Supreme Court that High Court has no power,
authority or jurisdiction to transfer a case, appeal or other proceeding pending in a Court
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subordinate to it to any Court subordinate to another High Court in purported exercise of

power under sub-s (3) of s 23 and it is only the Supreme Court which can exercise the said
authority under s 25. C.K. Thakker, J., speaking for the Bench observed as follows:

71. In our considered opinion, where several courts having jurisdiction are subordinate to one appellate Court, an application for transfer may be made to such
appellate Court and the Court may transfer a case from one Court subordinate to it to another Court subordinate to it. Likewise, where such Courts are
subordinate to the same High Court, an application may be made and action may be taken by the High Court transferring a case from one Court subordinate
to it to any other Court subordinate to that High Court. But where such Courts are subordinate to different High Courts, it is only the Supreme Court (this
court) which may pass an order of transfer. In other words, if two Courts are subordinate to different High Courts, one High Court has no proper, jurisdiction
or authority to transfer a case pending in any Court subordinate to that High Court to a Court subordinate to other High Court. It is only the Supreme Court
(this court) which may order the transfer.

The Supreme Court in the above case, went on to observe further as follows:

72. Section 25, as originally enacted in the Code of 1908 and the decision prior to Amendment Act of 1976, have no application after substitution of Section
25 as it stands today. To us, Section 23 has no application to such cases and the only provision attracted is Section 25.
73. The language of Section 25 also supports the view which we are inclined to take. Sub-section (1) of Section 25 of the Code enacts that on the application of
a party, this Court may pass an appropriate order of transfer. Thus, Section 25 is self-contained Code and comprises of substantive as well as procedural law on
the point. It allows a party to move the Court by making an application as also it empowers the Court to make an order of transfer.

As regards the correct interpretation of s 23 the Supreme Court observed further as

follows:

In our considered view, the fallacy in the argument lies in the fact that it presumes and presupposes that Section 23 of the Code is a substantive provision which
authorises a Court mentioned therein to order transfer. It is not so. The said section, as held by us, is merely a procedural one or a machinery provision and
provides mode, method or manner in approaching a Court for making an application. It does not empower a Court to effect transfer.

With these observations, the Supreme Court overruled the undernoted cases.127

5. Suit is brought. The expression suit is brought in s 23 (3) of the Code of Civil Procedure
relates to the place where the suit was instituted and it cannot be interpreted to mean, the
court to which suit has to be brought.128

S. 24. General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after
hearing such of them as desire to be heard, or of its own motion without such
notice, the High Court or the District Court may at any stage
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(a) transfer any suit, appeal or other proceeding pending before it for trial or
disposal to any Court subordinate to it and competent to try or dispose of the
same, or,
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate
to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same; or
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section
(1), the Court which 129[is thereafter to try or dispose of such suit or proceeding]
may, subject to any special directions in the case of an order of transfer, either retry
it or proceed from the point at which it was transferred or withdrawn.
130[(3) For the purposes of this section,
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to
the District Court;
(b)
proceeding includes a proceeding for the execution of a decree or order.]

(4) The Court trying any suit transferred or withdrawn under this section from a Court
of Small Causes shall, for the purpose of such suit, be deemed to be a Court of
Small Causes.
131[(5) A suit or proceeding may be transferred under this section from a Court
which has no jurisdiction to try it.]

1. Alterations in the section. Sub-section 1 remains unaltered. In sub-s 2 the words the
court which thereafter tries such suit are deleted and the following words are substituted,
viz.: the court which is thereafter to try or dispose off such suit or proceeding. Sub-section 3 is
restructured and divided into cll (a) and (b). Clause (a) is the same as the unamended sub-s
3. Clause (b) defines the word proceeding as including a proceeding for the execution of a
decree or order. Sub-section 4 remains unaltered. Sub-section 5 has been newly added to
clarify that a suit or a proceeding may be transferred from a court which has no jurisdiction
to try it.

2. Accepted judicial norm. One important aspect of the provisions of s 24 of the Code of
Civil Procedure is that the power of transfer is conferred on the High Court or the District
Court, Courts which normally exercise appellate or supervisory jurisdiction in the scheme
of procedure envisaged under the provisions of the Code of Civil Procedure. The power is
conferred on a higher judicial forum. While it is an accepted judicial norm that the judges
of the higher judiciary have the choice to hear a matter, the judge himself can recuse from
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the case and direct the matter to be posted before any other judges if he has the feeling
that one of the parties to the proceeding may have a reasonable apprehension of bias if the
proceedings should go on before him, may be for a variety of reasons such as a previous
acquaintance of one of the parties to the proceedings, irrespective of the fact as to whether
he is really biased or notclassic example, being that of a judge, not sitting in appeal over his
own judgment, order or decision expressed earlier in respect of the subject-matter before
him in any other context. But, in so far as the proceedings before the trial court are
concerned, it is strictly determined as per ss 15, 16, 17, 18, 19 and 20. What needs to be
observed and pointed out in terms of the provisions of the Code of Civil Procedure is that the
judge of the subordinate judiciary, does not have the power to recuse himself from the suit
or proceeding pending before the court he presides.132

3. Return of plaint distinct from transfer of suit. Sometimes the presentation of a plaint
in a wrong Court can lead to piquant situations. In 1988, a suit was filed on the original
side of the High Court of Delhi for declaration, for specific performance of agreement, for
possession of property and for permanent injunction. Written statement was filed by the
defendants contesting the claims of the plaintiff but without raising any objection as to the
jurisdiction of the Court. The suit was transferred to the District Court, Delhi. After more
than eight years, the written statement was amended raising an objection as to jurisdiction
of the Court at Delhi. Since, the suit was for recovery of immovable property situated in
Gurgaon District. On the basis of the amended written statement, an additional issue as to
the jurisdiction of the Delhi Court was framed by the trial court. After hearing the parties,
the trial court held that the suit was covered by cl (d) of s 16 of the Code and as such the
Delhi Court had no jurisdiction and the plaint was ordered to be returned to the plaintiff
for presentation to the proper court. The said order was confirmed by the High Court as
well as the Supreme Court.133

After the judgment of the Supreme Court in the above-mentioned case, which was C.A.
No. 2726 of 2000 decided on 26-9-2005, the plaintiff filed I.A. No. 3 in the said disposed
of appeal praying therein to direct the Gurgaon Court to take up the suit from the stage at
which it stands transferred. Rejecting the prayer made in the I.A., the Supreme Court held
that the Court at Gurgaon cannot be said to be a successor court for the purpose of s 24
of the Code.

The return of plaint to the plaintiff for presentation to the proper court on the ground of
want of jurisdiction of the court returning it is not a case of transfer of the suit but lack of
jurisdiction of the court in which it was earlier filed. On presentation of plaint to the
proper court, it will not be treated as continuation of proceedings, and the suit cannot be
directed to be tried from the stage at which it has been transferred. The provisions of O
18, r 15 which deal with succeeding judge proceeding with the case from where it was left
by his predecessor are not attracted.134

In a case, the Civil Judge transferred a suit suo motu to the High Court on the ground of
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pecuniary jurisdiction. The High Court did not issue any order to return the plaint, rather it
registered the suit and entertained it. The Delhi High Court rejected the plea of de novo trial.
It was held that since it was not a case of return of plaint de novo trial cannot be allowed and
no prejudice would be caused to the defendant if the suit was continued from the stage it
was received.135

4. Nature of proceedings. Petition filed before District Judge under s 24, for transfer of
the suit pending in a trial court, is a proceeding independent of the suit. It cannot be said
that the order rejecting the petition passed by the learned District Judge under s 24 of the
Code of Civil Procedure is an order passed in a pending proceeding in a suit, though the prayer
in the application under s 24 is for transferring the pending suit to some other court which
has jurisdiction. The order cannot be characterised as an order passed in the pending suit
itself. If this is so, the proviso to s 115 of the Code of Civil Procedure is not attracted and as
such it cannot be said that unless the order is shown to have caused irreparable injury or
has occasion to failure of justice, it is not revisable.136

5. Consolidation and transfer of suits. Where in the matter relating to management of

educational society due to rivalry between members and persons claiming to be the
members of the society, three suits for injunction were filed before three different courts,
to avoid multiplicity of litigation and conflicting orders all suits were directed to be tried
simultaneously by consolidating them and were transferred to a competent court for this
purpose.137

6. Scope of the Section. Section 24 of the Code of Civil Procedure deals with general power of
transfer and withdrawal and enables the District Court to transfer any suit, appeal or other
proceedings pending before it, for trial or disposal to any court subordinate to it and
competent to try or dispose off the same.138

Under this section, an application for transfer can be made by any of the parties to a suit,
appeal or other proceeding. Whereas this section deals with the general power of a High
Court or a District Court to transfer or withdraw any suit, etc., s 25 amended by the
Amendment Act, 1976, confers on the Supreme Court the power to transfer a pending
suit, appeal or proceeding from one High Court or civil court in the state to a High Court
or other civil court in another State. Where socially sensitive suits, affecting considerable
sections of the society are withdrawn, the order of withdrawal cannot be objected to by
exaggerating the aspect of observation of demeanour of witnesses already examined, where
the suits affect considerable sections of the public. Expeditious termination of litigation is
vital in such cases.139 Even where s 21 A of the Hindu Marriage Act, 1955, (consolidation and
joint trial), is not applicable, a transfer can be ordered under s 24 of the Code.140 The
motor accident claims tribunal constituted under s 110 of the Motor Vehicles Act, 1939, is a
court subordinate to the High Court within the meaning of s 24, Code of Civil Procedure 1908,
and the High Court can transfer the case from one tribunal in the state to another tribunal
under s 24 of the Code.141 The Recovery of Debts Due to Banks and Financial Institution
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Act, 1993, is a special act and has been enacted to provide for the establishment of tribunal
for expeditious adjudication and recovery of debts due to banks and financial institutions
and for matters connected therewith or incidental thereto. Specific provisions for transfer
of pending cases has been made in s 31 of the said Act and, therefore, provisions of the
Code of Civil Procedure 1908, for transfer of suit as provided in s 24 will not apply.142 There
can be an order of transfer in respect of a suit filed in pauperism.143

7. Sections 24, 25 and Letter Patent clause (13) Court. Sections 24 and 25 of the Code of
Civil Procedure deals with courts and not tribunals. In any event, the Code of Civil Procedure is
not applicable to tribunals; as such it has limited application by reason of specific provision
provided in the Debt Recovery Tribunal Act. It does not apply without such specific
provisions. Clause 13 of the Letters Patent also deals with courts and not with tribunals.
The debt recovery tribunal is not a court within the meaning of cl 13 of the Letters Patent
or that of s s 24 or 25 of the Code of Civil Procedure.144

8. High Courts. This section applies to High Courts in the exercise of their ordinary
original civil jurisdiction.145 An application under this section might be heard by any judge
of the High Court, although such an application is an original proceeding146 whereas one
under cl 13 of the Letters Patent must be made to a judge sitting in the original side.147
There was dispute between the management and workers unions relating to conditions of
service of workmen. Two writ petitions concerning the dispute and challenging the award
passed by the industrial court were filed before the Allahabad Bench and one was filed
before the Lucknow Bench. It was ordered that the latter petition filed before the
Lucknow Bench should be transferred to Allahabad. In the interest of all parties, the case
should be heard at Allahabad, to avoid conflicting judgments.

When an application is filed under s 24 of the Code by one party to the suit and when the
Judge while deciding the matter of transfer or withdrawal of the case, it was an adjudicated
order in the original jurisdiction. The wording in s 5 (i) of the Kerala High Court Act, 1959
is clear and gives no room for doubt that against such an order passed under s 24 of the
Code by a single Judge, an appeal will be maintainable to the Division Bench under Letters
Patent. The High Court can also pass interim order to prevent injustice.148

J.B. Koshy, J. (as he then was), speaking for the Full Bench of the Kerala High Court,
observed as follows:

When Section 5 (i) clearly provides for appeal from orders, it cannot be stated that no appeal will lie from the adjudicated order under Section 24, CPC, of a
Single Judge to the Division Bench. Merely because no appeal is provided from the order of District Court under Section 24, CPC, it cannot be stated that right
of appeal given under Section 5 (i) should be denied despite the clear wordings used in that section, if the District Court passes an illegal order, parties can
approach the High Court under Article 227 of the Constitution of India.149
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The above mentioned Full Bench decision of the Kerala High Court has quoted with
approval Sutherlands Statutory Construction (3rd Ed., Vol. 3, para 6807) wherein it has
been stated as follows:

Statutes giving the right of appeal are liberally construed in furtherance of justice, an interpretation which will work for the forfeiture of that right is not favoured.
Thus provisions limiting the time of bringing an appeal are liberally interpreted so that the party pursuing the remedy of appeal will not be defeated on mere
technicalities. Likewise, an interpretation limiting the cases from which an appeal may be brought or person who may bring an appeal is not preferred.

9. Allahabad High Court and its Lucknow Bench and other instances. No doubt in
Nasiruddin’s case150 it has been held that there is no permanent seat of the High Court at
Allahabad. This is true in the sense that there is nothing permanent in the world. But as
things stand today the principal seat of the Allahabad High Court is indisputably at
Allahabad. The Chief Justice and most of the senior and other judges ordinarily sit at
Allahabad. The Registrar General of the Court also functions at Allahabad. The Allahabad
High Court was created by Queen Victorias Letter Patent in 1866, whereas Lucknow only
had a judicial commissioners court upto 1925 and thereafter the Chief Court for Avadh
upto 1948, when the amalgamation order was passed. Hence from the historical angle also
there can be no doubt that the principal seat of the High Court is at Allahabad.151

The second proviso to cl 14 of the UP High Court (Amalgamation) Order 1948 clearly
indicates that it is only cases which arise out of Avadh area, that is to say, at least part of
the cause of action arises in Avadh, which can be transferred by the Chief Justice to
Allahabad. Hence the Chief Justice has no jurisdiction to transfer a case in which no part
of the cause of act ion arose in Avadh to Allahabad under cl 14. Such cases illegally filed at
Lucknow must be returned at the very threshold to counsel for filing at Allahabad.152

It was held in a case, that while passing the order, the acting Chief Justice was exercising
administrative powers. He was not obliged to write a detailed judgment, dealing with each
and every point raised by one party and controverted by the other. It could not be said that
the order of the judge did not reflect any basis for the transfer to Allahabad of the petition
filed at Lucknow. The fact that the petition was filed by the petitioner at Lucknow, did not
bar the petitioner in seeking the relief of transfer. Nor could it prevent the Chief Justice
from passing an administrative order of transfer, once it was brought to his notice that it
was necessary on the merits of the case.153

The question of interpretation of power of transfer of cases exercised by the Principal seat
of a High Court and a permanent Bench of that High Court came up for consideration
before the Madras High Court. While interpreting the expression subordinate court
appearing in s 23 in the light of Madras High Court (Establishment of Permanent Bench at
Madurai) Order (2004), it was held that the said expression means all courts subordinate to
the High Court including Court of Small Causes. In this view of the matter courts lying
within the jurisdiction of the Permanent Bench at Madurai can be termed as subordinate to
the Principal seat at Madras. Thus the High Court at Madras can exercise power and
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transfer cases falling within the territorial jurisdiction of Permanent Bench at Madurai to
other Court within the territorial jurisdiction of the Principal seat.154 It was observed by the
High Court as follows:

17. True it is, that the word High Court under Section 3(25) of the General Clauses Act is defined as, High Court, used with reference to civil proceedings
shall mean the highest civil court of appeal in the part of India in which the Act or regulation containing the expression operates. Although it may appear that
the court of appeal for cases in the Districts lying within the Territorial Jurisdiction of Permanent Bench at Madurai would only be the latter, when once the
proviso to Presidential Order abovementioned empowers the Chief Justice in the Principal Seat at Madras High Court to order for hearing of any case pending
in the Madurai Bench at Madras, it would only indicate that such power of appellate authority of the Madurai Bench is likely to be delegated to the Principal
Bench at Madras. This delegation as connoted to the proviso to the Presidential Order cannot have any meaningful effect unless and until the Principal Seat is
clothes (sic) with such power of appellate authority over the Territorial Jurisdiction of Permanent Bench at Madurai.155

10. Jurisdiction. Before the Amendment Act, 1976, one view was that an order for
transfer of a suit from one court to another court cannot be made unless the suit had been
in the first instance brought in a court which had jurisdiction to try it.156 This was also the
view taken by the Andhra Pradesh High Court which however held that the mere fact that
there was a dispute about jurisdiction did not restrict the power of transfer.157 If after the
transfer is made, the parties joined issue and went to trial upon the merits without any
objection the order of transfer could not subsequently be impeached.158 Where a district
munsif transferred the records of a case to another district munsif in anticipation of an order
of transfer by the District Judge and it was disposed off on the merits without objection, it
was held that there was a mere irregularity which could be waived and that the decree was
not open to attack by reason thereof.159 The same rule applied to appeals.160 The Allahabad
High Court took a contrary view and held that the fact that the court of first instance had
no jurisdiction to dispose off the suit could not oust the jurisdiction of the High Court or
District Court to transfer the same to a court competent to try it.161 This was also the view
of the Nagpur High Court.162 The Parliament has now, by inserting sub-s 5 accepted the
Allahabad and Nagpur view as against the other view. In a recent decision by the
Allahabad High Court in Ledgard v. Bull and Raja Soap Factory v. Shantharaj,163 the court has
taken a view contrary to its earlier view and held that a suit, appeal or other proceeding
cannot be transferred unless it was filed in the court with jurisdiction. Furthermore, it has
confirmed the view of the District Court, the transferee court, that the High Court could
not transfer to it an appeal which the High Court had held it had no jurisdiction to
entertain. The order by the District Court was passed before sub-s (5) came into force and
that the sub-section not being retrospective, did not affect that order.164 Nevertheless, a
suit cannot be transferred to a court which has no jurisdiction (other than territorial
jurisdiction) to try it.165 This is clear from the words competent to try or dispose off the
same in cll (a) and (b) of sub-s (1). Thus, a High Court cannot transfer to a District Court
an insolvency petition presented to it under the Presidency-towns Insolvency Act, 1909;166 nor
can a District Court transfer a suit from one subordinate court to another subordinate
court which has been newly created and empowered to try subsequently instituted suits;167
but it is not necessary that the court to which a suit is transferred, should have concurrent
territorial jurisdiction and a High Court or District Court may transfer a suit from one
subordinate court to another subordinate court which has pecuniary jurisdiction although
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it may not have territorial jurisdiction to try the suit.168 Where a suit was instituted in court
A which would have on the valuation given in the plaint jurisdiction to entertain it and
subsequently, the suit was transferred to court B which had higher pecuniary jurisdiction,
and that court held that on its true valuation, the suit was beyond the jurisdiction of court
A, it was held that the order of transfer was not open to attack on the ground that the suit
was instituted in a court which had no jurisdiction to entertain it.169

In a suit for damages and injunction, the Court granted injunction in favour of the
plaintiff. Thereafter, the plaintiff sought amendment of the plaint claiming higher amount
of damages and the same was allowed. As a result of the amendment the trial Court lost
pecuniary jurisdiction. The plaintiff filed a petition for transfer of the suit to avoid order of
return of the plaint without continuation of interim injunction. It was held by the Delhi
High Court that there was nothing in O 7, r 10 of the Code which can be construed as a
bar to maintain a petition under s 24 of the Code.170

Dwelling on the ambit and domain of Section 24 and Order 7 of the Code, it was observed
by the Court as follows:

Harmonious and constructive application of the above two sets of provisions of the procedural law would require the Court to adopt an approach which would
satisfy the twin objects of the Code of Civil Procedure, namely, expeditious disposal of the case and achievement of the ends of justice, without causing prejudice to
the parties. Convenience or inconvenience of the parties would hardly be a relevant consideration for the Court while laying down such a principle.171

11. General power of transfer. Section 24 of the Code of Civil Procedure deals with the general
power of transfer and withdrawal. As can be seen from the language of s 24 of the Code of
Civil Procedure, the powers, no doubt, are very wide, however, those powers are being
exercised while transferring matters within certain permissible limitations.172

This section gives a general power of transfer of all suits, appeals and other proceedings
and is not limited like s 22 to suits in which the plaintiff has the option of suing in more
than one court. It may be exercised at any stage of the proceeding and even suo motu
without an application.173Section 24 of the Code of Civil Procedure deals with the general power
of transfer and withdrawal of suits, appeals or other proceedings pending before the
subordinate court to the High Court or District Court for trial or disposal to any court
subordinate to them and competent to try and dispose off the same, or withdraw any suit,
appeal or other proceeding pending in any court subordinate to them.174 The High Court
of Andhra Pradesh recommended the government to transfer some areas from jurisdiction
of courts at another place for the reason that the pendency in court at place from
jurisdiction of which area was transferred was heavy and at place to which area was
transferred was very low. The District Judge recommended transfer of area in question at
latter place for achieving equal distribution of work among courts. It was held that there
was nothing arbitrary and illegal in the notification of the government.175

12. Grounds of transfer. As stated in the notes on s 22, the plaintiff as arbiter litis or
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dominus litis has the right to choose any forum the law allows him176 and it has been held
that it is a substantive right like a right of appeal.177 But it is subject to control under ss
2224. The burden lies on the applicant to make out a strong case for a transfer. As mere
balance of convenience in favour of proceedings in another court is not a sufficient
ground178 though it is a relevant consideration.179

(a) Reasonable Ground. As a general rule, the court should not interfere unless the expenses
and difficulties of the trial would be so great as to lead to injustice or the suit has been filed
in a particular court for the purpose of working injustice.180

Where the applicant was a practicing lawyer, who sought transfer at a place where she was
practicing, objection was raised that she will have an influence at that place. No foundation
was made out for the objection. Such objection cannot be entertained. No doubt, such
discretionary powers cannot be put within the strait-jacket of cast-iron for all the
situations. It is always for the court to find out from the allegations so made, whether any
reasonable ground is made out for transfer of the case.181 Transfer of cases from one court
to another is a serious matter, because it indirectly casts doubt on the integrity or
competence of the judge from whom the matter is transferred. This should not be done
without a proper and sufficient cause. If there are good and sufficient reasons for
transferring a case from one court to another, they must be clearly set out. What the court
has to consider is whether the applicant has made out a case to justify it in closing the
doors of the court in which the suit is brought to the plaintiff and leaving him to seek his
remedy in another jurisdiction.182

In the undernoted cases, the Supreme Court held the age of the wife and the distance
between the place of residence and the place where the matrimonial proceedings were
filed, as well as the absence of people who could escort her, were considered to be
reasonable grounds for directing transfer of proceedings to a place more convenient to
her.183

Powers under s 24 cannot be exercised ipse dixit. Thus, where the High Court, without
applying its mind and without recording any reasons, allowed transfer simply observing
that it would be appropriate to transfer the suit, the order was set aside by the Supreme
Court. It was observed that the order of transfer must reflect the application of mind by
the Court and the circumstances which weighed in taking the act ion.184

(b) Common Question of Facts and Law. Where two persons filed suits against each other in
different courts on the same cause of action, it was held desirable that the suits should be
tried by one and the same court.185

Where there are two suits in different courts which raise common questions of fact and
law, and the decisions in which are interdependent, it is desirable that they should be tried
together by the same judge so as to avoid multiplicity in trial of the same issues and
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conflict of decisions.186 The involvement of common question of law and facts is not the
only ground authorising the transfer of suits under s 24. It is only illustrative and not
exhaustive. This is paramountly a matter involving the satisfaction of the court which
exercises the power. If the facts of the suits sought to be tried together are inter-twined
with cause of action in each suit, the transfer of suit may not be refused, provided the
parties and subject matter of the suits are one and the same. When the court feels that facts
intertwined with the different causes of act ion are separated and suits tried independently
would result in conflicting decisions, it can allow the transfer and joint trial. Thus, where
the litigating parties in both the suits were one and the same and the subject matter
involved in both the suits was a two-shop room, thereby apart from the common nature,
facts being inter-twined and overlapped, the possibility of conflicting decisions if the suits
were tried separately could not be totally ruled out, transfer and joint trial was hence
ordered.187 It has likewise been held that where different suits by different plaintiffs were
filed in different courts raising the same question under s 13 of the Pensions Act, 1871, it was
desirable that all of them should be tried by one court and that orders of transfer should be
made for that purpose under s 24.188 An order of transfer would also be made to prevent
abuse of the process of the court.189

The involvement of common question of law and facts is not the only ground authorising
the transfer of suits under s 24. It is only illustrative and not exhaustive. This is
paramountly a matter involving the satisfaction of the court which exercises the power. If
the facts of the suits sought to be tried together are inter-twined with the cause of act ion
in each suit, the transfer of suit may not be refused, provided the parties and subject matter
of the suits are one and the same. When the court feels that facts inter-twined with the
different causes of action are separated and suits tried independently would result in
conflicting decisions, it can allow transfer and joint trial. Thus, where the litigating parties
in both the suits were one and the same and the subject matter involved in both the suits
was a two-shop room, thereby apart from the common nature, facts being intertwined and
overlapped, the possibility of conflicting decisions if the suits were tried separately, could
not be totally ruled out; transfer and joint trial was hence ordered.

In a case relating to succession certificate, the petitioner put forward his claim on the basis
of a Will before Civil Judge (Senior Division). The respondent filed a suit before Civil
Judge (Junior Division) for cancellation of the Will. It was held by the Allahabad High
Court that the claims of the petitioner as well as that of the respondent were based on
execution and non-execution of the alleged Will and therefore, it would be in the interest
of justice that both cases are decided in the same court. It was further held that

the expression same court in O 4-A does not mean the same Judge, rather it means the
same civil court and as such the order transferring the proceeding from the court of Civil
Judge (Junior Division) to the court of Civil Judge (Senior Devision) was proper.1

In another instance, a partition suit had been filed and a Probate case was also pending in
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another Court. Same subject-matter was involved in both cases. The parties admitted that
the stands of the parties in both the cases were almost same and the issues involved were
almost similar and same set of oral and documentary evidence would be required to be led
by both parties. Under these circumstances, it was held that in the interest of justice and
convenience of parties, the partition suit and the probate case should be tried together.2

(c) Comments by Judge. It is too much to say that if any statements are made, it means that the
presiding officer has made up his mind with respect to the decision in the case. If this be
the position, no case can be heard by any court. It cannot be expected that the judges
should be silent without expressing any opinion. A sphinx like attitude is not expected
from the presiding officer especially when he is trying a matrimonial case or litigation
between very near relations. There should be an effective discussion, an effective attempt
to conciliate and an effective attempt to clarify the misunderstandings so that the disputes
can be settled or a just and proper decision can be taken by the presiding officer. If in that
process, the presiding officer makes any comments on merits of the case, it cannot be
misunderstood as an expression of the decision.3

The mere fact that a judge, while deciding an earlier case, had made certain remarks, is no
ground for the transfer of a subsequent case on the same point before him.4

(d) Bias Attributed to a Judge. The apprehension of bias on the part of a litigant should be a
bona fide, reasonable apprehension and not a mere apprehension of the litigant that can be
the basis to order transfer of the pending case in the exercise of the power under s 24 of the
Code of Civil Procedure. The examination of the existence of such apprehension though
requires to be decided from the point of the person expressing apprehension, nevertheless
if extended to an extreme extent will result in the anomalous situation that whenever a
litigant comes up before the court in application filed under s 24 of the Code of Civil Procedure,
that the applicant has a reasonable apprehension of bias operating against him by the
presiding officer of the court being prejudiced against him, then the version of the
applicant has to be automatically accepted and the transfer application allowed. This
cannot be and is not the object of s 24 of the Code of Civil Procedure. Until and unless the
court is satisfied that the apprehension of bias or prejudice which a litigant expresses is
bona fide and reasonable, expression of apprehension which is proved by the circumstances
and material placed by such applicant before the court where the application is moved, an
application of this nature cannot be automatically ordered.5

Another ground of transfer is the pecuniary or other personal interest in the presiding
judge6 or a reasonable apprehension of the litigant that he will not get a fair trial.7 The fact
that an erroneous order has been passed is not in itself a ground for transfer as it does not
necessarily lead to an inference of bias.8

Vesting of power of adjudication of a Sessions triable case under s 498 A on a Presiding

Officer who was dealing with matrimonial suit, cannot ipso facto lead to a conclusion that
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the Court would be biased. Vesting of power in a particular Court to decide civil lis and
criminal matters is common practice and on this ground bias cannot be attributed to the
court.9

In a case where repeated adjournments were sought by the applicant due to sickness and
the Court, after taking note of earlier adjournments, uttered some words, that itself cannot
be taken as a ground of bias against the litigant and transfer of case cannot be sought on
that ground.10

If the petitioners did not make out any case to prove their contention that there is every
likelihood of bias to the presiding officer due to his acquaintance with the parties and their
counsel. Unless there are specific instances of bias and the presiding officer has personal
interest in the subject matter of the suits, he cannot be branded as a biased officer. This
would demoralise the officers in the eye of the public and it becomes very difficult for
such officers to work in a free and unbiased atmosphere. The mere apprehension of the
petitioners on imaginary grounds cannot be accepted.11

The petitioner has failed to concretise her apprehension which seems to be more imaginary
than real. She has failed to mention a single instance where the learned judge has disclosed
his biased mind or partial outlook in favour of the opposite party and against the
petitioner. The orders which the learned judge has passed or the procedure which he has
followed in dealing with the petition for custody of the child may at the most, if at all,
suffer from little lack of power of understanding or of expression, but they, by no means,
constitute any act or conduct which is indicative of bias or which may lead to a reasonable
apprehension that he or she may receive injustice at the hand of the presiding officer. A
mere suspicion or presumption that he will not get fair trial cannot justify transfer of the
case.12

The petitioners apprehension that the presiding officer is biased against him was based on
an incident in which it was alleged that the presiding officer while hearing the suit had used
harsh language against the petitioner. The incident had happened when the suit which was
pending before the trial court for about eight years had reached the stage of
pronouncement of judgment. The developments in the case clearly indicate that there was
an effect on the part of the petitioner to stall and prolong the proceedings. However, there
was absolutely no allegation of bias or prejudice made against the presiding officer during
this period. The apprehension of bias expressed on the basis of an incident which is said to
have taken place in the course of the proceedings in the suit in respect of which the
version of the petitioner is also not believed by the learned District Judge and can never be
said to have given the cause for formation of a reasonable apprehension that the presiding
officer is biased against the petitioner. The District Judge was therefore fully justified in
rejecting the application filed under s 24 of the Code of Civil Procedure on this ground.13

(e) Suspicion, Presumption or Apprehension. A mere suspicion by a party that he will not obtain
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justice, does not justify transfer. There must be reasonable apprehension to that effect. A
judicial order made by a judge cannot be legitimately made the foundation for a transfer
application. Mere presumption or possible apprehension could not and should not be the
basis of transferring a case from one court to another; only in very special circumstances it
may become necessary to transfer a case from one court to another.14

The mere apprehension of the petitioners on imaginary grounds cannot be accepted.15

Application for transfer of a case on the allegation of bias against the Presiding Officer
cannot be filed without being supported by affidavit.16 It has been observed as follows:

It is to be always kept in mind that there should be a reasonable ground to justify the plea of apprehension in the mind of a party to a judicial proceeding about
the dealing of the proceeding of a Judge. This must be in the realm of actuality. A fanciful idea, an imaginary suspicion or capricious plea can never be equated
with the conception of reasonable apprehension.17

(f) Judicial Order. A judicial order made by a judge cannot be legitimately made the
foundation for a transfer application.

Where a stay application against the trial courts order to issue interim injunction is filed in
the appellate court, which refuses to grant stay, the defendant cannot seek transfer of
appeal. Remedy against dismissal of stay does not lie in a petition for transfer.18

(g) Convenience. Where in a suit for partition instituted in the court of 24-Parganas, the
parties were residents of Calcutta and the major portion of the immovable property was
also situated in Calcutta, the suit was transferred to the original side of the High Court of
Calcutta on the ground principally, of convenience.19 In a suit to set aside certain deeds of
gift executed by a deceased person on the ground that the deceased was not of sound mind
and that the deeds were procured by undue influence, the High Court of Allahabad
ordered the suit to be transferred to the court of the place where the deeds were executed
on the ground that the witnesses were residents of that place and that the defence must
turn upon local evidence.20

The Court while considering an application for transfer of a case cannot delve into the
existence or lack of territorial jurisdiction of respective Courts. The paramount factor
would be convenience of both parties. Thus, where in a suit arising out of a contract, the
petitioner had its head office at Visakhapatnam and an equally important Regional Office
at Hyderabad. It was found that substantial portion of transaction had taken place at
Hyderabad in the form of issuance and acceptance of tenders, undertaking negotiations. It
was held that no inconvenience would be caused to the petitioner if suits are decided by
Court at Hyderabad.21

Where the wife sought transfer of a petition for judicial separation filed by the husband on
the ground that it was inconvenient for her to attend as she was serving in other district
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and her father was not in a position to accompany her, it was considered sufficient ground
for transfer of the petition to the place where the wife resides.22

(h) Medical Ground. In view of the fact that under the present Code of Civil Procedure the
affidavit evidence relating to the chief-examination had been introduced for the purpose of
cross-examination or otherwise, if there is any difficulty in this regard, the litigant is at
liberty to move an appropriate application relating to expenses. Hence, it is needless to say
that the litigant is at liberty to move such an application in the event of any difficulty on
the ground of health.23 The fact that a party to the suit is a diabetic patient is therefore, no
ground for transfer of the suit.24

13. Transfer from Rent Court to civil courtpermissibility. The Rent Control Act and
the rules made thereunder are a complete Code covering the proceedings under the said
Act. Even with reference to the transfer of the proceedings before the rent controller as
well as before the appellate authority, it is provided under the Act and the rules made
thereunder. But, however, there is no provision for transfer of a proceeding from the rent
control court to any other civil court. In fact, the powers of ordering eviction under the
grounds specified under the Act are exclusively conferred on the specified or notified
courts or the authorities. Therefore, such power conferred by notification under the
provisions of the Act, cannot be conferred by the High Court by transferring a rent
control proceeding pending on the file of the rent controller to any civil court, as such
powers are vested only in government. Therefore, the petitions seeking transfer of the
proceedings pending before the rent controller to the civil court, would not be
maintainable. Further even on merits also, there is no case for ordering transfer as the
conduct of the petitioners clearly showed that it is intended only to delay and protract the
proceedings before the rent controller.25

Under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, there are provisions
for making Rules and Rules have been framed thereunder known as the Tamil Nadu
Buildings (Lease and Rent Control) Rules 1974. Rule 14 of the said Rules provides for
transfer of proceedings from one Controller to another and r 17 provides for transfer of
proceedings from one appellate authority to another. Since there are adequate provisions in
the Act and the Rules governing transfer of cases, a proceeding before the Rent Controller
cannot be transferred to High Court under s 24 of the Code.26

14. Disputes between husband and wife. The High Court under s 24 of the Code of Civil
Procedure has got unquestionable power to transfer cases from one court to the other court.
Similarly, as the family court is also a court subordinate to the High Court and is subject to
the provisions of the Code of Civil Procedure, the High Court is empowered under s 24 of the
Code of Civil Procedure to transfer cases from one family court to the other family court.

But, the question in this case is whether this court can transfer a case from the file of a
family court, to a civil court. As already stated, in the absence of Constitution of a family
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court, the civil court is empowered to exercise jurisdiction in respect of matrimonial cases,
by virtue of the provisions of s 8. Therefore, in places where family court is not
established, as the local courts are vested with the jurisdiction to deal with matrimonial
cases, such local courts are competent to try the matrimonial cases of the nature which are
mentioned in the explanation to s 7 of the Family Courts Act, 1984. In such a case, there may
not be any bar under s 8 of the Code of Civil Procedure (sic) from transferring the cases pending
in a family court to such civil courts. Therefore, this court in exercise of its jurisdiction
under s 24 of the Code of Civil Procedure, can transfer cases which are instituted in a family
court to the courts within whose local jurisdiction no family court is constituted.27

In a Karnataka case, the suit was by the husband for restitution of conjugal rights. The
wife sought transfer of the suit to her parents place. She apprehended danger to her life in
the event of entering the husbands town. Affidavit was filed by the husband assuring full
security to her life. Efforts of the court to rid her of her apprehension were in vain.
Transfer of the suit was allowed, having due regard to the state of mind of the wife.28 The
overall picture which emerged in this case is that though the application of the petitioner
appears to be earlier in time, it cannot be said that the non-petitioner has filed the case
under s 13 of the Hindu Marriage Act, 1955 only as a counter-blast to her application for
restitution of conjugal rights, in such a situation, no case of transfer is made out.29 A
petition for divorce was filed by the husband at Mysore where he was working. The wife,
filed a petition for restitution at Bangalore where she was residing with the father. The wife
admittedly suffered from a mental disorder and it was held in the interest of justice and
equity proceedings that the wife cannot be forced to join proceedings at Mysore. The
petition of the husband was transferred to Bangalore.30

In a case, the Kerala High Court held that Family Courts are subordinate to the High
Court and as such the High Court is empowered to withdraw case from one Family Court
and transfer it to another Family Court irrespective of the fact whether or not the
transferee Court has got competency and territorial jurisdiction to try the case. Such power
can be exercised under s 24 of the Code without taking recourse to s 8 of the Family Courts
Act.31

In a case of matrimonial dispute, the wife and the husband appeared before Supreme
Court Lok Adalat and there was a settlement between the parties with the intervention of
mediators. The parties agreed that they want divorce by mutual consent and also agreed
not to proceed with pending criminal and civil disputes. In view of this, the transfer
petition filed by wife was disposed of in terms of the settlement and direction to grant
divorce by mutual consent was issued.32

Where the case was filed by husband against the wife at place D for declaration of marriage
as void, the wife living at place Y and she had to travel by bus and had to change bus thrice
for reaching place D, and at place Y her two brothers were residing where she could
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conveniently live and conduct the case also. Under the circumstances, the High Court
transferred the case at place Y, where wife was residing.33

15. Probate and Succession Certificate. The various provisions of the Indian Succession
Act, 1925 is that a proceeding for the grant of a probate or a succession certificate has to
be treated and equated to a proceeding in a suit and the procedures governing those
proceedings are as laid down in the Code of Civil Procedure. A combined reading of the
provisions of the Indian Succession Act, 1925 clearly suggests that the proceedings for the
grant of succession certificate before the learned District Judge are in the form of regular
suits and they are to be conducted according to the Code of Civil Procedure. In any view of
the matter, as the proceedings for grant of succession certificate is pending before a civil
court subordinate to the High Court, the application under s 24 of the Code of Civil Procedure
will certainly be maintainable for transfer of proceedings for grant of succession certificate
under the Indian Succession Act, 1925.34

Where two probate petitions, one filed by petitioner before the High Court and the other
filed by respondent before the District Court; both based on two separate wills by same
testator, involving the same parties, considering the fact that the petition had been
instituted earlier before High Court, a court of competent jurisdiction, the petition before
the District Judge was directed to be transferred to the High Court.35

16. Election Petition. Under s 88 (b) of the Kerala Panchayat Raj Act (13 of 1994), the
court having jurisdiction to try an election petition in the case of a district panchayat is the
District Court and if the government may by notification notify under sub-s (2) of s 88 of
the said Act such other additional District Court, then such other District Court may have
jurisdiction to try the election petition under s 88 of the Act. Section 24 of the Code of Civil
Procedure deals with general power of transfer and withdrawal and enables the District
Court to transfer any suit, appeal or other proceedings pending before it, for trial or
disposal to any court subordinate to it and competent to try or dispose off the same.
Though the District Court is therefore, empowered to transfer a case to an additional
District Court, then also such additional District Court should also be a court competent
to try or dispose off the matter. For the limited purpose of s 24 of the Code of Civil Procedure
alone, an additional District Court shall be deemed to be subordinate to the District Court.
Hence if an additional District Court if otherwise competent to try and dispose off the
election petition and if it is notified under s 88 (2) then the District Court is empowered to
transfer to such additional District Court notified. It is only by virtue of such notification
that the additional District Court will be competent to try and dispose off the matter.
However, in case the petition is transferred to a court not notified by the government, the
transfer of election case by District Court to such other court is not legal since such other
court will have no jurisdiction to try such case.36

17. Notice. No notice is necessary if the court acts suo motu. If an application is made,
notice must be given by the court and not by the party as in s 22. The provision as to
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notice is imperative, and an order for transfer made without notice will be set aside;37 and
so will an ex parte decree made by a court to which the suit has been transferred without
notice to the defendant.38 Notice to the other party (of the application for transfer) is
mandatory.39 Before transferring a suit under s 24, notice must be served on the parties. If
the vakalatnama authorises the counsel to accept a notice issued by the civil judge and does
not authorise the counsel to accept service of notice by any other court, then the District
Court cannot serve the notice of transfer on counsel. The parties must be notified
personally.40 Rule 63 of civil rules of practice contemplate that when a suit is transferred on
administrative grounds by the District Court invoking the general power of transfer and
withdrawal under s 24, the transferor court has to issue notice either to the counsel who is
on the record or to the parties intimating the date of their appearance before the transferee
court. The endeavour though laudable, is not sufficient to remedy the difficulties of the
parties who are not informed by their counsel representing them before the transferor
court for some reason or the other, if notice is given to counsel and in the absence of
notice also being issued to parties by the transferor court as contemplated under r 63 of
Civil Rules of Practice, even if notice is issued to the counsel appearing on their behalf.41
The mere bifurcation of a court does not mean (i) that a suit validly instituted within that
particular court should cease to be within its jurisdiction; or (ii) that the suit should be
necessarily transferred to the new court.42 On the other hand, the Madras High Court
treats the matter of notice as one of practice and procedure and holds that notice may be
waived43 and that want of notice is an irregularity which does not invalidate the order of
transfer.44 The same is the view of the High Court of Calcutta which has held that a
transfer without notice is only an irregularity if it does not prejudice the opposite side and,
is not sufficient ground for holding that the court to which the case is transferred has no
jurisdiction to dispose off the case.45 According to the Karnataka High Court, a suo motu
transfer by the High Court or District Court under s 24 does not call for the issuance of
notice to the parties. It is only when the transfer is to be made on the application of a party
that notice is required to be given and the matter heard. In the instant case, a suo motu
transfer was made by the District Judge. Therefore, revision petitioners were not entitled
to notice. However, though the District Judge may not issue notice when he directs a
transfer suo motu, the transferee court is bound to issue a court notice to the parties, of the
fact of transfer and to appear before the transferee court on the specified date.46 The
Lahore High Court held that this section is wider in scope than s 22 and no notice before
the filing of an application for transfer is necessary under this section.47 An order of the
High Court made suo motu under this section need not be in any prescribed form and
accordingly, a memo of the High Court directing that certain suits pending in court A
should be tried by court B amounts to an order of transfer under this section.48 It has been
held by the High Court of Andhra Pradesh that it is the duty of the court under r 48 of the
civil rules of practice either to issue notice to the parties or to record its reasons before
making an order of transfer.49 Such a notice is necessary to enable the parties to appoint
their advocates in the transferee court.50

The Supreme Court has held that the purpose of s 24, CPC is merely to confer on the
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Court a discretionary power. A Court acting under s 24, CPC may or may not in its judicial
discretion transfer a particular case. Section 24 does not prescribe any ground for ordering
the transfer of a case. In certain cases it may be ordered suo motu and it may be done for
administrative reasons. But when an application for transfer is made by a party, the Court
is required to issue notice to the other side and hear the party before directing transfer.51

18. At any stage. These words and the substitution of the word pending for instituted
settle the doubt as to whether a suit could be transferred or withdrawn after the hearing
had commenced. The High Courts of Bombay, Madras and Allahabad had held when the
Code of 1882 was in force that a suit could be transferred or withdrawn at any stage even
after the hearing had commenced, and even in the course of execution proceedings.52 On
the other hand, the Calcutta High Court held that there was no power to interfere after the
hearing had commenced and no power to transfer an execution proceeding.53 The change
in the language of the section was clearly intended to give effect to the former view. It has
nevertheless been held by the High Court of Calcutta that an execution proceeding is not
included in the words suit or other proceedings54 but the contrary has been laid down by
the Allahabad,55 Madras,56 and Patna57 High Courts. Where there is a transfer of execution
case under s 24, the transferee court need not be the court which passed the decree or a
court to which the decree was sent for execution under s 39. It need only have pecuniary
jurisdiction to dispose off the case.58 Under s 24, the District Judge can transfer the case at
any stage, and this is so, notwithstanding that there was defect in the initial presentation.59
In view of cl (b) of sub-s 3 now inserted in sub-s 3, the Calcutta view that the words other
proceeding do not include an execution proceeding is no longer correct. The High Court
in exercise of the power under Art. 227 of the Constitution and s 24 of the Code of Civil Procedure
has the power to suo motu transfer the matter from one court to another.60

19. Pending before it. Under the corresponding section of the Code of 1882, it was held
that a District Judge had no power to transfer to a subordinate court a suit pending before
himself.61 Clause (a) of sub-s 1 confers this power on High Courts and District Courts.

20. District Court. District Court in this section means a court of unlimited pecuniary
jurisdiction. An order of transfer under this section cannot, therefore, be made by an
Assistant Judge whose pecuniary jurisdiction is limited.62 A first class Subordinate judge in
charge of a court can make administrative orders distributing the work of his court among
the judges attached to it; but when once a judge has taken cognizance of a suit it cannot be
removed from his file. Such a removal amounts to a transfer of a suit which can only be
ordered by a District Court or by the High Court.63 If, however, the suit is transferred by
the first class subordinate judge, and allowed to be heard without objection, so that there is
a waiver of the objection as to jurisdiction, the legality of the proceedings cannot be
challenged in appeal.64

In view of the express provision of 235, under Chapter VI of Part VI of the Constitution of
India, it appears that control over subordinate judicial administration vests completely with
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the High Court and it is exclusively for the High Court to decide before whom jurisdiction
will vest, if a regular District Judge goes on leave. In that view of the matter an application
before High Court under s 24 of the Code for transfer of proceeding on the ground of lack
of jurisdiction/power of the District Judge, Andaman and Nicobar Islands to deal with
civil cases in absence of regular District Judge, has no basis.65

The power exercised by a District Court in relation to transfer of suit, cannot be

considered as an order passed on an interlocutory application. It is an independent right
given to a particular Court and tried as an independent proceedings. Such an order cannot
be challenged in a writ petition under Art. 227 of the Constitution. The remedy is to file a
revision under s 115 of the Code.66

21. Clause (a): Court subordinate to it. A decree for dissolution of marriage under the
Indian Divorce Act 4 of 1869, made by the Divisional Judge of Nagpur was confirmed by the
High Court of Bombay; but after the confirmation of the decree by the Bombay High
Court, it was held that an application for alimony must be made to the court at Nagpur.
The Bombay High Court could not entertain it, nor could it transfer the application to the
Nagpur court, for that court was not subordinate to it.67 The High Court in its appellate
side cannot transfer a case from the mofusil to its original side as the court sitting in the
original side is not subordinate to it.68 The High Court can, under ss 2224 of the Code,
transfer a case from one family court to another. Family courts are civil courts within the
meaning of these sections.69 A senior subordinate judge in Punjab cannot transfer a case
from his court to that of a junior subordinate judge, for the latter is not subordinate to
him.70 The section does not appear to empower a court to withdraw to its file an
interlocutory application in a suit or original proceeding pending in a subordinate court
while the suit or original proceeding itself remains on the file of that court.71 An agency
court constituted under the Andhra Pradesh Scheduled Districts Act and the rules
thereunder is a court subordinate to the High Court. The High Court can therefore,
transfer a suit pending in such agency court to a civil court; but on such transfer, the
procedure to be followed would be that which would have been applicable had the suit
been tried by an agency court.72

Being an appellate authority over motor accident claims tribunals, the High Court can
transfer a case from one tribunal to another tribunal.73 The power of transfer under s 24
can be exercised, only in respect of proceedings pending in a subordinate court. Where the
plaint has been returned under the orders of the trial court for presentation to the proper
court and there is no suit or plaint pending in a subordinate court, the case cannot be
transferred under s 24, because there is no case pending.74 Application was made for
transfer of proceedings to motor accident claims tribunal at place for convenience, since all
the parties and eye-witnesses to the occurrence were residents of place B, it was held that
motor accident claims tribunal being a civil court subordinate to High Court for the
purpose of s 24, the transfer application is maintainable. Such transfer of proceeding can
be ordered under Art. 227 of the Constitution also.75 There can be no legal impediment for
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transfer of the proceedings pending before the family court to any of the competent civil
courts subordinate to the High Court. In the absence of any special provisions contained
in the Family Courts Act 66 of 1984, prohibiting the exercise of power of transfer by the
High Court under s 24 of the Code, when the other concerned civil courts available in
other parts of the state where no family court had been established, are competent to try
the subject matter of disputes to be fought in family court, it goes without saying that the
powers of transfer as contemplated under s 24 of the Code can, by no str etc h of
imagination, be held to have been whittled or taken away by the provisions of s 8 of the
Family Courts Act of 1984.76 Application was filed by the landlady for eviction of tenant
before the authority under s 23 A(b) of Madhya Pradesh Accommodation Control Act,
1961. Jurisdiction of the authority was challenged. Authority held that it had no jurisdiction
and transferred the case to the civil court. The case was registered as a civil suit. High
court, in revision, set aside the order of authority and remitted the case to the authority for
disposal. The civil court, instead of transferring and remitted the case to the authority for
disposal. Civil court, instead of transferring the case, dismissed the suit. Here, the landlady
filed an application under s 24 /151 of the Code of Civil Procedure before the District Judge
for transfer of the case to authority. The District Judge allowed the application as order of
civil court was nullity. It was held that order of District Judge could not be interfered with
under Art. 227 of the Constitution as it would perpetuate a wrong committed by a civil
court.77

22. Clause (a): Suit. One view was that an execution proceeding is not included in the
expression suit or other proceeding.78 But the expression Suit, appeal or other proceeding
in cll (a) and (b) of sub-s 1 is of wide import and there is no reason why an execution
proceeding should be excluded from such a comprehensive expression. Besides, an
execution proceeding is a proceeding in a suit and would therefore, be included in the
words other proceeding.79 Clause (b) of the newly added sub-s 3 has now defined the word
proceeding to include an execution proceeding.

23. Clauses (a) and (b): Other proceedings. The word other proceedings used in s 24 of
the Code of Civil Procedure denotes the proceedings held under the Code of Civil Procedure or in
any other Civil Proceedings in which provisions of s 24 of the Code of Civil Procedure is
applicable or in the situation where any Civil Act is silent in respect of the applicability of
the Code of Civil Procedure, but not in the matter in which specific provisions of the Code of
Civil Procedure only have been adopted in which s 24 is not included. The Uttar Pradesh
Public Premises (Eviction of Unauthorised Occupants) Act (13 of 1994), is a special law, while the
Code of Civil Procedure is a general law and it is well settled that the specific law would prevail
over the general law.80

The language of s 24 (3)(b) of the Code is clear and explicit and an application for the
enforcement of award filed under s 36 of the Arbitration and Conciliation Act, 1996 would
come under the category of proceeding under the section. Therefore, the District Judge
would have power and jurisdiction to transfer application under s 36 of the Act from a
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Court which had no jurisdiction to decide the case in the first instance to Court of
competent jurisdiction.81

The words other proceeding include an insolvency petition,82 but not a proceeding under s
476 of the Code of Criminal Procedure.83 The Madras High Court has held that a District Court
has power under the clause to withdraw to its own file proceedings in execution
transmitted by it to a subordinate Court.84 Under this section, the High Court can transfer
suo motu proceedings under ss 184, 185, 19596 of the Companies Act, 191385 corresponding
to ss 467, 468, 47778 of the 1956 Act. It has been held by the Madras High Court that the
term civil proceedings is not a technical expression and that it would include all matters
which the courts have jurisdiction to decide under the Code and that accordingly, a dispute
as to possession which is referred to the district munsif under s 146 of the Code of Criminal
Procedure is a proceeding which could be transferred under this section.86 It has also been
held that where a suit or proceeding is transferred from court A to court B, all
interlocutory proceedings in the suit should be taken in court B and not court A.87

24. Clauses (a) and (b): Competent to try or dispose off the same. Insertion of words
Competent to try or dispose off same in the section indicate that the competence of court
required is both pecuniary and territorial.88

Where it appears that the suit has been instituted in the court which has both pecuniary
jurisdiction as well as the territorial jurisdiction and there is nothing to indicate either in the
pleading or in the petition as to how the interest of the defendants would be served best in
transferring the same to Berhampur court, there is no justification to set aside the
impugned order passed by the learned District Judge, Berhampur in rejecting transfer of
petition.89

25. Clause (b): Withdrawal of suit. A bare perusal of s 24 leaves no manner of doubt
that the High Court had the requisite jurisdiction to suo motu withdraw a suit to its file and
adjudicate itself all or any of the issues involved therein.90

However, the High Court, while deciding writ petition ordered transfer of suits and
appeals involving similar issues to itself. An application for recall of the order was filed. It
was held by the Supreme Court that the dismissal of suits by the High Court on the
ground that issues raised in the suits were being examined in the writ petition, without
passing any order on the application for recall, was not justified as the procedure adopted
by it was unknown to law.1 But where ends of justice demand, an order by the High Court
transferring a proceeding to itself cannot be faulted. Thus, in a case under the Recovery of
Debts due to Bank and Financial Institutions Act, 1993, where the borrower had taken
loan from Bank but lingered the case for 30 years on technical grounds, the Division
Bench of Orissa High Court held the transfer of proceeding to High Court itself as proper.
While rejecting the plea of the borrower for transfer of the proceeding to civil court for
execution instead of being dealt with by Tribunal on ground of pecuniary jurisdiction, it
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was observed that the borrower gave no reason what difference it makes to him if the
recovery is made by one forum or the other.2

26. Competent Court. The court to which a suit is transferred must possess pecuniary
jurisdiction, but it is not necessary that it should have territorial jurisdiction.3 The Chief
Court of Oudh has held that it is not necessary that the transferee court should have
territorial jurisdiction, and that competence means intrinsic competence and refers to the
subject-matter of the case and its pecuniary value.4 A civil court is excluded from trying it
by tenancy legislation.5 The expression District Court in the Hindu Marriage Act includes
the Court of the Additional District Judge under s 8 (2) of the Bengal, Agra, Assam civil
courts Act, 1887, and therefore, it is competent for the District Court to transfer an
application under s 13 of the Hindu Marriage Act, 1955, to the court of the additional District
Judge.6 If a suit pending in a small cause court is transferred to a subordinate judges court,
it must be within the pecuniary limits of the jurisdiction of the subordinate judge. If the
subordinate judge is invested with small cause court powers, it matters not that those
powers fall short of the value of the suit. This has been decided by the Bombay High
Court7 dissenting from a Madras decision which made the competency of the court
depend upon its small cause court powers.8 The Calcutta High Court agrees with the view
of the Bombay High Court.9 Recently, the Madras High Court has also held that a District
Court may transfer any proceeding from a court of small causes to a court not having
adequate small cause powers to deal with it as a court of small causes.10 The High Court
can pass an order transferring the appeal to its own court and not necessarily to the
District Court which also has got jurisdiction over the same as the section only requires
that the transfer should be only to a court which has jurisdiction.11 The District Judge
cannot, under s 24, transfer an appeal to a court not competent to try it.12 Under s 24 (1)(b)
and (c) of the Code, the High Court can transfer to itself, at Jabalpur, the suit filed by the
Union of India relating to compensation for loss caused to numerous victims of the
Bhopal gas leak disaster. Such jurisdiction exists under Art. 227 of the Constitution also, if the
conditions of that article are satisfied. However, on the facts, such transfer was not
considered necessary.13 The competence of the transferee court must be judged as on the
date of the transfer. Thus, where appeals are preferred to the High Court and as a result of
subsequent legislation, the District Court became competent to hear the appeals, it was
held that the High Court could transfer the appeals to the District Court.14

ILLUSTRATION

A suit for Rs 900 is pending in the small cause court at Ahmedabad. Application is made
to transfer it to the court of the second class sub-judge at Ahmedabad whose jurisdiction
extends to Rs 5,000, but who is invested with small cause court powers upto Rs 300. The
High Court has power to make the transfer, for the suit is within the pecuniary jurisdiction
of the second class sub-judge.15

Again, the competency of the court is not affected by the circumstance that the small cause
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court has under s 16 of the Provincial Small Cause Courts Act, 1887 preferential jurisdiction;
and a suit may be transferred from a small cause court to the court of a subordinate judge
having jurisdiction within the same local limits,16 or to the City Civil Court, Madras.17 It is
not necessary that the transfer must be made to a court which has small cause court
powers;18 but the High Court has no power to transfer an insolvency petition made under
the Provincial Insolvency Act, 1920, and pending before a subordinate judge to the judge of
the High Court exercising insolvency jurisdiction.19

A suit under s 92 cannot be transferred to a court not empowered under that section.20

27. Order of transfer: when takes effect. It has been held by the Punjab High Court21
that an order withdrawing a suit from a court under this section, whether made on an
application of the party or suo motu, takes effect from the time when it is made and that
thereafter, the court before which the proceedings are pending, has no jurisdiction to try it,
and that accordingly, any decree or order made by that court in that proceedings is a
nullity, even though the order of withdrawal had not been communicated to it. This view is
based on decisions which have held that an order of stay of execution passed by the
appellate court takes away the jurisdiction of the court below to proceed with the
execution from the very time the order is made;22 but, the preponderance of judicial
opinion is in favour of the view that an order for stay operates only from the time when it
is communicated23 and it is submitted that an order of withdrawal cannot be held to oust
the jurisdiction of the court before which the cause is pending, until it is communicated.

28. Re-transfer. Clause (b)(iii) gives power to re-transfer a suit to the court from which it
was withdrawn. There was no such power in the Code of 1882 and the cases in foot-note24
are obsolete.

Under this clause, the court making an order for transfer or withdrawal may issue special
directions. The directions contemplated are as to trial de novo or proceeding with the suit
from the point on which it was transferred or withdrawn. An order for joint trial with
another suit is not within this section.25 If a suit is transferred to a court not having
jurisdiction, its re-transfer to the competent court can be ordered. The expression
competent in s 24 (1)(b)(ii) implies territorial competence also.26

29. Sub-section (2): Applicability in pending proceeding. Section 24 can be applied in

a pending proceeding. During pendency of a suit filed before a court having jurisdiction to
entertain it, an application for amendment for claim seeking ouster of jurisdiction of that
court was filed and the same was allowed. It was held that until and unless a specific order
is passed under O 7, r 10 is passed directing return of plaint, it must be held that the suit
was pending before the court and, therefore, the power order is passed under s 24 could be
exercised by the judge in the facts and circumstances of the case.27
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Directions for the substantive questions at issue between the parties cannot be issued as
special directions under sub-s (2).28

30. Sub-section (4): Court of Small Causes. The High Courts of Allahabad,29 Madras,30
Patna31 and latterly, also the High Courts of Bombay32 and Calcutta,33 have agreed that the
expression Court of Small Causes in sub-s (4) includes a court vested with the powers of a
Court of Small Causes. The High Courts of Bombay,34 and Calcutta,35 at one time held that
it was restricted to a court established under Act 9 of 1887, but those decisions are no
longer law.

The provisions of sub-s (4) do not constitute the court to which the suit is transferred as a
small cause court.36 It derives jurisdiction to try the suit as a small cause suit from s 24
(4),37 and is deemed to be a small cause court for the purposes of the suit38 with the result
that its procedure in the trial of the suit is governed by the provisions of Act 9 of 1887,39
and no appeal lies if there is no appeal under that Act.40 The procedure will be that of a
small cause court even though the District Judge transferring the suit directs it to be tried
as a regular suit, for he has no jurisdiction to give such a direction.41 The decree will not
operate as res judicata in a suit which the small cause court had no jurisdiction to entertain.42
The same principles apply where on the retirement or transfer of a subordinate judge
having small cause court powers, the suit is transferred by order of the District Judge to
another judge not invested with small cause court jurisdiction, and no appeal will lie from a
decree passed by the latter judge;43 but, if no order of transfer is made, and if on the
transfer of a munsif vested with small cause court powers, his successor, who is not so
invested, takes cognizance of the suit under s 35 of the Provincial Small Cause Courts Act and
tries it as a regular suit, an appeal will lie.44

In a recent decision, the Madras High Court, relying on a Full Bench decision of Allahabad
High Court in Bhagwati Pandes case (supra), held that an ejectment suit which is exclusively
triable by Court of Small Causes can be transferred to civil court for trial along with
original suit for damages for use and occupation.45 It was observed as follows:

17. The statutory provision as contained in Section 24(4) was inserted only to lide over the difficulties which whould arise on the point of jurisdiction in as much
as the Constitution of the Small Cause Court was made only as per the provisions of the Presidency Small Cause Courts Act, 1882. However, the civil courts
are established as per the provisions of the Code of Civil Procedure. Therefore, it is very clear that in the event of transfer of civil suit from the Court of Small
Causes to a civil court, the Transferee Court shall be deemed to be a Court of Small Causes for the purpose of such suit.46

31. Sub-section (5). Court to which application is made under s 24 for transfer, is not
bound to grant the application. Hence, where the application is made for transfer of a suit
pending in an incompetent court, the court empowered to transfer under s 24 can direct
that the applicant (plaintiff) can apply to the trial court for withdrawal of the suit, with
permission to file fresh suit in the competent court.47 Where the suit initially instituted in a
court having no territorial jurisdiction is transferred by the District Judge to a court having
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such jurisdiction, the decree passed in the suit cannot be challenged for want of initial
competence.48

32. Decree by transferee Court. The decree drawn by transferee-court should always
disclose original court in which suit was instituted, date of presentation of plaint to be
mentioned in the decree is the date on which suit was instituted in the original court, and
not the date on which it was received by transferee-court.49

33. Revision. Where the petition to the District Judge for transfer of suit pending in the
trial court is dismissed the order rejecting petition is revisable and the proviso to s 115 is
not attracted. Petition filed before District Judge under s 24, for transfer of the suit
pending in trial court, is a proceeding independent of the suit. It cannot be said that the
order rejecting the petition passed by the learned District Judge under s 24 of the Code of
Civil Procedure is an order passed in a pending proceedings in a suit, though the prayer in the
application under s 24 is for transferring the pending suit to some other court which has
jurisdiction. The order cannot be characterised as an order passed in the pending suit itself.
If this is so, the proviso to s 115 of the Code of Civil Procedure is not attracted and as such it
cannot be said that unless the order is shown to have caused irreparable injury or has
occasional failure of justice, it is not revisable.50

The interference with the order can only be if the revisional court finds that the
subordinate court has exercised jurisdiction not vested in it by law or to have failed to
exercise its jurisdiction or to have act ed in the exercise of its jurisdiction illegally or with
material irregularity. It is only if the order impugned falls into any one or the other of
these, it is amenable to the revisional jurisdiction of the High Court under s 115 of the Code
of Civil Procedure.51

While it is an accepted judicial norm that the judges of the higher judiciary have the choice
to hear a matter in the sense that the judge himself can recuse from the case and direct the
matter to be posted before any other judge/s if the learned judge has the feeling that one
of the parties to the proceeding may have a reasonable apprehension of bias if the
proceedings should go on before the particular judge. But, insofar as the proceedings
before the trial courts are concerned, it is strictly determined as per the provisions of the
Code of Civil Procedure, particularly having regard to the provisions of ss 15, 16, 17, 18, 19
and 20. In the scheme of the Code of Civil Procedure the judges of the subordinate judiciary,
do not have the power to recuse themselves from the suit or proceeding pending before
the court over which they preside.52

34. Appeal. An order transferring a case under this section is not appealable.53

Power of Supreme Court to transfer suits, etc.

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54[S. 25. Power of Supreme Court to transfer suits, etc.

(1) On the application of a party, and after notice to the parties, and after hearing such
of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that
an order under this section is expedient for the ends of justice, direct that any suit,
appeal or other proceeding be transferred from a High Court or other civil court in
one State to a High Court or other civil court in any other State.
(2) Every application under this section shall be made by a motion which shall be
supported by affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall,
subject to any special directions in the order of transfer, either re-try it or proceed
from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is of
opinion that the application was frivolous or vexatious, order the applicant to pay
by way of compensation to any person who has opposed the application such sum,
not exceeding two thousand rupees, as it considers appropriate in the circumstances
of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under this
section shall be the law which the Court in which the suit, appeal or other
proceeding was originally instituted ought to have applied to such suit, appeal or
proceeding.]

1. Scope. Under the section before its amendment, by Act (104 of 1976) it was the state
government which had the power to transfer cases from one High Court to another upon
a report made by a judge of the High Court that there were reasonable objections to its
being heard by him. Such transfer could be effected by a notification in the Official Gazette.
The section as it stood before its amendment was on the analogy of s 52 of the Code of
Criminal Procedure 1898. The new section is wider in scope than the unamended section.

The changes affected by the amendment:

(i) the power of transfer is conferred on the Supreme Court;
(ii) the power is wider in that, whereas under the unamended section the state
government could transfer only a suit, appeal or other proceeding pending before a
single judge of a High Court, the Supreme Court can now transfer a suit, appeal or
other proceeding pending not only before a single judge but also before a division
bench of a High Court or other civil court in any other state.
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The application has to be made by a motion supported by an affidavit. If the Supreme

Court finds that the application was frivolous or vexatious, it would naturally dismiss it and
in doing so, can award as compensation to the opposing party a sum not exceeding rupees
two thousand. Sub-section 5 is the same as sub-s 2 of the section before its amendment.
What is expedient for the ends of justice will have to be judged upon the totality of facts
and circumstances in a given case.55

2. Paramount Consideration. The paramount consideration for the exercise of power of

transfer must be to meet the ends of justice. It is true that if more than one court has
jurisdiction under the Code of Civil Procedure to try the suit, the plaintiff, as dominus litis, has
a right to choose the court and the defendant cannot demand that the suit be tried in any
particular court which is convenient to him. The mere convenience of the parties or of any
one of them may not be enough for ordering transfer. It must also be shown that trial in
the chosen forum will result in the denial of justice. A party seeking justice may choose a
forum most inconvenient to the adversary, with a view to depriving the adversary of a fair
trial. The Parliament has, therefore, invested the Supreme Court with discretion to transfer
the case from one court to another, to meet the ends of justice. Words of wide amplitude
(for the ends of justice) have been advisedly used, to leave the matter to the discretion of
the Apex Court, as it is not possible to conceive all situations requiring or justifying the
exercise of power; but, justice according to law, should be done. If, for achieving that
objective, the transfer of the case is imperative, there should be no hesitation to transfer
the case, even if it may cause some inconvenience to the plaintiff.56

A Division Bench of the Delhi High Court has held that s 24 of the Code refers to the
general power of transfer and withdrawal of proceedings, but the principle behind s 23 and
s 24 is that the power would lie to the superior court having jurisdiction in the matter. The
power under s 25 conferred on the Supreme Court is much wider.57 Dwelling on the
doctrine of forum non conveniens, it was observed by the Division Bench as follows:

The principle of forum non convenience does not apply to civil suits in India which are governed by the said Code, there being no provision under the Code for the
same and recourse to Section 151, CPC is not permissible for the application of the principle of forum non conveniens to domestic forums especially keeping in
mind that it is the other side of the coin of the doctrine of anti-suit injunction. An aggrieved party can, however, approach the Supreme Court under Section 25
of the said Code.58

Explaining the doctrine of forum non convenience the Division Bench observed that the
doctrine of forum non convenience which originated in Scotland and thereafter brought to
England. United States of America simply put means that if legal proceedings are initiated
in a particular forum and that forum is of the opinion that there is a more convenient
forum where such lis should be tried, it desists from trying the particular lis.

According to Dicey and Morris, the doctrine of forum non convenience, i.e. that some
other forum is more appropriate in the sense of more suitable for the ends of justice, was
developed by Scottish Courts in the nineteenth century, and was adopted (with some
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modifications) in the United States. The Scots rule is that the court may decline
jurisdiction, after giving consideration to the interests of the parties and the requirements
of justice, on the ground that the case cannot be suitably tried in the Scottish Court nor
full justice be done there, but only in another court.59

An off-shoot of the above doctrine is the practice of granting anti-suit injunction. In the
Spiliada Maritime case,60 the House of Lords has held:

The basic principle is that a stay will only be granted on the ground of forum non convenience where the court is satisfied that there is some other available forum,
having competent jurisdiction, which is the appropriate forum for the trial of the action.

However, the Division Bench of the Delhi High Court in Horlicks case (supra) held that the
doctrine of anti-suit injunction though may be applicable both in foreign forums and
domestic forums in different countries, it has no place in India regarding another domestic
forum in view of the specific bar created by s 41 (b) of the Specific Relief Act, 1963. But Indian
Courts can apply the principle vis-a-vis foreign forums or while exercising discretionary
jurisdiction under Art. 226 of the Constitution.

The Supreme Court in Modi Entertainment Network v. W.S.G. Cricket Pvt. Ltd.61 observed:

9. The Courts in India like the Courts in England are Courts of both law and equity. The principles governing grant of injunctionan equitable reliefby a Court
will also govern grant of anti-suit injunction which is but a species of injunction. When Court restrains a party to a suit/proceeding before it from instituting or
prosecuting a case in another Court including a foreign Court, it is called anti-suit injunction. It is a common ground that the Courts in India have power to
issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. This is because courts of equity exercise jurisdiction in
personam. However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in
effect causes interference in the exercise of jurisdiction by another court.

3. Withdrawal before itself to decide. The Supreme Court, finding no hope to unite the
parties, withdrew the petition to itself and granted a decree of divorce by mutual consent.62
When the transfer petition came up for hearing before the Supreme Court, the parties
desired to settle the dispute outside the court and filed a Memorandum of Agreement
before the Supreme Court. In view of the settlement arrived at between the parties, the
Supreme Court considered it necessary to transfer the Hindu Marriage Act case to itself in
the light of the agreement filed by the parties.63

4. Family matters. Power to transfer a case under s 25 of the Code of Civil Procedure is not
excluded by ss 2121A of the Hindu Marriage Act, 1955.64 Since family matters are sensitive
in character and the judges of the family courts have to play a greater participatory role,
that objective can only be achieved if a rapport is established by the judges of such courts
with the parties concerned; hence, keeping in view the unfounded allegations of the
petitioner, the Supreme Court declined to transfer the matter, however, leaving it to the
judge concerned whether he would prefer to keep hearing the matter or recommend a
transfer to another family court within the same jurisdiction.65 Having regard to the
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agreement between the parties seeking dissolution of marriage by mutual consent, the
Honble Supreme Court ordered transfer of the petition from the Court of District Judge,
Bokaro to the District Judge, Delhi.66 Considering the fact that the husband is a high
ranking railway officer, who would be entitled to travel facility, in the opinion of the
Supreme Court in the backdrop of events that have taken place, it would be expedient in
the interest of justice to transfer the proceedings from one court to another for disposal in
accordance with law.67 In the absence of any objection from the respondent, the petition
under s 13 of the Hindu Marriage Act, 1955 was transferred to Delhi, where a petition under s
125 of the Code of Criminal Procedure is pending.68 Considering the fact that a child out of the
marriage aged about two and a half years was with the wife at Varanasi; and, since, the
child could not be left alone at Varanasi, the petition was transferred from the Court of
District Judge, Delhi to the Family Court, Varanasi.69 Though, the reasons given by the
appellant for transfer of the case from the Family Court, Pune, to the Family Court, Delhi
and the apprehension entertained by the appellant were totally unjustified, since the
principal judge, Family Court, Pune, had taken the grievances made by the appellant before
the court rather seriously and had commented adversely about the same, with a view to do
complete justice between the parties, the case was directed to be transferred from the file
of the Principal Judge, Family Court, Pune, to the Principal Judge, Family Court, Delhi.70

In a case where the marriage of a Hindu couple was performed in Goa, it was held that as
the provisions of Hindu Marriage Act, 1955 would be applicable the proceedings for the
annulment of the said marriage can be heard outside Goa and a petition for transfer the
proceeding out of Goa is maintainable.71 Altamas Kabir, J., speaking for the Supreme
Court Bench, explained the applicability of Hindu Marriage Act in the following words:

13. As far as the Civil Code as enacted on 25th December, 1910, and the provisions of the law of marriage as a Civil Contract in Goa, Daman and Diu
which come into force on 26th May, 1911, are concerned, we are unable to agree with Ms. Aggarwal that all marriages performed within the territory of Goa
unless registered should be void. The said provision was altered by the decree of 22nd January, 1946, which restored the validity of both Catholic marriages and
Hindu marriages. Two Hindus, therefore, can contract a marriage according to Hindu Religious rites or by way of a civil marriage. Section 2 of the Hindu
Marriage Act extends the operation of the Act to the whole of India except Jammu and Kashmir and also applies to Hindus domiciled in the territories to
which the Act extends who are outside the said territories. In other words, the provisions of the Hindu Marriage Act, 1955, would be applicable to the
petitioners case and can be heard by any Court having jurisdiction within the territories to which it applies.72

The Supreme Court further went on to hold as follows:

14. We are not convinced with the submissions made by Ms. Aggarwal that the annulment proceedings cannot be heard outside the State of Goa in view of the
existing laws which made the Civil Code and the laws relating to marriage applicable to all persons residing within the State of Goa. In addition to the above,
Sections 5 and 6 of the Goa, Daman & Diu (Administration) Act, 1962, indicate that the Central Government has authority to extend enactments
applicable to the rest of the country. In other words, even if it were to be held that it is the customary law in Goa which would prevail over the personal law of the
parties, the same could not be a bar to the transfer of the matter outside the State of Goa to any other State.73

In a particular case the wife alleged that she was kidnapped and her signature was forcibly
taken before the marriage registrar to show that she had married the respondent. She
further alleged that she managed to run away from the custody of the respondent and
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apprehended threat of bodily injury/death if she were to visit the place of marriage. She
alleged paucity of funds to engage a counsel at the place where the suit was pending. The
allegations were not refuted by the respondent, so the court transferred the suit from the
Court of Family Judge in West Bengal to the Court of Family Judge in the State of Bihar.74

A suit for an injunction was pending in a court at Delhi, and was sought to be transferred
to City Civil Court, Mumbai. The suit was in respect of a flat gifted by the father of the
petitioner wife, alleged to have been filed by respondent husband with a view to harass the
petitioner due to matrimonial disputes between parties, pending before the Mumbai
Courts. The petitioner was finding it very difficult to cope with the harassment of
respondent husband and to contest the case initiated by him at Delhi, in the atmosphere of
fear, the petitioner wife had to leave the abovementioned apartment at Delhi and go to her
parents at Mumbai. Considering all the facts and circumstances, to serve the ends of justice
better, the suit pending in the court at Delhi was directed to be transferred to the City Civil
Court, Mumbai.75

5. Transfer of Civil case from one State to another. Considerations for the transfer of a
civil case from one State to another by the Supreme Court are dealt with in the cases
below.76

On the question of transfer of civil cases from one State to another, see also Note 4 to
Section 23 (ante.).

In Durgesh Sharmas case,77 the Supreme Court held that even when s 25 of the Code in its
present form was substituted by the Amendment Act of 1976, sub-s (3) of s 23 of the
Code has neither been deleted nor amended. It was observed that interpreting s 23 in the
manner suggested by the learned counsel would result in allowing inroad and
encroachment on the powers of the Supreme Court. It further held that s 23 must be read
subject to s 25 and even if the High Court had the power to transfer a case from one State
to another State, that must be taken to have been withdrawn from 1-1-1977 when the
Amendment Act of 1976 came into force.

Sometimes it so happens that due to error of the Draftsman some provision in an

enactment, which ought to have been deleted, are not deleted, as was the case with Section
23(3) of the Code or some provision, which should have been incorporated in the
repealing enactment are not provided for specifically. Such omissions cast added
responsibility on Courts to interpret the law and find out the true intention of the
legislature and remove the absurdity. It would be pertinent to make a reference to the
observations of Lord Denning, L.J., which was quoted with approval by a five-Judge
Bench of the Supreme Court in M. Pentiahs case.78 Denning, L.J., said:

When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of
Parliamentand then he must supplement the written word so as to give force of life to the intention of the legislaturea judge should ask himself the question how,
if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done.
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A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.79

In M. Pentiahs case the Supreme Court also quoted with approval a passage from Maxwell,
wherein it has been stated as follows:

Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the
enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of
the words, and even the structure of the sentencewhere the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsmans
unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the courts are very reluctant to
substitute words in a statute, or to add words to it, and it has been said that they will only do so where there is a repugnancy to good sense.80

6. Minimising hardship. A suit was transferred from the file of the Subordinate Judge,
Patna by an earlier order of the Supreme Court, to be tried along with another suit pending
with the original side of the Bombay High Court. The suit pending on the original side of
the Bombay High Court was subsequently decreed while the appeal against it was pending.
The petitioners prayed for the transfer of the suit back to Patna on the ground that the
order of the joint trial had outlived its purpose. The Supreme Court, giving regard to the
facts and circumstances of the case, instead of re-transferring the suit to Patna, directed
that the original side of the Bombay High Court should frame necessary issues in this suit
within six weeks and try the suit on day to day basis from the date of framing of issues.
The shares were forfeited by the appellant company, consequent to which proceedings
were filed in a different state and within the state in different courts. The appellant
company prayed for transfer of case to one single court. The Supreme Court, instead of
transferring all these cases to one single court which would inter alia, cause hardship and
unavoidable expenses to the respondent, observed that the petitioners move the respective
High Court to have the cases transferred for disposal within their respective jurisdictions
so that the hardship to both the sides is minimised.81

7. Transfer application allowedinstances. The reason for seeking transfer of the suit is
that the first petitioner who was the Karta of the joint family of the petitioners was about
75 years old. The petitioners had no place to stay in Gauhati and it would have been
impossible for the petitioners who were all residents of Calcutta to defend the suit if it was
tried in Gauhati. Considering the facts and circumstances of the case, the Supreme Court
considered it expedient for the ends of justice to have the suit tried at Calcutta.82

Since, the earlier suit was filed in Kanpur, the registered office of the company was also at
Kanpur, and the income-tax return was also filed at Kanpur, it went without saying that
the suit otherwise deserves to be decided by one and the same court, hence, the suit at
Calcutta was ordered to be transferred to Kanpur.83

Though, the reasons given by the appellant for transfer of the case from the Family Court,
Pune, to the Family Court, Delhi and the apprehension entertained by the appellant were
totally unjustified, since the Principal Judge, Family Court, Pune, had taken the grievances
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made by the appellant before the court rather seriously and had commented adversely
about the same, with a view to do complete justice between the parties, the case was
directed to be transferred from the file of the Principal Judge, Family Court, Pune, to the
Principal Judge Family Court, Delhi.84

A very interesting case relating to transfer of suits from one State to the other came up
before a three-Judge Bench of the Supreme Court. Two Original Applications were
pending before the Debt Recovery Tribunal, Hyderabad, one filed by a company Vinedale
Distilleries Ltd. and the other filed by Dena Bank. In 2006, the Supreme Court, while
allowing transfer petition and transferring various suits pending between the parties before
the civil court in Andhra Pradesh to the Delhi High Court, passed the following order:

In order to avoid any future confusion, on consent of parties, any suit which may be filed in future touching upon the control and management of the Company in
question, should be filed before the Honble Delhi High Court, which will decide the matters.

In the matter of the two Original Applications pending between the parties before Debt
Recovery Tribunal, Hyderabad, the Supreme Court, taking note of its earlier order in 2006,
observed that though suits and the present proceedings before the Tribunal are different,
considering the intent and purport of its earlier order, the proceedings before the Debt
Recovery Tribunal, Hyderabad be transferred to Debt Recovery Tribunal at Delhi.85

8. Transfer application disallowedinstances. No party is entitled to get a case

transferred from one bench to another, unless the bench is biased or there are some
reasonable grounds for the same. No right to get a case transferred to any other bench can
legitimately be claimed, merely because the judge expresses opinion on the merits of the
case on the conclusion of hearing. On the conclusion of the oral hearing, the Supreme
Court expressed its opinion in the open court, that it was inclined to allow the appeal and
set aside the order of the High Court and dismiss the writ petition. However, taking a
sympathetic view, it requested the counsel appearing for the party to obtain certain
instructions; but, such opportunity granted to the party was misused by the party by raising
mischievous and frivolous objections for the transfer of the case from one bench to
another, instead of filing written submissions. The prayer for transfer was rejected by the
Supreme Court in the circumstances. It was more so, since oral hearing had already been
completed, and, despite several adjournments, the party had failed to appear before the
court or to file the written submission.86

In view of the respondent undertaking to meet the travel expenses of the petitioner, it was
held by the Supreme Court that there was no justification in transferring the case from
Sultanpur to Valsad.87

9. Effect of rejection of earlier transfer application in other matter. On an earlier

occasion, the respondent made an application for transfer of the Dibrugarh case to Delhi,
which was rejected by the Supreme Court. In these circumstances, it was deemed proper to
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transfer the guardianship case filed by the respondent at Delhi to Dibrugarh, where
another application was already pending. Although, it may have caused the respondent
some trouble of undertaking the journey to Dibrugarh but, for that reason in the facts of
the present case, it could not be presumed that the respondent would be prejudiced in
prosecuting his case. Since, the respondent was not in any financial difficulty, he could
make an appropriate arrangement for his representation at Dibrugarh.88

10. Sections 24, 25 and Letter Patent clause (13)Court. See notes to s 24.

11. Sections 10 and 25 of the Code of Civil Procedure. See notes to s 10.

12. Return of plaint distinct from transfer of suit. See notes to s 24.

13. Effect of allowing of earlier transfer application in other matter. Where, suit
sought to be transferred was associated with two matters already ordered to be transferred
by Supreme Court, in the light of the said fact, the suit in question was also directed to be
transferred to the same High Court. However, since the already over-burdened High Court
had another case added to its pendency, the Supreme Court observed that the judge of the
concerned High Court excepting for such witnesses who are very material and who the
learned judge of the High Court, in his discretion of any witnesses may need to be watched
and so on.89

14. Transfer of subsequent suit to the Court dealing with earlier suit. In a particular
case there was contract for supply of jute bags between the plaintiff company and the
defendant company and the goods supplied were found to be defective and therefore
returned. Suits were filed by both companies against each other for recovery of amount
before different courts, the cause of action alleged in the two plaints referred to same
period and same transactions. The issues arising were common and almost the same set of
oral and documentary evidence were required to be adduced. The possibility of conflicting
decrees by two courts could not be ruled out. Therefore, the suit instituted at a later point
was directed by the Supreme Court to be transferred to the court where earlier suit was
filed.90

Institution of Suits

169 . Section 21 Re-numbered as sub-sec. (1) by Act 104 of 1976, s 8 (w.e.f. 1-2-1977).
170 . Ins. by CPC (Amendment) Act 104 of 1976, s 8 (w.e.f. 1-2-1977).
171 . Punjab National Bank v. Millen Sales Corpn., AIR 1997 Raj 151; Pathumma v. Kuntalan Kutti, (1981) 3 SCC 589 [LNIND 1981 SC 329].
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172 . Manindra Chandra v. Lal Mohan, AIR 1929 Cal 358: (1929) ILR 56 Cal 940; Bank of Chettinand v. SPKVR Firm, AIR 1935 Rang 517; Jnan
Chand v. Jugal Kishore, AIR 1960 Cal 331 [LNIND 1959 CAL 186].
173 . Shree Subhlaxmi Fabrics Pvt. Ltd. v. Chand Mal Baradia, AIR 2005 SC 2161 [LNIND 2005 SC 305]: (2005) 10 SCC 704 [LNIND 2005 SC
305].
174 . Nandarani Bose v. Ranhhoddas Muldas Ramanui, AIR 1981 Cal 275 [LNIND 1981 CAL 67].
175 . Jeevani Bano v. Asha Arora, AIR 1997 Raj 261.
176 . Maharaja Bahadur of Hathwa v. H.E. Beal, (1936) 40 Cal WN 65 (D.B.).
177 . Oriental Bank of Commerce v. Santosh Kumar Agariral, AIR 2008 Cal 148 [LNIND 2008 CAL 478]: 2008 (2) Cal LT 509 (DB).
178 . Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 [LNIND 1954 SC 67]: (1955) 1 SCR 117 [LNIND 1954 SC 67] : (1954) SCJ 514
[LNIND 1954 SC 67]; Nand Kishore v. Prabhu Narain, AIR 1976 Raj 20 [LNIND 1975 RAJ 99].
179 . Gwala Prasad v. Mathura Prasad, AIR 1937 Oudh 379: (1938) ILR 13 Luck 340; relying on Ambadas v. Vishnu Govind, AIR 1927 Bom 83:
(1927) ILR 50 Bom 839; Anil Kumar Das v. Aruna Kumar Bannerjee, (1962) 66 Cal WN 476.
180 . Gosto Behari Pramanik v. Malati Sen, AIR 1985 Cal 379 [LNIND 1984 CAL 354].
181 . Harshad Chiman Lal Modi v. DLF Universal Ltd., AIR 2005 SC 4446 [LNIND 2005 SC 730].
182 . Hasham Abbas Sayyad v. Usman Abbas Sayyad, AIR 2007 SC 1077 [LNIND 2006 SC 1127]: (2007) 2 SCC 355 [LNIND 2006 SC 1127].
1 . Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 [LNIND 1954 SC 67]: (1955) 1 SCR 117 [LNIND 1954 SC 67]. See also Nand Kishore
v. Prabhu Narain, AIR 1976 Raj 20 [LNIND 1975 RAJ 99]: 1975 WLN 814.
2 . Chief Engineer, Hydel Project v. Ravinder Nath, AIR 2008 SC 1315 [LNIND 2008 SC 160] (at page 1321) : (2008) 2 SCC 350 [LNIND
2008 SC 160].
3 . Mantoo Sarkar v. Oriental Insurance Co. Ltd., AIR 2009 SC 1022 [LNIND 2008 SC 2443]: (2009) 2 SCC 244 (Sinha, J., speaking for the
Bench).
4 . Raja Soap Factory v. Shantharaj, AIR 1965 SC 1449 [LNIND 1965 SC 12]; Kunheema v. P. Balkrishnan, AIR 1967 Ker 97 [LNIND 1966
KER 114]; Hriday Nath v. Ramchandra, AIR 1921 Cal 34: (1921) ILR 48 Cal 138; Amritrav v. Balakrishna, (1887) ILR 11 Bom 488, p 490.
5 . Vishnu v. Krishnarao, (1887) ILR 11 Bom 153.
6 . See the Presidency Small Causes Courts Act 15 of 1882, s 19. Certain other suits are also excepted from the cognisance of a provincial
small causes court. See Provincial Small Causes Courts Act 9 of 1887, s 15.
7 . See also, Bombay Civil Court Act 14 of 1869, s 28A, and Bengal, NWP, and Assam Civil Courts Act 12 of 1887, s 23.
8 . (1884) ILR 10 Cal 878.

9 . Mighell v. Sultan of Johore, [1893] 1 QB 149 . As to princes, chiefs, ambassadors and envoys, see s 86.
10 . Jose Antonio v. Francisco, (1910) ILR 35 Bom 24; Rajlakshmi v. Katyayani, (1910) ILR 38 Cal 638, 666, 672; Rachappa v. Shidappa, (1919) ILR
43 Bom 507 : (1919) 46 IA 24; Jagtaram v. Munder Kuer, AIR 1934 Pat 240: (1934) ILR 13 Pat 290; Sitaram Singh v. Tikarem, AIR 1942
Oudh 481; Appat Krishna v. Lakshmi Nothair, AIR 1950 Mad 751.
11 . Ajay Singh (deceased by LRS) v. Tikka Brijendra Singh, AIR 2007 HP 52 [LNIND 2006 HP 41]: 2006 (2) Shim LC 394; See also State of
H.P. v. Smt. Annapurna Pathak, AIR 2007 HP 88 [LNIND 2007 HP 41].
12 Bhamboo v. Ram Narain, AIR 1928 Lah 207: (1928) ILR 9 Lah 455; Prema Dip Pictures v. New Sound Pictures, AIR 1955 MB 193.
13 . Musa Ji Lakman Ji v. Durga Das, AIR 1946 Lah 57: (1945) ILR Lah 281; Dinanath v. Mahavir, AIR 1958 Punj 289.
14 . AIR 1962 SC 199 [LNIND 1961 SC 236]: [1962] 2 SCR 747 [LNIND 1961 SC 236] : (1961) 2 SCJ 592 [LNIND 1961 SC 236];
affirming Hiralal v. Kalinath, AIR 1955 All 569 [LNIND 1955 ALL 12]; Harichand v. Virbal, AIR 1975 Guj 150: (1974) 15 Guj LR 499.
15 . Prem Dip Pictures v. New Sound Pictures, AIR 1955 MB 193; Gulabchand v. Anandan, AIR 1954 Mad 11 [LNIND 1953 MAD 38]; Dinanath
v. Mahavir, AIR 1958 Punj 289.
16 . See notes to s 20: Agreement as to choice of court.
17 . Prem Dip Pictures v. New Sound Pictures, AIR 1955 MB 193; Gulab Chand v. Anandan, AIR 1954 Mad 11 [LNIND 1953 MAD 38].
18 . Savani Transport v. Sukumar Chakravarty, AIR 1986 Cal 330 [LNIND 1986 CAL 113] (DB).
19 . Shioprasad v. Mohanabai, AIR 1989 Bom 349 [LNIND 1988 BOM 196].
20 . Vasireddi Srimanthu v. Devabhaktuni, AIR 1947 Mad 347: (1948) ILR Mad 18(FB).
21 . Rajlakshmi v. Katyayani, (1913) ILR 38 Cal 639; Kiransingh v. Chaman Paswan, AIR 1954 SC 340 [LNIND 1954 SC 67].
22 . Bepin Behary v. Mohit Kumar, AIR 1942 Cal 496: (1942) ILR 1 Cal 149; Raghuraj v. Basudeo, AIR 1950 Pat 318: (1950) ILR 29 Pat 318;
United Commercial Bank Ltd. v. Workmen, AIR 1951 SC 230 [LNIND 1951 SC 26].
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23 . Gurdeo Singh v. Chandrika, (1909) ILR 36 Cal 103.

24 . (1887) 13 IA 124 : (1886) ILR 9 All 191; Vishnu v. Krishnarao, (1887) ILR 11 Bom 153.
25 . (1888) ILR 11 Mad 26 : 14 IA 160; Jeranchod v. Dakore Temple Committee, AIR 1925 PC 155: (1925) 27 Bom LR 872.
26 . Bepin Behary v. Mohit Kumar, AIR 1942 Cal 496; Girwar Narayan v. Kamla Prasad, AIR 1933 Pat 104: (1933) ILR 12 Pat 117; Yaruva
Chinnapa Redi v. Shriniwasrao, AIR 1935 Mad 835: (1936) ILR 59 Mad 62; Ajam Ibram v. Bai Hana, AIR 1939 Bom 85: (1939) ILR Bom
472.
27 . Mohanlal v. Ratna, AIR 1971 Raj 164; Venkata Rao v. Brijpal, AIR 1972 Mys 339.
28 . Union of India v. Bhagat Ram, AIR 1972 All 288.
29 . R. Venkatashwami Naidu v. South India Viscose Ltd. Coimbatore, AIR 1985 Mad 275.
30 . Poonam Chand v. Ramprasad, AIR 1969 M.P. 44 [LNIND 1968 MP 79].
31 . Abdul Azeen v. Fahimunnisa, AIR 1969 Mys 226.
32 . Bhamboo v. Ram Narain, AIR 1928 Lah 297: (1928) ILR 9 Lah 455.
33 . (1919) 42 Mad 813 : 46 IA 151.
34 . (1918) Mad WN 378.
35 . Gora Chand v. Prafulla Kumar, AIR 1925 Cal 907: (1926) ILR 53 Cal 166(FB); dissented from as to the powers of a court in execution in
Nathan v. Samson, AIR 1932 Rang 252: (1932) ILR 9 Rang 480; see note Proof of jurisdiction in commentary on O 21, r. 7.
36 . (1931) 54 Cal LJ 593.
37 . Maqsood Ali v. Hunter, AIR 1943 Oudh 338(FB).
38 . Bahrein Petroleum Co. v. PJ Pappu, AIR 1966 SC 634 [LNIND 1965 SC 191].
39 . Ratti Ram v. Kundan Lal, (1914) PR 87.
40 . Annammal v. Sambasiva, (1919) 37 Mad LJ 349.
41 . Zamindar of Ettiyapuram v. Chidambaram, (1920) ILR 43 Mad 675 (FB); Achut Anant v. Governor General in Council, AIR 1955 Cal 331
[LNIND 1954 CAL 152].
42 . Chokkalinga v. Velayudha, AIR 1925 Mad 117 [LNIND 1924 MAD 6]: (1924) 47 Mad LJ 448; Ramani v. Narayanaswami, AIR 1924 Mad
697: (1924) 4 Mad LJ 192; Dirgopal v. Kesho Prasad, AIR 1928 Pat 324: (1928) ILR 7 Pat 216, (alteration of jurisdiction by diluvion).
43 . Govinddas v. Parameswari Das, AIR 1957 MP 71 [LNIND 1957 MP 177]; Chandra Bhushan v. Brik Nandan, AIR 1978 All 459.
44 . Swamy v. Mohideen, AIR 1958 Mad 490 [LNIND 1958 MAD 177]: (1958) ILR Mad 622 : (1958) 1 Mad LJ 355 : 71 LW 383.
45 . Ramani v. Narayanaswami, AIR 1924 Mad 697: (1924) 47 Mad LJ 192.
46 . Pannalal v. Mohan Lal, AIR 1985 Raj 178.
47 . Ram Pheron v. Shiv Ram, AIR 1947 Oudh 174: (1947) ILR 22 Luck, 164.
48 . Nidhi Lal v. Mazhar Husain, (1884) ILR 7 All 230.
49 . Sayad Nyamtula v. Nano, (1889) ILR 13 Bom 282; Velayudam v. Arunachala, (1890) ILR 13 Mad 273.
50 . Bibi Ladli v. Bibi Raje, (1889) ILR 13 Bom 650.
51 . Beerappa v. Yeshwantrao, AIR 1972 Mys 338.
52 . Harshad Chiman Lal Modi v. DLF Universal Ltd., AIR 2005 SC 4446 [LNIND 2005 SC 730].
53 . Germenthangi v. F. Rokunga, AIR 2004 Gau 42 [LNIND 2003 GAU 283].
54 . Abdul Rahiman Rawther v. Kamalathammal, AIR 1980 Mad 114 [LNIND 1978 MAD 349].
55 . Ibid.
56 . Ramesh Chander v. Bhusan Lal, AIR 1984 P&H 345; Pathumma v. Kuntalan Kutty, AIR 1981 SC 1683 [LNIND 1981 SC 329] followed.
57 . Maha Prasad v. Ramani Mohan, 42 Cal 116 : (1914) 41 IA 197; Ramlal v. Kishanchand, AIR 1924 PC 95: 51 Cal 361 : 51 IA 72; Raichander v.
Premanand, AIR 1978 AP 349 [LNIND 1978 AP 30].
58 . Sasa Musa Sugar Works v. Chunnilal, AIR 1975 Gau 24.
59 . Anil Kumar v. Manasnath, AIR 1975 Cal 293 [LNIND 1975 CAL 85].
60 . Indermani Kirtipal v. Union of India, AIR 1996 SC 1567 [LNIND 1996 SC 278].
61 . IFB Automotive Seating & System Ltd. v. UOI, AIR 2003 Cal 80 [LNIND 2002 CAL 225].
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62 . Ibid.
63 . Koopitan Uneen (daughter) v. Koopitan Ununi (Son), AIR 1981 SC 1683 [LNIND 1981 SC 329].
64 . Renown Biscuit Co., Bombay v. Kamalanathan, AIR 1980 Mad 28 [LNIND 1979 MAD 28].
65 . Manager, Hardware & Tools Ltd. v. Saru Smelting Pvt. Ltd., AIR 1983 All 329(D.B.); Special Secretary, Government of Rajasthan v.
Venkataramana Seshaiyar, AIR 1984 A.P. 5 [LNIND 1983 AP 193].
66 . Prabhakar v. Union of India, AIR 1970 Bom 285 [LNIND 1969 BOM 37]; Manappa v. Bhaskhappa, AIR 1978 Kant 113.
67 . Keshav v. Vinayak, (1899) ILR 23 Bom 22; Muthappa Chetty v. Raman Chetty, AIR 1935 Mad 574 [LNIND 1935 MAD 18]; Vijaya Ramraj
v. Vijaya Anatha, AIR 1952 All 564; Akkamna v. Kullampattian, AIR 1956 Mad 593; Ayesha Bai v. Daleep Singh, AIR 1961 Raj 186 [LNIND
1960 RAJ 3].
68 . Dwarka Das Pyarelal, AIR 1930 All 873: (1930) ILR 52 All 947.
69 . Premier Automobiles Ltd. Lakshmi Motors, AIR 1960 Raj 208 [LNIND 1959 RAJ 121].
70 . Surinder Singh Arora v. Sohan Singh Arora, AIR 1986 Del 293 [LNIND 1985 DEL 51].
71 . Maheshpur Tea & Industries Pvt. Ltd. v. Mantala Tea Co. Ltd., AIR 2001 Gau 152 [LNIND 2001 GAU 335].
72 . Dareppa v. Mallappa, AIR 1947 Bom 307 followed; Shioprasad v. Mohanbai, AIR 1989 Bom 349 [LNIND 1988 BOM 196].
73 . Exphar SA v. Euphrama Laboratories Ltd., AIR 2004 SC 1682 [LNIND 2004 SC 243].
74 . Ibid.
75 . Ibid.
76 . (1920) ILR 43 Mad 675, 486 (FB); Maqsood Ali v. Hunter, AIR 1943 Oudh 338(FB); Jagannath v. Shivnarayan, AIR 1937 Bom 19: (1936)
38 Bom LR 1023; Gomatham v. Komandur, (1904) ILR 27 Mad 118.
77 . AIR 1962 SC 199 [LNIND 1961 SC 236]: [1962] 2 SCR 747 [LNIND 1961 SC 236] : (1961) 2 SCJ 592 [LNIND 1961 SC 236].
78 . For instances in which, on the application of the above principle, objection of the court was repelled in execution proceedings, see the
following cases: Anand Rao v. Kishendoss, AIR 1954 Hyd 190; Swanikannu v. Arumugham, (1955) 2 Mad LJ 16; Iswar v. Najpal, AIR 1956 Pat
280, 35 Pat 610; Sheonath v. Balaswami, AIR 1959 Pat 489; Rajaram Sah v. Narad Thakur, AIR 1960 Pat 136.
79 . Sivas Kamal v. Raja of Jeypore, AIR 1927 Mad 667: (1927) ILR 50 Mad 882.
80 . Veerappa v. Ramasami, (1920) ILR 43 Mad 135.
81 . Manavikraman v. Ananthanarayana, AIR 1924 Mad 457 [LNIND 1923 MAD 200]: (1924) 46 Mad LJ 250; Ramani v. Narayanaswami, AIR
1924 Mad 697: (1924) 47 Mad LJ 192; Rajagopala v. Tirupathia, AIR 1926 Mad 421 [LNIND 1925 MAD 275]: (1926) ILR 49 Mad 746.
82 . Ayisass Nagratna, AIR 1934 Mad 573 [LNIND 1934 MAD 95].
83 . Bhag Singh v. Labh Singh, (1916) PR 93; Gajendra v. Sunder Singh, AIR 1934 All 549; Champalal v. Saligram, AIR 1961 Raj 235 [LNIND
1961 RAJ 125]; Inderrnal T. Mahajan v. Ramprasad, AIR 1970 MP 40 [LNIND 1969 MP 2]; Champalal v. Saligram, AIR 1961 Raj 235
[LNIND 1961 RAJ 125]: (1961) ILR Raj 614; Yogeshwar Raj Puri v. Yog Raj Puri, AIR 1967 Punj 163.
84 . Lachharam v. Virji, AIR 1921 All 66: (1921) 19 All LJ 305.
85 . Nanakchand v. TT Elec. Supply Co., AIR 1975 Mad 103 [LNIND 1974 MAD 137]: (1974) 2 Mad LJ 431.
86 . Surender Mahanti v. Ghasi Ram Mahanti, AIR 1996 Ori 172 [LNIND 1996 ORI 135].
87 . AIR 1993 SC 2094 [LNIND 1993 SC 1144].
88 . G. Loganathan v. S. Chenniya Chettiar, AIR 1996 Mad 224 [LNIND 1995 MAD 583].
89 . Uthman v. Nania, AIR 1923 Mad 351: (1923) 44 Mad LJ 238.
90 . Ins. by CPC (Amendment) Act 104 of 1976, s 9 (w.e.f. 1-2-1977).
91 . Nageshwara v. Ganesa, AIR 1942 Mad 675 [LNIND 1942 MAD 222]; Annammal v. Sambasiva, (1919) 37 Mad LJ 349; Chokkalinga v.
Velayudha, AIR 1925 Mad 117 [LNIND 1924 MAD 6]: (1924) 47 Mad LJ 448.
92 . Parshotam Das v. Radhakishan, AIR 1929 Lah 449: (1929) 11 Lah LJ 306.
93 . Firm Jagniram v. Ganpati Damaji, AIR 1941 Nag 31: (1941) ILR Nag 1.
94 . Maqsood Ali v. Hunter, AIR 1943 Oudh 338.
95 . Raghubar v. Harilal, AIR 1931 All 454: (1931) ILR 53 All 560.
96 . Chitranjan Prasad v. Addl Commissioner, Varanasi, AIR 1967 All 375.
97 . Subhas Mahadevasa Habib v. Nemasa Ambasa Dharmadas, AIR 2007 SC 1828 [LNIND 2007 SC 343] (Balasubramanyan, J., speaking for
the bench.)
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98 . Babulal v. Kotumal, AIR 1941 All 27: (1940) ILR All 737; Krishnaji Rao v. Gokuldas, AIR 1953 Mys 115.
99 . Kanhaiyalal v. Zumerlal, AIR 1940 Nag 145. See notes under s 24.
100 . Rajkumar v. Benoy Kumar, AIR 1985 Cal 328 [LNIND 1984 CAL 242].
101 . SS Mahalakshmi Mills v. Rajesh Trading Co., AIR 1983 Bom 486.
102 . Pushpa Devi Saraf v. Jai Narayan Parasrampuria, (1992) 2 SCC 676.
103 . K. Subbarao v. Laxminarayan Complex, AIR 1996 Kant 127 [LNIND 1995 KANT 427].
104 . Purna Chandra v. Dhone Kristo, (1914) 12 All LJ 896; National Engineering Co. v. Rattan, AIR 1923 Lah 288.
105 . Khatija Bibi v. Taruk, (1883) ILR 9 Cal 980.
106 . Umatul v. Kulsoom, (1909) ILR 10 Cal 980.
107 . David v. James, AIR 1958 Ker 82 [LNIND 1957 KER 236].
108 . Shakuntala Modi v. Omprakash Bharuka, AIR 1991 SC 1104.
109 . Gulab Chand v. Sher Singh, (1917) PR 11; Shiv Dutt v. Moti Ram, AIR 1925 Lah 322: (1925) 7 Lah LJ 93.
110 . Vijayaram v. Dr. Vijaya Anand, AIR 1953 All 750 [LNIND 1953 ALL 117].
111 . Basanti v. Sahodra, AIR 1935 All 979: (1955) All LJ 1093.
112 . Gefferi v. Rukchand, (1889) ILR 13 Bom 178; Hindustan Assurance Ltd. v. Rail Mulraj, (1914) 27 Mad LJ 645; Shiv v. Kanhaya, (1919) PR
167.
113 . See note under O 39, r. 1.
114 . Mahindra Chandra v. Lal Mohan, AIR 1929 Cal 358: (1929) ILR 56 Cal 940.
115 . Rajnath v. Vidyaram, AIR 1953 All 772 [LNIND 1953 ALL 140].
116 . Umatul v. Kulsoom, (1901) 10 Cal LJ 208.
117 . Ramaswamy Chettyar v. V.T. Chettyar, AIR 1934 Rang 265: (1934) ILR 12 Rang 548(FB).
118 . Ved Prakash Garg v. Seema, AIR 1988 P&H 75.
119 . Shree Raghavendra Exports v. Nauakar Enterprises, AIR 2004 AP 84.
120 . Venkata Sa Barod v. Maksudan Das, (1908) ILR 35 Cal 541; Vallabhbhai v. Chotalal, AIR 1927 Bom 79: (1927) ILR 51 Bom 26, pp. 2930;
Kanhaiyalal v. Zumerlal, AIR 1940 Nag 145.
121 . Sadayandi v. Venugopal, AIR 1960 Ker 91 [LNIND 1958 KER 212]: (1959) ILR Ker 180.
122 . Hayat Mahomed v. Shaikh Mannu, AIR 1927 Cal 290: (1927) 45 Cal LJ 71; Hindustan Assurance Ltd. v. Rail Mulraj, (1914) 27 Mad LJ 645.
123 . Datt Singh v. Tej Singh, AIR 1934 All 14: (1934) ILR 56 All 201.
124 . Guda Vijayalakshmi v. Guda Sekhara Sastry, (1981) 2 SCC 646 [LNIND 1981 SC 159].
125 . Priyavari Mehta v. Priyanath Mehta, AIR 1980 Bom 337 [LNIND 1979 BOM 183]. (Overruled in Durgesh Sharmas case.)
126 . Durgesh Sharma v. Jayshree, AIR 2009 SC 285 [LNIND 2008 SC 1932].
127 . Lakshmi Nagdev v. Jitendra Kumar Nagdev, (2004) 4 MPLJ 310; Mamta Gupta v. Mukund Kumar Gupta, AIR 2000 AP 394 [LNIND 2000
AP 258]; Priyavari Mehta v. Priyanath Mehta, AIR 1980 Bom 337 [LNIND 1979 BOM 183]; State Bank of India v. Sakow Industries Faridabad
(Pvt.) Ltd., New Delhi, AIR 1976 P&H 321.
128 . Shree Raghavendra Exports v. Nauakar Enterprises, AIR 2004 AP 84.
129 . Subs. by CPC (Amendment) Act 104 of 1976 (w.e.f. 1-2-1977) for the words thereafter tries such suit.
130 . Subs. by s 10, Ibid, for sub-sec. (3) (w.e.f. 1-2-1977).
131 . Ins. by s 10, Ibid, (w.e.f. 1-2-1977).
132 . M.V. Ganesh Prasad v. M.L. Vasudevamurthy, AIR 2003 Kant 39 [LNIND 2002 KANT 249].
133 . See Harshad Chiman Lal Modi v. DLF Universal Ltd., AIR 2005 SC 4446 [LNIND 2005 SC 730]: (2005) 7 SCC 791 [LNIND 2005 SC
730].
134 . Harshad Chiman Lal Modi v. DLF Universal Ltd., AIR 2006 SC 646 [LNIND 2005 SC 966].
135 . Sunil Dutt v. Bhag Singh, 2009 (157) DLT 41 : AIR 2009 (NOC) 2759(Del).
136 . M.V. Ganesh Prasad v. M.L. Vasudevamurthy, AIR 2003 Kant 39 [LNIND 2002 KANT 249].
137 . Shabbir Ahmed Khilji v. Mehar M. Sadique, AIR 2003 Raj 331.
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138 . P. Aisha Potti v. Returning Officer Kollam, AIR 2002 Ker 268 [LNIND 2002 KER 74].
139 . Baselius Marthoma Mathews v. Paulose Mar Atheinasius, AIR 1979 SC 1909 [LNIND 1979 SC 328].
140 . Paritokona Bannerjee v. Rabishankar Bannerjee, AIR 1987 Cal 269 [LNIND 1986 CAL 111].
141 . Kajetan Leo Vaz v. Jagdish Raghunath Mankar, AIR 1996 Bom 62 [LNIND 1995 BOM 498].
142 . P.K. Saraswat v. Union of India, AIR 1999 Sik 16 [LNIND 1998 SIK 4].
143 . N. Ram Mohan v. J. Kasthuri, AIR 1976 Mad 271 [LNIND 1975 MAD 320]: (1976) 1 Mad LJ 163.
144 . State Bank of India v. Madhumita Construction Pvt. Ltd., AIR 2003 Cal 7 [LNIND 2002 CAL 303].
145 . Mahindra Chandra v. Lal Mohan, AIR 1929 Cal 358: (1929) ILR 56 Cal 940.
146 . Sanganbhat v. Vasudev, AIR 1976 Kant 229 [LNIND 1976 KANT 30]: (1976) Kant 992.
147 . Srirangam Municipality v. Palaniswamy, AIR 1951 Mad 807 [LNIND 1950 MAD 191]: (1951) ILR Mad 897 : (1951) 1 Mad LJ 281;
Lachinarayanan Jute Mfg. Co. v. Dwip Narayan, AIR 1956 Cal 65 [LNIND 1955 CAL 130].
148 . K.V. Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust, AIR 2006 Ker 58 [LNIND 2005 KER 667]: 2005 (4) Ker LT 865 (FB).
149 . Ibid., at page 66 (of AIR).
150 . Nasiruddin v. State Transport Appellate Tribunal, AIR 1976 SC 331 [LNIND 1975 SC 306].
151 . Vijendra Pal Singh v. Sr Regional Manager, FCI, Lucknow, AIR 2002 All 206 [LNIND 2002 ALL 448] (DB).
152 . Ibid.
153 . Centre of Indian Trade Unions, UP State Committee v. Acting Chief Justice, High Court, Allahabad, AIR 1990 All 55 [LNIND 1989 ALL 269]
(DB).
154 . T. Kamatchi v. S. Murali alias Kanagasabapathy, AIR 2006 Mad 159 [LNIND 2006 MAD 144]: 2006 (1) Mad LJ 418.
155 . Ibid., at pp. 162-163 (of AIR).
156 . Rajah Soap Factory v. S.P. Santharaj, AIR 1965 SC 1449 [LNIND 1965 SC 12].
157 . T. Reddy v. M. Rao, AIR 1970 A.P. 194 [LNIND 1968 AP 145].
158 . Ledgard v. Bull, (1887) ILR 9 All 191 : 13 IA, 134; Peary Lal v. Komal Kishor, (1880) ILR 6 Cal 30.
159 . Posan Singh v. Inder Deo Singh, AIR 1952 Pat 328.
160 . Ram Narain v. Parmeswar, (1898) ILR 25 Cal 39.
161 . Narain Das v. Khunnilal, AIR 1934 All 569.
162 . Daftary v. Dube, AIR 1955 Nag 44: (1955) ILR Nag 36.
163 . AIR 1965 SC 1449 [LNIND 1965 SC 12].
164 . Murarilal v. Raman Lal, AIR 1978 All 106; Krishna Chand v. Tej Ram, AIR 1978 J&K 9.
165 . Kishore Lal v. Balkishan, AIR 1932 All 660: (1932) ILR 54 All 824; dissenting from Jannat v. Ghulam, (1920) 5 Pat LJ 588.
166 . Srinivasa v. Official Assignee, (1915) ILR 38 Mad 472.
167 . Vaithilinga v. Kaliaperumal, (1918) Mad WN 291.
168 . Kishore Lal v. Balkishan, AIR 1932 All 660: (1932) ILR 54 All 824.
169 . Syam Nandan v. Dhanpati Kuer, AIR 1960 Pat 244.
170 . Aviat Chemicals Pvt. Ltd. v. Magna Laboratories (Gujarat) Pvt. Ltd., AIR 2006 Del 115 [LNIND 2005 DEL 740]: 2006 (127) DLT 300
[LNIND 2005 DEL 740].
171 . Ibid, at page 123 (of AIR). Per Swatanter Kumar, J. (as he then was).
172 . Satyasri Fertilizers v. EID Parry (India) Ltd., Chennai, AIR 2003 A.P. 312 [LNIND 2003 AP 192].
173 . Seshagiri Rao v. Somasundaramma, AIR 1949 Mad 65 [LNIND 1948 MAD 71]: (1949) ILR Mad 94; Allahabad Bank v. Raja Ram, AIR
1933 Lah 671: (1933) ILR 14 Lah 779.
174 . Shamim Ahmed v. Egmore Benefits Society Ltd., AIR 1996 Mad 63 [LNIND 1995 MAD 388].
175 . D. Awastha Reddy v. Govt. of Andhra Pradesh, AIR 1998 A.P. 174 [LNIND 1997 AP 1124] (DB).
176 . Sadayandi v. Venugopal, AIR 1960 Ker 91 [LNIND 1958 KER 212].
177 . Ganapathy v. Commr of Hindu Religious Endowments, AIR 1955 Mad 378 [LNIND 1954 MAD 135]: (1955) ILR Mad 870.
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178 . Re Nortons Settlement [1907] 1 Ch 407 , 409; Madho Prasad v. Motichand, (1919) ILR 41 All 381.
179 . Tula Ram v. Harjiwan Das, (1883) ILR 5 All 60; Subba Bibi v. Maqbul, (1916) 14 All LJ 242; Inayat-ullah v. Nisar, AIR 1922 All 65: (1922)
ILR 44 All 278.

180 . Re Nortons Settlement [1907] 1 Ch 407 ; Hindustan Co. v. Mulraj, (1914) 27 Mad LJ 645.
181 . Sudha Sharma v. Ram Naresh Jaiswal, AIR 1990 MP 320 [LNIND 1989 MP 120].
182 . Tula Ram v. Harjiwan Das, (1883) ILR 5 All 60, 62.
183 . Anjali Ashok Sadhwani v. Ashok Kishinchand Sadhwani, AIR 2009 SC 1374 [LNIND 2008 SC 2380]; Sapna Agarwal v. Om Prakash Jalan,
AIR 2009 SC 1641 [LNIND 2008 SC 2359]; Fatema v. Jafri Syed Hussain (Parvez), AIR 2009 SC 1773 [LNIND 2008 SC 2360]; Pooja
Bashistha v. Bhupendra Bashistha, AIR 2009 SC 1673 [LNIND 2008 SC 2363].
184 . Kulwinder Kaur v. Kandi Friends Education Trust, AIR 2008 SC 1333 [LNIND 2008 SC 58].
185 . Rajulu v. Govindan Nair, AIR (1938) ILRMAD 745; Zubeida Khatoon v. Md Hayath, AIR 1933 Lah 635; Manjari v. Nirupam, AIR 1975 Del
42 [LNIND 1973 DEL 224]: (1974) 1 Del 135.
186 . Purna Chandra v. Samantha, AIR 1953 Ori 46: (1951) ILR Cut 1.
187 . Rosamma Joseph v. P.C. Sebastian, AIR 1996 Ker 113.
188 . District Collector v. Kerala Varma, AIR 1960 Ker 199 [LNIND 1959 KER 278]: (1959) Ker LJ 1219.
189 . State Bank of India v. Sakow Industries, AIR 1976 P&H 321 : (1976) 78 Punj LR 638.
1 . Amardeep v. District Judge, Lalitpur, 2007 (3) ALJ 691.
2 . Smt. Pushplata Prasad v. Dilip Kumar Sinha, AIR 2007 Jhar 1 [LNIND 2006 JHAR 43]: 2006 (3) AIR Jhar R 649.
3 . Sangeetha S. Chugh v. Ram Narayan, AIR 1995 Kant 112 [LNIND 1994 KANT 274].
4 . G. Lakshmi Ammal v. Elumaki Chettiar, AIR 1981 Mad 24 [LNIND 1980 MAD 188].
5 . M.V. Ganesh Prasad v. M.L. Vasudevamurthy, AIR 2003 Kant 39 [LNIND 2002 KANT 249].
6 . Loburi v. Assam Railway and Trading Co., (1884) ILR 10 Cal 915.
7 . Sher Singh v. Thakur Das, (1903) PR 88; Ahad Shah v. Ayshan, AIR 1923 Lah 564.
8 . Madan Lal v. Babu Lal, AIR 1962 Mani 42.
9 . Anand Jhawar v. Rinku Jhawar, AIR 2007 (NOC) 1963(Cal).
10 . Virendra Bhushan v. Rajendra Kumar, AIR 2007 (NOC) 2353(Raj).
11 . Pasupala Fakruddin v. Jamia Mosque, AIR 2003 A.P. 448.
12 . Nandini Chatterjee v. Arup Hari Chatterjee, AIR 2001 Cal 26 [LNIND 2000 CAL 304].
13 . M.V. Ganesh Prasad v. M.L. Vasudevamurthy, AIR 2003 Kant 39 [LNIND 2002 KANT 249].
14 . Rajkot Cancer Society v. Municipal Corpn., Rajkot, AIR 1988 Guj 63 [LNIND 1987 GUJ 117].
15 . Pasupala Fakruddin v. Jamia Mosque, AIR 2003 AP 448 See also Nandini Chatterjee v. Arup Hari Chatterjee, AIR 2001 Cal 26 [LNIND 2000
CAL 304].
16 . Sudarshan Jain v. Deep Chand Jain, AIR 2006 MP 6 [LNIND 2005 MP 188]: 2006 AIHC 702.
17 . Ibid., at page 10 (of AIR) [Per Dipak Misra, J., as he then was.]
18 . Vijay Kumar v. Uma Sanghi, AIR 1987 MP 41 [LNIND 1986 MP 15]; See also Nandini Chatterjee v. Arup Hari Chatterjee, AIR 2001 Cal 26
[LNIND 2000 CAL 304].
19 . Jotendronath v. Raj Kristo, (1890) 16 ILR Cal 771; Kumaragurubara Temple v. K.S. Mudaliar, AIR 1977 Mad 27 [LNIND 1976 MAD 99]:
(1976) 2 Mad LJ 209; but see Oriental Bank v. Pashole Tea Co., AIR 1975 Cal 476 [LNIND 1975 CAL 51].
20 . Inayat-ullah v. Nisar, AIR 1922 All 65: (1922) ILR 44 All 278.
21 . Girijan Co-operative Corporation Ltd. v. Hukmichand Sachion Kumar, 2007 (2) Andh LT 18.
22 . Smt. Varsha Rani Nag v. Herald Vinay Nandan, 2007 Cglj 145.
23 . Satyasri Fertilisers v. EID Parry (India) Ltd., Chennai, AIR 2003 Andh Pra 312.
24 . Ibid.
25 . L.K. Phanesh Babu v. Mohd Akbar, AIR 2003 AP 168 [LNIND 2002 AP 1415].
26 . A. Chandrasekar v. T. Venugopal, 2008 (7) Mad LJ 625 : 2008 (3) Mad LW 915 (DB).
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27 . V. Sailaja v. Koteswara Rao, AIR 2003 AP 178 [LNIND 2003 AP 808].

28 . Jayadevi v. Basavraj, AIR 1990 Kant 273 [LNIND 1989 KANT 301].
29 . Chand Kanwar v. Santosh Kumar Singh, AIR 1997 Raj 190.
30 . R.S. Shyamala v. G. Rajasekhar, AIR 1995 Kant 228 [LNIND 1995 KANT 95]. See also Anita Shrivastava v. Ashish Saxena, AIR 2006
(NOC) 1354(MP) : (2006) 2 MPLJ 271; Vandana v. Angad Singh Jadav, AIR 2006 (NOC) 1152(MP) : (2006) 1 MPLJ 463.
31 . Denny Antony v. Mary Kutty Abraham, AIR 2007 (NOC) 2026(Ker) : 2007 AIHC 1658.
32 . Aparna Goyal v. Rakesh Goyal, AIR 2009 SC 1836 [LNIND 2009 SC 180] (Three-Judge Bench).
33 . Samta Sanjay Kumar v. Sanjay Kumar Sharma, AIR 2006 (NOC) 1142(Raj).
34 . Sushmita Dey v. Sovana Dey, AIR 2003 Cal 38 [LNIND 2002 CAL 420].
35 . D.C. Raizade v. State, AIR 2003 Del 200 [LNIND 2003 DEL 253].
36 . P. Aisha Potti v. Returning Officer, Kollam, AIR 2002 Ker 268 [LNIND 2002 KER 74].
37 . Ram Das v. Habibullah, AIR 1933 All 178: (1932) ILR 53 All 916; Fatima v. Imdad Ali, (1920) 18 All LJ 351; Demello v. New Victoria Mills
Ltd., AIR 1926 All 17.
38 . Gangaram v. Gujar Mal, AIR 1923 Lah 444.
39 . Anjula v. Milan Kumar, AIR 1981 All 178.
40 . Umesh Chandra v. Mahesh Chandra, AIR 1983 All 290.
41 . Koruprolu Atchaya v. Bideshi Raghuram Singh, AIR 1995 AP 58 [LNIND 1994 AP 176].
42 . Maganlal Purshottamlal v. Chimanlal Dabyabhai Modi, AIR 1980 Guj 14 [LNIND 1979 GUJ 130].
43 . Sankumani v. Ikoran, (1890) ILR 13 Mad 211.
44 . Bellary Press Co. v. Venkata, (1911) 21 Mad LJ 829.
45 . Bhola Nath v. Maharajadhiraj of Burdwan, AIR 1932 Cal 265.
46 . B. Sundara Gowda v. Martin DSOUZA, AIR 1989 Kant 207 [LNIND 1988 KANT 273].
47 . Mst Zabida v. Mohammad, AIR 1933 Lah 635.
48 . Devi Chand v. Rikhab Chand, AIR 1957 Raj 255 [LNIND 1955 RAJ 189]: (1956) ILR Raj 209.
49 . Subbarayadu v. Rangiah, (1961) 1 Andh WR 212.
50 . Kishore Kumar v. Basudeo Prasad, AIR 1977 Pat 131; Korn Prok Atchaya v. Bideshi Raghuram Singh, AIR 1995 AP 58 [LNIND 1994 AP 176].
51 . Jitendra Singh v. Bhanu Kumari, AIR 2008 SC 2987 [LNIND 2008 SC 888].
52 . Re Balaji (1881) ILR 5 Bom 680; Nassarivanji v. Kharsedji, (1898) ILR 22 Bom 778; Muttalagiri v. Muttayyar, (1883) ILR 6 Mad 357;
Palanisami v. Thondama, (1903) ILR 26 Mad 595; Bandhu v. Lakhi, (1885) ILR 7 All 342.
53 . Kishori Mohun v. Gul Mahomed, (1888) ILR 13 Cal 177.
54 . Ranjit Kumar v. Gour Hari, AIR 1956 Cal 655 [LNIND 1956 CAL 52].
55 . Md Habibullah v. Tikaram Chand, AIR 1925 All 276: (1925) ILR 47 All 57.
56 . Rajagopala v. Tirupati, AIR 1926 Mad 421 [LNIND 1925 MAD 275]: (1926) ILR 49 Mad 746.
57 . Dasarath v. Baijanath, AIR 1960 Pat 285.
58 . Hakim Mohammad Ali v. Bhanwari Rai, AIR 1981 Raj 176 [LNIND 1981 RAJ 13].
59 . Vishwanath Gupta v. Parbati Devi, AIR 1982 All 106.
60 . Silver Granites v. Murugan, AIR 1995 Mad 217 [LNIND 1995 MAD 67].
61 . Sakharam v. Gangaram, (1889) ILR 13 Bom 654.
62 . Haji Umar v. Gustadji, (1910) ILR 34 Bom 411.
63 . Shankarji v. Vrajlal, AIR 1935 Bom 286: (1935) ILR 59 Bom 466.
64 . Ajam Ibram v. Hava Bibi, AIR 1939 Bom 485: (1939) ILR Bom 472.
65 . Thomas G. Rathina Raj v. Union of India, AIR 2008 Cal 250 [LNIND 2008 CAL 278].
66 . Miss Saroja Bhatija v. Sanjaya B. Makhija, 2007 (1) AIR Kar R 286.
67 . Wallace v. Wallace, (1916) ILR 40 Bom 109.
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68 . Malampati Kondayya v. Official Receiver, Nellore, AIR 1951 Mad 676 [LNIND 1950 MAD 157]: (1951) 1 Mad LJ 97.
69 . Munna Lal v. State of Uttar Pradesh, AIR 1991 All 189 [LNIND 1990 ALL 72] (DB).
70 . Kishan Lal v. Jai Lal, (1920) ILR 1 Lah 158.
71 . Malampati Kondayya v. Official Receiver, Nellore, AIR 1951 Mad 676 [LNIND 1950 MAD 157].
72 . J. Sitaram Rao v. State, AIR 1978 AP 82 [LNIND 1977 AP 253].
73 . Raju Das v. Sushil Kumar Das, AIR 1991 Gau 71 [LNIND 1990 GAU 41].
74 . Ramesh Chand Bhardwaja v. Ram Prakash Sharma, AIR 1991 Del 280 [LNIND 1991 DEL 220].
75 . Kannaiammal v. P. Narayanan, AIR 1989 Mad 350 [LNIND 1988 MAD 326].
76 . K.R. Srinathi v. H. Ramakrishnan, AIR 1990 Mad 330 [LNIND 1990 MAD 12].
77 . Gopaldas v. District Judge, Indore, AIR 1990 M.P. 279 [LNIND 1989 MP 300] (DB).
78 . Ranjit Kumar v. Gauri Hari, AIR 1956 Cal 655 [LNIND 1956 CAL 52]; Chandravathi v. Payapattillath, AIR 1966 Ker 318 [LNIND 1966
KER 65]: (1966) ILR 2 Ker 74.
79 . Muhammad v. Tikamchand, AIR 1925 All 276: (!925) ILR 47 All 57; Kuruppiah v. Ayya Nadar, AIR 1965 Mad 435 [LNIND 1963 MAD
239]: (1964) ILR 1 Mad 782 : (1965) 1 Mad LJ 75; Rajgopala v. Tirupati, AIR 1926 Mad 421 [LNIND 1925 MAD 275]: (1926) ILR 49
Mad 746; Dasarath v. Baijnath, AIR 1960 Pat 285.
80 . Ganga Ram Dohrey v. State of UP, AIR 2002 All 238 [LNIND 2001 ALL 735].
81 . Shahab Uddin alias Munnan v. District Judge, Muzaffarnagar, 2009 (2) ALJ 275 : 2009 (74) All LR 12.
82 . Nassarvanji v. Kharshedji, (1898) ILR 22 Bom 770.
83 . Rameshar v. Rajdhari, AIR 1927 All 369: (1927) ILR 49 All 460.
84 . Velliappa v. Subrahmanyam, (1916) ILR 39 Mad 485.
85 . Peoples Insurance Co. v. Sardul Singh, AIR 1961 Punj 87: (1960) ILR Punj 341.
86 . Kochadai v. Nagayaswami, AIR 1961 Mad 247 [LNIND 1960 MAD 121]: (1961) ILR Mad 413 : (1961) 1 Mad LJ 342; Ramchandra v. State
of Uttar Pradesh, AIR 1966 SC 1888 [LNIND 1966 SC 136].
87 . Mineral Development Ltd. v. State of Bihar, AIR 1962 Pat 443; Sheo Brich v. Basgit, AIR 1957 Pat 73: (1956) ILR 35 Pat 639; but see Jeharudin
v. Haricharan, AIR 1914 Cal 815: (1914) 18 Cal WN 479.
88 . Dinabandhu Patro v. State Bank of India, AIR 2003 Ori 129 [LNIND 2003 ORI 118].
89 . Dinabandhu Patro v. State Bank of India, AIR 2003 Ori 129 [LNIND 2003 ORI 118].
90 . Abdul Rahman v. Prasony Bai, AIR 2003 SC 718 [LNIND 2002 SC 716].
1 . Abdul Gafur v. State of Uttarakhand, AIR 2009 SC 413 [LNIND 2008 SC 1612].
2 . Rama Kanta Mishra v. United Commercial Bank, AIR 2009 Orissa 163(DB).
3 . Kishore Lal v. Balkishan, AIR 1932 All 660: (1932) ILR 54 All 824; not following a contrary opinion expressed in Ram Das v. Habibullah,
AIR 1933 All 178: (1932) ILR 53 All 916; U. Maung v. U. Nyo, AIR 1940 Rang 133.
4 . Sita Ram v. Balak Ram, AIR 1933 Oudh 154: (1933) ILR 8 Luck 347; Chouthmul v. Bhonrilal, AIR 1956 Raj 192 [LNIND 1956 RAJ 124];
Vidyamba v. Lakshmi Venkiamma, AIR 1958 AP 218 [LNIND 1957 AP 67]: (1958) ILR AP 54; MN Jain v. Rajasthan Financial Corpn., AIR
1974 Raj 204 [LNIND 1974 RAJ 47]; Karupiah v. Ayya Nadar, AIR 1965 Mad 435 [LNIND 1963 MAD 239]: (1964) ILR 1 Mad 782.
5 . A.A. Dadabhai v. Hiralal C. Thakore, AIR 1965 Guj 131 [LNIND 1964 GUJ 83]: (1965) 6 Guj LR 99.
6 . Ajit Kumar v. Kananbala, AIR 1960 Cal 565 [LNIND 1960 CAL 1]: (1960) 64 Cal WN 246.
7 . Parshotumdas v. Bhagubhai, AIR 1932 Bom 486: (1932) ILR 56 Bom 387.
8 . Muruesa v. Venkata, AIR 1929 Mad 513 [LNIND 1929 MAD 46]: (1929) 56 Mad LJ 649.
9 . Barada Kant v. Jitendra Nath, AIR 1939 Cal 345.
10 . Kamalathammal v. Harihara, AIR 1941 Mad 103 [LNIND 1940 MAD 272].
11 . Ayesha Bai v. Daleep Singh, AIR 1971 Raj 186: (1960) ILR Raj 1271.
12 . Paresh Nath Mondal v. Bejan Behari Mondal, AIR 1982 Cal 285 [LNIND 1982 CAL 52] (DB).
13 . Union Carbide Corpn. v. Union of India, AIR 1988 MP 206 [LNIND 1987 MP 267].
14 . Sarju Dei v. Rampati, AIR 1962 All 503 [LNIND 1961 ALL 188]; Bhanwar Lal v. Motilal, AIR 1971 Raj 242.
15 . Parshotumdas v. Bhagubhai, AIR 1932 Bom 486: (1932) ILR 56 Bom 387 : 139 IC 194.
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16 . Chockalinga v. Palaniappa, AIR 1932 Mad 683 [LNIND 1932 MAD 72]: (1932) ILR 55 Mad 960.
17 . Abdul Khadi v. Pancharyappa, AIR 1940 Mad 9 [LNIND 1939 MAD 258]: (1940) ILR Mad 251.
18 . Khwaja Afzal v. Mahmood Hussain, AIR 1943 Oudh 449; Kamalathammal v. Harihara, AIR 1941 Mad 103 [LNIND 1940 MAD 272]:
(1940) 2 Mad LJ 700; Vidyarthi v. Ram Pearey Lal, AIR 1935 All 690: (1935) All LJ 511; Har Prasad v. Kedarnath, AIR 1935 All 350.
19 . Goculdoss v. Sadasivier, AIR 1928 Mad 1091 [LNIND 1928 MAD 162]: (1929) ILR 52 Mad 57; Re Oomer Ahmad Bros, AIR 1927 Rang
107: (1926) ILR 4 Rang 554 .
20 . Dhoribhai v. Pragdasji, AIR 1935 Bom 172: (1935) ILR 59 Bom 412.
21 . Nathuram v. Jagannath, AIR 1960 Punj 521; Din Dayal v. Union of India, AIR 1954 Punj 46.
22 . Karam Ali v. Raja, AIR 1949 Lah 108; Hukum Chand v. Kamalanand, (1906) ILR 33 Cal 927.
23 . See notes to O 41, r. 5.
24 . Amir v. Prahlad, (1902) ILR 24 All 204; Nandan v. Kenney, (1902) ILR 24 All 356.
25 . Sheobirch v. Basgit, AIR 1957 Pat 73.
26 . Syndicate Bank v. K. Gangadhar, AIR 1992 Kant 163.
27 . Vivakanand Nidhi v. Ashima Goswami, AIR 1997 Cal 340 [LNIND 1997 CAL 46].
28 . Anand Issardas v. Virji Raisi, AIR 1984 Bom 39(DB).
29 . Mangal v. Rupchand, (1891) ILR 13 All 324; Sukha v. Raghunath Das, (1917) ILR 39 All 214; Chaturi Singh v. Musammat Rania, (1918) ILR
40 All 525; Megi Mal v. Hira Lal, (1924) 22 All LJ 880 : AIR 1924 All 761. Ibid.
30 . Sankararama v. Padmanabha, (1915) ILR 38 Mad 25.
31 . D. Bhagawan Das v. Keshwar Lal, AIR 1923 Pat 49: (1922) ILR 1 Pat 696.
32 . Narayan v. Bhagubina, (1907) ILR 31 Bom 314 (FB).
33 . Badal Chandra v. Srikrishna, AIR 1929 Cal 354: (1929) ILR 56 Cal 588; Madhusudan v. Behari Lal, (1918) 27 Cal LJ 461.
34 . Ramchandra v. Ganesh, (1899) ILR 23 Bom 382.
35 . Dulal v. Ram Narain, (1904) ILR 31 Cal 1057.
36 . Krishna v. Bhau Mansaram, (1894) ILR 18 Bom 61.
37 . Parshotumdas v. Bhagubhai, AIR 1932 Bom 486: (1932) ILR 56 Bom 387.
38 . Sankararama v. Padmanabha, (1915) ILR 38 Mad 25.
39 . Chhotey Lal v. Lakshmi Chand, (1916) ILR 38 All 425; Ugrah Singh v. Motihari Co. Ltd., (1919) 4 Pat LJ 13.
40 . Sukha v. Raghunath Das, (1917) ILR 39 All 214; Vidyamba v. Lakshmi Venkiamma, AIR 1958 AP 218 [LNIND 1957 AP 67].
41 . Sankarama v. Padmanabha, (1915) ILR 38 Mad 25.
42 . Dulare Lal v. Hazari Lal, (1914) 12 All LJ 853.
43 . Kamalathammal v. Harihara, AIR 1941 Mad 103 [LNIND 1940 MAD 272]; Kaulesher v. Dast Muhammad, (1883) 5 All 274; Ramcharan v.
Kishore Lal, AIR 1929 All 50: (1928) ILR 50 All 810; Anant Prasad v. Chunnu Tewari, AIR 1939 All 452.
44 . Bhagwati v. Badri, AIR 1931 All 574: (1922) ILR 54 All 171 (FB); Bisheshar Pande v. Tirloki Pande, AIR 1937 Oudh 398: (1937) ILR 13
Luck 269.
45 . M. Awar v. Hindustan Petroleum Corporation Ltd., AIR 2010 Mad 47 [LNIND 2009 MAD 2491].
46 . Ibid., at page 49.
47 . Shakuntala Devi v. Amir Hasan, AIR 1986 All 234.
48 . Jagdish v. Premlala Rai, AIR 1990 Raj 87.
49 . M. Krishna Rao v. M.L. Narasikha Rao, AIR 2003 AP 498 [LNIND 2003 AP 535] (DB).
50 . M.V. Ganesh Prasad v. M.L. Vasudevamurthy, AIR 2003 Kant 39 [LNIND 2002 KANT 249].
51 . Ibid.
52 . Ibid.
53 . Khuntilal v. Narain Das, AIR 1935 All 750; Dayabhai v. Murgappa, (1935) 13 Rang 475, AIR 1935 Rang 267(FB). For transfer of suit from
a presidency small cause court to high court, see notes to cl 13 of the Letters Patent and for powers of court to stay a suit pending
before it, see notes to s 22 under the same head. For power of high court to stay suit pending in another court, see note to O 39, r. 1.
 Page 62 of 62
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54 . Subs. by Ibid, for s 25 (w.e.f. 1-2-1977).

55 . Arvee Industries v. Ratanlal, AIR 1977 SC 2429 [LNIND 1977 SC 265]: (1977) 4 SCC 363 [LNIND 1977 SC 265].
56 . Subramanian Swamy v. Rama, AIR 1990 SC 113 [LNIND 1989 SC 503].
57 . Horlicks Ltd. v. Heinz India (Pvt.) Ltd., 164 (2009) DLT 539 (DB).
58 . Ibid., at p. 595 (Sanjay Kishan Kaul, J., speaking for the Bench).
59 . Conflict of Laws by Dicey and Morris (1993 Ed. Third Impression), p. 398.
60 . Spiliada Maritime Corporation v. Consulex Ltd., [1987] AC 460.
61 . AIR 2003 SC 1177 [LNIND 2003 SC 74] (Quadri, J., speaking for the Bench).
62 . Anita Sabharwal v. Anil Sabharwal, (1997 ) 11 SCC 490.
63 . Shashi Garg v. Arun Garg, (1997) 7 SCC 565 [LNIND 1997 SC 1236].
64 . G. Vijayalakshmi v. G. Ramchandra, AIR 1981 SC 1143 [LNIND 1981 SC 159].
65 . Shehnaz Mudbhatkal v. Arvind Ramakrishna, (1998) 5 SCC 596.
66 . Seema Srinidhi v. Praveen Kumar Tiwari, (1997) 8 SCC 712.
67 . Anita Laxmi Narian Singh v. Laxmi Narian Singh, (1992) 2 SCC 562 [LNIND 1992 SC 266].
68 . Savitri v. Harichand, (1998 ) 3 SCC 71.
69 . Jaishree Banerjee v. Abhirup Banerjee, (1997) 11 SCC 107.
70 . Payal Ashok Kumar Jindal v. Capt. Ashok Kumar Jindal, (1992) 3 SCC 116.
71 . Vinisha Jitesh Tolani v. Jitesh Kishore Tolani, AIR 2010 SC 1915 [LNIND 2010 SC 410]: (2010) 5 SCC 748 [LNIND 2010 SC 410].
72 . Ibid., at pp. 1918-19.
73 . Ibid., at p. 1919.
74 . Priyanka Biswas v. Subrato Biswas, AIR 2005 SC 3119 [LNIND 2005 SC 547].
75 . Reena Mehra v. Rohit Rai Mehra, AIR 2003 SC 1002 [LNIND 2003 SC 91].
76 . Beni Shankar Sharma v. Suryakant Sharma, AIR 1982 SC 52: (1981) 3 SCC 627; Indian Overseas Bank v. Chemical Const. Co., AIR 1970 SC
1514 [LNIND 1970 SC 167]; G. Vijayalakshmi v. G.R. Sekhra Sastry, AIR 1981 SC 143.
77 . Durgesh Sharma v. Jayshree, AIR 2009 SC 285 [LNIND 2008 SC 1932]: (2008) 9 SCC 648 [LNIND 2008 SC 1932].
78 . M. Pentiah v. Muddala Veeramallappa, AIR 1961 SC 1107 [LNIND 1960 SC 260]: (1961) 2 SCR 295 [LNIND 1960 SC 260] at p. 314.
79 . Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155 (CA).
80 . Maxwell on Interpretation of Statutes, 10th Ed. p. 229.
81 . Vatsa Industries Ltd., Bombay v. Shanker Lal Shroff, (1997) 10 SCC 333.
82 . Beni Shanker Sharma v. Surayakant Sharma, (1981) 3 SCC 627.
83 . Murray & Co. Pvt. Ltd. v. Madan Lal Poddar, (1994) Supp 3 SCC 696.
84 . Payal Ashok Kumar Jindal v. Capt. Ashok Kumar Jindal, (1992) 3 SCC 116.
85 . Vinedale Distilleries Ltd. v. Dena Bank, AIR 2010 SC 695 [LNIND 2010 SC 44]: (2010) 3 SCC 466 [LNIND 2010 SC 44].
86 . Gujarat Electricity Board v. Atmaram Suncomal, AIR 1989 SC 1433 [LNIND 1989 SC 207].
87 . Shiv Kumari Devenndra Ojha v. Rammajor Sheetlaprasad Ojha, (1997) 2 SCC 452 [LNINDORD 1997 SC 138].
88 . Shakuntala Modi v. Om Prakash Bharuka, (1991) 2 SCC 706.
89 . Mohit Kumar v. Dato Mohan Swami, AIR 2004 SC 3682 [LNIND 2004 SC 379].
90 . Chitivalasa Jute Mills. v. Jaypee Rewa Cement, AIR 2004 SC 1687 [LNIND 2004 SC 149].

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

Institution of Suits

S. 26. Institution of suits.

91[(1)] Every suit shall be instituted by the presentation of a plaint or in such

other manner as may be prescribed.
[(2) In every plaint, facts shall be proved by affidavit].

The Amending Act of 1999 has inserted a new sub-s (2) in s 26. The old s 26 has been re-
numbered as sub-s (1). The Amending Act comes into effect from 1 July 2002. It shall not
apply to or affect any suit pending immediately before the commencement of amending
provisions and every such suit shall be tried as if the amending provision had not come
into force.

The amended s 26 requires that in every plaint, facts shall be proved by an affidavit. The
requirement of affidavit is not limited only to plaint but extends to the written statement as
well, as it appears from the insertion of sub-r (3) of r 15 of O 6. The said rule provides that
person verifying the pleading shall also furnish an affidavit in support of his pleadings.

The Law Commission in its 163rd report strongly proposed the amendment to s 26 in its
present format. It was thought that the amendment was salutary and may, at least to some
extent, check the tendency to make false averments in the pleadings.

The Honble Supreme Court1 has held:

...The swearing of false affidavits in judicial proceedings not only has the tendency of
causing obstruction in the due course of judicial proceedings but has also the tendency to
impede, obstruct and interfere with the administration of justicethe due process of law
cannot be permitted to be slighted not the majesty of law be made a mockery by such acts
or conduct on the part of the parties to the litigation or even while appearing as witnesses.
Anyone who makes an attempt to impede or undermine or obstruct the free flow of the
unsoiled stream of justice by resorting to the filling of false evidence commits criminal
contempt of the Court and renders himself liable to be dealt with in accordance with the
Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a
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blow at the Rule of Law and no Court can ignore such conduct which has the tendency to
shake public confidence in the judicial institutions because the very structure of an ordered
life is put at stake. It would be a great public disaster if the foundation of justice were
allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false
statements and fabricating false evidence in a court of law. The stream of justice has to be
kept clean and pure and anyone soiling its purity must be dealt with sternly so that the
message percolates loud and clear that no one can be permitted to undermine the dignity
of the court and interfere with the due course of judicial proceedings or the administration
of justice.

Further the Honble Supreme Court in Mohan Singh v. Late Amar Singh,2 stressed the
consequences of filing false affidavits in courts, by holding as under:

Tampering with the record of judicial proceedings and filing of false affidavit, in a court of
law has the tendency of causing obstruction in the due course of justice. It undermines and
obstructs free flow of unsoiled stream of justice and aims at striking a blow at the rule of
law. The stream of justice has to be kept clear and pure and no one can be permitted to
take liberties with it by soiling its purity. Since, we are prima facie satisfied that the tenant
has filed false affidavits and tampered with judicial record, with a view to eradicate the evil
of perjury, we consider it appropriate to direct the Registrar of this Court to file a
complaint before the appropriate court and set the criminal law in motion

The party in an affidavit contemplated under the amended section, should swear to the
correctness of only the fact stated in the pleading and not to the questions or propositions
of law, if any stated thereon. It should also be open to the party to say in his affidavit
which of the facts are true to his knowledge and which of the facts he believes to be true
on the basis of information received by him.

In the opinion of the authors, such a provision would only add to delays in disposal of
suits. There are enough provisions in the existing laws to deal with false and malicious
averments in the pleadings and this additional requirement would not make any difference.
It must be considered that similar requirements in support of fact stated in the writ
petition and counter and other affidavits filed in the writ proceedings, have, in no manner,
operated as a check upon the tendency to make false statement. The Law Commission, it
seems, was conscious of these difficulties and have observed that these measures may be
tried out on an experimental basis and if it is found to cause further delays, the same could
be reviewed.

1. Suit. The section3 in terms states that a suit can be instituted by the presentation of a
plaint or in such other manner as may be prescribed.4 Order 4, r 1 provides that every suit
shall be instituted by presenting a plaint to the court or such officer appointed in that
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behalf.5 The word suit means and apart from some context, must be taken to mean a civil
proceeding instituted by means of a plaint.6 A proceeding which does not commence with
a plaint is not a suit.7 Judicial opinion differs on the question whether a suit could be said
to have been instituted when a petition to sue in forma pauperis is presented. One view is
that until permission is granted, there is no suit and consequently, no order of attachment
before judgment under O 38 or for an injunction under O 39 could be made on a petition
to sue in forma pauperis, as such an order can only be passed in a suit.8 The other view is that
under this section a suit may be instituted not merely by presentation of a plaint, but also
in such manner, as may be prescribed. Having regard to the provision in O 33, r 1 as to
institution of suit by a pauper, the presentation of the petition would itself amount to
institution of a suit. Accordingly, the court has the power, pending an application to sue in
forma pauperis, to grant an injunction or appoint a commissioner under O 39.9 The
submission is that the latter view is the better view. An application under s 20 of the
Arbitration Act, 1940, can well be described as a suit.10 A third party notice taken out by a
defendant in a suit is not a plaint for the purposes of the Court Fees Act, 1870.11 The High
Court of Orissa takes the view that though probate proceedings, when they become
contentious, assume the form of a suit, they are not in reality in the nature of a regular suit
under the Code. And since there cannot be a decree except in a suit provided by the Code,
an order made in such probate proceedings is not a decree.12 In Balaram Singh v. Dudnath,13
a proceeding started on an application made under the UP Agriculturists Relief Act was
treated as a suit. It is submitted that the decision overlooks the word prescribed in the
section which means prescribed by rules under the Code. Rights of parties are determined
as on date of filing of suit.14

2. Changes introduced by the section. The words or in such other manner as may be
prescribed were added in 1908. No other manner of instituting suits has hitherto been
prescribed.

By the Code of Civil Procedure (Amendment) Act, 1999 vide s 2 w.e.f. 1 July, 2002, the
existing s 26 was numbered as sub-s(1) of this section and sub-s (2) was inserted in it.

3. Purpose of amendment. The intention of the legislature in bringing about the various
amendments in the Code of Civil Procedure with effect from 1st July, 2002 were aimed at
eliminating the procedural delays in the disposal of civil matters. The amendments effected
to s 26, O 4 and O 6 r 15, are also geared to achieve such object, but being procedural in
nature, they are directory in nature and non-compliance thereof would not automatically
render the plaint non-est, as has been held by the Division Bench of the Calcutta High
Court.15

4. Facts shall be proved by affidavit. Prior to insertion of sub-s (2) in s 26 there was no
requirement of filing affidavit with the pleadings. These provisions now require the plaint
to be accompanied by an affidavit as provided in s 26 (2) and the person verifying the
pleadings to furnish an affidavit in support of the pleading (O 6, r 15(4)). The affidavit
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required to be filed under amended s 26 (2) and O 6, r 15(4) of the Code of Civil Procedure
has the effect of fixing additional responsibility on the deponent as to the truth of the facts
stated in the pleadings. It is, however, made clear that such an affidavit would not be
evidence for the purpose of the trial. Further, on amendment of the pleadings, a fresh
affidavit shall have to be filed in consonance thereof.16

91 . Section 26 re-numbered as sub-s (1) and sub-s (2) inserted by the CPC (Amendment) Act, 1999 (46 of 1999), s 2 (w.e.f. 1-7-2002) vide
Notfn. S.O. 603(E), dt. 6-6-2002.
1 . Dhanajay Sharma v. State of Haryana (1995) 3 SCC 757 [LNIND 1995 SC 612].
2 . (1998) 5 Scale 115 [LNIND 1998 SC 822].
3 . Now sub-s (1).
4 . Kanji v. Manglaben, AIR 1969 Guj 308 [LNIND 1968 GUJ 16]: 10 Guj LR 1011.
5 . S.T. Corpn. of India v. Iron-side Ltd., AIR 1966 Bom 126 [LNIND 1965 BOM 32]: (1966) ILR Bom 307 : (1966) 67 Bom LR 644.
6 . Hansraj v. Official Liquidator, AIR 1933 PC 63: (1933) ILR 54 All 1067 : 60 IA 13,.
7 . Venkata v. Venkatarama, (1899) ILR 22 Mad 256; Upadhya v. Persidh Singh, (1896) ILR 23 Cal 723; Ram Kirpal v. Ram Kuari, (1884) ILR 6
All 269, p. 274 : 11 IA 37; Babulal v. Kotumal, AIR 1940 All 737; Usman Ali Khan v. Sagarman, AIR 1962 MP 320 [LNIND 1960 MP 55].
8 . Janandan v. Anand Mahadeo, (1883) ILR 7 Bom 373; Poorna Chandra v. Tara Prasad, AIR 1917 Cal 852: (1917) 21 Cal WN 870 : (1917) 25
CLJ 159; Timmayya v. Sadasivappa, AIR 1952 Mys 354.
9 . Chidambaram v. Nataraja, AIR 1939 Mad 80 [LNIND 1938 MAD 7]: (1938) ILR Mad 1060; Totaram Ichcharan v. Dattamangu, AIR 1943
Pat 143: (1934) ILR Bom 138; Channu Lal v. Shama, AIR 1955 Nag 259: (1955) ILR Nag 922; Matuki v. Kamakha Prasad, AIR 1958 Pat
264: (1958) ILR 37 Pat 331; Namga Devi v. Rajni, (1961) 21 Cut LT 250; Shripati Kuer v. Malti Devi, AIR 1967 Pat 320.
10 . SPC Engineering Co. v. Union of India, AIR 1966 Cal 259 [LNIND 1965 CAL 78].
11 . S.T. Corporation of India v. Iron-side Ltd., supra.
12 . Puinbasi Majhiani v. Shiba Bhue, AIR 1967 Ori 41 [LNIND 1966 ORI 2]: (1966) ILR Cut 213.
13 . AIR 1949 All 100: (1948) ILR All 363.
14 . Nand Kishore Marwah v. Samundri Devi, (1987) 3 SCC 382.
15 . Vidyawati Gupta v. Bhakti Hari Nayak, AIR 2006 SC 1194 [LNIND 2006 SC 79].
16 . Salem Advocate Bar Association v. UOI, AIR 2005 SC 3353 [LNIND 2005 SC 573].

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

Summons and Discovery

S. 27. Summons to defendants.

Where a suit has been duly instituted, a summons may be issued to the defendant to
appear and answer the claim and may be served in manner prescribed 17[on such day not
beyond thirty days from date of the institution of the suit].

1. Alterations in the section. By Code of Civil Procedure (Amendment) Act, 1999 (46 of
1999) vide s 3, with effect from 1 July 2002, the words on such day not beyond thirty days
from the date of institution of the suit were inserted in s 27. The amendment in this
section was enforced from 1 July 2002. However, it shall not apply or affect any suit
pending immediately before the commencement of the amendment and every such suit
shall be tried as if the amendment had not come into force.

The intention of legislature in amending s 27 was to cut down time in effecting the service
of summons to the defendant. The amended s 27 requires that the defendant be served
within 30 days from the date of institution of suit. To facilitate the implementation of s 27,
r 9 of O 7 has also been substituted, wherein it is provided where the court orders that the
summons be served on the defendants, it will direct the plaintiff to present as many copies
of the plaint as there are defendants within seven days from the date of such order
alongwith the requisite fee. The summons can be served upon the defendant within 30
days only if process fee is deposited within seven days. Further, the plaint can be rejected
under newly inserted cl (f) in r 11 of O 7, if the provisions of r 9 of O 7 have not been
complied with.

In the opinion of the authors, the amended section, though well intended, may not serve
the purpose for which it is intended, as it only covers the service of defendant for the first
time after the institution of suit. The language of the amended section counts the period of
30 days from the date of the institution of suit. It is unlikely in most of the cases, except,
where immediate interim relief is prayed for, that the defendant may be required to be
served again for other occasions within 30 days of institution of suit. It would have been
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appropriate if the legislature had taken care of subsequent orders directing service of
summons and had not limited the time frame only from the date of institution of suit. The
legislature has substituted r 5 of O 9 of the Code, wherein a period of Seven days is
prescribed for taking steps for issue of a fresh summons in subsequent hearings. The
intention of legislature would be served if the defendants were also required to be served
within 30 days of each subsequent hearing, if the defendants or any of the defendant is not
served with the summons on previous hearings.

2. Issue and service of summons. Rules 142 to 148A of the City Civil Court,
Ahmedabad and O 37, rr 1 and 2 as amended by the High Court of Bombay providing
summary procedure are not inconsistent with this section and are therefore not ultra vires s
122 of the Code of Civil Procedure.18

3. Code of Civil Procedure (Amendment) Acts of 1999 (46 of 1999) and 2002 (22 of
2002)Constitutional validity. The amendments to ss 27, 89, 100 A, O 7, r 11; O 18, r 4
and O 41, r 9 made by Act 46 of 1999 and Act 22 of 2002 are not ultra vires the Constitution
of India. The amendments made were within the legislative competence and are not
violative of any of the provisions of the Constitution and there is no Constitutional infirmity
in the same.19

4. On such day not beyond thirty days from the date of institution of the suit. The
words on such day not beyond thirty days from the date of the institution of the suit do
not mean that the summons must be served within thirty days of the date of the institution
of the suit. The words added by amendment, fix outer time frame, by providing that steps
must be taken within thirty days from the date of the institution of the suit, to issue
summons. In other words, if the suit is instituted, for example, on 1st January, 2002 then
the correct addresses of the defendants and the process fee must be filed in the court
within thirty days so that summons be issued by the court not beyond thirty days from the
date of the institution of the suit. The object is to avoid long delay in issue of summons for
want of steps by the plaintiff. It is quite evident that if all that is required to be done by a
party, has been performed within the period of thirty days, then no fault can be attributed
to the party. If for any reason, the court is not in a position or is unable to or does not
issue summons within thirty days, there will, compliance with the provisions of s 27 once
within thirty days the party concerned has taken steps to file the process fee along with
completing the other formalities which are required to enable the court to issue the
summons.20

S. 28. Service of summons where defendant resides in another 21[State].

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(1) A summons may be sent for service in another 21[State] to such Court and in such
manner as may be prescribed by rules in force in that 21[State].
(2) The Court to which such summons is sent shall, upon receipt thereof, proceed as if
it had been issued by such Court and shall then return the summons to the Court of
issue together with the record (if any) of its proceedings with regard thereto.
22[(3)Where the language of the summons sent for service in another State is different
from the language of the record referred to in sub-section (2), a translation of the
record
(a) in Hindi, where the language of the Court issuing the summons is Hindi, or
(b) in Hindi or English, where the language of such record is other than Hindi, or
English shall also be sent together with the record sent under that sub-section.]

Sub-section 3 is added to avoid the difficulty that the court issuing the summons might feel
where the language of the court issuing the summons is different from the language of the
court to which the summons is sent for service (see note to O 5, r 23).

23[S. 29. Service of foreign summonses.

Summonses and other processes issued by

(a) any Civil or Revenue Court established in any part of India to which the provisions
of this Code do not extend, or
(b) any Civil or Revenue Court established or continued by the authority of the Central
Government outside India, or
(c) any other Civil or Revenue Court outside India to which the Central Government
has, by notification in the Official Gazette, declared the provisions of this section to
apply,

may be sent to the courts in the territories to which this Code extends and served as if they
were summonses issued by such courts.]

By notification. For notifications issued under the corresponding section, see general
statutory rules and orders.

S. 30. Power to order discovery and the like.

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Subject to such conditions and limitations as may be prescribed, the Court may, at any
time, either of its own motion or on the application of any party,

(a) make such orders as may be necessary or reasonable in all matters relating to the
delivery and answering of interrogatories, the admission of documents and facts,
and the discovery, inspection, production, impounding and return of documents or
other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence or
to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.

HIGH COURT AMENDMENT

Calcutta. In clause (a) omit the words delivery and answering of interrogatories, the
admission of documents and facts, and the discovery after the words matters relating to
and before the word inspection vide Cal. Gaz. Pt. I, dated April 20, 1967.
1. Delivery and answering of interrogatories. See O 11 below.

1. Admission of documents and facts. See O 12 below.

1. Discovery and inspection. See O 11 below.

1. Production, impounding and return of documents. See O 13 below.

1. Summonses to persons to give evidence. See O 16 below.

1. Proof of facts by affidavits. See O 19 below.

1. Section 30 and Order 19 read with Order 39. Provisions of O 19, rr 1 and 2
apply to an application for grant of temporary injunction, in view of s 30. Apart
from principles of natural justice, it is clear, having regard to the statutory
provisions contained in s 30 and O 19, rr 1 and 2 read with O 39, r 1, that the court
possesses the power to call the deponent for cross examination, when an affidavit
has been filed in support of an application for temporary injunction.24

1. Section 30 (b) and Order 16. Where, a suit for recovery of amount was filed
against a bank and its officer, alleging fraud to have been committed by officer and
money unauthorisedly taken out from account of plaintiff, the application to issue
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witness summons to the Metropolitan Magisrates Court to produce list of

documents filed before it in criminal complaint against officer of bank was filed
under s 30 (b) and O 16 whereunder the court has such power and jurisdiction to
issue a summon to person whose attendance is required either to give evidence or
to produce documents, the application was filed before the suit had to go for trial
and therefore was within limitation and filed on behalf of applicant firm supported
by affidavit of one of partners of firms, the application read with plaint providing
particulars of the said criminal case was entitled to be allowed.25

S. 31. Summons to witness.

The provisions in Sections 27, 28 and 29 shall apply to summonses to give evidence or to
produce documents or other material objects.

HIGH COURT AMENDMENT

Calcutta. Omit figure 27 vide Cal. Gaz. Pt. I, dated April 20, 1967.

S. 32. Penalty for default.

The court may compel the attendance of any person to whom a summon has been issued
under Section 30 and for that purpose may

(a) issue a warrant for his arrest:

(b) attach and sell his property;
(c) impose a fine upon him 26[not exceeding five thousand rupees];
(d) order him to furnish security for his appearance and in default commit him to the
civil prison.

1. Alterations in the section. By Code of Civil Procedure (Amendment) Act, 1999 (46 of
1999) vide s 4 ; wef 1 July 2002, the words not exceeding five hundred rupees are
substituted with the words not exceeding five thousand rupees in s 32. The Amending Act
allows greater discretion upon the court to impose a fine by enhancing the limit of the fine
from Rs 500 under the pre-amended section to Rs 5000, to compel the attendance of any
person to whom a summon has been issued under s 30 of the Code.
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The summons, under this section may be issued either to the party to the cause, witnesses
in the matter or any other person, whose presence may be necessary or reasonable, in all
matters relating to the delivery and answering of interrogatories, the admission of
document and facts and the discovery, inspection, production, impounding and return of
document or other material objects producible as evidence. Further, summons may also be
issued to persons whose attendance is required either to give evidence or to produce
documents or such other objects as aforesaid.

The legislature while amending s 32 did not amend r 12 of O 16. Though the amount of
fine is increased from Rs 500 to Rs 5,000 in s 32, the amount of fine in r 12 of O 16
remains Rs 500. In the opinion of authors, the legislature should accordingly amend O 16
to bring it in harmony with s 32, otherwise precious time of the courts would be spent in
clearing the clouds over this controversy.

2. To whom a Summons has been Issued. This section applies only if a summons has
been issued. It does not apply where a person is merely ordered to produce a document.27

Judgment and Decree

17 . Ins. by the CPC (Amendment) Act, 1999 (46 of 1999), s 3 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
18 . Keshavlal Prabhudas v. Manubhai, AIR 1968 Guj 223 [LNIND 1967 GUJ 84]: (1968) 9 Guj LR 177. See O 5 below.
19 . Salem Advocate Bar Association, Tamil Nadu v. UOI, AIR 2003 SC 189 [LNIND 2005 SC 573].
20 . Ibid.
21 . Subs. for Province by A.O. 1950.
22 . Ins. by CPC (Amendment) Act 104 of 1976, s 12, (w.e.f. 1-5-1977).
23 . Subs. by CPC (Amendment) Act 2 of 1951, s 6.
24 . Ram Swaroop v. Bholu Ram, AIR 1991 Raj 56(DB).
25 . Naren Advertising & Marketing v. State Bank of Saurashtra, AIR 2001 Guj 222; See also the Indian Partnership Act, 1932, s 19.
26 . Subs. for not exceeding five hundred rupees by the CPC (Amendment) Act, 1999 (46 of 1999), s 4 (w.e.f. 1-7-2002) vide Notfn. S.O.
603(E), dt. 6-6-2002.
27 . Ramdeo Prasad v. State, AIR 1951 All 415 [LNIND 1950 ALL 195]; Kumar Rameshwar v. Rani Riknath, (1920) 5 Pat LJ 550. See the Code
of Civil Procedure 1908, O 16, rr. 1013, r. 17, and r. 21.

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 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

Judgment and Decree

S. 33. Judgment and decree.

The Court after the case has been heard, shall, pronounce judgment, and on such
judgment a decree shall follow.

1. On such judgment: a decree shall follow. A mere order deciding the matter in
dispute not supported by reasons is no judgment.28 Under the section, it is imperative that
a decree must follow the judgment. Since it is the duty of the court to comply with the
provisions of the law, its failure to draw up a decree ought not to deprive a party of his
right of appeal. Order 41, r 1, no doubt, provides that every appeal shall be accompanied
by a decree. The validity of an appeal presented without a copy of the decree where the
court had failed to draft one has been the subject of consideration in several cases. In some
decisions, effect has been given to the mandatory words of O 41, r 11, without reference
to the question whether the party could be prejudiced by reason of the failure of the court
to draw up a decree.29 In other decisions, it has been held that a litigant should not suffer
for the default of the court and that the hearing of an appeal filed without a decree should
be adjourned to enable the party to obtain a decree.30 The question was considered by the
Supreme Court in Jagadish v. Jawarlal. 31 There, an appeal presented without a certified copy
of the decree, was admitted and a certified copy of the decree which was subsequently
drawn up by the trial court, was obtained and produced. The Supreme Court held that
though the production of the certified copy of the decree was mandatory under O 41, r 11,
as there was failure on the part of the court to draw up a decree, the appellate court could
pass such orders, as were appropriate for the production of the decree in the appeal
presented without it. Where a decree was passed by the trial court prior to coming into
force of Punjab Pre-emption (Repeal) Act, 1973 but was challenged in appeal after the act
was passed and affirmed on appeal, that would fall within the meaning of s 3 of Punjab
Pre-emption (Repeal) Act, 1973, while the case is pending in the High Court.32 It has also
been held that an execution application presented after the judgment is pronounced but
without a copy of the decree as required by O 21, r 10, was valid where no decree had
been drawn up by the court.33
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Where, respondents fraudulently obtained mutation of immovable property in their favour

on the basis of revoked gift showing deceased donor as present and witnessing mutation,
and the deceased owner in fact had expired long before that, the mutation obtained by
fraudulent means is non est, just as a decree obtained by fraud is a nullity.34 This section
does not apply so far as decrees under the Hindu Marriage Act, 1955 are concerned.35

2. Judicial discipline. Writ appeal against application was dismissed for default by a single
judge of the High Court. The writ court, condoned the delay and directed the single judge
to take up the application and pass appropriate orders. The single judge was of the view
that the language used does not belong to judicial pronouncements (paras 6, 7, 8, 11),
judges of the High Court who happen to sit single, and hear the matters assigned to them
by the Chief Justice are not subordinate to the members of the division benches.

In the circumstances, the Single Judge recused himself from the matter and directed the
registry to place the papers before the Chief Justice for appropriate orders.36

3. Non payment of Court feedecree cannot be withheld. In view of the provisions of s

33 and O 2, r 6, there is no manner of doubt that once a judgment is delivered and signed,
there is no option left with the court except to draw decree in terms of the judgment.
Drawing up of a decree cannot be postponed. Dismissal of suit on account of non-
payment of the court-fee for drawing up of decree is not in consonance with the law.
Decree shall be drawn in terms of the judgment of the court and in view of s 11 of Court-fees
Act, 1870, the decree will bear an endorsement that the same shall not be executed till
difference in court fee is paid.37

Interest

28 . Swaran Lal v. Harendra Kumar, [1969] 3 SCR 976 [LNIND 1969 SC 119] : (1969) 1 SCC 709 [LNIND 1969 SC 119] : AIR 1969 Cal
1167; Jaswant Singh v. Punjab Government, AIR 1994 P&H 116.
29 . Jilaram v. Gangaram, 1 Lah 223 : AIR 1920 Lah 395.
30 . Sriramamurthi v. Sriramamurthy, AIR 1941 Mad 929 [LNIND 1941 MAD 187]; Mandharlal v. Nanak Chand, AIR 1919 Lah 53;
Debendranath v. Hrishi Pada, AIR 1956 Assam 120.
31 . (1961) 2 SCR 918 [LNIND 1960 SC 311] : AIR 1961 SC 832 [LNIND 1960 SC 311].
32 . Sadhu Singh v. Dharm Dev, (1981) 1 SCC 510.
33 . Rajeswar Rao v. Shankar Rao, AIR 1962 Pat 398.
34 . N. Khosla v. Rajlakshmi, AIR 2006 SC 1249 [LNIND 2006 SC 160].
35 . Dalit Singh v. Shamsher Kaur, (1969) ILR 1 Punj 393 : AIR 1969 Punj 69. See O 20, r. 1.
36 . Govt. of Andhra Pradesh v. Official Liquidator, M&CE India Ltd., AIR 2002 Andh Pra 220.
37 . G.C. Kumar v. Ashok Kumar, AIR 2001 Del 338 [LNIND 2001 DEL 461] (DB).
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 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

Interest

S. 34. Interest.

(1) Where and in so far as a decree is for the payment of money, the Court may, in the
decree, order interest at such rate as the Court deems reasonable to be paid on the
principal sum adjudged, from the date of the suit to the date of the decree, in
addition to any interest adjudged on such principal sum for any period prior to the
institution of the suit, 38[with further interest at such rate not exceeding six per cent
per annum as the Court deems reasonable on such principal sum], from the date of
the decree to the date of payment, or to such earlier date as the Court thinks fit:
39[Providedthat where the liability in relation to the sum so adjudged had arisen out of a
commercial transaction, the rate of such further interest may exceed six per cent. per
annum, but shall not exceed the contractual rate of interest or where there is no
contractual rate, the rate at which moneys are lent or advanced by nationalised banks in
relation to commercial transactions.

Explanation I.In this sub-section nationalised bank means a cor-responding new bank as
defined in the Banking Companies(Acquisition and Transfer of Undertakings) Act, 1970, 5
of 1970.

Explanation II.For the purposes of this section, a transaction is a commercial transaction, if

it is connected with the industry, trade or business of the party incurring the liability.]

(2) Where such a decree is silent with respect to the payment of further interest 40[on
such principal sum] from the date of the decree to the date of payment or other
earlier date, the Court shall be deemed to have refused such interest, and a separate
suit therefor shall not lie.

1. Alterations in the section. By the Civil Procedure Code (Amendment) Act LXVI of 1956,
for the words on such sum with further interest at such rate as the court deems reasonable
on the correct sum so adjudged in sub-cl (1), the words with further interest at such rate
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not exceeding six per cent per annum as the court deems reasonable on such principal sum
were substituted.

In cl (2), instead of the words on such aggregate sum as aforesaid, the words on such sum
were substituted.

The Amendment Act, 1976, has now added a proviso and two explanations. The proviso
enables the court to award interest at a rate higher than six per cent but not exceeding a
contractual rate or where such contractual rate is not provided at the rates charged by
nationalised banks on loans or advances in relation to commercial transactions.
Explanation I defines a nationalised bank and Explanation II defines a commercial
transaction for the purpose of this section. The proviso does not apply to an adjudged
amount arising out of a transaction which is not a commercial transaction. In such cases,
the rate prescribed under sub-s (1) would apply. A suit filed before the amendment of s 34
by s 13 of Civil Procedure (Amendment ) Act, 1976 shall not be governed by the amended
s 34 by virtue of s 97 (e) of the Amendment Act.41

2. Scope of the section. It may be noticed that before the amendment of 1976, the
maximum interest which the court could award was six percent per annum. However, in
appropriate cases, the court had the discretion to award interest at a lesser rate but in no
case exceeding six percent. Now, the courts are empowered to increase post-decretal
interest in relation to a liability arising out of a commercial transaction, on the principal
sum adjudged.42

Under s 34 of the Code of Civil Procedure, the court has a very wide discretion in ordering
interest on the principal sum adjudged and may order interest at such rate it deems
reasonable to be paid on the said principal sum adjudged from the date of the suit till the
date of payment. It is the discretion of the court to award interest.43

It is therefore clear that interest pendente lite would be awarded at the rate which the court
considers reasonable. Future interest from the date of suit till payment would ordinarily
not exceed the rate of six percent per annum, but in case of commercial transaction, rate
of such interest could exceed the rate of six percent per annum, but shall not exceed the
contractual rate or where there is no contractual rate of interest then the rates at which
money is lent or advanced by nationalised banks in relation to commercial transaction.
However, the provision as above does not mean and imply that the court is obliged and
should mandatorily grant interest at the contractual rate, either from the date of suit till the
date of decree or from the date of decree till payment thereof.44

In a case relating to refund of instalments paid by the intending purchaser for purchase of
flat, it was held by the Supreme Court that since the interest was not granted to the party
along with the principal amount, he would also be entitled, in addition to the 12 per cent
per annum interest on the principal amount, but also interest at the same rate which was
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earlier denied to him. It was observed that it was being so ordered because interest is not
penalty or punishment, but it is normal accretion on capital.45

In a case where injunction was sought against forcible dispossession by Development

Authority and the said Authority gave undertaking to pay compensation to landowners
within two months, the Supreme Court directed payment of interest at the rate of 18% per
annum when the undertaking was not complied with. It was observed that the landowners
have been denied beneficial use of money.46

Payment of interest on a sum claimed by the plaintiff or a sum, which has been adjudged
by the Court as payable, is an issue, which has to be pleaded and decided by the court in
the suit itself. If the Court has not adjudged any interest to be payable on the principal sum
even though it is pleaded or it refused to grant the interest, then, in execution proceedings,
the Executing Court cannot go beyond the decree and award interest.47

In a suit for specific performance of agreement for sale, the purchaser did not pay the
balance sale consideration on the pretext that the vendor has not paid the transfer charges.
It was held by the High Court that transfer charges is a contingency which has to take
place only after the said amount is calculated and demanded. As such the purchaser is
liable to pay interest on the balance sale consideration.48

This section applies only where the decree is for the payment of money. The expression
decree for the payment of money as used in this section includes a claim to unliquidated
damages.49 This section does not apply where the decree is for the enforcement of a
mortgage or charges.50 (see notes below under the head Interest in suits for enforcement of
mortgage). There is no analogy between interest awarded under this section and mesne
profits.51 In a suit by a principal against his agent, the accounts contained several
controversial items which had to be adjudicated on the basis of an elaborate report of the
commissioner. Such a decree being one for the payment of money, the court awarded
interest from the date of the decree till realisation on the principal amount so
adjudicated.52Section 34 contemplates interest payable
(i) from the date of the institution of the suit to the date of decree; and
(ii) date of decree to the date of realisation.53

An illiterate lady sued and got a decree for cancellation of a sale deed on the ground of
fraud. It was held that the defendant cannot claim interest on the money advanced.54

In a suit filed by an indigent person, the Court passed a money decree. A question arose
whether interest is payable from the date when the petition to sue as pauper was filed or
from the date when the petition was converted into a suit. A Division Bench of Kerala
High Court held that conversion of petition and assignment of number are routine steps,
since formalities required to be followed necessarily are to be completed. Therefore, the
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suit shall be deemed to have been instituted on the date on which application to sue as
indigent person is filed and as such interest is payable from that date.55

The Interest Act, 1978, does not apply to Jammu and Kashmir. However, the jurisdiction of
the court to award interest from the date of a decree passed in terms of the award of an
arbitrator is not taken away.56

Interest cannot be allowed by way of damages for breach of contract.57

Though s 34 of Code of Civil Procedure 1908 (Code of Civil Procedure) provides that the rate of
current interest and future interest, are within the discretion of the court, the provisions of
s 34 indicate the guideline for exercise of such discretion. It shows that grant of interest at
contract rate should be the normal rule, the use of discretion to refuse interest or reduce
the contract rate being the exception. To reduce or deny interest would amount to
penalising the creditor for approaching the court and encouraging the debtor to
deliberately and unjustly prolong the litigation. If the court wants to reduce the rate of
interest, either current or future, such reduction should be supported by reason.58 In view
of this fact, the petitioner, a public corporation, was willing to refund the amount to
individual applicants from whom it has received the amount and there was no delay on its
part in either making the said offer or in depositing the amount in court when directed to
do so. The Supreme Court held that the facts of the case do not warrant burdening the
petitioner with any interest on the amount of question.59 A decree awarded interest to the
bank at 16.5 per cent. However, the plaintiff succeeded in proving interest at the rate of
25.5 per cent communicated to the borrower from time-to-time. The Karnataka High
Court held that merely because the defendant chose to deny his liability, the court cannot
refuse to award higher rate of interest which the law entitles the bank to charge.60

Section 34 lays that in addition to pendente lite and future interest, additional interest
adjudged on such principal sum for the period prior to the institution of the suit can also
be granted by the court. This interest adjudged for the period prior to the institution of the
suit also has to be on such principal sum and this also has reference to earlier expression
principal sum adjudged.61 The transport subsidy which was payable to the industrial unit by
the Union of India under transport subsidy scheme, was wrongfully detained by the
authorities and subsequently the authorities were directed to release such subsidy. The
interest however, was not granted, since neither there was any provision for payment of
such interest in the scheme nor could the petitioner bring to the notice of the court, any
provision entitling him to any interest.62 Earnest money cannot be retained after the
withdrawal of the tender and interest is payable on the amount of earnest money
unreasonably retained.63 In the absence of pleading and proof, the bank is not entitled to
charge interest on service, or incidental charges.64 It is the primary duty of the housing
board to hand over the possession if the formalities before handing over the possession
have been completed; and if by any reason whatsoever, not attributable to the allottee, the
possession is delayed by the housing board, it cannot and shall not put such allottee in loss
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by demanding interest for the period when the housing board itself was in error or ask for
the enhanced price payable at the year or time when act ual handing over of the possession
is made by the housing board to the allottee.65 Heirs of bailer would be entitled to the price
of market value of gold ornaments, at the time of the institution of the suit alongwith
interest at the rate of 12 per cent per annum, more so, when the custody of the box
containing gold jewellery and ornaments was entrusted to the bank and the custody always
remained with the bank.66Section 34 mandates that reasonable and proper interest may be
awarded on the principal sum from the date of the suit till the date of the decree and
further interest can also be awarded, not exceeding six per cent per annum from the date
of the decree to the date of the payment. There may be a substance that nowadays banks
are giving higher rate of interest than six per cent per annum hence, the reasoning of the
legislature in fixing six per cent per annum as further interest, does not hold good, but till
the section is un-amended, the higher limit of interest is six per cent per annum and the
court as such could not award any interest for the period from the date of the suit till the
date of decree or till the date of payment at the rate of six per cent per annum in
noncommercial transactions.67

It is submitted that in the absence of any words indicating that the proviso is to apply to
matters pending at the date the Amending Act, 1976 came into force, the proviso is
prospective though contained in a procedural statute since it would affect substantive
rights of parties in pending matters.

3. Act of Court. On the principle that act of court will prejudice no one, the court can
award interest where payment of dues was stayed even though no such condition was
imposed in the said order.68

4. On such Principal Sum and the Principal sum adjudged. Section 34 lays that in
addition to pendente lite and future interest, additional interest adjudged on such principal
sum for the period prior to the institution of the suit can also be granted by the court. This
interest adjudged for the period prior to the institution of the suit also has to be on such
principal sum and this also has reference to earlier expression principal sum adjudged.69

The bank which had advanced a loan, computed interests at quarterly rests and, after every
quarter, added interest to the last balance, treating that balance as the principal sum for the
next quarter for computing interest. It was held that in such a case, the principal sum for
the purpose of s 34, would be the sum so arrived at, that is to say, the sum total of the
original advance and the unpaid interest.70

A commercial loan was advanced by bank. The loanee was to pay interest from the date of
loan till the date of payment in full with quarterly rest. Interest accrued and added to
principal amount on date of suit is principal amount for purposes of the interest and not
the amount of loan originally advanced.71
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Submission that expression on such principal sum as occurring twice in the latter part of s
34 (1), which refers to interest pendente lite and post-decree, should be interpreted to mean
principal sum arrived at by excluding the interest even if it has stood capitalised, cannot be
accepted. This is because, first, the interest once capitalised, ceases to be interest and
becomes a part of principal sum or capital. That being so, the interest forming amalgam
with the principal, in view of having been capitalised, is the principal sum and, therefore,
the question of awarding interest on interest does not arise at all. Secondly, well-settled
principles of interpretation of statutes would frown upon such a plea being entertained. A
construction which leads to repugnancy or inconsistency has to be avoided. Ordinarily, a
word or expression used at several places in one enactment should be assigned the same
meaning so as to avoid a head-on clash between two meanings assigned to the same word
or expression occurring at two places in the same enactment. It should not be lightly
assumed that Parliament had given with one hand what it took away with the other. That
construction is to be rejected which will introduce uncertainty, friction or confusion into
the working of the system. While embarking upon interpretation of words and expressions
used in a statute it is possible to find a situation when the same word or expression may
have somewhat different meaning at different places depending on the subject or context.
This is however, an exception which can be resorted to only in the event of repugnancy in
the subject or context being spelled out.72

The award of interest can only be on the principal sum adjudged and not on the principal
and interest as on the date of the decree. The Court has also no discretion to award
interest beyond the rate of 6 per cent. But the Court has still a discretion to award or not
to award any interest and in awarding interest, to determine at what rate it should be
awarded.73

The meaning assigned to the expression the principal sum adjudged should continue to be
assigned to principal sum at such other places in s 34 (1) where the expression has been
used qualified by the adjective such, that is to say, as such principal sum. Recognition of
the method of capitalisation of interest so as to make it a part of the principal consistently
with the contract between the parties or established banking practice does not offend the
sense of reason, justice and equity. Such a system has a long established practice and a
serious of judicial precedents upholding the same. Secondly, the underlying principle is that
when interest is debited to the account of the borrower on periodical rests, it is debited
because of its having fallen due on that day. Nothing prevents the borrower from paying
the amount of interest on the date it falls due. If the amount of interest is paid there will be
no occasion for capitalising the amount of interest and converting it into principal. If the
interest is not paid on the date due, from that date the creditor is deprived of such use of
the money which it would have made if the debtor had paid the amount of interest on the
date due. The creditor needs to be compensated for deprivation.74

The 1956 Amendment serves a twofold purpose. First, it prevents award of interest on the
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amount of interest so adjudged on the date of suit. Secondly, it brings the last clause of s
34, by narrowing down its ambit, in conformity with the scope of the first clause in so far
as the expression the principal sum adjudged occurring in the first part of s 34 is
concerned which has been left untouched by amendment. The meaning to be assigned to
this expression in the first part remains the same as it was even before the amendment.
However, in the third part of s 34, the words used were on the aggregate sum so
adjudged.75

Therefore, subject to a binding stipulation contained in a voluntary contract between the

parties and/or an established practice or usage interest on loans and advances may be
charged on periodical rests and also capitalised on remaining unpaid amount. The principal
sum actually advanced, coupled with the interest on periodical rests so capitalised, is
capable of being adjudged as principal sum on the date of the suit. The principal sum so
adjudged is such principal sum within the meaning of s 34 of the Code of Civil Procedure, on
which interest pendente lite and future interest, i.e., post-decree interest, at such rate and for
such period which the court may deem fit, may be awarded by the court.76

Once the principal amount awarded is known, in relation to compensation for the time
taken for the said payment to reach the decree holder, the only entitlement can be to
interest at the rate granted by the court, but always with the base figure remaining as the
cumulative amount of the award, and not the amount inclusive of interest as on the date of
the decree.77

The principal sum would mean and constitute outstanding loan as capitalised on the date
of suit including the balance of loan amount remaining unpaid as well as the interest
accrued thereon at the contractual rate, till the date of suit. Interest pendente lite from the
date of suit as also future interest, shall, therefore, be payable on such capitalised sum
which would constitute principal sum adjudged within the meaning of the said term under
s 34 (1) of the Code of Civil Procedure, and not only on the balance amount outstanding
towards the principal sum loaned.78

5. Comparison of rate of interest in two suits of plaintiffrelevancy. Where special

court decreed suit filed by Standard Chartered Bank (SCB) against Citibank with interest at
the rate of 20 per cent per annum, and another suit filed back to back by Citibank against
Canbank Financial Services Ltd. (CANFINA) was decreed with interest at the rate of nine
percent per annum, in the appeals against both suits and allowed by Supreme
Courtcitibank was held entitled to restitution/refund of total amount it had paid to SCB
with interest at the rate of 12 per cent per annum and CANFINA was held entitled to
refund with interest at the rate of 9 per cent per annum. Clarification of order was sought
by SCB on ground of different rates of interest awarded in two suits of restitution of
moniesvariation of rate of interest ordered in two appeals was keeping in view rate at
which interest was allowed by special courts in two suitsthe contention of SCB that
Citibank was unjustly enriched by payment of interest at higher rate of three percent per
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annum was found misplaced, comparison of rate of interest in two suits is wholly
irrelevant.79

6. Vague remark by Court regarding concession of party as to interesteffect. It is

true that a concession made by a party and an observation made to that effect in the
judgment, cannot be allowed to be denied. Only the court which recorded the statement
itself was competent to rectify the error if the court recording the statement was
approached to consider the matter without delay. However, in certain cases where a stray
remark or observation is made by the court, which is not very clear and vague, a different
picture emerges from the other part of the judgment. In such a case, it maybe open for
Supreme Court to ascertain the correct position on the basis of totality of the observations
made in the judgment itself. The question in the instant case was whether rate of interest
awarded on compensation amount was not disputed before the High Court. The High
Court judgment observed that the rate was not disputed. However, the High Court in its
judgment has nowhere indicated that the counsel appearing for the insurance company had
made any statement conceding the rate of interest nor it is indicated how the concession
was made. Then, the observation that the rate of interest was not in dispute before the
Court may only lead to an inference that the rate of interest was not disputed before the
court in the arguments advanced on behalf of the party concerned. On the other hand, it
was found that on behalf of the insurance company its learned counsel had cited the
decisions to indicate that the lower rate of interest was awarded in certain decisions and the
decisions were referred to in the judgment. This is enough to indicate that the rate of
interest was act ually disputed before High Court.80

Where, in a suit for recovery of loan by a bank, the claim for enhanced rate of interest was
made as per terms of agreement between parties, the observations by the trial court, that
there was no record to show that defendants had agreed to pay higher rate of interest was
found running contrary to terms of agreement, and subsequent acknowledgments made by
defendants also indicating that they acknowledged their liability of amount due and
amount was calculated on basis of enhanced rate of interest, there was no question of
taking separate consent of defendant, as rate was increased as per terms of agreement,
there was no violation of principles of natural justice for want of notice to defendants,
therefore, claim for enhanced rate of interest cannot be rejected.81

7. Term of invoice pertaining to interest. In the case of sale of goods, the terms and
conditions on invoices showing that interest at the rate of 24 per cent per annum is
payable, constitutes the agreed rate of interest.82

8. Money lender. One need not possess money lending licence if he or she intends to give
money as hand loan. Merely because the petitioner is not a money lender, it does not mean
that the petitioner is not entitled to claim any interest which is agreed to be paid by the
respondent.83
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9. Inflation. There is a discernible tendency in some judicial pronouncements that the

hazards of inflation of the future should be mitigated by a generous rate of interest. But
there is no reason why this class of holders of funds, should alone receive separate
treatment. Inflation is an economic and financial condition of general application. Inflation
is a phenomena of which this court can take judicial notice. The court has to strike a
balance between the competing equities.84 Its impact on any particular plaintiff has been
neither more nor less as compared to everybody else; there is nothing special about it.
Effects of inflation have to be neutralisedat least partiallyby wiser investments. Interest is
not awarded as damages, it is awarded to the plaintiff, only for his being kept out of the
money which ought to have been paid to him. It takes care of the period between date of
the claim and the date of realisation. It has nothing to do with the erosion that the fund
suffers thereafter, owing to future inflation.85 It cannot be laid down as a rule of law, that
interest above a particular rate is per se penal or excessive. Whether penal or excessive, is
always a question to be decided on the facts and circumstances of a given case.86

10. The three divisions of interest. Interest that may be awarded to a plaintiff in a suit
for money may be divided into three heads, according to the period for which it is allowed,
namely
(a) interest accrued prior to the institution of the suit on the principal sum adjudged (as
distinguished from the principal sum claimed);
(b) additional interest on the principal sum adjudged, from the date of the suit to the
date of the decree, at such rate as the court deems reasonable;
(c) further interest on the principal sum adjudged from the date of the decree to the
date of the payment or to such earlier date as the court thinks fit, at a rate not
exceeding six percent per annum.

The award of interest can only be on the principal sum adjudged and not on the principal
and interest as on the date of the decree. Also, the court has no discretion to award interest
beyond the rate of six percent. But the court has still a discretion to award or not award
any interest and in awarding interest, to determine at what rate it should be awarded,
subject to the maximum of six per cent.87

Interest up to date of suit is a matter of substantive law and the section does not refer to
payment of interest under the first head.88 It applies only to the second and third heads. It
has been held the right to interest prior to the suit is a substantive one where as pendente lite,
it is one of procedure within the discretion of the court.89

(a) Interest Prior to the Date of Suit. Under s 34 of the Code, no rate of interest has been fixed
in respect of the interest payable prior to the institution of the suit on the principal sum
adjudged and the interest payable on the principal sum adjudged from the date of the suit
to the date of the decree. It is only in regard to further interest payable on the principal
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sum adjudged from the date of the decree to the payment, six percent interest has been
fixed.90

Interest can be awarded either under the statute or under an agreement between the parties
or as per the usage and custom. If the claim of the interest does not fall on either of these
categories, the plaintiff shall not be entitled to recover it from the defendant.91

Pre-suit interest is referable to substantive law and can be subdivided into two sub-heads:
(i) where there is a stipulation for the payment of interest at a fixed rate and (ii) where
there is no such stipulation. If there is a stipulation for the rate of interest, the court must
allow the rate upon the date of the suit, subject to three exceptions:
(i) any provision of law applicable to money lending transactions, or usury laws or any
other debt law governing the parties and having an overriding effect on any
stipulation for payment of interest voluntarily entered into between the parties;
(ii) if the rate is penal, the court must award at such rate as it deems reasonable; and
(iii) even if the rate is not penal, the court may reduce it if the interest is excessive and
the transaction was substantially unfair.

If there is no express stipulation for payment of interest, the plaintiff is not entitled to
interest except on proof of mercantile usage, statutory right to interest or an implied
agreement.92

Interest antecedent to suit is not a matter of procedure but a brief note on the subject will
not be out of place. The law on the subject may be considered under the following two
heads:
(i) where there is a stipulation for the payment of interest at a fixed rate;
(ii) where there is no stipulation at all for the payment of interest.

(i) Stipulation to Pay Interest. If there is a stipulation for the rate of interest, the court must
allow that rate up to the date of the suit, however high it may be, subject to the two
following exceptions:
(a) if the rate is penal, the court may award interest at such rate as it deems reasonable;
and
(b) even if the rate is not penal, the court may reduce it if the interest is excessive and
the transaction was substantially unfair.

For the period prior to institution of suit, contractual rate of interest is mandatory. Court
has no discretion in the matter.93 In a Bombay case, the defendant did not specifically deny
the plaintiffs averment, that the defendant had agreed to pay interest at the rate of 12 per
cent per annum. It was held that the award of interest at the rate of 12 per cent (for the
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pre-suit period), was justified.94 In a Gujarat case, the bank sued for the recovery of a loan
amount with interest. Defendants admitted the claim and prayed for installments and
reduction of interest rates. A compromise decree was passed by the trial court, despite the
objections of the plaintiff. It was held that such a decree was not tenable. A decree which
is not in conformity with the judgment, is liable to be revised and set aside.95 If the parties
agree that in respect of amounts advanced for agricultural purpose certain rate of interest
would be paid, it may not be proper for the court to interfere and reduce the amount of
interest agreed to be paid by the parties. The court must always give utmost respect and
sanctity to the contract entered into between the parties. Section 21A of the Banking Regulation
Act, 1949, specifically states that the transaction should not be reopened by the court on
account of excessive interest, it may not be proper on the part of the court to re-write the
contract and hold that one of the parties is entitled to avoid the contract in the matter of
payment of interest.96

The Himachal Pradesh High Court has held that where fluctuating rate of interest was
agreed to be charged, but the minimum rate of interest was agreed to be 19 per cent per
annum with six monthly rests, the plea that the interest was not agreed to be paid at the
said rate cannot be accepted.1

(ii) No Stipulation to Pay Interest. If there is no express stipulation for payment of interest, the
plaintiff is not entitled to interest except in the following cases:

Mercantile usages. Where it is allowed by mercantile usage;2 but such usage must be pleaded
and proved.3 There was no contract between the parties of interest. The bills of the
plaintiff were to some extent inflated and to some extent there was mistake, besides the
incorrect measurements. The plaintiff had committed a breach of contract by not
completing the building and had almost abandoned the work before its completion. In
these circumstances, the Bombay High Court had held that the plaintiff can not be granted
interest prior to the date of institution of the suit.4

Statutory right to interest. Interest is payable where a right to it, or an authority for its
allowance or payment, is conferred by statute.5 In the case of sale of goods, even if there is
no stipulation in the contract to pay interest, the vendor is entitled to interest from the date
of payment of the price till the date of the suit under s 61 (2)(a) of the Sale of Goods Act,
1930.6Section 80 of the Negotiable Instruments Act, 1881 provides that when no rate of interest
is specified in a promissory note or bill of exchange, the court shall, notwithstanding any
agreement relating to interest between the parties, award interest at the rate of six percent
per annum from the date on which the amount claimed became due and payable. Similarly,
the Interest Act 32 of 1839 (now replaced by Interest Act, 1978) enacts that where there is no
stipulation to pay interest, but the amount claimed is a sum certain (as distinguished from
unascertained damages),and is payable at a certain time by virtue of some written instrument,
the Court,7 may allow interest at a rate not exceeding the current rate of interest from the
date on which the amount became payable. If no time is fixed for the payment of the amount, the
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Court may award interest at the rate aforesaid from the time the creditor demands payment in
writing intimating to the debtor that interest will be claimed from the date of such demand
up to the date of payment.8 The provisions of the Interest Act 32 of 1839 (now replaced by
Interest Act, 1978) are in the main a reproduction of the provisions of Lord Tenterdens Act
[3 and 4 Wm. 4, c. 42, s 48 ]. The House of Lords in London, Chathan and Dover Railway Co.
v. South Eastern Railway Co.,9 the modern leading case on interest, held that the sum certain
within the meaning of that Act must be a certain sum which is one absolutely and in all
events due and not a mere provisional payment to be made by one party to the other.
Interest Act of 1839, s 1 contains a proviso that interest shall be payable in all cases in which
it is now payable by law. This proviso applies to cases in which the Court of Equity
exercises jurisdiction to allow interest.10 But to invoke the rule of equity the existence of
circumstances attracting equity jurisdiction has to be established.11 In such cases, it has
been held that interest could be awarded by way of damages.12 It is settled law that interest
can be allowed only if it is supported by law of contract. There is no case that as per the
terms of the contract, plaintiff are entitled to get interest. Interest on the suit claim can be
granted under s 34 of the Code of Civil Procedure only from the date of the suit. As for the
interregnum, the only law which could be applicable is the Interest Act, 1978.13 To deny post
litigation interest would amount to depriving the claimant of compensation for delay in
obtaining relief for no fault of his. We hold that even though s 34 of the Code of Civil
Procedure, has not been expressly made applicable to the proceedings before the Claims
Commissioner under the Indian Railways Act, 1890 (now replaced by Interest Act, 1978),
there is no reason to hold that the principles of s 34 would be inapplicable.14 There exists
no specific bar to the applicability of the Code of Civil Procedure in s 18 of the Railway Claims
Tribunal Act, 1987. Rather it unshackles the tribunal from the procedural laws mandated in
the Code while at the same time maintaining the requirement of compliance of natural
justice. Thus, s 34 of the Code continues to be vested in the authority of the Railway
Claims Tribunal and it has power to award interest pendente lite on compensation paid by
Railways.15

In Trojan Co. Ltd. v. Nagappa Chettiar,16 interest was allowed on money obtained by a stock-
broker while act ing on behalf of a constituent, as he stood in a fiduciary relationship to
him. But apart from rules of equity, interest is not payable on damages prior to suit, while
after suit, it is in the discretion of the court.17 In a writ petition, the Supreme Court
directed the bank, to deposit certain amount in the cash credit account of petitioner. The
bank deposited the said sum accordingly in cash credit account. It was held that petitioners
would not be entitled to any interest on the said sum. Cash credit account is in the nature
of a current account and no interest is payable in this account.18 Where, in a suit for rent,
the lease was found to be invalid, and a decree was granted for damages for use and
occupation, it was held that no interest could be awarded thereon prior to suit.19 Interest
on compensation under the Railway Accident and Untoward Incidents (Compensation)
Rules 1990 is payable from the date of filing of the petition before the tribunal.20

The Kerala High Court has held in the undernoted case that when no rate of interest is
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specified in the loan instrument, the creditor can claim interest as provided under s 80 of
the Negotiable Instrument Act only upto the date of filing of the suit and the interest
pendente lite is subject to discretion of the Court as provided under section 34 of the Code.21
However, a Division Bench of the Andhra Pradesh High Court has held that liability to
pay interest is not provided in the Railways Act, 1989 (Section 124-A). It is discretionary on
the part of the tribunal to grant interest while determining compensation. But liability
towards interest can be fastened only on the date of determination of the compensation,
and not from the date of filing application in the tribunal.22

Tribunals under the Railway Claims Tribunal Act, 1987 are bound by the principles of natural
justice. Since grant of interest on decretal amount under s 34 of the Code is also based on
the principles of natural justice, it was held by a Division Bench of Calcutta High Court
that Railway Tribunal should award interest on determined sum from the date of
application till date of deposit as the rate given by a National Bank for term deposit of one
year or more.23

An important area towards which the attention of the Supreme Court was direct is the
amount of compensation payable under the Railway Accident (Compensation and
Untoward Incidents) Rules, 1960. It is common knowledge that amount payable as
compensation is revised from time to time. If a victim or claimant is paid compensation as
was prescribed on the date of accident, the amount he will receive after settlement of his
claim over a long period of litigation before Tribunal, would be a mere pittance. In the case
of Rathi Menon,24 the Supreme Court held that compensation to be paid by Railway
Administration must be fixed as per what the rules prescribed at the time of making the
order and not in terms of the money value which prevailed on the date of the accident.
The observations of K.T. Thomas, J., in the above case is an example of humanitarian
approach to interpretation:

28. The unjust consequence resulting from the interpretation which the Division Bench placed can be demonstrated in another plane also. If a person who
sustained injury in a railway accident or in an untoward incident was disabled from making an application immediately and he makes the application a few
years hence, is he to get the compensation in terms of the money value which is prevailed on the date of the accident? Suppose a Tribunal wrongly dismissed a
claim after a few years of filing the application and the claimant approaches the High Court in appeals. As it happens quite often now, some High Courts could
take up such an appeal only after the lapse of many years and if the appeal is decided in favour of the claimant after so many years, what a pity if the amount
awarded is only in terms of the figure indicated on the date of the accident.
29. From all these, we are of the definite opinion that the Claims Tribunal must consider what the rules prescribed at the time of making the order for payment
of the compensation.

Relying on the above decision, the Supreme Court reaffirmed the view in a subsequent
decision.25

Implied agreement. An agreement to pay interest can be implied from the course of dealing
between the parties.26 For cases in which courts of equity allow interest, see Bengal Nagpur
Railway Co. v. Rattanji Ramji.27
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The law was thus summed up by the Supreme Court in Mahavir Prasad v. Durga Dutto:28

Interest for a period prior to the commencement of the suit is claimable either under an agreement or usage of trade or under a statutory provision or under the
Interest Act, for a sum certain where notice is given. Interest is also awarded in some cases by Courts of equity.

It has accordingly been held that interest is not payable on tax which has not been paid
unless the statute provides for it.29 The tribunal, under the MP Town Improvement Trust
Act, 1961, assessing compensation in respect of compulsory acquisition of land, though
having the characteristics of a civil court, has been held not justified in awarding interest
from the date of delivery of possession till the determination of the compensation. This is
so because neither this section nor the MP Act authorises award of such interest.30 In an
Andhra Pradesh case, the petitioneran advocateaccepted the full amount payable to him by
the state government as his legal remuneration, without protest for the non-payment of
interest at the rate of 12 per cent per annum on the allegedly delayed payment. The
payment was made by the state government without following the elaborate procedure
otherwise prescribed for the sanction of individual bills and for the scrutiny of certificates,
etc. It was held that the petitioner cannot subsequently claim such interest at the rate of 12
per cent per annum. It was all the more so, when in the government orders prescribing the
scale of fees, there was no provision under which he could be said to be entitled to the
payment of interest on delayed payment.31 In another Andhra Pradesh case, the plaintiff,
owner of certain theatres, lent money to get a motion picture released from the producer
for exhibition in the plaintiffs theatres. The condition was that the defendants (exhibitors)
would deliver all prints for exhibition in the theatres of the plaintiffs and sister concerns. It
was held that plaintiffs could not claim interest. In the first place, the agreement did not
provide for interest. Secondly, such evidence as was led by plaintiff did not show that there
was any such usage.32 In another case the Andhra Pradesh High Court held that where
there was no agreement between parties for payment of interest pendente lite, the order of
the trial judge denying interest for the relevant period was held to be proper.33

In the London, Chatham and Dover Railway Companys case, the House of Lords held that
interest cannot be given by way of damages for detention of a debt. The same view has
been taken by the Privy Council in Bengal Nagpur Railway Co. v. Ratanji Ramji.34

(b) Interest from Date of Suit to Date of Decree. The rate of interest from the date of the suit to
the date of the decree is in the discretion of the court,35 and this discretion is not excluded
even if a fixed rate is mentioned in the contract as payable upto realisation.36 But though
the rate of interest for the aforesaid period is discretionary, the court should, in the
exercise of that discretion, award interest at the contract rate, unless it would be inequitable
to do so.37 A debt advanced against a negotiable instrument is governed by the Negotiable
Instruments Act, 1881 till its nature is converted into a decretal debt. That being so, interest
for the period between the date of the suit and decree would he governed by s 79 of the
Negotiable Instruments Act, 1881 and not by this section.38 As to compound interest, (see
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note under the heading Compound Interest) and the undermentioned cases.39 The court
may, under this head, award interest in a suit for money, although interest is not
specifically asked for in the plaint.40

It is well-established that no interest can be allowed on damages for any period prior to the
suit,41 but there is a conflict of decisions whether interest can be allowed under this section
on damages from the date of the suit, it being held in some cases that it can be allowed,42
and in some that it cannot be allowed.43

Where the High Court has refused to exercise its discretionary power to allow interest
from date of suit, the judicial committee as a rule will not interfere.44 An application under
s 31 (1) of the State Financial Corporations Act, 1951 is something akin to an application for
post-decree attachment. In the matter of future interest, the corporation could not have
been put to more disadvantageous position than an ordinary creditor, in whose case the
court could have awarded future interest from the date of the filing of the suit till
realisation under s 34 of the Code of Civil Procedure.45 A bank advanced a loan for the purchase
of a truck. The minimum rate of interest was fixed at 13.5 per cent. Defendant failed to
pay the amount in terms of the agreement of loan. A suit was filed and the hypothecated
property (namely, the truck) was attached by the order of the court. The defendant, in
order to get released the attached vehicle, admitted his liability and offered to pay the full
amount. On such admission, the suit was decreed without costs and without interest. It
was held that there could not be any justification for relieving the defendant from liability
to pay interest on the outstanding amount from the date of filing the suit till the date of
payment of the amount which he was bound to pay even in terms of the agreement.
Refusal to award interest affects the right of the claimant.46 The court has no discretion to
grant different rate of interest than the contractual rate of interest from the date it is due
and payable from the date it is act ually paid. In case of commercial loans of the banks, s
34 is to be applied in the context of circulars/directions issued by the Reserve Bank of
India. Also, it cannot be disputed that when a bank advanced loan or interest with
quarterly rests, the interest is worked at the close of every quarter and added towards the
outstanding balance for the purpose of computation of interest after deducting the amount
paid by the customer, if any. In such a case, the principal sum adjudged would be the
original principal amount loan and the amount of interest accrued thereon.47 There was a
contract for the construction of a building, forming part of a commercial complex. The
buyer provisionally booked space therein and deposited an initial amount, but later did not
make further payment and demanded refund. There was no evidence to show that the
buyer had agreed to give the builder right of forfeiture. It was held that the buyer was
entitled to refund with interest.48 In a case decided by the Supreme Court, the appellant
was entitled to refund of the amount paid as excise duty on the price of packing material
used for packing superfine cement which (according to the appellant), was paid under
protest. It was held that the letter was in the nature of a protest. Therefore, the question of
limitation did not arise for refund of the duty. The appeal court directed a refund of the
amount. The appellant was directed to pay interest at the rate of six per cent from the date
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of refusal of refund, with costs of the appeal.49 According to the High Court of Andhra
Pradesh, even as to interest pendente lite, the court cannot grant a higher rate of interest than
what was contracted between the parties. The area is covered either by contract, or by
statute. Section 34(1) of the Code of Civil Procedure regulates the grey area. By implication, it is
either the contractual rate or less, but not a rate in excess thereof. But, as no appeal or
cross-objections were filed by the respondent, interference by the High Court was not
called for.50 If a plaintiff, suing for specific performance of an agreement of sale, cannot be
awarded specific performance, he should at least be awarded interest against the defendant,
who has himself enjoyed use of the earnest money deposited by the plaintiff.51

Minimum rate of interest in case of compensation for accidents is 12 per cent per annum
from the date of application for compensation as filed in the tribunal.52 The principal sum
on which interest can be awarded, is the principal sum as adjudged by the court and not
the principal sum stated to have been advanced. Interest accrues on the amount which the
court determines, after adjudging the rights of the parties.53 Ordinarily, interest pendente lite
should be granted under s 34 of the Code of Civil Procedure unless there are cogent reasons for
depriving the plaintiff of the interest during trial.54 Court is not bound to award interest in
every case. If interest at very heavy rate has been charged on the initial amount of the loan,
and for the subsequent period, court taking that into account, awards interest at only three
percent, the order cannot be said to be unreasonable.55 Where proceedings for the
acquisition of land are withdrawn, then compensation becomes payable under s 48 of the
Land Acquisition Act, 1894 which shall be determined by the collector for the damage
suffered by the owner in consequence of the notice (of acquisition) or of any proceedings
thereunder. Section 48 is silent as to interest on the amount of compensation. The Gujarat
High Court has held that interest from the date of application for the damages can be
awarded on equitable grounds, but s 34 of the Code of Civil Procedure is not applicable.56

A court sale which was defective for mistake of the court, was set aside. It was held that
the auction purchaser (at whose instance the sale was set aside for gross irregularity, by
overstating the upset price) was entitled to interest, not from the date of suit, but from the
date of the order of the trial court to the date of realisation.57

Suit was filed for the recovery of money by a bank against the widow and daughter of a
debtor, who were guarantors for the debt. No attitude was shown by the widow or
daughter to disown the loan. No sufficient financial resources were available to them,
other than selling off the mortgaged house. Discretionary order of the court. declining
interest pendente lite and post-decree interest was held to be sustainable. Pendente lite as well
as post-decree interest is in the nature of compensation or damages, which the court may
award to the plaintiff for being kept out of the money due to him. Whether one looks to
the general provisions of s 34 of the Code of Civil Procedure or to those of O 34, r 11 (which
are specially applicable to mortgage suits), the relevant provisions are patently governed
and controlled by the expression may and, therefore, it can be concluded from these
provisions, that the award of such interest is not obligatory, but only discretionary and the
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court may, or may not, award such interests.58 Where a pro-note is silent as to the rate of
interest, the plaintiff is entitled to interest only from the date of suit till the date of decree
and till realisation at the rate of six percent. Acceptance of the defendant, of calculation of
interest at 18 per cent, does not necessarily imply acceptance of that rate by him.59Pendente
lite interest should not exceed the contractual rate. Subject to that, it is in the discretion of
the court. It need not be awarded at the contractual rate.60Pendente lite rate of interest is in
the courts discretion. Court need not record reasons. The question whether discretion has
been judiciously exercised or not, will have to be determined on the facts of each case.61
The rate of interest pendente lite should be at the contract rate, unless there are
circumstances which would disentitle the plaintiff to have the same. The burden is on the
defendant to show such circumstances.62 The court must grant some interest pendente lite
when it passes a decree for the payment of money. It is only the rate of interest which is in
the discretion of the court.63 In a Calcutta case, the suit was instituted in 1959. It was
decreed in 1969. An appeal preferred in 1970 remained pending for 17 years. The trial
court had not awarded interest pendente lite. The High Court directed payment of interest at
five per cent for 15 years.64

(c) Interest from Date of Decree to Date of Payment. The rate of interest from the date of the
decree to the date of payment is also in the discretion of the court. The plaintiff getting the
security of a decree has his interest reduced in the generality of cases.65 If in a non-
commercial transaction the interest awarded is 18 per cent per annum by the court below,
the higher court can reduce it to six per cent per annum.66 Where the rate of interest
charged and decreed was 24 per cent, the Lahore High Court refused to allow interest after
decree.67 If the court awards interest from the date of the decree but no rate is specified,
the decree-holder will be entitled to interest at the court rate, which is usually six percent.68
Although the court rate of interest is usually six percent if the court were to postpone the
payment of decretal amount or grant installments for such payment under O 20, rr 11 (1)
and (2), this section would cease to apply and interest can be awarded at higher rate.69 But
if no such interest is awarded by the decree, it will be deemed to have been refused;70 even
though the omission happens to be accidental;71 see sub-s (2). A provision for future
interest in a decree though the judgment is silent about it, it is valid and cannot be
challenged on the ground that the decree is at variance with the judgment.72 The amounts
sought to be realised by the bank from the defendants were stated from time-to-time in the
notices issued by it. It was held that the principal amount found due, not only meant the
principal as such, but also the amount due on interest which had become part of the
principal amount as per the calculation of the bank.73 The decree which was put to
execution, did not contain any order or direction for the payment of any interest on the
amount which was payable to the decree-holder, consequent on the declaration made by
the court decreeing the government servants suit. It was held that in the absence of
pleadings and directions in the judgment or decree, the executing court cannot award
interest. The right of the decree-holder to obtain relief is determined in accordance with
the terms of the decree.74 The bank which had advanced a loan, computed interests at
quarterly rests and, after every quarter, added interest to the last balance, treating that
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balance as the principal sum for the next quarter for computing interest. It was held that in
such a case, the principal sum for the purpose of s 34, would be the sum so arrived at, that
is to say, the sum total of the original advance and the unpaid interest.75 According to the
Calcutta High Court, interest pendente lite and interest for the post decretal period
(a) are in the nature of compensation to the plaintiff, for being kept out of the money
due to him; and
(b) are discretionary as indicated by the word may.76

Award of interest at 1.5 per cent per month from date of filing of the suit till date of act
ual realisation of amount, is null and void. The provisions of s 34 are not procedural in
nature and, in fact, deal with the jurisdiction of the court to direct payment of interest. To
the extent the provision has been ignored, the decree is rendered null and void.77 With
regard to the rate of interest awarded from the date of decree to till realisation, because the
first appellate court had no discretion to award interest exceeding the rate of six percent
per annum from the date of decree as, admittedly, the amount adjudged as payable by the
appellant was not of a commercial transaction as is clear from the case set up by the parties
and as such, that requires to be restricted to six per cent per annum only. To hold so, no
detail discussion is necessary.78 The Patna High Court has held that where interest from
the date of the decree till payment is refused, reasons for such refusal should be given.79
But this would create an anomaly for, if the refusal is explicit, reasons would have to be
given; while if it is implicit, no reasons would have to be given since silence is presumed to
be refusal.

In a case decided by the Privy Council in 1878 it was held that when the decree is silent
about future interest it cannot be recovered in execution proceedings but the decree-holder
may by suit recover damages for the detention of the decretal amount.80 That was a case
under the Code of 1859. Section 193 of that Code which relates to interest did not contain
any such provision as is contained in sub-sec. (2) of the present section. This provision was
first introduced by Act 7 of 1888. However, in cases decided under the present Code the
Calcutta High Court allows interest by way of damages for wrongful detention of money
due, irrespective of the provisions of the Interest Act.81

11. Interest in mortgage suits. The question is, if the suit was filed as a mortgage suit and
a decree is made on that basis, while awarding interest, whether the court was required to
apply the provisions of s 34 or O 34, r 11, of the Code of Civil Procedure.82

The law on the subject is now codified in O 34, r 11. The rate of interest in mortgage suits
is determined by O 34 and not by this section,83 but a personal decree under O 34, r 6, is a
money decree and so is governed by this section.84 In a dispute under s 90 of the Tamil
Nadu Co-operative Societies Act, 1983, the Arbitration Tribunal awarded interest at the rate of
18 per cent, but the Co-operative Tribunal exercising powers under s 152 of the Act
reduced the interest rate to 6 per cent p.a., the Madras High Court held that the discretion
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exercised by the Co-operative Tribunal was proper.85 In a suit on mortgage, the court is
bound to decree interest, pendente lite, on the mortgage debt, though it has got a discretion
as to the rate at which it should be allowed.86 Interest payable in mortgage suits is governed
not by s 34, but by O 34, r 11, of the Code of Civil Procedure.87 The liability to pay interest
under a decree is wholly different from the liability to pay interest on the contract on
which the decree is based. It has, accordingly, been held that the judgment-debtor is not
absolved from liability to pay interest under the decree, though, no interest was payable on
the debt under the provisions of the Burma Accrual of Interest Act, 1947.88 In case of
mortgage suits, the court has a discretion under O 34, r 11 of the Code of Civil Procedure for
not granting contractual rate of interest, for the period after the suit.89

12. This section and the Interest Act, 1978. The general statutory provisions in regard to
the award of interest by a court are contained in the Interest Act, 1978 and the Code of Civil
Procedure. Both the Interest Act, of 1839 and the Interest Act of 1978 provide for the award of
the interest up to the date of institution of the proceedings. Neither the Interest Act, 1839
nor the Interest Act, 1978 provides for the award of pendente lite interest. The law relating to
the award of interest pendente lite is provided in s 34 of the Code of Civil Procedure. Section 34,
however, applies to arbitrators in suits for the simple reason that where a matter is referred
to arbitrator in a suit, the arbitrator will have all the powers of court in deciding the
dispute.

In the absence of any contract regarding payment of interest the plaintiff would be entitled
to interest at the current rate as defined in s 2 (6) of the Interest Act, 1978.90

The provisions of Interest Act, 1978 debar award interest upon interest.91

Where the earnest money was refunded to a party after an inordinate delay of ten years, the
Patna High Court held that the condition in the contract that no interest would be payable
on earnest money cannot be invoked by the State. That would give arbitrary advantage to
the State causing undue loss to the other party and unjust enrichment to state.92

The Calcutta High Court has held that clause in general conditions of contract prohibits
arbitrator from entertaining any claim of interest, but this will not debar a party from
claiming interest for pre-reference period and post-award interest.93 It was observed in the
case that once a reference commences, the delay thereafter is not within the control of the
party making a claim for interest. The disputes are frozen at the time immediately prior to
reference and the arbitrator proceeds to adjudicate upon the claim and find the principal
sum due. Such principal sum would be deemed to have become payable at the time the
disputes were frozen. The time taken for the reference to be concluded and the further
time taken for the award-debtor to make payment on the basis of the adjudication should
not be held against the award-holder and he should be compensated for receiving the
money not on the date that he is found to have been entitled to the sum but on a much
later date. This is the principle that is recognised in s 34 of the Code.
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In a case under the Railways Act, 1989 and Railways Accident and Untoward Incidents
(Compensation) Rules, 1990, the Gujarat High Court held that there is no specific
provision in the Railways Act for grant of interest, but the principles of s 34 of the Code
and Section 3 of the Interest Act could be invoked to award interest from the date of award till
realisation thereof.1

Reaffirming its views expressed in two earlier decisions,2 the Supreme Court held the order
of the Railway Claims Tribunal directing payment of interest in default of payment within
45 days as unsustainable and observed that for grant of interest on any amount due, the
court and even Tribunals have been held to be entitled to award interest in their discretion
under the provisions of s 3 of the Interest Act and s 34 of the Code.3

Where death occurred in an untoward incident in 2001 and the Railway Claims Tribunal
passed award in 2007, the Karnataka High Court held that due to delay of 6 years the
claimant had to suffer hardship and financial distress. Therefore, interest may be awarded
from the date of institution of the case at the discretion of the Tribunal.4

A Division Bench of the Kerala High Court has made the matter more explicit by the
following observation:

There is no dispute regarding the amount to be computed in railway accident claims as amount of compensation for death and other injuries is prescribed by the
schedule. Whatever be the income, age etc., the same amount is payable if a person is injured in an untoward accident while travelling in train with ticket. So it
cannot be stated that the amount is determined only at the time of final adjudication of the award and interest can be directed to be paid only from the date of
award.5

The Orissa High Court has held that from the definition of Court as defined in s 2 (a) of the
Interest Act, 1978 read with s 34 of the Code it is clear that a Court can grant interest. Since
the Railway Tribunal comes under the definition of Court, it can award interest on
compensation payable to a claimant.6

13. This section and Gratuity Act, 1972. In suits for money lent, however, this section
has to be applied, subject to the provisions regarding interest made in Acts regulating
money lending in different states. The controlling authority under the Payment of Gratuity
Act, 1972 is not a court for the purpose of s 34 of Code of Civil Procedure.7

14. Consumer Protection Cases. Interest can not be claimed under s 34 of the Code of Civil
Procedure in proceedings under Consumer Protection Act, 1986, as the provisions of Code of Civil
Procedure have not been specifically made applicable to the proceedings under the Act.
However, the general provision of s 34 being based upon justice, equity and good
conscience would authorise the redressal forum and commission to also grant interest
appropriately under the circumstances of each case.8
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The power and duty to award compensation does not mean that irrespective of facts of the
case interest can be awarded in all matters at a uniform rate of 18 per cent per annum.
What is being awarded is compensation, i.e., a recompense for the loss or injury. It,
therefore, necessarily, has to be based on a finding of loss or injury and has to correlate
with the amount of loss or injury. Thus the forum or the commission must determine that
there has been deficiency in service and/or misfeasance in public office, i.e., by the
development authority which has resulted in loss or injury. No hard and fast rule can be
laid down, however, a few examples would be where an allotment is made, price is
received/paid but possession is not given within the period set out in the brochure. The
commission/forum would then need to determine the loss. Loss could be determined on
basis of loss of rent which could have been earned if possession was given and the
premises let out or if the consumer has had to stay in rented premises then on basis of rent
actually paid by him. Along with recompensing the loss the commission/forum may also
compensate for harassment/injury both mental and physical. Similarly, compensation can
be given if after allotment is made and there has been cancellation of scheme without any
justifiable cause. Compensation cannot be the same in all cases irrespective of the type of
loss or injury suffered by the consumer. The National Forum has been awarding interest at
a flat rate of 18 percent per annum irrespective of the facts of each case which, is
unsustainable. What is being awarded is compensation, i.e., a recompense for the loss or
injury. It therefore necessarily has to be based on a finding of loss or injury and has to
correlate with the amount of loss or injury. Thus the forum or commission must determine
that there has been deficiency in service and/or misfeasance in public office that is by
development authority which has resulted in loss or injury. No hard and fast rule can be
laid down, however, a few examples would be wherein allotment is made, price is
received/paid, but possession is not given within the period set out in the brochure. The
commission/forum would then need to determine the loss. Loss could be determined on
the basis of loss of rent which could have been earned if possession was given and the
premises let out or if the consumer has had to stay in rented premises, than on basis of
rent actually paid by him. Along with recompensing the loss, the commission/forum may
also compensate for harassment/injury, both mental and physical. Similarly, compensation
can be given if after allotment is made, and there has been cancellation of scheme, without
any justifiable cause. Compensation cannot be the same in all cases irrespective of the type
of loss or injury suffered by the consumer. The national forum has been awarding interest
at a flat rate of 18 per cent per annum irrespective of the facts of each case, which is
unsustainable. Award of compensation must be under different heads and must vary from
case to case depending on the facts of each case. It is clear that in all these cases, interest is
being awarded as and by way of compensation/damages. Whilst awarding
compensation/damages, it must be shown that there is relationship between the amount
awarded and the default/unjustifiable delay/harassment. It is thus necessary that there be
separate awards under each such head with reasons why such award is justified. However,
the principle that interest must be granted at the current rate of interest is only applicable
where the proceeding are for recovery of debt or damages. They apply where a refund of
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amount is being claimed and the direction is to refund amounts with interest. The
principles which govern grant of interest do not apply to grant of compensation. For this
reason also, it becomes necessary to consider facts and award damage/compensation
under various heads. Normally, in cases of refund, interest will be payable from the date
the monies were deposited with the body till they are returned either by payment to that
party or deposited in court. In cases where compensation is directed to be paid, the
commission/forum must direct payment within a particular period and further direct that
if payment is not made within that time the authority will also pay interest. Such interest
must be based on the current rate of interest.9

Where allotment of plot was made long ago, i.e., about 17 years back and its possession
given recently, the, allottee suffered mental agony and harassment, hence, interest at the
rate of 12 per cent awarded by the district forum was held proper and taken as
compensation for mental agony and harassment. However, in spite of clarification given in
Ghaziabad Development Authority v. Balbir Singh,10 amounts were paid late, hence, for the said
period from 17 March, 2004, i.e., date of clarification to 28 July, 2004, i.e., date of actual
payment, interest at the rate of 15 per cent was awarded by the Supreme Court.11

15. Lok Adalat. Lok Adalats are not meant for pressurising people and bringing pressure
on public officials. A suit filed by a bank for the recovery of loan amount with interest had
not become ripe for hearing, but it was hustled through the Lok Adalat. In the Lok Adalat,
the defendants admitted the claim of the bank, but prayed for installments and of rate of
interest. The court, being obsessed with the idea of certain number of disposals in Lok
Adalat, passed a compromise decree, asking the plaintiff bank to adopt a flexible and
pragmatic approach and granted installments despite the objections raised by the plaintiff
bank to the decree being passed as suggested by the defendants. It was held that the
judgment and decree passed by the trial court were not legally tenable. The High Court, in
appeal, remanded the matter to the trial court, for proceeding further in accordance with
law.12

16. This section and Motor Vehicles Act. There cannot be any hard and fast rule in
awarding interest, and the award of interest is solely at the discretion of the tribunal or the
High Court, as the case may be and on the facts and circumstances of each case. The
discretion conferred by statute must be exercised judicially on the basis of the facts and
circumstances of a particular case. When a specific provision has been made under the
statute, such provision has to govern the field. When the statute has not fixed any rate of
interest to be awarded on the award of compensation amount, it is not open for the court
to read into the provision and fix certain rate of interest. Section 171 of the Motor Vehicles Act,
1988, in unequivocal terms, conferred discretion on the tribunal to grant interest on the
amount of compensation awarded at such rate as it may specify in that behalf. Therefore,
the court has to take all the relevant factors into consideration while awarding the rate of
interest on the compensation. Such factors may include inflation, change of economy,
policies being adopted by the Reserve Bank of India from time to time, how long the case
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has been pending for determination of compensation, permanent injuries suffered by the
victim, enormity of the suffering, loss of future income, loss of enjoyment of life,etc. If any
rate of interest is imported into the section by the court, it would be contrary to the intent
of the Motor Vehicles Act, 1988. The legislature, in its wisdom, thought it fit to confer such
discretion only on the tribunal or the court with the object that the tribunal or the court,
while awarding the rate of interest, will take into account the facts and circumstances of
each case and other relevant guiding factors prevalent at the time of awarding
compensation. In the nature of the provision made under s 171 giving discretion to the
tribunal to award interest at such rate as it may specific in that behalf, no principle could be
deduced or any interest can be fixed to have a general application in all motor accident
claim cases arising under the Motor Vehicles Act, 1988.13

17. This section and Workmens Compensation Act, 1923. Interest of 12 per cent
provided under s 4 A(3) of Workmens Compensation Act, 1923 may not be a guiding
factor for awarding the interest at 12 per cent per annum or at such higher rate not
exceeding the maximum of the lending rates of any scheduled bank as may be specified by
the Central Government, by notification in the Official Gazette, in a case arising under the
provisions of the Motor Vehicles Act, 1988.14

While granting interest on the compensation amount awarded, the tribunal or the court
shall award the rate of interest, which is just and reasonable, on an analysis of the facts and
circumstances obtaining in the case. Thus, the rate of interest on the compensation
amount shall be awarded by the tribunal or the court depending upon the facts and
circumstances of each case and the abovesaid relevant guiding factors if the compensation
amount is enhanced, interest can be awarded at the discretion of the bench either from the
date of the petition or from the date of the award, as the case may be.15

18. Rule of damdupat. This is a rule of Hindu law, according to which, interest exceeding
the amount of the principal sum cannot be recovered at any one time. This rule is in force
in the Bombay State,16 Sind,17 and in Berar,18 and in the presidency-town of Calcutta,19 but
it is not recognised outside that town.20 It is also not recognised in the Madras State.21 The
meaning of the rule is that interest must not exceed the principal; so if a Hindu lends Rs
500 to another Hindu, and the loan is not repaid till the interest amounts to Rs 600, the
lender is not entitled to recover more than Rs 500 for principal and Rs 500 for interest. But
the court may, under this section, award further interest to the lender from the date of the
suit, though the aggregate interest may thereby exceed Rs 500. The reason is that the rule
of damdupat ceases to operate from the date of the suit.22 But this is entirely in the
discretion of the court.23 It has been held by the High Court of Madras that the rule of
damdupat does not apply where interest is claimed under a mortgage governed by the
Transfer of Property Act, 1882.24 A different view has been taken by the High Court of
Bombay25 and Calcutta.26 The decision of the Privy Council in Kusum Kumari v. Debi
Prasad,27 seems to lend support to the Calcutta and Bombay view. This case has further
held that the rule of damdupat is only during the contractual relation of debtor and creditor.
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The rule of damdupat does not apply where the mortgagee has been placed in possession,
and is accountable for the rents and profits received by him as against the interest due.28

19. Penal Interest. Charging of additional interest for the period of default in terms of
contract of guarantee does not amount to charging of penal interest.29

In a case relating to work contract where the plaintiff-appellant failed to complete the
computerisation work entrusted to them, it was held by the Patna High Court that the
defendant-respondent was justified in withholding payment of the bill. It was further held
that the plaintiff-appellant would not be entitled to claim penal interest under the Interest
on Delayed Payment to Small Scale and Ancillary Industries Undertakings Act, 1993, over
and above the interest awarded by the trial Court.30

20. Enhanced Interest. If the value of suit claim is not ascertainable, the plaintiff cannot
claim enhanced rate of interest as a matter of right.31

21. No Interest. In a case, where the petition regarding denial of encashment of Indira
Vikas Patra remained pending for several years, the respondent post office could not be
saddled with the liability to pay interest, especially when technically they were justified in
withholding the payment. Therefore, the claim of interest at the rate of 15 per cent per
annum as made by the petitioner was held not justifiable and liable to be rejected.32

Where in the plaint, the plaintiff, after referring value of claim, had not specifically pleaded
for interest anywhere, the trial court decreed his suit claim but no interest was granted. No
independent appeal claiming interest was filed by the plaintiff nor was cross-objection filed
in appeal filed by defendants. The relief of interest cannot be granted to plaintiff.33

22. Equitable Interest. The court must balance the equities between the claim of the
petitioners and the liability of the respondents to pay interest. Award of such interest is not
based upon the principle of enrichment of a kind of compensation which is awarded to the
petitioners against the state functionaries for their delayed action, particularly unsupported
by any plausible cause.34

The trial court can award interest even in the absence of a contract, if the same is equitable.
Obviously, even if the money received by the first defendant had been kept in a fixed
deposit, that would have earned interest for it. If the money had been invested by
defendant in its business, the return would have been more. In such a situation, when the
trial court has awarded interest at the rate of six percent per annum in its discretion, it
cannot be said that the court has act ed illegally or has exercised its discretion in an
arbitrary or unreasonable manner.35

In a case relating to delayed payment for supply made by a Small Scale Industrial
Undertaking to Government of Bihar, it was held by the Patna High Court that it is not
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the date of agreement or the date on which payment became due, which is material in
determining whether the provisions of the Interest on Delayed Payment to Small Scale and
Ancillary Industrial Undertakings Act, 1993 would be attracted. The crucial date is the date
of supply order. Therefore, when order for supply was placed prior to the coming into
force of the Act, interest in terms of the Act cannot be allowed, rather interest at the rate
of 9 per cent per annum in terms of section 34 of the Code was allowed.36

In a case relating to Interest on Delayed Payment to Small Scale and Ancillary Industrial
Undertakings Act, 1993, a Bench of Supreme Court held as follows:

We, therefore, are of the opinion that in relation to the transactions made prior to coming into force of the said Act, simple interest at the rate of 9% per annum,
which was the bank rate at the relevant time, shall be payable both prior to date of filing of the suit and pendente lite and as future interest in terms of section
34 of the Code of Civil Procedure. Interest, however, will be payable in terms of the provisions of the 1993 Act37

In a suit between a sugar factory owned by a Co-operative Society and a private

engineering company, the dispute over an interim order was taken to the High Court. The
High Court directed that in the event a party succeeds, 12 per cent interest be granted on
the awarded amount. However, when the sugar factory went in appeal before the High
Court against the dismissal of the suit, the High Court, construing the indemnity given by
the Bank to be a Bank Guarantee, decreed the suit and directed the Bank to pay the
amount with interest at the rate of 14 per cent per annum It was held in the case by
Supreme Court that the approach of the High Court was erroneous.38

A Division Bench of the Delhi High Court held that where Bank was directed to keep
specified amounts in fixed deposits pursuant to order of High Court and the Bank enjoyed
the benefits of the amount, it was liable to pay interest for utilisation of the said amount.39
The Bench relied on the decision of the Supreme Court in Secretary, Irrigation Department,
Government of Orissa v. G.C. Roy,40 wherein it has been observed: a person deprived of the
use of money to which he is legitimately entitled has a right to be compensated for the
deprivation, call it by any name. It may be called interest, compensation or damages. The
observation of the Division Bench is very revealing:

The records of this case reveal that the said amounts have been lying with the appellant-bank since 9.10.1993 and the bank has been consistently absolving
itself of its responsibility to pay interest for thirteen years by invoking unjustifiable grounds leading to this avoidable litigation. This is in spite of an order of this
Court dated 8-4-1999 and subsequent directions on 6.5.1999 to deposit the said amounts with interest. The appellant-bank has with impunity chosen to
disregard this order on the basis of a belated review petition which was not taken up for years.41

It has been held by the Rajasthan High Court even where two parties agree for not
charging interest, but when one party without lawful authority, retains others money, then
he could do so at least with a liability to pay interest.42

In a decree passed against the State, the High Court directed to deposit the amount in
Court within a specified time and further directed the State to pay 15 per cent interest
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from the date of order till act ual deposit in case of default. On appeal, the Supreme Court
modified the rate of interest to 10 per cent.43

Once the principal sum was allowed by the arbitrator under the Arbitration and Conciliation
Act, 1996, he was entitled to award interest. But the interest awarded by the arbitrator at
the rate of 18.5 per cent and that too compounded on quarterly basis, rest was modified by
Division Bench of Calcutta High Court to simple interest at the rate of 18 per cent.44

Interest in equity has been awarded on money paid under a contract to convey, of which
specific performance could not be decreed,45 and on money paid under a mistake of fact,
and wrongfully retained.46 For partnership cases, see the undermentioned decisions.47 An
applicant for compensation for land acquisition can be granted interest on equitable
principles, even if recourse cannot be had to s 34 of the Code of Civil Procedure.48

23. Compound interest. It is in the power of the court to allow compound interest from
the date of the institution of the suit. Where compound interest was charged during the
course of the dealings between the parties, the Bombay High Court awarded compound
interest from the date of suit.49 On the perusal of the draft lease agreement exchanged
between the parties and other correspondence, it is crystal clear that there is no stipulation
whatsoever, at in any contingency for the charging of compound interest on the loan
advances or in default of any installment thereof. It, therefore, follows that under no
circumstances compound interest could be recovered.50 In a contract to supply gas, price
of which was increased by ONGC, the purchaser requested for reduction of supply and
claims were made by purchaser on the basis of force majure, the purchasers were drug
manufacturing companies and the prices of drugs were controlled by the government. On
these facts it was held that the interest payable would be simple and not compound.51

In a case, where the Bank had refused to encash demand draft presented by firm on
account of certain dues, the Allahabad High Court held that grant of 12 per cent
compound interest was improper. It was held that although the firm suffered loss for a
considerable long period due to withholding of draft amount which the Bank could not do
legally, since the bank was ready to pay interest at the rate of 12 per cent, simple interest
would be proper as it was not a commercial transaction.52

The Supreme Court has held that the power to levy compound interest can be exercised
only if there is specific contract or authority under the statute. Courts and tribunals do not
have general discretion to award interest on interest.53 Speaking for the Bench,
Raveendran, J., in the above case relating to an award by Tribunal under the Arbitration and
Conciliation Act, 1996, observed as follows:

14. Section 31(7) makes no reference to payment of compound interest or payment of interest upon interest. Nor does it require the interest which accrues till the
date of award, to be treated as part of the principal from the date of award for calculating the post-award interest. The use of the words where and in so far as an
arbitral award is for the payment of money and the use of the words the arbitral tribunal may include in the sum for which the award is made, intereston the
whole or any part of the money in clause (a) and the use of the words a sum directed to be paid by an arbitral shall carry interest in clause (b) of sub-section (7)
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of section 31 clearly indicate that the section contemplates award of only simple interest and not compound interest or interest upon interest.54

The Supreme Court quoted with approval its earlier judgment in Renusagar case,55 wherein
it has been observed as follows:

Merely because in Section 3(3) (c) of the Interest Act, 1978, the court is precluded from awarding interest on interest does not mean that it is not permissible to
award such interest under a contract or usage or under the statute. It is common knowledge that provision is made for the payment of compound interest in
contracts for loans advanced by banks and financial institutions and the said contracts are enforced by courts. Hence it cannot be said that award of interest on
interest, i.e., compound interest, is against public policy of India.

In Central Bank of India v. Ravindra,56 a Constitution Bench of the Supreme Court observed as
follows:

The English decisions and the decisions of this Court and almost all the High Courts of the country have noticed and approved long established banking practice
of charging interest at reasonable rates on periodical rests and capitalising the same on remaining unpaid. Such a practice is prevalent and also recognised in non-
banking money lending transactions. Legislature has stepped in from time to time to relieve the debtors from hardship whenever it has found the practice of
charging compound interest and its capitalisation to be oppressive and hence needing to be curbed. The practice is permissible, legal and judicially upheld
excepting when superseded by legislation. There is nothing wrong in the parties voluntarily entering into transactions, evidenced by deeds incorporating covenant or
stipulation for payment of compound interest at reasonable rates

A Division Bench of the Gauhati High Court held that tea plantation or tea production is
agriculture or agricultural production and compound interest is not permissible on
agricultural loan.57

The executing court has no jurisdiction to go behind decree. The executing court has no
right to vary terms of the decree, however erroneous it may be in execution proceedings.
Thus, where the trial court passed decree for payment of principal amount with simple
interest only, the executing court cannot grant compound interest thereby varying terms of
decree. The order passed by executing court construing simple interest as compound
interest. The revision against such order is therefore maintainable.58

24. Interest on mesne Profits/Damages. Mesne profits as defined in s 2, sub-cl (12),

includes interest on profits which have been actually received or might, with ordinary
diligence, have been received. This is a substantive provision and has reference to the
rights of the parties prior to suit. Interest on mesne profits, pendente lite, is a matter of
procedure and is within the discretion of the court.59 It is for the court passing a decree, to
decide whether interest should be allowed on mesne profits and not for the execution court,
unless it is reserved for decision by the latter. Accordingly, where the decree awards a
lumpsum as mesne profits, it is not open to the execution court to award interest thereon.60

Where the interest on mesne profit was claimed at the rate of six per cent and the
preliminary decree was passed against which appeal was filed, in which the plaintiff sought
amendment claiming interest at the rate of 13 per cent, the appellate court, allowed
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amendment and also passed order on the preliminary decree on the same day granting
interest at the rate charged by nationalised banks on commercial transaction, i.e., exceeding
13 per cent. No opportunity of being heard was given to the defendant against proposed
amendment, and the procedure followed was found illegal and unsustainable as the suit for
account was filed prior to the 1997 Amendment and the plaintiff was not entitled to
interest exceeding six per cent on the basis of amended s 34 coming into force due to
pendency of litigation.61

The plaintiff can claim, and the court has power to grant interest on damages from the
date of filing of the suit till the realisation of the amount.62

25. Negotiable Instruments. Section 79 of the Negotiable Instruments Act, 1881 does not
prevail over s 34 of the Code of Civil Procedure. Both are Central Acts covering the same
field,viz., the power of discretion given to the court to fix a date for payment of interest
pendente lite. In addition, s 34 of the Code of Civil Procedure gives power to fix rates of interest
also. A reading of s 34 clearly indicates that the court is given discretion to award rate of
interest in certain circumstances. Section 34(1) engrafts language, taking within its ambit
not only the money due on a negotiable instrument but also any claim for payment of
money. The Negotiable Instruments Act is of 1881, whereas the Code of Civil Procedure is of
1908. Further, the Code of Civil Procedure was amended from time-to-time up to the Act of
1976. The legislature is aware of the existence of s 79 of the Act, but no exception has
been engrafted in s 34 (1) of the Code of Civil Procedure, with regard to the rate of interest in
respect of the claims based on negotiable instruments. Therefore, the later Act (Code)
prevails over the earlier Act. Section 34 prescribes not only the period, but also the
interest. Accordingly, s 34 applies to the claims based on negotiable instruments as well.
No exception by judicial interpretation could be engrafted.63 The High Court of Andhra
Pradesh has, accordingly, held that the provisions of s 34 of the Civil Procedure Code override
those of s 79 of the Negotiable Instruments Act, 1881. It has further held that since s 34 gives a
discretion regarding the rate of interest, it cannot be laid down that the court ought to
grant interest at the contractual rate.64 The High Court dissented from the Rajasthan ruling
in Usav Lal v. Mohan Brothers,65 to the effect that s 79 of the Negotiable Instruments Act, 1881,
prevails over s 34 of the Code of Civil Procedure. It further held that the court cannot, under s
34, grant interest pendente lite, at a rate higher than the contractual rate, dissenting on this
point from Lehru Narain v. Kanhaialal. 66 Suit for recovery of money, after Hundi was
dishonoured, was filed in the absence of a stipulation in the Hundi. As regards payment of
interest, in such cases, specified sum of money only is payable. However, since the
defendant failed to pay the amount due on the Hundis, it was liable to pay interest thereon
from the date of the suit and future interest at the rate of six percent per annum under s 34
of the Code of Civil Procedure.67

26. Award of interest by Arbitrator. The general statutory provisions in regard to the
award of interest by a court are contained in the Interest Act, 1978 and the Code of Civil
Procedure. Both the Interest Act of 1839 and the Interest Act of 1978 provide for the award of
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the interest up to the date of institution of the proceedings. Neither the Interest Act, 1839
nor the Interest Act, 1978 provides for the award of pendente lite interest. The law relating to
the award of interest pendente lite is provided in s 34 of the Code of Civil Procedure. Section 34,
however, applies to arbitrators in suits for the simple reason that where a matter is referred
to arbitrator in a suit, the arbitrator will have all the powers of court in deciding the
dispute. Section 34 does not, otherwise, apply to arbitrations as arbitrators are not court
within the meaning of s 34 of the Code of Civil Procedure. While under the Interest Act, 1978,
the expression, court was defined to include an arbitrator, under the Interest Act of 1839 it
was not so defined. The result is that while in cases arising after the commencement of the
Interest Act, 1978 an arbitrator has the same power as the court to award interest up to the
date of institution of the proceedings, in cases which arose prior to the commencement of
the Interest Act, 1978.

Since the arbitrator is required to conduct himself and make the award in accordance with
law, court must look to the substantive law for the power of the arbitrator to award
interest before the commencement of the proceedings. If the agreement between the party
entitles the arbitrator to award interest, no further question arises and the arbitrator may
award interest. Similarly, if there is a usage of trade having the force of law, the arbitrator
may award interest. Again, the arbitrator may award interest if there are any other
provisions of the substantive law enabling the award of interest, e.g., s 80 of the Negotiable
Instruments Act, 1881, or s 61 (2) of the Sale of Goods Act, 1930. There may also be a case
where one of the parties is forced to pay interest to a third party, say, on an overdraft,
consequent on the failure of the other party to the contract not fulfilling the obligation of
paying the amount due to them. In such a case also, equity may compel the payment of
interest. Loss of interest in the place of the right to remain in possession may be rightfully
claimed in equity by the owner of a property who has been dispossessed from it.68 The
arbitrator is competent to award interest for the period commencing with the date of
award to the date of decree or date of realisation, whichever is earlier. This is also quite
logical for, while award of interest for the period prior to an arbitrator entering upon the
reference is a matter of substantive law, the grant of interest for the post-award period is a
matter of procedure. Section 34 of the Code of Civil Procedure provides both for awarding of
interest pendente lite as well as for the post-decree period and the principle of s 34 has been
held applicable to proceedings before the arbitrator, though the section as such may not
apply.69 The arbitrator has jurisdiction to award interest under both old and new Arbitration
Act on the sum found due and payable for pre-reference period, in the absence of any
specific stipulation or prohibition in contract to claim or grant any such interest.70 Future
interest becomes payable on amount of claim upheld and also on interest awarded. While
passing a decree in terms of the award, not only the amount of claim upheld by the
arbitrator or the court but the pre-suit and pendente lite interest awarded in favour of the
decree-holder crystallises into the decretal amount and the future interest becomes payable
on the entire amount comprised of the claims as well as the pre-suit and pendente lite
interest. Therefore, from the date of the passing of the decree, the future interest is not to
be calculated merely on the amount of the claims upheld by the arbitrator/court but also
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on the amount of the interest awarded by the arbitrator or the court, more so when the
amount of interest up to the date of the passing of the award or passing of the decree is
much higher than the principal amount.71 The power to award interest pendente lite has to be
inferred on the analogy of s 34 of the Code of Civil Procedure for doing complete justice
between the parties. Whether interest should be awarded pendente lite or not is a matter of
discretion for the court or the arbitrator. When parties go before an arbitrator, they expect
that the disputes will be decided in accordance with law as they would have been decided,
had the decision been of a court of law.72 The arbitrator is entitled to award interest
pendente lite and future interest at the rate not exceeding the current rate of interest. Under s
34 of the Code of Civil Procedure, interest at a rate higher than six percent be awarded where
the liability in relation to the sum so adjudged had arisen out of a commercial transaction.73

The Supreme Court has held in the undernoted case74 that Section 34 of the Code of Civil
Procedure has no application to arbitration proceedings since the arbitrator cannot be said to
be a court within the meaning of the Code. But an arbitrator has power and jurisdiction to
grant interest for all the three stages provided the rate of interest is reasonable.

In another case, where the award of interest at the rate of 12 per cent per annum by
arbitrator all throughout was not found illegal by the civil court but the High Court
reduced the post award interest to 6 per cent per annum, the Supreme Court held that the
order of the High Court who not justified.75 It was observed in the case as follows:

13. As far as arbitration proceedings are concerned, it is well established that an arbitrator, in absence of any prohibition in an arbitration agreement, has
power to award interest. Though it is not a court within the meaning of Section 34 of the Code of Civil Procedure, 1908, an arbitrator has power to grant
reasonable rate of interest at all the three stages; i.e. pre-reference, pendente lite and post-award period.76

Section 34 does not, in terms, apply to arbitrators. But the arbitrator has been held to have
power to award interest for the period of pendency of arbitration.77 Contrary decisions are
no longer good law.78 The interest for the future period from the date of the arbitration
award till payment can be granted by the court. The original award was dated 21 June, 1971
and was filed in court on 7 November, 1977, for making it rule of the court. Interest from
the date of the award would, therefore, be calculated from 21 June, 1977 and not the date
when the arbitrator submitted his decision after reconsideration under s 16 of the Arbitration
Act, 1940 (now replaced by Arbitration and Conciliation Act, 1996).79 An arbitrator has power
to award interest pendente lite. Though s 34 does not, in terms, apply, the arbitrator has the
same power as the court has. The court can award pendente lite interest at such rate as the
court deems reasonable. If the arbitrators award of interest is reasonable, the law forbids
the court to interfere with it.80 Keeping in view the facts and circumstances of the case and
to subserve the interest of justice, the respondent can be directed to pay pre-reference and
pendente lite interest at the appropriate rates.81 If all disputes between the parties or the
dispute regarding interest is referred to arbitration, the arbitrator has power to award
interest on a principle analogous to the one embodied in s 34 of the Code of Civil Procedure.
Also, all disputes are referred for arbitration, the arbitrator has power to award interest
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pendente lite, i.e., interest during the pendency of arbitration proceedings. Moreover, future
interest or future mesne profits are incidental matters and may be awarded, even though not
specifically claimed, if the same are not inconsistent with the other relief claimed.82 The
power to order interest on an award from the date of the decree to date of payment is
regulated by s 29 of the Arbitration Act, 1996 and not by s 34 of the Code of Civil Procedure.83
Neither the Interest Act of 1839 nor the Interest Act of 1978 apply to the State of Jammu and
Kashmir. Hence, the arbitrator cannot award interest thereunder. But the courts
jurisdiction to allow interest from the date on which the award was made a rule of court, is
not taken away.84 An arbitrator also has a jurisdiction to award interest after the date of the
award till a decree is passed in terms of the award, if the reference is with regard to all
disputes between the parties which would include a dispute or difference as to interest
which the court trying such suit could have awarded.85 Where there is express reference,
the arbitrator can award interest for the period anterior to his entering upon the reference,
provided such interest is claimable either under the agreement between the parties or
under the Interest Act, 1978.86 The main part of sub-s (1) of s 34 of the Code of Civil Procedure
laying down that during the period the suit was pending in court, interest is to be awarded
at a reasonable rate and for the period subsequent to passing of the decree, interest is to be
awarded at the rate of six percent per annum and future interest at a higher rate can be
awarded if the proviso is attracted.87 The opening words of s 41 of Arbitration Act, 1940
themselves make it clear that the provision of the Code of Civil Procedure shall apply to all
proceedings before the court, subject to the provision of Arbitration Act, 1940 (now
replaced by Arbitration and Conciliation Act, 1996) and of rules made thereunder. When
specific provision has been made under s 29 of the Act regarding the permissibility of
payment of interest from the date of the decree such specific provision has to govern the
field and provisions of s 34 of the Code of Civil

Procedure must give way to s 29 of the Arbitration Act, 1940 (now replaced by Arbitration and
Conciliation Act, 1996). If the court intends to grant interest in a case where interest has not
been awarded by the arbitrator it can do so under s 29 of the Arbitration Act, 1940 Procedure
must give way to s 29 of the Arbitration Act, 1940 (now replaced by Arbitration and Conciliation
Act, 1996). and not under s 34 of the Code of Civil Procedure.1

27. Proviso to sub-section (1): Rate of Interest in commercial transactions. The

operative portion of the proviso as contained in sub-s 1 and sub-s 2 of s 34 of the Code of
Civil Procedure clearly goes to indicate that the discretion in the court vested under the said
proviso is not only with regard to the rate of interest but it also considers whether the
interest should be awarded or not.2

The Delhi High Court has held that in commercial transactions (after the amendment of
1976), the grant of interest at the contractual rate ought to be the rule and the grant of
interest at reduced rate, a rare exception. The defaulting borrower cannot be given the
benefit of reduced rate of interest as a matter of rule, only because the bank had to resort
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to legal recourse on account of non-payment by borrower except, of course, in exceptional

circumstances.3

The court is not bound to grant interest at the contractual rate, even in a commercial
transaction, according to the Kerala High Court.4

In an Orissa case, the claim was in respect of the value of goods. The supplier was guilty of
serious lapses in the matter of supply. It was held that he cannot claim interest at rate
higher than six percent, by relying on the proviso to s 34 in the circumstances.5

The executing court cannot interfere with the interest awarded by the arbitrator.6 The
plaintiff in a Patna case claimed a specific sum from the insurers, which was found due and
decreed. It was held that he was entitled to interest at the rate of six per cent per annum.7

A cold storage concern being an industrial concern, is liable to pay interest on loan at the
rate in accordance with the terms of agreement executed by them. The plea that the loan
being given to cold storage which was for agricultural purposes, no compound interest
could be charged to debtor agriculturist, would not be tenable.8

Where the governments health department purchased medicines to supply the same to
various government hospitals for the benefit of citizens and to be provided to common
persons subjected to various ailments, it cannot be said to be commercial transaction as it
cannot be said to be connected with any industry, trade or business of the party who has
incurred the liability and therefore, the proviso of s 34 will not be applicable to the said
transaction.9

Where, in a government contract, the bidder withdrew the tender but the amount of
earnest money was unjustifiably retained by the corporation and the corporation had
driven the contractor to series of litigation, it was held that in such a case it is the duty of
court to see that the party is adequately compensated, and the award of interest of 12 per
cent by trial court was found proper.10 Where, the plaintiff had not been able to avail fruits
of decree for last many years, the parties had not produced any evidence to establish any
statutory rate of interest, the case pertained to a business transaction, the award of interest
at the rate of nine percent per annum was found proper.11 When, corporate loan contract
provided for payment of interest at the rate of 30 per cent on expiry of 90 days, contractual
rate of interest admittedly ran beyond a period of 90 days, the plea of borrower that loan
will carry no interest beyond period of 90 days was found opposed to all principles of
justice and equity as the period of 90 days in fact protected the borrower from any action
on the ground that he had agreed to pay the interest at 30 per cent during that period.12 If
the plaintiff is deprived of money for long in a commercial transaction, the award of
interest at 18 percent per annum on the principle amount is not improper.13

28. Commercial Transaction. Explanation II For the purposes of this section, a

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transaction is a commercial transaction, if it is connected with the industry, trade or

business of the party incurring the liability.

Loan by a bank for the development of coffee estate, is not loan for commercial
transaction. It is a loan for agricultural or horticultural operation.14 Development of coffee
estate is not a commercial purpose, it is agricultural.15 In commercial transactions, for the
period after the passing of the decree, contractual rate ought to be the rule and a reduced
rate should be an exception.16 The share of a partner on his retirement is in the nature of a
pure debt, with effect from the date on which he ceases to be a partner and the relevant
date for the purpose of ascertaining the value of the share is the date on which he ceases to
be a partner. Since, the partnership was a commercial transaction, the retiring partner
would be entitled to interest at the rate at which the monies are lent or advance by
nationalised banks in relation to commercial transactions.17

Explanation II to Section 34 clearly says that a transaction would be commercial only if it

is connected with trade or business of the party incurring liability. Thus, where Culled
Apple was supplied to the Corporation, it cannot be said that it was by way of a
commercial transaction, as the said purchase was made under a Support Price Scheme
introduced to save the farmers from financial crisis. The culled apple was not marketable
and therefore, support price scheme was introduced that year. There is nothing on the
record to suggest even remotely that the support price scheme was introduced to earn
profits or as a commercial venture. It was held that the supplier was entitled to interest at
the rate of 6 per cent per annum from the date of decree as the title of the owner of fruit
orchard was under cloud.18

The Bombay High Court has held that hand loan between relatives is not a commercial
transaction and as such rate of future interest must be restricted 6 per cent per annum
from the date of the decree. It has been further held that in absence of agreement to pay
interest on the said amount, assessment of interest on the principal amount prior to decree
would also be a nullity.19

In a case relating to supply of goods there was no stipulation with regard to interest
payable in the case of default on the part of the defendant. It was a commercial transaction
between the parties and as such keeping in view the existing bank rate of interest, the
Himachal Pradesh High Court allowed simple interest at the rate of 12 per cent per
annum.20

Construction of bridges, roads, and highways on reckoning can be said to be industry or

trade. Such act ivity is for the benefit of people at large without any profit even in the
remotest possibilities. The court was required to make these observations as there was no
definition of trade or industry in the Code of Civil Procedure.21 Contract for supply of goods is
a commercial transaction under the proviso to s 34 (1) of the Code of Civil Procedure, future
interest could be more than six per cent.22
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The Himachal Pradesh High Court has held that the Court is empowered to increase post-
decretal interest in relation to liability arising out of a commercial transaction as clarified in
Explanation II to Section 34 of the Code. However, where the Corporation had purchased
fruit under the Support Price Scheme which was designed to help the farmers from
financial crisis, the same cannot be said to be a commercial transaction.23

In cases where the liability had arisen out of a commercial transaction, the rate of such
interest may exceed six per cent per annum but shall not exceed the contractual rate of
interest or where there is no contractual rate, the rate at which monies are lent or advanced
by nationalised banks in relation to commercial transactions.24 It may be noticed that
before the Amendment of 1976, the maximum interest which the court could award was
six percent per annum. However, in appropriate cases, the court had the discretion to
award interest at a lesser rate but in no case exceeding six percent. Now the courts are
empowered to increase post decretal interest in relation to a liability arising out of a
commercial transaction on the principal sum adjudged.

29. Five Propos itions. As regards interest for the post decretal period, an Andhra
Pradesh case lays down the following five propositions:
(i) Where loan is a commercial transaction, even if there is no contract for payment of
interest, interest can be allowed for the post-decretal period.
(ii) In such a transaction, the proviso to s 34 enables the court to award interest at the
rate currently allowed by nationalised banks on deposits.
(iii) But the claimant must adduce acceptable evidence as to the current rate so
allowable by banks.
(iv) In the absence of such evidence, the court can allow reasonable rate of interest.
(v) In the particular case, award (by the trial court) of interest at the rate of 12 percent
per annum for the post-decretal period was held not to be wrong or incorrect.25

30. Judicial and Reasonable Exercise of Discretion. Section 34 of the Code of Civil
Procedure leaves it to the discretion to the court as to what interest is to be decreed by way
of pendente lite interest. So far as future interest or further interest is concerned, that too is
left entirely to the discretion to the court but subject to a limit of six percent. However, the
edit provision would remove the limit to the future interest in a case arising out of a
commercial transaction. But, the proviso does not take away the discretion left to the
court, nor does it limit the scope of exercise of such discretion. The judicial discretion in
this regard must depend upon consideration of all the attending facts and circumstances
including the circumstances that the amount decreed was in respect of a liability arising out
of a commercial transaction. The exercise of such discretion shall necessarily be judicial
and reasonable.26
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31. Bank Rate of Interestreduction of Interest. As the relationship between the plaintiff
and defendant was found to be not merely of a lender and borrower, but there was an
agreement similar to cash credit arrangement with the bank and as the bank rate of interest
at the relevant time was 12 per cent per annum, the Supreme Court reduced the future
interest from 18 per cent to 12 per cent.27

Where the High Court directed payment of 18 per cent interest but the rate of interest
which was prevailing at the relevant time was 18 per cent. However, the bank rate of
interest has since gone down drastically. Grant of interest pendente lite and for future is a
discretionary remedy. The court of appeal can, therefore, exercise the same power while
finally disposing the lis as that of the High Court keeping in view the principle engrafted in
s 34 of the Code of Civil Procedure. The rate of interest may have to be fixed having regard to
the principle of restitution. In the facts and circumstances of this case it was held that grant
of nine percent interest shall meet the ends of justice.28

In a case relating to recovery of dues of overdraft facity given by Bank to contractor,

where interest pendente lite was granted at the rate of 25 per cent per annum and interest till
realisation was allowed at 19 per cent per annum, the Supreme Court held that levy of
interest has to be at reasonable rate. Even though the power is discretionary, the principle
of s 34 of the Code would apply. The interest was modified by the Supreme Court at 9 per
cent per annum.29 It was observed by the Court as follows:

8. The quantum and rate of interest which the appellant in the present case is entitled to would be in accordance with the provisions of Section 34 of the Code.
According to the provisions of Section 34 of the Code interest is to be awarded at a reasonable rate and on the principal amount. It is needless to point out that
although the amount of interest from the date of filing of the suit till the date of the decree and thereafter till realisation is in the discretion of the court as is
confirmed by the use of the word may but such discretion has to be exercised by the court properly, reasonably and on sound legal principles and not arbitrarily
and while doing so the court is also to consider the parameter, scope and ambit of Section 34 of the Code.30

32. Suit by Bank

(i) In the case of a suit by a bank against a person who has executed a promissory note
in favour of a bank, the rate of interest in the pro-note was to be taken and should
be allowed pendente lite unless there are compellable and inescapable reasons to the
contrary31 (the judgment contains observations that for the purpose of calculating
the agreed rate, RBI circulars would be needed).
(ii) The Calcutta view as to pre-suit interest is, that if a claim for interest at the agreed
rate is made by a banking company, the court has no discretion to ignore the same,
in view of s 21 A of the Banking Regulation Act, 1949.32
(iii) The Kerala High Court, while awarding 12 per cent per annum rate of interest in a
money suit (not based on mortgage), filed by a bank, has noted that banking
business can be carried forward only when recoveries of advances are effected.33
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(iv) The Karnataka High Court, in a suit for recovery of money borrowed on credit card
and service charges was of the view that the trial court was very liberal in granting
interest at the rate of 12 per cent despite the contract rate of 2.5 per cent per month
which works out 30 per cent per annum. The bank appeared to be satisfied with the
judgment and decree and had not preferred any appeal against the rejection of the
contract rate of interest. The grant of interest by the trial court was found quite
reasonable.34
(v) Section 21 of Banking Regulation Act, 1949 enables the Reserve Bank of India to take
note of public interest to regulate the charging of interest on loan advanced from
time to time. It is in exercise of that power that Reserve Bank of India circulars
fixing rate of interest. Any breach of that directives is liable to be penalised under s
47 of the Banking Regulation Act. Therefore, it was stated that the court was not
justified in denying interest at the rate of 17 per cent per annum on the principal
sum adjudged in a suit substituted by bank for recovery of loan amount together
with interest that is, Rs. 11,21,333.45. The judgment was accordingly modified and
decreed that the appellant-bank was entitled to get interest at the rate of 17 percent
per annum on the amount of Rs. 11,21,333.45, the principal sum adjudged from the
date of the suit till realisation of the whole amount. All other directions of the trial
court would stand.35
(vi) The plaintiff bank has not given evidence as to what is the rate of interest as
prescribed by the nationalised bank during the pendency of the suit. It is not shown
how the interest at the rate of 16.5 per cent was arrived at. Further, when it is a case
where defaulted interests are added to the principal amount, a uniform rate of
interest of 9 per cent from the date of suit till date of realisation will be
reasonable.36
(vii) In another case, the plaintiff bank asked for interest at the rate of 21 percent per
annum on the amount due by the defendants. It was an admitted position that the
defendants 1 to 3 had availed the said loan for the purpose of business of the first
defendant firm. Considering the transaction between the parties, the court was of
the view that the interest claimed by the plaintiff at 21 percent per annum was
neither excessive nor unreasonable. Therefore, the plaintiff was entitled to interest
at 21 per cent per annum.37
(viii) In a suit for recovery of money advanced by Bank on the basis of promissory
note, the defendant admitted the execution of the promissory note, which did not
contain any stipulation regarding rate of interest. The Karnataka High Court held
the grant of interest by way of damages at the rate of 15 per cent as not proper and
reduced the same at the rate of 6 per cent pendente lite and future interest on
principal amount.38
(ix) The Punjab and Haryana High Court has held that interest can be recovered by
Bank on suit amount which included principal amount as well as interest and the
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order of Executing Court that the Bank was entitled to further interest on original
loan amount only was liable to be rejected.39

33. Sub-section (2): Recourse when decree silent on Interest. All statutory
notifications which are legislative in nature, amount to law. Notification was issued
bringing proviso to s 34 into force. Court is bound to take judicial notice of it under s 57 of
the Indian Evidence Act, 1872. Mistake in judgment in not taking such notice is obviously a
patent mistake. Petition for review of judgment is maintainable. Discretion under the
proviso to s 34 must be exercised on sound judicial principles. Future interest at
contractual rate should not be refused, except for sufficient reasons. Refusal to award
future interest at the contractual rate is only the exception and not the rule. Review of
judgment on this ground must be allowed.40 General rule is that interest should be allowed
at the contractual rate. If the trial court has refused to allow future interest at the
contractual rate and an application is made for review, refusal to review the judgment
cannot be sustained.41

In a Bombay case, the court was concerned with a situation in which the transaction was
admittedly not a commercial one. Nevertheless, the circumstances were such that in the
interest of justice, a high rate of interest was considered prima facie desirable. The decree
was for Rs. 16,200 and the amount was in the nature of a claim against the railway
administration. In the circumstances of the case, a rate of 15 per cent per annum as interest
was just and proper, for the period from the date of the suit till the date of the decree. The
court took note of the fact that the stand taken by the railway administration was
unbecoming. Besides this, the amount actually awarded to the plaintiff did not amount to
even half the amount of the real claim at the present rupee value. It was for this reason
that the rate of 15 per cent per annum from the date of suit up to the date of decree was
considered proper.42

In the absence of rate of interest specified in the decree, the executing court is not
empowered to award interest at 12 per cent.43

A commercial loan was advanced by bank. The loanee was to pay interest from the date of
loan till the date of payment in full with quarterly rest. Interest accrued and added to
principal amount on date of suit is principal amount for purposes of the interest and not
the amount of loan originally advanced.44

38 . Subs. for with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged by CPC (Amendment) Act,
66 of 1956, s 2.
39 . Ins. by CPC (Amendment) Act 104 of 1976, s 13 (w.e.f. 1-7-1977).
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40 . Subs. for on such agreegate sum as aforesaid by CPC (Amendment) Act 66 of 1956, s 2.
41 . Shri Bharat Laxmi Wool Store Panipat v. Punjab National Bank, (1992) 1 SCC 204.
42 . Madan Mohan v. HPMC, AIR 2006 HP 105 [LNIND 2006 HP 19]. See also Charu Bhatnagar v. HPMC, AIR 2006 HP 119 [LNIND
2006 HP 18].
43 . State of Bihar v. Mijaj International, AIR 2004 Jhar 29 [LNIND 2003 JHAR 89].
44 . Union Bank of India v. Chhatarpur Siliment Sales Corpn., AIR 2002 MP 145 [LNIND 2002 MP 579].
45 . Alok Shanker Pandey v. Union of India, AIR 2007 SC 1198 [LNIND 2007 SC 166]: (2007) 3 SCC 545 [LNIND 2007 SC 166].
46 . Rakesh Kumar Jain v. State of U.P., AIR 2007 SC 917 [LNIND 2007 SC 18]: (2007) 2 SCC 461 [LNIND 2007 SC 18].
47 . O. Sreenivasulu v. P. Santhi, AIR 2007 AP 115 [LNIND 2006 AP 1294]: (2007) 2 ALD 175 [LNIND 2006 AP 1294] : (2007) 2 ALT 673.
48 . Amol Kishore Mule v. Vishwanath Rajaram Shahande, AIR 2007 Bom 55 [LNIND 2006 AUG 123]: 2006 (6) All MR 254 (Aurangabad
Bench).
49 . Bhagwant Genuji v. Gangabisan Ramgopal, (1940) 42 Bom LR 750, AIR 1940 Bom 369.
50 . See notes below, under the head, Interests in suit for enforcement of mortgage.
51 . Dwarkanath v. Debendra, (1906) ILR 33 Cal 1232.
52 . N. Bhaironbut & Co. v. Kashi Ram, AIR 1973 Raj 271.
53 . Government of Andhra Pradesh v. Gammon India Ltd. Bombay, AIR 1984 Andh Pra 230.
54 . Siya Ram v. Lilawati, (1990) ILR All 75.
55 . KSEB v. Karthiyayani, AIR 2007 Ker 102 [LNIND 2006 KER 750]: 2006 (4) Ker LT 1006 [LNIND 2006 KER 750] (DB).
56 . Managing Director, J&K Handicrafts v. Goodluck Carpets, AIR 1990 SC 864.
57 . Andard Mount (London) Ltd. v. Creswell (India) Ltd., AIR 1985 Del 45 [LNIND 1983 DEL 239].
58 . Vijaya Bank v. S. Bhathija, AIR 1994 Kant 123 [LNIND 1993 KANT 96]; State Bank of India v. Ghulam Nabi, AIR 1998 J&K 46.
59 . South Eastern Coal Field Ltd. v. Subhash Kumar Gupta, (1994) Supp 3 SCC 334.
60 . Canara Bank v. Millan Medicals, AIR 1996 Kant 24 [LNIND 1995 KANT 25].
61 . Punjab National Bank v. Surinder Singh Mandyal, AIR 1996 HP 1 [LNIND 1994 HP 33].
62 . Associated Cement Co. Ltd. v. Union of India, AIR 1997 HP 1 [LNIND 1996 HP 12] (DB).
63 . Aditya Mass Communications Pvt. Ltd. v. A.P. State Road Transport Corpn., Hyderabad, AIR 1998 Andh Pra 125.
64 . Kolli Venkatta Apparao v. State Bank of India, AIR 1998 Andh Pra 2.
65 . Jhabarmal v. Rajasthan Housing Board, AIR 1998 Raj 254.
66 . Jagdish Chand Trikha v. Punjab National Bank, AIR 1998 Del 266 [LNIND 1997 DEL 872].
67 . Meenakashi Pharma Distributors v. State of Karnataka, AIR 1999 Kant 192 [LNIND 1998 KANT 90].
68 . LML Ltd., Kanpur v. State of Uttar Pradesh, AIR 2001 All 321 [LNIND 2001 ALL 386] (DB); See also Raj Kumar Dey v. Tara Pade Dey,
AIR 1987 SC 2195 [LNIND 1987 SC 647]; Sohan Lal & Co. v. Lt. Governor, AIR 1991 SC 1592; Gursharan Singh v. MIDC, AIR 1996 SC
1175 [LNIND 1996 SC 258].
69 . Punjab National Bank v. Surinder Singh Mandyal, AIR 1996 HP 1 [LNIND 1994 HP 33].
70 . Syndicate Bank v. West Bengal Cement Ltd., AIR 1989 Del 107 [LNIND 1988 DEL 310].
71 . Indian Bank v. Kamalaya Cloth Store, AIR 1991 Ori 44 [LNIND 1990 ORI 188].
72 . Central Bank of India v. Ravindra, AIR 2001 SC 3095.
73 . K.C. Pradhan v. Arun Kumar Dutta, AIR 2008 Ori 109 [LNIND 2007 ORI 37]: 2007 (Supp) OLR 641.
74 . Ibid.
75 . Ibid.
76 . Central Bank of India v. Ravindra, AIR 2001 SC 3095.
77 . Sanyukt Nirmata v. Delhi Development Authority, AIR 2003 Del 68 [LNIND 2002 DEL 1528].
78 . Union Bank of India v. Chhatarpur Siliment Sales Corpn., AIR 2002 MP 145 [LNIND 2002 MP 579].
79 . Citibank NA v. Standard Chartered Bank, AIR 2005 SC 94 [LNIND 2004 SC 1097].
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80 . United India Insurance Co. Ltd. v. Patricia Jean Mahajan, AIR 2002 SC 2604: AIR 2002 SCW 2920.
81 . Syndicate Bank v. R. Veeranna, AIR 2003 SC 2122 [LNIND 2002 SC 841], p. 2123.
82 . Dura-Line India Pvt. Ltd. v. BPL Broadband Network Pvt. Ltd., AIR 2004 Del 186 [LNIND 2003 DEL 1189].
83 . C. Madhu v. BVS Murthy, AIR 2003 Kant 113 [LNIND 2002 KANT 450].
84 . Union of India v. Prince Muffakam Jah, (1995) Supp 1 686.
85 . Managing Director, Karnataka Power Corpn. Ltd. v. Geetha, AIR 1989 Kant 104 [LNIND 1986 KANT 207] (DB).
86 . Chilamkuri Gowisankar Rao v. Bhrugumalla Venkatappaya Sons and Co., AIR 1973 A.P. 310(DB).
87 . BR & Sons v. CPVK Chetty & Co., AIR 1962 Mad 310. See also RC Datta v. Rajiv Anand, AIR 2003 Del 199 [LNIND 2002 DEL 1588];
Union of India v. Parasuram, AIR 2003 Kant 333 [LNIND 2003 KANT 207].
88 . Crewdson v. Ganesh, (1920) 32 Cal LJ 239, p. 253; Joseph v. Union of India, AIR 1957 Ker 3 [LNIND 1956 KER 127].
89 . Basant Kumar Misra v. Roshanalal Shrivastava, (1954) ILR Nag 435 : AIR 1954 Nag 300.
90 . APSRT C. v. B. Vijaya, AIR 2002 A.P. 441 [LNIND 2002 AP 863] (FB).
91 . New India Assurance Ltd. v. Chinar Goods Carrier, AIR 1998 Del 392.
92 . Ravi Fabrics v. Shaherbon Traders, AIR 2003 Mad 192 [LNIND 2003 MAD 10].
93 . State of India v. B. Gupta (Tea) Ltd., AIR 1987 Cal 64 [LNIND 1985 CAL 147] (DB); Bank of Baroda v. Shri Subhash Chander Dutta, AIR
1995 J&K 99.
94 . Oriental Coal Co. Ltd. v. Mohanlal Kishanlal, AIR 1984 Bom 174(DB).
95 . Union Bank of India, Bhavnagar v. Narendra Plastics, AIR 1991 Guj 67(DB).
96 . K. Pushpangadan v. Federal Bank Ltd., AIR 1999 Ker 421 [LNIND 1999 KER 218] (DB).
1 . H.P. State Industrial Dev. Corpn. Ltd., Shimla v. Gobind Pharm. Chem. Pvt. Ltd., AIR 2007 HP 3: 2006 (2) Shim LC 300.
2 . Rayalamma v. Butchirammya, (1942) ILR Mad 464 : AIR 1942 Mad 429; Doolubdas v. Ramalall, (1850) 5 MIA 109, p. 136 (Bombay);
Juggomohun v. Manichand, (1859) 7 MIA 263 (Cal); Juggomohun v. Kaisreechand, (1862) 9 MIA 260 (Cal); BN Railway Co. Ltd. v. Ruttanji, (1938)
65 IA 66 : (1938) ILR 2 Cal 72 : AIR 1938 PC 67 [LNIND 1937 PC 91].
3 . Hirabai Gendalal v. Bhagirath Ramchandra & Co., (1945) ILR Bom 819 : AIR 1946 Bom 174: 47 BLR 808; Mahamad Abdul Hasim v. Srimat
Jagatram, (1941) ILR All 777 : AIR 1942 All 96; Dinanath v. Divanchand, (1930) 32 Bom LR 404 : AIR 1930 Bom 444.
4 . Dinshaw and Dinshaw (M/s) v. Indoswe Engineers Pvt. Ltd., AIR 1995 Bom 180 [LNIND 1994 BOM 713].
5 . Union of India v. Watkins Mayor & Co., AIR 1966 SC 275.
6 . State v. Ajit Kumar, 81 Cal WN 36 : AIR 1977 Cal 273 [LNIND 1976 CAL 162].
7 . This does not apply to an executing Court; Hogarth Shipping Co. Ltd. v. Mitsui Bussan Kaisha Ltd., (1926) 53 Cal. 735, (26) A.C. 1119;
Vithal Dass v. Rupchand, (1966) Supp. S.C.R. 164, 1967 S.C. 188; Deonandan v. Ramdayal, 1971 AP 102; Mahavir Prasad v. Durga Datt, (1961)
3 SC 639, 1961 SC 990.
8 . Bajranglal v. Anandilal Ram Chandra, (1944) Nag. 101 : (44) AN 124.
9 . (1893) AC 429.
10 . Raja Kamakshya Narain Singh v. Bhurmull, (46) AP 154. Section 65 IA 66,supra; Maine and New Brunswick & Co. v. Hart, (1929) A.C. 631
relied on.
11 . State v. New India Sugar Mills, 1977 AP 95.
12 . Joseph v. Union of India, (1957) A Ker 3; Hindustan Commercial Bank v. Jagtar Singh, 1974 AP&H. 208.
13 . C.T. Xavier v. P.V. Joseph, AIR 1995 Ker 140(DB).
14 . Union of India v. Laxmi Pati, AIR 1995 MP 90 [LNIND 1994 MP 204] (DB).
15 . Prasant Kumar Choudhury v. Union of India, AIR 2007 Ori 33 [LNIND 2006 ORI 74]: 2008 ACJ 685.
16 . (1953) SCR 789 [LNIND 1953 SC 36] : AIR 1953 SC 235 [LNIND 1953 SC 36]: (1953) SCJ 345 [LNIND 1953 SC 36].
17 . Mahavir Prasad v. Durga Dutto, [1961] 3 SCR 639 [LNIND 1961 SC 36] : AIR 1961 SC 990 [LNIND 1961 SC 36]: (1961) 1 SCJ 569;
Union of India v. Khandelwal Bros, AIR 1975 Mad 389 [LNIND 1974 MAD 332]; V.A. Thevar v. Madurai Municipality, (1975) 1 Mad LJ 97 :
AIR 1975 Mad 77 [LNIND 1974 MAD 200].
18 . Raneagunj Coal Association Ltd. v. Union of India, AIR 1990 SC 1879.
19 . Jai Narain v. Bisewar Prasad, AIR 1954 Pat 304.
 Page 40 of 45
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20 . Union of India v. M. Thankaraj, AIR 2000 Ker 91(DB).

21 . AIR 2007 (Digest of Cases) 6 (Ker) : 2006 (3) Bankers Journal 212, Thankachan v. Catholic Syrian Bank Ltd.
22 . Union of India v. Konduru Venkata Reddy, AIR 2008 AP 211 [LNIND 2008 AP 190]: 2008 (5) Andh LT 172 [LNIND 2008 AP 190].
23 . Mainura Bibi v. Union of India, AIR 2009 Cal 214 [LNIND 2009 CAL 340]: 2009 (81) All Ind case 606 (DB).
24 . Rathi Menon v. Union of India, AIR 2001 SC 1333 [LNIND 2001 SC 664]: 2001 (3) SCC 714 [LNIND 2001 SC 664].
25 . N. Parmeswaran Pillai v. Union of India, AIR 2002 SC 1834 [LNIND 2002 SC 283]: (2002) 4 SCC 306 [LNIND 2002 SC 283].
26 . Wiollmot v. Gardner, [1901] 2 Ch 548; Re Dunchan [1905] 1 Ch 307.
27 . 65 IA 66 : (1938) 2 Cal 73 : 42 Cal WN 985.
28 . (1961) 3 SCR 639 [LNIND 1961 SC 36] : AIR 1961 SC 990 [LNIND 1961 SC 36]: (1961) 1 SCJ 569; Suganchand v. Balchand, AIR 1952
Pat 489; Union of India v. Khetra Mohan, AIR 1960 Cal 190 [LNIND 1959 CAL 110]; Rajendra Prasad v. Gaya Prasad, AIR 1975 Pat 312.
29 . Mattancheri Municipality v. Saheed Oil Mills, (1957) ILR Ker 368.
30 . Laxmichand v. Indore Improvement Trust, (1975) 1 SCC 565 [LNIND 1975 SC 80] : AIR 1975 SC 1303 [LNIND 1975 SC 80].
31 . P. Ram Reddy v. State of Andhra Pradesh, AIR 1990 Andh Pra 76.
32 . Premjit Theatres, Secunderabad v. Rashi Mehata & Co., AIR 1990 AP 272 [LNIND 1989 AP 214] (DB).
33 . Kusa Lingaiah v. Pandiri Laxmaiah, AIR 2006 AP 121 [LNIND 2005 AP 1035]: 2006 (2) Andh LT 228 [LNIND 2005 AP 1035].
34 . J.H. Pattinson v. Bindhya Debi, (1933) ILR 12 Pat 2161; Union of India v. WP Factories, [1966] 1 SCR 580 [LNIND 1965 SC 447], AIR 1966
SC 394; Shamlal v. State, (1967) ILR 2 All 129 : AIR 1968 All 139 [LNIND 1966 ALL 63]; Mangalji v. State, AIR 1971 Raj 167; ST
Thimniappa v. SL Prasad, AIR 1978 Kant 251.
35 . Hakim Rai v. Ganga Ram, AIR 1942 PC 61: (1942) 47 Cal WN 113; Gajadhar Marwari v. Baidynath Mundal, (1950) 29 Pat 545 : AIR 1950
Pat 379 l; Anandram Mangturam v. Bholaram Taunmal, AIR 1946 Bom 1: 47 Bom LR 719; Panna Lal v. Nihal Chand, (1922) 26 Cal WN 737 :
AIR 1922 PC 46(PC); Binapani v. Rabindranath, AIR 1959 Cal 213 [LNIND 1958 CAL 199].
36 . Magniram v. Dhowat Roy, (1886) ILR 12 Cal 569; Carvalho v. Nurbibi, (1879) ILR 3 Bom 202; Umes Chaunder v. Fatima, (1891) ILR 18 Cal
164 : 17 IA 201. The decision to the contrary in Ramachandra v. Devu, (1889) ILR 12 Mad 485, is no longer law.
37 . Orde v. Skinner, (1880) ILR 3 All 91, pp 106-07 : 7 IA 196; Bhagwanti v. Atma Singh, AIR 1934 Lah 32.
38 . Utsav Lal Gupta v. Mohan Bross, AIR 1975 Raj 236 [LNIND 1975 RAJ 40].
39 . M.V. Mahalinga Aiyar v. Union Bank Ltd., Kumbakonam, AIR 1930 Mad 216 [LNIND 1929 MAD 246]; Kaluram v. Chimniram, (1934) 16
Bom LR 68 : AIR 1934 Bom 86.
40 . Yadaorao Ganpatro Kadu v. Ramrao Balashabe Dhote, (1943) ILR Nag 555 : AIR 1943 Nag 240; Rup Ram v. Harphu, (1921) 2 Lah 256 : AIR
1921 Lah 125; Lala Chhajmal Das v. Brijbhukan Lal, 22 IA 199; Chatrabhuj v. Ambar Singh, (1931) ILR 55 Bom 657 : AIR 1931 Bom 549;
Parashram v. Secretary of State, (1932) 34 Bom LR 129 : AIR 1932 Bom 319.
41 . Framji v. Commr of Customs, (1870) 7 Bom HCR 89; Rutnessur v. Hurrish Chunder, (1885) ILR 11 Cal 221, p. 225; Dominion of India v. Raj
Bahadur Seth Bikhraj, AIR 1957 Pat 586; Hiranandani v. BB&D Mfg. Co., AIR 1969 Bom 373 [LNIND 1968 BOM 100]; Gujarat Electricity
Board v. SA Jais & Co., AIR 1972 Guj 192 [LNIND 1971 GUJ 102]; Mangalji v. State, AIR 1971 Raj 167; Vishnu Sugar Mills v. Rameshwar
Jute Mills, AIR 1970 Pat 323.
42 . Pannalal v. Mukhram, (1924) 39 Cal LJ 77, pp. 8485 : AIR 1924 Cal 637; Ramalinga v. Gokuldas, (1926) 51 Mad LJ 243 : AIR 1926 Mad
1021 [LNIND 1925 MAD 342].
43 . Crewdson v. Ganesh, (1920) 32 Cal LJ 239.
44 . Sourendra Mohan v. Hari Prasad, (1926) ILR 5 Pat 13 : 52 IA 418 : AIR 1925 PC 280.
45 . Himachal Pradesh Financial Corpn., Simla v. Tourist Hotel and Restaurant, AIR 1990 HP 27 [LNIND 1989 HP 22] (FB).
46 . United Commercial Bank, Silchar v. Satish Chandra Ghosh, AIR 1991 Gau 19.
47 . Punjab National Bank v. Vidya Hatchery, AIR 1999 HP 24 [LNIND 1998 HP 30] (D.B.); State Bank of India v. Umanath Ganpat Nadkarni,
AIR 2000 Bom 51 [LNIND 1999 BOM 347].
48 . Motilal Banarsi Dass v. Delhi Automobiles Private Ltd., AIR 1989 SC 1496 [LNIND 1989 SC 255].
49 . India Cements Ltd. v. Collector of Central Excise, AIR 1989 SC 1496 [LNIND 1989 SC 255].
50 . Union Bank of India v. P. Krishnaiah, AIR 1989 AP 211 [LNIND 1988 AP 52].
51 . H. Paramsivam v. FCI, AIR 1989 AP 124 [LNIND 1988 AP 73].
52 . Jagbir Singh v. General Manager, Punjab Roadways, AIR 1987 SC 70 [LNIND 1986 SC 398]; State v. Ashadevi, AIR 1989 AP 97.
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53 . Kalyanpur Coal Storage v. Sohanlal Bajpai, AIR 1990 All 218 [LNIND 1990 ALL 79] (D.B.); Bank of India v. Harish Chandra Srivastava, AIR
1998 MP 243 [LNIND 1997 MP 151] (DB).
54 . Satish Solvent Extractions Pvt. Ltd. v. New India Assurance Co. Ltd., AIR 1996 Bom 293 [LNIND 1996 BOM 12] (DB).
55 . Kalyanpur Coal Storage v. Sohanlal Bajpai, AIR 1990 All 218 [LNIND 1990 ALL 79] (DB).
56 . Chinubahai Nanalal v. Addl. Special Land Acquisition Officer, AIR 1989 Guj 123.
57 . P. Janikamma v. Bulleyya, AIR 1985 AP 234 [LNIND 1984 AP 220].
58 . United Bank of India v. Rashayan Udyog, AIR 1990 Cal 146 [LNIND 1989 CAL 146].
59 . Syndicate Bank v. N.C. Kalyani Raghavan, AIR 1983 Mad 254 [LNIND 1982 MAD 246].
60 . West Bengal Financial Corpn. v. Bertram Scott (Ltd.), AIR 1983 Cal 381 [LNIND 1982 CAL 260]; State Bank of India v. B. Gupta (Tea) Ltd.,
AIR 1987 Cal 64 [LNIND 1985 CAL 147] (DB).
61 . State Bank of India v. B. Gupta (Tea) Ltd., AIR 1987 Cal 64 [LNIND 1985 CAL 147] (DB).
62 . K. Appa Rao v. V.L. Varadaraj, AIR 1981 Mad 94 [LNIND 1980 MAD 249].
63 . West Bengal Financial Corpn. v. Bertram Scott (L) Ltd., AIR 1983 Cal 387(DB).
64 . LIC of India v. Kumar Purnandu Nath, AIR 1988 Cal 311 [LNIND 1987 CAL 206].
65 . Umesh Chunder v. Fatima, (1891) ILR 18 Cal 164, 180 : 17 IA 201.
66 . Rajni Kumar v. Suresh Kumar Malhotra, AIR 2003 SC 1322 [LNIND 2003 SC 362].
67 . Bulaki v. Pesricha, AIR 1928 Lah 811.
68 . Rani Lalun v. Behari, (1871) 7 BLR App 30; LIC v. NC Borl, AIR 1974 Cal 339 [LNIND 1974 CAL 19].
69 . Gordhandas v. V. Khetsi, AIR 1967 Guj 276 [LNIND 1966 GUJ 22].
70 . Ambi v. Sridevi, (1923) 45 Mad LJ 687 : AIR 1924 Mad 102 [LNIND 1923 MAD 156] (decree silent as to interest on costs, see s 35(3));
State of Uttar Pradesh v. Reishma Devi, AIR 1974 All 257.
71 . Thirugnanavalli v. Venugopala, AIR 1940 Mad 29 [LNIND 1939 MAD 204].
72 . Union of India v. A. Venkataiah, AIR 1975 Mad 29 [LNIND 1974 MAD 120].
73 . Jagdamba Rice Mills v. Oriental Bank of Commerce Karnal, AIR 1990 P&H 60; PNB v. Vidya Hatchery, AIR 1999 HP 24 [LNIND 1998 HP
30] (DB).
74 . State of Punjab v. Krishna Dayal Sharma, AIR 1990 SC 2177; Mehar Chand v. Tulsi Ram, AIR 1996 P&H 195.
75 . Syndicate Bank v. West Bengal Cement Ltd., AIR 1989 Del 107 [LNIND 1988 DEL 310].
76 . United Bank of India v. Rasayan Udyog, AIR 1990 Cal 146 [LNIND 1989 CAL 146] (DB).
77 . Taria v. Amar Singh, AIR 1991 P&H 187.
78 . Union of India v. Parasuram, AIR 2003 Kant 333 [LNIND 2003 KANT 207].
79 . R. Shahi v. Bala Prasad Motani, AIR 1978 Pat 91.
80 . Seth Gokul Das v. Murli and Zalim, (1878) 3 Cal. 602, 5 I.A. 78.
81 . Khetra Mohan v. Nishi Kumar, (1918) 22 C.W.N. 488; Naresh v. Krishna, (1926) 53 Cal. 42 : (26) A.C. 505; Kumar Chandra v. Narendra Nath,
(1930) 57 Cal. 953 : (30) A.C. 357.
82 . Canara Bank v. Chikkaswamy, AIR 2002 Kant 100 [LNIND 2001 KANT 522] (DB).
83 . Jagannath v. Surajmal, 54 IA 1 : AIR 1927 PC 1; Chhote Lal v. Raja Mohammad, (1933) ILR 8 Luck 315 : AIR 1933 Oudh 128; K.V.
Satyanarayana v. State Bank, AIR 1975 AP 113 [LNIND 1973 AP 117]; N.M. Veerappa v. Canara Bank, (1998) 2 SCC 317 [LNIND 1998
SC 109].
84 . Firm Daulat Ram Vaidya Prakash v. Sodhi Gurbaksh Singh, AIR 1949 EP 213; Narasimhamurthy v. Jagannaikulu, AIR 1959 AP 619 [LNIND
1959 AP 114].
85 . Nasiyanur Co-operative Housing Society Ltd. v. V. Kolandayammal, AIR 2010 Mad 104 [LNIND 2009 MAD 4635]: 2010 (1) Mad LJ 295.
86 . Nilmani v. Baidyanath, AIR 1957 Cal 140.
87 . Executive Engineer (Irrigation) Galimela v. Abhadula Jena, (1988) 1 SCC 418 [LNIND 1987 SC 665]; Everest Industrial Corpn. v. Gujarat State
Financial Corp., (1987) 3 SCC 597 [LNIND 1987 SC 510]; Nand Lal Bijariya v. United Commercial Bank, 2007 (4) Civil Court Cases 354
(Raj.).
88 . Raman Chettair v. Raman Chettair, (1957) ILR Mad 75 : (1957) 2 MLJ 103 : AIR 1957 Mad 680 [LNIND 1957 MAD 34]: 70 LW 634.
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89 . State Bank of Mysore v. G.P. Thulasi Bai, ILR 1985 Kar 2976; See also Canara Bank v. Chikkaswamy, AIR 2002 Kant 100 [LNIND 2001
KANT 522] (DB).
90 . Yogesh Kant Bhageria v. Deepak Jain, AIR 2000 Del 42 [LNIND 1996 BOM 12] (DB).
91 . State of Bihar v. Mijaj International, AIR 2004 Jhar 29 [LNIND 2003 JHAR 89].
92 . Ram Barai Singh v. State of Bihar, 2007 (1) Pat LJR 249 [LNIND 2006 SC 1133].
93 . Union of India v. Ambica Construction, 2007 (3) Cal LT 587.
1 . Union of India v. Ashokbhai Gobindbhai Patni, AIR 2009 Guj 149.
2 . Jagdish Rai & Brothers v. Union of India, AIR 1999 SC 1258 [LNIND 1999 SC 278]: (1999) 3 SCC 257 [LNIND 1999 SC 278]; Hindustan
Construction Co. Ltd. v. State of Jammu & Kashmir, AIR 1992 SC 2192: (1992) 4 SCC 217.
3 . Tahazhathe Purayil Sarabi v. Union of India, JT 2009 (8) 515: AIR 2009 SC 3098 [LNIND 2009 SC 2968]: (2009) 7 SCC 372 [LNIND
2009 SC 2968].
4 . Smt. S. Devamma v. Union of India, AIR 2009 Kar 96: 2009 (2) Kant LJ 683 [LNIND 2008 KANT 642].
5 . Union of India v. Smt. Brigeet Chacko, AIR 2007 Ker 268 [LNIND 2007 KER 374]: 2008 ACJ 348 (DB), Koshy, J. (as he then was)
speaking for the Bench.
6 . Union of India v. Smt. Nalini Parida, AIR 2009 Orissa 56; Union of India v. Trilochan Nayak, AIR 2009 Orissa 91: 2008 (2) Orissa LR 615.
(Held, that right of compensation under s 124 of Railways Act, 1989 being a statutory right, Tribunal can grant interest on compensation
amount even from date of application.)
7 . Charan Singh v. Birla Textiles, (1988) 4 SCC 212 [LNIND 1988 SC 615].
8 . Sovintorg (India) Ltd. v. State Bank of India, (1999) 4 LRI 259.
9 . Ghaziabad Development Authority v. Balbir Singh, AIR 2004 SC 2141.
10 . AIR 2004 SC 2141.
11 . Haryana Urban Development Authority v. Rekha Sharma, AIR 2004 SC 4143 [LNIND 2004 SC 766]. See Also Haryana Urban Development
Authority v. R.S. Banga, AIR 2004 SC 4429 [LNIND 2004 SC 767]; G.S. Sharma v. HUDA, AIR 2003 P&H 128 (DB); Seven Seas
Educational Soc v. HUDA, AIR 2002 P&H 83.
12 . Union Bank of India, Bhavnagar v. Narendra Plastics, AIR 1991 Guj 67(DB).
13 . APSRTC v. B. Vijaya, AIR 2002 AP 441 [LNIND 2002 AP 863] (FB).
14 . Union Bank of India, Bhavnagar v. Narendra Plastics, AIR 1991 Guj 67.
15 . Ibid.
16 . Ali Saheb v. Shabji, (1897) ILR 21 Bom 85.
17 . Karamchand v. Balchand, (1908) 2 SLR 10.
18 . Bapurao v. Anant Kashinath, AIR 1946 Nag 210: (1946) ILR Nag 407; Ramchandra v. Radha, (1914) 10 NLR 91.
19 . Nobin Chunder v. Romes Chunder, (1887) ILR 14 Cal 781.
20 . Het Narain v. Ramdeni, (1883) 12 CLR 590.
21 . Annaji v. Raghubhai, (1871) 6 Mad HCR 400.
22 . Dhondshet v. Ravji, (1898) ILR 22 Bom 86; Re Hari Lall Mullick, (1906) ILR 33 Cal 1269; Nagin Singh v. Gagan Nath, AIR 1944 Lah 422;
Ishwar Nath v. Surrender Singh, AIR 1969 Del 289.
23 . Hiralal v. Narsilal, 40 IA 68 : 37 Bom 326 (PC)(no interest given); Achyut v. Ramchandra, AIR 1925 Bom 362: (1925) 27 Bom LR 492
(interest allowed at six percent only), both these were suits for redemption.
24 . Modhwa v. Venkata, (1903) ILR 26 Mad 662.
25 . Jeewanbai v. Manorada, (1911) ILR 35 Bom 199.
26 . Kunja Lal v. Narsamba, (1915) ILR 42 Cal 826.
27 . 63 IA 114 : 15 Pat 210 : 40 Cal WN 329.
28 . Sundarabai v. Jayavant, (1990) ILR 24 Bom 114.
29 . Mukesh Gupta v. SICOM Ltd., Mumbai, AIR 2004 Bom 104 [LNIND 2003 BOM 418] (DB).
30 . Computeronix Bihar Pvt. Ltd. v. Bihar State Madarsa Education Board, AIR 2007 Pat 75: 2007 (1) Pat LJR 183.
31 . Punjab & Sind Bank v. Ramji Dass Khanna, AIR 2002 Del 305 [LNIND 2002 DEL 284] (DB). State of Maharashtra v. Mishrilal Tarachand
Lodha, AIR 1964 SC 457 [LNIND 1963 SC 255].
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32 . Narendrabhai S. Joshi v. Post Master General, Gujarat Circle, AIR 2002 Guj 180 [LNIND 2001 GUJ 686].
33 . Union Govt. of India v. Rajmohan, AIR 2001 Mad 172 [LNIND 2001 MAD 107].
34 . ASJS Rice Mills Owners v. State of Punjab, AIR 2004 P&H 320 (DB).
35 . Mahanadi Multipurpose Industries v. State of Orissa, AIR 2002 Ori 150 [LNIND 2002 ORI 24] (DB).
36 . State of Bihar v. Shakti Tubes Ltd., AIR 2006 Pat 177: (2006) 1 BLJR 700.
37 . Assam Small Scale Ind. Dev. Corporation Ltd. v. J.D. Pharmaceuticals, AIR 2006 SC 131 [LNIND 2005 SC 806]: (2005) 13 SCC 19 [LNIND
2005 SC 806] (S.B. Sinha, J., speaking for the Bench).
38 . State Bank of India v. Mula Sahakari Sakhar Karkhana Ltd., AIR 2007 SC 2361 [LNIND 2006 SC 478]: (2006) 6 SCC 293 [LNIND 2006
SC 478].
39 . Standard Chartered Bank v. Pure Drinks Ltd., AIR 2007 Del 93 [LNIND 2006 DEL 2166]: 2006 (135) DLT 651 [LNIND 2006 DEL
2166] (DB).
40 . AIR 1992 SC 732 [LNIND 1991 SC 689]: (1992) 1 SCC 508 [LNIND 1991 SC 689].
41 . Ibid, at p. 97. (Mudgal, J., speaking for the Bench).
42 . Shah Chunni Lal Shanti Lal Jain v. Gopal Industries, 2007 (4) Civil CC 327 (Raj) : 2007 (3) Raj LW 2238.
43 . State of Karnataka v. Gopal Ramachandra Nagagauda, AIR 2010 SC 1438 [LNIND 2010 SC 4]: (2010) 2 SCC 327 [LNIND 2010 SC 4].
44 . Bhilai Wires Ltd. v. Bharat Sanchar Nigam Ltd., AIR 2010 Cal 172 [LNIND 2010 CAL 167]: (2011) 1 Arb LR 74 (DB).
45 . Sat Pradash v. Bodh Raj, AIR 1958 Punj 111; RA Patil v. Janaki Bai, AIR 1959 Bom 468 [LNIND 1957 BOM 106]; differing from
Dwarka Prasad v. Kathleen Florence Burns, AIR 1955 Nag 38: (1955) ILR Nag 538.
46 . Joseph v. Union of India, AIR 1957 Ker 3 [LNIND 1956 KER 127].
47 . Suleman v. Abdul Latif, (1930) 57 IA 245 : 58 Cal 208 : 59 Mad LJ 121 (PC); Lala Hakm Rai v. Lala Ganga Ram, (1943) 1 Mad LJ 16;
Thulsi Ammal v. Ramachandra Naidu, AIR 1955 Mad 171 [LNIND 1954 MAD 206]; Mohanasundaram v. Neelambal, AIR 1955 Mad 442
[LNIND 1954 MAD 233]: (1955) ILR Mad 1191; Jubedabi v. Jainabi, AIR 1975 Kant 7 [LNIND 1974 KANT 157]: (1974) Kant 1473.
48 . Chinubhai Nanalal v. Addl. Special Land Acquisition Officer, AIR 1989 Guj 122(DB).
49 . Kaluram v. Chimniram, (1934) 36 Bom LR 68 (78) : AIR 1934 Bom 86.
50 . HP Fruit Growers Co-op. Mark Processing Society Ltd. v. Himachal Pradesh Housing Board, AIR 1996 HP 94 [LNIND 1994 HP 69].
51 . ONGC Ltd. v. Assn of Natural Gas Consuming Industries, AIR 2004 SC 2327 [LNIND 2004 SC 463].
52 . State Bank of India, Deoria v. Firm Jamuna Prasad & Sons, 2008 (6) ALJ 697.
53 . State of Haryana v. S.L. Arora & Co., AIR 2010 SC 1511 [LNINDORD 2010 SC 187]: (2010) 3 SCC 690 [LNINDORD 2010 SC 187].
54 . Ibid, at page 1516.
55 . Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644 : AIR 1994 SC 860.
56 . AIR 2001 SC 3095: 2002 (1) SCC 367.
57 . Tezalpatty Tea Pvt. Ltd. v. Eastern Tea Brokers Ltd., AIR 2008 (NOC) 2865(GauDB).
58 . State of Bihar v. Mijaj International, AIR 2004 Jhar 29 [LNIND 2003 JHAR 89].
59 . Narayan Dossjee v. Board of Trustees, AIR 1959 A.P. 64 [LNIND 1957 AP 46]: (1958) 1 Andh WR 427; Mahant Narayana Dasjee v. Board of
Trustees, Tirupathi Devasthanam, AIR 1965 SC 1231.
60 . Ouseph Ouseph v. Thomman, AIR 1954 TC 473.
61 . R.V. Madhvani v. T.P. Madhvani, AIR 2004 SC 1084.
62 . Kishan Lal Kalra v. NDMC, AIR 2001 Del 402 [LNIND 2001 DEL 489]; Mahabir Prasad Rungta v. Durga Datta, AIR 1961 SC 990
[LNIND 1961 SC 36]; Mahant Narayana Dasjee Varu v. Board of Trustees, The Tirumalai Tirupathi Devasthanam, AIR 1965 SC 1231; Bhagwant
Genuji v. Gangabisan Ramgopal, AIR 1940 Bom 369; Y.P. Ganesan v. The Tamil Nadu Civil Supplies Corpn. Ltd., Salem, AIR 2006 Mad 4
[LNIND 2005 MAD 1247]: (2006) 1 CTC 277 [LNIND 2005 MAD 1247].
63 . United Bank of India v. P. Krishnaiah, AIR 1989 AP 211 [LNIND 1988 AP 52] (K. Ramaswamy J.).
64 . Ibid.
65 . AIR 1975 Raj 236 [LNIND 1975 RAJ 40].
66 . AIR 1973 Raj 316.
67 . Canara Bank, New Delhi v. Sanjeev Enterprises, AIR 1988 Del 372 [LNIND 1988 DEL 94].
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68 . Executive Engineer (Irrigation) Balimela v. Abhadula Jaina, (1988) 1 SCC 418 [LNIND 1987 SC 665]; SK Samanta & Co. v. Central Coalfields
Ltd., AIR 2000 Pat 36.
69 . Hindustan Construction Co. Ltd. v. State of Jammu & Kashmir, (1992) 4 SCC 217.
70 . Executive Engineer, DMI, Divn., Orissa v. N.C. Budharaj, AIR 2001 SC 626 [LNIND 2001 SC 103].
71 . Saraswati Construction Co. v. Delhi Development Authority, AIR 2004 Del 412 [LNIND 2004 DEL 478].
72 . Ram Nath International Construction Pvt. Ltd. v. State of Uttar Pradesh, (1997) 11 SCC 645 [LNIND 1997 SC 1869].
73 . State of Jammu and Kashmir v. Dev Dutt Pandit, AIR 2000 Pat 36: (1999) 4 LRI 646.
74 . Bhagwati Oxygen Ltd. v. Hindustan Copper Ltd., (2005) 6 SCC 462 [LNIND 2005 SC 337] : AIR 2005 SC 2071 [LNIND 2005 SC 337].
75 . Manalal Prabhudayal v. Oriental Insurance Co. Ltd., AIR 2006 SC 3026 [LNIND 2006 SC 627]: 2006 Supp (4) SCR 666.
76 . Ibid, at p. 3028. (C.K. Thakker, J., speaking for the Bench).
77 . Re Secretary, Irrigation Department, Government of Orissa’s case (1992) 1 SCC 508 [LNIND 1991 SC 689].
78 . Executive Engineer v. Abdulla Jena, AIR 1988 SC 1530 [LNIND 1987 SC 819]; State of Orissa v. Construction India, AIR 1988 SC 1530
[LNIND 1987 SC 819].
79 . Union of India v. Swadeshi Karyalaya, AIR 1991 Del 53 [LNIND 1989 DEL 320] (D.P. Wadhwa J).
80 . Krishna Kumar Madhok v. Union of India, AIR 1982 Del 332 [LNIND 1982 DEL 45] (DB).
81 . BLGC (P) Ltd. v. Bharat Co-op. Group Hsg. Society Ltd., AIR 2004 SC 319 [LNIND 2003 SC 956].
82 . Gujarat WS&S Board v. MS Unique Electors (Guj) Pvt. Ltd., AIR 1988 Guj 233 [LNIND 1988 GUJ 88].
83 . Krishna Kumar Madhok v. Union of India, AIR 1982 Del 332 [LNIND 1982 DEL 45] (DB).
84 . Managing Director, J&K Handicrafts, Jammu v. Goodluck Carpet, AIR 1990 SC 864.
85 . Union of India v. Bungo Steel Furniture Pvt. Ltd., AIR 1967 SC 1032 [LNIND 1966 SC 183]; see also R.B. Somappa v. Mysore Co-op. Appellate
Tribunal, AIR 1973 Mys 37.
86 . Varkey v. Pacific Procon Ltd., AIR 1977 Ker 24 [LNIND 1976 KER 71]: (1976) ILR 2 Ker 168.
87 . Mahesh Chander Bansel v. Krishna Swaroop Singhal, (1997) 10 SCC 681.
1 . State of Orissa v. United Commercial Co., Engineers and Builders, AIR 1996 Ori 217 [LNIND 1996 ORI 158].
2 . Associated Construction and Engineering Co. v. Dhan Laxmiben, AIR 1997 Guj 39 [LNIND 1996 GUJ 213].
3 . Syndicate Bank v. WB Cements Ltd., AIR 1989 Del 107 [LNIND 1988 DEL 310].
4 . Union Bank of India v. K. Kumaranunni Nair, AIR 1991 Ker 118.
5 . Jain Mills and Electrical Stores v. State of Orissa, AIR 1991 Ori 117.
6 . K. Sambandam v. Srikati Co-op. Urban Bank, AIR 1983 Mad 36 [LNIND 1982 MAD 110].
7 . LIC v. O.P. Bhalla, AIR 1989 Pat 269.
8 . Nafees Ahamad v. Tehsildar/Magistrate, Tehsil Patiyale Heta, AIR 1998 All 78 [LNIND 1997 ALL 707] (DB).
9 . Meenakashi Pharma Distributors v. State of Karnataka, AIR 1999 Kant 192 [LNIND 1998 KANT 90].
10 . Aditya Mass Communications (P) Ltd. v. APSRTC, AIR 2003 SC 3411. See also Ajeet International v. HPHPM & P. Corpn. Ltd., AIR 2002
HP 159 [LNIND 2002 HP 67].
11 . Dwarika Prasad Bajaj v. State of Uttar Pradesh, AIR 2004 All 368.
12 . Shaw Wallace & Co. Ltd. v. Ghoom Investment Co. Pvt. Ltd., AIR 2004 Cal 126 [LNIND 2003 CAL 137] (DB).
13 . Minerals & Metals Trading Co. Ltd. v. Dimple Overseas Ltd., AIR 2001 Del 427 [LNIND 2001 DEL 760] (DB).
14 . C.S. Shyamala v. S.C. Srikantiah, AIR 1990 Kant 145 [LNIND 1989 KANT 37].
15 . Canara Bank v. K.S. Kushalapa, supra.
16 . Syndicate Bank v. West Bengal Cements Ltd., AIR 1989 Del 107 [LNIND 1988 DEL 310]; State Bank of Travancore v. K. Vinayachandran, AIR
1989 Ker 302.
17 . Chillakuru Chandrasekhakra Reddy v. Pamuru Vishnu Vinodh Reddy, AIR 1995 Andh Pra 49.
18 . Charu Bhatnagar v. H.P.M.C., AIR 2006 HP 119 [LNIND 2006 HP 18]: 2006 (1) Shim LC 465.
19 . Manesh Rajkumar Kanhed v. Ramesh Bhagwansa Walale, AIR 2007 Bom 86 [LNIND 2007 AUG 33]: 2007 (3) All MR 84 (Aurangabad
Bench).
 Page 45 of 45
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20 . Rakesh Kumar Dinesh Kumar v. U.G. Hotels and Resorts Ltd., AIR 2006 HP 135 [LNIND 2006 HP 35]: (2006) 2 Shim LC 384.
21 . State of Maharashtra v. Saifuddin Mujjaffarali Saife, AIR 1994 Bom 48 [LNIND 1993 BOM 402] (DB).
22 . Nagesh Sales Corpn. v. Kerala Soaps and Oils Ltd., AIR 1994 Ker 150 [LNIND 1993 KER 456]; Satish Solvent Extraction Pvt. Ltd. v. New
India Assurance Co. Ltd., AIR 1996 Bom 293 [LNIND 1996 BOM 12] (DB).
23 . Madan Mohan v. H.P.M.C., 2007 (4) Civil Court Cases 313 (HP).
24 . APSRTC v. B. Vijaya, AIR 2002 Andh Pra 441 (FB).
25 . Sir Srinivas Co. v. Firm VDHA Sethi, AIR 1985 AP 21 [LNIND 1984 AP 12].
26 . Bangalore Water Supply and Sewerage Board v. Sugesan & Co. Pvt. Ltd., Madras, AIR 1999 Mad 49 [LNIND 1998 MAD 633] (DB).
27 . Mahinder Singh Jaggi v. Dataram Jagnnath, (1998) 9 SCC 28 [LNIND 1997 SC 56].
28 . DDA v. Joginder S. Monga, AIR 2004 SC 3291 [LNIND 2003 SC 1091].
29 . C.K. Sasankan v. Dhanalakshmi Bank Ltd., AIR 2009 SC 3171 [LNIND 2009 SC 479]: (2009) 11 SCC 60 [LNIND 2009 SC 479].
30 . Ibid., (Dr. M. Sharma, J., speaking for the Bench).
31 . Indian Bank v. Textile Inland Agencies, AIR 1992 Cal 296 [LNIND 1992 CAL 26].
32 . Vijaya Bank v. Art Trend Export, AIR 1992 Cal 12 [LNIND 1990 CAL 56].
33 . Catholic Syrian Bank Ltd. v. N.V. Varkey, (1982) 2 KL 789 (DB); noted in Bank of India v. Mary George, AIR 1992 Ker 125 [LNIND 1990
KER 433].
34 . B. Dhanraj v. Central Bank of India, AIR 2004 Kant 416 [LNIND 2004 KANT 184].
35 . Indian Bank, Mattancherry v. MR Prabhu & Sons, AIR 2002 Ker 44 [LNIND 2001 KER 281] (DB).
36 . Veluswamy Gounder v. State Bank of India, AIR 2001 Ker 366. See also Appana Pullam Raju v. Central Bank of India, AIR 2006 (NOC)
1413(AP) : (2006) 1 SCC 262.
37 . Lakshmi Vilas Bank Ltd. v. Shreechakra Enterprises, AIR 2003 Mad 1 [LNIND 2002 MAD 501].
38 . M.A. Parthasarathy v. Bank of Baroda, 2007 (1) Civil Court Cases 692 : 2007 (1) Kant LJ 200.
39 . New Bank of India v. Suba Singh, AIR 2006 P&H 84 : (2006) 142 PLR 255.
40 . State Bank of Travancore v. K. Vinayachandran, AIR 1989 Ker 302.
41 . Ibid.
42 . Amrutlal v. Vishwasrao, AIR 1989 Bom 410 [LNIND 1989 BOM 26].
43 . Triyamvak Venkatesh Hebsur v. Dharmarddi Fakiraddi Khyadad, AIR 1996 Kant 92 [LNIND 1995 KANT 151].
44 . Indian Bank v. Kamalaya Cloth Store, AIR 1991 Ori 44 [LNIND 1990 ORI 188].

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > PART I SUITS IN GENERAL

Costs

S. 35. Costs.

(1) Subject to such conditions and limitations as may be prescribed, and to the
provisions of any law for the time being in force, the costs of and incident to all
suits shall be in the discretion of the Court, and the Court shall have full power to
determine by whom or out of what property and to what extent such costs are to be
paid, and to give all necessary directions for the purposes aforesaid. The fact that
the Court has no jurisdiction to try the suit shall be no bar to the exercise of such
powers.
(2) Where the Court directs that any costs shall not follow the event, the Court shall
state its reasons in writing.
45(3)* **

HIGH COURT AMENDMENT

Calcutta. Omit sub-section (2) vide Cal. Gaz. Pt. I, dated April 20, 1967.

1. Object. The object of awarding cost is to indemnify a party against the expense of
successfully indicating his rights in court.46

2. Subject to such conditions and limitations as may be prescribed. Prescribed means

by rules contained in, or made under the Act ; see s 2 (16) and (18). These include rules
framed under s s 122 and 125 of the Code of Civil Procedure.47 The following rules contain
express provision as to costs: O 11, r 3 (costs of interrogatories); O 12, r 2 (proof of
documents); O 21, r 72 (3) (application to set aside a sale), O 23, r 1(3) (withdrawal of suit);
O 24, r 4 (cost on payment into court); O 32, rr 4 and 5 (next friends and guardians); O 33,
rr 10, 11 and 16 (pauper suits); O 35, r 3 (inter-pleader suits); O 34 (mortgage suits). But
nothing in the rules as to pauper suits limits the discretion of the court under s 35 to
apportion costs. Under Sch II, para 13, the court could make an order as to costs of the
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arbitration where a suit was referred to such arbitration and the award made no provision
as to costs and also an order as to the costs of the proceedings in court, with reference to
the arbitration. But the court could not pass an order as to the costs of the suit prior to the
reference.48 Schedule II has, however, been repealed.

3. The provisions of any law. The discretion to award costs is limited by certain
enactments, e.g. the Presidency Small Causes Courts Act, 1882, s 22 ;49 the Land Acquisition
Act, 1894, s 27.50

4. Costs as penalty. Costs cannot be imposed as a penalty beyond the costs of suit.51 It is
not according to law to give to a party, by way of damages, the costs as between attorney
and client of the litigation in which the damages are recovered.52 Where a review
application was misconceived but both the parties were at fault, exemplary costs were not
awarded, but normal costs were awarded.53 The assessors of Delhi Municipal Corporation
determined the rental value and the rateable value of the property situated in Delhi and
also determined the taxes payable thereon. Thereafter, the owner filed a suit in the court in
the State of Uttar Pradesh for declaration that the assessment order passed by the assessor
of Delhi Municipal Corporation was illegal, invalid and void ab initio and for prohibitory
injunction against the attachment of the owners property. The decree for prohibitory
injunction restraining Municipal Corporation from attachment of owners property was
passed ex parte.

The fact that the appeal against the assessment order was pending, was deliberately
suppressed. Such practices of gross abuse of the processes of the court ought to be put
down with a stern hand so that similarly-minded others may desist from indulging in
similar acts. Exemplary cost, in a sum of Rs 50,000 was awarded against the legal
representative of the deceased owner.54

In the case of admission of a student in Medical College, she was allotted a seat in the
Dental Course. However, she was again called for centralised counselling and was selected
for the MBBS course. She left the BDS course and took admission in the MBBS course.
But due to lackadaisical act ion of authorities and for no laches on her part, she was made
to run from pillar to post and eventually she lost one valuable year of her academic and
professional career. The Orissa High Court directed that she should be admitted to MBBS
course in next Academic Session 2008-2009 in any Government Medical College of the
State and further directed the authorities and State to pay costs to meet the ends of
justice.55

In the case of frivolous proceedings, the Bombay High Court held that time is required to
be spent by Court for adjudicating upon such matters. Therefore, considering the status of
the plaintiff and nature of transaction, cost of Rs. 30,000/- was imposed to be payable to
the state.56
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Since the university had forced the respondent to come to the court, and be dragged up to
the Supreme Court, ordinarily the court would have directed the cost to be paid to the
respondent, however, as an interim order was passed directing the appellant to pay to the
respondent all his dues without requiring the respondent to work. In the circumstances,
while dismissing the appeal, the Supreme Court left the parties to bear their own cost.57
Arbitrary allotment of petrol pumps by Minister of State for Petroleum and Natural Gas
was challenged by way of public interest litigation. In view of the able assistance to the
court, by the petitioner, the Supreme Court imposed a cost of Rs 50,000 and directed the
same to be paid by the minister personally.58 In a case, the Supreme Court imposed cost,
by way of penalty against a party, who launched the unnecessary litigation by filing writ
petition in the High Court. The Punjab National Bank, which further complicated the
litigation and which was held responsible for dereliction of statutory duty, was made
responsible for payment of cost.59 The distribution of surplus land by the revenue
authority was done with unjust and undue haste. The action performed on the part of the
authority was found to be mala fide against the petitioner, hence a cost of Rs 5000 was
imposed against the revenue authority.60 When the adopted son was not given his due
share in joint family property and so was compelled to litigate in civil court for nearly 35
years, the case was found fit for awarding exemplary costs and a sum of Rs 5,000 was
awarded as cost.61 If the plaintiffs have unnecessarily been dragged into litigation, it is a fit
case where exemplary costs should be awarded to the plaintiffs and accordingly a cost of
Rs 1,500 was awarded to the plaintiff.62 The plaintiff, a young man of 21 years, was struck
with deadly disease like cancer. The plaintiff was treated by renowned doctors and was
indeed inflicted by various ailments. The plaintiff was genuinely labouring under a belief
that all the ailments were because of second course of radiation and that the doctors
treating him were negligent in administrating the same to him. The plaintiff had his own
reasons to arrive at this conclusion. The conclusion arrived by him may be scientifically
wrong, but he cannot be prevented for that reason to take recourse to any legal remedy
which is available to him. The plaintiff is no doubt a layman, but he is not an illiterate
person. The plaintiff approached the court, when he thought that there was wrong
committed by the respondents and that he should approach the court for redressal of this
wrong. In such circumstances, the plaintiff cannot be saddled with the cost of litigation
much less the exemplary cost.63 During the period counting was stopped due to
breakdown of electricity, some additional ballot papers not issued by the presiding officers
were found to have been mixed up with the bundle belonging to respondent number 4,
which is a serious malpractice and the respondent number 4 was made to pay a cost of Rs
10,000.64 In admission to MBBS course, a seat was reserved for sportsman. A candidate, in
his application, stated that his father was an IAS officer. The member secretary of the
Sports Development Authority made a special recommendation in favour of the said
candidate and addressed a letter to the selection committee to do the needful. The
selection committee introduced the rules of reservation despite the rules in the prospectus.
The selection committee was held vitiated by gross nepotism. It being a clear case of mala
fide in the eyes of law, the candidate, the member secretary and the other authorities were
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made liable to pay the cost out of their personal funds.65 Since petition after petitions have
been filed without disclosing the same, in subsequent petition in separation, therefore, all
the petitions were dismissed with cost and the same shall be recoverable from the
petitioners as arrears of land revenue if not deposited voluntarily within two months.66

In a suit filed by the plaintiff for possession, mesne profits and permanent injunction in
respect of a tenanted premises, the defendant took the plea of s 22 of the Sick Industrial
Companies (Special Provisions) Act, 1986 and suspension of legal proceedings thereunder,
when the trial Court dismissed the plea, the defendant challenged the order before High
Court under Article 227 the Constitution. Dismissing the petition of the defendant, the High
Court held that the petition is most bogus and frivolous one and been filed just to
squander public money and to harass a common man who committed blunder by giving
his property on rent to the mighty public undertaking. With these observations the Court
imposed exemplary cost of Rs. 50,000/-67. The further observations of the Court may
serve as a deterrent for unscrupulous litigants and as such worth taking not of:

19. Public Sector undertakings spent more money on contesting cases than the amount they might have to pay with regard to the premises which have been taken
on rent by them. In addition there to, precious time, effort and other resources go down the drain in vain. Public Sector undertakings are possibly an apt example
of being penny wise, pound foolish. Rise in frivolous litigation is also due to the fact that Public Sector undertakings though having large number of legal
personnel under their employment, do not examine the cases properly and force poor litigants to approach the court.
20. Frivolous litigation clogs the wheels of justice making it difficult for courts to provide easy and speedy justice to the genuine litigants. Public Sector
undertakings should not indulge in mindless litigation and unnecessarily waste the time and public exchequers money. A strong message is required to be sent to
those litigants (whether Government or Private) who are in the habit of challenging each and every order of the trial court even if the same is based on sound
reasoning and also to those litigants who go on filing frivolous applications one after another.68

5. Costs of and incident to suit. This expression includes not only costs of suits, but
costs of applications in suits also. If there has been an invalid reference to arbitration out
of court, the court cannot make an order for costs incurred before the arbitrator as they
are not costs of the suit.69 As to cost of applications, the court may make an order
directing either party to pay the costs of the other, or it may make no order as to costs, or
it may reserve costs or make costs, as costs in the cause. Where an official receiver was
appointed pending a suit for partition but he had no power to bring suits of a certain
nature without the leave of court, it was held that costs incurred for obtaining such leave
were incidental to the suit of the nature contemplated,70 so also costs of an application
under s 476 of the Code of Civil Procedure.71 The expression, costs of any proceeding or
costs incidental to any proceeding means costs of any proceedings such as may be
determined at the conclusion of the hearing and does not include costs payable in advance
or to be incurred in future by a party. An order, therefore, directing the party to a
proceeding to pay the travelling and halting allowances of another party irrespective of the
final decision is not warranted by law.72 Every objection or counter affidavit or application
of mind involves some amount of cost and waste of energy. That should be suitably
compensated in cost. That is how, even assuming that an order has put the other side to
inconvenience, it can not be irreparable as it can be compensated by mulcting the other
side with cost.73
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6. Costs of this suit. The expression costs of this suit means all costs incurred in the suit.
Therefore, if one of the defendants is ordered to pay plaintiffs costs of the suit and no
qualifying words are added, the costs include costs which the plaintiff has incurred by
impleading another defendant against whom the suit has been dismissed with costs.74 Thus
the word cost includes costs incidental to the suit.75

The general order for costs of the suit does not displace a specific order for costs made on
an application.76 If it is intended to supersede previous interlocutory orders for costs, that
fact should be stated in the final decree.77 The practice of the Calcutta High Court is that
orders for costs made by the court of appeal during the progress of the suit are taxed
forthwith and execution levied therefore, but interlocutory orders in the original court
await taxation at the final termination of the suit.78 In a consent decree, if the order as to
costs is intended to supersede previous interlocutory orders as to costs, that fact should be
stated specifically, as one of the terms of the agreement that the parties have agreed to
abandon the rights which had already accrued to them under the previous orders of the
court.79 If the order is costs reserved, those costs remain to be dealt with at the hearing. If
the order is costs in the cause, the Bombay High Court at one time held that the court had
a discretion to deal with those costs in any manner it thought fit.80 In other words, costs in
the cause stood on the same footing as costs reserved except that in the case of costs in
the cause if nothing was said about those costs in the final judgment, they were taken to be
included in the costs of the suit.81 But these decisions are no longer law, and it has now
been held that where the costs of an application are made costs in the cause, the party to
whom the costs of the suit are awarded is entitled as a matter of course to the costs of the
application.82 If the order is costs to abide the result the court has a discretion to apportion
costs at the hearing, but if the order is costs to follow the event or costs to abide and
follow the result the court has no discretion and the successful party is entitled to his
costs.83

7. Agreement of Costs. The discretion of the court in awarding costs cannot be taken
away or controlled by agreement of parties as to how it has to be borne.84 Where a party
entered into an agreement with his agent for payment of a specified amount as costs, he is
not entitled to recover more than that amount as costs from the opponent as costs are in
the nature of indemnity and not penalty.

8. Offer of Compromiseeffect on costs. When an offer of compromise is made which

the court considers proper for acceptance but is refused, the court, as a general rule,
relieves the party making the offer from payment of costs incurred after the date of the
offer; but an offer which the court considers insufficient is no bar to a plaintiffs right to
costs.85

A three-Judge bench of the Supreme Court has rendered a decision of far-reaching

consequence. In a case relating to s 138 of the Negotiable Instruments Act, 1881, the Court felt
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that the tendency of litigants to go for compounding of offence of dishonour of cheque as

a last resort, is putting unnecessary strain on the judicial system and contributing to the
increase in number of pending cases. It was also felt that unlike s 320 of the Code of Criminal
Procedure, s 147 of the N.I. Act, 1881 does not carry any guidance on has to proceed with
compounding of offences.86

Pursuant to the above view, the Bench proceeded to frame guidelines evolving a graded
system of costs for compounding of offences with the following observations:

15. With regard to the progression of litigation in cheque bouncing cases, the learned
Attorney General has urged this Court to frame guidelines for a graded scheme of
imposing costs on parties who unduly delay compounding of the offence. It was submitted
that the requirement of deposit of the costs will act as a deterrent for delayed composition,
since at present, free and easy compounding of offences at any stage, however belated,
gives an incentive to the cheque to delay settling the cases for years. An application for
compounding made after several years not only results in the system being burdened but
the complainant is also deprived of effective justice. In view of this submission, we direct
that the following guidelines be followed:

THE GUIDELINES

(i) In the circumstances, it is proposed as follows:

(a) That directions can be given that the writ of summons be suitably modified making
it clear to the accused that he could make an application for compounding of the
offences at the first or second hearing of the case and that if such an application is
made, compounding may be allowed by the court without imposing any cost on the
accused.
(b) If the accused does not make an application for compounding as aforesaid, than if
an application for compounding is made before the Magistrate at a subsequent
stage, compounding can be allowed subject to the condition that the accused will be
required to pay 10% of the cheque amount to be deposited as a condition for
compounding with the Legal Services Authority, or such authority as the Court
deems fit.
(c) Similarly, if the application for compounding is made before the sessions Court or a
High Court in revision or appeal, such compounding may be allowed on the
condition that the accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made before the Supreme Court, the
figure would increase to 20% of the cheque amount.

Let it also be clarified that any cost imposed in accordance with these guidelines should be
deposited with the Legal Services Authority operating at the level of the court before
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which compounding takes place. For instance, in case of compounding before a

Magistrates Court or a Court of Sessions, such costs should be deposited with the District
Legal Services Authority. Likewise, costs imposed in connection with composition before
the High Court should be deposited with the State Legal Services Authority and those
imposed in connection with composition before the Supreme Court should be deposited
with the National Legal Services Authority.87

The further observation of the Supreme Court is worth noticing:

We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as an act of judicial law-making and therefore an
intrusion into the legislative domain. It must be kept in mind that s 147 of the Act does not carry any guidance on how to proceed with the compounding of
offences under the Act. We have already explained that the scheme contemplated under s 320 of the Crpc cannot be followed in the strict sense. In view of the
legislative vacuum we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition
of the offence in cases involving s 138 of the Act. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In
the status quo, valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay Court fee since the proceedings are governed by
the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the
competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity.88

9. Proportionate Costs. If a plaintiff recovers less, but not a trifling less, amount than he
claimed in the plaint, his costs should be apportioned according to the amount recovered
and not according to the sum claimed.89 As to the rule in the Privy Council, see the
undernoted case.90 The proper mode of apportionment is to calculate the amount of the
costs of the suit as laid, and then divide the entire sum between the parties according as
they have respectively succeeded or failed.91

In a case, the trial Court awarded costs of the suit. In appeal, the Appellate Court did not
reverse, vary or modify the direction passed by the trial court to pay cost to plaintiff and
did not direct the parties to bear their own costs. It was held by Kerala High Court that in
the matter of realisation of cost the plaintiff cannot be denied proportionate cost awarded
by the trial court by the application of doctrine of merger as doctrine of merger is not
doctrine of universal or unlimited application.92

10. Costs by Appellate Courtinterpretation. For realisation of costs, the specific order
of the court, passed in exercise of the discretion conferred by s 35 of the Code of Civil
Procedure, shall be the guiding factor. If the court of appeal passes an order that the parties
shall bear their respective or own costs, such a direction is confined to the costs of the
appeal alone. If, on the other hand, the direction is to the effect that the parties shall bear
their respective or own costs throughout, the parties shall bear their respective costs, both
in the court of appeal and in the trial court. If, in appeal, a direction is given to the effect
that any of the parties shall bear the costs of the appeal or suit, such party shall bear the
costs accordingly. Where the appellate court directed that the parties shall bear their
respective costs and the trial court had decreed the suit with costs to be paid by the
defendants, the costs of the suit would be recoverable by the plaintiffs, despite the
direction of appellate court that the parties shall bear their respective costs.1 It is well-
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settled proposition of law, imposition of costs follows results and the exercise discretion of
the any court in awarding cost shall not ordinarily be interfered with by the superior court.2
The opportunity of adjournment is granted to the appellant on payment of cost in the
circumstances of the case.3 The conduct of the appellant shows that they had willfully
flouted the undertaking given to the court after taking the advantage of the allotment
order, though court has the power to extract obedience of the undertaking given to the
court. However, in the circumstances of the case and the antecedent history of the
litigation, the Supreme Court gave an opportunity to the appellants to purge themselves of
the conduct of the court by vacating the premises within the specified date.4 It is clear
from s 28 (1) of the Specific Relief Act, 1963 that the court does not lose its jurisdiction after
the grant of the decree of the specific performance nor it becomes functus officio. The court
has the power to increase the time in favour of the judgment-debtor to pay the amount or
to perform the conditions mentioned in the decree of specific performance. The court
shall also be justified in awarding the cost to compensate the petitioner for loss of
enjoyment of money in case of delay of payment of money in terms of decree of specific
performance.5 Three claim petitions were filed against a truck driver, truck owner and the
appellant company which had entered into a hire purchase agreement with the truck
owner. The true relationship between the truck owner and hire purchase company was
suppressed by withholding the real documents executed between them, hence, the
appellant was directed to pay the cost of Rs 10,000 to each claimant.6

11. Costs: A discretion of the Court. Since, under sub-s (1) the question of costs is in the
discretion of the court, ordinarily the appellate court would decline to interfere with the
order as to costs passed by the lower court.7 A perusal of O 82, r 2 of the Rules of
Supreme Court of England also does not indicate that costs can be awarded only as a
matter of right and not by way of discretion.8 Such discretion must be a judicial discretion
to be exercised on legal principles, not by chance, medley, nor by caprice nor in temper.9
In the exercise of this discretion the court is not confined to the consideration of the
conduct of the parties in the act ual litigation itself, but may also take into consideration
matters which led up to, and were the occasion of that litigation.10 The discretion
conferred upon the court by this section is very wide.11 Thus, the court may order the costs
to be paid by the parties in definite proportions, or it may order one party to pay to the
other, a fixed sum, in lieu of taxed costs.12 Similarly, it may disallow costs to a successful
plaintiff, as where the rate of interest claimed by the plaintiff, and allowed to him, under
the Usury Laws Repeal Act, 1855, is usurious;13 or where the successful appellant was not
sufficiently careful in giving the valuation in his Special Leave Petition14 or it may make a
successful plaintiff pay the whole costs of the other side.15 It may also allow the expenses
of witness, though not summoned through the court.16 It may disallow costs of either
parties on the ground that neither of them had come with clean hands.17 It may also
disallow the costs of a party on the ground that there was unnecessary cross-examination.18
Where the suit is dismissed, it may disallow the costs of a pro forma defendant.19 But
though the discretion conferred upon the courts by this section is wide, it is a judicial
discretion, and must be exercised on fixed principles, i.e., according to the rules of reason
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and justice, not according to private opinion, or benevolence,20 or even sympathy,21 nor
arbitrarily and capriciously.22 Where there are no materials before the court on which it can
exercise its discretion, it is not justified in depriving a successful party of his costs.23 The
following are the leading rules on the subject.

(a) Costs Shall Follow the Event

(a) Costs Shall Follow the Event. The normal rule is that costs must follow the event unless
the court, for good reasons, otherwise orders.24 Such reasons must be in writing.25 This
means that the successful party is entitled to costs unless he is guilty of misconduct or
there is some other good cause for not awarding costs to him;26 and this rule applies even
to proceedings in writ jurisdiction.27

However, where the judgment is silent about the incidence of cost, it shall be presumed
that the court did not intend to determine the cost aspect and it intended their parties
should be left to bear their own costs.28 In case of breach of contract, act ual cost and not
nominal cost should be imposed.29

It has been held by the House of Lords that the expression the costs shall follow the event
means that the party, who, on the whole, succeeds in the action gets the general costs of
the act ion, but where the action involves separate issues, whether arising under different
causes of action or under one cause of act ion, the word event should be read distributively
and the costs of any particular issue should go to the party who succeeds upon it. An issue,
in this sense, need not go to the whole cause of action, but includes any issue which has a
direct and definite event in defeating the claim to judgment, in whole, or in part. A sued B
for 164l for the price of 34 bags of goats hair sold to B. B, by his defence, pleaded:
(i) that the goods were not according to sample and were consequently worth 24l less;
(ii) that there was an overcharge on the bags for 2l; and
(iii) payment into court of the balance.

B succeeded on the first issue, but failed on the second. The court of first instance gave
judgment for A for 2l beyond the amount paid into court with costs. On appeal, it was
held by the House of Lords, reversing the decision of the court of appeal, that the issue as
to quality (first issue) was an event within the meaning of the expression the cost shall
follow the event, and that B was entitled to the costs of that issue.30

The court fails to exercise its discretion properly where a defendant denies from the very
start that he is a partner, is ultimately held not to be a partner and yet is denied his costs.31
The court may not only consider the conduct of the party in the act ual litigation, but the
matters which led up to the litigation.32 A refusal to go to arbitration is no ground for
refusing costs;33 nor is the fact that the plaintiff brought his action without previous notice
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to the defendant;34 nor the fact that the plaintiff-mortgagee waited to file the suit for a long
time with the result that the mortgagor had to pay a large amount of interest.35

In an account suit, costs generally follow the result of the account unless the defendant has
falsely denied his liability to account.36 But if the right to claim partition is wrongly
disputed, the disputing party will be made liable for costs unnecessarily incurred.37 An
assignee of a decree made respondent without his consent but who act ively supports the
decree under appeal, will be made liable for costs of the appeal but not of the lower
court.38 A successful party is not to be deprived of his costs merely because the suit
proceeds ex parte;39 nor also because the parties are related.40 Where the respondent official
receiver intimated the registrar that he was not defending the appeal for want of funds and
that no order for costs should be made against him, it was held by the Supreme Court that
this was not a sufficient ground for depriving the successful appellant of his costs.41 A
successful defendant cannot be deprived of his costs merely because he refused before the
filing of the suit, to disclose the evidence by which he proposed to substantiate his
defence.42 It has been held to be a good reason for depriving a successful respondent of
his costs that the appeal was filed on the strength of a decision which was overruled after
the filing of the appeal43 or it failed by reason of a law enacted during the pendency of the
appeal.44 Unreasonable conduct of the successful defendant was held to be sufficient
ground for depriving him of costs,45 and even for directing him to pay the costs of the
plaintiff.46 In Keshavlal v. Lalbhai,47 it was held by the Supreme Court that it was a good
ground for depriving the respondents of their costs that they succeeded on a ground taken
for the first time in appeal. It is not a ground for depriving a successful plaintiff of his
costs that he was in breach of the government order when the defendant was also in
breach thereof.48

The power of Court to award costs to a successful party is discretionary. This discretion
extends to directing the successful party to pay litigation expenses to an unsuccessful party
including court-fee payable. But the Court case exercise such discretion only if the conduct
of the successful party towards the unsuccessful party before, at the time or after the
institution of the proceeding in relation to matter in issue is perverse and obstinate. Thus,
where no such reprehensible conduct on the part of the successful party was describe, the
mere fact that the unsuccessful party hailed from poor strata, cannot itself be a
circumstance to direct the successful party to meet the cost of unsuccessful party.49

Where a party successfully enforces a legal right and in no way misconducts himself, he is
entitled to costs as of right.50 But if he acts oppressively or if there be lapses on his part,51
he may be deprived of his costs, though successful.52

But where a successful defendant had set up a false case, he was deprived of his costs of
the suit.53

If a plaintiff substantially succeeds, he is entitled to his costs, though he may not have got
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the precise form of relief he wanted,54 and even though the damages awarded to him have
been reduced.55

Where a plaintiff succeeds on part of his claim, but fails on the most important and
expensive heads of controversy, he may be made to pay the whole cost of the suit to the
defendant.56

Everything which increases the litigation and the costs, and which places on the defendant,
a burden which he ought not to bear in the litigation, is a perfectly good cause for
depriving the plaintiff of costs,57 or even directing him to pay part of the costs to the other
side.58 A successful party will be deprived of the costs of issues which he has unnecessarily
raised.59

A successful party ought not to be deprived of part of his costs because some of his
witnesses were guilty of exaggeration.60

A person, wrongfully made a party, should get his costs.61 When, in a suit for possession,
due to accidental error on the part of plaintiffs in describing survey number in plaint, the
defendants were dragged to one more litigation, the cost of Rs 2,500 was awarded to
defendants.62

Where both the parties advanced pleas far in excess of their legal rights, each party will he
made to bear his own costs.63

Where there is a misconceived review application and both the parties are at fault, then:

(a) the applicant for review cannot he burdened with exemplary costs;

(b) but he can be ordered to pay nominal costs.64

Where the decree of the lower court is confirmed by the appellate court, the mere fact that
the grounds upon which the confirmation proceeds are not the same is the ratio decidendi
of the court below, is no ground for departing from the rule that the costs shall follow the
event.65

In a case from Karnataka, the plaintiffs, a multi-national corporation of U.S.A., filed a suit
for injunction for infringement of their trade mark BIG MAC, Mcdonalds and corporate
Logo M in India. The defendant was using trade mark Sterlings Mac Fast Food or Mac
Fast Food for its restaurants. The defendants had been carrying on with its business since
1983 while the plaintiffs got registered in India in the year 1993 only. It was held by the
Karnataka High Court that except for the word MAC which was common in both other
words were altogether different. Therefore the plaintiffs cannot claim exclusive trade mark
right on word MAC. Moreover, there was delay of 5 years in filing the suit. It was observed
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that the suit was imaginary and vexatious and held the dismissal of the suit with costs as
proper.66

In a case, where an application was moved for waiving the costs imposed by the Court, the
Delhi High Court held that seeking adjournment repeatedly one or the other ground was
not permissible and as such held the dismissal of the application as proper. The High
Court further depricated the tendency to drag proceedings by filing frivolous applications
and/or seeking adjournments as also misusing the courtesy extended to counsels by courts
for passing-over matters when called out.67

In a suit for partition and rendition of account which was dismissed for default the Delhi
High Court held that where plaintiffs prosecuted the case with diligence and no mala fide
was reflected on their part, the delay in filing restoration petition can be condoned subject
to payment of costs to defendants for putting them to inconvenience.68

In case relating to Municipal Council elections, a petitioner filed a delayed petition

challenging the election of Municipal Councillor, although he was aware that the petition
was hopelessly barred by limitation. Thereafter he filed a writ petition in the High Court
and managed to secure an interim order from the writ court halting the election process on
the ground of pendency of the election petition. The fact that the election petition was
filed just two days before the filing the writ petition, come to the notice of the Court. The
writ petition was dismissed with costs of Rs 50,000/-.69

Where unwarranted litigation had been brought before the High Court and proceedings
were initiated with lack of bona fide and were misconceived, the High Court dismissed the
reference application under s 113 of the Code with costs.70

Where a party entered into an agreement with his agent for payment of a specified amount
as costs, he is not entitled to recover more than that amount as costs from the opponent,
as costs are in the nature of indemnity and not penalty.71

(b) Costs in a Partition Suit. It is a general rule that up to the passing of a preliminary decree
in a partition suit, each party will bear his own costs, unless there are exceptional
circumstances, such as unnecessary costs incurred by a frivolous defence.72 The court may
also direct that the costs of all the parties should come out of the properties which are to
be partitioned.73 It may also direct a party setting up an exclusive title in himself to pay the
costs.74

In a partition suit, where application was filed for recalling an ex parte order to allow the
defendant to file written statement and the trial Court condoned the defendants delayed
appearance, the Jharkhand High Court held that having done so, the defendants prayer for
filing written statement should have been considered by the trial Court bearing in mind the
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interest of justice. The High Court allowed time to file written statement subject to
payment of cost.75

Court fees paid during execution proceedings as mesne profits ascertained in final partition
decree is recoverable as costs implied, though not specifically mentioned in the decree.76

(c) Costs in an Administration Suit. As expounded in Williams on Executors;77 Ingpen on

Executors;78 Danniells Chancery Practice,79 and the undermentioned cases.80

(d) Costs in Company Matters. On a petition under s 395 of the Companies Act, 1956, costs
should, in normal course, follow the event.81

In a case relating to winding up of Company, the Bombay High Court held that interest to
Workmen on amount due after the date of winding up can be awarded by Court only if
there is surplus fund. The Court is empowered to award interest strict by in accordance
with the provisions of r 179 of the Companies (Court) Rules 1959.82

(e) Costs in a Partnership Suit. In suits for dissolution of partnership, the costs are ordinarily
ordered to come out of partnership assets unless there is some good reason to the
contrary. But where the act ion is really instituted to try some disputed right, the
unsuccessful litigant will be ordered to pay the costs. The cost of taking the accounts
directed at the hearing are, although disputed, usually defrayed out of the partnership
assets, and if necessary, by contribution between the partners.83

(f) Costs of Mortgagee 84. The court would be justified in refusing costs to the mortgagee in a
redemption suit where he wrongly denies the mortgagor-plaintiffs right to redeem and
unreasonably exaggerates the mortgage amount due to him.85

(g) Costs of Trustee. A decree for costs against a trustee, without any further directions,
makes him personally liable to pay to the party, in whose favour the order is passed.86
Whether he would be entitled to recoup himself from the trust estate, is, however, a
different question.

(h) Costs in Pre-emption Suits.See Bajirao v. Abdul Gaffar.87

(i) Costs under Lease and Rent Control Act s.It is not proper to mulct a landlord who is
refused an order of eviction under the provisions of the Buildings (Lease and Rent
Control) Act, with costs of the other side.88

(j) Costs of Suits Referred to Referee.Where a suit is referred to a referee for ascertainment
of the amount due to a plaintiff, the practice of the Calcutta High Court is to award costs
in the suits only on a consideration of the report received.89
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(k) November 1984 Riot Affected Borrowers.A debt relief scheme for November 1984
riot affected borrowers had been framed by Government of India, Ministry of Finance,
which scheme was thereafter revised by the Reserve Bank of India called Central Interest
Subsidy Scheme (Revised) for November 1984 Riot Affected Borrowers. The Central
Subsidy Scheme was self-contained and took care of loans advanced to borrowers, who
were riot affected, before or after the November 1984 riots. In such cases, benefit of
complete write off or interest thereon, as the case may be, was to be given. There is no
scope for the bank to have misunderstood the import of the scheme framed by the
Reserve Bank of India to rehabilitate the riot victims of 1984. Having treated the
appellants as riot victim borrowers under a rehabilitation scheme, there was no justification
of not treating the appellants case as one covered under the Central Interest Subsidy
Scheme and demanding of them, interest at a rate greater than permissible under the
Central Scheme. The suit filed was an attempt to cover up the plaintiff-banks own defaults
of not having claimed the subsidy in accordance with the scheme. In any event of the
matter, whether the plaintiff-bank claims the subsidy or not is its internal matter and has
got nothing to do with its claim against the appellants-defendants. This is a case where the
effort of the government to ameliorate the miserable

lot of the riot victims of 1984 has been deliberately subverted by the bank. The profound
agony of the appellants magnified and prolonged for nearly 18 years.

The judgment and decree dated 25 August 1999 passed in suit No 600/1986 was set aside.
Since the appellants have been deprived of benefits of the Central Interest Subsidy Scheme
for nearly 18 years, the High Court imposed costs quantified at Rs 25,000 (Rupees twenty-
five thousand) payable to respondents No 1 and 2 equally.1

The Supreme Court has held that imposition of cost is in the discretion of the Court.
Therefore, when the Court, in the light of the facts before it, is satisfied that the defendant
wanted to delay the proceeding. It would not be appropriate for the Appellate Court to
interfere with the order imposing costs.2 For award of costs the value of the claim involved
and the financial capacity of the parties are also to be taken into account.3

12. Co-plaintiffs. Where two plaintiffs join in one action, claiming for separate and
distinct causes of act ion, and judgment is entered in favour of one plaintiff and against the
other, the successful plaintiff is entitled to recover, from the defendant, the whole of his
general costs of the action, and the defendant is entitled to recover from the unsuccessful
plaintiff, the costs occasioned by his joinder as plaintiff.4

13. Co-defendants. The court may order one defendant to pay the costs of another
defendant.5 In a suit against a partnership of several partners, some of whom admitted and
some of whom denied the partnership, those who denied were ordered to pay the costs of
those who admitted.6 Where the claim of the plaintiff is in the alternative against different
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defendants and it is not unreasonable, the unsuccessful defendant might be asked to pay
the costs of the successful defendant in addition to the costs payable to the plaintiff.7
Where, in an act ion for damages under the Fatal Accidents Act, 1855, an insurance company
was impleaded as additional defendant at the instance of the original defendant, it was held
that the original defendant can be asked to pay the costs of boththe plaintiff and the
defendant company.8

Separate costs should not be allowed to defendants if the defence is common to all, or
their interests are the same.9 But if their interests are diverse, they are entitled to appear by
separate counsel and to costs so incurred.10 When a suit is laid against several defendants in
possession of different items of properties, costs should be awarded to or against each
defendant in proportion to the plaintiffs claim falling or succeeding against him.11

Where two defendants join in defending an act ion, and judgment is entered for one and
against the other, the successful defendant is prima facie entitled to receive from the
plaintiff, half the cost incurred in the joint defence.12

14. Cost upon Advocate. The section does not confer any disciplinary jurisdiction, and a
legal practitioner cannot be ordered personally to pay the costs of an application which is
an abuse of the process of the court.13 But a solicitor who purports to act for a non-
existent party is personally liable to pay costs.14

Where an advocate filed a petition which was not maintainable and it appeared that the
parties concerned were not consulted, the Supreme Court ordered him to pay the costs
personally.15 The court has a discretion to award costs against a legal practitioner who has
been found guilty of professional misconduct.16 Where an advocate appears as amicus
curiae, an order should be made for payment of his costs.17 Where an application for
probate failed by reason of the mistake of the counsel, it was held that the court had a
discretion to refuse costs to the successful defendant.18

Where suit was decreed ex parte in consequence of non-appearance of counsel on date

fixed for hearing on the premise of strike call given by advocates, and an application for
setting aside ex parte order was made by appellant-company stating that appellant-company,
being situated in another city it was not possible for it to make arrangements for
appearance in court at short notice of strike call and from such a long distance, in special
circumstances of case, non-appearance of appellant-company is attributable entirely to his
counsel, ex parte order can be set aside subject to payment of cost. The advocate can be
mulcted with cost of setting aside of ex parte decree. Since the court is adopting such a
measure for the first time and the counsel would not have been conscious of such a
consequence befalling them, the court may direct the party to realise half of the amount of
cost from the firm of the advocate or any one of its partners.19

15. Forma pauperis . When a suit instituted in forma pauperis is partly successful, the court
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has power to make such order for costs as it considers, in its discretion, proper not under
O 33, rr 10 and 11, but under this section;20 and the words costs of and incidental to all
suits would include costs of the pauper application21 and the court fee payable on the
plaint.22

16. Nominal/No Cost. Judicial notice can be taken of the fact that many unscrupulous
parties take advantage of the fact that either the costs are not awarded or nominal costs are
awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties
to bear their own costs. In a large number of cases, such an order is passed despite the fact
that s 35 (2) of the Code. Such a practice also encourages filing of frivolous suits, or taking
up of frivolous defences. Further wherever costs are awarded ordinarily the same are not
realistic and are nominal. Section 35(2) provides for cost to follow the event. It is implicit
that the costs have to be those which are reasonably incurred by a successful party except
in those cases where the court, in its discretion, may direct otherwise by recording reasons
thereof. The costs have to be act ual reasonable costs, including the cost of the time spent
by the successful party, the transportation and lodging, if any, or any other incidental cost
besides the payment of the court-fee, lawyers fee, typing and other costs in relation to the
litigation. It is for the High Courts to examine these aspects and wherever necessary, make
requisite rules, regulations or practice direction so as to provide appropriate guidelines for
the subordinate courts to follow.23

The court may direct parties to bear their own costs where the law is settled for the first
time,24 or where the litigation arose because of ambiguity in the statute,25 or where the
court itself was in error,26 or where the appellant does not press part of his claim,27 or
where the case involves important questions of law for decision,28 or where it is a test case
and the unsuccessful respondent had to bear the brunt of the fight,29 or when the question
related to interpretation of a recent statute,30 or where the court clarifies a confused
juridical situation.31

Where a suit for specific performance was dismissed and the defendant was found entitled
to costs throughout, however, in view of pecuniary position of plaintiff, it was held that
the parties shall bear their own costs.32 Where the second appeal was dismissed, but since
the respondent had not appeared and contested the appeal, no order as to cost was
passed.33 In the suit for recovery of money and for specific performance of agreement of
sale, there was close relationship between parties, i.e., they were real brothers, parties were
directed to bear their own costs.34 Although the applicant practiced fraud and suppressed
the material facts before the tribunal under the Forest (Conservation) Act, 1980 as well as
before High Court, and so was liable to pay heavy costs to the state, but, since in the earlier
part of the proceedings, forest officials then in-charge as well as the counsel engaged at
that time were not properly conducting the case, the cost was declined.35 The plaintiffs suit
for specific performance of agreement to sell immovable property was decreed. But the
lower court, after considering the facts and circumstances of the case, exercised its
discretion in not allowing costs to the plaintiff-respondent. After careful consideration of
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the facts and circumstances of the case and the evidence on record and also the arguments
advanced by the counsel for the respondent, the High Court found no ground to interfere
with the discretion exercised by the lower court in disallowing costs to the respondent in
the suit and also found it appropriate in this appeal also to direct both sides to suffer their
costs.36

17. Discretion not to be delegated. The discretion given to the court under this section
cannot be delegated to the taxing officer.37

18. Costs against person not a party to suit. Under the Code of Civil Procedure 1882, it was
held that an order for costs cannot be made against a person who is not a party to the
suit.38 The decision, however, turned upon the phrase party to the suit which it omitted in
the present section. A Full Bench of the Allahabad High Court has observed that the
omission is significant and that the present section has a wider scope.39 But costs should
not be awarded against a stranger without giving him an opportunity to be heard on the
point.40 But, apart from cases where a next friend has been made liable for costs, there is
no reported decision except the under-mentioned cases41 in which an order has been made
for costs against a person not a party to the suit, but a decree for costs against a minor
plaintiff would not be interpreted to be a decree for costs against his next friend.42 Court
may award costs against a litigant appearing in person, where his behaviour has been
reproachable.43 The Rajasthan High Court, in one case, directed payment of exemplary
costs of Rs 1000, in an appeal against the decision of a claims tribunal under the Motor
Vehicles Act, 1988. The costs were awarded, because of the baseless defence put forth by
the state road transport corporation. Order was made to recover the amount from the
functionaries, who had given the advice to the corporation to contest the claim.44 Persons
interested on whose behalf a suit is brought under O 1, r 8, cannot be ordered to pay
costs.45 As regards an action for costs against a third person on the ground that he was the
mover of, and had an interest, in the suit, it has been held by the Privy Council that such
an act ion cannot be maintained in the absence of malice and want of probable cause.46

Where a third party with no sufficient reason appears and defends an action separately, he
must bear the costs of so doing, even though the plaintiff is unsuccessful in the act ion.47
This is also so in the case of a formal defendant, against whom no relief is claimed.48

19. Court having no jurisdiction to try the suit. Court returning the plaint for
presentation to the proper court, can grant costs against the plaintiff, but cannot make the
payment a condition precedent to the presentation of the plaint in the proper court.49

20. Out of what property. The court is not bound to order costs to be paid out of the
estate. Such an order is generally made in favour of trustees, and in probate suits when the
difficulty of construction is caused by the testator.50 Where, in a suit under s 92 of the Code of
Civil Procedure, the surviving appellant is not solvent enough to pay the costs of the
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successful respondent, it is competent to a court to make an order for costs against the
estate of the deceased appellant.51

21. Costs where relief is claimed against defendants in the alternative. See note
under the same head to O 1, r 3.

22. No separate suit for costs. Where a court has jurisdiction to deal with the question of
costs, no separate suit will lie to recover costs, but where it has no jurisdiction to order
costs, and costs are incurred, they may be made the subject of consideration as to damages
in a subsequent suit.52 A suit was filed for permanent injunction for restraining the
defendant from asserting any right, title or interest in the motorcycle of the plaintiff. The
defendant filed a miscellaneous application for an order directing the plaintiff to hand over
the motorcycle to him. The hearing was adjourned on failure of the plaintiff to file his
reply, subject to payment of costs. On the adjourned date, the plaintiff failed to appear.
Held that the suit cannot be dismissed for non-payment of costs. Only the defendants
application can be disposed of.53

23. Sub-section (2): Reasons in writing. If the court does not abide by the rule that
costs should follow the event, it should record its reasons.54

24. Costs disallowed when delay arises in appeals to the Privy Council: Supreme
Court. The Privy Council has said that litigants should use all speed to bring their cases to
trial and make this injunction effectual by disallowing costs in case of delay in appeals to
the Privy Council.55 These observations would also be applicable to the Supreme Court,
which can deprive a successful litigant of his costs on the ground of unreasonable delay in
prosecuting the appeal.

25. Sub-section (3): Omitted. The deletion of sub-s 356 in 1956 does not affect the right
of the party to claim interest by way of restitution. Section 144 expressly provides that the
court may order refund of costs and payment of interest, damages, compensation, etc,
which are properly consequential on such variation or reversal.57

26. Appeal for costs only. Decisions of a court of law fall into three classes, namely:
(i) decrees (every decree is appealable (s 96));
(ii) appealable orders (s 104);
(iii) non-appealable orders (s 105).

(a) When the Appeal is Against Decrees. It is settled that an appeal lies for costs only when the
costs are awarded by a decree if the order as to costs involves a question of principle, but it
is not settled whether such an appeal lies if no question of principle is involved. A decree
contains:
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(i) a decision on the rights of parties, hereinafter called item no 1; and

(ii) a direction as to costs, hereinafter called item no 2.

A party, while appealing from item No 1 or any part thereof, may appeal also from item no
2. He may, at the hearing, abandon the appeal from item no 1 and may proceed with the
appeal from item no 2.58 But can he appeal from item no 2 only, without appealing from
item no 1? In other words, does an appeal lie on a matter of costs only? All the High
Courts are agreed that such an appeal does lie:
(i) where the order as to costs involves a matter of principle,59 as where a formal party
to a suit against whom no relief is claimed is made to pay the costs of the suit;60 or
(ii) where there has been no real exercise of discretion in making the order as to costs.
This may happen when a successful party is deprived of his costs61 or is made to
pay the costs of the losing party.62 If the discretion was exercised in fact, the
appellate court would not interfere merely because it would itself have exercised the
discretion differently;63
(iii) where the order as to costs proceeds upon a misapprehension of fact or law.64

For brevitys sake, one may describe all the three cases as cases where a question of
principle is involved. Therefore, one may say that it is settled law that an appeal lies for
costs only where the order as to costs involves a question of principle. But it is not settled
whether an appeal lies for costs only, where no question of principle is involved. It has
been held by the High Court of Calcutta that no appeal lies on a question of costs unless
there is a question of principle involved.65 On the other hand, it has been held by the High
Court of Bombay that an appeal will lie for costs only, whether the order as to costs
involves a question of principle or not.66 The ground of the Bombay decisions is that every
decree being appealable, any part of it is appealable, though it be the part relating to costs,
whether there is a matter of principle involved or not. But even according to the Bombay
decisions, though an appeal may lie for costs only, the appellate court will not, as a rule,
vary or set aside the order of the lower court as to costs unless there is a principle involved
and the principle has been violated.

Does a second appeal lie on a matter of costs only? It has been held that it does, provided,
there is a question of law or principle involved.67

(b) When the Appeal is Against an Appealable Order. In case of an appeal from a direction as to
costs contained in an appealable order: the law as to appeal from a decision as to costs
contained in an order (as distinguished from a decree) is that if the order is itself
appealable, an appeal will lie from that part of the order which relates to costs.68 But no
second appeal lies on a matter of costs awarded by an appealable order, for no second
appeal lies from any order passed in appeal under s 104.69
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(c) When the Appeal is Against an Non-appealable Order. In case of an appeal from a direction
as to costs contained in a non-appealable order, since no appeal lies from a non-appealable
order, no appeal can lie from a direction as to costs contained in such order. Thus, if an
order is made adjourning the hearing of a suit, and one of the parties is directed to pay the
costs occasioned by the application for adjournment, he cannot appeal from the direction
as to costs, for an order adjourning the hearing of a suit is not an appealable order, it not
being in s 104 (1) below.70 But an order for costs which is not appealable is open to
revision under s 115.71

27. Letters Patent Appeal. An order for costs is a judgment under cl 15 of the Letters
Patent and an appeal lies against it. The maintainability of the appeal has nothing to do
with the question as to under what circumstances the appellate court could interfere with
the discretion of the trial court.72

28. Costs against Government. The government, in a unsuccessful litigation, is liable to

pay costs like any other unsuccessful party.73 Irreversible damage had occurred to the eyes
of a patient, operated upon in an eye camp. Social organisation espoused the cause of
unfortunate victims and prosecuted it with diligence. State government was saddled with
costs of the organisation, in the circumstances.74 The distribution of surplus land by the
revenue authority were done with unjust and undue haste. The action performed on the
part of was found to be mala fide against the petitioner hence a cost of Rs 5000 was against
the revenue authority.75 While the state cannot be treated differently from any other litigant
in the matter of condonation of delay, the court is bound to take into consideration the
following factors:
(a) red-tapism in government;
(b) delays in correspondence;
(c) habitual indifference of government officials or governments pleaders as distinct
from the usual diligence of ordinary litigant or lawyers for private parties;
(d) collusion or negligence by government officers or government pleaders or fraud;
(e) damage to public interest or to public funds or interests of the state;
(f) institutional or bureaucratic procedure as well as delays arising thereon; and
(g) need to render substantial justice on merits.

In the circumstances, an application for condonation of delay under s 5 of the Limitation Act,
1963 was allowed subject to cost of Rs 5,000 to be paid to the Legal Aid Board by the
government initially and later fix the reasonability of delay on the concerned
officers/employees and recover the same from them.76 The petitioner has lost the best
period of his life due to the callous and unjust attitude of the Calcutta University, hence, he
should be adequately compensated. The case was pending for a period of seven years and
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on a number of occasion the case had to be adjourned, therefore, a cost of Rs 10,000 was
imposed against the university.77 The building of the petitioner company was unathorisedly
demolished by Regional Development Authority, hence, a cost of Rs 50,000 was awarded
by the court against the Regional Development Authority.78 The telephone connection of
the petitioner, a doctor, was arbitrarily disconnected on account of non-payment of bill. In
the facts and circumstance of the case, a cost of Rs 20,000 was awarded in favour of the
petitioner.79

29. Matrimonial causes. It is customary in the divorce division of the Calcutta High
Court to direct a respondent husband to secure the costs of the petitioner-wife. But if the
parties are members of the Jewish community and the cause is tried in the original civil
jurisdiction of the High Court and neither cl 35 of the Letters Patent nor the Indian Divorce
Act, 1869 applies, then s 25 of the Code of Civil Procedure will not justify such an order.80 In a
divorce petition, the husband alleged ground of adultery against the wife. The character of
wife was assassinated without any reason. The husband falsely implicated the dependant
and obedient servant of the family; besides, false witnesses were brought to ruin the entire
family. In the circumstances, a cost of Rs 10,000 was imposed against the husband which
the wife was entitled to recover from the assets of the husband.81 In a matrimonial petition,
the wifes appeal was dismissed by the Supreme Court, however, the cost was awarded in
favour of the wife as the court cannot ignore the social reality of a divorced wife in Indian
society.82

30. Suit for contribution towards costs. A defendant is not entitled, as against a co-
defendant to contribution in respect of costs to which both are liable unless there be some
equity existing between him and the co-defendant.83

This view has however not been accepted in Kulada Prasad Mitra v. Giribala Debya, 84 where
all the important cases on the point are considered.

31. Review of taxation. The court will always interfere and entertain a review of taxation
where a question of principle is involved, but the court is generally unwilling to interfere
where it is a question whether the master exercised his discretion properly, or if it is only a
question of the amount to be allowed.85 But the discretion of the master is not final even
on a question of quantum, for, he is not at liberty to lay down a scale for discretionary
charges which are out of all proportion to the work done.86 If any point of principle is to
be taken upon a review of taxation, the point of principle must have been properly raised
in writing delivered to the other party and carried in to the taxing master; and this is a
condition precedent to the right to apply for review to the judge in chambers.87

In taxation between two parties, only those costs are allowed which are strictly necessary
for the purpose of the prosecution of the litigation, while in taxation between attorney and
client, a party is allowed as many of the charges which he would have been compelled to
pay to his own solicitor, as being costs of the suit which fair justice to the other party
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would permit. In VV Ruia v. S Dalmia,88 the High Court of Bombay allowed costs as
between attorney and client, although the stock exchange, not a party to the suit, had
appeared in response to a notice by the court to answer the contention that it was not a
legal institution and that its rules were not valid. The High Court justified its order on the
ground that the exchange appeared and incurred costs not only to defend the validity of
the institution but in protection of a large section of the public which dealt with or through
it. If a solicitor incurs unusual or extraordinary expenses in excess of what would be
allowed in taxation between party and party, without express authority from his client,
such costs may be disallowed in taxation between attorney and client. In taxation between
attorney and client, separate counsel for two sets of defendants will be disallowed, if the
defences were not diverse, or if there was no reasonable probability of there being a
substantial difference between the defences.89 Rule 546 (now 562) of the Bombay High
Court Rules which disallows costs not necessary or proper for the attainment of justice or
defending the rights of the party refers to party and party costs.90 Rule 559 (now 576) of
the same rules provides that in case the solicitors bill is reduced in taxation by a sixth,

the solicitor shall pay all costs regarding the taxation. This is a penalty for an exaggerated
bill of costs, but the court has a discretion in exceptional cases to make a different order.1

A solicitor, who purports to act for a non-existing person, is personally liable for costs.2

A solicitor is not bound by the bill of costs which he once delivers to his client. He is at
liberty to present another and revised bill for taxation.3 An attorney instructing an advocate
(OS) to appear on the appellate side of the High Court is entitled to have the costs taxed
by analogy on the scale in Appendix E to the Rules on the Appellate Side.4

A solicitor can recover by a summary, proceedings, his taxed costs from the deposit made
in court under O 45, r 7.5 Discussing the rights of a solicitor with respect to his costs, the
High Court of Bombay has stated in Jamaithram v. Custodian of Evacuee Property:6
(i) that he can obtain an order in chamber for payment of his costs and execute it
against his client as a decree;
(ii) that he has got a lien over any property recovered or proceeds of any judgment
obtained by his exertion; and
(iii) that he can obtain a charging order.

32. Public Interest Litigation. A petition was filed requesting that the police force
camping in the college premises to check unruly elements be removed. The petitioners
were neither student nor parents of any student, hence, they had no locus standi to move
the High Court, consequently, the petitioner were saddled with the cost of Rs 5,000.7 On a
petition by an environmentalist organisation bringing to light pollution hazards caused by
chemical industries in Bichhri village, the polluting industries were directed to pay cost of
Rs 50,000 to the petitioner organisation.8
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Arbitrary allotment of petrol pumps by Minister of State for Petroleum and Natural Gas
was challenged by way of public interest litigation. Able assistance to the court, by the
petitioner, held petitioner entitled to a cost of Rs 50,000, which were directed to be paid by
the minister of state concerned personally.9

It is necessary to discourage people from bringing the petition which are motivated by
merely personal interest in the name of public interest, for which they have no locus
standi. Abuse of the process of the court, in the garb of public, adds to the courts already
heavy docket. This, at times, also results in manifest in justice to a public cause, because of
interim orders. A cost of Rs 10,000 was imposed upon the petitioner for bringing frivolous
litigation.10

In a case, the petitioner claiming himself to be a public spirited person filed a writ petition
under Article 226 of the Constitution seeking action against officials responsible for wasteful
expenditure of public funds in elections in Patna. The Delhi High Court found the petition
to be vague and also found that material facts relating to earlier petitions filed in Patna and
Ranchi had been withheld. It was held that the petitioner was interest in filing frivolous
petitions and dismissed the same with cost of Rs. 25,000/-.11

33. Delay in deposit of costcondonation of. Where the writ petition was directed against
an order whereby the application of the petitioner for deposit of cost; which ought to have
been deposited within 15 days, failing which the order setting aside the ex parte order was
to revive; has been filed after a lapse of six months and only explanation that has been
given was that there was advocates strike it was held that such strike cannot be a ground
for the condonation of delay because even if the advocates were on strike, the petitioner
could have deposited the money in person.12

34. Failure to deposit cost and absence of partyeffect. On failure of petitioner to

appear on a particular date and his non-payment of costs, he could be proceeded with ex-
parte, order striking off his defence is not proper.13

14[S. 35A. Compensatory costs in respect of false or vexatious claims or defences.

(1) If in any suit or other proceeding, 15[including an execution proceeding but

excluding an appeal or a revision], any party objects to the claim or defence on the
ground that the claim or defence or any part of it is, as against the objector, false or
vexatious to the knowledge of the party by whom it has been put forward, and if
thereafter, as against the objector, such claim or defence is disallowed, abandoned
or withdrawn in whole or in part, the Court, 16[if it so thinks fit], may, after
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recording its reasons for holding such claim or defence to be false or vexatious,
make an order for the payment to the objector, by the party by whom such claim or
defence has been put forward, of costs by way of compensation.
(2) No Court shall make any such order for the payment of an amount exceeding
17[three thousand rupees] or exceeding the limits of its pecuniary jurisdiction,

whichever amount is less:

Provided that where the pecuniary limits of the jurisdiction of any Court
exercising the jurisdiction of a Court of Small Causes under the Provincial Small
Cause Courts Act, 1887,18[or under a corresponding law in force in 19(any part of
India to which the said Act does not extend)], and not being a Court constituted
20[under such Act or law], are less than two hundred and fifty rupees, the High

Court may empower such Court to award as costs under this section any
amount not exceeding two hundred and fifty rupees and not exceeding those
limits by more than one hundred rupees:

Provided further, that the High Court may limit the amount which any Court or
class of Courts is empowered to award as costs under this section.

(3) No person against whom an order has been made under this sec- tion shall, by
reason thereof, be exempted from any criminal liability in respect of any claim or
defence made by him.
(4) The amount of any compensation awarded under this section in respect of a false or
vexatious claim or defence shall be taken into account in any subsequent suit for
damages or compensation in respect of such claim or defence.]

STATE AMENDMENT

Uttar Pradesh. The following amendments were made by Uttar Pradesh Act No. 24 of
1954 S. 2 and Schedule, Item 5, Entry 1 (w.e.f. 30-11-1954).

(a) In Section 35A, for the existing sub-section (1) substituted as below:

(1) if in any suit or other proceeding, including proceedings in execution, but not being an appeal or revision, the Court finds that the claim or defence or any part
thereof is false or vexatious to the knowledge of the party by whom it has been put forward and if such claim or defence or such part is disallowed, abandoned or
withdrawn in whole or in part, the Court may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the
payment to the successful party of costs by way of compensation irrespective of the decision on other issues in the case.

(b) Sub-sec (1A) has been inserted by Act 57 of 1976:

(1A) The provisions of sub-section (1) shall mutatis mutandis apply to an appeal where the Appellate Court confirms the decision of the trial Court and the
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trial Court has not awarded, or has awarded insufficient, compensatory cost under that sub-section.

1. History of the section.T his section was added into the Code by Act 9 of 1922, and by
s 7 of the Code of Civil Procedure (Amendment) Act, 1951, in the first proviso to sub-s (2) the
words and letteror under a corresponding law in force in a Part B State were inserted after
the figures 1887 and the words under such Acts or law were substituted for the words
under that Act. The section did not come into operation until the local government, with
the previous sanction of the Governor-General in Council, by notification in the local
Official Gazette, directed that the Act shall come into force in the province on such date
as may be specified in the notification. But, now, by s 19 of the Code of Civil Procedure
(Amendment) Act, 1951, this section, together with other amendments made by the said
Act IX of 1922, has been extended to the whole of India except a few states specified in s
1, sub-s (3) of the Code. By the Civil Procedure Code Amendment Act, 1956, in sub-cl (1) the
words including an execution proceeding but excluding were substituted for the words not
being and the words if it so thinks fit were substituted for the words if the objection has
been taken at the earliest opportunity and if it is satisfied of the justice thereof. In sub-cl
(2) the words in any part of India to which the said Act does not extend were substituted
for a Part B State by the Adaptation of Laws O 2 of 1956. The Amendment Act, 1976, has
further amended sub-s 1 to exclude from its operation revision proceedings. By
substituting for the words one thousand rupees the words three thousand rupees the
legislature has as a deterrent to false or vexatious claims and defences, authorised the
courts to award a higher amount by way of compensation.21

2. Scope.T he award of costs under this section is in the discretion of the court.22 This
section is intended to deal with exceptional cases in which costs under s 35 would not
afford sufficient compensation. Therefore, before awarding costs under this section, the
court should satisfy itself that the claim was false or vexatious to the knowledge of the
party who put it forward and that the interests of justice require the award of such costs
and that further, a claim therefore had been made by the party at the earliest opportunity.23

The Court while exercising powers for award of compensatory costs under s 35 -A should
exercise discretion. Discretion means judicial discretion, not whim, caprice or fancy of a
Judge. Thus, where an examinee had challenged the evaluation of his answer-scripts by the
Higher Education Council, it was held by a Full Bench of the Calcutta High Court held
that the Court directing pre-trial deposit for production of answer-sheets before Court, is
to decide how the amount deposited has to be appropriated and to what extent costs are to
be paid.24

Judicial notice can be taken of the fact that many unscrupulous parties take advantage of
the fact that either the costs are not awarded or nominal costs as awarded on the
unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their
own costs. In large number of cases, such an order is passed despite s 35 (2) of the Code of
Civil Procedure. Such a practice also encourages filing of frivolous suits. It also leads to
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taking up of frivolous defences. Further, wherever costs are awarded, ordinarily, the same
are not realistic and are nominal. When s 35 (2) provides for cost to follow the event, it is
implicit that the costs have to be those which are reasonably incurred by a successful party
except in those cases where the court, in its discretion, may direct otherwise by recording
reasons thereof. The costs have to be actual reasonable costs including the cost of the time
spent by the successful party, the transportation and lodging, if any, or any other incidental
cost besides the payment of the court fee lawyers fee, typing and other cost in relation to
the litigation. It is for the High Courts to examine these aspects and wherever necessary
make requisite rules regulations or practice direction so as to provide appropriate
guidelines for the subordinate courts to follow.25

It cannot be said of a claim that it is frivolous when it involves complicated questions

calling for elaborate consideration.26 Where a suit was filed for damages for breach of a
contract and it was found that the contract was forged, compensatory costs were awarded
under this section.27 The Supreme Court has, in a recent case, exhorted the trial courts to
exercise power under this section once they are satisfied that the litigation was inspired by
vexatious motives and was altogether groundless.28 Costs under this section have been
awarded in writ petitions.29 Extraordinary jurisdiction under Art. 226 of the Constitution
should not be allowed to be misused. Where the High Court comes to the conclusion that
the petitioner has approached the court with unclean hands, or has filed a writ petition
stating facts which are false, the petitioner must be penalised with penal consequences. If
the High Court finds that either a false statement has been made by the petitioner, or that
he has come with unclean hands, the court should suitably penalise such a person.30Section
35(1) itself excludes appeals and revisions from its scope. Compensatory costs under s 35
A cannot be awarded by the appellate court even if the claim or defence raised by the
parties is false, vexatious or frivolous.31

A lady litigant appeared in the Supreme Court in person but refused to argue an merits of
the case the points raised by the counsel for the opposite party. She also used foul language
for some of the counsels associated with the proceedings in spite of being cautioned by the
Court. The lady was well aware with the conduct of judicial process and there were no
extenuating factors for her behaviour. Under these circumstances the Court imposed
exemplary cost of Rs 5 lacs.32 Bedi, J., speaking for the Division Bench of Supreme Court
observed as follows:

A resume of the facts clearly reveal the incorrigible and recalcitrant attitude of the respondent. We could perhaps condone her errant conduct if she was merely a
highly strong and impetuous lady oversensitive to her case and unaware of the nuances of the law and the decorum to be maintained in court but we are satisfied
that no ignorance nor mental imbalance is discernible which can be pleaded in extenuation of her behaviour. The record reveals that she is well aware of the
conduct of judicial process and the law and facts relating to her case, but she has evolved a strategy which has thus far kept her in good stead as it has been
designed to filibuster the proceedings in case she finds that they are not taking the direction that she has chalked out and that despite her conviction for contempt
of court on two occasions and numerous admonitions and warnings not withstanding, she has remained unfazed and has in a most unbecoming manner
relentlessly and ruthlessly pursued the litigation33
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In a suit for eviction, where the tenants had deliberately prolonged harassment of the
landlord in lingering on frivolous litigation, the High Court directed to pay cost of Rs.
10,000/-, apart from the arrears rent.34

In a case relating to fire insurance, the Branch Manager as well as the Divisional Manager
of the Insurance Company had recommended specifically that the claim of the insured
should be paid. But the company still rejected the claim without giving specific reasons.
The Himachal Pradesh High Court held that Insurance Company is a public body and is
accountable to the public; it cannot waste time and money on frivolous and vexations
litigation. With this observation the High Court imposed exemplary cost of Rs. 10.000/-
on the insurance company.35

In execution proceedings of an eviction decree, the judgment-debtor avoided the execution

of the decree for a year and a half and subjected the deree-holder to litigation costs before
different forums, the High Court imposed a cost of Rs. 1 lac to be paid to the decree-
holder. It was observed that cost imposed should be act ual and reasonable including the
cost of time spent by the successful party in pursuing the litigation.36

The Supreme Court has held that power to levy exemplary cost should be exercised
sparingly to advance justice. It should not be used as a threatening and oppressive tool. It
was observed that exemplary costs should be levied only when the claim is found to be
false or the party is guilty of fraud, misrepresentation etc. Thus, in a writ petition against
eviction order passed against a Government servant from Government quarter, it was held
that imposition of exemplary cost was improper as the Government servant had retained
the quarter for 10 years on the basis of an interim stay order granted by the Appellate
Court.37

The petitioner making reckless and wanton allegations against respondent, especially in the
matter of his personal and private life. The petitioner pursued the allegations despite stout
denial by the respondent in his counter affidavit. The main charge of mala fide against the
respondent not proved, hence, a cost of Rs 5000 imposed against the petitioner.38 The only
question is whether the judgment-debtors need be arrested as ordered by the court in
execution of a decree. The Kerala High Court observed that the judgment-debtors must be
given an opportunity to avert the order for their arrest by compensating the plaintiff in a
reasonable manner for their act of violation. A compensatory cost of Rs 5000 was imposed
against the judgment-debtors to avert the arrest as per the order of the lower court.39 In a
suit for possession of a church building, the defendant, a priest, is unnecessarily involving
himself into litigation arising out of the objection as to valuation of suit the suit was filed in
the year 1986. However, written statement was not filed for almost 10 years, hence, an
exemplary cost imposed upon the priest.40 The officers of the electric board filed false or
incorrect statement in the counter affidavit; it was held that in the circumstances,
exemplary cost and the cost of the petition were directed to be paid to the petitioner board
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by way of adjustment towards future bills. The electricity board was also permitted to
recover the said cost from the officers who issued the impugned bill.41

3. Party. The section introduces the word party which has been omitted in s 35. But an
order for compensatory costs has been made against a next friend.42 Compensatory costs
can be awarded against a defendant who instigated the plaintiff to bring the unsuccessful
suit.43 The court has no power to award compensatory costs without giving reasons and
unless the point is raised.44

4. Sections 35-A and 35-B. Section 35B, which is narrower than s 35 A, concerns itself
with the hearing of a suit or for taking any step therein. In contrast, s 35 A uses the words
any suit or other proceedings. Section 35B(1) would not, ordinarily, apply to the type of
proceedings such as notice of motion, taken out for restoration of the suit itself.45

5. Appeal. An order awarding compensation under this section is appealable under s 104
(ff). But an Appellate Court cannot make an order when the original court has omitted or
refused to do so.46 See proviso to O 41, r 33.

In a case where there was utter lack of legal authority for deprivation of the respondents
property by the appellants who were state authorities, the appeal was dismissed with
exemplary costs of Rs 25,000.47 When the entire history of litigation showed cussedness
and lack of bona fides on part of tenant, apart from his tenacity and determination to
prevent landlord from enjoying the fruits of the decree, exemplary costs of Rs 20,000 were
imposed on the tenant-respondent.48

The appeal which was bereft of any merit is liable to be dismissed. The Supreme Court was
at pains to note that by his acts of omission and commission, the said secretary had
consistently and persistently deprived the respondent no 1 of the duty to assume and
discharge his duties as member and president of the municipal council, despite his election
from 2 January 1998 till date. The term of the office of the municipality was a fixed term
out of which three years of the respondent no 1 had been wasted in uncalled for and
forced litigation upon him. No law can compensate the loss of opportunity provided to the
respondent no 1 for serving the people after his election as member and president of the
municipality. The Supreme Court found it a fit case to award exemplary costs and was of
the firm view that such costs should not be burdened upon the state exchequer. The said
secretary who was responsible for the violation of the statutory provisions and weakening
the concept of rule of law, was therefore personally liable to pay the costs from his own
pocket. While dismissing this appeal, the Supreme Court directed the said secretary to
personally pay the costs of Rs 25,000 to the respondent no 1 within a period of two
months.49
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50[S. 35B. Costs for causing delay.

(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party,
to the suit
(a) fails to take the step which he was required by or under this Code to take on that
date, or
(b) obtains an adjournment for taking such step or for producing evidence or on
any other ground,

the Court may, for reasons to be recorded, make an order requiring such party to pay to
the other party such costs as would, in the opinion of the Court, be reasonably sufficient to
reimburse the other party in respect of the expenses incurred by him in attending the
Court on that date, and payment of such costs, on the date next following the date of such
order, shall be a condition precedent to the further prosecution of

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs;
(b) the defence by the defendant, where the defendant was ordered to pay such costs.

Explanation. Where separate defences have been raised by the defendants or

groups of defendants, payment of such costs shall be a condition precedent to
the further prosecution of the defence by such defendants or groups of
defendants as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in
the costs awarded in the decree passed in the suit; but, if such costs are not paid, a
separate order shall be drawn up indicating the amount of such costs and the names
and addresses of the persons by whom such costs are payable and the order so
drawn up shall be executable against such persons.]

1. Scope. The section has been added to discourage parties to a litigation from causing
undue or unnecessary delay in the prosecution of the suit at any of its stages. To that end,
it empowers the court to order compensatory costs, which are irrespective of the ultimate
result of such suit. The section further makes payment of such costs a condition precedent
to the further prosecution of the suit or the defence, as the case may be, by the concerned
plaintiff or the defendant.

The explanation clarifies that in the case of different groups of defendants who have raised
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different defences, the group that fails to comply with the order of costs will be deprived
of the right to defend but not the other group or groups.51

The facts of the case showed that litigants and his successors-in-interest tried all possible
methods to outwit the law and, in the process, stifled the justified cause for a period of 36
years. They changed their stand, depending upon their convenience from time to time and
were undeterred even in concealing the proceedings instituted in one court to another
where they shifted their stand. Their natural anxiety to save the land within the frame work
of law is understandable but then in such a pursuit, if they were to go against law and base
their defence totally on false and frivolous grounds, they would certainly earn the wrath of
the court and would be asked to pay compensatory costs. The High Court was thinking of
burdening them with one lakh rupees as costs but the fact that they, in this long drawn
litigation, were able to get one order in their favour also from the learned single judge of
High Court, where proper facts could not be projected, the High Court reduced the costs
to Rs 50,000.52

In an eviction suit, the judgment-debtor was able to avoid execution of the decree by
involving the landlord in a series of frivolous litigations and even after 39 years the
landlord was unable to reap the fruits of decree. It was held by the Allahabad High Court
that it was a fit case where instead of directing the Executing Court to conclude the
execution proceedings, direction should be issued to judgment-debtor to hand over vacant
possession. The court further imposed a fine of Rs. 50,000/-.53

2. Sections 35-A and 35-B. See notes under s 35 -A.

3. Judicial notice. Judicial notice can be taken of the fact that many unscrupulous parties
take advantage of the fact that either the costs are not awarded or nominal costs as
awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties
to bear their own costs. In large number of cases, such an order is passed despite s 35 (2) of
the Code of Civil Procedure. Such a practice also encourages filing of frivolous suits. It also
leads to taking up of frivolous defences. Further wherever costs as awarded, ordinarily the
same are not realistic and are nominal. When Section 35(2) provides for cost to follow the
event, it is implicit that the costs have to be those which are reasonably incurred by a
successful party except in those cases where the court in its discretion, may direct
otherwise by recording reasons thereof. The costs have to be actual reasonable costs
including the cost of the time spent by the successful party, the transportation and lodging
if any or any other incidental cost besides the payment of the court fee lawyers fee, typing
and other cost in relation to the litigation. It is for the High Courts to examine these
aspects and wherever necessary to make requisite rules, regulations or practice direction so
as to provide appropriate guidelines for the subordinate country to follow.54

4. Directory. The provision in s 35 B is directory, according to the Patna High Court,55

dissenting from the High Court of Punjab and Haryana.56
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The reasoning of the Patna High Court is as under:

It will be noticed that in Section 35B, there are two partsone providing for dismissing of
suit or striking out the defence, as the case may be, and the other for realisation of the test
by execution. If the first part of the section is mandatory, then not only the suit is
dismissed when the defaulter is the plaintiff or the defence is struck off if the defaulter is
the defendant, but also he cannot escape in paying the cost. The party, thus, suffers twice.
This could not be the intention of the Legislature.

The Himachal Pradesh High Court has held that the provisions of s 35 -B for imposition
of costs for causing delay is directory and not mandatory. The Court may not stop further
prosecution of the suit by plaintiff for non-payment of costs. It has been further held that
an order dismissing the suit for non-payment of costs in essentially an order dismissing the
suit for non-prosecution and would not amount to a decree. The remedy available to an
aggrieved party is to apply to the Court under s 151 of the code for recalling that order and
provisions of O 9, r 9 of the Code are not applicable.57

Final word on this point has been pronounced by the Supreme. It has been held that the
words further prosecution of suit mean further participation, but non-payment of cost
does not entail dismissal of suit.58

Raveendran, J., speaking for the Supreme Court Bench, has explained the point in the
following words:

Section 35B provides that if costs are levied on the plaintiff for causing delay, payment of such costs on the next hearing date, shall be condition precedent to the
further prosecution of the suit by the plaintiff. Similarly, if costs are levied on the defendant for causing delay, payment of such costs on the next date of hearing,
shall be a condition precedent to the further prosecution of the defence of the suit by the defendant. This takes us to the meaning of the words further prosecution
of the suit and further prosecution of the defence. If the legislature intended that the suit should be dismissed in the event of non-payment of costs by plaintiff, or
that the defence should be struck off and suit should be decreed in the event of non-payment of costs by the defendant, the legislature would have said so. On the
other hand, legislature stated in the rule that payment of costs on the next date shall be a condition precedent to the further prosecution of the suit by plaintiff
(where the plaintiff was ordered to pay such costs), and a condition precedent to the further prosecution of the defence by the defendant (where the defendant was
ordered to pay such costs). This would mean that if the costs levied were not paid by the party on whom it is levied, such defaulting party is prohibed from any
further participation in the suit. In other words, he ceases to have any further right to participate in the suit and he will not be permitted to let in any further
evidence or address arguments. The other party of course be permitted to place his evidence and address arguments, and the court will then decide the matter in
accordance with law. We therefore reject the contention of the respondents that section 35 -B contemplates or requires dismissal of the suit as an automatic
consequence of non-payment of costs by plaintiff.59

Where an application for the dismissal of the suit for non-payment of costs for
adjournment is filed one year after the date fixed for the payment of costs, s 35 is not
attracted. Such dismissal by the trial court is illegal and can be revised.60 Though the
language employed in s 35 B is preemptory, the word shall does not necessarily indicate
that a court which was seized of the case had no discretion in the matter. Further, no
injustice had been caused in the instant case, as the rights of the parties were duly
safeguarded. Hence, the High Court would not interfere under s 115.61 A suit cannot be
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dismissed merely because plaintiff fails to pay costs ordered by the court to be paid by the
plaintiff, being costs occasioned by an adjournment granted at the plaintiffs request on
condition of payment of costs.62

Where, for the non-payment of costs, a provision prohibited further prosecution of the
suit or defence, the provision is directory. It does not mean that the party against whom
costs are awarded, should be given a long rope to keep the proceedings deferred until it is
pleased to deposit the costs. The enlargement of time in this connection, by exercising
power under s 148 of the Code of Civil Procedure has to be granted, only in cases where the
court is satisfied that the default is not willful or the conduct of the party is not
contumacious. The party ordered to pay costs cannot be allowed to defeat the very
purpose of s 35 B, by acting negligently or contumaciously. Section 35B does not apply to
rent control proceedings. But the rent controller can adopt its principle.63 Plaintiff was
allowed to file certain documents on payment of costs to the defendant. The plaintiff failed
to pay costs, on the date next following the date of order. It was held that the plaintiff
cannot, under s 35 B, be debarred from prosecuting the case. Section 35B is an extreme
penalty and it should not be imposed unless the case squarely falls within the four corners
of the section. Being a penal section, it is to be construed very strictly.64 Plaintiff was
allowed time to file replication on payment of costs. Costs were not paid along with the
replication. Court permitted payment of costs on subsequent date. The order is neither
invalid nor did it cause injustice to defendant. Interference in revision is not warranted.
Hence, the High Court would not interfere under s 115.65

Section 35B does not debar the defendant from prosecuting the case for ever if he fails to
pay the costs ordered by the court under s 35 B. The court can order that unless the
defendant pays the costs, he will not be allowed to enter upon his defence. Where no date
is fixed in the order for the payment of costs, such a condition cannot be read into the
order.66

Section 35B is mandatory. If a party fails to pay the costs on the next date, the court is
bound to disallow prosecution of the suit or defence (as the case may be). In the event of
the party failing to pay the costs on the date next following the date of the order imposing
the costs, it is mandatory on the court to disallow the prosecution of the suit or defence, as
the case may be. No other extraneous consideration would weigh with the court in
exercising its jurisdiction against the delinquent party. However, in cases where costs are
not paid as a result of the circumstances beyond the control of the defaulting party, the
court will be within its jurisdiction to exercise its powers under s 148 of the Code in favour
of the defaulting party, if a strong case is made out for the exercise of such jurisdiction.67

5. Condonation of delay. Condonation of delay is in the discretion of the court. Courts

should be liberal in the matter of condoning delay in the interest of justice and the party
should not be penalised for the fault of his advocate and should be given opportunity to
defend the suit.68 Defendant failed to pay costs, even on the last date, when the written
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statement was filed. But he offered to pay the costs on the date, when the case was taken
up for hearing. It was held that the trial court should not have ordered that the defendant
be debarred from prosecuting the suit.69

In a case under the Delhi Rent Control Act, 1956 there was late deposit of rent amount and
the Court imposed costs to be paid within 30 days as a condition for giving the benefit
under s 14 (2) of the Act. The cost was not paid ever during the extended period. It was
held by the High Court that the appeal was rightly dismissed by the Rent Control
Tribunal.70

Discretion of condonation of delay is with the court and courts should be liberal in the
matter of condoning delay in the interest of justice and the party should not be penalised
for the fault of his advocate and should be given opportunity to defend the suit. Where the
party came to know of ex parte decree only when he received the notice of its execution
though he had duly handed over written statement to his counsel and was expecting
communication from him, considering bona fide that the suit was yet pending, the delay,
even though inordinate, in making application to set aside ex parte decree ought to be
condoned. However, the applicant was saddled with costs of Rs 1,000.71

6. Cost should be reasonable. In view of the fact that the costs occasioned by the
adjournment ought to be reasonable and not by way of penalty, the award of Rs 20,000 as
costs after arguments are concluded, and that also to enable learned counsel for the
appellant to cite few decisions are by way of penalty. The same cannot be treated as
adjournment costs to compensate the opposite party. The costs imposed in the facts and
circumstances cannot be said to be reasonable one. They are punitive in nature and cannot
be said to be the costs, which would be costs commensurate with the costs occasioned by
the adjournment. Thus discretion in the case was not properly exercised in the matter of
imposing costs.72

7. Repeated applications. If repeated applications calling for the records are made
without good or sufficient reasons, the court will be at liberty to impose cost for wasting
public time and delaying the proceeding.73

8. Waiver of right. According to a Full Bench of the High Court of Punjab and Haryana,
where the issue as to non-payment of costs ordered under s 35 B is not raised by the
parties, nor taken note of by the court, then there is a waiver of the right arising under the
section by the party entitled to costs, and the issue cannot be raised on subsequent dates.
The court gave the following reasoning in support. The High Court pointed out that an
order for the payment of costs, is plainly one in favour of the individual litigant. Now, on
general principles even, it is plain that (the) person in whose favour such a right accrues,
may waive the same. Obviously, it would be untenable to hold that a party must be
compelled to exercise a right vested in him. Therefore, it would follow that if such a right
can be waived expressly, then, equally, it may be so done impliedly, or at least deemed to
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be so in the eye of the law. In the context of s 35 B, if, on the date next following the date
of the order of the payment of costs, the issue is not raised by either of the parties or taken
notice of by the court, and the case is allowed to proceed further, it would follow that the
party having the right to bar the further prosecution of the suit or the defence has waived
its right. Thereafter, it would not be possible to again exercise the ghost of the stringent
provisions of s 35 B at any and every subsequent date.74

Placing reliance on the above mentioned Full Bench decision, the Delhi High Court held
that where the party entitled to cost awarded by Court fails to raise object as to non-
compliance on the date fixed for such payment, it will not be open to the party to re-open
the issue of their Will on subsequent date and seek barring of further prosecution or
defence under s 35 -B. Implied waiver of the right would arise.75

45 . Sub-s. (3) omitted by CPC (Amendment) Act 66 of 1956, s 3. Before Omission it stood as under:
(3) The Court may give interest on costs at any rate not exceeding six per cent per annum, and such interest shall be added to the costs and
shall be recoverable as such.
46 . Mahindra v. Aswini, (1920) ILR 48 Cal 427; Anandji Haridas & Co. v. State, AIR 1977 Guj 140 [LNIND 1976 GUJ 113], 18 Guj LR 271.
47 . Nandlal v. Jayadev, AIR 1962 Pat 36.
48 . Hira v. Gaya, AIR 1932 All 183: (1932) 54 All 122.
49 . Manmatha v. Abu Zafer, AIR 1929 Cal 560: (1929) ILR 56 Cal 484.
50 . Assistant Collector, Salsette v. Damodardas, AIR 1929 Bom 63: (1929) ILR 53 Bom 178.
51 . Willmott v. Barber, (1881) 17 CD 772.
52 . Cockburn v. Edwards, (1881) 18 CD 449; R.K. Karanjia v. Thackersey, 72 Bom LR 94 106 : AIR 1970 Bom 424 [LNIND 1969 BOM 44].
53 . Harsh Wood Products v. State, AIR 1989 M.P. 112.
54 . Municipal Corpn. of Delhi v. Kamla Devi, AIR 1996 SC 1733 [LNIND 1996 SC 720]. See also Mahendra Baburao Mahadik v. Subhash Krishna
Kanitkar, AIR 2005 SC 1794 [LNIND 2005 SC 271]; Karnataka Slum Clearance Board, Bangalore v. HT Annaji, AIR 2006 Kant 241
[LNIND 2006 KANT 318]; Shibu Chandra Dhar v. Pasupati Nath Anddya, AIR 2002 SC 1252 [LNIND 2002 SC 177].
55 . Medical Council of India, New Delhi v. Sonali Singh, 2008 (106) Cut LT 477 : 2008 (2) Orissa LR 467.
56 . Ramesh Bhodhraj Nagpal (HUF) v. Smt. Prakash Kaur Sardar, 2009 (4) All MR 370 : 2009 (4) AIR Bom R 191.
57 . Madurai Kamraj University v. K. Rajayan, (1988) Supp SCC 97.
58 . Common Cause, a (Registered Society) v. Union of India, AIR 1996 SC 3538 [LNIND 1996 SC 1542].
59 . Life Insurance Corporation of India v. Escorts Ltd., (1986) 1 SCC 264 [LNIND 1985 SC 362].
60 . Akhileshwar Mishra v. State of Bihar, AIR 1995 Pat 10(DB). See also Stella Silks Ltd. v. State of Karnataka, AIR 2001 Kant 219 [LNIND
2001 KANT 55].
61 . Heera Lal v. Board of Revenue, AIR 2001 Raj 318(DB).
62 . Hindustan Metals v. Vishal Goods Transport Co., AIR 2002 Raj 248.
63 . Venketesh Iyer v. Bombay Hospital Trust, AIR 1998 Bom 373 [LNIND 1998 BOM 490].
64 . Ambika Prasad Dubey v. District Magistrate, Allahabad, (1991) Supp 1 SCC 255.
65 . Midhuna Nathan v. State of Tamilnadu, AIR 1996 Mad 178 [LNIND 1995 MAD 716] (DB).
 Page 35 of 42
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66 . Brij Mohan Rice Mill v. Regional Manager, UPFC, AIR 1997 All 291 [LNIND 1996 ALL 1239] (DB). Regarding compensatory costs in
cases of false or vexatious claims or defences, see s 35A below.
67 . National Textile Corporation Ltd. v. Kunj Bahari Lal, AIR 2010 Del 199 [LNIND 2010 DEL 913].
68 . Ibid, at p. 202-203.
69 . Arunachala v. Louis Dreyfus, AIR 1928 Mad 370 [LNIND 1927 MAD 399]: (1928) 54 Mad LJ 580.
70 . Rai Bahadur Sermal Dalmia v. Manindra Lal, (1935) 40 Cal WN 762.
71 . Surya Narain Prasad v. Surya Manjha, AIR 1947 Pat 106.
72 . Punjab National Bank v. Sri Ram Kunwar, AIR 1957 SC 276 [LNIND 1956 SC 113]: (1957) SCR 220 : (1957) SCJ 225 [LNIND 1956 SC
108] (1957) SCA 598.
73 . Kancherla Sardha Devi v. Saripella Sivaramaraju, AIR 1995 Andh Pra 291.
74 . Ramgopal v. Secretary of State, AIR 1933 Bom 106: (1933) ILR 57 Bom 589.
75 . T.S. Radhakrishnan v. State Bank of India, AIR 1978 Mad 163 [LNIND 1977 MAD 199].
76 . Radha Persshad v. Ram Permeswar, (1882) ILR 9 Cal 797 : 10 IA 113.
77 . Kedarnath v. Johormull, AIR 1930 Cal 465: (1930) ILR 57 Cal 469.
78 . Kedarnath v. Johormull, AIR 1930 Cal 465: (1930) ILR 57 Cal 469.
79 . Ibid.
80 . Templeton v. Laurie, (1901) ILR 25 Bom 230.
81 . Jivabai v. Teja, AIR 1924 Bom 398: (1924) 26 Bom LR 282 [LNIND 1924 BOM 21].
82 . American Trading Co v. Bird & Co., AIR 1926 Bom 596: (1926) ILR 50 Bom 430.
83 . Godavarthi v. Godavarthi, (1915) ILR 39 Mad 476.
84 . Dawood Bhai v. Sheik, AIR 1953 Bom 445 [LNIND 1953 BOM 50]: (1954) ILR Bom 29 : 58 Bom LR 618.
85 . Fennessy v. Day and Martin, (1886) 55 LT 161.
86 . Damodar S. Prabhu v. Sayed Baba lal H., AIR 2010 SC 1907 [LNIND 2010 SC 426]: (2010) 5 SCC 663 [LNIND 2010 SC 426].
87 . Ibidi, at pp. 1913-1914.
88 . Ibidi, at pp. 1914-1915.
89 . Madhun Mohun v. Gokul Doss, (1866) 10 MIA 563; Velu v. Ghose (1894) ILR 17 Mad 293 : p. 296; Abdulkadar v. Kashinath, AIR 1968 Bom
267 [LNIND 1967 BOM 17]: 69 Bom LR 848, p. 854; Anandji Haridas & Co. v. State, AIR 1977 Guj 140 [LNIND 1976 GUJ 113]: 18
Guj LR 271.
90 . Grish Chunder v. Soshi Shikhareswar, (1900) ILR 27 Cal 951 : 27 IA 110.
91 . Leckie v. Joy Gobindo, (1881) 7 CIR 114.
92 . K.C.Thomas v. Thomas, 2006 (4) Ker LT 739 : (2005) 1 ALD (Cri) 35.
1 . Dambarudhar Bhunya v. Muralidhar Bhunya, AIR 1986 Ori 15 [LNIND 1984 ORI 15].
2 . Bhagyashree Combines v. District Magistrate, Bellary, AIR 1998 Kant 238(DB).
3 . K Patel Chemo Pharma Pvt. Ltd. v. Laxmi Bai Ram Chandra Iyer, (1993) Supp 2 SCC 174.
4 . Kanta Dutta v. Eighth Additional District Judge, Meerut, 1991 Supp (1) SCC 219.
5 . Sardar Mohar Singh v. Mangi Lal, (1997) 9 SCC 217 [LNIND 1997 SC 57].
6 . Mohan Benefit Pvt Ltd. v. Kachraji Raymalji, (1977) 9 SCC 103.
7 . Chaturbhuj Pande v. Collector, AIR 1969 SC 255 [LNIND 1968 SC 170]; Krishneshwari v. Rameshchandra, AIR 1965 All 228; Om Sarup v. Gur
Narain, AIR 1965 Punj 367: 67 Punj LR 634; Kaushalya v. Ramlal, AIR 1972 Del 126 [LNIND 1971 DEL 173].
8 . Janardhan Mohandas Rajan Pillai v. Madhubhai Patel, AIR 2003 Bom 490 [LNIND 2003 BOM 629].
9 . Maharajadhiraj Sir Kameshwar Singh v. Nabilal Mistri, AIR 1945 Pat 184: (1944) ILR 23 Pat 929; Ralliram Dingra v. Governor-General of India
in Council, AIR 1946 Cal 249: (1944) ILR 2 Cal 487 : (1944) 48 Cal WN 554; Huxley v. West London Ex Ry., (1886) 17 QBD 373, p. 376;
Justain Hull v. Paull, (1919) 24 Cal WN 352, p. 357; Bacha Rowther v. Alagappan, AIR 1959 Mad 12 [LNIND 1957 MAD 111]: (1958) 2
MLJ 157 [LNIND 1957 MAD 111]; Rangappa v. Marappa, AIR 1951 Mad 575.
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10 . Bhagwanji Morarji Gokuldas v. Alembic Chemical Works Co. Ltd., AIR 1944 Bom 205: 46 BLR 265; Bhugobati v. Mahomed, AIR 1925 Cal 569:
(1902) 7 Cal WN 297, p. 299; Naramme v. Kotamme, AIR 1966 Andh Pra 28; A Yousuf v. Souramma, AIR 1971 Ker 261 [LNIND 1970
KER 78]: (1971) ILR 1 [LNIND 1971 DEL 9] Ker 154.
11 . As to discretion of taxing-master, Sadasukh v. Baijnath, AIR 1921 Bom 87; Jivanlal v. Bai Manchha, AIR 1925 Bom 355: (1925) 27 Bom
LR 532; FCI v. Willianson Magor & Co., AIR 1999 Cal 219 [LNIND 1998 CAL 362].
12 . Hakim Rai v. Gangaram, AIR 1942 PC 61: (1942) 47 Cal WN 113; Willmott v. Barber (1881) 17 Ch D 772, p. 774.
13 . Carvalho v. Nurbibi, (1879) ILR 3 Bom 202.
14 . Shanker v. Ghisuji, AIR 1971 SC 281 [LNIND 1970 SC 351]: (1970) 2 SCC 84.

15 . Harris v. Petherick, (1879) 4 QBD 611; Fane v. Fane (1979) 13 Ch D 288 ; Deviah v. Nagappa, AIR 1965 Mys 102.
16 . Ganga Bishan v. Muree Brewery Co., AIR 1928 Lah 800: (1928) 10 Lah LJ 401.
17 . Gulabchand v. Manikchand, AIR 1960 MP 263 [LNIND 1960 MP 128].
18 . United Bank of India v. Nederlandsche Standard Bank, AIR 1962 Cal 325 [LNIND 1961 CAL 94].
19 . Ramaswami v. Lakshmi, AIR 1962 Ker 313 [LNIND 1961 KER 343].
20 . Kierson v. Joseph L. Thompson & Sons Ltd., (1913) 1 KB 587.
21 . Bevington v. Perks, (1925) 2 KB 229, p. 231.
22 . Bacha Rowther v. Alagappan, AIR 1959 Mad 12 [LNIND 1957 MAD 111]: (1958) 2 MLJ 157 [LNIND 1957 MAD 111].
23 . Civil Service Co-operation Society v. General St Nav Co., (1903) 2 KB 756 (CA).
24 . Jugraj Singh v. Jaswant Singh, AIR 1971 SC 761 [LNIND 1970 SC 136]: (1970) 2 SCC 386 [LNIND 1970 SC 136]; Nandlal v.
Ramchandiram, AIR 1968 Bom 208 [LNIND 1966 BOM 43]: 69 Bom LR 364; Parvati Devi v. Tibbia College Board, AIR 1965 Punj 379.
25 . Shankar v. Parwatibai, AIR 1976 Bom 241 [LNIND 1975 BOM 227]: 78 Bom LR 186.
26 . Ghansham v. Moroba, (1894) ILR 18 Bom 474; Kuppuswami v. Zamindar of Kalahasti, (1904) ILR 27 Mad 341; Cooper v. Whittingham, (1880)
15 Ch D 501; Roadeshwar v. Manroop, 13 IA 20, p. 31 (successful plaintiff); Monohur v. Ramanauth, (1878) ILR 3 Cal 484; Bhubaneswari v.
Nilcoomul, (1886) ILR 12 Cal 18 24 : 12 IA 137 (successful defendant); Forster v. Farguhar, (1893) 1 QB 564; Huxley v. West London Extension
Rly. Co., (1889) 14 App Cas 26, 32.
27 . Board of Education v. Ramakrishna, AIR 1959 All 226 [LNIND 1958 ALL 129].
28 . Omveer Singh v. District Judge, Haridwar, AIR 2009 Uttr 55 [LNIND 2008 UTTAR 274]: 2009 (1) UC 572.
29 . Thyseen Krupp werkstoffe GMBH v. Steel Authority of India, 2010 (168) DLT 250.
30 . Reid, Hewitt & Co v. Joseph, AIR 1918 Cal 717; Myres v. Defries, (1880) 5 Ex D 180; Ellis v. De Silva (1881) 6 QBD 521; Abbot v. Andrews,
(1882) QBD 648; Jones v. Curling, (1884) 13 QBD 262.
31 . Ghasiram v. Mahadevamma, AIR 1975 Kant 158 [LNIND 1974 KANT 205]: (1975) ILR Kant 691.
32 . Ramsevak Bhurelal v. Hiralal Swamiprosad, AIR 1943 Nag 273: (1943) ILR Nag 462; Bostock v. Ramsey Urban District Council, (1900) 1 QB
357, 360; affd (1900) 2 QB 616; Sukumari v. Gopi Mohan, (1916) ILR 43 Cal 190; Walter v. Chief Secretary, AIR 1953 TC 286; United Industries
v. The Agriculture Income-Tax and Sales-Tax Commr., AIR 1953 Tr & Coch 531.
33 . Beckett v. Stiles, (1888) 5 Times Law Rep 88.
34 . Allah Diya v. Sana Devi, (1942) 25 Ch D 182; Wittman v. Oppenheim, (1884) 27 Ch D 260; the remarks of North J, in Walter v. Steinkopff,
(1892) 3 Ch D 489 .
35 . Rajagopalswamy v. Karaikudi Bank, AIR 1965 Mad 537 [LNIND 1965 MAD 62]: (1965) 2 Mad LJ 233.
36 . Mani Devi v. Anupurna Dai, AIR 1943 Pat 218: (1942) ILR 22 Pat 114; Harinath v. Krishna, (1888) ILR 14 Cal 147 : 13 IA 123; Hyam v.
Bengal Stone Co., (1916) 20 Cal WN 368.
37 . Bepin Behari v. Promotho Nath, AIR 1930 Pat 336, (1930) ILR 9 Pat 773; Satya Kumar Kirpal, (1910) 10 Cal LJ 503.
38 . Ramji v. Ellis, (1898) ILR 20 Bom 167; contra Thimappa v. Thangavelu, AIR 1941 Mad 76 [LNIND 1940 MAD 193].
39 . Maharajadhiraj Sir Kameshwar Prasad Singh v. Nebilal Mistri, AIR 1945 Pat 184: (1944) ILR 23 Pat 929; Upendra v. Bisweswar, (1924) 29 Cal
WN 267 : AIR 1925 Cal 596.
40 . Haribux Gouri Sankar v. Subhakaron Tulsiram, AIR 1965 Ori 211 [LNIND 1964 ORI 10].
41 . Swaminatha v. Official Receiver (1957) SCR 775 [LNIND 1957 SC 30] : AIR 1957 SC 557: (1957) SCJ 501 [LNIND 1957 SC 10] : (1957)
SCA 962 [LNIND 1957 SC 30].
42 . Moos v. Gulamali, AIR 1930 Bom 152: (1930) 32 Bom LR 200.
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43 . Ramasami Naiken v. Venkatasami, (1919) 43 Mad LJ 61; distinguished in ALSPPL Sub-ramania Chettiar v. Moniam P. Narayanaswami
Gounder, AIR 1951 Mad 48 [LNIND 1950 MAD 116] (FB).
44 . Krishnan v. Hindustan Commercial Bank, AIR 1957 Punj 310: (1957) ILR Punj 656.
45 . Margarent v. Spain, AIR 1953 Mad 313 [LNIND 1952 MAD 216].
46 . State of Uttar Pradesh v. Shamsundar, AIR 1961 All 418 [LNIND 1960 ALL 185].
47 . AIR 1958 SC 512 [LNIND 1958 SC 27]; Seethamma v. Life Insurance Co., AIR 1954 Mys 134; Nagachari v. Subbamma, AIR 1955 Andh Pra
114; Nana Saheb v. Appa, AIR 1957 Bom 138 [LNIND 1957 BOM 16]: 59 Bom LR 303.
48 . Baboolal v. Mangilal Balkishan, AIR 1957 MP 90 [LNIND 1956 MP 28]: 1957 Jab LJ 83.
49 . N.S.S. Medical Mission Hospital v. Sulbeth Beevi, 2009 (2) Ker LT 779 [LNIND 2009 KER 119] : 2009 (4) AIR Bom R 765.
50 . Cooper v. Whittingham, (1880) 15 CD 501; Upmann v. Forester, (1883) 24 CD 231; Civil Service Co-op. Society v. General St Nav Co., (1903) 2
KB 756 (CA); Luximibai v. Radhabai, (1918) 42 Bom 327.
51 . Kailash Chandra v. Nand Kumar, AIR 1944 Cal 385.
52 . Khetro Swami v. Sri Sri Padmanabha Singh Deo, AIR 1943 Pat 403; Parkinson v. College of Ambulance, (1925) 2 KB 1, p. 17.
53 . Sukul Bros v. Kavarana, AIR 1958 Cal 730.
54 . Ghansham v. Moroba, (1894) ILR 18 Bom 474.
55 . Ademma v. Varadareddi, AIR 1949 Mad 31 [LNIND 1947 MAD 199]: (1948) ILR Mad 803; Englishman v. Lajput Rai, (1909) 14 Cal WN
713.
56 . Forster v. Farquhar, (1893) 1 QB 564.
57 . Justain Hull v. Paull, (1919) 24 Cal WN 352, p. 359; Huxley v. West London Extension Rly., (1889) 14 AC 26, 32.
58 . Union of India v. K.K. Goswami, AIR 1974 Cal 231 [LNIND 1973 CAL 133]: (1973) ILR 1 Cal 421 : 78 Cal WN 154.
59 . Esmail v. Abdulla, AIR 1931 Bom 118: (1931) ILR 55 Bom 525.
60 . Lipman v. Pulman, (1904) WN 139 : 91 LT 132.
61 . Bishen Dayal v. Bank of Upper India, (1891) ILR 13 All 290, p. 295.
62 . Narhari Balku Kavade v. Hanmanta Timma Pujari, AIR 2004 Bom 342 [LNIND 2004 BOM 389].
63 . Ramkumar v. Kalikumar, (1887) ILR 14 Cal 99 p. 108 : 13 IA 116; Lachmeshwar v. Manow, (1892) ILR 19 Cal 256 : 19 IA 48.
64 . Harsh Wood Products Pvt. Ltd. Gwalior v. State of Madhya Pradesh, AIR 1989 MP 111 [LNIND 1988 MP 210].
65 . Peek v. Gurney, (1873) LR 6 HL 377; Fischer v. Kamala Naicker, (1860) 8 MIA 170.
66 . McDonalds Corporation v. Sterlings Mac Fast Food, 2007 (5) AIR Kar 318 : 2007 (5) Ker LJ 638.
67 . Uttar Pradesh State Bridge Corporation v. Overseas Water Proofing Corpn., AIR 2006 Del 211 [LNIND 2006 DEL 483]: 2006 (130) DLT 182
[LNIND 2006 DEL 483].
68 . Smt. Santosh v. Tek Chand, 2006 (134) DLT 332.
69 . Rajendra Dhanji Sakhala v. State Election Commission, 2008 (1) Mah LJ 398 : 2008 AIHC 1322 (DB).
70 . State of Gujarat v. Dadabhai Hathibahi Chitrasani, 2008 (1) Guj LR 441 : 2008 (1) Guj LH 1.
71 . Peddanna v. K.V.S.S. Sons, AIR 1954 SC 26.
72 . Dildar Ali Khan v. Bhawani Sahai Singh, (1907) ILR 34 Cal 878; Satya Kumar v. Satya Kirpal, (1909) 10 Cal LJ 503; Ambika Prasad v. Perdip,
(1915) ILR 42 Cal 451; Bipin Behari v. Rai Promotho Nath, AIR 1930 Pat 336: (1930) ILR 9 Pat 773.
73 . Melappa v. Guramma, AIR 1956 Bom 129 [LNIND 1955 BOM 68].
74 . Makkanalal v. Sushama Rani, AIR 1953 Cal 164 [LNIND 1952 CAL 35].
75 . Mosstt. Gyanu Sharma v. Hari Ram Sharma, 2009 (2) AIR Jhar R 468.
76 . Kolluri Subha Rao v. Kolluri Subha Rao, AIR 1943 Mad 689 [LNIND 1943 MAD 127].
77 . Twelfth edn, vol 2, p. 1304, et seq.
78 . Second edn, p. 352, et seq.
79 . Eighth edn, p. 1075.
80 . National Insurance Co. Ltd. v. Nissim, AIR 1929 Cal 477: (1929) ILR 56 Cal 447, p. 452; Ismail v. Haji Ibrahim, AIR 1935 Bom 178.
81 . See Government Telephones Board v. Hormusji M. Seervai, AIR 1943 Bom 325: 45 Bom LR 633, p. 656 : (1943) ILR Bom 581.
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82 . Pravin S Shah v. Rashtriya Mill Mazdoor Sangh, 2009 (2) AIR Bom R 107.
83 . See also Lindley on the Law of Partnership, twelfth Ed., p. 545.
84 . See Halsburys Laws of England, Vol 27, third Ed., para 12 at p. 400, et seq.
85 . Mannunthi Beary v. Neelamma, AIR 1976 Kant 21 [LNIND 1975 KANT 99].
86 . Vasa Panshakshari v. Manem Venkataratnam, 58 Mad 160.
87 . AIR 1953 Nag 376.
88 . Natesan v. Surya, 1957 (2) MLJ 586 [LNIND 1957 MAD 156].
89 . Union of India v. Khetra Mohan, AIR 1960 Cal 191.
1 . Swarn Kaur v. Union Bank of India, AIR 2003 Del 359 [LNIND 2003 DEL 199] (DB).
2 . Laxman Prasad v. Prodigy Electronics Ltd., AIR 2008 SC 685 [LNIND 2007 SC 1442]: (2008) 1 SCC 618 [LNIND 2007 SC 1442].
3 . Oriental Insurance Co. Ltd. v. Avira Foods (India) Ltd., 2010 (166) DLT 27.
4 . Viscount Gort v. Rowney, (1886) 17 QBD 625.
5 . Sree Sree Sridhar Jin v. Kanta Mohan Mullick, AIR 1941 Cal 213: (1945) 50 Cal WN 14 : 81 CLJ 167; Tayabji v. South British Insurance Co.,
(1917) 11 SLR 1.
6 . Juggat Chunder v. Roochand, (1881) ILR 6 Cal 811.
7 . Wasudev v. National Saving Bank, AIR 1953 Bom 209 [LNIND 1951 BOM 94].
8 . Krishna Goundan v. Narasingan Pillai, AIR 1962 Mad 309 [LNIND 1961 MAD 93].
9 . Girija Prasana Deb v. NM Khan, AIR 1942 Cal 257: (1941) ILR 2 Cal 556; Kashinath Balkrishna v. Anant Murlidhar, AIR 1942 Bom 284: 44
Bom LR 629; Francisco v. Dos Angos, (1872) 17 WR 188 (common defence); Kossella Beharee (1869) 12 WR 70 (separate interest); Shah
Makhan Lall v. Shree Kishen, (1868) 12 MIA 157.
10 . Trimbak Yeshwant v. Abdulla Ahmed, AIR 1942 Bom 81: (1942) ILR Bom 163 : 44 Bom LR 105; Kashinath Balkrishna v. Anant Murlidhar,
AIR 1942 Bom 284: 44 Bom LR 629; Manilal v. Bharat Spinning and Weaving Co. Ltd., AIR 1936 Bom 242: (1936) ILR 60 Bom 659.
11 . Udmiram v. Balarama Doss, AIR 1956 Nag 76.
12 . Beaumont v. Senior, (1903) 1 KB 282.
13 . Shantanand v. Basudevanand, AIR 1963 All 225: (1930) ILR 52 All 619.
14 . Narsingirji v. Payne & Co., AIR 1933 Bom 317: (1933) 35 Bom LR 554.
15 . Vidya Verma v. Shiv Narain, AIR 1956 SC 108 [LNIND 1955 SC 102]: (1955) 2 SCR 983 [LNIND 1955 SC 102] : 1956 SCJ 121.
16 . Krishna Rao v. State of Orissa, AIR 1955 Ori 65 [LNIND 1954 ORI 42]: (1954) ILR Cut 623.
17 . Hirjibhoy v. State of Bombay, AIR 1953 Bom 228 [LNIND 1952 BOM 98], (1953) ILR Bom 748.
18 . Srimathi Umrao v. Bakshi Gopal, AIR 1957 Raj 180 [LNIND 1955 RAJ 97].
19 . Ramon Services Pvt. Ltd. v. Subhash Kapoor, AIR 2001 SC 207 [LNIND 2000 SC 1531].
20 . State v. Chandradass, AIR 1977 Ker 30 [LNIND 1976 KER 63]: (1976) ILR 2 Ker 56.
21 . Ram Sarna v. State of Bihar, AIR 1959 Pat 384.
22 . Parasmal v. Jayalakshmamma, AIR 1962 Mys 201.
23 . Salem Advocate Bar Assn. v. Union of India, AIR 2005 SC 3353 [LNIND 2005 SC 573].
24 . Ranganatha v. Kumaraswami, AIR 1959 Mad 253 [LNIND 1958 MAD 111]: (1959) ILR Mad 298.
25 . Santokchand v. Bhusaval Borough Municipality, AIR 1966 SC 1358 [LNIND 1965 SC 213]: (1966) 1 SCR 695 [LNIND 1965 SC 213].
26 . Trinkari Sen v. Dulal Chandra, AIR 1967 Cal 518 [LNIND 1966 CAL 211].
27 . Viswanatha v. Shanmugham, AIR 1969 SC 493 [LNIND 1968 SC 394]: (1969) 1 SCC 182.
28 . Khimiji Poonja & Co. v. Ramlal & Co., AIR 1960 Bom 532: 62 Bom LR 277.
29 . Dominion of India v. Shrinbai, (1955) 1 SCR 206 [LNIND 1954 SC 92] : (1954) SCJ 813 [LNIND 1954 SC 92].
30 . Makkanlal v. Chatterjee,58 Cal WN 617.
31 . IT Commissioner, Madras v. RMC Pillai, AIR 1977 SC 489 [LNIND 1976 SC 434]: (1977) 2 SCR 111 [LNIND 1976 SC 434] : (1977) 1
SCC 431 [LNIND 1976 SC 434].
32 . Mehdi Hussain Khan v. Nusrat Hasan, AIR 2004 Andh Pra 123 (DB).
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33 . Kulsome Bibi v. Abdul Mannan, AIR 2002 Cal 1 [LNIND 2001 CAL 215].
34 . KR Janardhane Gupta v. DV Usha Vijaya Kumar, AIR 2006 Kant 243 [LNIND 2006 KANT 327].
35 . Niyamavedi v. Union of India, AIR 2004 Ker 81 [LNIND 2003 KER 391] (DB).
36 . Kumaresan v. MP Seshadri, AIR 2002 Ker 198 [LNIND 2002 KER 30] (DB).
37 . Lambton v. Parkinson, (1886) 35 WR 545.
38 . James Bevis v. Turner, (1883) ILR 7 Bom 486.
39 . Sripal Singh v. Maharaj Singh, AIR 1942 Oudh 279; Shantanand v. Basudevnand, AIR 1930 All 225 [LNIND 1930 ALL 3]: (1930) ILR 52
All 619.
40 . Chandra Sekhar v. Monoharlal, AIR 1942 All 233.
41 . Sridhar Jiu v. Manindra Kumar Mitra, AIR 1941 Cal 273: (1940) ILR 2 Cal 285; Marutitao v. Secretary, Municipal Committee, Balaghat, AIR
1934 Nag 250; Kanta Gupta v. Eighth Addl. District Judge, Meerut, (1991) Supp 1 SCC 219.
42 . Vinayak Pandurangrao v. Shavanappa, AIR 1944 Bom 100: (1944) ILR Bom 12 : 45 BLR 1029; Satyanarayana v. Rama Lakshmamma, AIR
1959 Andh Pra 662; Shyam Sunder v. Shani Devi, AIR 1961 All 563 [LNIND 1960 ALL 136].
43 . B Varadha Rao v. State of Karnataka, AIR 1987 SC 287.
44 . Rajasthan State Road Transport Corp v. Jhani, AIR 1987 Raj 48.
45 . Sajedar Raj v. Baidyu Nath, (1986) 1 Cal WN 65.
46 . Ram Coomar Coonmar Coondoo v. Chunder Kanto Mookerji, (1878) ILR 2 Cal 233 : 4 IA 23.
47 . Sourendra Mohun v. Murarilal, (1920) 24 Cal WN 888; Megh Raj v. Allah Rakhia, AIR 1942 FC 27: (1942) Lah 622 : (1942) Cal WN 61
(FC).
48 . Rangalal v. URPC and P Society, AIR 1975 Ori 137 [LNIND 1975 ORI 12]: (1975) ILR Cut 386.
49 . Kesavalu v. Venkatarama (1942) ILR Mad 35 : AIR 1945 Mad 35.
50 . Indar Kunwar v. Jaipal, (1889) ILR 15 Cal 725 : 15 IA 127; Re Taramoni Dasi, (1900) ILR 25 Cal 553.
51 . Ram Ghulam v. Shyam Sarup, AIR 1934 All 1: (1934) ILR 55 All 687.
52 . Chandra Shekar v. Manohar Lal, AIR 1942 All 233; Maharam Das v. Ajudhia, (1986) ILR 8 All 452, p. 461.
53 . Raj Kumar v. Girdharilal, AIR 1989 P&H 45.
54 . Rajabapayya v. Basavayya, AIR 1942 Mad 713 [LNIND 1942 MAD 261]; Ramprasad v. Shrinivas, AIR 1925 Bom 527: (1925) 17 Bom LR
1122; Salem Advocates Bar Assocn v. Union of India, AIR 2005 SC 3353 [LNIND 2005 SC 573].
55 . Virabhadrauna v. Mahalakshmamma (1930) 34 Cal WN 512 : AIR 1930 PC 42; see also Bangachandra v. Jagat Kishore, (1916) 43 IA 249;
Dreyfus v. Arunachala, AIR 1931 PC 289: 52 IA 381 : 35 Cal WN 1287.
56 . Sub-section (3) omitted by CPC (Amendment) Act 66 of 1956, s 3.
57 . Union of India v. Ummer Sait, AIR 1969 Mad 212.
58 . Vasudev v. Bhavan, (1892) ILR 16 Bom 241.
59 . Girdharilal v. Sunder Bibi, (1866) BLR Supp vol 496; Secretary of State v. Marjum, (1885) ILR 11 Cal 359; Dildar Ali Khan v. Bhawani Sahil
Singh, (1907) ILR 34 Cal 878; Aga Mahomed v. Syed Mahomed, (1916) 21 Cal WN 339; Ahmedbhai v. Petit (1911) 13 Bom LR 1061 [LNIND
1911 BOM 55]; Bipin Behari v. Rai Promotho Nath, AIR 1930 Pat 336: (1930) ILR 9 Pat 773.
60 . Bunwari Lall v. Drup Nath, (1886) ILR 12 Cal 179.
61 . Civil Service Co-op. Society v. General Steam Navigation Co., (1903) 2 KB 756; Westgate v. Crown, (1908) 1 KB 24; Lalman v. Chintamani, (1919)
ILR 41 All 254; Assistant Collector, Salsette v. Damodardas, AIR 1929 Bom 63: (1929) ILR 53 Bom 178; Lalta Prasad v. Misri Lal, AIR 1931
Oudh 9: (1931) ILR 6 Luck 378; Modgil Krishna v. Modgil Krishna Dai, AIR 1994 AP 16 [LNIND 1993 AP 324] (DB).
62 . Moshingan v. Mozari, (1886) ILR 12 Cal 271; Radhey Shiam v. Bihari Lal, (1918) ILR 40 All 558.
63 . Parshram v. Dorabji, (1900) 2 Bom LR 254.
64 . Ranchordas v. Bai Kasi, (1892) ILR 16 Bom 676; Justain Hull v. Paull, (1919) 24 Cal WN 352; Aspee (India) Ltd. v. Dahanukar, AIR 1954
Bom 35 [LNIND 1953 BOM 48]: (1954) ILR Bom 21.
65 . Umesh Chandra v. Bibhuti, (1920) ILR 47 Cal 67; Bunwari Lall v. Drup Nath, (1886) ILR 12 Cal 179; Amirul Hossain v. Khairunnessa, (1901)
ILR 28 Cal 567.
66 . Ranchordas v. Bai Kasi, (1892) ILR 16 Bom 676; Khushal v. Punamchand, (1898) ILR 22 Bom 164.
 Page 40 of 42
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67 . Bunwari Lall v. Drup Nath, (1886) ILR 12 Cal 179; Daulat Ram v. Durga Prasad, (1893) ILR 15 All 333; Daulat Ram v. Durga Prasad, (1893)
ILR 15 All 333; Desaji v. Bhavanidas, (1871) 8 BHC (AC) 100; Futeek v. Hohender, (1876) ILR 1 Cal 385; Karman Kaur v. Kirpa Singh, (1920) 2
Lah LJ 310.
68 . Balkissen v. Luchmeetput, (1882) ILR 8 Cal 91, p. 94, Vasudev v. Bhavan, (1892) ILR 16 Bom 241; Shib Kumar v. Sheo, (1833) ILR 8 Cal 91.
69 . See the Code of Civil Procedure 1908, s 104(2).
70 . Balkissen v. Luchmeeput, (1882) ILR 8 Cal 91.
71 . Rikhiram Bhagwandas v. Ramlal, AIR 1961 MP 169 [LNIND 1960 MP 45]. But see the amended s 115 of the Code of Civil Procedure 1908.
72 . Aspee (India) Ltd. v. Dahunukar, AIR 1954 Bom 35 [LNIND 1953 BOM 48]: (1954) ILR Bom 21; Kulasekara Naicker v. Jagadambal, (1919)
ILR 42 Mad 352 (FB); overruling Saravana Mudaliar v. Rajagopala Chetty, (1907) 17 MLJ 569.
73 . Secretary of State v. Lown Karan, (1920) 5 Pat LJ 321, 327.
74 . A.S. Mittal v. State of Uttar Pradesh, AIR 1989 SC 1570 [LNIND 1989 SC 670].
75 . Akhileshwar Mishra v. State of Bihar, AIR 1995 Pat 10(DB).
76 . Union of India v. RP Builders, AIR 1995 Del 57 [LNIND 1994 DEL 391] (DB).
77 . Rasaraj Debnath v. Calcutta University, AIR 1998 Gau 112 [LNIND 1997 GAU 104].
78 . Hindustan Petroleum Corpn. v. State of Bihar, AIR 1996 Pat 163; B.M. Habibullah v. State of Tamil Nadu, AIR 1994 Mad 222 [LNIND 1993
MAD 650]; K. Sai Reddy v. Deputy Executive Engineer, Irrigation and Command Area Development, AIR 1995 AP 208 [LNIND 1995 AP 133].
79 . Azeemur Rehman Siddiqui v. Union of India, AIR 1995 All 317 [LNIND 1994 ALL 606] (DB); K. Sajjan Singh v. AP Electricity Board, AIR
1997 AP 279 [LNIND 1997 AP 236] (DB).
80 . Samuel v. Samuel, (1930) ILR 57 Cal 1089.
81 . Rajee v. Babu Rao, AIR 1996 Mad 262 [LNIND 1995 MAD 575].
82 . Saroj Rani v. Sudshran Kumar Chadda, (1984) 4 SCC 90 [LNIND 1984 SC 200].
83 . Mulla Singh v. Jagannath, (1910) ILR 32 All 585; Bhawani Prasad v. Ram Prasad, AIR 1937 All 227.
84 . 40 Cal WN 1089.
85 . Langley v. DARCY, (1930) ILR 54 Bom 62 : AIR 1930 Bom 24; Hill v. Peel (1870) 5 CP 172; Mahindra v. Chandar Singh, AIR 1957 Pat 79.
86 . D. Parashuram v. Tata Industrial Bank, AIR 1926 Bom 18: (1925) ILR 50 Bom 69.
87 . Arnavaz v. Hormusji, AIR 1930 Bom 536: (1930) 32 Bom LR 1079.
88 . AIR 1970 Bom 424 [LNIND 1969 BOM 44]: 72 Bom LR 64, p. 106.
89 . Gorakhram v. Pirozshaw, AIR 1930 Bom 92: (1933) ILR 57 Bom 570.
90 . Parshuram Shamdasani v. Tata Industrial Bank, AIR 1923 Bom 18: (1925) ILR 50 Bom 69 : (1933) ILR 57 Bom 570.
1 . Gorakhram v. Pirozshaw, AIR 1930 Bom 92: (1933) ILR 57 Bom 570.
2 . Narsingirji v. Payne & Co., AIR 1933 Bom 317: (1934) ILR 58 Bom 1.
3 . Rege v. Vijaykar, AIR 1935 Bom 150: (1935) ILR 59 Bom 443.
4 . Doosabhoy v. Edulji (1941) 43 Bom LR 336.
5 . Wilson & Co. v. Hari, AIR 1939 Bom 250: (1839) ILR Bom 307.
6 . AIR 1959 Bom 162 [LNIND 1957 BOM 175]: 60 Bom LR 999; Shamdasani v. Central Bank of India Ltd., (1941) 43 Bom LR 655.
7 . President, Mahavidyalaya Shiksha Sudhar Sangharsh Simiti v. State of Bihar, AIR 1995 Pat 7(DB).
8 . Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446 [LNIND 1996 SC 353].
9 . Common Cause (A Registered society) v. Union of India, AIR 1996 SC 3538 [LNIND 1996 SC 1542].
10 . Prayag Vyapar Mandal v. State of Uttar Pradesh, AIR 1997 All 1 [LNIND 1996 ALL 384] (DB).
11 . National Problem Solution Suggestion Board v. Union of India, 2007 (138) DLT 627 (DB).
12 . Mohd Hanif v. Niyat Adhikari, Laghoovad Nyayadhish, AR 2002 All 288.
13 . Black Diamond Glassware P. Ltd. v. Kusumlata Gupta, AIR 2004 Del 88 [LNIND 2003 DEL 974].
14 . Sec. 35A inserted by Act 9 of 1922, s 2.
15 . Subs. for not being an appeal by CPC (Amendment) Act 66 of 1956.
16 . Subs. for if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof by Ibid.
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17 . Subs. by CPC (Amendment) Act 104 of 1976, s 14 (w.e.f. 1-2-1977) for one thousand rupees.
18 . Ins. by Act 2 of 1951, s 7.
19 . Subs. for a Part B State by AL No. 2 of 1956.
20 . Subs. for under that Act by Act 2 of 1951, s 7.
21 . But see Sri Krishnapur Muti v. Gopalakrishnayya, (1965) 2 Mys LJ 93.
22 . Vittal v. Parasuram, AIR 1954 Nag 192.
23 . Pedda Rangasamy v. State of Madras, AIR 1953 Mad 583 [LNIND 1952 MAD 269]: (1953) ILR Mad 721 : (1953) 1 MLJ 552 : 66 LW 208,
1953 MWN 109; Sriramamurthy v. Andhra University, AIR 1966 Andh Pra 179.
24 . Secretary, West Bengal Council for Higher Education v. Soumyadeep Banerjee, AIR 2010 Cal 161 [LNIND 2010 CAL 102] (FB).
25 . Salem Advocate Bar Assn. v. Union of India, AIR 2005 SC 3353 [LNIND 2005 SC 573].
26 . Kotturusami v. Viravva, AIR 1952 Mad 609 [LNIND 1949 MAD 35].
27 . Venkatasamy v. Lakshmi Narayan, AIR 1959 Andh Pra 204.
28 . T. Arivandandam v. T.V. Satyapal, AIR 1977 SC 2421 [LNIND 1977 SC 295]: (1977) 4 SCC 467 [LNIND 1977 SC 295].
29 . Thulsi Das v. Alleppy Chamber of Commerce, AIR 1953 Tr & Coch 26 : (1951) TC 667; Board of High Court v. Ramakrishna, AIR 1959 All 226
[LNIND 1958 ALL 129].
30 . Suraj Kumari v. District Judge, Mirzapur, AIR 1991 All 75 [LNIND 1990 ALL 326] (R.B. Mahrotra, J.).
31 . Manak Lal v. Mahindra Singh, AIR 1987 Raj 14: 1516, para 7 (SS Byal, J).
32 . Ila Vipin Pandya v. Smita Ambalal Patel, AIR 2007 SC 2404 [LNIND 2007 SC 716]: (2007) 6 SCC 750 [LNIND 2007 SC 716].
33 . Ibid, at p. 2414.
34 . Smt. Sadhna Agarwal v. Smt. Malti Devi, 2007 (2) ALJ 46 : 2007 (66) All LR 702.
35 . National Insurance Co. Ltd. v. Lehnu Mal ram Krishna, AIR 2007 HP 41 [LNIND 2007 HP 8]: 2007 (1) Shim LC 428 (DB).
36 . K.L. Diwan v. Mohan Malhotra, 2009 (158) DLT 442.
37 . Satyapal Singh v. Union of India, AIR 2010 SC 1138 [LNIND 2009 SC 2023]: (2010) 12 SCC 70 [LNIND 2009 SC 2023].
38 . P. Ramchandaran Nair v. State of Kerala, AIR 1997 Ker 322 [LNIND 1997 KER 146].
39 . Rajappan v. Sankaran Sudhakaran, AIR 1997 Ker 315 [LNIND 1997 KER 101] (DB).
40 . Rev Theodore Ekka v. Evangenlical Church of India, AIR 1996 MP 77 [LNIND 1995 MP 3].
41 . K. Sajjan Singh v. AP Electricity Board, AIR 1997 AP 279 [LNIND 1997 AP 236] (DB).
42 . Meenakshi v. Ayamperumal Udayan, AIR 1944 Mad 81; Rajkumar v. Mangal, AIR 1930 All 577: (1930) ILR 52 All 907.
43 . Chittam Subbaya v. Muthyala Ram Chandrappa, AIR 1945 Mad 84 [LNIND 1944 MAD 207]: (1945) ILR Mad 407.
44 . V. Swarnam Iyer v. Veeragu Ammal, AIR 1943 Mad 286 [LNIND 1942 MAD 194].
45 . Venekar Industries v. Starit Eng Co., AIR 1985 Bom 253 [LNIND 1984 BOM 365].
46 . See Code of Civil Procedure 1908, proviso to O 41, r. 33.
47 . State of Uttar Pradesh v. Manohar, AIR 2005 SC 488 [LNIND 2004 SC 1244], 2004 : AIR SCW 7176 : (2005) 2 SCC 126 [LNIND 2004
SC 1244].
48 . Gayatri Devi v. Shashi Pal Singh, AIR 2005 SC 2342 [LNIND 2005 SC 239]: (2005) 5 SCC 527 [LNIND 2005 SC 239].
49 . State of Punjab v. Bhajan Singh, AIR 2001 SC 1098 [LNIND 2001 SC 574].
50 . Ins. by CPC (Amendment) Act 104 of 1976, s 15 (w.e.f. 1-2-1977).
51 . Hakmi v. Pitambar, AIR 1987 P&H 145.
52 . Jawan v. Mewa Singh, AIR 2001 P&H 344 (DB).
53 . Jugdish Saran v. IXTH Addl. District Judge, Moradabad, 2008 (4) ALJ 493 : 2008 (72) All WR 568.
54 . Salem Advocate Bar Assn v. Union of India, AIR 2005 SC 3353 [LNIND 2005 SC 573].
55 . Raj Kishore Gupta v. Shanti Devi, AIR 1989 Pat 21.
56 . Anand Prakash v. Bharat Bhushan Rai, AIR 1981 P&H 269 (FB).
57 . Piaro Devi v. Anant Ram, AIR 2008 HP 107 [LNIND 2008 HP 37].
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58 . Manohar Singh v. D.S. Sharma, AIR 2010 SC 508 [LNIND 2009 SC 1987]: (2010) 1 SCC 53 [LNIND 2009 SC 1987].
59 . Ibid, at p. 510.
60 . Assa Nand v. Harish Kumar, AIR 1983 P&H 23.
61 . Manjit Singh v. State Bank of India, AIR 1980 P&H 317.
62 . Surendra Mohan v. Khetrinath, AIR 1988 Gau 74 [LNIND 1987 GAU 20]; Hakm v. Pitamber, AIR 1978 P&H 145.
63 . L.D. Arora v. Sushila Devi, AIR 1982 P&H 105.
64 . Simpy Films No. 12, Jullunder v. Rajasthani Films (Pvt.) Ltd., AIR 1981 P&H 24.
65 . Manjit Singh v. State Bank of India, AIR 1980 P&H 317.
66 . Prakash Narain v. Addl District Judge, AIR 1981 All 120.
67 . Anand Prakash v. Bharat Bhushan Rai, AIR 1981 P&H 269.
68 . Anand Prakash v. Bharat Bhushan Rai, AIR 1981 P&H 269.
69 . Union of India v. Ram Niwas, AIR 1984 Raj 42.
70 . Hanuman Mal Bothra v. Suraj Mal Jain, 2010 (167) DLT 452 [LNIND 2010 DEL 2195].
71 . Sagayam Engineering Works v. Srivatsa Tube Corpn., AIR 1989 Mad 237 [LNIND 1988 MAD 502].
72 . P.C. Ltd. v. Sharma Associates & Contractors, AIR 2001 Del 494 [LNIND 2001 DEL 396] (DB).
73 . Tripura State Co-op. Bank Ltd. v. Shambhu Paul, AIR 2004 Gau 157 [LNIND 2004 GAU 522].
74 . Prem Sagar v. Phul Chand, AIR 1983 P&H 385. (FB) (Sandhwalia, C.J., speaking for the Bench).
75 . Milkha Singh v. Parshottam Dass, 2007 (2) Civil Court C 319.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Part II EXECUTION

General

1 [S. 36. Application to orders.

The provisions of this Code relating to the execution of decrees (including provisions
relating to the payment under a decree) shall, so far as they are applicable, be deemed to
apply to the execution of orders (including payment under an order).]

HIGH COURT AMENDMENT

Calcutta. Insert the words and of the Presidency Small Cause Courts Act, 1882, after the
words of this Code and before the words relating to; and the words and except as therein
otherwise provided, after the words are applicable and before the words be deemed to.Cal.
Gaz., Pt. I, dated April 20, 1967.

1. Section prior to its Substitution. The section, prior to its substitution ran as below:

The provisions of this Code relating to the execution of decrees shall, as far as they are
applicable, be deemed to apply to the execution of orders.

The only change made in the new section is that whereas the section did not expressly state
that provisions relating to the execution of a decree or order include payment under a
decree or order, the amended section declares this by including an express provision to
that effect. The effect of the amendment is only clarificatory. The inclusive provision
therefore does not make any material difference to the commentary set out below.

2. Execution. Execution is the enforcement by the process of the court, of its own
decrees. The main rules of procedure are enacted in this part of the Code of Civil Procedure
1908 (Code of Civil Procedure ) and minor rules are relegated to O 21. These provisions apply
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to the decrees, which are capable of execution. There is no question of execution in regard
to decrees that are purely declaratory.

In a case relating to a decree for specific performance of agreement to sell, where the
judgment-debtor objected to execution on the ground that it was an agricultural land and
Agricultural Tenancy Act was applicable, it was held by the Bombay High Court that
neither the defendants nor their father were tenants and no certificate to that effect was
filed and as such the provisions of the said Act would not apply 2

3. What decrees may be executed.

(a) Decree of the Court of First Instance Until Appeal and after that, the Decree of the Court of Last
Instance. When the Appellate Court makes a decree, the decree of the original court is
merged in that of the superior court, and it is the latter decree alone that can be executed. 3
Where pending an appeal, the execution of the first courts decree was stayed and it was
revived after the appeal from the decree was dismissed, the omission to file a new
application for execution of the appellate decree was treated as a mere technical defect. 4 If
the Appellate Court rejects the appeal under O 41, r 10, its order is not a decree; 5 nor if it
dismisses the appeal for default of appearance; 6 or want of prosecution; 7 nor if the
appeal abates 8 or is withdrawn. 9 In all these cases, there is no decree of the Appellate
Court and the decree to be executed is that of the original court. This would also seem to
be the case when the appeal is summarily dismissed without notice to the respondent, but
the cases are conflicting. 10 But when the appeal is heard, O 41, r 32 requires that the
judgment should confirm, vary or reverse the decree from which the appeal is preferred; 11
and the decree capable of execution is the decree of the court of appeal. 12 When the
decree of the court of first instance is confirmed by the High Court and the latter decree
by the Privy Council, the decree capable of execution is the decree of the Privy Council. 13
The same principle would now apply in respect of decrees of the Supreme Court.

The question which decree should be executed arises in the following cases:

(i) Amendment of Decree When there has been an Appeal. The only decree that can be amended is
the decree that has to be executed. If the court of appeal confirms, varies or reverses the
decree of the lower court, the decree of the Appellate Court is the only decree that can be
amended. 14

(ii) Limitation, When there has been an Appeal. Time runs from the date of the decree capable
of execution, and that is the decree of the Appellate Court superseding that of the court of
first instance, 15 and it has been held that this is so even if the Appellate Court holds that
no appeals lies. 16

(iii) Time for Payment Fixed by Decree. When a time is fixed for payment by the decree of the
lower court, as in a decree for redemption, and the decree is affirmed on appeal, the decree
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capable of execution is the appellate decree. Nevertheless, the time for the performance of
the condition is not extended. 17 Thus, in Ghanshyamlal v. Ram Narian, 18 the suit was on a
bond in which interest was stipulated at 30 percent and the decree of the first court said
that if the defendant deposited the money within three months of the date of the decree,
he would be liable only for interest at 12 percent. This was confirmed on appeal by the
High Court and the Privy Council but the defendant was not allowed extension of time till
three months after the decree of the Privy Council. On the other hand, in Noor Ali v. Kopti
Meah, 19 a rent decree rendered a tenant liable to ejectment if the rent was not paid within
15 days. This was confirmed on appeal and it was held that he would be protected from
ejectment if he paid within 15 days of the appellate decree. In a subsequent case,
Mookerjee J said that the balance of judicial opinion is in favour of the view that when
time is fixed by the decree of the lower court for the payment of money, and the decree is
confirmed on appeal, time runs from the date of the decree of the Appellate Court. 20 It is
submitted that the correct view is that the appellate decree, not being complete in itself,
must be construed with reference to the decree of the lower court and that time is not
extended. The Appellate Court can, however, by its decree, alter the time of payment, and
should so frame its decree as to make it clear whether or not it intends to do so. 21 In
Abdul Shaker v. Abdul Rahiman, 22 a decree for specific performance of an agreement to sell
was passed conditionally on the plaintiff depositing the purchase price within two months.
The plaintiff failed to make the deposit. In the meantime, the defendant had appealed
against the decree, granting specific performance and the question was raised whether the
plaintiff had not lost, under the terms of the decree, his right to specific performance, as an
affirmance of the decree would not extend time for performance. It was held that the
principle that the time given in a decree does not become extended by its affirmance on
appeal had no application to a decree for specific performance which is in the nature of a
preliminary decree and that the time fixed could be extended both by the original and by
the Appellate Court.

(iv) Mesne Profits .Mesne profits can be ordered from the date of institution of the suit until
the expiry of three years from the date of the decree. This means the decree is capable of
execution, even if the decree is confirmed on appeal, three years run from the date of the
appellate decree. 23 But though the decree to be executed is the appellate decree, yet the
terms of it must be ascertained by reference to the decree of the lower court. Therefore,
when the original decree gave mesne profits from the date of its decree till the date of
delivery of possession and was affirmed by the Privy Council, and the plaintiff got
possession subsequent to the latter decree, he was held entitled to mesne profits from the
date of the original decree. 24

(b) The Decree to be Executed must be a Subsisting Decree.A obtains a decree against B and C . B
subsequently, sues A to set aside the decree on the ground of fraud, and the decree is set
aside as against him. A cannot execute the decree as against B , for, the decree does not
subsist as against B . But he may execute the decree as against C for the decree is a
subsisting decree as against C. 25
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(c) The Decree must not be Time-Barred .See Limitation Act, 1963, Art 136.

(d) Decree should not be a Nullity .When an order is made for the payment of a fictitious sum
without giving any opportunity to a person against whom the order is made, to show cause
against the passing of such an order for the said sum, the order is a nullity. When a decree
or order is a nullity, it will be deemed to have no existence at all and any sale held in
execution of such a decree or order must also be held to be null and void. 26

4. Execution of orders

(a) Order. The provisions relating to the execution of decrees are applicable under the
section to execution of orders. 27 The term Order is defined in s 2 of cl 14, as the formal
expression of any decision of a civil court which is not a decree. It is not limited to orders
made under the Code of Civil Procedure. 28 An order under s 34 of the Guardians and Wards Act,
1890, directing a guardian to pay a sum of money out of his wards estate for the marriage
expenses of a person dependent on his ward is not an order within the meaning of s 2, cl
14, and it cannot be enforced against the ward after he has attained majority and the
guardian has been discharged.29 But an order made after the dismissal of a partition suit
directing the plaintiff to deposit in court, a certain sum of money, as remuneration for
work done by the commissioners of partition, is an order within the meaning of s 2, cl 14
and it may be executed as a decree, 30 but no appeal will lie against the order passed in the
execution as the matter would not come within s 47, as the commissioner is not a party to
the suit. 31 Where in execution of a money-decree, the executing court grants a lease of
land belonging to the judgment-debtor for a certain period and directs the lessee to pay the
amount of the decretal debt by instalments, the direction of the court amounts to an order
within the meaning of this section. 32

An order passed under s 24 (8) of the West Bengal Non-Agricultural Tenancy Act, 1949, is
capable of execution under this section as a decree. 33 An order obtained by an attorney
against his client for payment of his costs under s 48 of Ch. 38 of the Original Side Rules,
Calcutta, can be executed as a decree under this section and the attorney is accordingly
entitled to apply for rateable distribution under s 73. 34 An order for payment of money
made by a court under the provisions of the Companies Act, 1956 is executable as a decree.35
An executable order falls within the meaning of s 36 of the Code of Civil Procedure, and
therefore the provisions in O 21 of the Code of Civil Procedure as to execution, are equally
applicable as to the execution of decrees, or in other words, an executable order is kept as
a part as that of an executable decree under the provisions of s 36 of the Code of Civil
Procedure. 36 A fascicule reading of ss 3638 points out that:

(i) execution of decree includes the execution of order;

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(ii) the decree passed in exercise of appellate jurisdiction can be executed by the court of
first instance; and

(iii) the decree may be executed by the court which passes it, or by the court to which it is
sent for execution. 37

(b) Interim Injunction Order. In a suit for declaration and injunction, both the plaintiff and
defendant filed separate applications for grant of temporary injunction and application
filed by plaintiff was dismissed while application by defendant was allowed under O 39, r
1, and plaintiff was restrained from interfering with possession of defendant. However,
thereafter, the suit was disposed of for want of prosecution in view of pursis filed by
plaintiff for grant of permission to withdraw the suit, the order allowing application of
defendant would not be executable. In such a case, s 151 could not be invoked because
though applications were made by parties under O 39, r 1 read with s 151, the court
exercised its powers only under O 39, r 1 and not under s 151. Moreover, whenever there
is a statutory provision/remedy provided under the Code of Civil Procedure or statute, parties
to the litigation are required to exhaust those remedies and in such situation, the court is
not expected to exercise inherent powers. Further, an interlocutory order having
temporary existence during pendency of the main suit and same must merge in the final
order passed in the suit unless contrary is proved. Further, once having held that the said
order has come to an end, it loses its force and effectiveness and same is not executable viz
s 36, since the same is not in existence. In view of the facts and circumstances of the
present case, the provisions of s 36 were not attracted and, therefore, application which
was filed by the defendants for issuance of warrant of possession under s 36 would not be
maintainable (para 22). Similarly, contingencies contemplated under O 21, r 32(1) are
entirely different and operate in a different area altogether and cannot be equated with the
issue in question and, therefore, same also cannot be said to be attracted in the present
case. 38

An order granting an interim mandatory injunction pending a suit can be executed under
this section as if it were a decree. 39 Order 21, r 32 read with this section is intended to
apply to orders granting interim injunctions under O 39. These provisions deal with
execution of such orders and enable parties to enforce them. But they cannot be availed of
by the court act ing suo motto to penalise their disobedience. 40

(c) Order on Contempt. An order made on a notice of motion for contempt of court is an
order to which this section applies. 41

The court, in exercise of its contempt jurisdiction, does not decide any issue or question
such less on merits. Therefore, the consent terms incorporated in the final order passed in
contempt petition do not amount to a decision within the meaning of the term as used in s
2 (14) of the Code of Civil Procedure and therefore, it is not an order within the meaning of that
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section. Consequently, such an order cannot be said to be executable under O 21 read with
s 36 of the Code of Civil Procedure. 42

5. Merger of decree. The doctrine that the decree of the lower court merges in that of the
Appellate Court has been adopted by the Supreme Court in a number of decisions. 43

S. 37. Definition of Court which passed a decree.

The expression Court which passed a decree, or words to that effect, shall, in relation to
the execution of decrees, unless there is anything repugnant in the subject or context, be
deemed to include,

(a) where the decree to be executed has been passed in the exercise of appellate
jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to
execute it, the Court which, if the suit wherein the decree was passed was instituted
at the time of making the application for the execution of the decree, would have
jurisdiction to try such suit.

44[Explanation. The Court of first instance does not cease to have jurisdiction to
execute a decree merely on the ground that after the institution of the suit
wherein the decree was passed or after the passing of the decree, any area has
been transferred from the jurisdiction of that Court to the jurisdiction of any
other Court, but, in every such case, such other Court shall also have jurisdiction
to execute the decree, if at the time of making the application for execution of
the decree it would have jurisdiction to try the said suit.]

1. Changes introduced in the section. This section differs from the corresponding s 649
of the Code of Civil Procedure 1882 in that the expression the court of first instance in cl
(a) has been substituted for the expression the court which passed the decree against which
the appeal was preferred. As to the effect of this alteration, see notes below.

The explanation now added to the section by the Amendment Act, 1976 solves the
question which often arose, viz, where an area is transferred from the jurisdiction of the
court of first instance to the jurisdiction of another court, which of the two courts would
have jurisdiction to execute the decree. That question is now answered by the explanation
that in such an event, the court of the first instance, by reason only of such transfer of an
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area, does not cease to have jurisdiction to execute the decree. It further provides that the
other court to whose jurisdiction such area is transferred, would also have jurisdiction to
execute such a decree provided that at the time of making the application for execution of
the decree, it would have jurisdiction to try the said suit.

2. Court which passed a decree. Section 38 indicates the courts by which decrees may be
executed. A decree may be executed either by the court which passed it, or by the court to
which it is sent for execution. It may also be executed by the court to which it is
transferred under s 24 above. 45 The present section explains the meaning of the
expression court which passed a decree.

An application for the enforcement of arbitral award need not always be filed under s 36 of
the Arbitration and Conciliation Act, 1996 before the District Court, such awards can be
enforced or executed by competent Civil Court having territorial and pecuniary jurisdiction
to entertain the matter. 46 V.V.S. Rao J., speaking for the Division Bench, explained the
point as follows:

22. After CPC (Amendment) Act, 1999, inserting Section 89 in Part V, any Civil Court can
refer the suit or proceeding before it to arbitration if there are elements of settlement
acceptable to the parties. When the matter is referred to arbitration as per Section 87(2) (a) of
CPC (sic), the provisions of Arbitration Act shall apply as if the matter is referred to
arbitration under the provisions of Arbitration Act. It is not only the District Court which is
empowered under section 89 of CPC to refer the disputes to arbitration but also all civil
Courts in the hierarchy including High Court can refer the disputes to arbitration. In a
given case, a Junior Civil Judge may refer the dispute to arbitration and after the award is
passed, if the successful party has to enforce the award only before a District Court, it
would violate provisions of CPC and Civil Court Act. As seen from Sections 37 and 38 of
CPC, a decree has to be executed by the Court, which passed the decree. Therefore, if an
arbitral award is made pursuant to reference by a Court within its pecuniary jurisdictional
limits, it is only that court, which can execute/enforce such award and not any other
Court. 47

The expression court which passed a decree includes not only the court which act ually
passed the decree, but the courts mentioned in cll (a) and (b) of the present section. The
following rules are deducible from this section and s 38 :

(a) When Decree to be Executed is a Decree of the Court of first Instance. When the decree to be
executed is a decree of a court of first instance, the proper court to execute it is the court
of first instance. A court of small causes which has passed a decree can execute it (subject
to O 21, r 82). Hence, it can execute the decree by attachment and sale of movable
property of the judgment-debtor. 48

(b) When Decree to be Executed is a Decree of the Court of first Appeal. When the decree to be
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executed is a decree passed by a court of first appeal, the proper court to execute it is also
the court of first instance.

(c) When the Decree to be Executed is a Decree of the High Court on Second Appeal. When the decree
to be executed is a decree passed by the High Court in second appeal, then also the proper
court to execute it is the court of first instance. Thus, where a suit is instituted in the court
of a subordinate judge , and an appeal from the decree is preferred to the District Court,
and a second appeal is preferred to the High Court, the proper court to execute the decree
of the High Court is the court of first instance, that is, the court of the subordinate judge.
The substitution of the expression court of first instance in cl (a) of the present section for
the expression court which passed the decree against which the appeal was preferred, gives
legislative recognition to the practice followed by the courts when the present Code of Civil
Procedure was enacted. The expression appellate jurisdiction includes also revisional
jurisdiction. Therefore, it is only the court of first instance that could execute a decree for
costs in a revision preferred against its decree or order. 49 The plaintiffs suit for declaration
of their title to the disputed land and for restraining the principal defendants from
disturbing possession was dismissed by the trial court. The plaintiffs appeal therefrom was
allowed by the subordinate judge and further the defendants appeal from his judgment and
decree was dismissed by the High Court. The plaintiffs put the decree of subordinate judge
(lower Appellate Court) to execution for the recovery of possession of the suit lands after
evicting the defendants therefrom and for recovery of costs, etc. It was held that this
execution petition must be taken to be an application for execution of High Courts decree.
There was no necessity for amending the execution petition. 50 In s 37, the expression
court which passed a decree includes newly established court having jurisdiction over a
part of the territory. The latter court can execute the decree, without transfer of the decree
to it. Contrary decision of the Mysore High Court is no longer good law, after the 1976
amendment which has added the explanation. 51 The newly created court also acquires
jurisdiction, besides the court which passed the decree. 52

(d) When the Court of first Instance has Ceased to Exist. When the court of first instance has
ceased to exist, the only court that can execute the decree is the court which, at the time of
making the application for execution, would have jurisdiction to try the suit in which the
decree was passed. The application for execution must be made to that court. This is as a
result of cl (b) of the section giving a wider meaning to the expression the court which
passed the decree for the purpose of executing the decree. 53 But if the application is to
execute the decree by the attachment and sale of immovable property not situated within
its jurisdiction, the court must nevertheless entertain the application, and then transfer the
application to the court having territorial jurisdiction. Thus in Sreenath v. Priyanath , 54 a rent
decree was passed by the third munsiffs court at Bhanga. That court was then abolished and
became the court of the second munsiff at Gopalgunje. The rent suit fell within the
pecuniary limits of the second munsiffs court at Gopalgunje and therefore the court at
Gopalgunje was the court which passed the decree under s 37 (b). The application to
execute the decree was, therefore, made to the Gopalgunje court. But the application was
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to execute the decree by the attachment and sale of immovable property, not within the
jurisdiction of the Gopalgunje court but within the jurisdiction of the first munsiffs court at
Bhanga. Nevertheless, it was held that the Gopalgunje Court had jurisdiction to entertain
the application, but, that it should not itself order the sale of property outside its
jurisdiction but should transfer the application to the Bhanga court for making and
executing the order for sale. Justice Mitter said that the Gopalgunje Court did not function
merely as a sort of post office for receiving and transmitting the application but that it
could determine questions as to the executability of the decree. A court vested with the
powers of a court of small causes, ceases to exist as a court of small causes, when those
powers are withdrawn. 55 A court does not cease to exist merely because its headquarters
are removed to another place, or because the local limits, 56 or the pecuniary limits of its
jurisdiction 57 are altered. If a court is abolished and then revived without diminution of
jurisdiction, execution of the decree passed by the abolished court can be ordered by the
revived court. 58 The executing court found that the nomenclature of the court had only
changed and the work of the Additional Civil Judge, Gorakhpur was being done by First
Additional Civil Judge, Gorakhpur before which court the execution application was filed.
The court of First Additional Civil Judge, Gorakhpur, before which the execution
application has been filed, bears the impression and the identity of the courts which passed
the decree but which has now been abolished. Consequently, the said court had
jurisdiction to entertain and hear the execution application as per the provision of s 37 (b)
of the Code of Civil Procedure. 59

(e) When the Court of first Instance has Ceased to have Jurisdiction to Execute the Decree. This s 37 of
the Code of Civil Procedure clearly lays down that where a court which has passed a decree
loses the jurisdiction to execute it (sic ), then the other court, which has jurisdiction over
the subject-matter that has been transferred, has an authority to execute the decree. Thus,
the court to which subject-matter has been transferred can also execute the decree, and the
court to which the case transferred acquires an inherent jurisdiction to execute the same. 60

When the court of first instance has ceased to have jurisdiction to execute the decree: In
this case the court of execution is the court which, at the time of the application, would
have jurisdiction to entertain the suit in which the decree was passed. But the jurisdiction
of the original court is not entirely excluded. A decree is passed by court X directing the
sale of immovable property within its jurisdiction. After the decree and before the
application in execution for sale, the property directed to be sold is transferred by the local
governments notification from the jurisdiction of court X to the jurisdiction of court Y .
Has court X the jurisdiction to entertain the application for execution and to order the sale
of the property? According to the Calcutta decisions, both court X and court Y have
jurisdiction to entertain the application, but if the application is made to court X , it should
not, itself, make an order for the sale of the property, but transfer the application to court
Y for making and executing the order for sale. 61 The Madras decisions have not been
consistent. In one case, it was held that court X had jurisdiction to entertain an application
for execution, but the question whether it could itself order the sale of the property was
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not decided. 62 In a case of 1914, it was said that court X had no jurisdiction to entertain
the application, 63 but this was overruled in a full bench decision in 1919. Chief Justice
Wallis observed that the power of sending the decree to another court was sufficient to
meet the case. The learned Chief Justice construed s 150 as conferring upon court Y ,
jurisdiction to entertain the application for execution but was of opinion that the section
could not be construed as taking away from court X , the power which it had, according to
the unbroken current of authorities of entertaining the application. 64 The decision of
Wallis CJ, has been followed by the Patna High Court. 65 In a case decided in 1927, it was
said that court X had power to entertain the application for transmission to court Y but
has no power to sell the property. 66 In 1932, a Full Bench of the Madras High Court
distinguished notifications which effected a change of jurisdiction in the future from those
which effected a transfer of past business; and held that s 150 only applied to the latter. If
the notification only effects a change of jurisdiction for the future, the court which passed
the decree has jurisdiction to entertain an application for execution of the decree though
the decree-holder may, as a matter of convenience, apply for transfer of the decree for
execution to court Y , but court Y would not be competent to entertain the application for
execution as it cannot be deemed to be included in the expression court which passed the
decree under cl (b). 67 This question came up for consideration before the Supreme Court
in Ramanna v. Nallappa Raju . 68 There, it was observed that it was settled law that the court
which actually passed a decree did not lose its jurisdiction to execute it by reason of the
subject matter thereof being transferred subsequently to the jurisdiction of another court.
And, as regards the competence of the court to whose jurisdiction the subject matter has
been transferred to entertain an application for execution, their Lordships referred to the
conflict of authorities on the subject and held without deciding the point that if the latter
court entertained an application, it would at the worst, be an irregular assumption of
jurisdiction and not a total absence of it and that if objection is not taken at the earliest
opportunity, it must be held to have been waived and cannot be raised at the later stages of
the proceedings. The Patna High Court has held that final decree proceeding arising out of
a preliminary decree in a partition suit is akin to and exactly in nature of an execution
proceeding. The original Court which passed the preliminary decree and where the records
of the partition suit were pending does not become functus officio for final decree
proceedings merely because after passing the preliminary decree, the area where the
property is situated has been transferred from the jurisdiction of that Court to the
jurisdiction of some other Court. 69

In Lalithamba v. Mangamma, 70 properties which had been attached in execution of a decree

passed by court A were subsequently transferred to the jurisdiction of court B . Thereafter,
the decree-holder presented an application for execution to court B directly. An objection
having been raised by the judgment-debtor that court B was not competent to entertain the
application, it was held upholding the objection that court B had no jurisdiction to
entertain the application as a decree could be executed under ss 37 and 38 only by the
court which passed it or by one to which it was transferred for execution. 71 The question
was recently considered by a Full Bench of the Punjab High Court in Meher Singh v. Kasturi
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Ram, 72 and it was held that where after the passing of a decree by court A , territorial
jurisdiction is transferred to court B , application for execution of the decree could be
presented to either court. The new explanation resolves the conflict of opinion by
legislatively confirming the view consistently held by the Calcutta High Court. Where a
notification regarding redistribution of territorial jurisdiction applies only to future
business, an application under s 144 of the Code of Civil Procedure for restitution arising out of
a suit pending at the time of the notification cannot be treated as future business. 73 But a
court to which a decree is transferred for execution has no jurisdiction to order either the
attachment or sale of immovable property, if at the time of the order, such court had no
territorial jurisdiction over the property. 74

3. Clause (b): Ceased to have jurisdiction to execute. The expression where the court
of first instance has ceased to exist, without doubt, envisages the abolition or total
extinguishment of the court which passed the decree. Further, to attract first part of cl (b)
of s 37, what is required is the complete abolition of the court which passed the decree and
not mere alteration in its pecuniary or territorial jurisdiction. The expression where the
court of first instance has ceased to have jurisdiction to execute the decree as envisaged by
second part of cl (b) of s 37, obviously refers to such a decree where the court loses
jurisdiction to execute the decree according to its tenor. 75

A court does not cease to have jurisdiction to execute its decree merely because the decree
is transferred to another court for execution 76 or because it is abolished and re-
established, 77 or merely because its business is transferred by the district judge under the
Act constituting it to another court, 78 or because the area in which the judgment-debtor
resides is transferred from its jurisdiction to that of another court. 79 If, after a court has
passed a decree, the local area in which the property is situated is transferred to a different
court, the decree-holder can apply for execution to the latter court. That court can directly
entertain an application for execution without an order of transfer by the court which had,
in fact, passed the decree. The transfer of local area, automatically gives, jurisdiction to the
court, to which the area has been transferred. 80 Clause (b) of this section applies where
the court which passed the decree is abolished and a new court, in its place, is established.
81 A distinction has also been made between a notification of the government, transferring

jurisdiction under s 13 (1) of the Bengal, Assam and Agra Civil Courts Act, 1877, and
assigned jurisdiction under s 13 (2) of the said Act and it has been held that a court which
passed a decree does not cease to have jurisdiction within this section, if the notification
issued is under s 13 (2). 82 Where an order was made by the High Court of Calcutta
rejecting a petition for leave to appeal to the Privy Council, and directing the petitioner to
pay the respondents costs, but the order was silent as to the court by which it was to be
executed, it was held that the circumstance that the High Court on its appellate side does
not, in practice, execute its own decrees and orders, did not make, that court, as regards
the execution of the order, a court that had ceased to have jurisdiction to execute its decree
83 (O 45, r 15). Nor does a court which passed a decree cease to have jurisdiction to

execute it, because after the passing of the decree, a party [eg court of wards] is added in
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execution who, had he been a party when the suit wherein the decree was passed was
instituted, would have deprived the court to its jurisdiction. 84 In a Madras case, 85 the
court said with reference to cl (b) of the section:

In fact this portion of Section 37 of the Civil Procedure Code clearly has reference to transfers of
territorial jurisdiction from one court to another.

The new explanation makes it clear that in such cases both the court from whose territorial
jurisdiction an area is withdrawn but wherein the suit was instituted and the decree was
passed and the court to whose jurisdiction the area is transferred, have jurisdiction to
execute such decree. But the latter court must be such that it would have, at the time of the
execution, application jurisdiction to try the said suit. A court, which passed a decree, does
not lose jurisdiction to execute it merely because subsequent to the decree, its pecuniary
jurisdiction is curtailed . If the successor of a judge, who passed a decree, has a more
limited jurisdiction so that he could not have entertained the suit, he may yet entertain the
application for execution. 86 It has been held in P Mary Arul Nadar v. M Nanu Pillai, 87 that
a court does not cease to exist within s 37 (b), when there is mere withdrawal from it, of a
part of its territorial jurisdiction. In applying this section, the nature of the cause which put
an end to the jurisdiction of a court is immaterial. 88 Where a court does not lack inherent
jurisdiction but has irregularly assumed jurisdiction, the proceedings before it are not
vitiated. In a Karnataka case, the munsiff , thinking that in view of the amended law, he was
not competent to execute an eviction decree passed by him, transferred it to the court of
the civil judge, without an application by the decree-holder. It was held that there was, at
the highest, an irregular assumption of jurisdiction by the transferee court. There was no
inherent lack of jurisdiction for the transferee court to execute the decree. Hence,
proceedings in the transferee court are not vitiated. 89

4. Which decrees may be executed. Preliminary decree is a decree within the meaning of
s 2 (2) of the Code of Civil Procedure but is not capable of execution normally till a final decree
is passed. In that sense, the court dealing with a preliminary decree before passing a final
decree may not be designated in law as an executed court within the meaning of s 37 of the
Code of Civil Procedure. 90

1 . Subs. by CPC (Amendment) Act 104 of 1976, s 16 (w.e.f. 1-2-1977).

2 . Gokuldas Rama Gaude v. V.G. Querium , 2007 (3) AIR Bom R 353 : 2007 (4) All MR 463.
3 . Jowad Hussain v. Gendan Singh , AIR 1926 PC 93: 53 IA 197 : 6 Pat 24, 28; affirming, (1922) ILR 1 Pat 444; Ekram Hussain v. Mst Umatul ,
AIR 1931 Pat 27: (1930) ILR 9 Pat 829; Hashim v. Martin , AIR 1927 Rang 104: (1926) 4 Rang 562; Dayaram v. Bansilal , AIR 1953 Bom
214 [LNIND 1952 BOM 36]: (1953) ILR Bom 387 : 55 BLR 30.
4 . Pateshwari Prasad Singh v. Abdul Karim , AIR 1946 All 496: (1946) ILR All 475; Baburam v. Deb Das , AIR 1959 Cal 73 [LNIND 1958
CAL 161].
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5 . Lekha v. Bhauna , (1896) ILR 18 All 101.

6 . Refaqat v. Bibi Tuwaif , (1917) ILR 39 All 393; Shyam Mandal v. Satinath , (1916) ILR 44 Cal 954, p. 960.
7 . Batuk Nath v. Munni Dei , (1914) ILR 36 All 284 : 41 IA 104; Abdul Majid v. Jawahir Lal , (1914) ILR 36 All 350 PC.
8 . Kalimuddin v. Kalimuddin , AIR 1924 Cal 530: (1924) ILR 51 Cal 715.
9 . Patloji v. Ganu , (1891) ILR 15 Bom 370.
10 . Bapu v. Vajir , (1897) ILR 21 Bom 548; Batuk v. Ambika , AIR 1932 Pat 238: (1932) ILR 11 Pat 409; but see Umasundari v. Bindu , (1897)
ILR 24 Cal 759; Munisami v. Munisami , (1897) ILR 22 Mad 293; Asmabibi v. Ahmed Hussain , (1908) ILR 30 All 290.
11 . Kailash Chandra v. Girija , (1912) ILR 39 Cal 925.
12 . Veerappa v. Sivagami , AIR 1942 Mad 291 [LNIND 1941 MAD 219]; Shorat v. Bridgman , (1882) ILR 4 All 376 (FB); Luckman v. Kishun ,
(1882) ILR 8 Cal 218; Doulat v. Bhukandas , (1886) ILR 11 Bom 172; Muhammad v. Muhammad , (1889) ILR 11 All 267 (FB); Nourang Rai v.
Latif , (1891) ILR 13 All 394; Sakhalchand v. Velchand , (1894) ILR 18 Bom 203; Manavikraman v. Unniappan , (1892) ILR 15 Mad 170;
Nanchand v. Vithu , (1894) ILR 19 Bom 258; Satwaji v. Sakarlal , (1914) ILR 39 Bom 175.
13 . Bhupindar v. Bijai , (1901) ILR 23 All 152 : 27 IA 209.
14 . Shorat v. Bridgman , (1882) ILR 4 All 376; Muhammad v. Muhammad , (1889) ILR 11 All 267; Shivlal v. Jumaklal , (1893) ILR 18 Bom 542;
Pichuvayyangar v. Seshayyangar , (1895) ILR 18 Mad 214; Abbas Khan v. Nibarani Dassi , (1910) 11 CLJ 159; Brij Narain v. Tejpal , (1910) ILR
32 All 295 : 37 IA 70.
15 . Jowad Hussain v. Gendan Singh , AIR 1926 PC 93: 53 IA 197 : 6 Pat 24, affirming, (1922) ILR 1 Pat 444; Luchman v. Kishun , (1882) ILR 8
Cal 28; Sakhalchand v. Velchand , (1894) ILR 18 Bom 203; Mahomed v. Mohini Kanta , (1907) ILR 34 Cal 874; Gajadhar v. Kishan , (1917) ILR
39 All 641.
16 . Rup Narain v. Sheo Prakash , AIR 1921 All 13: (1921) ILR 43 All 405.
17 . Chiranji Lal v. Dharm Singh , (1896) ILR 18 All 455; Manavikraman v. Unniappan , (1892) ILR 15 Mad 170; Bhola Nath v. Kanti Chundra ,
(1898) ILR 25 Cal 311; Ramaswami v. Sundra , (1908) ILR 31 Mad 28; Basanta Kumar v. Radha Rani , AIR 1922 Cal 329: (1922) 26 Cal WN
440 ; dissenting from Satwaji v. Sakharilal , (1914) ILR 39 Bom 175; Sukhram Das v. Nazar Muhammad , AIR 1925 Lah 380: (1925) 6 Lah
316.
18 . (1909) ILR 31 All 379.
19 . (1886) ILR 13 Cal 13.
20 . Sashikanta v. Sarat Chandra , AIR 1921 Cal 699: (1921) 34 CLJ 415.
21 . Ramaswami v. Sundra , (1908) ILR 31 Mad 28.
22 . AIR 1923 Mad 263: (1923) ILR 46 Mad 148 : 44 MLJ 107 : 17 LW 216 : 1923 MWN 1.
23 . Bhup Inder v. Bijai , (1901) ILR 23 All 152 : 27 IA 209.
24 . Nand Kumar v. Bilas Ram , (1918) 3 Pat LJ 116.
25 . Pasupati v. Nando Lal , (1903) ILR 30 Cal 718; Chettiatti v. Kunhi Koru , (1906) ILR 29 Mad 175.
26 . Surinder Nath Kapoor v. Union of India , 1998 (Supp) SCC 626.
27 . Manikayala Rao v. Narasimhaswami , AIR 1966 SC 470 [LNIND 1965 SC 207]: (1966) 1 SCR 628 [LNIND 1965 SC 207].
28 . Kilachand Devchand v. Ajudhya Prasad , AIR 1934 Bom 452: (1934) ILR 59 Bom 10.
29 . Parvathammal v. Chokkalinga , (1918) ILR 41 Mad 241.
30 . Chandra Kumar v. Kusum Kumari , AIR 1925 Cal 57: (1925) ILR 52 Cal 269; Ramkeshwar v. Babu Girija Prasad , AIR 1957 Pat 501.
31 . Dharanidhar Ghose v. Phani Bhusan Mukerji , AIR 1947 Cal 18: (1946) 50 Cal WN 837 : 82 CLJ 152; Ramkeshwar v. Babu Girija Prasad , AIR
1957 Pat 501.
32 . Punjab National Bank Ltd. v. Shamsher Singh , AIR 1936 Lah 696.
33 . Tarapada v. Hare Krishna , AIR 1957 Cal 335 [LNIND 1956 CAL 179].
34 . Moni Manjuri v. Razik , AIR 1954 Cal 6 [LNIND 1953 CAL 58].
35 . Radhe Shyam v. Karan Chand , AIR 1941 Lah 273.
36 . Shanoor Begum v. Rukh-Ul-Mulk S Abdul Wazid , AIR 1997 Kant 199 [LNIND 1997 KANT 44].
37 . N. Tombi Singh v. Mutum Ongbi Meipak Devi , AIR 1995 Gau 20.
38 . Ramesh Akre v. Mangalabai Pralhad Akre , AIR 2002 Bom 487 [LNIND 2001 MP 467].
39 . Abdul Rajack v. Abdul Lateef , AIR 1961 AP 482 [LNIND 1960 AP 238].
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40 . Hiralal v. Popatlal , AIR 1969 Guj 28 [LNIND 1967 GUJ 44].

41 . Kilachand v. Ajodhyaprasad , AIR 1934 Bom 452: (1934) ILR 59 Bom 10.
42 . Re Siddharth Srivastava , AIR 2002 Bom 494 [LNIND 2002 BOM 336].
43 . Collector of Customs v. East India Commercial Co. Ltd., AIR 1963 SC 1124 [LNIND 1962 SC 202]; Election Commr of India v. Sahu
Venkatasubba Rao , AIR 1953 SC 210 [LNIND 1953 SC 23]: (1953) SCR 1114 : (1953) SCJ 293 [LNIND 1953 SC 23]; Commr of Income-
tax v. Amritlal Bhogilal & Co. , AIR 1958 SC 868 [LNIND 1958 SC 68]: (1959) SCR 713 [LNIND 1958 SC 68] : (1958) SCJ 1007
[LNIND 1958 SC 68]; Madan Gopal v. Secy. to Govt. of Orissa , AIR 1962 SC 1513 [LNIND 1962 SC 119]; Lakshmi Achi v. Kailasa Thevar ,
(1964) 1 SCJ 54; State of Uttar Pradesh v. Muhammad Nooh , AIR 1958 SC 86 [LNIND 1957 SC 99]: (1958) SCR 595 [LNIND 1957 SC 99]
: (1958) SCJ 242 [LNIND 1957 SC 99] : (1958) SCA 73 [LNIND 1957 SC 99], which is a decision on peculiar facts; Gujraj v. Swaminath ,
(1917) ILR 39 All 13; Kedarnath v. Jainarayan , AIR 1954 Pat 497 [LNIND 1956 SC 7]; Ratan Mala v. Gopal Lal , AIR 1955 Cal 14
[LNIND 1954 CAL 123]: 58 Cal WN 994. See also notes to O 9, r 13, Hearing of Application after Dispoal of Appeal.
44 . Ins. by CPC (Amendment) Act 104 of 1976, s 17 (w.e.f. 1-2-1977) .
45 . Muhammad v. Tikachand , AIR 1925 All 276: (1925) ILR 47 All 57; N. Tombi Singh v. Mutum Ongbi Meipah Devi , AIR 1995 Guh 20.
46 . Bhoomatha Para Boiled Rice and Oil Mills v. Maheshwari Trading Co. , AIR 2010 AP 137 [LNIND 2009 AP 909]: 2010 (1) Andh LD 522
(DB).
47 . Ibid , at p. 144 (of AIR).
48 . Mahadev Prasad v. Ram Lochan , AIR 1980 SC 416: (1980) 4 SCC 354 [LNIND 1980 SC 384].
49 . Bhagwan Dass v. Ganga Prasad , AIR 1959 All 92 [LNIND 1958 ALL 134]; Chappan v. Moideen Kutty , (1899) ILR 22 Mad 68 : 8 MLJ 231
(FB).
50 . Lichubala Biswas v. Jindar Mondal , AIR 1990 Cal 151 [LNIND 1989 CAL 379].
51 . Gopal Krishna v. T.G. Laxman Shanbhogue , AIR 1964 Mys 34.
52 . Syndicate Bank v. Mahadevappa , AIR 1985 Kant 85 [LNIND 1984 KANT 220].
53 . Gulab Chand v. Saraswati Devi , AIR 1975 Del 210 [LNIND 1974 DEL 212].
54 . AIR 1931 Cal 312: (1931) ILR 58 Cal 832.
55 . Zamindar of Vellur v. Adinarayadu , (1896) ILR 19 Mad 445.
56 . Latchman v. Maddan Mohun , (1881) ILR 6 Cal 513.
57 . Iswari Prasad v. Farkat Hussain , (1917) 2 Pat LJ 113.
58 . Sahdev Prasad v. Raja Ram , AIR 1984 All 169 [LNIND 1984 ALL 28].
59 . Lalita Devi v. Kamla Devi , AIR 1995 All 21 [LNIND 1994 ALL 159].
60 . Indra Singh v. Ramcharan , AIR 2003 MP 144 [LNIND 2002 MP 366]. See also Merla Ramanna v. Nallaparaju , AIR 1956 SC 87 [LNIND
1955 SC 96].
61 . Latchman v. Maddan Mohun , (1881) ILR 6 Cal 513; Premchand v. Mokhoda , (1890) ILR 17 Cal 699 (FB); Jahar v. Kamini Debi , (1901) ILR
28 Cal 238; Udit Narain v. Mathura Prasad , (1908) ILR 35 Cal 974; Kali Pado v. Dino Nath , (1989) ILR 25 Cal 315 which is sometimes
cited in this connection, is not a case of transfer of jurisdiction; there was in that case, an order merely for the distribution of business
between two courts, each of which had jurisdiction; ILR 28 Cal 238 and ILR 35 Cal 974; but see Masrab Khan v. Debnath Mali , AIR 1942
Cal 321: (1942) ILR 1 Cal 289; Thyagaraja v. Sambasiva , AIR 1934 Mad 283 [LNIND 1933 MAD 237]: (1934) ILR 57 Mad 795 : 66 MLJ
492.
62 . Panduranga v. Vythilinga , (1907) ILR 30 Mad 537.
63 . Subbiah v. Ramanathan , (1914) ILR 37 Mad 462 : 471.
64 . Seeni Nadan v. Muthusami , (1919) ILR 42 Mad 821; Muthukaruppa v. Paiya , AIR 1924 Mad 32 [LNIND 1923 MAD 47]: (1923) 45 Mad
LJ 210.
65 . Chandmal v. Shib Prasad , AIR 1934 Pat 192: (1934) ILR 13 Pat 21.
66 . Sivaskandu v. Raja of Jeypore , AIR 1927 Mad 627 [LNIND 1927 MAD 87]: (1927) ILR 50 Mad 882.
67 . Rama Iyer v. Muthukrishnan , AIR 1932 Mad 418 [LNIND 1932 MAD 11] (FB) : (1932) ILR 55 Mad 801 : 62 MLJ 687; Masral Khan v.
Debnath Mali , AIR 1942 Cal 321: (1942) ILR 1 Cal 289.
68 . AIR 1956 SC 87 [LNIND 1955 SC 96]: (1955) 2 SCR 938 [LNIND 1955 SC 96] : 1956 SCJ 101 [LNIND 1955 SC 96]; Balkrishna v.
Linga Rao , (1943) ILR Mad 804 : (1943) 1 MLJ 119 [LNIND 1941 MAD 33], AIR 1943 Mad 449 which was approved therein;
Raghunandan Singh v. Narain Das , AIR 1960 All 730 [LNIND 1959 ALL 133]; Dasarath Prasad v. Baijnath Prasad , AIR 1960 Pat 285.
69 . Mansoor Alam v. Nasseeruddin Khan , AIR 2009 Pat 79 [LNINDORD 2008 PAT 2680]: 2009 (2) Civ LJ 925.
70 . : AIR 1958 Andh Pra 763 : (1958) 2 Andh WR 511.
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71 . But see Gowrammal v. Lingappa , AIR 1968 Mad 99 [LNIND 1966 MAD 103]: (1968) ILR 1 Mad 122 : (1967) 1 Mad LJ 281.
72 . AIR 1962 Punj 394: (1961) ILR 2 Punj 445.
73 . Skinner v. Skinner , AIR 1937 All 515 : (1937) ILR All 670.
74 . Veerappa v. Ramasami , (1920) ILR 43 Mad 135.
75 . Pearey Lal & Sons (Pvt.) Ltd. v. Jamuna Properties (P.) Ltd., AIR 2004 Del 126 [LNIND 2004 DEL 20]. See also Gulab Chand Sharma v.
Saraswati Devi , AIR 1975 Del 210 [LNIND 1974 DEL 212].
76 . Surendranath v. Harihar , AIR 1971 Ori 77 [LNIND 1970 ORI 5]: (1970) ILR Cut 1178.
77 . Khodaijatul v. Harihar , AIR 1926 Pat 209: (1925) ILR 4 Pat 688; Khairulla v. Jai Ram , AIR 1953 All 201 [LNIND 1952 ALL 77].
78 . Masrab Khan v. Debnath Mali , AIR 1942 Cal 321: (1942) ILR 1 Cal 289; Kali Pado v. Dino Nath , (1898) ILR 25 Cal 315; Jagannath v.
Sheonandan , AIR 1921 Pat 152: (1921) 6 Pat LJ 304; Saryug Barhi v. Devendra , AIR 1970 Pat 393.
79 . Muthukaruppa v. Paia Kavundan , AIR 1924 Mad 32 [LNIND 1923 MAD 47]: (1923) 45 Mad LJ 210.
80 . Hamir Singh v. Bhawani Shankar , AIR 1980 Raj 134.
81 . B. Lakshminarayana v. R. Rajmall , AIR 1972 Mys 342: (1972) 1 Mys LJ 652.
82 . Shibnath v. Life Insurance Corporation of India , AIR 1961 Cal 170 [LNIND 1960 CAL 70]: 65 Cal WN 766; Jahar v. Kamini Devi 28 Cal
238; Udit Narain v. Madura Prasad 35 Cal 974.
83 . Hurro Pershad v. Bhupendro , (1881) ILR 6 Cal 201.
84 . Bandoo v. Narsingrao , (1914) ILR 38 Bom 662.
85 . Suryanarayan Agarwalla v. Maheshwar Kest , AIR 1950 Assam 115: (1950) ILR 2 Assam 113; Venkatasami Naik v. Sivanu Mudali , (1919)
ILR 42 Mad 461 : 464.
86 . Abdus Sattar v. Mohini Mohan , AIR 1933 Cal 684: (1933) 37 Cal WN 679.
87 . AIR 1957 TC 69: (1956) TC 1314.
88 . Gauskha v. Abdul , (1893) ILR 17 Bom 162.
89 . N. Pariyakkal v. Co-op Tourist and Transport Society Ltd., AIR 1980 Kant 75 [LNIND 1979 KANT 82].
90 . Atava Akkulamma v. Gajjela Papi Reddy , AIR 1995 Andh Pra 166. See note under the same head to s 36 above.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Courts by which Decrees may be Executed

S. 38. Court by which decree may be executed.

A decree may be executed either by the Court which passed it, or by the Court to which it
is sent for execution.

1. Court which passed a decree. See notes to s 37 under the same heading. The primary
court competent to execute a decree is the one which passed the decree. It remains
competent to do so even though the decretal amount at the date of the execution exceeds
the limits of its pecuniary jurisdiction. 91

In view of the new explanation to s 37, the court to which an area from the jurisdiction of
the court which passed the decree has been transferred would also be competent to
execute the decree.

The court which passed the decree can transfer it for execution to another court, even
when execution proceedings are pending before it. 92

2. Court to which it is sent for execution. [See under ss 39 and 40].

An ex parte decree passed in 1949 by a court in Bankura in West Bengal in a personal act
ion against a resident of Morena in the former Madhya Bharat State is valid if the cause of
action had arisen within the jurisdiction of Bankura court and the notice of the suit was
served on the defendant. Such a decree can be transferred to Morena court for execution
on the Code of Civil Procedure having been made applicable in 1951 to Madhya Bharat. 93 The
Rajasthan High Court has held that the Disciplinary Committee of the Bar Council can
resort to this section for the purpose of executing its order of costs. 94 The term
proceeding in s 29 of Administrative Tribunal Act, 1985 is a very wide term to mean a
prescribed course of act ion to enforce the legal right. It indicates the prescribed mode in
which the judicial business is conducted. The execution is a step in judicial process. It
seeks to enforce the final order to realise the result of the adjudication. Therefore, the
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tribunal constituted under the Act gets jurisdiction and power to enforce order passed by
the tribunal and which attained finality. 95

On account of increase of pecuniary jurisdiction of District Courts, the execution petition

pending before High Court, pursuant to decree passed by High Court, is not liable to be
transferred to District Courts and should be dealt with by the High Court. 96

The Kerala High Court has held that an award passed by the Joint Registrar Chits can be
enforced by Civil Court in Kerala. 97

3. Jurisdiction of court executing a decree. The following are the leading rules relating
to the jurisdiction of courts executing decrees:

Rule I. No court can execute a decree in which the subject matter of the suit or of the application for
execution is property situated entirely outside the local limits of its jurisdiction. Territorial jurisdiction, in
other words, is a condition, precedent to a court executing a decree. 98 Security bond was
furnished to the court under O 37, r 3. Property covered by the bond was situated outside
the jurisdiction of the court. Sale of property in execution of the decree was sought. It was
held that the court which passes the decree has no jurisdiction for property outside the
local limits. Decree-holder must obtain transfer certificate. As a general rule, territorial
jurisdiction is a condition precedent to a court executing a decree. Merely because a
security bond had been furnished to the court which passed the decree, that court could
not order sale of property which is not situated in its jurisdiction. The decree-holder must
obtain transfer of the decree. 99

Exception I. The court which passed a decree for the enforcement of a mortgage of immovable property
has power in execution of its decree to order the sale of such property, though it may be situated beyond the
local limits of its jurisdiction. A sues B in a court in district X on a mortgage of two properties,
one situated in district X and the other in district Y . A decree is passed for the sale of
both the properties. The court in district X having jurisdiction to entertain the suit in
respect of the property situated in district Y (s 17), has also jurisdiction to sell that property
in execution of its decree, though the property is situate beyond its jurisdiction. It is not
bound to send the decree for execution as regards the property in district Y to the court of
that district under s 39 (c) but it may do so. 100 In the latter case, the decree as regards the
property in district Y may be executed by the court of district Y . 101

Exception II. Where after the passing of a decree in a suit for the enforcement of a mortgage the whole of
the immovable property included therein falls by transfer of jurisdiction, within the local limits of the
jurisdiction of another court, the application for execution of the decree according to the Calcutta rulings
may be made either to the court which passed the decree (though the properly is no longer within its
jurisdiction) or to the court within the local limits of whose jurisdiction, the immovable property falls by such
transfer but where the application is made to the former court it should not itself order the properly to be
sold, but should transfer it to the latter court for passing and executing the order for sale. 102
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It is submitted that the view of the Calcutta High Court still holds good, even after the
insertion of the new explanation to s 37, since that explanation does not say that the court
from whose jurisdiction the immovable property is transferred to another court can direct
the sale of such property. 103

Exception III. The salary of public officer or of a servant of a railway company or local authority may
be attached by a court, though the disbursing officer may not be within the local limits of the courts
jurisdiction. 104

Exception IV. The executing court can appoint a receiver for properties situated outside its territorial
jurisdiction and order their sale. 105

Exception V. It is competent to the court executing a decree to order execution against property in the
custody of any court of public officer, though such court or officer is not within the territorial jurisdiction. 106

Rule II. Where a decree has been passed for the payment of money, and the decree-holder
applies for attachment and sale of immovable property (belonging to the judgment-debtor)
which forms one estate apart whereof is situated within the local limits of the jurisdiction
of the court executing the decree and part beyond such limits.

The court executing the decree has the power to attach and sell the whole estate including
the portion situated beyond the local limits of its jurisdiction. 107

Rule III. Does a court to which a decree has been sent for execution under s 39 have the
jurisdiction to execute the decree, if the amount of the decree exceeds the limits of the
pecuniary jurisdiction of the court? There is a conflict of decision as to whether the court
of execution is restricted to the pecuniary limits of its jurisdiction. To put the question in a
concrete form, if a decree for Rs 7,000 is sent for execution to a court whose pecuniary
jurisdiction does not exceed Rs 5,000, can the latter court execute the decree? Yes
according to Madras 108 and Allahabad. 109 No, according to the High Courts of Calcutta,
110 Bombay, 111 Patna 112 and Orissa. 113 This conflict has now been resolved by the new

sub-s 3 to s 39 added by the Amendment Act, 1976, which provides that a court shall be
deemed to be a court of competent jurisdiction if at the time of application for transfer to
it, it would have jurisdiction to try to suit in which such decree was passed.

In a suit for recovery of loan filed by a Bank, the decree passed by the Civil Court was less
than 10 lacs. But when the Bank applied for execution, the outstanding decretal dues
including interest had grown to nearly 50 lacs. Relying on the decision of the Supreme
Court in Punjab National Bank v. Chajju Rao , 114 a Division Bench of the Orissa High Court
held that since the amount due has become were than 10 lacs, it can be recovered by the
Debt Recovery Tribunal only and not by Civil Court, notwithstanding the fact that the
decree was for less than 10 lacs at the initial stage. 115
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Rule IV. Where the decree sought to be executed is passed by a competent court, the
court will not be deemed to be incompetent to execute the decree merely because by
reason of the amount of interest or mesne profits ascertained for a period subsequent to
the institution of the suit, the pecuniary limits of the jurisdiction of such court are
exceeded A obtains a decree against B for Rs 4,000 and interest in a court of which the
pecuniary jurisdiction is limited to Rs 5,000. A then applies to the court for execution. At
the date of the application for execution, the total amount of the decree by reason of
accumulation of interest exceeds Rs 5,000. The court has jurisdiction to execute the decree.
All the courts are agreed on the point, 116 for, if the court had jurisdiction at the time of
the institution of the suit, incidental causes such as the accumulation of profits or interest
or a rise in price will not affect its jurisdiction. 117

Rule V. A court to which execution of a decree is transferred has no jurisdiction to order

either the attachment or sale of immovable property in execution, if at the time of the
order such court had no territorial jurisdiction over the property. 118

4. Powers of executing Court: Court executing a decree cannot go behind the

decree. A court executing a decree cannot go behind the decree. It must take the decree as
it stands. 119 It cannot entertain any objection that the decree is incorrect in law or on facts.
That is because until the decree is set aside by an appropriate proceeding in appeal or in
revision, a decree, even if it is erroneous, is binding between the parties. 120 Hence, it is not
open to an executing court to say that a part of the decree is violative of s 23 of the
Bombay Money Lenders Act, 1947 and therefore should not be executed. 121 Likewise, a
judgment-debtor cannot object in execution proceedings that the decree passed in terms of
an award was illegal since the award was not registered. 122 This rule holds good only
between parties to the decree and their representatives. 123 It has no power to entertain any
objection as to the validity of the decree 124 or that it was obtained by fraud 125 or as to the
legality or correctness of the decree, 126 e.g. , an objection that the decree sought to be
executed was passed against a wrong person, 127 or that it was passed against a lunatic or a
minor not properly represented. 128 The reason is that a decree, though it may not be
according to law, is binding and conclusive between the parties until it is set aside either in
appeal or revision. 129 A decree against a Hindu Joint Family firm can be executed against
all the persons who have been personally served though the suit arose out of a claim of
misappropriation by the karta as immunity of the members from liability therefore was a
question which should have been raised and determined in the suit. 130 For the same
reason the court executing a decree cannot alter, vary or add to the terms of the decree, 131
even by consent of parties. 132 As to enforceability of a compromise entered in the course
of execution proceedings . 133 Where a decree was passed against an unregistered firm in
violation of s 69 (2) of the Indian Partnership Act, 1932, the case is one of error in the exercise
of jurisdiction and not want of it, and the decree cannot be treated as a nullity.134 The
grievance of the objectors to the execution of the decree of the subordinate judge as
passed in appeal against dismissal of the title suit was that the interest of one minor
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plaintiff who attained majority during pendency of suit could not be represented by the
holder of the power of attorney on behalf of all the plaintiffs. This point, though raised in
the trial court, was not considered by it. The High Court, in second appeal, did not enter
into the question as it was one of fact. The executing court cannot go into it. 135 A decree
passed in terms of an award before the period prescribed for filing an application to set it
aside had expired, is not void and the objection is not one which could be taken in
execution proceedings. 136 A decree however passed in a suit based on an award is a nullity
in view of s 32 of the Arbitration Act, 1940 (now replaced by Arbitration and Conciliation Act,
1996) and the execution court can refuse to execute it. 137 It is not open to the executing
court to go into the validity of an order amending a decree which is sought to be executed.
138 Broadly speaking, the distinction is one between a plea that the decree sought to be

executed is a nullity and a plea that it is invalid, improper or erroneous . 139 It has also
generally been held that a court executing a decree has no power to entertain an objection
that the court which passed the decree had no jurisdiction to pass it. 140 A Full Bench of
the Calcutta High Court has held that when a decree is made by a court which apparently
had no jurisdiction to make it, the executing court is entitled to refuse to execute it. 141 The
word apparently means that the decree appears, on the face of it, to have been passed by a
court which had no jurisdiction. 142 An executing court, therefore, cannot refuse to execute
a decree where its illegality is not patent but has to be established after an investigation.
Most often, such illegality would be one relating to jurisdiction. 143 Accordingly, when a
court passed a decree in terms of an award under the Arbitration Act, 1899, the Calcutta
High Court held that the court of execution was entitled to refuse to execute it; but as such
awards are under s 15 of that Act, enforceable as decrees, the High Court directed the
application to be treated as an application to execute the award. 144

A Full Bench of the Rangoon High Court has expressed emphatic dissent from the
Calcutta decision and holds that it is against public policy and good sense that the validity
of the decree should be questioned by the executing court. 145 This case has been followed
in a later decision of the same High Court; 146 but the point seems to be concluded by the
pronouncement of the Privy Council in Jnanendra Mohan v. Rabindra Nath , 147 that, if the
court which passed the decree has no inherent jurisdiction, the decree is incapable of
execution.

Dealing with this question, the Supreme Court observed in Kiran Singh v. Chaman Paswan ,
148 that a decree passed by a court without jurisdiction was a nullity and that its invalidity

could be set up whenever and wherever it was sought to be enforced or relied upon and
even at the stage of its execution or even in collateral proceedings but where the defect in
jurisdiction was of a kind which falls within the saving of s 21 of the Code of Civil Procedure or
s 11 of the Suits Valuation Act, 1887, it could not be raised except in the manner and subject
to the conditions mentioned therein. A Full Bench of the Calcutta High Court has again
considered the question in Union of India v. Siddique Ahmed , 149 and it has held, reviewing its
previous decisions, that no objection based on absence of territorial jurisdiction could be
taken in execution, unless it was apparent on the face of the decree.
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In Basant Singh v. Trilokinath , 150 it has been held that when on the allegation in the plaint,
the suit is beyond the pecuniary jurisdiction of the court, a decree passed by it is a nullity
and that the objection can be raised in execution.

In Subbanna v. Subbanna , 151 it has been held by the Andhra High Court that a court has,
under O 29, r 12, no power to award mesne profits for more than three years and that a
decree passed in contravention of the section is a nullity and that the objection could be
taken in execution.

In a case in which an application was made to execute a final decree after the preliminary
decree on which it rested, had been set aside on appeal, a Division Bench of the Calcutta
High Court held that as the final decree was superseded the court of execution had power
to determine whether the decree was a valid and operative decree and to refuse to execute
it if it was no longer operative. 152

This was approved by a Full Bench of the Calcutta High Court. 153 C. J. Rankin observed
that this case had not been considered in the previous full bench case. 154

But a decree passed against a person who was dead at the date of the decree without
bringing his legal representative on the record is a nullity , and it cannot be executed
against his estate. 155 A decree passed in a suit instituted against a ruling prince without the
certificate required by s 86 of the Code of Civil Procedure, is a nullity and the court executing
the decree can entertain the objection. 156 The Registrar of Co-operative Societies Act ing
under the rules is a court, his award is a decree and a court which is called upon to execute
it has no power to go behind it. 157 A decree passed in terms of an award by a court act ing
under the Bombay Rent Control Act is a nullity as the Act contains no provision for
reference to arbitration and that is an objection which can be taken in execution. 158 A
decree directing a sale of raiyati holding in contravention of ss 46 and 47 of Chota Nagpur
Tenancy Act, 1908, is void and the objection can be taken in execution proceedings but if
the question had been raised in the suit and a finding given that the land is not raiyati , its
correctness cannot be challenged in execution. 159 An objection that a decree in ejectment
could not be executed by reason of the provision in House Rent Control Order is one
which could be taken in execution proceedings as it is directed not against the passing of
the decree but against its execution. 160 Such an objection could be taken in execution even
if the House Rent Control Order came into force after the institution of the suit in which
the decree in ejectment was passed. 161 Where the execution of a decree in ejectment was
resisted by the tenant on the ground that the title of the landlord to the lands had ceased as
a result of the Madhya Pradesh Jagir Abolition Act, 1951, it was held that the objection
was one which could be raised in execution. 162 A preliminary decree for partition cannot
be executed. 163

5. Construction of decree by executing Court. If the decree is free from ambiguity, the
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court of execution is bound to execute it whether it be right or wrong . 164 But it cannot,
under the guise of interpretation, make a new decree for the parties. 165 Altering the terms
of the decree must be clearly understood in contrast of construing a decree or interpreting
a decree or giving clarity to its terms and conditions. In the garb of the latter, the court
cannot create a new decree which is neither intended nor passed by the court of competent
jurisdiction. Executing court can provide clarity, interpret or construe the decree, by
keeping the decree as passed by the court of the competent jurisdiction intact and
undisturbed. While exercising its jurisdiction, if the executing court, in the guise of these
ingredients, materially alters the terms and conditions of the decree, to the prejudice of any
of the parties to the decree, which ought to have, if at all, fallen in the domain of courts of
competent jurisdiction, i.e. appellate or the court that passed the decree, certainly the
executing court would outgress its jurisdiction as an executing court. Permitting an
executing court to alter the terms of the decree would be opposed to all settled canons of
civil jurisprudence. A decree which has been passed and has not been assailed in the
regular appeals which were available to the parties against whom the decree was passed,
such party cannot be permitted to abuse the process of law before the executing court to
alter the decree, which has attained finality in all aspects. 166 But though a court executing a
decree cannot go behind the decree, it is quite competent to construe the decree where the
terms of the decree are ambiguous, and to ascertain its precise meaning, for, unless this is
done, the decree cannot be executed. 167 There is no question in such a case of the
executing court going behind the decree. If, on examination of the nature and contents of
the decree, the court finds that it is a purely declaratory decree, it must refuse to execute it.
168 If the decree creates a charge on property in which the judgment-debtor had a widows

estate, the executing court has jurisdiction to inquire if the charge continued after the
widows death and if it could be enforced against the property in the hands of her legal
representative. 169 The construction of a decree must be governed by the pleadings and the
judgment. 170 And the court should, if possible, put such a construction upon the decree as
would make it in accordance with law. 171 When a particular construction has been put
upon a decree in a former execution proceeding, it is not open to the court in a subsequent
application to treat that construction as erroneous. 172 6. Distinction between Section 38
and Section 63. Section 38 is a general section dealing with execution. It contemplates
only one decree-holder applying to execute only one decree. Section 63 applies when there
are more decree-holders than one but the same property has been attached by more courts
than one. Section 63 cannot be controlled by this section. Hence, where acting under s 63,
the decree of the court of lower grade is called up by the court of higher grade, the latter
court has jurisdiction to sell the property attached in execution of that decree. 173

By virtue of UP Civil Laws Amendment Act, 1972, the decree could not have been set
aside or invalidated and the only consequence which would ensue is that the decree would
be lying dormant and could not be executed. Once the bar placed by the 1972 Act is
removed, by virtue of the doctrine of eclipse, the decree will revive and become at once
operative and executed. 174
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7. Sections 38 and 39(4)Harmonious reading. In view of the aforesaid insertion of sub-

s (4), it has been made clear, removing all doubts that the court which has passed a decree,
is not authorised to execute the decree against any person or property outside the local
limits of its jurisdiction. Therefore, the doubts which might or could have arisen on the
question of jurisdiction of an executing court, have been removed. In a harmonious
reading of both the ss 38 and 39(4), it appears that the court which has passed a decree
cannot have any jurisdiction to proceed with the execution of a decree when circumstances
and conditions mentioned in s 39 exist. 175

8. Execution of arbitration award. It may be noted that if one juxtaposes the expression
court occurring in s 36 with s 2 (e) of the Arbitration and Conciliation Act, 1996, it would mean
that the award shall be enforced in the same manner as if it were a decree made by a court
having jurisdiction to decide questions forming the subject-matter of the arbitration if the
same had been the subject-matter of the suit. If that be so, the inquiry would be which is
the court having jurisdiction to decide the question forming the subject-matter of the
arbitration, if the same had been the subject-matter of a suit. Then, that court which has
the jurisdiction to decide the subject-matter of the arbitration would have jurisdiction to
levy execution. That takes us to the Code of Civil Procedure.

On a combined reading of s s 38 and 20 of the Code of Civil Procedure, it can be seen that the
court which can entertain a suit with respect to the subject-matter of arbitration dispute
alone can exercise the power under s 36 of the Arbitration and Conciliation Act, 1996 as well.
176

S. 39. Transfer of decree.

(1) The Court which passed a decree may, on the application of the decree-holder, send
it for execution to another Court 177 [of competent jurisdiction],
(a) if the person against whom the decree is passed act ually and voluntarily resides
or carries on business, or personally works for gain, within the local limits of the
jurisdiction of such other Court, or
(b) if such person has not property within the local limits of the jurisdiction of the
Court which passed the decree sufficient to satisfy such decree and has property
within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property situate outside
the local limits of the jurisdiction of the Court which passed it, or
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(d) if the Court which passed the decree considers for any other reason, which it
shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to
any subordinate Court of competent jurisdiction.
178 [(3) For the purposes of this section, a Court shall be deemed to be a Court of
competent jurisdiction if, at the time of making the application for the transfer of
decree to it, such Court would have jurisdiction to try the suit in which such decree
was passed.]
179 [(4) Nothing in this section shall be deemed to authorise the Court which
passed a decree to execute such decree against any person or property outside the
local limits of its jurisdiction.]

STATE AMENDMENT

Uttar Pradesh. The following amendments were made by Uttar Pradesh Act No. 31 of
1978, S. 2 (w.e.f. 1-8-1978).

In its application to the State of Uttar Pradesh, sub-section (3) substituted as under:

(3) For the purpose of this section a Court shall be deemed to be a Court of competent
jurisdiction if the amount or value of the subject-matter of the suit wherein the decree was
passed does not exceed the pecuniary limits, if any, of its ordinary jurisdiction at the time
of making the application for the transfer of decree to it, notwithstanding that it had
otherwise no jurisdiction to try the suit.

1. Alterations in the section .The words of competent jurisdiction in sub-s 2 were

inserted by the Code of Civil Procedure 1908. The same words are added in sub-s 1 by the
Amendment Act, 1976. The new sub-s 3 added by the Amendment Act, 1976, clarifies, in
view of a conflict in judicial opinion, as to whether the transferee court must be one of
competent pecuniary jurisdiction and if so, at what stage such competence should be
judged. See notes on jurisdiction of court executing a decreer 3 under s 38. The new sub-
section provides that it would be court of competent pecuniary jurisdiction if it has
jurisdiction to try the suit in which the transferred decree is passed at the time when the
application for transfer to it is made.

The new sub-s (4) has been inserted in the section by the latest amendment by Code of Civil
Procedure (Amendment) Act, 2002 effective from 1 July 2002 to specify that the court which
passed decree cannot execute the decree against any person or property outside the local
limits of its jurisdiction.
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Section 39 clearly states that a decree be executed by another court of competent

jurisdiction:
(i) if the person against whom the decree is passed act ually and voluntarily resides or
carries on business, or personally works for gain, within the local limits of the
jurisdiction of such other court, or
(ii) if such person has no property within the local limits of the jurisdiction of the court
which passed the decree sufficient to satisfy such decree and has property within
the local limits of the jurisdiction of such other court, or
(iii) if the decree directs the sale or delivery of immovable property situated outside the
local limits of the jurisdiction of the court which passed it, or
(iv) if the court which passed the decree considers for any other reason, which it shall
record in writing, that the decree should be executed by such other court.
(v) The court may on an application of the decree-holder under sub-s (1) of s 39 and
on its own motion under sub-s (2) of s 39 transfer the decree for execution to
courts of competent jurisdiction.

The Rajasthan High Court 180 has held that s 39 is an enabling provision and the word may
in the sub-section is not to be construed as must or shall. Similarly, the Punjab, 181 Patna,
182 Mysore 183 and Rajasthan 184 High Courts have held that by transferring the decree to

another court for execution, the court which passed the decree does not lose jurisdiction to
pass appropriate orders. The insertion of sub-s (4) in s 39 is aimed at nullifying the effect
of the above stated judgments passed by various High Courts.

The situation emerging is that courts, which passed the decree, cannot execute the decree
passed against any person or property outside the local limits of its jurisdiction. The decree
must be transferred to the courts of competent jurisdiction.

2. Sections 38 and 39(4)Harmonious reading. In view of the aforesaid insertion of sub-

s (4) it has been made clear removing all doubts that the court, which has passed a decree,
is not authorised to execute the decree against any person or property outside the local
limits of its jurisdiction. Therefore, the doubts, which might or could have arisen on the
question of jurisdiction of an executing court, have been removed. In harmonious reading
of both, the two ss 38 and 39(4), it appears that the court which has passed a decree
cannot have any jurisdiction to proceed with the execution of a decree when the
circumstances and conditions mentioned in s 39 exist. 185

3. Sections 39(4) and Order 21, rule 3 and Order 21, rule 48. Section 39 does not
authorise the court to execute the decree outside its jurisdiction but it does not dilute the
other provisions giving such power on compliance of conditions stipulated in those
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provisions. Thus, the provisions, such as, O 21, r 3 or O 21, r 48 which provide differently,
would not be effected by s 39 (4) of the Code of Civil Procedure. 186

Sabharwal, J., (as he then was), speaking for the Three-Judge Bench of the Supreme Court
observed as follows in the above judgment:

23. Section 39(1) of the Code provides that the Court which passed a decree may, on the
application of the decree-holder send it for execution to another court of competent
jurisdiction. By Act 22 of 2002, Section 39(4) has been inserted providing that nothing in
the section shall be deemed to authorise the Court which passed a decree to execute such
decree against any person or property outside the local limits of its jurisdiction. The
question is whether this newly added provision prohibits the executing court from
executing a decree against a person or property out side its jurisdiction and whether this
provision overrides Order XXI Rule 3 and Order XXI Rule 48 or whether these
provisions continue to be an exception to Section 39(4) as was the legal position before the
amendment.

24. Order XXI Rule 3 provides that where immovable property forms one estate or tenure
situate within the local limits of the jurisdiction of two or more courts, any one of such
courts may attach and sell the entire estate or tenure. Likewise, under Order XXI Rule 48,
attachment of salary of a Government servant, Railway servant or servant of local
authority can be made by the court whether the judgment-debtor or the disbursing officer
jurisdiction. 187

After noticing its earlier decision in the Salem Advocate Bar Association case (supra) , the
Supreme Court clarified the matter and held that in case of a decree for sale of property
outside the jurisdiction of the Court passing the decree, the same has to be transferred to a
Court having jurisdiction over the property for execution. 188 Balasubram anyan, J.,
speaking for the Bench, observed as follows:

A decree could be executed by the court which passed the decree so long as it is confined
to the assets within its own jurisdiction or as authorised by Order XXI Rule 3 or Order
XXI Rule 48 of Code or the judgment debtor is within its jurisdiction, if it is a decree for
personal obedience by the judgment debtor. But when the property sought to be
proceeded against, is outside the jurisdiction of the court which passed the decree act ing
as the executing court, there was a conflict of views earlier, some courts taking the view
that the court which passed the decree and which is approached for execution cannot
proceed with execution but could only transmit the decree to the court having jurisdiction
over the property and some other courts taking the view that it is a matter of discretion for
the executing court and it could either proceed with the execution or send the decree for
execution to another court. But this conflict was set at rest by Amendment Act 22 of 2002
with effect from 1.7.2002, by adopting the position that if the execution is sought to be
proceeded against any person or property outside the local limits of the jurisdiction of the
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executing court, nothing in Section 39 of the code shall be deemed to authorise the court
to proceed with the execution. In the light of this, it may not be possible to accept the
contention that it is a matter of discretion for the court either to proceed with the
execution of the decree or to transfer it for execution to the court within the jurisdiction of
which the property is situate. 189

Declining to interfere with the judgment of the High Court which refused to set aside the
orders passed against the judgment-debtor, the Supreme Court further observed in the
above case that the orders of restraint issued to a third person from handing over property
in his possession to judgment-debtor along with concerned documents were in the nature
of a freezing order or a Mareva injunction and an order akin to an Anton Piller order,
orders that can be issued even if the property or the person concerned is outside the
jurisdiction of the court. 190

4. Sub-section (1) and (2)relative scopepower of transfer under Sub-section (2) is

independent of Sub-section (1). The question is whether sub-s (2) of s 39, Code of Civil
Procedure, providing for suo motu transfer is an independent one or is circumscribed by the
contingencies as set out in sub-cll (a) to (d) of sub-s (1) of s 39. The language of sub-s (2)
does not contemplate any such fetter. While sub-s (1) deals with transfer to another
competent court having jurisdiction or assets being located within its jurisdiction, sub-s (2)
empowers the court passing the decree of its own motion to transfer it for execution to
any subordinate court of competent jurisdiction. Sub-section (2) confers a suo motu power
to assign a decree for execution of its own motion to any subordinate court. The exercise
of the power under sub-s (2) of s 39, Code of Civil Procedure, to send the decree for execution
to a subordinate court, can be exercised without meeting the requirements of sub-cll (a) to
(d) under sub-s (1) of s 39 of the Indian Penal Code 1860. The expression used in sub-s (2) of s
39, Code of Civil Procedure, is to any subordinate Court for execution in contradistinction to
another Court of competent jurisdiction, as used in sub-s (1) of s 39 of the Code of Civil
Procedure. The power under sub-s (2) of s 39 can be exercised for administrative reasons to
ensure expedition in execution of the decree, etc. In case of Delhi, for instance, the Civil
Nazarat is located at the District Courts. The warrants for possession and warrants for sale
or attachment of properties, etc, are executed through the administrative civil judge. In
such circumstances, if the court may find that the decree can be conveniently and
expeditiously executed by the District Court, it may in the exercise of powers under sub-s
(2) of s 39 of the Indian Penal Code 1860, send the decree for execution to the District Courts.
Accordingly, it can be said that the exercise of the powers to transfer under sub-s (2) of s
39, Code of Civil Procedure, can be exercised independently of the powers under sub-s (1) of s
39 of the Code of Civil Procedure.191

5. Court which passed a decree. See notes to s 37 under the same head above.

Whereas s 39 (1) deals with transfer of a decree on an application made therefore by a

decree-holder, sub-s 2 deals with transfer of a decree suo motu by the court which passed
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the decree but only to a court subordinate to it. 192 The section is an enabling provision
and the word may in both the sub-sections is not to be construed as must or shall. 193 If a
decree is transferred to another court, such transfer takes effect from the date of the order
of transfer. 194

By transferring the decree to another court for execution, the court which passed the
decree does not lose jurisdiction to pass orders till the certificate is received from the
transferee court under s 41. 195 It retains its jurisdiction to pass appropriate orders. 196 It
does not lose its power to pass orders under this section by reason of the fact that the
properties had been transferred to the jurisdiction of another court. 197 The court could
also pass orders for simultaneous execution. 198 The powers conferred by this section and s
44 A are independent and alternative and it is accordingly open to the decree-holder to
pursue either, at his choice. 199 An order of transfer under this section can be made only by
the court which passed a decree and it was accordingly held that where a decree was passed
by the court of the district judge, Gwalior, on 18 November 1948, when it was governed
by the Madhya Bharat Code and subsequently the Code of Civil Procedure was extended to it,
it ceased to be the same court within this section and consequently an order of transfer of
execution made by it was ultra vires the section and the transferee court acquired no power
to execute the decree. 200 The transferee court has no authority to transfer the execution
proceedings to another court as that could be done only by the court which passed the
decree. 201

6. Decree on the Original Side. A Special Bench of the High Court of Bombay has held
that the High Court has jurisdiction, in the exercise of its original civil jurisdiction, to
execute a decree passed on its original side anywhere within the Presidency of Bombay. 202

The Calcutta High Court has held that the Court which passed a decree can appoint a
receiver over the property situated outside the territorial jurisdiction. It was held that the
said practice or procedure is adopted in view of r 3 of the Original Side Rules, which
cannot be curtailed by s 39 (4) of the Code. The said practice and procedure followed by
the High Court for a long time also partakes the character of law by virtue of r 3 Chapter
XL of the Original Side Rules. 203

Decree Passednot by a Civil Court. An order passed by the Debt Relief Court under the
CP and Berar Indebtedness Act, 1939, cannot be transferred to a civil court for execution.
204

7. Another Court. The court to which the decree is sent for execution must be a court in
India. 205 Decrees cannot be sent to courts outside India except in the case for which s 45
makes special provision. 206 It was accordingly held by the Supreme Court that an order of
transfer made on 28 August 1950 by the subordinate judge of Bankura to the Court of the
District Judge, Morena, in Gwalior State, fell outside the section as the transferee court
was not, on that day, governed by the Code of Civil Procedure. 207 Such court must be of
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competent jurisdiction, i.e. , it must be a court which, at the time of making the application
for the transfer of the decree, would have jurisdiction to try the suit wherein the decree
was passed.

8. Applications for transfer of a decree. An application for a transfer of a decree under

this section need not be in any particular form. It is enough if it gives sufficient particulars
of the decree to be transferred. 208 Where on the application of the decree-holder, the
court which passed the decree granted leave to the transferee court to sell property and
that order was communicated to that court, it was held by the Supreme Court that there
was in substance, a transfer of the decree under this sub-section. 209 An objection raised by
a judgment-debtor opposing the transfer of a decree for execution, is an objection relating
to the execution of the decree and the order passed on such objection is an order falling
under s 47 of Code of Civil Procedure. 210 An objection that the order of transfer was ex parte
can be raised by the judgment-debtor and if the objection is overruled, the order will fall
under s 47. 211 Ordinarily, an order transferring a decree under this section is merely a
ministerial order. 212 Such an order can be passed ex parte without notice to the judgment-
debtor 213 and where the application is only for transfer of the decree, it can be ordered
even without notice to the judgment-debtor under O 21, r 22. 214 Where the transferee
court has jurisdiction inherently, absence of a formal order for transfer is a mere
irregularity. 215

In a case for execution of a decree for payment of money, where preliminary objection was
raised with regard to the territorial jurisdiction of the Court in receiving the execution
application, it was held that the question of transferring the execution proceeding would
arise only upon the examination of judgement-debtor in Court on the question as to
whether he holds any property within the territorial jurisliction and as to whether he has
any other debts within the territorial jurisdiction of the Court. 216

The provisions for filing an application for execution begins from r 10 of Order XXI. The
provisions of r 5 and 6 of the said Order precede r 10. Therefore Order of transfer of an
execution to some other court can be made even before reaching the stage of r 10, i.e. ,
before the application for execution of the decree is filed. 217

9. Entire decree should Be transferred. The High Court of Calcutta has held that the
entire decree, and not a part of it, should be sent for execution to another court. 218

10. Jurisdiction of the transferee Court. The court to whose jurisdiction the subject
matter of the decree is transferred, acquires inherent jurisdiction over the same by reason
of such transfer, and if it entertains an execution application with reference thereto, it
would, at worst, be an irregular assumption of jurisdiction and not a total absence of it, and
if objection to it is not taken at the earliest opportunity, it must be deemed to have been
waived, and cannot be raised at any later stage of the proceedings. 219
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The transferee court gets jurisdiction to execute a decree only when there is an order of
transfer by the court which passed the decree. Therefore, an execution application to a
transferee court presented before an order of transfer is made, is incompetent. 220 But if an
execution application is presented before a transfer order is passed and is continued after
such an order is passed, the proceedings are not invalid, as the presentation of a fresh
application after the date of the transfer order would cure the formal defect. 221 An
application presented after an order of transfer is made but before the copy of the decree
and the certificate as required by O 21, r 6 is sent, is valid. 222

11. Transfer of decree for execution. A decree passed by one court may be sent for
execution to another court, either on the application of the decree-holder on one of the
grounds stated in this section, or by the court which passed it of its own motion. When a
decree is sent by the court which passed it for execution to another court, the court
sending the decree must send a copy of the decree and other documents mentioned in O
21, r 6, to the court by which the decree is to be executed. The latter court must, on
receiving the copy of the decree and the other documents, cause the same to be filed (O
21, r 7). A mere application to transfer a decree is not an application for execution; 223 and
this is particularly so in chartered High Courts where decrees are transferred by ministerial
order. 224 The decree-holder who has applied for execution to the court which passed the
decree need not make a fresh application to the transferee court. 225 When he has not
applied to the court which passed the decree, he must apply to the transferee court for
execution (O 21, r 10). The court executing a decree sent to it for execution has the same
powers in executing such decree as if it had been passed by itself (s 42).

Where one of the judgment-debtors does not reside voluntarily or works for gain or carries
on business or has property within the jurisdiction of the court which passed the decree, it
was held by the Kerala High Court that decree against the said judgment-debtor can be
transferred to a court of competent jurisdiction while retaining the decree to be executed
against other judgment-debtors. The transferee court can execute the decree only against
that judgment-debtor and not against other judgment-debtors. 226

Provisions of Civil Procedure Code relating to execution apply to orders passed by the Family
Court. Thus, where the judgment-debtor was not residing within the territorial limits of
jurisdiction of the Family Court at Secunderabad and his place or residence was shown as
Adilabad, it was held by the Andhra Pradesh High Court that the Family Court at
Secunderabad should not have entertained the application for the arrest of judgment-
debtor and should have transmitted the decree to a competent Court in Adilabad district to
execute the decree.227

12. Initiation of proceedings on transfer of decree. Where a decree is transferred for

execution to another court, it is the application for execution to that court, which initiates
the proceedings in execution. The receipt of the decree is a ministerial Act. A decree
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passed by a sub-judge in Madras Presidency was transferred to a court in Burma. The

papers in the proceeding were received in due course. The application for execution was
made after the separation of Burma from British India. It was held that the decree of the
Madras court became a foreign decree and the Burma court had no jurisdiction to execute
it, no reciprocation in respect of execution having been made. 228

13. Clause (A): Residence of Judgment-debtor outside the Jurisdiction. This clause
provides for transfer of the decree if the judgment-debtor is resident in the jurisdiction of
another court. The power of the court, under this clause, to transfer a decree is not
confined to the case where execution is sought against the person of the judgment-debtor.
The decree-holder is not bound to state, in the application for transfer, the mode in which
the decree is to be executed. If he satisfies the court that the judgment-debtor resides in
the jurisdiction of another court, he may ask for transferring the decree to that court
without stating anything more in his application. 229 If the judgment-debtors garnishee is
resident in another jurisdiction, the decree must be transferred there to serve a prohibitory
order upon him. 230 Where a decree passed against three judgment-debtors was transferred
to another court for execution as against two of them, the transferee court was held to
have no jurisdiction to entertain an execution application against the third judgment-
debtor. 231

14. Clause (B): Property of Judgment-debtor outside the Jurisdiction. If the

judgment-debtors property is out of jurisdiction, the court which passed the decree cannot
attach it, but must transfer the decree to the court within whose local limits, the property
may be. 232

15. Clause (C): Decree for sale or possession outside the Jurisdiction. As stated in r 1
under s 38, territorial jurisdiction is a condition precedent to a court excepting a decree. If
the decree directs the sale of immovable property within the territorial limits of the
jurisdiction of another court, it must be sent to that court for execution. There is an
exception to this in the case of a decree for the enforcement of a mortgage; see exception
1 to r 1 under s 38 above. As to such decrees, the court may either execute the decree itself
or send it for execution to the court having local jurisdiction. 233

16. Clause (D): Court considering that execution should be in another court. In a
Bombay case, the court had expressed a doubt whether cl (d) of this section enables a
subordinate judge to transfer a decree for execution to a small cause court, where the
property attached was within the local jurisdiction of the subordinate judge. 234 An order
for transfer is necessary even when the same judge holds office, both as a judge of the
small cause court and as a judge on the original side and the same can be made by the
judge either on the application of the party or otherwise. 235 Such an order of transfer
could be implied when he orders execution against immovable property. 236 Under s 39
(1), the decree-holder has no indefeasible right to get his application for transfer of the
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decree to another court ipso facto allowed, particularly when the case is outside s 39, cll (a),
(b) and (c). 237

A transfer order under s 39 (1)(d) should be proved. In the absence of such proof, it
cannot be presumed that the transferee court has jurisdiction. 238

17. Sub-clause (2). The exercise of the power under sub-s (2) of s 39, Code of Civil
Procedure, to send the decree for execution to a subordinate court can be exercised without
meeting the requirements of sub-cll (a) to (d) under sub-s (1) of s 39, Code of Civil Procedure.
The expression used in sub-s (2) of s 39 is to any subordinate Court for execution in
contradistinction to another Court of competent jurisdiction, as used in sub-s (1) of s 39,
Code of Civil Procedure. The power under sub-s (2) of s 39 can be exercised for administrative
reasons to ensure expedition in execution of the decree, etc. In the case of Delhi, for
instance, the Civil Nazarat is located at the District Courts. The warrants for possession
and warrants for sale or attachment of properties, etc, are executed through the
administrative civil judge. In such circumstances, if the court may find that the decree can
be conveniently and expeditiously executed by the District Court, it may in the exercise of
powers under sub-s (2) of s 39, Code of Civil Procedure, send the decree for execution to the
District Courts. Accordingly, it is held that the exercise of the powers to transfer under
sub-s (2) of s 39, of Code of Civil Procedure can be exercised independently of the powers
under sub-s (1) of s 39. 239

Where a court which passed a decree transferred it for execution to District Dourt A , an
application for execution to court B which is subordinate to court A, is not legal. 240

18. Simultaneous execution of decree in more places than one. A court passing a
decree has the power to send its decree to more courts than one for concurrent execution.
But this power should be sparingly exercised, and, when exercised, it would be, in many
cases, proper to impose terms on the decree-holder that he should not proceed to a sale
under all the attachments at once. 241 The court executing the decree, may after notice to
the judgment-debtor to send the decree for simultaneous execution to another court if it is
satisfied that the assets in its jurisdiction are not likely to satisfy the decree. 242 The
Allahabad High Court issued a warrant of arrest of the judgment-debtor after it had sent
the decree for simultaneous execution to another court. 243 It has been held by the
Allahabad High Court on a review of the authorities, that simultaneous execution in more
courts than one is permissible. 244

19. Appeal. An appeal lies from an order rejecting an application for the transfer of a
decree. The reason is that questions relating to the transfer of decrees are questions
relating to execution within the meaning of s 47. 245

20. Award. An award filed under s 11 of the Indian Arbitration Act, 1899, is enforceable
under s 15 of the Act as if it were a decree of the court. It may, therefore, be transferred
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for execution as a decree under this section to another court. 246 So also, an award made
under rules framed under s 43 of the Co-operative Societies Act, 1912. 247

21. Transfer of Decree by Small Cause Court. Section 31 (b) of the Presidency Small
Cause Courts Act, 1882 contains a special provision for transfer of decrees passed by the
Presidency Small Causes Courts. A transfer of a decree by small cause court, Calcutta,
direct to the court of the district munsiff is valid under this section. 248

S. 40. Transfer of decree to Court in another 249 [State].

Where a decree is sent for execution in another 64[State], it shall be sent to such Court and
executed in such manner as may be prescribed by rules in force in that 64[State].

Executed in Such Manner as may be Prescribed by Rules in Forces in that State.

The manner of execution is that of the court which executes the decree, but as to whether
execution of the decree is barred by limitation or not it is the law governing the court
which passed the decree that applies. 250 Sections 40, 41 and 42 of the Code of Civil Procedure
prescribe only the procedure for executing the decree passed by one court, transmitted to
the transferee court for execution, and these sections do not make any substantial law.
That the transferor court retains substantial control over the decree, is evident from ss 41
and 46. The power conferred by s 42 on the executing court is the power for the limited
purpose of execution of the decree. Matters concerning discharge or satisfaction of the
decree and the like, have to be determined by the proper law of contract, viz, the
substantive law of the place where the debt was contracted and where the decree was
passed. Therefore, a debt which ripened into a decree in Bombay and was transmitted to a
Tamil Nadu court for execution against the judgment-debtor, could not be declared to
have been discharged under the provisions of the Tamil Nadu Debt Relief Act. 251 Where a
decree of the Madras High Court was transferred to the District Court of Bangalore in the
State of Mysore, it was held that the judgment-debtor could not claim that the decree
should be scaled and instalments fixed for payment of the amount in accordance with
Mysore Agriculturists Relief Act, as these are matters of substantive rights on which the
parties would be governed by the law of Madras. 252 Where a decree passed by a court of
small causes is sent for execution to the original side, it has been held that an order for
arrest passed by the transferee court was not open to appeal but could be revised. 253 It
would be otherwise if the order were for attachment of immovable properties. 254 The
word rules in the section means rules in the First Schedule or rules framed under s 122.
Where no rules have been framed under s 122, the decree does not become unexecutable.
The execution in such cases would be governed by the rules in the First Schedule. 255
Section 5 of MP Sahayata Upkram (Vishesh Upbandh) Adhiniyam 1978 operates even
against execution of decree obtained against the relief undertaking by its creditors outside
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the State of Madhya Pradesh. The bar contained in s 5, by way of suspension of suits or
other legal proceedings, is thus, an absolute bar, which is only for the period contemplated
by the Act. All that is sought to be done is to suspend its animation for the period
mentioned in the notification, without affecting the validity of the decree transferred to the
State of Madhya Pradesh. Section 5, therefore, does not come into conflict either with s 40
or s 42 of the Code of Civil Procedure. 256

S. 41. Result of execution proceedings to be certified.

The Court to which a decree is sent for execution shall certify to the Court which passed it
the fact of such execution, or where the former Court fails to execute the same the
circumstances attending such failure.

Certify. The court of execution must certify the result of the execution to the court which
passed the decree and transferred it for execution. When the certificate is sent, the
transferee court ceases to have seizing of the execution proceeding; until then decree rests
in the transferee court. 257 The court is not bound to certify failure of execution if the
decree-holder wishes to make another attempt. 258 The court has no power to issue a
certificate under this section, so long as the execution case is pending before it. 259 A
certificate has to be issued under this section only when the transferee court has executed
the decree and where it has failed to execute it, it has to certify the circumstances attending
on such failure. Until such a certificate is issued, the transferee court retains its jurisdiction.
260 The Oudh Court has held that though the transferee court ceases after certification to

have jurisdiction further to execute the decree, it has power to decide an objection taken
before it in respect of anything done in the course of the execution proceedings taken by
it. 261 Mere notification of payments made on account of the decree to the court which
passed the decree does not amount to a certification under this section. 262 In a Bombay
case, it was said that the section only means that the court of execution should keep the
court which passed the decree informed of what has happened in the execution. 263 The
Patna High Court has held that s 41 does not prescribe any particular form of certificate
and sending intimation by the transferee court to the court which passed the decree that
the execution case has been dismissed is sufficient compliance. 264 A covering letter
forwarding a certificate is not essential. 265 Such a view, it is submitted, is not correct. A
certificate as envisaged by the section is an important step having the effect of determining
jurisdiction of the transferee court and is sent only after failure to execute or after
execution to the extent it can. 266 The certificate required by the section enjoins the
transferee court to apply its mind and affirm the statement of fact that execution was
either made or could not be made after bona fide efforts to do so. The failure to execute as
contemplated here, is failure after such bona fide efforts and not negligence or omission to
perform duty. The words certify and fails in the section are used in their ordinary meanings
and mean to make a declaration in writing under the hand or hand and seal as to the result
of the execution proceedings in the transferee court and the circumstances thereof. The
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provisions of the section are mandatory and therefore the transferee court has to strictly
adhere to them. Accordingly, merely sending a copy of the order of dismissal of the
execution petition to the transferor court without a non-satisfaction report is not sufficient
compliance with the section. There is no particular form of certificate but the certificate,
whatever the form, must affirm the statement of facts relating to the result of the
execution proceedings. 267 In another case, the Bombay High Court held that where the
transferee court dismisses the execution application at the instance of the decree-holder,
the decree-holder can apply to the court passing the decree, to execute the decree even
before the receipt of the certificate. 268 Where an execution application filed in a transferee
court had been disposed of, a further execution application presented to the transferor
court without a certificate from the transferee court under this section is not incompetent.
269

It has been held by a Full Bench of the Allahabad High Court that even after the transferee
court certifies to the transferor court, under this section, the result of execution, the
former court has jurisdiction to entertain an application to set aside its previous order. 270

S. 42. Powers of Court in executing transferred decree.

271 [(1)]The Court executing a decree sent to it shall have the same powers in
executing such decree as if it had been passed by itself. All persons disobeying or
obstructing the execution of the decree shall be punishable by such Court in the
same manner as if it had passed the decree. And its order in executing such decree
shall be subject to the same rules in respect of appeal as if the decree had been
passed by itself.
272 [(2) Without prejudice to generality of the provisions of sub-section (1), the
powers of the Court under that sub-section shall include the following powers of
the Court which passed the decree, namely:
(a ) power to send the decree for execution to another Court under Section 39 ;
(b ) power to execute the decree against the legal representative of the deceased
judgment-debtor under Section 50 ;
(c ) power to order attachment of a decree.
(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall
send a copy thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the Court to which a decree is
sent for execution any of the following powers, namely:
(a ) power to order execution at the instance of the transferee of a decree;
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(b ) in the case of a decree passed against a firm, power to grant leave to execute
such decree against any person other than such a person as is referred to in
clause (b) or clause (c) of sub-rule (1) of rule 50 of Order XXI.]

STATE AMENDMENT

Uttar Pradesh. The following amendments were made by Uttar Pradesh Act No. 14 of
1970, S. 2 (w.e.f. 8-4-1970).

42. Power of Court in executing transferred decree.

(1) The Court in executing a decree ent to it shall have the same powers in executing such
decree as if it has been passed by itself. All persons disobeying or obstructing the execution
of decree shall be punishable by such Court in the same manner as if it had passed the
decree, and its order in executing such decree shall be subject to the same rule in respect of
appeal as if the decree had been passed by itself.

(2) Without prejudice to the generality of the provisions of sub-section (1), the powers of
the Court under that sub-section shall include the following powers of the Court which
passed the decree, namely:
(a) power to send the decree for execution to another Court under Section 39 ;
(b) power to execute the decree against the legal representative of the deceased
judgment-debtor under Section 50 ;
(c) power to order attachment of a decree;
(d) power to decide any question relating to the bar of limitation to the executability of
the decree;
(e) power to record payment or adjustment under r 2 of O XXI;
(f) power to order stay of execution under r 29 of O XXI;
(g) in the case of a decree passed aganist a firm, power to grant leave to execute such
decree against any person other than a person as is referred to in clause (b) or clause
(c) of sub-rule (1) of r 50 of O XXI.

(3) A Court passing an order in exercise of powers specified in sub-section (2) shall send a
copy thereof to the Court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the Court to which the decree is
sent for execution, the power to order execution at the instance of the transferee of a
decree.
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1. Powers of Court executing transferred decree. The court executing a transferred

decree has, as sub-s (1) clearly states, the same powers as if the decree had been passed by
itself. The newly added sub-s (2) now declares that such transferee court has, when
necessary:
(i) the power to send the decree for execution to another court under s 39 ;
(ii) the power to execute the decree against the legal representative of the deceased
judgment-debtor under s 50 ; and
(iii) the power to order attachment of a decree.

Where such transferee court exercises any such power, it has, under the new sub-s (3), to
transmit a copy of its order to the court which passed the decree. The new sub-sections
have been added to avoid delay in execution proceedings.

The transferee court, having all the powers of the court which passed the decree, can sell
properties outside its territorial jurisdiction under circumstances under which the
transferor court could do so. 273 All applications arising out of execution proceedings
transferred to it have, therefore, to be made to it and its jurisdiction continues until:
(i) the execution proceedings are withdrawn from it; or
(ii) it has certified under s 41, execution, or execution as far as possible, or its failure to
execute. 274 The mere striking off or rejection of an execution application for some
informality in the application does not terminate the jurisdiction of the transferee
court to execute the decree or render it necessary to send a certificate to the
transferor court. 275 If the application is dismissed for non-prosecution and a
certificate of failure of execution is sent, the only court that can entertain a fresh
application is the court which passed the decree. 276

In a Patna case, 277 court X, which passed a decree, transferred it for execution to court Y.
An execution application was disposed of by court Y but no certificate under s 41 was sent
to court X. Subsequently, the decree was confirmed on appeal and a second execution
application was presented to court Y reciting the fact of the confirmation of the decree by
the Appellate Court. This was construed as an application to execute the decree of the
Appellate Court. It was then objected that the appellate decree had never been transferred
for execution. This objection was overruled. It was held that court X had, under s 37 (a),
power to execute the appellate decree, and that as court Y had all the powers of court X, it
retained its jurisdiction to execute the decree even after the appeal. A similar decision has
been given by the Andhra Pradesh High Court. 278 Where a decree is, after its transfer for
execution, modified in appeal, the transferee court can proceed with the execution after
amending the pending petition in accordance with the appellate decree. 279

The transferee court can decide all questions arising in execution as if it were its own
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decree. 280 It can, in executing a decree for specific performance, decide whether the
defendant is in a position to perform his part of the decree. 281 On the section, as it stood
before the amendment, judicial opinion was divided on the question whether a transferee
court can pass orders under O 21, r 29, or decide a question under r 50 of that order. See
notes under those rules. This conflict of opinion has now been resolved by amending r 29
of O 21 on the one hand and by enacting sub-s 4 in this section so far as r 50 of O 21 is
concerned. The amended r 29 of O 21 provides that where a suit is pending in any court
against the holder of a decree of such court or of a decree which is being executed by such
court on the part of the person against whom the decree was passed, the court (that is the
court before whom such suit is pending) may, on such terms as to security or otherwise,
stay the execution of the decree until such pending suit is decided. It would seem that since
it is the court before whom such a suit is pending which has the power to stay, an
application for stay of execution would have to be filed in that court and not before the
court to which the decree has been transferred for execution unless such a suit is pending
before the transferee court. As regards the question under r 50 of O 21, cl (b) of the new
sub-s (4) clearly excluded from the transferee court, the power to grant leave to execute the
decree transferred to it against any person other than the person referred to in cl (b) or cl
(c) of sub-r (1) of r 50 of O 21, that is, a person who has appeared in the suit in his own
name or who has admitted that he is, or, who has been adjudged to be a partner or a
person though served individually as a partner has failed to appear. Sub-section (4) likewise
excludes the power to order execution at the instance of a transferee of the decree.

2. Limitation on the powers of the transferee Court. The court to whose jurisdiction
the subject matter of the decree is transferred acquires inherent jurisdiction over the same
by reason of such transfer, and if it entertains an execution application with reference
thereto, it would, at the worst be an irregular assumption of jurisdiction and not a total
absence of it, and if objection to it is not taken at the earliest opportunity, it must be
deemed to have been waived, and cannot be raised at any later stage of the proceedings. 282

On the section, as it stood before its amendment, the view held was that since the
jurisdiction of the transferee court was limited to the execution of the decree transferred to
it, it could not transfer the decree for execution to another court. 283 That view can no
longer hold good since cl (a) of sub-s (2) expressly confers, on the transferee court, power
to send the decree for execution to another court under s 39. In other respects, its powers
are limited in the same way as if it were its own decree. It cannot entertain an objection as
to the legality or correctness of the decree, 284 or that the decree is defective, 285 or that it
was obtained by fraud, 286 or that it directs a sale of property which is not saleable under s
60 of the Code of Civil Procedure. 287 It cannot alter, vary or add to the terms of the decree, or
allow future interest where none is allowed by the decree; 288 nor can it question the right
of a transferee of a decree whose name is on the record as the person entitled to execute it.
289 It can, however, refuse to execute the decree, if it finds that the decree was against a

dead person. 290 Where certain persons are not served or adjudged as partners in the main
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suit and they are sought to be made liable as partners in execution proceedings the decree-
holder must expressly apply and get the question of their liability determined. 291

The transferee court has no power to question the jurisdiction of the court which passed
the decree. 292 There was a conflict of decisions on this point but that was settled by the
omission, from O 21, r 7, of the words or the jurisdiction of the court which passed it
which occurred in s 225 of the Code of Civil Procedure 1882. The Calcutta High Court has
held that when a decree appears, on the face of it, to have been passed by a court which
had no jurisdiction, the court of execution is entitled to refuse to execute it. 293 But the
Rangoon High Court, in the case of a transferred decree, expressed dissent and held that
the validity of a decree cannot be questioned by the executing court. 294

If the court which passed the decree has ordered execution, the transferee court cannot
question the legality or propriety of such an order. 295 But there is conflict of opinion on
the point whether a transferee court can decide, in an application under this section, the
question whether execution is barred by limitation. Where the court which passed the
decree decides the question of limitation and then transfers the decree for execution, the
transferee court cannot reopen such a decision. 296 The conflict of opinion has arisen in
cases where the court merely makes an order of transfer without deciding the point of
limitation. One view is that it is implied in the very order of transfer, that it is executable
and the question is therefore constructively res judicata . 297 The other view is that the
question of limitation does not arise for decision at the stage of transfer and it is for the
transferee court to decide it. 298 The third view is that in such a case, the transferee court
should stay execution and leave the objection to be decided by the court which passed the
decree. 299 The submission is that since the plea of bar by limitation goes to the root of the
executability of the decree, it is one which ought to be raised at the stage of transfer. The
decision in Jai Narain v. Kedrnath , 300 does not conclude the question. It is obvious that the
judgment-debtor must have notice of the transfer to enable him to invoke the plea of
limitation.

If the court transferring a decree enters a wrong amount in the certificate, the court
executing the decree can correct the error. 301

3. Powers of the transferor Court after transfer. After transferring a decree to another
court for execution, the court which passed the decree cannot execute the decree itself;
and an application for execution made to it after the transfer and before a certificate of
non-satisfaction under s 41 has been returned, is not even a step in aid of execution so as
to save limitation. 302 This is one view. The other view is that there is no justification for
holding that the transferor court cannot execute a decree after it is transferred to another
court; and that when the transferor court transfers a decree, it does not divest itself of its
power but only vests the transferee court with powers it would not otherwise have. 303 The
difference of opinion mainly turns on the construction placed on the judgment in the case
of Maharaja of Bobbili v. Narasaraja. 304 But the court which passed the decree does not
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altogether surrender control of the execution proceeding. It has power under O 21, r 26 to
make an order for stay of execution. It may withdraw execution by calling back the decree;
305 or it may make an order for simultaneous execution by another court; 306 or it may

make an order for rateable distribution. 307 It has, moreover, jurisdiction to decide an
objection as to limitation if referred to it by the transferee court. 308 The transferor court
can decide whether the decree has been satisfied. 309 It can also entertain an execution
petition even though it has passed an order for transfer so long as no certificate has been
issued. 310 If the decree is assigned after transfer, the assignee must apply for the execution
to the original court. 311 If after a decree has been transferred for execution the judgment-
debtor dies, the court which passed the decree is, by s 50, the proper court to order that
execution should proceed against the legal representative. This is, however, merely a
question of procedure and if the transferee court makes the order, that would be only an
irregularity which might be waived. 312 It has been held that the transferee court has no
jurisdiction in certain cases to bring on record legal representatives of the deceased
judgment-debtor. 313 Where the execution petition had been disposed of by the transferee
court but no certificate had been sent under this section, it has been held that an execution
application presented to the transferee court is not incompetent. 314 All orders passed by
the transferee court in execution are appealable to the court to which appeals lie from
decrees of that court. It has accordingly been held that where a decree of High Court for
over Rs 5,000 was transferred to the court of the district munsiff , an appeal against an order
passed by him would lie not to the High Court but to the District Court. 315

4. State Amendment in Uttar Pradesh. Section 42 shall stand substituted as under and
shall be deemed to have been substituted w.e.f. 2-12-1968:

Section 42. Power of Court in executing transferred decree.

(1) The court executing a decree sent to it shall have the same powers in executing such
decree as if it had been passed by itself. All persons disobeying or obstructing the decree
shall be punishable by such court in the same manner as if it had passed the decree, and its
order in executing such decree shall be subject to the same rules in respect of appeal as if
the decree had been passed by itself.

(2) Without prejudice to the generality of the provisions of sub-section (1), the powers of
the court under that sub-section shall include the following powers of the court which
passed the decree, namely:

(a) power to send the decree for execution to another court under section 39 ;

(b) power to execute the decree against the legal representative of the deceased judgment-
debtor under section 50 ;

(c) power to order attachment of a decree;

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(d) power to decide any question relating to the bar of limitation to the executability of the
decree;

(e) power to record payment or adjustment under rule 2 of O XXI;

(f) power to order stay of execution under rule 29 of O XXI;

(g) in the case of a decree passed against a firm, power to grand leave to execute such
decree against any person other than a person as is referred to in clause (b) or clause (c) of
sub-rule (1) of rule 50 of Order XXI.

(3) A court passing an order in exercise of the powers specified in sub-section (2) shall
send a copy thereof to the court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the court to which a decree is sent
for execution, the power to order execution at the instance of the transferee of a decreeup
Civil Laws (Amend) Act, 1970 (14 of 1970). 316

Where a decree of the small causes court is transferred to the court of munsiff, the latter
cannot execute it by sale of immovable property, because under s 42 (as amended by UP
Act 24 of 1954), the transferee court can exercise the power, only if the transferor Court
can, by virtue of the provision contained in O 21, r 82, it has no power to order sale of
immovable property. 317

S.318 [43. Execution of decrees passed by Civil Courts in places to which this Code
does not extend.

Any decree passed by any Civil Court established in any part of India to which provisions
of this Code do not extend, or by any Court established or continued by the authority of
the Central Government outside India, may, if it cannot be executed within the jurisdiction
of the Court by which it was passed, be executed in the manner herein provided within the
jurisdiction of any Court in the territories to which this Code extends.]

1. Alterations in the Section. This section was substituted by s 8 of the Code of Civil
Procedure (Amendment) Act II of 1951 for the old section which ran as follows :
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2. This Section and Sections 44 and 45. Under this section, read along with ss 44 and
45, the Indian courts have power:
(i) to execute decrees of those Indian courts to which the Code of Civil Procedure does
not apply, such as scheduled districts;
(ii) to execute decrees of the civil courts outside India which are established by the
authority of the central government;
(iii) to execute the decree of the revenue courts in any part of India to which the
provisions of the Code of Civil Procedure do not apply; and
(iv) to execute decrees of Indian courts in the states to which the state government has
notified that s 45 would apply. 319

3. Any Part of India. A decree passed by the Gwalior Court on 18 August 1948 is outside
this section as it is not one passed by any court established in any part of India to which
the provisions of this Code of Civil Procedure extend or by any court established or continued
by the authority of the central government outside India. 320 A decree passed by the court
in Madhya Bharat is not governed by this section as the Code of Civil Procedure was not
applicable to it. 321 The words any part of India to which the provisions of this Code do
not extend have been construed as not applicable to sovereign states like former Indian
states to which the Code of Civil Procedure could not be extended. 322

S. 323 [44. Execution of decree passed by Revenue Courts in places to which this Code
does not extend.

The State Government may, by notification in the Official Gazette, delcare that the
decrees of any Revenue Court in any part of India to which the provisions of this Code do
not extend, or any class of such decrees, may be executed in the State as if they had been
passed by Courts in that State].

1. History of the section. This section was substituted by s 9 of the Code of Civil Procedure
(Amendment) Act 11 of 1951 for the old section which ran as follows:

The Provincial Government may by notification in the Official Gazette declare that the
decrees of any civil or revenue courts in any Indian State, not being courts established or
continued by the authority of the central government or of the crown representative, or
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any class of such decrees, may be executed in the province as if they had been passed by
courts of British India.

For courts situated in those parts of India to which the Code does not extend, see s 1, sub-
s (3).

2. By notification. A notification under this section does not alter the character or
incidents of a foreign judgment. 324 And accordingly, an ex parte decree passed by a foreign
court against a non-resident foreigner does not become executable by reason of the
notification. 325

The relevant date for executability is the date when the order is to be made, so that if the
notification was made on or before that date the section would apply. 326

3. Limitation. The period of limitation for executing decrees executable in India under
these sections is the period prescribed by the law of India in force at the place where
execution is applied for. 327

328 [S. 44A. Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certified copy of decree of any of the superior Courts of 329 [* * *] any
reciprocating territory has been filed in a District Court, the decree may be executed
in 330 [India] as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from such
superior Court stating the extent, if any, to which the decree has been satisfied or
adjusted and such certificate shall, for the purposes of proceedings under this
section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of Section 47 shall as from the filing of the certified copy of the
decree apply to the proceedings of a District Court executing a decree under this
section, and the District Court shall refuse execution of any such decree, if it is
shown to the satisfaction of the Court that decree falls within any of the exceptions
specified in clauses (a ) to (f ) of Section 13.

331[Explanation 1. Reciprocating territory means any country or territory outside

India which the Central Government may, by notification in the official Gazette,
declare to be a reciprocating territory for the purposes of this section; and
Superior Courts, with reference to any such territory, means such Courts as may
be specified in the said notification.
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Explanation 2. Decree, with reference to a superior Court, means any decree or

judgment of such Court under which a sum of money is payable, not being a
sum payable in respect of taxes or other charges of a like nature or in respect of
a fine or other penalty, but shall in no case include an arbitration award, even if
such an award is enforceable as a decree or judgment].]

1. History of the section. This section was inserted by s 2 of the Code of Civil Procedure
(Amendment) Act, 1937 (8 of 1937). By the Government of India (Adaptation of Indian
laws) Order 1937, a few changes were made in the section. Thus, in expln 2, the words
Central Government and Official Gazette were substituted in the said explanation for the
words Governor-General in Council and Gazette of India respectively and by a subsequent
supplementary Order of 1937, the words or in India were omitted from expln (2).

The words were after the word Dominions, by the Code of Civil Procedure (Amendment) Act,
1952, the present explanations 1 and 2 were substituted for the old explanations 1 to 3
which were as follows:

Explanation 1 Superior courts with reference to the United Kingdom means the High
Court in England, the court of Session in Scotland, the High Court in Northern Ireland,
the court of Chancery of the County, Palatine of Lancaster and the Court of Chancery of
the County Palatine of Durham.

Explanation 2 Reciprocating territory means any country, or territory, situated in any part of
His Majestys Dominions which the central government may, from time-to-time, by
notification in the Official Gazette, declare to be reciprocating territory for the purposes of
this section; and superior courts with reference to any such territory, means such courts as
may be specified in the said notification.

Explanation 3 Decree, with reference to a superior court, means any decree or judgment of
such court under which a sum of money is payable, not being a sum payable in respect of
taxes or other charges of a like nature or in respect of fine or other penalty, and:
(a) with reference to superior courts in the United Kingdom, includes judgments given
and decrees made in any court in appeals against such decrees or judgments; but
(b) in no case includes an arbitration award, even if such award is enforceable as a
decree or judgment.

2. Policy behind the section. This section is meant to reciprocate the policy contained in
the Foreign Judgments (Reciprocal Enforcement) Act, 1933, and is a part of the
arrangement under which on the one part decrees of Indian courts should be executable in
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the United Kingdom and on the other part decrees of courts in the United Kingdom and
other notified parts of His Majestys dominions should be executable in India. 332
Presidency Small Cause Courts cannot execute the decree of a foreign court of
reciprocating territory as this section has not been extended to such courts. 333

3. Decree of a foreign non-reciprocating country. A decree passed by the Lahore Court

prior to 15 August 1947 became, thereafter, a decree of the foreign court in relation to the
courts in India and could not, in the absence of reciprocating agreement be executed in a
court of Delhi. 334 Likewise, a, decree passed by a court in Burma cannot after it became a
republic be executed in any court in India, there being no reciprocating agreement with
that state. 335

The Bombay High Court has held that the decree passed by the High Court of Hong
Kong Special Administrative Region Court of the First Instance is a decree of a Court in
reciprocating territory. Hong Kong ceased to be a colony of the U.K. with effect from 1-
07-1997 and sovereignty over Hong Kong has been resumed by China. Hong Kong does
not cease to be a reciprocating territory upon its becoming a part of the Republic of China.
After reunification of Hong Kong with the Republic of China, the Supreme Court of
Hong Kong referred to in the Government notification dated 23-11-1968 issued under s
44 -A continues to be in existence though by a different name viz . High Court. However,
mere change in name/title of a Court would not take it out of the purview of the
notification issued under s 44 -A. It was further held that the said Court will be a superior
Court within the meaning of s 44 -A of the Code. 336

4. District Court. The High Court, for the purposes of execution of the decree, would be
considered as the District Court. 337

The words District Court in the section include the High Court in its original side. By
virtue of s 12 of the Bombay City Civil Court Act, 1948 read with the notification dated 20
January 1950 issued under s 4 of the Act the Bombay City Civil Court is the District Court
under this section in respect of matters covered by the notification. 338

5. As if it had been passed by the District Court. The words as if it had been passed by
the District Court have the effect of making the entire scheme of O 21 applicable, in
respect of execution of decrees of foreign courts. 339 Consequently, an application for
execution of such a decree would not be entertained where no step for its execution nor
any step in aid of such execution, has been taken by the decree-holder in any court in India
within three years from the date of the decree. 340 Likewise, notices under O 21, r 22 have
to be taken out when an application for execution is made more than one year after the
date of the decree or where the application is against the legal representatives of a party to
the decree unless for reasons to be recorded, the court considers that the issue of such
notice would cause unreasonable delay. 341 The induction of O 21 and its scheme do not,
however, have the effect of barring the judgment-debtor from raising any plea based on cll
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(a)(f) of s 13. 342 The filing of a certificate required by the section is a condition precedent
to the exercise of jurisdiction thereunder. If no such certificate is filed, the application for
execution is liable to be dismissed. 343 However, in a case relating to a decree from a Court
in England, it was held by the Karnataka Hingh Court that production of non-satisfaction
certificate from High Court of Justice, Chancery Division, is not a condition precedent to
initiate execution proceedings. It is procedural aspect and does not pertain to jurisdiction.
It was also held in the above case that where damages for breach of contract is awarded
according to the terms and conditions of agreement by applying English, it cannot be said
that decree of execution is being enforced to recover penalty as stated in Explanation 2 to
s 44 A. 344 But once the certified copy of the decree and the certificate are produced,
execution can proceed even against an immovable property situated in this country inspite
of the judgment-debtor having been adjudicated an insolvent by the court of the
reciprocating territory as that court has no jurisdiction to vest such a property in the
official assignee. 345

6. Sub-Section (3): Conditions for execution of decree by another court. Section

44A(3) of the Code of Civil Procedure reads that by virtue of sub-s (3), the court shall refuse
execution if it is shown to the satisfaction of the court that the decree falls within any of
the exceptions in cll (a) to (f) of s 13. Thus, under sub-cl (b), if the decree has not been
given on the merit of the case, then the following judgment is not conclusive between the
parties and the same cannot be executed in India. Under s 13 (b), even an ex parte judgment
in favour of the plaintiff may be deemed to be a judgment given on merits if some
evidence is adduced on behalf of the plaintiffs and the judgment, however, brief, is based
on a consideration, of that evidence. Where however, no evidence is adduced on the
plaintiff side and his suit is decreed merely because of the absence of the defendant either
by way of penalty or in a former manner, the judgment may not be one based on the
merits of the case. 346

When an application is made for transmission of the decree, the judgment-debtor is

entitled to raise all objections available under cll (a)(f) of s 13. 347

7. Competency of executing Court. Once decree of foreign superior court is sought to

be executed under s 44 A of the Code of Civil Procedure as if it is the decree of the Indian court
executing the same, no further question would survive regarding competence of such
executing court. If the ship in question which is arrested at Visakhapatnam had sailed out
of the territorial waters of Andhra Pradesh, then the Andhra Pradesh High Court would
have lost its jurisdiction to entertain such a suit or the execution proceedings for executing
the decree of foreign court. But once it was within its territorial waters, the ship could have
been validly subjected to such a suit not only against itself but against its owner. 348

8. Concept of residence of judgment-debtor immaterial. The application for execution

of decree of reciprocating court would lie in any District Court, therefore, concept of
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residence of judgment-debtor need not be considered while filing such application under s
44 -A. 349

9. Foreign Award. The only difference as found is that while under the Foreign Awards
Act a decree follows, under the new Act the foreign award is already stamped as the
decree. Thus, a party holding foreign award can apply for enforcement of it but the court,
before taking further effective steps for the execution of the award, has to proceed in
accordance with ss 47 to 49. In one proceeding there may be different stages. In the first
stage, the court may have to decide about the enforceability of the award having regard to
the requirement of the said provisions. Once the court decides that foreign award is
enforceable, it can proceed to take further effective steps for execution of the same. There
arises no question of making foreign award as a rule of court/decree again. If the object
and purpose can be served in the same proceedings, in our view, there is no need to take
two separate proceedings resulting in multiplicity of litigation. It is also clear from the
objectives contained in para 4 of the Statement of Objects and Reasons, ss 47 to 49 and
the scheme of the Act, that every final arbitral award is to be enforced as if it were a decree
of the court. The submission that the execution petition could not be permitted to convert
as an application under s 47 is technical and is of no consequence. For enforcement of a
foreign award, there is no need to take separate proceedings, one for deciding the
enforceability of the award to make rule of the court or decree and the other to take up
execution thereafter. In one proceeding, the court enforcing a foreign award can deal with
the entire matter. 350

The holder of a foreign award need not take out two proceedings, i.e. , one for deciding the
enforceability of the award and the other for its execution. Therefore, such an award can
be directly put in execution and the executing court would be entitled to execute it upon
considering whether the award complies with the provisions of Part II, ch I in relation to
the New York Convention Awards and ch II in relation to Geneva Convention Awards as
may be applicable. It may be noted that when foreign decrees are put in execution under s
44 A of the Code of Civil Procedure also, the procedure does not contemplate two separate
proceedings, one for deciding the enforceability of the foreign decree and the other for its
execution. 351

The Delhi High Court has held that Part II of Arbitration and Conciliation Act, 1996 is a
complete Code in itself for enforcement of foreign award except where suit is filed for the
enforcement of such award. The exception is contained in Explanation 2 to s 44 -A(2) of
the Code which excludes from within its ambit an arbitration award. 352

10. Foreign judgment not on meritcannot be executed. Undoubtedly, the burden of

proving that the decree is not on merits would be on the party alleging it. However, courts
never expect impossible proofs. It would never be possible for a party to lead evidence
about the state of mind of the judge who passed the decree. Of course, amongst other
things, the party must show that the decree does not show that it is on merits, if necessary
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the rules of that court, the existence or lack of existence of material before the court when
the decree was passed and the manner in which the decree is passed.

It cannot be said that the expression judgment on the merits implies that it must have been
passed after contest and after evidence had been let in by both sides. An ex parte judgment
in favour of the plaintiff may be deemed to be a judgment given on merits if some
evidence is adduced on behalf of the plaintiffs and the judgment, however brief, is based
on a consideration of that evidence. Where however no evidence is adduced on the
plaintiffs side and his suit is decreed merely because of the absence of the defendant either
by way of penalty or in a formal manner, the judgment may not be one based on the merits
of the case.

It is clear that if the decree cannot be said to be a decree on merits, such a decree cannot
be enforced in India. 353

11. Legal fictionexecution of foreign decree by Debt Recovery Tribunal. In

interpreting a provision creating a legal fiction, the court is to ascertain for what purpose
the fiction is created, and after ascertaining this, the court is to assume all those facts and
consequences which are incidental or inevitable corollaries to the giving effect to the
fiction. But in so construing the fiction, it is not to be extended beyond the purpose for
which it is created, or beyond the language of the section by which it is created. It cannot
also be extended by importing another fiction. And a legal fiction in terms enacted for
purposes of this Act is normally restricted to that Act and cannot be extended to cover
another Act. Legal fictions may not be created only by the legislature and delegated
legislation may also create such fictions. But it must be remembered that what can be
deemed to exist under a legal fiction are facts and not legal consequences which do not
flow from the law as it stands. 354

The court has to ascertain the purpose for which the fiction is created and after
ascertaining the purpose, the court is to assume all those facts and consequences which are
incidental or inevitable corollaries to the giving effect to the fiction. This being the
position, as far as the provision under s 44 A(1) of the Code of Civil Procedure is concerned,
the fiction is to treat the judgment and decree of the superior court as equivalent to those
of District Courts for the purposes of execution in India. There is no unjustified extension
of this fiction in the application made by the respondent bank that in view of the
Constitution of the Debts Recovery Tribunal, the jurisdiction gets transferred to the Debts
Recovery Tribunal. The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is a
special Act to provide a complete mechanism for adjudication and recovery of certain
debts of nationalised banks, and s 34 gives it an overriding effect. Under s 17 (1) read with
s 2 (g) and s 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the
tribunal has the exclusive jurisdiction to recover these debts and, therefore, legal fiction
will have to be deemed to have been extended to authorise the execution of a foreign
decree by the tribunal.355
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In view of the provisions of s 44 A(1), Code of Civil Procedure which requires that a foreign
decree may be executed in India as if it has been passed by the District Court, it would not
be necessary to consider the difference between the execution of the domestic decree and
foreign decree by the transferee court in India. A domestic decree must necessarily be
executed in accordance with the law in relation to execution of such decree in India. A
foreign decree by virtue of s 44 -A(1) must also be so executed in accordance with the law
in India. Thus, for the purpose of ascertaining whether a foreign decree is liable to be
executed only under the provisions of Recovery of Debts Due to Banks and Financial Institutions
Act, 1993 the difference between the two kinds of decree would be of no significance. The
execution of a decree, whether domestic or foreign, is in the nature of an application for
recovery of a debt and must be entertained and decided by the Debt Recovery Tribunal
alone and its recovery officer only under the scheme of the Act. 356

Section 44A of the Code of Civil Procedure makes it clear that the foreign decree may be
executed in India as if it has been passed by the District Court. Thus, the original character
of a foreign decree is not of any consequence and the amount payable under the decree or
order of any civil court may be treated as (debt) payable within the meaning of s 2 (g) of
Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Thus, the amount claimed
by the decree-holder-bank under the decree by foreign court is a debt within the meaning
of the section. 357

358 [S. 45. Execution of decrees outside India.

So much of the foregoing sections of this Part as empowers a Court to send a decree for
execution to another Court shall be construed as empowering a Court in any 359 [State] to
send a decree for execution to any Court established 360 [* *] by the authority of the Central
Government 361 [outside India] to which the 362 [State Government] has by notification in
the official Gazette declared this section to apply.]

STATE AMENDMENT

Pondicherry. After S. 45 the following was inserted as S. 45A by The Pondicherry (Extension of
Laws) Act, 26 of 1968 (w.e.f. 5-9-1968):

45A. Execution of decrees, etc passed or made before the commencement of the Code in
Pondicherry.Any judgment, decree or order passed or made before the commencement of
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this Code by any Civil Court in the Union Territory of Pondicherry shall, for the purpose
of execution, be deemed to have been passed or made under this Code:

Provided that nothing contained in this section shall be construed as extending the period of
limitation to which any proceeding in respect of such judgment, decree or order may be
subject.

1. Alterations in the section. The words or continued were omitted from this section and
the words in any Indian State were substituted for the words or of the Crown
Representative in the territories of any foreign Prince or State by the Indian Independence
(Adaptation of Central Acts and Ordinances) Order 1948, and, again by the Adaptation of
Laws Order 1950, the words outside India were substituted for the words in any Indian
State.

2. Execution of Indian Decrees in foreign territory. This is the only section which
refers to the execution in foreign territory of decrees of courts in India. Such decrees can
only be executed in foreign territory by courts established there by the Central
Government and empowered by notification under this section. It is only when the court
in foreign territory is a court established by the Central Government in the extra-territorial
jurisdiction that there is power to provide for the transfer to it of decrees of Indian courts
for execution, for, in foreign territory execution would be pursuant to the legislative
authority or sovereign power to such state or territory. 363

The three previous sections dealt with the converse case of the execution by the Indian
courts of decrees of:
(a) Indian courts to which the provisions of the Code of Civil Procedure do not extend (s
43).
(b) Courts outside India which are established or continued by the Central
Government (s 43).
(c) Revenue courts situate in India (s 44).
(d) Superior courts of the United Kingdom or of any reciprocating territory (s 44A).

All other decrees of foreign courts, i.e. courts outside India not notified under s 44 must be
enforced by suit.

3. State Amendment in Pondicherrypondicherry (Union Territory). In its application

to the Union Territory of Pondicherry, after s 45, insert the following:

Section 45A. Execution of decrees, etc passed or made before the commencement
of the Code in Pondicherry Any judgment, decree or order passed or made before the
commencement of this Code by any civil court in the Union Territory of Pondicherry,
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shall for the purpose of execution, be deemed to have been passed or made under this
Code;

Provided that nothing contained in this section shall be construed as extending the period
of limitation to which any proceeding in respect of such judgment, decree or order may be
subject. 364

S. 46. Precepts.

(1) Upon the application of the decree-holder the Court which passed the decree may
whenever it thinks fit, issue a precept to any other Court which would be
competent to execute such decree to attach any property belonging to the
judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the property in the
manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two
months unless the period of attachment is extended by an order of the Court
which passed the decree or unless before the determination of such attachment
the decree has been transferred to the Court by which the attachment has been
made and the decree-holder has applied for an order for the sale of such
property.

1. Attachment under precept. It was, at one time, proposed to do away with the system
of execution by transfer of decree under ss 36 to 42, and to substitute another system
whereby the court which passed the decree, retained complete control and issued precepts
to one or more other courts to carry on execution under its direction. This proposal was
abandoned and the system of execution by transfer of decree retained. But the proposal
led to the insertion of the present section by which the court which passed the decree can
issue a precept of attachment to ensure for two months or pending transfer of decree and
application for execution. The object of a precept is to enable a decree-holder to obtain an
interim attachment where there is ground to apprehend that he may otherwise be deprived
of the fruits of his decree. No such attachment, however, can continue for more than two
months except in the two cases mentioned in the section. The effect of the proviso is to
render re-attachment unnecessary. When money is attached under a precept and the period
of the operation of the precept is over, the money can be paid over to another decree-
holder, who subsequently attaches it. 365 In an Andhra case, the facts were as under:
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(i) Property in town A was attached;

(ii) Execution proceedings were going on in town B;
(iii) Application had been made to hold the auction in town A , where the sale would
fetch a higher price as a large number of bidders were expected to bid.

It was held that the jurisdiction of court at B to give direction to court at A to conduct the
auction was not affected by the mere expiry of the period of attachment. 366 When the
attachment of a debt out of jurisdiction is made directly and not through a precept, the
attachment is illegal. 367

As a general rule, territorial jurisdiction is a condition precedent to a court executing a

decree and neither the court which passes the decree, nor the court to which it is sent for
execution, can execute it in respect of property lying outside its territorial jurisdiction. The
object of s 46 (precepts), is simply to enable the attachment of the property of the
judgment-debtor situated within the jurisdiction of another court, in order to prevent the
judgment-debtor from alienating or otherwise dealing with it to the detriment of the
judgment-debtor till proper proceedings are taken. 368

The court to which a precept is issued, derives its authority from that precept and has no
power to do anything not authorised thereby, but it must be presumed to have inherent
powers to deal with all matters that may incidentally arise in connection with proceedings
for attachment. It cannot, therefore be said that the court to which a precept is issued has
no jurisdiction to stay execution if the judgment-debtor deposits the decretal amount in
court or gives security for payment of the amount. 369 An order of precept is not an order
transferring a decree for execution to the court to which it is issued. 370 This section deals
with execution of decrees and does not affect the jurisdiction of the court under O 38, r 5
to attach before judgment, properties lying outside the jurisdiction of the court. 371 See also
the undermentioned decision on the proviso to the section. 372

2. Appeal. It has been held by the High Courts of Bombay, Calcutta and Madras that an
order under this section is not an order in execution, that it only tends to facilitate
execution but is not in itself a step in execution and it is therefore not appealable. 373 A
different view however has been taken in Kapoorchand v. Revati Prasad. 374 Even if it is
treated as a step in execution it would not be appealable in view of the amendment of the
definition of decree in s 2 (2).

91 . Gordhanlal v. CP Industries, Khandwa , AIR 1971 Raj 254 [LNIND 1969 RAJ 72].
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92 . Gumdas Adhya v. Jnanendra 39 Cal WN 165.

93 . Lalit Raja & Sons v. Hansraj Nathuram , AIR 1971 SC 974 [LNIND 1971 SC 141]; Narhari v. Pannalal , AIR 1977 SC 164 [LNIND
1976 SC 15]: (1976) 3 SCR 149 [LNIND 1976 SC 15].
94 . Sohanlal Soni v. Mani Ram , AIR 1974 Raj 20.
95 . PL Kantha Rao v. State of Andhra Pradesh , (1995) 2 SCC 471 [LNIND 1995 SC 69].
96 . Pearey Lal & Sons (Pvt.) Ltd. v. Jamuna Properties (P.) Ltd., AIR 2004 Del 126 [LNIND 2004 DEL 20].
97 . Saraswathi v. Matheran Pillai , 2008 (1) Ker LT 84 [LNIND 2007 KER 835].
98 . Prem Chand v. Mokhoda Devi , (1890) ILR 17 Cal 699, p. 703; Begg Dunlop & Co. v. Jagannath , (1912) ILR 39 Cal 104; Ambika v. Manikganj
Loan Office , AIR 1929 Cal 818: (1930) ILR 57 Cal 67; Sreenath v. Priyanath , AIR 1931 Cal 312: (1931) ILR 58 Cal 832; Veerappa Chetiar v.
Ramasami Chettiar , AIR 1920 Mad 505: ILR 43 Mad 135 : 37 MLJ 442; Sri Raja Sethucherla Sivaskanda v. Raja of Jaipore , AIR 1927 Mad 627
[LNIND 1927 MAD 87]: 52 MLJ 605; Bank of Bengal v. Sarath Chandra Mitra , AIR 1918 Pat 126: 4 Pat LJ 141; Maharaj Kishore v. Rajaram
Singh , AIR 1954 Pat 164; Bajpai v. Hanuman Das , AIR 1958 All 425 [LNIND 1958 ALL 22].
99 . Citibank, NA, New Delhi v. Indo-American Electricals Ltd., AIR 1981 Del 27 [LNIND 1980 DEL 168].
100 . Maseyk v. Steel , (1887) ILR 14 Cal 661; Kaerticki Nath v. Tilukdhari , (1888) ILR 15 Cal 667; Gopi Mohan v. Doybaki , (1892) ILR 19 Cal
13; Tincouri v. Shib Chandra , (1894) ILR 21 Cal 639; Jagernath v. Dip Rani , (1895) ILR 22 Cal 871; Srimanthu v. Venkatappiah , AIR 1947
Mad 347: (1948) ILR Mad 18.
101 . Aziz Baksh v. Sultan Singh , (1918) PR No 43, p. 152; Jagernath v. Dip Rani , (1895) ILR 22 Cal 871; Sakti Nath v. RJU Bank Ltd. , (1939)
ILR 1 Cal 493 : 43 Cal WN 453 where all the important cases are considered. See also notes to s 17.
102 . Latchman v. Maddan , (1881) ILR 6 Cal 513; Jahar v. Kamini Debi , (1901) ILR 28 Cal 238; Seeni Nandan v. Muthusami , (1919) ILR 42 Mad
821; Jugul Kishore v. Pankajini , AIR 1961 Cal 183 [LNIND 1960 CAL 25].
103 . See note to s 37 Court which passed a decree, r 5.
104 . See Code of Civil Procedure 1908, O 21, r 48, and notes thereto.
105 . Prema Nath v. HV Low & Co. , AIR 1930 Cal 502; Bhagwati Prasad v. Jainarain , AIR 1958 All 425 [LNIND 1958 ALL 22]; Benares Ice
Factory v. Shuklal , AIR 1961 Cal 422 [LNIND 1960 CAL 91].
106 . Bhagwati Prasad v. Jainarain , AIR 1958 All 425 [LNIND 1958 ALL 22]; but see Gyarsilal v. Shankarlal , AIR 1950 Nag 46: (1950) ILR
Nag 18; Gayour Ahmad v. Hazarimal , AIR 1965 Raj 41 [LNIND 1964 RAJ 108]: (1964) ILR 14 Raj 1122.
107 . See Code of Civil Procedure 1908, O 21, r 3, and notes thereto.
108 . Narasayya v. Venkata , (1884) ILR 7 Mad 397; Shanmuga v. Ramanathan , (1894) ILR 17 Mad 309.
109 . Shanti Lal v. Mt Jammi Kuer , AIR 1940 All 331: (1940) ILR All 318.
110 . Durga v. Umatara , (1889) ILR 16 Cal 465; Gokul v. Aukhil , (1889) ILR 16 Cal 457; Shamsundar v. Anath Bandhu , (1910) ILR 37 Cal 574;
Ganeshdas Badrunarayana v. Amulak Chand , AIR 1940 Cal 161.
111 . Sideshwar v. Harihar , (1888) ILR 12 Bom 155.
112 . Amrit Lal v. Murlidhar , AIR 1922 Pat 188: (1922) ILR 1 Pat 651.
113 . Matrumal v. Madanlal , AIR 1957 Ori 177.
114 . AIR 2000 SC 2671 [LNIND 2000 SC 1036].
115 . Krishan Kumar Pareek v. State Bank of India , AIR 2009 Ori 100: 2009 (107) Cut LT 362 (DB).
116 . Bidyadhar v. Munindra Nath , AIR 1925 Cal 1076(FB) : (1925) ILR 53 Cal 14; overruling in effect Bhupendra v. Puma , (1910) ILR 43 Cal
650; and Bai Kunta v. Mohananda , (1919) 24 Cal WN 342; Sudarshan Das v. Ram , (1911) ILR 33 All 97; Arogya v. Appachi , (1902) ILR 25
Mad 543; Kannayya v. Venkata , (1917) ILR 40 Mad 1; Sheikh Mohammad v. Mahtab , (1917) 2 Pat LJ 394; Dinanath v. Mst Mayawati , AIR
1921 Pat 118: (1921) 6 Pat LJ 54; Shamrav v. Niloji , (1886) ILR 10 Bom 200; Rameshwar v. Dilu , (1894) ILR 21 Cal 550; Panchuram v. Kinoo
, (1913) ILR 40 Cal 56.
117 . See notes to s 6.
118 . Vasireddi Srimanthu v. Venkatappayya , AIR 1947 Mad 347(FB) : (1948) ILR Mad 18; Veerappa v. Ramasami , (1920) ILR 43 Mad 135;
Khirod Chandra v. Panchu , AIR 1939 Pat 532.
119 . Bank of Behar v. Sarangdhai Singh , AIR 1949 PC 8: 75 IA 300 : 51 BLR 936; Ramaswami v. Kailasa , AIR 1951 SC 189 [LNIND 1951 SC
17]: (1951) SCR 292 [LNIND 1951 SC 17]; Venkata Subba Rao v. Venkataramanayya , AIR 1948 Mad 397 [LNIND 1947 MAD 190];
Ramphal v. Ram Baran , (1883) ILR 5 All 53; Muttia v. Virammal , (1887) ILR 10 Mad 283; Sheik Budan v. Ramchandra , (1887) ILR 11 Bom
537; Venkatachala Reddi v. Venkatarama Reddi , (1901) ILR 24 Mad 665; Mataur v. Abdul , AIR 1926 Cal 109: (1925) 30 Cal WN 86; Appa
Rao v. Krishna , (1902) ILR 25 Mad 537; Shankar v. Rikhavdas , AIR 1932 Bom 843: (1932) 34 Bom LR 941; Ganesh Das v. Harichand , AIR
1936 Lah 704: (1936) 17 Lah 187; Krishnayya v. Meghraj , AIR 1940 Bom 10: (1939) 41 Bom LR 1170; Abdul Ahmad v. Brij Narain , AIR
1935 All 269; Palai Central Bank v. Ramasami Nadar , AIR 1959 Ker 194 [LNIND 1958 KER 254].
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120 . V.D. Modi v. R.A. Rehman , AIR 1970 SC 1475 [LNIND 1970 SC 148].
121 . Yusufbhai v. Manilal , AIR 1965 Guj 282 [LNIND 1963 GUJ 11].
122 . Chhutan Lal v. PN Bank Ltd., AIR 1972 Raj 159 [LNIND 1971 RAJ 60]; Moolchand v. Maganlal , AIR 1965 MP 75 [LNIND 1964 MP
82].
123 . M&SM Railway v. Rupchand Jitagi , AIR 1950 Bom 155 [LNIND 1947 BOM 74]: (1950) ILR Bom 185.
124 . Jatru Paban v. Ambikajit Prasad , AIR 1946 Pat 214: (1945) ILR 24 Pat 741; Gomathan v. Komandur , (1904) ILR 27 Mad 118; Rangasamy v.
Thirupati , (1905) ILR 28 Mad 26; Kumaretta v. Sabapathy , (1907) ILR 30 Mad 26; Liladhar v. Chaturbhuj , (1899) ILR 21 All 277.
125 . Suddinadra v. Budan , (1886) ILR 9 Mad 80; Dhani Ram v. Luchmeswar , (1896) ILR 23 Cal 639.
126 . Chhoti v. Rameshwar , (1902) 6 Cal WN 796; Girish Chunder v. Soshi Shikareshwar , (1900) ILR 27 Cal 951 : 27 IA 110; Jai Gobind v. Patesri
Partap , (1907) 1 All WN 286; Sheo Shanker v. Sangram Singh , AIR 1938 All 259.
127 . Kudratulla v. Upendra , AIR 1925 Cal 203: (1924) 40 Cal LJ 254.
128 . Kalipada v. Hari , (1917) ILR 44 Cal 627; Lahore Bank v. Ghulam , AIR 1924 Lah 448: (1924) 5 Lah 54; Kalicharan v. Bibhuti , AIR 1933 Cal
85: (1932) ILR 60 Cal 191; Umar v. Mahabirlal , AIR 1940 Pat 59.
129 . Papamma v. Vira Pratapa , (1896) ILR 19 Mad 249 : 23 IA 32; Abdul Alam v. Amirunnissa , AIR 1954 Hyd 219.
130 . Sheonath v. Balaswami , AIR 1959 Pat 484.
131 . Udwani v. Tokhan Singh , (1901) ILR 28 Cal 353 : 28 IA 57; Forester v. Secretary of State , (1878) ILR 3 Cal 161 : 4 IA 137; Hurro v. Surut ,
(1882) ILR 8 Cal 332 : 9 IA 1; Ishwargar v. Chudasama , (1889) ILR 13 Bom 106; Subhana v. Krishna , (1891) ILR 15 Bom 644; Ranmalsangji
v. Kundankwar , (1902) ILR 26 Bom 707; Dambar Singh v. Kaliansingh , AIR 1922 All 27: (1922) ILR 44 All 350; Chettyar v. Narayanan , AIR
1934 Rang 165: (1934) 12 Rang 320; Gaya Singh v. Ram Piari , AIR 1955 All 622 [LNIND 1955 ALL 70] in which a decree was amended
by an execution court.
132 . Kanhya Lal v. Court of Wards , (1871) 16 WR 275; Debi Rai v. Gokal Prasad , (1881) ILR 3 All 585; Re Chidambaram Chettiar , (1958) 1 MLJ
314.
133 . see Md. Hasan v. Motilal , AIR 1961 All 1 [LNIND 1960 ALL 113] (FB); see notes to s 47.
134 . Kuldip v. Sheo Mangal , AIR 1957 Pat 4.
135 . Lichubala Biswas v. Jindar Mondal , AIR 1990 Cal 151 [LNIND 1989 CAL 379].
136 . Madhav v. Rajaram , AIR 1958 AP 417.
137 . Kanhyalal v. Ramchandra , AIR 1959 MP 415 [LNIND 1959 MP 165].
138 . Md. Jabir v. Narayan Prasad , AIR 1960 Pat 126.
139 . Har Kishan Das v. Gulab Das , AIR 1956 Bom 513 [LNIND 1955 BOM 73].
140 . Gulam Mohamed v. Fazul Nishan , AIR 1932 Lah 289: (1932) 13 Lah 25; Krishnan Nair v. Ramchandra , AIR 1956 Bom 268 [LNIND 1955
BOM 82]; Sheonath v. Balasami , AIR 1959 Pat 484; C.M. Pillai v. H.S. Kadhiri Thaikal , AIR 1974 Mad 199 [LNIND 1973 MAD 97].
141 . Krishna Chandra v. Radha Kanta Saha Choudhury , AIR 1948 Cal 111; Gora Chand v. Profulla , AIR 1925 Cal 906: (1926) ILR 53 Cal 166;
Baboo Ram v. Ajmersingh , AIR 1966 HP 77 [LNIND 1965 HP 13].
142 . Amalabala v. Surat Kumari , AIR 1932 Cal 380: (1932) 54 Cal LJ 593; Kali Charan v. Bibhuti , AIR 1933 Cal 85: (1932) ILR 60 Cal 191.
143 . Bherusingh v. Ramgopal , AIR 1972 MP 217 [LNIND 1967 MP 39]; Ulhannan v. Prudential Trust , AIR 1965 Ker 16 [LNIND 1963 KER
257].
144 . Rabindra v. Jnanendramohan , AIR 1932 Cal 9: (1931) ILR 58 Cal 1018; affirmed by the PC in, (1933) 60 IA 71 : 60 Cal 670, AIR 1933 PC
61.
145 . Nathan v. Samson , AIR 1931 Rang 252(FB) : (1932) 9 Rang 480.
146 . Bank of Chettinad v. SPKPVR Chettyar Firm , AIR 1936 Rang 87: (1936) 14 Rang 94.
147 . AIR 1933 PC 61: (1933) 60 IA 71; following in Ram Narain v. Lala Suraj Narain , AIR 1934 Oudh 75(FB) : (1934) ILR 9 Luck 435.
148 . AIR 1954 SC 340 [LNIND 1954 SC 67]: (1955) 1 SCR 117 [LNIND 1954 SC 67] : (1954) SCJ 514 [LNIND 1954 SC 67]; Dyanand
Mohan v. Rabindranath , AIR 1933 PC 31: (1933) ILR 60 Cal 670; Hiralal v. Kalinath , AIR 1962 SC 199 [LNIND 1961 SC 236], affirming,
AIR 1955 All 569 [LNIND 1955 ALL 12]; Anand Rao v. Kishen Das , AIR 1954 Hyd 190; Samikannu v. Arumugam , (1955) 2 MLJ 16;
Surinder Nath Kapoor v. Union of India , (1998) Supp SCC 626.
149 . AIR 1961 Cal 92 [LNIND 1960 CAL 149]; Benares Ice Factory v. Shuklal , AIR 1961 Cal 422 [LNIND 1960 CAL 91].
150 . AIR 1960 Punj 610: (1959) ILR Punj 1588.
151 . AIR 1962 AP 500 [LNIND 1962 AP 34].
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152 . China Gounden v. Kalyanasundaram , AIR 1947 Mad 126 [LNIND 1946 MAD 114]: (1940) 2 MLJ 881 [LNIND 1940 MAD 263]; Ugra
Narain v. Basanta , (1919) 17 CWN 868.
153 . Talebali v. Abdul Aziz , AIR 1929 Cal 689(FB) : (1927) ILR 57 Cal 1013.
154 . Gora Chand v. Prafulla , AIR 1925 Cal 906.
155 . Jungli Lall v. Laddu Ram , (1919) 4 Pat LJ 240; Rup Narain v. Ramayee , (1878) 3 CLR 192; Narendra v. Gopal , (1912) 17 Cal LJ 634; Imdad
Ali v. Jagan Lal , (1895) ILR 17 All 478; Radha Prasad v. Lal Saheb , (1891) ILR 13 All 53 : 17 IA 150; Janardhan v. Ramchandra , (1902) ILR
26 Bom 317; Vishwanath v. Lallu , (1909) 11 Bom LR 1070; Subramania v. Vaithinatha , (1913) ILR 38 Mad 682; Radha Kishen v. Bihari Lal ,
AIR 1934 Lah 117; Ram Khelwan v. Ramuddar , AIR 1939 Pat 534; Bariruddin v. Saradindu 38 CWN 1124.
156 . Bai Shakri v. Bapu Singhji Takhat Singhji , AIR 1958 Bom 30 [LNIND 1957 BOM 85].
157 . Gopalji v. Indore Premier Co-operative Bank Ltd., AIR 1957 MB 56.
158 . Sabavva v. Basappa Andaneppa , (1955) ILR Bom 386 : 57 Bom LR 261.
159 . Chintamani v. Zahiruddin , AIR 1956 Pat 57.
160 . Patanker v. Sastri [1961) 1 SCR 591 [LNIND 1960 SC 203] : (1961) 1 SCJ 221 [LNIND 1960 SC 203] : AIR 1961 SC 272 [LNIND
1960 SC 203]; affirming, (1954) ILR Mys 440.
161 . K. Punnen v. P. Kurup , AIR 1956 Tr & Coch 1.
162 . Narsing v. Rao Nihalkaran , AIR 1962 MP 318 [LNIND 1961 MP 100].
163 . Vishwasrao v. Ushapai , AIR 1988 Bom 393. As to whether a decree passed by a court which has irregularly assumed jusrisdiction can be
executed, see s 21: Section 21 and Execution Proceedings. As to the powers of a court to which a decree is transferred for execution, see
notes to s 42 and O 21, r 7.
164 . Pirbhu v. Rup Singh , (1898) ILR 20 All 397; Udwant v. Tokhan Singh , (1901) ILR 28 Cal 353 : 28 IA 57.
165 . Ramasami v. Kailasa , AIR 1951 SC 189 [LNIND 1951 SC 17]: (1951) SCR 292 [LNIND 1951 SC 17] : 1951 SCJ 78.
166 . Gurdev Singh v. Punjab National Bank , AIR 1988 P&H 106.
167 . Satrughna v. Sridhari , AIR 1966 Ori 203 [LNIND 1966 ORI 12]: (1966) Cutt LR 368.
168 . Thapar v. Sudhir , AIR 1966 J&K 13.
169 . Radhamoni v. Gobind Chandra , AIR 1942 Pat 196; Meenambal v. Aburubammal , (1930) ILR 53 Mad 750 : AIR 1930 Mad 688.
170 . Radhamoni v. Gobind Chandra , AIR 1942 Pat 196; Seth Manakchand v. Chaube Manoharlal , 71 IA 65 : (1944) ILR Nag 597 : 48 Cal WN
435; Ram Kirpal v. Rup Kuari , (1884) ILR 6 All 269 : 11 IA 37; Kali Krishna v. Secretary of State , (1889) ILR 16 Cal 173 : 15 IA 186; Jagatji v.
Sarabjit , (1892) ILR 19 Cal 159 : 18 IA 165; Lachmi v. Jwala , (1896) ILR 18 All 344; Shivlal v. Jumaklal , (1894) ILR 18 Bom 542; Topan
Mal v. Kundomal Gangaram , AIR 1960 SC 388; affirming, AIR 1953 All 710 [LNIND 1953 ALL 41]; Ratanmala v. Gopal Lal , AIR 1955
Cal 14 [LNIND 1954 CAL 123]; Bhagwati Prasad v. Babulal , AIR 1957 Pat 8; Gouri Kumari v. Krishna Pasad 36 Pat 323 : AIR 1957 Pat
575; Raman v. Narayanan , AIR 1957 Ker 31 [LNIND 1956 KER 124].
171 . Amolak v. Lachmi , (1897) ILR 19 All 174; Bakar v. Udit Narain , (1899) ILR 21 All 361; Radha Kishan v. Collector of Jaunpur , (1901) ILR 23
All 220 : 28 IA 28.
172 . See note to s 11, Orders in Execution Proceedings.
173 . Pabbati Venkata v. Doredla Venkataratnam & Sons , AIR 1939 Mad 169: (1939) ILR Mad 248.
174 . Dularey Lodh v. Third Addl District Judge, Kanpur , (1984) 3 SCC 99 [LNIND 1984 SC 142].
175 . Uma Kanoria v. Pradip Kumar Daga , AIR 2003 Cal 162 [LNIND 2002 CAL 413].
176 . ICDS Ltd. v. Mangala Builders Pvt. Ltd., AIR 2001 Kant 364 [LNIND 2001 KANT 145].
177 . Ins. by CPC (Amendment) Act, 1976 (104 of 1976), s 18 (w.e.f. 1-2-1977) .
178 . Ins. by CPC (Amendment) Act, 1976 (104 of 1976), s 18 (w.e.f. 1-2-1977).
179 . Ins. by CPC (Amendment) Act, 2002 (22 of 2002), s 2 (w.e.f. 1-7-2002) vide Notfn. S.O. 604(E), dt. 6-6-2002.
180 . Tara Chand v. Misrimal , AIR 1970 Raj 53 [LNIND 1969 RAJ 138].
181 . Punjab Co-operative Bank v. Bikram Lal , AIR 1959 Punj 71.
182 . Darshan Singh v. Baldeo Das , AIR 1946 Pat 365.
183 . Sundra Rao v. Appaiah Naidu AIR 1954 Mys 1.
184 . Laxmi Narain v. Firm Ram Kumar AIR 1971 Raj 30.
185 . ICDS Ltd. v. Mangala Builders Pvt. Ltd. , AIR 2001 Kant 364 [LNIND 2001 KANT 145].
186 . Salem Advocate Bar Assocn v. Union of India , AIR 2005 SC 3353 [LNIND 2005 SC 573]: 2005 (6) SCC 344 [LNIND 2005 SC 573].
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187 . Ibid , at p. 3361.

188 . Mohit Bargava v. Bharat Bhushan Bhargava , AIR 2007 SC 1717 [LNIND 2007 SC 508]: (2007) 4 SCC 795 [LNIND 2007 SC 508].
189 . Ibid , at p. 1719-1720.
190 . Ibid , at para 9.
191 . Pearay Lal & Sons (Pvt.) Ltd. v. Jamuna Properties (P.) Ltd., AIR 2004 Del 126 [LNIND 2004 DEL 20].
192 . Chandravathi v. Payapatillath , AIR 1966 Ker 318 [LNIND 1966 KER 65]: (1966) ILR 2 Ker 74.
193 . Tarachand v. Misrimal , AIR 1970 Raj 53 [LNIND 1969 RAJ 138]: (1969) ILR 19 Raj 412.
194 . State of Rajasthan v. R Savkasha , AIR 1972 Guj 179 [LNIND 1971 GUJ 38].
195 . Darsan Singh v. Baldeo Das , AIR 1946 Pat 365: (1946) ILR 25 Pat 145; Punjab Co-op Bank v. Bikram Lal , AIR 1959 Punj 71.
196 . Radhe Shyam v. Devendra , AIR 1952 Pat 213: ILR 31 Pat 56; Sundara Rao v. Appaiah Naidu , AIR 1954 Mys 1: (1954) ILR Mys 193; Laxmi
Narain v. Firm Ram Kumar , AIR 1971 Raj 30.
197 . Lalithamba v. Mangamma , : AIR 1958 Andh Pra 763 : (1958) 2 Andh WR 511.
198 . Venkatarami Reddi v. Rami Reddi , (1951) ILR Mad 375 : (1950) 1 MLJ 787; Ram Kumar v. Hazari Lal , AIR 1961 Raj 157 [LNIND 1960
RAJ 86]: (1960) ILR Raj 1624.
199 . Lakhpat Rai v. Atma Singh , AIR 1962 Punj 228: (1961) ILR Punj 166.
200 . Moloji Narsing v. Sankar Saran , AIR 1962 SC 1737 [LNIND 1962 SC 199]; affirming, AIR 1958 All 775 [LNIND 1957 ALL 157].
201 . Nandram v. Gopal Das , AIR 1956 MB 255.
202 . Chimnabai v. Kasturbhai , AIR 1934 Bom 225: (1934) ILR 58 Bom 729.
203 . Birla Corporation Ltd. v. Prasad Trading Co ., AIR 2007 Cal 38 [LNIND 2006 CAL 511].
204 . Ramgopal Raghunath v. Ramchandra Krishnarao , AIR 1949 Nag 359: (1949) ILR Nag 187.
205 . Chinnaswami v. Annamalai , AIR 1941 Mad 309: (1941) ILR Mad 574; Kasturchand v. Parsha , (1887) ILR 12 Bom 230.
206 . Ratan v. Khatoo , (1902) ILR 29 Cal 400; Pierce Leslie v. Perumal , (1917) ILR 40 Mad 1069.
207 . Firm Hansraj v. Firm Lalji Raja & Sons , AIR 1963 SC 1180 [LNIND 1962 SC 198].
208 . Sheikh Hafeez Uddin v. Ram Chunder Das , AIR 1937 All 397.
209 . Mohanlal v. Benoy Krishna , AIR 1953 SC 65 [LNIND 1952 SC 88]: (1953) SCR 377 [LNIND 1952 SC 88] : (1953) SCJ 130 [LNIND
1952 SC 88].
210 . Manmatha Pal v. Sarada Prosad , AIR 1939 Cal 651.
211 . Firm Ganeshdas Badrinarayan v. Amuluk Chand , AIR 1940 Cal 161; Saralabala v. Shyam Prosad , AIR 1953 Cal 765.
212 . Banares Bank Ltd. v. Jyoti Bhusan Gupta , AIR 1951 All 362 [LNIND 1950 ALL 223]; Devi Das v. Mohamed , AIR 1935 Lah 508: (1935)
17 Lah 13 ; but see Manmatha Pal v. Sarada Prosad , AIR 1939 Cal 651.
213 . Nehar Gang v. Anath Nath , AIR 1956 Pat 269.
214 . Re Mahalakshmamma , (1956) Andh LT 997.
215 . Venkamamidi v. Nannapaneni , AIR 1943 Mad 449: (1943) ILR Mad 804.
216 . D.V.M. Construction v. Sree Infrastructure Finance Ltd ., AIR 2009 Cal 227 [LNIND 2009 CAL 118] (DB).
217 . Raj Kumar and Brothers v. Hindustan Steel Works Construction Ltd ., AIR 2007 Jhar 7 [LNIND 2006 JHAR 6]: 2006 (4) JLJR 379.
218 . Kusum Kamini v. Sattesh Chandra , AIR 1935 Cal 118.
219 . Ramagonda Malagonda Patil v. Bhajarang Tukaram Bhojane , AIR 2003 Kant 154 [LNIND 2002 KANT 480].
220 . Govind v. Sadashiv , AIR 1955 Bom 93 [LNIND 1954 BOM 16].
221 . Arunachala v. Lingayya , AIR 1953 Mad 171: (1952) 2 MLJ 347 [LNIND 1951 MAD 258] : 65 LW 729 : 1952 MWN 817; Theagaraya v.
Sambasiva , AIR 1934 Mad 283 [LNIND 1933 MAD 237]: 57 Mad 795 : 66 MLJ 492 : 39 LW 488 : 1934 MWN 90.
222 . Mohan Lal v. Benoy Krishna supra; Ademma v. Venkatasubbiah , AIR 1933 Mad 627 [LNIND 1933 MAD 81]: 65 MLJ 137 : 38 LW 208 :
1933 MWN 577; dissenting from Nanjundappa v. Nallakaruppan 55 MLJ 120; Venkataratnam v. Chenniah , AIR 1940 Mad214 [LNIND
1939 MAD 408]: 50 LW 764. See notes to s 38 under the head: Jurisdiction of Court Executing the Decree.
223 . Khetpal v. Tikam Singh , (1912) ILR 34 All 396.
224 . Banku Behary v. Narain Das , AIR 1927 PC 73: 54 IA 129 : ILR 54 Cal 500; Chutterput Singh v. Sait Sumari , (1916) ILR 43 Cal 903.
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225 . K.B. Dutt v. Taraprasanna , AIR 1924 Pat 120: (1923) ILR 2 Pat 909.
226 . P.N. Sree Kumaran Nair v. Dhanalakshmy Bank , AIR 2009 Ker 26 [LNIND 2008 KER 473]: 2008 (3) Ker LT 52 : 2008 (4) Civil Court C
449.
227 . K. Srinivas Rao v. Smt. K. Renuka Bai , 2007 (1) Andh LD 691 : 2007 (2) Andh LT 659.
228 . Muthukarappan v. Sellami , AIR 1938 Rang 385: (1938) ILR Rang 355.
229 . S.A. Ramanathan Chettiar v. M.P. Kasi Chettiar , AIR 1944 Mad 73; Dwarka Nath v. Imperial Bank of India , AIR 1929 Cal 529: (1929) ILR
56 Cal 1176.
230 . Begg Dunlop & Co. v. Jagannath , (1912) ILR 39 Cal 104.
231 . Ayodhya Bai v. Govind Trading Co , AIR 1956 Ajm 39.
232 . Bank of Bengal v. Sarat , (1919) 4 Pat LJ 141; Hari Das v. National Insurance Co. , AIR 1932 Cal 213: (1932) ILR 59 Cal 199 .
233 . Kartick Nath v. Tilukdhari , (1888) ILR 15 Cal 667; Chhatu Ram v. LIC of India , AIR 1974 Pat 371.
234 . Krishna v. Bhau , (1894) ILR 18 Bom 61.
235 . Abdul Khadar v. Mohammed , AIR 1956 TC 213: (1956) TC 250.
236 . Nageshwar Prasad v. Lakshman Prasad , AIR 1960 Pat 171.
237 . Mahadeo Prasad v. Ram Lochan , AIR 1981 SC 416 [LNIND 1980 SC 384]: (1980) 4 SCC 354 [LNIND 1980 SC 384].
238 . Pera Khatika v. Lal Behari , AIR 1982 All 82.
239 . Pearay Lal & Sons (Pvt.) Ltd. v. Jamuna Properties (P.) Ltd ., AIR 2004 Del 126 [LNIND 2004 DEL 20].
240 . Mohammad Mehdi v. Zainuddin , AIR 1957 Pat 654.
241 . Saroda Prosad v. Luchmeeput , (1872) 14 MIA 529; Krishto Kishore v. Rooplall , (1882) ILR 8 Cal 687; Deb v. Chowdhury , AIR 1927 Rang 258:
(1927) 5 Rang 397; Dwarka Nath v. Imperial Bank of India , AIR 1929 Cal 529: (1929) ILR 56 Cal 1176; Fatechand v. Jitmal , AIR 1929 Bom
418: (1929) ILR 53 Bom 844 : 31 Bom LR 1105; Athivarapu Venkatarami Reddi v. Kotamareddit Ram Reddi , AIR 1950 Mad 582 [LNIND
1950 MAD 46].
242 . Gurudas v. Jnandra , AIR 1935 Cal 268: (1935) 39 Cal WN 165.
243 . Makhan Lal v. Mst Bhagwana , AIR 1936 All 655: (1936) All LJ 277.
244 . Bhagwan Das v. Gomti Bai , AIR 1962 All 619.
245 . Bhabani Charan v. Pratap Chandra , (1904) 8 Cal WN 575. But see s 2(2) as now amended.
246 . Sital v. Clement Robson & Co ., AIR 1921 All 199: (1921) ILR 43 All 394.
247 . Krishnaji v. Mahadeo , AIR 1922 Bom 377: (1922) ILR 46 Bom 128.
248 . Fagu Ram v. Pannalal , AIR 1962 Pat 272; Sarjoo Prasad v. Second Addl. Dist. Judge, Kanpur , AIR 1975 All 13.
249 . Subs. for Province by A.O. 1950.
250 . Inderchand v. Bansropan , AIR 1948 Pat 245: (1947) ILR 26 Pat 307; Tincowri v. Debendro Nath , (1890) ILR 17 Cal 491; Sree Krishna v.
Alumbu , (1913) ILR 36 Mad 108; Subbier v. Metal Corpn of India Ltd., AIR 1954 Cal 169 [LNIND 1953 CAL 169]: 93 CLJ 25.
251 . P.S. Ramamoorthy Sastry v. Selver Paints and Varnish Works Pvt. Ltd., AIR 1984 Mad 172 [LNIND 1983 MAD 203].
252 . Basheer Ahmed v. Padmanabha , AIR 1953 Mys 37; Ramavtar v. Pop Singh , AIR 1970 Ori 36 [LNIND 1969 ORI 90]: (1970) ILR Cut 504.
253 . Kunhiraman v. Madhavan Nair , AIR 1957 Mad 761 [LNIND 1956 MAD 187].
254 . Ponnappa v. Thiruvengadam 49 MLJ 104.
255 . Chhegalal v. Shyamlal , AIR 1960 MP 387 [LNIND 1960 MP 122]; Indore Soap Factory v. National Industries Co ., AIR 1963 MP 153
[LNIND 1961 MP 128].
256 . Binod Mills Co. Ltd. v. Suresh Chand Mahavir Prasad Mantri , (1987) 3 SCC 99 [LNIND 1987 SC 462].
257 . Nagi Reddi v. Thikkavarapu , AIR 1947 Mad 431 [LNIND 1947 MAD 23]: (1948) ILR Mad 117; Pratabgir v. Chandanmal Duddha , AIR
1951 Hyd 65; Abda Begum v. Muzaffar , (1898) ILR 20 All 129; Vithu v. Ganesh , AIR 1923 Bom 396: (1923) 25 Bom LR 453; Shivlingappa v.
Shidmalappa , AIR 1924 Bom 359: (1924) 26 Bom LR 345; Muhammad v. Chhatto Lal , AIR 1926 Pat 274: (1926) ILR 5 Pat 398; Radhe
Shyam v. Devendra , AIR 1952 Pat 213(FB).
258 . Vithu v. Ganesh , AIR 1923 Bom 396: (1923) 25 Bom LR 453.
259 . Savithri v. Kamal Singh , AIR 1955 Pat 456.
260 . Prahlad v. Thakur , AIR 1961 Pat 149; Suryanarayana v. Bhavani Shankar , (1960) 1 Andh WR 260; Punjab Co-op Bank Ltd. v. Bikram Lal ,
AIR 1959 Punj 71: (1958) ILR Punj 2430; Ram Kumar v. Hazarimal , AIR 1961 Raj 157 [LNIND 1960 RAJ 86]: (1960) ILR Raj 1624.
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261 . Mst Jilai v. Abdul Rahaman , AIR 1929 Oudh 76: (1929) ILR 4 Luck 209.
262 . Shivlingappa v. Shidmalappa , AIR 1924 Bom 359: (1924) 26 Bom LR 345; Vithu v. Ganesh , AIR 1923 Bom 396: (1923) 25 Bom LR 453.
263 . Maniram v. Vithu , AIR 1923 Bom 371.
264 . Darsansingh v. Baldeodas , AIR 1946 Pat 365: (1946) ILR 25 Pat 145.
265 . Benoy Krishna Mukerjee v. Mohanlal Goenka , AIR 1950 Cal 287.
266 . Shivlingappa v. Shidmalappa , (1924) 26 Bom LR 345 [LNIND 1924 BOM 38].
267 . S.O. Mills v. R.O. Mills , AIR 1969 AP 263 [LNIND 1967 AP 179]; Pannalal v. Appalabhuketula , AIR 1969 Ori 147 [LNIND 1968 ORI
107].
268 . Fatechand v. Jitmal , AIR 1929 Bom 418: (1929) ILR 53 Bom 844 : 31 Bom LR 1105.
269 . Aftab Ahmed v. Hindustan Commercial Bank , AIR 1906 All 558; Dharamchand v. Sakalchand , AIR 1967 Mys 24: (1965) 2 Mys LJ 85.
270 . Mohammad Hanif v. Ali Raza , AIR 1933 All 783(FB) : (1933) ILR 55 All 891.
271 . S 42 renumbered as sub-sec. (1) by Act 104 of 1976, s 19 (w.e.f. 1-2-1977).
272 . Ins. by CPC (Amendment) Act 104 of 1976, s 19 (w.e.f. 1-2-1977).
273 . Jonalalgadda Seetharamayya v. Kaja Sivaramakrishna Rao , AIR 1944 Mad 145 [LNIND 1943 MAD 146], in Letters Patent Appeal, AIR
1944 Mad 446 [LNIND 1944 MAD 104].
274 . Manorath Das v. Ambika [1910) 13 WN 533; Vithu v. Ganesh , AIR 1923 Bom 396: (1923) 25 Bom LR 453; Shivlingappa v. Shidmalappa ,
AIR 1924 Bom 359: (1924) 26 Bom LR 345; Mohammed v. Chhattoo , AIR 1926 Pat 274: (1926) ILR 5 Pat 398; Sheshiyer v. Madan Mohan ,
AIR 1932 Pat 286: (1932) ILR 11 Pat 513.
275 . Abda Begum v. Muzaffar , (1898) ILR 20 All 129.
276 . Mathura v. Kailash , (1898) 3 Cal WN 211. See note Certify under s 41 above.
277 . Ekram Hussain v. Umatul , AIR 1931 Pat 27: (1930) ILR 9 Pat 829.
278 . Bangar Raju v. Alluri Raja , AIR 1957 AP 403.
279 . Bhagmal v. Purshotham , AIR 1963 MP 154 [LNIND 1961 MP 78].
280 . Sital Prasad v. Clement Robson & Co. , AIR 1921 All 199: (1921) ILR 43 All 394; Sanwal Das v. Collector of Etah , AIR 1924 All 700: (1924)
ILR 46 All 560.
281 . Jai Narain v. Kedarnath (1956) SCR 62 [LNIND 1956 SC 7] : AIR 1956 SC 359 [LNIND 1956 SC 7], affirming, AIR 1954 Pat 497
[LNIND 1956 SC 7].
282 . Ramagonda Malagonda Patil v. Bhajarang Tukaram Bhojane , AIR 2003 Kant 154 [LNIND 2002 KANT 480].
283 . Shib Narain v. Bepin Behary , (1878) ILR 3 Cal 512.
284 . Maharaja of Bhurtpur v. Rani Kanno Dei , (1901) ILR 23 All 181; Kashi v. Jamuna , (1904) ILR 31 Cal 922; Subramania v. Punjamma , (1882)
ILR 4 Mad 324; Lakshmibai v. Ravji , AIR 1929 Bom 217: 31 Bom LR 400.
285 . Rajerav v. Nanarav , (1887) ILR 11 Bom 528.
286 . Pexata v. Digambar , (1891) ILR 15 Bom 307.
287 . Sadashiv v. Jayanti , (1884) ILR 8 Bom 185; Madho Lal v. Katwari , (1888) ILR 10 All 130.
288 . Gajadhar v. Firm Manulal , AIR 1925 Pat 807: (1925) ILR 4 Pat 440.
289 . Ramchandra v. Mohendro Nath , (1874) 21 WR 141; Dhunesh v. Oolfat , (1874) 21 WR 219; Prithi Chand v. Satya , AIR 1932 Pat 168: (1932)
ILR 11 Pat 94.
290 . Radha Kishen v. Behari Lal , AIR 1934 Lah 117.
291 . S. Vijaychandra Prabhatilal Sharma v. Manek Metal Syndicate Bombay , AIR 1990 Guj 190 [LNIND 1989 GUJ 154].
292 . Hari v. Narsingrao , (1914) ILR 38 Bom 194; Sheopat Rai v. Harakchand , (1919) PR 22; Zamindar of Ettiyapuram v. Chidambaram , (1920)
ILR 43 Mad 675.
293 . Gora Chand v. Profulla , AIR 1925 Cal 907: (1926) ILR 53 Cal 166.
294 . Nathan v. Samson , AIR 1931 Rang 252(FB) : (1932) 9 Rang 480.
295 . Mulla Abdul v. Sukkhinaboo , (1897) ILR 21 Bom 456; Ram Lal v. Radhey Lal , (1885) ILR 7 All 330; Beerchunder v. Maymana , (1880) ILR 5
Cal 736.
296 . See notes to s 11 under the heading Orders in Execution Proceedings... Constructive Res Judicata in Execution Proceedings.
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297 . Rajata Giripati v. Bhavani Shankaran , AIR 1924 Mad 673 [LNIND 1924 MAD 51]; Abdul Afeez v. Official Receiver , (1958) 2 MLJ 526 :
1958 MWN 552; overruling Appayya v. Venkataratnam , AIR 1954 Mad 1 [LNIND 1953 MAD 11]: (1953) 2 MLJ 225 [LNIND 1953
MAD 11]; Palaniappa v. Mariappa , AIR 1960 Mad 343 [LNIND 1959 MAD 161]; Srinath Chakravarthi v. Prianath , AIR 1931 Cal 312;
Sunder Rao v. Appiah Naidu , AIR 1954 Mys 1(FB) : 1954 ILR Mys 153; Hussin v. Saji 15 Bom 28.
298 . Samasekhara v. Seshagiri , : AIR 1960 Andh Pra 321 : (1959) 2 And WR 303 : (1959) And LT 670; Chhotay Lal v. Puran Mull , (1896) ILR
23 Cal 39, p. 41; Leake v. Daniel , (1868) 10 WR 10 (FB); Machimai v. Subramaniam , AIR 1928 Rang 40: (1928) 5 Rang 775; Arjun Das v. U.
Ka ya , AIR 1936 Rang 271: (1936) 14 Rang 550; Rama Rai v. Dayal Singh , (1894) ILR 16 All 390.
299 . Srihari v. Murari , (1886) ILR 12 Cal 257.
300 . AIR 1956 SC 359 [LNIND 1956 SC 7]: (1956) SCR 62 [LNIND 1956 SC 7].
301 . Mangal Chand v. Dulari , AIR 1938 All 654: (1938) All LJ 980.
302 . Krishna v. Ganga , AIR 1947 Pat 338: (1946) ILR Pat 790; Maharaja of Bobbili v. Narasaraja, 43 IA 238, affirming, (1914) ILR 37 Mad 231;
Jnanendra Nath v. Kumar Jogendra , AIR 1923 Pat 384: (1923) ILR 2 Pat 247; Jatendrakumar v. Mahendra Chandra , AIR 1933 Cal 906: (1933)
ILR 60 Cal 1186; Ram Mohan v. Radhey Lal , AIR 1936 Oudh 64; Rangaswami v. Sheshappa , AIR 1922 Bom 359: (1922) ILR 47 Bom 56.
303 . Mojibanisa v. Kadir Bux , AIR 1951 All 380 [LNIND 1950 ALL 234]; Thakur Vishwanath Singh v. Mahabir Prasad , AIR 1937 Nag 305:
(1937) ILR Nag 440; Makhan Lal v. Mst Bhagwana Kuer , AIR 1936 All 655; K.K. Deb v. N.L. Chowdhury , AIR 1927 Rang 258: (1927) 5
Rang 397; Pedda Subb Rao v. Lavu Ankamma , AIR 1933 Mad 110 [LNIND 1932 MAD 192]; Kanti Narain v. Madan Gopal , AIR 1935 Lah
465(Skemp J, dissenting) (FB) : (1934) 16 Lah 442; Sundardas v. Kalliandas , AIR 1940 Sau 111; Ranjam v. Golam 39 Cal WN 129; Fatechand
v. Jitmal , AIR 1929 Bom 418: (1929) 53 Bom 844; Radhe Shyam v. Devendra , AIR 1952 Pat 213(FB).
304 . 43 IA 238.
305 . Lang v. Jaswantilal , AIR 1926 Bom 271: (1926) 50 Bom 439; Dwarkadas v. Saligram , AIR 1939 Pat 144: (1939) 17 Pat 617.
306 . Venkatarami Reddi v. Rami Reddi , AIR 1950 Mad 582 [LNIND 1950 MAD 46]; Darsan Singh v. Baldeo Das , AIR 1946 Pat 365: (1946) 25
Pat 145; Bhagwan Das v. Gomti Bai , AIR 1962 All 619, overruling Parsottam v. Raj Narain , AIR 1957 All 336 [LNIND 1957 ALL 26];
Punjab Co-op Bank v. Bikram Lal , AIR 1959 Punj 71; Saroda Prosad v. Luchmeeput , (1872) 14 MIA 529; Kristo Kishore v. Rooplall , (1882) 8
Cal 687; Deb v. Chowdhury , AIR 1927 Rang 258: (1927) 5 Rang 397; Dwarkanath v. Imperial Bank of India , AIR 1929 Cal 529: (1929) 56 Cal
1176.
307 . Basheshar Das v. Central Co-op Bank Ltd., AIR 1934 Lah 113.
308 . Srihari v. Murari , (1886) 12 Cal 257.
309 . Ramchand v. Vazirchand , AIR 1962 Punj 293.
310 . Abdul Sattar v. Masurya Din , AIR 1961 MP 158 [LNIND 1960 MP 69]; dissenting from Nagireddi v. Kolamma , AIR 1947 Mad 431
[LNIND 1947 MAD 23].
311 . Framji v. Rattansha , (1872) 9 Bom HCR 49; Kadir v. Ilahi Baksh , (1880) 2 All 283; Amar Chundra v. Guru Prosunno , (1900) 27 Cal 488;
Tameshar v. Thakur Prasad , (1903) 25 All 443; Shamsul Huq v. Abdul Rahaman , (1935) 39 Cal WN 960.
312 . Jang Bahadur v. Bank of Upper India Ltd., AIR 1928 PC 162: 55 IA 227.
313 . Punjab Co-op. Bank v. Bikram Lal , (1959) Punj 71.
314 . Aftab Ahmed v. Hindustan Commercial Bank , AIR 1906 All 558.
315 . Jambulinga v. Vadivel Achari , AIR 1956 Mad 390 [LNIND 1955 MAD 246].
316 . For the effect of this amendment see the following cases: Ram Lachan v. Mahadeo Prasad , AIR 1970 All 554; Bhola Koeti v. Laxmi Devi ,
AIR 1972 All 537.
317 . Mahadeo Prasad Singh v. Ram Lochan , AIR 1981 SC 416 [LNIND 1980 SC 384].
318 . Subs. by CPC (Amendment) Act 2 of 1951, s 8.
319 . Kishendas v. Indo-Carnatic Bank , : AIR 1958 Andh Pra 407.
320 . Moloji Narsingh Rao v. Shankar Saran , AIR 1962 SC 1737 [LNIND 1962 SC 199]; affirming, AIR 1958 SC 775.
321 . Wahid Ali v. Aziz , AIR 1956 Bhopal 24.
322 . Kantilal v. Dominion of India , AIR 1954 Cal 67 [LNIND 1953 CAL 57].
323 . Subs. by CPC (Amendment) Act 2 of 1951, s 9.
324 . Nilratan v. Cooch Behar Loan Office , AIR 1941 Cal 64: (1941) 1 Cal 171 : (1940) 45 Cal WN 113 : 72 CLJ 148.
325 . Rajendra v. Shanker , AIR 1958 All 775 [LNIND 1957 ALL 157].
326 . Chunilal Kasturchand v. Dundappa Damappa , AIR 1951 Bom 190 [LNIND 1950 BOM 14].
327 . Amarnath v. Narain Das , AIR 1947 Oudh 206: (1947) 22 Luck 353; Nabibhai v. Dayabhai , (1916) 40 Bom 504.
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328 . Subs. by Act 8 of 1937.

329 . The words the United Kingdom or Omitted by Act 71 of 1952, s 2.
330 . Subs. by CPC (Amendment) Act 2 of 1951, s 3 for the States.
331 . Subs. for Explanations 1 to 3 by Act 71 of 1952, s 3.
332 . See statement of Objects and Reasons, Gazette of India, Pt V, p. 24, dated 16 February 1935.
333 . Subramaniam v. Srinibash , AIR 1951 Mad 289 [LNIND 1950 MAD 98].
334 . Said-ul-Hamid v. Federal Indian Assurance Co ., AIR 1951 Punj 255: (1951) Punj 111; Punjab Co-op. Bank v. Naranjan Das , AIR 1961 Punj
369: (1960) 2 Punj 241.
335 . Muthia Chettiar v. Firm Shwebo , AIR 1957 Mad 25 [LNIND 1956 MAD 10].
336 . Sumikin Bussan International (Hong Kong) Ltd. v. King Shing Enterprises Ltd . (in Liquidation) , 2008 (3) AIR Bom R 92 : 2008 (5) Bom CR 464
[LNIND 2008 BOM 182].
337 . Janardhan Mohandas Rajan Pillai v. Madhubhai Patel , AIR 2003 Bom 490 [LNIND 2003 BOM 629].
338 . Geglani v. Beharilal Beniprasad Pvt. Ltd., AIR 1978 Bom 255 [LNIND 1977 BOM 133].
339 . Sheik Ali v. Sheik Mohamed , AIR 1967 Mad 45 [LNIND 1966 MAD 273]: (1966) 2 Mad 551.
340 . Lakhpat Rai Sharma v. Atma Singh , AIR 1971 P&H 476 : 73 Punj LR 224.
341 . Jharkhand Mines and Industries Ltd. v. Nand Kishore , AIR 1969 Pat 228.
342 . Morteys Biham Ltd. v. Roshanlal , AIR 1961 Bom 156 [LNIND 1959 BOM 86].
343 . Uthamram v. Abdul Kassim & Co. , (1963) 2 MLJ 412 [LNIND 1962 MAD 246].
344 . India Builders Corporation v. Masood Asif , 2010 (1) : AIR Kar R 151.
345 . Indian Overseas Bank v. SMM Musthaba , AIR 1977 Mad 199 [LNIND 1976 MAD 148]: (1977) 2 Mad 1.
346 . International Woolen Mills v. Standard Wool (UK) Ltd ., (2001) 2 LRI 765.
347 . Indian General Investment Trust Ltd. v. Raja of Khalikote , AIR 1952 Cal 508 [LNIND 1952 CAL 9].
348 . MVAL Quamar v. Tasavliris Salvage (International) Ltd. , (2000) 3 LRI 886.
349 . Janardhan Mohandas Rajan Pillai v. Madhubhai Patel , AIR 2003 Bom 490 [LNIND 2003 BOM 629].
350 . Fuerst Lawson Ltd. v. Jindal Exports Ltd., AIR 2001 SC 2293 [LNIND 2001 SC 1180]: 2001 CLC 746 (SL).
351 . Enro-Asia Chartering Corporation (Pte) Ltd. v. FI Ltd., AIR 2002 Bom 447 [LNIND 2002 BOM 485].
352 . Marina World Shipping Corporation Ltd. v. Jindal Exports Pvt. Ltd., 2007 CLC 1606.
353 . International Woollen Mills v. Standard Wool (UK) Ltd., AIR 2001 SC 2134 [LNIND 2001 SC 1066].
354 . Commentary on Principles of Statutory Interpretation , eighth edn : 2001, ch 5, as quoted in Harshadrai O Mody v. Bank of India , AIR 2003 Bom
125 [LNIND 2002 BOM 650] (DB).
355 . Ibid .
356 . Bank of India v. Harshadrai Odhoiji , AIR 2002 Bom 449 [LNIND 2002 BOM 393].
357 . Bank of India v. Harshadrai Odhaiji , AIR 2002 Bom 449 [LNIND 2002 BOM 393].
358 . Subs. by the A.O. 1937, for the original s 45.
359 . Subs. for Province by IAO 1950.
360 . The words or continued omitted by IAO 1948.
361 . Subs. by IAO 1950 for in any Indian State which had been subs. for or of the Crown representative in the territories of any foreign
prince or State by IAO 1948.
362 . Subs. for Provincial Government by IAO 1950.
363 . Pierce Leslie v. Perumal , (1917) 40 Mad 1069.
364 . See Act 26 of 1968, s 3(i) and sch, Pt II : 5-9-1968.
365 . Gurdiyal Singh v. Kharzan Chand , AIR 1936 Lah 486.
366 . Karri Venkata Reddi v. Central Bank of India , AIR 1990 Pat 81.
367 . Sheerazee v. Reddy , AIR 1940 Rang 34: (1939) ILR Rang 624.
 Page 46 of 46
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368 . Manganese Ore (India) Ltd. v. Mangilal Rungta , AIR 1981 Del 114 [LNIND 1980 DEL 221].
369 . Puran Mal v. Dina Nath , AIR 1926 Lah 433: (1926) 8 Lah LJ 164.
370 . Champalal v. Mohanlal , AIR 1959 MP 397 [LNIND 1959 MP 131].
371 . Chiman Das v. Mahadevappa , AIR 1961 AP 417 [LNIND 1960 AP 239].
372 . Hindustan Bicycle Manufacturer and Industries Corpn Ltd v. Nath Bank Ltd., AIR 1957 Pat 209.
373 . Pallonji Shapoor v. Edward Vaughan Traders ILR 12 Bom 400; Kasiwar Dey v. Asvini Kumar ILR, (1920) Cal 241; Roy Kishenji v. Sri Kishen ,
AIR 1940 Cal 26: (1939) 2 Cal 370; Ramchandrudu v. Bakraj Gulabchad , AIR 1952 Mad 826 [LNIND 1952 MAD 33]: ILR 1952 Mad 489.
374 . AIR 1956 MB 208.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Questions to be Determined by Court Executing Decree

S. 47. Questions to be determined by the Court executing decree.

(1) All questions arising between the parties to the suit in which the decree was passed,
or their representatives, and relating to the execution, discharge or satisfaction of
the decree shall be determined by the Court executing the decree and not by a
separate suit.

375 [* * *]

(2) Where a question arises as to whether any person is or is not the representative of a
party, such question shall, for the purposes of this section, be determined by the
Court.

376 [Explanation
I .For the purposes of this section, a plaintiff whose suit has been
dismissed and a defendant against whom a suit has been dismissed are parties to
the suit.

Explanation II .(a ) For the purposes of this section, a purchaser of property at a

sale in execution of a decree shall be deemed to be a party to the suit in which
the decree is passed; and

(b ) All questions relating to the delivery of possession of such property to such

purchaser or his representative shall be deemed to be questions relating to the
execution, discharge or satisfaction of the decree within the meaning of this
section.]

STATE AMENDMENT
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Uttar Pradesh. The following amendments were made by Uttar Pradesh Act No. 57 of
1976, S. 3 (w.e.f. 1-1-1977) .

In its application to the State of Uttar Pradesh, Explanation II as inserted by

Uttar Pradesh Act 24 of 1954 shall be omittedu.P. Act 57 of 1976, S. 3 (w.e.f.
1-1-1977).

1. Changes in the section. This section corresponds with section 244 of the Code of
Civil Procedure 1882 (now replaced by Civil Procedure Code, 1908) except in the following
particulars:

(i) Sub-clauses (a) and (b) of section 244, which provided for the determination of
questions regarding the amount of mesne profits and interest in execution proceedings
have been omitted, as it was deemed expedient that such questions should be determined
by the decree and not in execution. 377 (ii) The words or to the stay of execution thereof
which occurred in s 244 after the words, execution, discharge or satisfaction of the decree
have been omitted in the present section. 378

(iii) Sub-section (2) was introduced in 1908. It gave legislative sanction to the practice
followed by the courts under the Code of Civil Procedure 1882. 379

(iv) Under the old s 244, the court executing the decree had the option when a question
arose as to who was the representative of a party, itself to determine the question or to stay
execution until it was determined by a separate suit. Sub-section (3) of the present section
renders it obligatory on the executing court itself to determine the question, as it was
considered inexpedient that separate suits should be instituted for the decision of such a
question. 380 (v) The explanation, as it stood until the Amendment Act, 1976 was
introduced in 1908 to resolve the conflict of decisions noted in the commentary under the
head Explanations I and II: deemed parties.

(vi) The Amendment Act, 1976 omits sub-s (2). That sub-section was as follows:

(2) The court, may, subject to any objection as to limitation or jurisdiction, treat a
proceeding under this section as a suit or a suit as a proceeding and may, if necessary,
order payment of any additional court-fees.

The omission of this sub-section was made in consequence of the change made in the
definition of the word decree in s 2 (2), the result to which was that a determination of any
question within this section would no longer be regarded as a decree. It would be
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incongruous after that change to permit the court to convert an application into a suit and
order payment of court-fees and yet say that a determination therein is not a decree.

(vii) The Amendment Act, 1976 substitutes:

Explanations I and II for the explanation as it stood till then. The explanation prior to 1976
read as follows:

Explanation For the purposes of this section, a plaintiff whose suit has been dismissed, and
a purchaser at a sale in execution of the decree are parties to the suit.

The amendment resolves controversies as regards the position of a purchaser and as

regards the question of recovery by him of the property purchased by him in execution
sale. The controversies on both the points are noted below under the head: Explanation I
and II, deemed parties to the suit, etc.

2. General impression about execution of decree. It is a general impression prevailing

amongst the litigant public that the difficulties of a litigant are by no means over on his
getting a decree for immovable property in his favour. Indeed, his difficulties in real and
practical sense, arise after getting the decree. Presumably, to tackle such a situation and to
allay the apprehension in the minds of litigant public that it takes years and years for the
decree holder to enjoy fruits of the decree, the legislature made drastic amendments in
provisions in the aforementioned rules, particularly, the provision in r 101 in which it is
categorically declared that all questions including questions relating to right, title or interest
in the property arising between the parties to a proceeding on an application under r 97 or
r 99 or their representatives, and relevant to the adjudication of the application shall be
determined by the court dealing with the application and not by a separate suit and for this
purpose, the court shall, notwithstanding anything to the contrary contained in any other
law for the time being in force, be deemed to have jurisdiction to decide such questions.
On a fair reading of the rule it is manifest that the legislature has enacted the provision
with a view to remove, as far as possible, technical objections to an application filed by the
aggrieved party whether he is the decree holder or any other person in possession of the
immovable property under execution and has vested the power in the executing court to
deal with all questions arising in the matter irrespective of whether the court otherwise has
jurisdiction to entertain a dispute of the nature. 381

3. Power of Court. Under s 47 of the Code of Civil Procedure, all questions arising between the
parties to the suit in which the decree was passed or their representatives relating to the
execution, discharge or satisfaction of decree have to be determined by the court executing
the decree and not by a separate suit. The powers of the court under s 47 are quite
different and much narrower than its powers of appeal, revision or review. A first
Appellate Court is not only entitled but obliged under law to go into the questions of facts
as well as like trial court apart from questions of law. Powers of second Appellate Court
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under different statutes like s 100 of the Code of Civil Procedure, as it stood before its
amendment by Central Act 104 of 1976 with effect from 1 February 1977, could be
exercised only on questions of law. Powers under statutes which are akin to s 100 of the
Code of Civil Procedure, as amended and substituted by the aforesaid Central Act, have been
further narrowed down as now in such an appeal only substantial question of law can be
considered. The powers of Supreme Court under Art. 136 of the Constitution of India, should
not be exercised simply because a substantial question of law arises in a case, but there is
further requirement that such question must be of general public importance and it
requires the decision of this court. Powers of revision under s 115 of the Code of Civil
Procedure cannot be exercised merely because the order suffers from legal infirmity or
substantial question of law arises, but such an error must suffer with the vice of error of
jurisdiction. Of course, the revisional powers exercisable under the Code of Criminal Procedure
1973, and likewise in similar statutes stand on entirely different footing and is much wider
as there, the court can go into correctness, legality or propriety of the order and regularity
of proceedings of the inferior court. It does not mean that in each and every case the
revisional court is obliged to consider question of facts as well like a first Appellate Court,
but the court has the discretion to consider the same in appropriate cases whenever it is
found expedient and not in each and every case. Discretion, undoubtedly, means judicial
discretion and not whim, caprice or fancy of a judge. Powers of review cannot be invoked
unless it is shown that there is error apparent on the face of the record in the order sought
to be reviewed.

Where a decree is passed in respect of the same property which is mentioned in the
schedule of the plaint, objection of the judgment debtor for correction of the decree is
untenable, more so when application for correction of decree has been rejected up to the
stage of appeal 382

The exercise of powers under s 47 of the Code of Civil Procedure is microscopic and lies in a
very narrow inspection hole. Thus, it is plain that the executing court can allow objection
under s 47 of the Code of Civil Procedure to the executability of the decree if it is found that the
same is void ab initio and null, apart from the ground that decree is not capable of execution
under law either because the same was passed in ignorance of such a provision of law or
the law was promulgated making a decree inexecutable after its passing. 383

4. Inconsistency between judgment and decree. It is the settled proposition of law that
while there is some inconsistency between the judgment and the decree, the real
intendment of the result of the suit should be gathered by re-conciliation between the
judgment and the decree. Neither the decree nor the judgment should be read in isolation,
but in combination. The executing court is duty bound to give effect to the decree in its
substance and should not pass any order rendering the judgment a futile attempt.

Where the executing court failed to take into consideration the interest imposed by the trial
court in passing the preliminary decree followed by final decree, decree holder was directed
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to submit a draft calculation sheet to assist the executing court and writ execution was to
be issued after proper calculation. 384

5. Bar of suit. The bar for suit under s 47 of the Code of Civil Procedure could be applicable
only in cases where the question can be determined by the court executing the decree.
Once it is clear that the civil court is not the court executing the decree for partition of the
estate which is subject to the assessment for payment of revenue to the government, the
bar provided under s 47 of the Code of Civil Procedure for an independent suit by the parties to
the decree cannot come in the way of the party approaching the court with such suit
regarding the grievance. Undoubtedly, the scope of such suit will be subject to the other
laws which may bar the jurisdiction of the civil court to entertain the suit. For example, in
cases of the questions to be determined under the said Act, certainly the civil courts will
have no jurisdiction to entertain any suit in that regard. It will be exclusively for the
competent authority under the said Act to decide those issues in view of the provisions of
ss 36A and 36B of the said Act read with the decision of the Supreme Court in Shevantabai
Maruti Kalhatkar . 385

6. Execution petitionsigning of. It is not necessary that the decree-holder sign execution
petition but the court should be satisfied that the person signing the execution petition was
acquainted with the facts of the case. 386 The signing of the execution petition is a
ministerial act and that can be done by any person who is acquainted with the facts of the
case. 387 It is very clear that the execution petition presented by the secretary of the trust is
properly and legally presented before the court. It is not necessary that all the trustees and
decree-holders should sign the execution petition. 388

7. Executing Court cannot go behind decree. The executing court has no jurisdiction
to go behind decree. The executing court has no right to vary terms of the decree, however
erroneous it may be in execution proceedings. Thus, where the trial court passed decree
for payment of principal amount with simple interest only, the executing court cannot
grant compound interest, thereby varying terms of decree. If however, the order is passed
by the executing court construing simple interest as compound interest, the revision
against such order is maintainable. 389

In the execution of a decree for payment of money, the decree was silent with respect to a
payment of interest. It was held that the executing court cannot go beyond the decree and
award interest. 390

In the execution proceeding relating to a decree for regularisation of services of teacher

and for payment of arrears of salary, a direction by the Executing Court to pay arrears of
salary as per Government Scale was held by Supreme Court to be not justified on the
ground that the Executing Court is required to execute the decree as made and it has no
jurisdiction to widen its scope or add to it unless a specific question is raised relating to
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discharge or satisfaction of the decree as envisaged in s 47 of the Code. 391 Altama Kabir,
J., speaking for the Division Bench in the above case, observed as follows:

When there were conflicting claims regarding the salary payable to the Respondent No. 1,
the said respondent ought to have taken steps to amend the prayers in the plaint so that
proper relief could be provided to her. The same not having been done, the Executing
Court had no jurisdiction to go beyond the decree as passed, despite the fact that the Trial
Judge had noticed the dispute and had even decided the same. 392

In a money decree, the Court granting decree had prescribed the mode of recovery. It was
held by the Supreme Court that the order of the Executing Court altering the manner of
recovery of the decretal amount was erroneous and not sustainable. 393

8. Execution petition by trustfiling of. No doubt, s 47 of the Indian Trusts Act, 1882
prohibits the trustees from delegating the powers, but the explanation to s 47 of the Indian
Trusts Act, 1882 reads as follows:

The appointment of an attorney or proxy to do an act merely ministarial and involving no

independent discretion is not a delegation within the meaning of this section.

It means that ministerial acts can be performed by a person who is authorised by the
trustees to do the needful. Learned counsel for the petitioners has argued that no such
authorisation is filed by the secretary before the court to show that he can sign the
execution petition on behalf of the trust. However, when the court was satisfied that the
secretary was acquainted with the facts of the case and could file proceedings, there does
not seem to be any substance in this contention. Act ual authorisation signed by all the
trustees may not be there on record, but if the trust-deed provided such delegation of
powers, then the secretary can definitely file execution petition before the court. 394

On reading the provisions of s 47 of the Indian Trusts Act, 1882 and the provisions of O 21, r
11(2) of the Code of Civil Procedure together, it is very clear that the court before which
execution petition is filed has to satisfy itself with the authority of the person who has filed
the execution petition. That has happened in this case and, therefore, no objection can be
raised on this point.395

It is very clear that the execution petition presented by the secretary of the trust is properly
and legally presented before the court. It is not necessary that all the trustees and decree-
holders should sign the execution petition. 396

9. Decree in nullity. In an application under s 47, the question that a decree is not
executable being a nullity can be raised, and the executing court can decide the question. In
such cases, the question of acquiescence will not be relevant. A decree which is a nullity in
the eye of law is no decree, and hence even by consent of the parties, such a decree cannot
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be executed by the court. Even if the judgment-debtor did not raise the question, but for
this reason it cannot be denied the remedy available to it under s 47 of the Code of Civil
Procedure. If the court finds that the decree is a nullity, as contended by the judgment-
debtor, the court cannot proceed to execute it, and it is the duty of the court to hold that
the decree is not executable. 397

Any objection that a decree was incorrect in law cannot be taken in an execution
proceeding. A decree even if erroneous is still binding between parties. However, when a
decree is a nullity i.e., where the same has been made by a Court which had no inherent
jurisdiction to make it, its nullity can be set up in an execution proceeding, as lack of
jurisdiction goes to the root of the competence of the Court. Refusal of the executing
Court to execute such a decree will not amount to going behind the decree. 398

A final decree drawn against a deadman is a nullity and cannot be executed against his legal
representatives. However, in the case at hand, the plea was not taken by the legal
representatives in their first petitioner and raised the plea of the death of the defendant
before final decree. In the circumstances, the plea was held to be not tenable. 399

10. To what decrees the section applies. This section presupposes the existence of a
decree which is capable of execution. It does not apply to cases where the decree sought to
be executed is either a nullity or declaratory in character. A decree is a nullity when it has
been passed by a court having no jurisdiction or against a dead person. A decree passed by
a court without jurisdiction is no decree and therefore falls outside the scope of this
section. 400 Inherent lack of jurisdiction is to be distinguished from lack of territorial or
pecuniary jurisdiction. In the former case, the court entirely lacks jurisdiction either
because the subject matter is foreign to its jurisdiction or the defendant was dead, when
the decree was passed or some such ground by reason of which the court could not have
seizing of the case. 401 If the defendant dies before the suit is concluded and yet a decree is
passed without bringing his legal representatives on record, the decree is a nullity and
incapable of execution. If, in such a case, an application to execute the decree against a
legal representative is made, its validity can be challenged in execution proceedings. 402 If a
property is taken in execution, such a legal representative can sue to recover it. 403 At one
time, the view taken by several High Courts was that the question relating to the validity of
a decree is not one pertaining to its execution, discharge or satisfaction. Hence, such a
question was outside the scope of this section and should be tried in a suit and not in
execution proceedings. 404 However, the Supreme Court in Kiran Singh v. Chaman Paswan ,
405 held that though a court executing a decree cannot go into the question of correctness

or legality of a decree, it can entertain the objection that it is a nullity on the ground that
the court which passed it had no jurisdiction to pass it. 406 This is not going behind the
decree, since, the decree being null and void, there is no decree at all. 407 The next question
is whether a suit which raises the question of nullity of a decree is barred under this
section. There is authority for the view that it is. 408 The High Court of Patna has held that
where property was sold in execution of a decree but at the time of the sale, the title
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thereto was not in the judgment-debtor but in another, the sale was a nullity. Accordingly,
the successor-in-title could challenge such a sate by an application under this section and
not by a suit. 409 If the court which passes the decree lacks inherent jurisdiction, the decree
would obviously be a nullity and can be challenged at the stage of execution. In such a
case, the execution court does not go behind the decree, since there is no decree at all.
Once the question of want of jurisdiction is raised but overruled, it cannot be raised again
and would be treated inter parties that the court had inherent jurisdiction. 410 Question of
validity of decree is not one relating to its discharge or satisfaction, and cannot be gone
into by executing court. 411 If a court grants a decree even when the suit is barred by time,
the court would be committing an illegality and the remedy of the aggrieved party is to get
it set aside by preferring an appeal against it. So long as the court is having jurisdiction, the
decree cannot be ignored even if it is erroneous and the only way of correcting it is by
preferring an appeal or revision. It is not open to a party to contend in another suit or in
collateral proceedings that a decree passed against him is void, merely on the ground of
illegality. The execution court cannot go beyond a decree. 412 Delivering property not
covered by the decree is action in excess of the decree. In such a case, judgment-debtor
should apply under s 47 and should not file a separate suit. 413 A question as to the identity
of the property in respect of which the decree is sought to be executed, cannot be gone
into by the executing court, under s 47, according to the Bombay High Court. 414 The ratio
of these decisions is that a party to a decree has not merely the right to raise the objection
of nullity of a decree in execution proceedings but is bound to do so. Consequently, an
order for execution operates constructively, as res judicata . The bar to a separate suit arises
not under this section but under s 11 on the ground that such a plea is one which a party
not merely might but ought to have put forward in execution proceedings.

Declaratory decrees do not fall within this section for the reason that rights declared by
such decrees can only be enforced by a suit. 415 But a decree passed in terms of an award,
providing that on the happening of an event, the vendor shall be entitled to take back
possession of the property does not make the award declaratory and therefore
inexecutable. 416 A declaratory decree does not bar a subsequent suit for possession.
Section 47 does not bar the suit, because a declaratory decree could not have been
executed. 417 A decree for specific performance is not to be construed as declaratory
merely because it does not provide when the purchase amount has to be paid and is
executable. 418 Similarly, the fact that the decretal amount is not mentioned but which can
be ascertained on the construction of the decree, does not make it incapable of execution.
419 Proceedings taken pursuant to a preliminary decree are proceedings in a pending suit

and do not fall within this section. This is also so, where the decree is partly preliminary
and partly final in so far as it relates to matters which are preliminary. 420 A decree passed
on an award in a dispute relating to division of properties under Aliyasanthana law is in the
nature of the preliminary decree. Hence, an application to carry it out is a proceeding in a
suit. 421 A partition decree entitling the parties to be put in possession of allotted
properties on payment of necessary court fees will not be hit by this section. 422 A final
decree was passed in a suit for partition. Subsequently, there was interference with
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plaintiffs possession over the allotted portion. It was held that suit filed by the plaintiff for
injunction to restrain the defendant from interference with possession was not barred.
Subsequent acts of the defendants give rise to fresh cause of action. 423 The judgment of
the trial court, and the preliminary decree based on it, mentioned the exclusion of certain
properties from partition. In appeal, the High Court did not set aside that particular
direction. It was held that the question of exclusion of that property could not be raised at
a subsequent stage before the executing court. 424 But a decree directing the defendant to
pay maintenance and charging it on the property is a composite decree and is executable.
425 Question whether suit premises falls within slum area is a mixed question of law and

fact. It cannot be raised for the first time, in execution proceedings. 426 Proceedings under s
21 of the Delhi Rent Control Act, 1958, are in the nature of execution provisions of the Code of
Civil Procedure are applicable.427 The question whether a decree is executable or not is to be
decided by the executing court. 428 The objectors to the execution of the decree of the
subordinate judge (as passed in appeal against dismissal of the title suit) raised the plea that
the interest of one minor plaintiff who attained majority during pendency of suit could not
be represented by the holder of power of attorney on behalf of all the plaintiffs. This point
(though raised by the party concerned) was not considered by the subordinate judge.
However, the High Court, in second appeal, did not enter into the question on the ground
that that was a question of fact. The objectors grievance on this score did not appear to be
unfounded. But nothing could be done in this regard in the execution proceeding, since
that would definitely amount to interfering with the decree as passed by the subordinate
judge and as confirmed by High Court. The objectors might seek their relief in this regard
in some other proceeding, if permissible by law. 429 Decree for eviction, on ground of
default in payment of rent, was based on evidence. There was absence of findings
regarding the ground of eviction in the judgment and decree. It was held that this did not
make the decree void or inexecutable.

In the case of a declaratory decree, the successful party cannot be allowed to suffer when
the decision of the Civil Court, which has attained finality is not honoured by the
judgment-debtor. Thus, where employees of a private College recognised and aided by
Government of West Bengal were granted a decree declaring them class-III employees
entitled to benefits and privileges attached to those posts, they were within their rights to
move the High Court under Art. 226 of the Constitution. It was held by the Supreme Court
that the High Court, while granting the reliefs prayed for in the writ petition was not act
ing as an executing Court. 430

A party cannot suffer on account of the lapse of the court and a party cannot be wronged
for an act or omission of the court. If a party proves its case, it is the duty of the court to
grant relief. The court cannot afford to be unmindful to the ground of eviction, duly
proved in evidence. An absence of judicial finding in spite of evidence to substantiate the
ground of eviction, cannot render a decree void. 431 Judgment-debtor, in an Allahabad
case, objected to the execution of a money decree on the ground that he was a professional
decree-holder. But as no evidence was produced to support the objection, it was not
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entertained. 432 There are certain well-recognised exceptions to the ordinary rule that the
executing court is not entitled to go behind the decree. When the decree is a nullity or the
decree-holder has lost the right to execute the decree on account of a subsequent change in
the law or some subsequent development, then the executing court can take note of the
change in the situation and can refuse to execute the decree on that basis. The decree,
under execution was not only a nullity on the date it was passed, but had also been
rendered inexecutable on account of the subsequent order passed by the authority by
accepting the claim of the judgment-debtors to remain in possession of the land. Thus the
decree-holder had lost his right to recover possession of the land from the judgment-
debtors. Therefore, the rejection of an application filed under s 47, challenging the validity
and executability of the decree was illegal. 433 Where the executing court held that the
arbitrator had jurisdiction to pass the award and that the due notices were given to the
parties and reasonable opportunity was afforded, the omission of the reasons from the
award could not render it non est and a nullity. A decree which can be said to be non est
and a nullity is the one which a court having no jurisdiction to pass it, passed it, or it was a
decree against a dead person or against a person who, at no stage was legally present
before the court which passed the decree. 434 The executing court can very well decline to
execute a decree, if it is satisfied that it is a nullity. When it does so, it is not to be regarded
as going behind the decree, for the simple reason, that there is no decree at all to go
behind. 435

The question whether a particular decree is executable, falls within s 47. It is a question
relating to execution, discharge or satisfaction of the decree. 436 The question of
inexecutability of the decree is included within execution discharge or satisfaction of the
decree. Hence a dispute about second instalments not being paid is covered. 437 Eviction
decree was passed. Appeal was dismissed. Plea was taken that decree in revision was not
executable, as it was passed against a tenant who died. It was held that decree was
executable and was not a nullity. In the revision petition filed by S , the High Court was
not satisfied that there existed any ground warranting interference with the judgment and
decree passed by the Appellate Court below. The death of s did not, in any way, make the
judgment invalid, in as much as it was passed in a revision under s 115 of the Code of Civil
Procedure, in which the High Court could even suo motu call for the records and dispose of it
after examining them and satisfying itself that the order of the subordinate court did not
suffer from any infirmity specified in s 115 of the Code of Civil Procedure. The death of S did
not affect the revisional power of the High Court and therefore, the validity of the
judgment passed in revision could not be challenged before the executing court. 438 Under
State Financial Corporations Act, 1951, s 32, the district judge had no jurisdiction to allow
future interest while making the order. It is well-settled law that the executing court can go
into the question whether or not the decree, or order under execution, is without
jurisdiction and to refuse to execute the decree or order under execution is without
jurisdiction and to refuse to execute the decree or order in case it is found to be without
jurisdiction. This is because a decree or order passed by a court without jurisdiction, is a
nullity and its invalidity can be set up whenever and wherever it is sought to be enforced or
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relied upon. Under the circumstances, the court below erred in rejecting the petitioners
contention about want of jurisdiction to avoid future interest.439 Execution application did
not mention date of decree, nor did it specify movable or immovable property sought to
be attached. Judgment-debtor did not raise objection as to existence of fatal defects in the
application for execution of decree before executing court or Appellate Court. It was held
that such objection would not be allowed to be raised in revision. 440 A decree for specific
performance of an agreement to sale land, directed division of the plot into two portions
and then sell, subject to permission of the local authority. Judgment-debtors application
for such permission was refused. It was held that the judgment-debtor could seek a
declaration that the decree had become inexecutable in the circumstances. He need not
wait till the decree-holder applied for execution. 441 When the execution court allowed the
execution petition of the mortgager for delivery of possession and set the heirs of the
mortgagee ex parte , the court could not, on basis of the office note, that final decree is not
passed, suo motu review and set aside its earlier order for delivery of possession and
dismiss the execution petition. 442 The appellant was the owner of the suit property. His
title suit against his tenant for ejectment and mesne profit was decreed, subject to payment
of compensation for the structure raised by the tenant. The appellant filed a second titled
suit not only against the original title suit but also against the respondent, who is alleged to
be a sub-tenant. The respondent pleaded that he was a sub-tenant of the original tenant,
that he had acquired title to the site and structures either by purchase from the tenant or
by adverse position and that the decree in the earlier suit had become barred by limitation.
The question before the Supreme Court was, whether the decree in the earlier suit bars the
subsequent suit. The Honble Supreme Court observed that in view of provisions of rr 35
and 36 of O 21, of the Code of Civil Procedure and Art. 136 of the Schedule of the Limitation
Act, 1963, no independent suit for recovery of possession of the property, which is the
subject matter of the decree, would lie. All questions arising between the parties or their
representatives, relating to execution or satisfaction of that decree, should also be
determined by the executing court and not by a separate suit. However, the condition
precedent for applicability of the said provision is that a person in possession should have
derivative title of tenancy rights of the demised property, that is, the subject matter in
execution through the judgment-debtor in the suit.443

By reasons of his own plea of ownership by purchase or adverse possession, it was not
open to him to claim any right as a tenant under the appellants tenant or as a sub-tenant of
the appellant. His tenancy right with the appellants tenant, having been merged into his
ownership right, he denied himself of the right under s 47 read with O 21, r 36 of the Code
of Civil Procedure.

A decree for possession was passed ex parte. The execution was struck off, in full
satisfaction, on 26 July 1965. Thereafter, the ex parte decree was set aside. The suit land was
again found to be in possession of the defendant. After contest, another decree was
passed. When that decree was sought to be executed, it was contended on behalf of the
judgment-debtor that the decree was not executable because the possession had been
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already delivered under the first decree. It was held that the objection could not be
sustained. What was now being executed was not the same decree. Once an ex parte decree
has been set aside, it becomes non est and it is only the subsequent decree, passed after
contest, which is to be treated as (the) decree in the suit and it is that decree alone which
can be executed. 444 Decree-holder purchased certain properties in court auction.
Application was made by him for possession. Plea by judgment-debtor was, that, he being
one of the co-owners, the decree-holder was entitled only to symbolic possession and not
to khas possession. It was held that the judgment-debtors entire right in the property
having been sold in auction, he could not resist delivery of possession to the decree-holder,
auction purchaser. The judgment-debtor could, but for s 47, have instituted a suit for
declaration of the right and also for consequential relief. Such rights of the judgment-
debtor can be agitated, only in a proceeding initiated under s 47 and not otherwise. The
judgment-debtors rights in properties in their entirety had been sold in public auction. The
decree-holder purchaser, thus, stepped into the shoes of the judgment-debtor. Persons
who can raise any objection in regard to the delivery of khas possession can, at best, be the
persons who could claim to be the co-owners along with the decree-holder purchaser. 445
The plaintiffs sued for their title to the disputed land and for restraining the principal
defendants from disturbing possession therein. The suit was dismissed by the trial court,
but allowed by the subordinate judge. Defendants appeal from his judgment and decree
was dismissed by the High Court. Plaintiffs put the decree of subordinate judge to
execution for recovery of possession of suit lands after evicting the defendants therefrom,
and for recovery of costs, etc. It was held that this execution petition must be taken to be
an application for execution of the High Courts decree. There was no necessity for
amending the execution petition. 446 Where there is obstruction to the delivery of
possession of premises and application is made by the landlord for removal of the
obstruction, the executing court can adjudicate the matter, even if the obstruction is by a
person who is independently in possession of the premises. The Amendment Act of 1976
has inserted (in O 21), new rr 98 to 104, in conformity with the legislative policy of
entrusting the determination of all questions including question as to the title of the
concerned party, to the executing court. The scope of the proceeding has been widened so
as to include all questions arising between the parties and relevant to the adjudication of
the application. 447 A sale held without drawing up a proclamation under O 21, r 66, is
void. Judgment-debtors application to challenge the sale cannot be dismissed merely
because it is filed under O 21, r 90 instead of under s 47. 448 Decree was passed for
eviction and arrears of rent. Decree was executed against the property of intervener in that
eviction suit. Intervener filed a separate suit for declaration of title, confirmation of
possession and permanent injunction against decree-holder. It was held that though no
prayer for conversion of the suit into proceeding under s 47 had been made, such an order
could be made under cl 18. 449

11. Section to be construed liberally. It is well-settled that no suit will lie on an

executable judgment. The only remedy on such a judgment is by way of execution. 450 The
section prohibits any relief being granted in a separate suit which will interfere with the
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conduct of proceedings by the court executing the decree. 451 The section lays down the
principle that matters relating to the execution, discharge or satisfaction of a decree and
arising between the parties including the purchaser of a sale in execution should be
determined in execution proceedings and not by a separate suit. It matters not whether
such a question arises before or after the decree has been executed. 452 The object of the
section is to provide a cheap and expeditious procedure for the trial of such questions
without recourse to a separate suit and to check needless litigation. This was what was
expressed by the Privy Council in regard to the Codes of 1861 and 1882. 453 In conformity
with these pronouncements a liberal construction has been consistently placed upon the
section. 454 Accordingly, the court could convert till recently a suit which would be hit by
this section into a proceeding under it and vice versa. 455

On the other hand, the conditions which bar a separate suit must not be lost sight of. This
conditions refers:
(a) to the questions; and
(b) to the parties.

The questions must relate to the execution, discharge, or satisfaction of the decree. The
parties must be the parties to the suit or their representatives. If both these conditions are
fulfilled, the question must be determined in execution proceedings and a separate suit will
be barred.

Altering the terms of the decree must be clearly understood in contrast of construing a
decree or interpreting a decree or giving clarity to its terms and conditions. In the garb of
the latter, the court cannot create a new decree which is neither intended nor passed by the
court of competent jurisdiction. Executing court can provide clarity, interpret or construe
the decree, while keeping the decree as passed by the court of competent jurisdiction,
intact and undisturbed. While exercising its jurisdiction, if the executing court in the guise
of these ingredients materially alters the terms and conditions of the decree to the
prejudice of any of the parties to the decree, which ought to have, if at all, falls in the
domain of courts of competent jurisdiction, i.e. appellate or the court that passed the
decree, certainly the executing court would outgress its jurisdiction as an executing court.

Permitting an executing court to alter the terms of the decree, would be opposed to all
settled canons of civil jurisprudence. A decree which has been passed and has not be
assailed in the regular appeals, which were available to the parties against whom the decree
was passed, such party cannot be permitted to abuse the process of law before the
executing court to alter the decree which has attained finality in all respects. 456

A decree was held to be inexecutable on the grounds of being without jurisdiction in view
of interpretation of the then prevailing law. The legislature, subsequently clarifying its
intention, conferred jurisdiction on such courts with retrospective effect. Such a decree
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does not become extinct but remains only dormant which would be revived as a result of
amendment and would become executable. 457 It is settled principal of law that it is not
incumbent upon the executing court that it must put to trial every objections which are
filed in any execution proceedings, even if prima facie they appear to be frivolous,
vexatious and are only intended to delay the execution and frustrate the procedure of law
or where it amounts to an abuse of the process of the court. 458 Unnecessary prolongation
of litigation sometimes results even in frustrating the decree itself. Such attempt on the
part of the objector to frustrate a decree is a mischief which has to be prevented by due
process of law and expeditious decision of such ill-founded and frivolous objections would
also be in the interest of justice and within the permissible field of jurisdiction of the
execution. 459 In cases where all sorts of mischievous and dishonest tactics are resorted to
in order to delay or defraud the execution, the executing courts must be absolutely firm
and ruthless in stopping such unhealthy practices. This is absolutely essential because
otherwise the rule of law would not only be set but it would virtually nullify and neutralise
the orders of competent courts. 460 Opportunity to object to executability of the decree
could be taken only once and repeated applications are unwarranted. 461 It is a settled
proposition that the execution court cannot permit execution of a decree different from
the decree passed by the appropriate competent court. By amendment of the execution
petition, the opposite party no 3 inserted only that description which was given in the
house rent claim petition and in respect of which the house rent controller passed the
order of eviction. It appears that original execution petition did not contain any detailed
description of the premises in question. The decree-holder opposite party no 3 did not
change or alter or substitute any description, but merely supplied the description to rectify
an omission. If the decree-holder had sought to introduce a description different from the
description given in the house rent controller petition, the judgment-debtor petitioner
might have a legitimate grievance. 462 Law is well-settled that an executing court cannot go
behind the decree except when the decree is a nullity or without its jurisdiction. 463 But if
the executing court has gone or travelled beyond terms of the decree and has set up a new
case, which is not the case of the party, then nothing could prevent the High Court from
exercising its revisional jurisdiction in either setting aside the said decree or correcting its
jurisdictional errors. 464 Mere use of the words struck off in full satisfaction would not
mean that the decree has been satisfied and no further execution can take place. 465 A
question which could not have been raised as defence in the suit cannot be raised after the
decree is passed. Decree, as defined in s 2 (2) of the Code of Civil Procedure, means the formal
expression of an adjudication which, so far as regards the court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in the
controversy in the suit.

Once it is so determined and expressed formally in decree, setting up a new case or right
for investigation in execution thereof would amount to going behind the decree. 466

An executing court has jurisdiction while executing the decree to examine the executability
of the decree. 467 So long as on the face of the decree a partner of a firm is the decree-
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holder, the executing court cannot refuse to disburse the amount deposited by the
judgment-debtor to the certified decree-holder on the allegation that decree was really in
favour of the firm, hence all the partners are entitled to the decretal amount. 468 Non-
impleadment of judgment-debtors who have no interest in the case will not invalidate the
execution proceedings. 469 The questions to be determined by a court dealing with a
preliminary decree, before passing a final decree, may not be the one under s 47 but still,
the transfer of decree by assignment and writing is covered by O 21, r 16 of the Code of
Civil Procedure for the purpose of execution. 470 In case of a joint decree where the shares of
the parties are distinct or separable, even though some of the decree-holders have
transferred their shares to the judgment-debtor, the decree does not become inexecuteable
as a whole, but can be executed by one of the decree-holders under the provisions of O
21, r 15 of the Code of Civil Procedure at least to the extent of the share of the decree-
holder.Where in the decree, the share of the plaintiffs have not been specified and it was a
joint decree passed in favour of the decree-holders, such a decree could be executed as a
whole by one of the joint decree-holders, specially when the other decree-holders who
have allegedly transferred their shares in the property did not come to oppose the
application or denied that the same were not for their benefit. 471

12. Transfer of execution to Collectoreffect. In a suit for partition, once the court
passes the decree declaring shares of the parties in an undivided estate assessed to the
payment of revenue to the government and orders division and separate possession of
such estate in accordance with the shares so declared, then the court is enjoined to direct
such partition or separation be effected by the Collector or any Gazetted Officer
subordinate to Collector deputed by him in that behalf. Further, in order to give
meaningful effect to such declaration and directions issued in terms of s 54 read with O 20,
r 18(1) of the Code of Civil Procedure, the court is further enjoined to send the relevant papers
to the concerned Collector or Gazetted Officer. Once the papers are transmitted to the
revenue officer, the court passing the decree for partition under O 20, r 18(1) of Code of
Civil Procedure becomes functus officio in relation to the decree for partition passed by it and
all further proceedings for the execution of such decree are to be carried out by the
concerned revenue officer. The civil court is not the executing court for the purpose of
execution of the decree for partition of the estate which is subject to the assessment for
payment of revenue to the government. Being so, the question of approaching the civil
court under s 47 of the Code of Civil Procedure with the grievance regarding non-compliance of
such decree or acts in contravention thereof or in violation of law by the revenue officer in
the course of execution of such decree does not arise at all. Certainly, the provisions of O
21 of the Code of Civil Procedure would not be attracted in such cases as the execution of a
decree is not by the civil court. Being so, neither the provisions of s 47 nor those of O 21
can be of any help in such cases. Further, the matters pertaining to the execution of such
decrees cannot be dealt with under the exercise of inherent powers under s 151 of the Code
of Civil Procedure. Undoubtedly, therefore, it can be said that the grievance relating to refusal
of the revenue officer to execute the decree and therefore, direction for the execution to
be carried out in terms of the decree, i.e. , as per the declaration of shares under O 20, r 18
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of the Code of Civil Procedure can be entertained by the civil court in exercise of its inherent
jurisdiction to pass order under s 151 of the Code of Civil Procedure for compliance of the said
declaration, i.e. , for execution of the decree in accordance with the terms thereof.
Therefore, in cases of contravention of provisions of law or transgression of law or non-
enforceability of the decree for partition on account of events occurring subsequent to the
passing of such decrees or in relation to the similar such grievances, the limited control
which can be exercised by the civil courts can be only by way of an independent suit. The
bar for suit under s 47 of the Code of Civil Procedure could be applicable only in cases where
the question can be determined by the court executing the decree. Once it is clear that the
civil court is not the court executing the decree for partition of the estate which is subject
to the assessment for payment of revenue to the government, the bar provided under s 47
of the Code of Civil Procedure for an independent suit by the parties to the decree cannot come
in the way of the party approaching the court with such suit regarding the grievance in
relation the execution of the partition decree. 472

13. And not by a suitwhether objection to execution can be raised by way of

defence. The section provides that all questions arising between the parties to the suit in
which the decree was passed and relating to the execution, discharge or satisfaction of the
decree, shall be determined by the court executing the decree and not by a separate suit.
The words and not by a separate suit have given rise to the question whether, if a party to a
suit fails to raise an objection to execution in execution proceedings, he may raise it by way
of defence, in a suit brought against him. In Bhiram Ali v. Gopi Kanth , 473 the High Court
of Calcutta held that he is entitled to raise the objection by way of defence. The ground of
the decision was that what is prohibited by the section is the determination of question
relating to execution by a separate suit and not their determination in a separate suit.
Bhiram Ali s case and the Calcutta cases which followed it, have been overruled by a later
full bench ruling of the same High Court in Lakshman Chandra v. Ramdas Mandal. 474 The
grounds of the decision are:
(i) that the words shall be determined by the court executing the decree amount to a
direction that the executing court alone shall determine questions relating to the
execution, discharge or satisfaction of the decree, thus giving the court executing
the decree exclusive jurisdiction to determine such questions; and
(ii) that the prohibition conveyed by the words and not by a separate suit is a provision
in aid of the previous direction.

In the full bench case, the decree was satisfied by an adjustment, but the adjustment was
not certified to the court as required by O 21, r 2. The decree-holder applied for execution
and the judgment-debtors property was put up for sale and purchased by the decree-holder
himself. The decree-holder afterwards sued the judgment-debtor for possession. The
judgment-debtor contended that the decree had been satisfied and that the sale was
therefore fraudulent and void. It was held that the judgment-debtor was precluded by this
section from raising this defence. The full bench held that it did not make any difference
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whether the objection was raised by the judgment-debtor by a suit of his own or by way of
defence in a suit brought against him. Order 21, r 2, is not limited to the particular
judgment-debtor who makes the adjustment; and one judgment-debtor cannot plead in
defence an uncertified adjustment or payment made by another judgment-debtor. 475
Similarly, if A obtains a decree against B as the legal representative of C, and in execution
of that decree, property alleged to be belonging to the estate of C is sold and purchased by
P and P sues for possession, B is barred from contending that the property belonged to
him and did not form part of Cs estate. 476

Bhiram Ali s case has been followed by the Madras High Court in several decisions. 477 The
Madras decisions require reconsideration in view of the Full Bench decision of the Calcutta
High Court referred to above.

In an execution of a decree, where the Executing Court passed orders confirming auction
sale, the Andhra Pradesh High Court held that to get the order of auction and
confirmation of sale set aside, a separate suit is barred by s 47 and O 21, r 92 of the Code.
478

14. Compromise. The parties have the option to contest legal disputes or compromise
them prior to disposal of the suit during execution proceedings.

In the following sub-headings, such options of compromise between the parties and their
implications are considered.

(a) Decree on Compromise of Suit. If a suit ends in a compromise decree, a subsequent suit to
enforce a term in the decree, which related to a matter not raised by any of the issues in the
suit but was a consideration for the matter in suit and constituted a necessary and integral
part of the adjustment of claim in the suit is barred under this section. 479 But where the
compromise decree comprises matters outside the scope of the suit and there is no
operative clause therein relating to them, a suit with respect to them is not barred. 480

A suit to set aside a consent decree on the allegation that it was obtained by fraud or
misrepresentation is not barred, as such allegations do not relate to execution of the decree
but to the impeachment of the decree itself. 481

The consent decree cannot be defeated on the ground that the third party has been illegally
inducted by the judgement-debtor. The executing court will be fully justified in ignoring
the said transfer as completely null and void. 482

A Division Bench of the Delhi High Court has held that a settlement decree passed by a
Court on the basis of a compromise must be executed and should not be interfered with,
by modifying the decree or going behind the decree. Thus, where in a partition suit the
parties settled the dispute on terms and conditions specifically recorded in a settlement and
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a compromise decree was passed on the said terms and conditions, stay of sale of the
property on the ground that the appellant was prepared to pay the amount of Rs. 10 lacs to
the decree-holder to save the ancestral property cannot be allowed. 483

(b) Compromise Prior to a Decree. The discussion, thus far, has been with reference to
agreements relating to execution, discharge and satisfaction of a decree entered into after it
has been passed. But where such an agreement is entered into before the decree is passed,
the question has been discussed whether it could be set up in bar of execution. On that,
judicial opinion is divided. One of the earliest decisions on the question is that of the Full
Bench of the Bombay High Court in Laldas v. Kishendas , 484 wherein it was held that it
could be determined in execution. In Binoda v. Rajendra , 485 it was held by a Full Bench of
the Calcutta High Court that a court executing the decree could not go into an agreement
entered into, prior thereto, whether it related to the enforcement of the whole decree or its
satisfaction in part. This has been consistently followed in that court 486 and it has also
been observed that the remedy of the party aggrieved by a breach of the agreement was to
enforce his rights thereunder in a separate suit and move for an injunction restraining the
decree-holder from executing the decree. This view has been adopted by the High Courts
of Rangoon, 487 Lahore, 488 Nagpur 489 and Punjab. 490 In Madras, the question was
considered by a Full Bench in Chidambara v. Krishna , 491 wherein it was held by the majority
following the long-standing practice of the court 492 that a pre-decree agreement could be
pleaded in execution proceedings and that it fell outside O 21, r 2 as that was applicable
only to agreements entered into subsequent to the passing of the decree. The precise scope
of this decision was the subject matter of consideration in latter cases. 493 The question
was again considered by a later full bench of the same High Court, 494 which held that a
distinction should be made between an agreement which related to the mode of execution
or satisfaction of a decree and one which had the effect of rendering the decree nugatory
and inexecutable in whole or in part, and that while the former could be pleaded in
execution, the latter could not be. 495 This Full Bench decision of Madras High Court 496
was followed by the Punjab and Haryana High Court 497 in the recent past and it was held
that in execution proceedings initiated for the execution of decree pre-decretal decisions,
compromise or any arrangement could not be pleaded to defeat the execution. Where an
agreement made subsequent to the suit but before the decree was passed, constituted an
understanding that the decree, when passed, should not be executed, the agreement can be
pleaded in execution proceedings as it relates to execution. 498 But executability of
compromise decree not incorporating stipulation of executability in event of non-
compliance by parties does not strip the decree of its executability. 499 In Allahabad, the
trend of the authorities was in favour of the view that pre-decree agreements could be
pleaded in execution. 500 In Krishna Raj Trading Corporation v. Ram Saran , 501 that court has,
however, held on a review of the authorities that such agreements could not be pleaded in
execution. The High Court of Andhra Pradesh has held, following the decisions of the
Madras High Court, that pre-decree agreements could be set up in execution. 502 In
Ramasubbu v. Sankararam , 503 the High Court of Kerala has held that such agreements
could not be pleaded in execution but the question would appear to have been left open in
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a later decision. 504 The only remedy of a person who wishes to challenge a compromise
decree on the ground of fraud is to file a suit for setting aside the said decree. Such an
objection cannot be entertained during the course of execution proceedings. 505

In a case relating to specific performance of contract, the parties entered into a

compromise before decree, and a decree was passed in terms of the compromise. The
decree, as per terms of agreement, was executable within a period of one month. After
more than four years, the decree holder sought to execute the decree. The Jharkhand High
Court held that the execution proceeding was not filed in the Court which passed the
decree, and as such the executing Court was bound to confine itself within the scope of
the decree itself and had no jurisdiction to grant any extension of time for performance of
the contract under the decree. 506

Company A sought execution against Company B of a compromise decree. Under that

decree, Company B was to take over the entire shareholding of Company A in a detergent
company. But, before execution, the detergent company was ordered to be wound up.
Section 536(2) of the Companies Act, 1956 prohibits transfer of shares of a company which is
to be wound up. It was held that CompanyB could not be freed to pay for and purchase
the shares. A s application was not maintainable. 507 In a suit filed by the plaintiff for a
declaration that he was the owner of the property and not the tenant of the defendant, the
compromise decree was passed setting the question of ownership of the property. It was
agreed that the defendant was the owner of the property. Further, parties agreed that on
payment of a certain sum by the plaintiff, a reconveyance deed would be executed by the
defendant. The question of tenancy was also settled and the plaintiffs were required to pay
enhanced rent. It was held that, in essence, the compromise was relating to the subject
matter of the suit. Simply because the reconveyance was to be executed, it cannot be said
that it was a fresh contract capable of enforcement by way of a suit for specific
performance. As the compromise had merged into a decree, there was no separate
agreement in existence. The only thing existing was the decree, containing the compromise
agreement. Since this compromise agreement had ceased to exist, it could not be enforced
by way of a separate suit. The decree could be put to execution, if the defendant had failed
to execute it within the time mentioned in the compromise. 508

(c) Compromise of a Decree. The general power of deciding questions in relation to execution,
discharge or satisfaction of decree under s 47 can thus be exercised subject to the
restriction placed by O 21, r 2, including sub-r (3), containing special provisions relating to
payment of money due under a decree outside the court or in any other manner adjusting
the decree. The general provision under s 47 has, therefore, to yield to that extent to the
special provisions contained in O 21, r 2 which have been enacted to prevent a judgment-
debtor from setting up false or fabricated pleas so as to prolong or delay the execution
proceedings. 509

The expression or the decree of any kind is otherwise adjusted are of wide amplitude. It is
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open to the parties namely, the decree-holder and the judgment-debtor to enter into a
contract or compromise in regard to their rights and obligations under the decree. If such
contract or compromise amounts to an adjustment of the decree, it has to be recorded by
the court under r 2 of O 21. It may be pointed out that an agreement, contract or
compromise which has the effect of extinguishing the decree in whole or in part on
account of decree being satisfied to that extent will amount to an adjustment of the decree
within the meaning of the rule and the court, if approached, will issue the certificate of
adjustment. An uncertified payment of money or adjustment which is not recorded by the
court under O 21, r 2 cannot be recognised by the executing court. In a situation like this,
the only enquiry that the executing court can do is to find out whether the plea taken on its
face value, amounts to adjustment or satisfaction of decree, wholly or in part, and whether
such adjustment or satisfaction had the effect of extinguishing the decree to that extent. If
the executing court comes to the conclusion that the decree was adjusted wholly or in part
but the compromise or adjustment or satisfaction was not recorded and/or certified by the
court, the executing court would not recognise them and will proceed to execute the
decree. 510

The Code of Civil Procedure does not restrict the liberty of the parties to enter into an
agreement with reference to their rights and obligations under the decree. If the parties
contract upon the terms which have reference to and affect the execution, discharge or
satisfaction of the decree, questions relating to such terms would have to be determined by
the executing court. An adjustment not recorded under O 21, r 2 would, no doubt, not be
recognised by a court executing the decree. 511 But no suit will lie to enforce an adjustment
failing within this section. 512 A compromise in execution proceedings providing for a
mode of discharge of the decree, does not itself discharge a decree. Therefore, all questions
arising on the agreement are matters to be determined in execution and not in a separate
suit. 513 Thus, where an award provides payment by instalments and further provides that
on payment of such instalments, the decree shall be taken as satisfied, the judgment-debtor
can rely on the award before the executing court that the decree has been already satisfied.
514 Similarly, a compromise entered in an execution proceeding by which execution is

postponed on an undertaking by the judgment-debtor to pay interest at a higher rate than

the decretal rate is enforceable in execution proceedings. The jurisdiction of the executing
court to enforce such a compromise is not taken away by O 23, r 4. 515 In so executing the
compromise, the executing court has the power to determine whether it contains a penal
clause or a fresh contract and to grant relief on that basis. 516 Where a compromise
contains a clause for penal forfeiture, equitable relief against such a clause can be granted
when time is not the essence of the contract. 517 Where the parties have entered into an
agreement against the execution of a decree, a question would arise whether such an
agreement is a bar to the execution. Whether there is such a bar, depends upon the nature
of the agreement and the intention of the parties. If the agreement supersedes the decree
and the decree is abandoned, the contract could be the basis for a subsequent suit. If it is
not so, it would be the executing court which would determine all questions relating to
such an agreement. 518 For example, if after obtaining a decree for possession by eviction
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of the tenant from the demised premises, the decree-holder creates a fresh tenancy, the
decree is not adjusted under O 23, r 2 so as to require certification. The judgment-debtor
can object under this section that the fresh tenancy created in his favour made the decree
unexecutable. 519

In order to enforce a term of a decree of compromise which ended in dismissal, it can be

satisfied only by means of an independent suit, unless, of course, in the compromise, it is
stated that the terms so stipulated in the compromise petition are enforceable by means of
an execution, despite a decree of dismissal. In the instant case, the earlier suit, being a title
suit, had ended in a decree by compromise. Hence, the plaintiff ought to have levied an
execution order to satisfy the terms of decree, instead of maintaining an independent suit
for specific performance of a contract. 520 In a compromise decree, one party included
some other part of the property by giving up a part of the claim. It was held that the decree
is not one relating to some extraneous matter, and was executable. 521 A compromise
providing for a new decree in place of a decree already under execution is not executable,
but the same is not true of a compromise which regulates the mode of payment of the
decree under execution. Any such compromise is executable, as such matter rests upon the
intention of the parties as expressed in agreement, than on anything else. 522 Under the
consent decree, A undertook to execute a sale deed in respect of the land in his possession
and cultivation, in favour of V , within 15 days of the date of the decree. It was held that it
was only when the judgment-debtor A expresses his readiness and willingness to execute
the deed of conveyance, the decree-holder was under obligation to pay the consideration.
As a matter of fact, the judgment-debtor had, hardly within five days of the passing of the
consent decree, executed the conveyance deed in favour of K. In that state of affairs, V
could not have tendered the amount. The executing court was clearly in error in expressing
its inability to extend the time under O 20, r 14. Even if the consent decree in question is
taken as a decree for pre-emption in respect of a particular sale of the property, the decree
did not specify any date on which the pre-emptor, i.e. , the decree-holder, had to deposit
the amount, failing which the suit stood dismissed. The court would not be justified in
rejecting the execution of the decree on the ground that the decree-holder had failed to pay
the amount of consideration. 523 The only remedy of a person who wishes to challenge a
compromise decree on the ground of fraud is to file a suit for setting aside the said decree.
Such an objection cannot be entertained during the course of execution proceedings. 524
Concession was given to the defendant by a compromise decree. Lesser amount was
agreed to be received, but not in full acquittance of the suit claim. It was held that what
was granted to the defendants under the decree, was only a concession and the plaintiff did
not agree to the full quittance of the claim. Therefore, the default clause would not be a
penalty and the defendants could not invoke the benefit of s 74 of the Contract Act, 1872.
525 A suit was filed by the plaintiff for a declaration that he was the owner of the property

and not the tenant of the defendant. A compromise decree was passed, settling the
question of ownership of the property, and it was agreed upon, that the defendant was the
owner of the property and further they agreed, that on payment of certain sum by the
plaintiff, a reconveyance deed would be executed by the defendant. The question of
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tenancy was also settled and the plaintiffs were required to pay at the enhanced rate of
rent. It was held that essentially, the compromise was relating to the subject matter of the
suit. Simply because the reconveyance deed was to be executed, it cannot be said that it
was a fresh contract and capable of enforcement by way of a suit for specific performance.
As the compromise had merged into the decree, there was no separate agreement at all, in
existence. Only because a period of two years was allowed to the plaintiff to pay the
amount for reconveyance and the rent, that would not affect the executability of the
decree. The decree could be put to execution, if the defendant had failed to execute it
within the time mentioned in compromise. 526 Where the compromise decree between the
parties provided that the defendant would be liable to be evicted from the suit land after
expiry of ten years by appropriate action in court of law, the plaintiffs ejecting the
defendants from the suit land in their possession by taking appropriate legal act ion by
filing a suit for ejectment or in any other manner as may be permissible in law; but not by
applying for execution of the compromise decree. The issue can only be adjudicated
properly in an appropriate proceeding and not in a execution of a decree. Had the
intention been to allow the defendant only permissive possession for a period of 10 years
and ejectment thereafter in execution of the compromise decree, the decree would have so
provided. 527

15. Agreement modifying terms of decree. The question whether an agreement between
the parties to a decree altering or modifying its terms could be enforced in execution, has
been the subject of consideration in several cases. There was a large body of opinion in
support of the view that it could not be the ground of the decisions, that a court executing
the decree cannot go behind it and that it could only record an adjustment which would pro
tanto discharge the decree or execute it according to its terms. 528 It was also further held
that an agreement which is purely executory cannot be recognised as an adjustment. 529
Considering this question, the Privy Council observed in Oudh Commercial Bank Ltd. v. Bind
Basini : 530

If it appears to the court acting under section 47 that the true effect of the agreement was
to discharge the decree forthwith in consideration of certain promises by the debtor, then,
no doubt, the court will not have occasion to enforce the agreement in execution
proceedings but will leave the creditor to bring a separate suit. If, on the other hand, the
agreement is intended to govern the liability of the debtor under the decree and to have
effect upon the time or manner of its enforcement, it is a matter to be dealt with under
section 47. In such a case, to say that the creditor may perhaps have to file a separate suit is
to misread the Code which be requiring all such matters to be dealt with in execution
discloses a broader view of the scope and functions of the executing court.

On the basis of the above observations, it was held, in a number of decisions, 531 that the
executing court should record not merely an agreement which results in the satisfaction of
the decree, but also an executory agreement providing for a mode of discharge and that it
would make no difference whether the agreement modifies or alters the decree.
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The question was once again considered by a Full Bench of the Allahabad High Court and
it was held, by a majority, that the decision in Oudh Commercial Bank case did not change
the law as laid down in the decisions previously and that an agreement altering the terms of
a decree cannot be pleaded in execution. 532 The question has also been considered by the
Punjab High Court which has held, differing from the Allahabad decision and by a
majority, that an agreement modifying the terms of the decree could be pleaded in
execution even though it did not, in itself, result in satisfaction of the decree and that in
view of the decision in the Oudh Commercial Bank case, the earlier decisions taking a
different view could not be followed. 533

16. Questions relating to execution, discharge or satisfaction. Questions relating to

the execution, discharge or satisfaction of the decree arising between the parties to the suit
or their representatives are within this section and must be decided in execution and not by
separate suit. Under Expln II (b), all questions relating to delivery of possession are
deemed to be questions relating to execution and therefore have to be tried under this
section. The following are examples of such questions:

(a) Mis-description of Property. When the suit as to immovable property has been decreed and
the property is not definitely identified, the defect in the court record caused by
overlooking of provisions contained in O 7, r 3 and O 20, r 3 of the Code of Civil Procedure is
capable of being cured. After all, a successful plaintiff should not be deprived of the fruits
of decree. Resort can be had to s 152 or s 47 of the Code of Civil Procedure, depending on the
facts and circumstances of each case which of the two provisions would be more
appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the
merits of the case, it may be corrected under s 152 of the Code of Civil Procedure by the court
which passed the decree by supplying the omission. Alternatively, the exact description of
decretal property may be ascertained by the executing court as a question relating to
execution, discharge or satisfaction of decree within the meaning of s 47 of the Code of Civil
Procedure. A decree of a competent court should not, as far as practicable, be allowed to be
defeated on account of an accidental slip or omission. 534

In a suit for specific performance of agreement to sell immovable property, the map of suit
property was not annexed to plaint, and the defendants did not object to such fact
promptly, the trial court did not insist on such map and the map was filed for the first time
in execution proceedings. However, the draft sale deed accompanied by a notice requiring
objections to be made by judgment-debtor as provided by sub-r (2) of r 34 of O 21 of the
Code of Civil Procedure was not caused to be served by the executing court, and the
judgment-debtors repeatedly insisted, on draft sale deed being delivered to them enabling
objections being filed and there was no determination by the executing court that the
immovable property as delineated and demonstrated in the map accompanying the draft
sale deed was the property forming the subject-matter of agreement to sell and the decree.
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The Supreme Court, observing that it was s 47 which would be invoked in the instant case,
gave directions to the executing court to ascertain an exact description of property. 535

In an execution of eviction decree, the delivery warrant was issued, and revision was filed
against it. The revisional court, directing the execution court to first consider objection as
to identity of suit property before issuing delivery warrant, further directed restoration of
possession to tenant-judgment-debtor, since objection already settled in eviction
proceedings the order was wholly erroneous, since the court cannot be asked to go behind
the decree. The courts should see through such diabolic plans of judgment-debtor which
deny the fruits of the decree to a decree-holder; cantankerous litigation of tenant-
judgment-debtor is a bogey to delay eviction by abuse of process of court. 536

In an execution of decree pertaining to agricultural produce which was passed on a suit

seeking direction to the agricultural produce market committee for renewal of licence and
allotment of vacant site. The decree was passed for allotment of vacant site in between
sites 10/C and 11/2. The sketch map annexed to the report of advocate commissioner
showed that there was drain of about two feet width between the two sites and there
existed sufficient space and extent excluding the drainage portion for satisfying decree The
High Court, misread the report and misconstrued the physical features as disclosed by
report and concluded the decree as not executable. The order of the High Court was set
aside by Supreme Court. The market committee was directed to allot space between site
nos 11/2 and 10/C which was vacant and preventive steps to be taken to avoid seepage of
drain water, and non-creation of unhygienic conditions were directed to be incorporated in
an undertaking along with the agreement. 537

In the execution proceeding of a particular case, a decision on ground of uncertainty of

decree was given. The commissioners report described the suit land as bound on three
sides by nullah , whereas the decree mentioned that the three sides of suit land were bound
by roads. Road included nullah or drain as per s 2 (XXIII) of Manipur Town and Country
Planning Act. Therefore, there was no discrepancy in description of the boundaries of land
and the objection was rejected. 538

In an execution proceeding relating to an award by Arbitrator for possession of immovable

property, the judgmentdebtor filed objection on the ground that the property was not
identifiable. It was found by the High Court that a map was attached with the award in
which all the required details were provided. It was also found that along with the revision
petition copy of the Official Gazette has been annexed wherein clear cut area and
boundary of the property has been given. It was held that under these circumstances, the
executing Court should have no difficulty in executing the award. 539

(b) Property Wrongly Taken in Execution. If the decree-holder takes in execution land not
included in the decree, or in excess of the decree, the judgment-debtor must apply under
this section for the recovery of such land, and a separate suit for that purpose will not lie.
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540 This is because the question whether a particular property is covered by a decree relates
to execution, discharge or satisfaction of the decree. It is for the executing court to satisfy
itself, as to the identity of the property which is the subject matter of the decree. Such a
question of identity arises where the decree-holder takes in execution land not included in
the decree or in excess of the decree. 541 But where, in the redemption decree passed
against defendants, an objection by one defendant judgment-debtor that his land was not
part of the suit land, was not tenable if the objecting defendant had filed written statement
in suit and such objection was not raised at preliminary decree stage or even at time of final
decree. 542 The question that a property sold was not saleable in execution is one relating
to discharge of the decree. 543

In a case where a husband obtained a decree for restitution of conjugal rights, the question
whether the wife has done necessary acts in fulfilment of the decree is one for the
executing court to decide. 544 In Ramanna v. Nallapa Raju , 545 the Supreme Court observed:

It is well-settled that when a sale in execution of a decree is impugned on the ground that it
is not warranted by the terms thereof, that question could be agitated, when it arises
between the parties to a decree, only by an application under section 47 and not in a
separate suit.

Where in execution of a decree in ejectment, the decree-holder obtained possession and

satisfaction of the decree was recorded and thereafter the judgment-debtor applied for
redelivery on the ground that the order for delivery was illegal, it was held by the Supreme
Court that the question whether the decree was completely satisfied and the court became
functus officio was a question which related to the execution, satisfaction and discharge of the
decree and should be tried under s 47. 546 But where a decree has been passed with
reference to a property in which the rights of the judgment-debtor have lapsed as a result
of a special statute and new rights in place of the old rights have been substituted, an
execution to attach the property with reference to the old rights therein cannot lie. 547 The
plaintiff obtained a decree against only one of the two defendants, but took in execution
money that had been paid by the surety of the other defendant. The Privy Council said that
the question was between parties to the suit and related to the satisfaction of the decree
and that whatever remedy the aggrieved defendant had, s 47 precluded a suit against the
plaintiff. 548 Where an application for delivery in execution of a decree for pre-emption is
resisted by the judgment-debtor on the ground that the property in question was not the
subject matter of the suit, the dispute is one which falls under s 47. 549 The decision in
Kangali v. Shyamsundar , 550 that when property not comprised in a mortgage decree was
sold in execution thereof, the judgment-debtor could enforce his rights thereto in a suit
and that s 47 was not a bar to its maintainability as the sale was a nullity does not appear to
be correct. Where a decree-holder entitled to joint possession was given exclusive
possession in execution, the application of the judgment-debtor to be put back in joint
possession falls within this section and the fact that the decree had been executed does not
affect the position. 551 An application for refund of excess amount realised in execution of
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a decree falls within this section and must be decided by the executing court even though
satisfaction of the decree had been recorded. 552

(c) Property Taken in Execution of Decree Subsequently Amended. If a mortgagee brings property
to sale in execution of a decree for sale, and an error in the mortgage amount is
subsequently discovered, the judgment-debtor claiming a refund of the excess, 553 or the
decree-holder claiming to recover the deficit, 554 must apply under this section, and a
separate suit will not lie. An objection by the judgment-debtor that the sale proclamation is
not in accordance with the decree falls within this section. 555

(d) Transfer of Property by Decree holder. Where decree holders were alleged to have transferred
their right, title and interest in suit property in favour of third parties by registered deeds of
conveyances, objection was taken under s 47 that properties stood vested in transferees
and decree holders had no right to execute the decree. It was held that mere transfer of
property is not transfer of decree and the executing court is bound to allow execution at
instance of recorded decree holders, unless transferees approach under O 21, r 16. 556

In an execution proceeding, where the right, title and interest of the decree-holder had
been affirmed upto the second appellate stage, it was held by the Orissa High Court that a
person who purchased the property during pendency of litigation is not entitled to
challenge delivery of possession to the decree-holder. However, he can file a suit under s
144 CPC after the decree-holder recovers his possession. It is also open to the purchaser to
file a suit for enforcing his right, if any, under the sale deed. 557

(e) Property Taken in Execution of Ex parte Decree Set Aside. If property is realised in execution
of an ex parte decree which is afterwards set aside, the judgment-debtor must apply for
restitution under this section. 558 There is, however, a conflict of decisions as to whether
this case falls under s 144. 559 Where a court sale in favour of the decree-holder purchaser
was set aside under s 23 of the Madras Agriculturists Relief Act, 1938, a suit by the
judgment-debtor to recover possession of the property was held to be not barred under
this section as it did not relate to execution, discharge and satisfaction of the decree. 560

(f) Quantum. The court must determine the quantum which the debtor is bound to pay. But
where the trial court has left that question open for being considered at the time of
execution, the executing court ought to determine the quantum and dispose of the issue.
561

(g) Injunction Granted by Decree. A suit to enforce a permanent injunction granted by a decree
is barred by this section. The remedy is by execution. 562 But this is so only when the
injunction granted is a mandatory injunction. A suit for appropriate relief with respect to
breach of a perpetual injunction is not barred. 563
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(h) Objections to Attachment or Sale by Parties or their Representatives. See notes below under the
same heading.

(i) Surety. The surety contracts: Trust the borrower I undertake to be responsible or if he
does not pay I will. This is the basic postulate or essence of the contract of guarantee. A
surety in the eyes of law is a favoured debtor. Under s 128 of the Indian Contract Act, 1872,
save as otherwise provided in the contract, the liability of the surety is co-extensive with
that of the principal debtor. The surety thus becomes liable to pay the entire amount. His
liability is immediate and simultaneous. It is not deferred until the creditor exhausts his
remedies against the principal debtor either personally or against the property mortgaged
or hypothecated by him. The creditor gets the right to recover the amount straightway
from the surety. The right of the creditor to proceed against the surety is not dependent or
contingent upon his remedy being exhausted against the borrower. The creditor cannot be
asked to pursue his remedies against the principal debtor either personally or against his
mortgaged or hypothecated property in the first instance.564

Where the principal debtor, on payment of certain amount, offered to pay balance in
monthly instalments of Rs 1,000, the executing court directed accordingly and closed
proceedings. No objection was ever raised by decree-holder to the new set of rights and
obligations that emerged thereby, to which the surety had never been party. In view
thereof it could be said that, surety has been relieved of his liability by principal debtor and
no fresh execution proceeding can be filed against the surety alone. 565

Once the decree-holder chose to proceed against any one of judgment-debtors and realised
the decretal amount to certain extent, he could not proceed against other, unless he
exhausted his remedies vis-a-vis the former. 566

(j) Construction of Decree. Executing court has competence to construe a decree, though it
cannot go behind it. However, to interpret the decree sought to be executed, it can refer to
reliefs sought in the plaint and discussions in the judgment in order to ascertain the true
import of the decree. The plaintiff in an Orissa case prayed for (a) declaration of title to
the suit land, (b) confirmation of possession and (in the alternative) (c) for recovery of
possession. The suit was tried and decreed ex parte. On the basis of evidence on record, the
plaintiff was found to be in possession and, accordingly, a decree declaring that the
plaintiff had got the right, title and possession over the land in suit was passed. It was held
that the executing Court was justified in interpreting the decree to mean, that the relief
sought in the plaint were granted and since one of the reliefs sought was to direct delivery
of possession, the execution application for delivery of possession was maintainable even
in the absence of specific direction for delivery of possession in the decree. 567 Hence,
where a money decree was passed against a company and its managing director making
them jointly and severally liable, and the executing court, on a construction of the decree,
disallowed execution against personal property of the managing director, it was held that
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the order was justified. Construction of a decree is not governed by a general rule and
depends on the facts. 568 Mere acceptance of commissioners report by the trial court does
not give rise to a liability unless there be clear determination that for the entire mesne profits
as decreed by the court, the liability is that of a particular defendant. Without getting the
final decree amended by trial court fixing the liability of a particular defendant for that
amount, in execution he cannot be proceeded against on the basis of liability arising out of
constructing of decree on ground of ambiguity. 569 Where there is a decree for mesne
profits and a commissioner is appointed, mere acceptance of his report by the
commissions does not give rise to a liability of a particular defendant, unless there is a clear
determination that for the entire period, the liability is that of a particular defendant. Such
question is not dealt with in the decree, cannot be dealt with in execution by way of
construction of decree. The decree has to be got amended. 570 It is true that the executing
court is not an automaton and it can exercise its power to properly construe the decree, in
order to find out the true import and effect of the same, so that it can proceed to execute
the decree in its true and correct perspective, giving full effect to the same, and for that
purpose, the court can look into the pleadings and judgment. But it cannot travel outside
those materials. A decree has a sanctity of its own and there cannot be any fishing inquiry
at the execution stage. 571 Although the executing court cannot go behind a decree, it can
interpret a decree where the same is not clear in terms. While so interpreting the decree,
the executing court is to presume that decree was passed keeping the correct legal position
in mind. When there is ambiguity in the decree, the executing court can go behind the
decree and look into the pleadings and the judgment, in order to have the ambiguity
dispelled. But, where the decree is clear, unequivocal and is not ambiguous, the executing
court cannot call for the assistance of pleadings, judgment and so on. It has to be spelled
out from the decree itself, as to whether it is a declaratory decree simpliciter or whether
there are accompaniments to the decree with consequential directions in case the right
conferred is not given effect to. On the facts, the decree was held to be declaratory only
and hence not executable. 572 The party, in compliance with the order of the court for
depositing certain amount in court, tendered a cheque for the prescribed amount on the
last date for payment. The same was encashed in due course. The payment by cheque was
held to be a valid payment, in the absence of anything in the order suggesting that the
deposit was to be in cash. The objection that there was no money on the date of delivery
of the cheque to support payment of it and that it was only subsequently (when
arrangements were made) that the cheque was realised, would not be maintainable. The
reason is that there was nothing to suggest that, under the arrangements made for payment
of the cheque, even if it had been encashed on the date it was delivered, the cheque would
not have been encashed and there was no finding by the court that on the date the cheque
was tendered, the cheque would not have been realised. 573 It is not necessary in a suit for
specific performance either to separately claim possession or for the court to pass a decree
for possession. A decree for specific performance of contract includes everything
incidental to be done by one party or another to complete the sale transaction, the rights
and obligations of the parties in such a matter being indicated by s 55 of the Transfer of
Property Act, 1882.
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In the execution of a decree in a suit relating to specific performance of contract, the

Andhra Pradesh High Court held that omission to make specific prayer for the relief of
possession is not fatal to the execution proceeding. It was observed that in the light of the
statutory duties and obligations cost on the seller by virtue of s 55 of the Transfer of Property
Act, 1882 and also in the light of the scope and ambit of s 22 of the Specific Relief Act, 1963,
the mere fact that such specific prayer for delivery of possession was not made, the same
cannot be taken advantage of, when there is no dispute or controversy that the judgment
debtors-defendants are in possession. The decree for execution of sale deed would imply
the decree of delivery of possession too, because these are obligations which flow from the
relief of execution of sale deed.574 The Allahabad High Court has held that where in a suit
for specific performance, the subsequent purchaser was also made a defendant in the suit
and the decree in the suit was also against him, the Executing Court could always grant the
relief of possession once the Court executed sale deed in favour of the decree-holder, as
the relief of possession is incidental to the execution of sale deed. 575

In a suit, preliminary decree for dissolution of firm was passed commission was appointed
for settling the accounts of the firm. The Commission in its report valued only goodwill of
the firm but did not give any valuation of trade mark. It was held by a Division Bench of
the Madhya Pradesh High Court that the report of the Commissioner is incomplete since it
did not give any valuation of trade mark. The decree which refers to assets and properties
of the firm is inclusive of its trade mark, which has separate entity and is not included in
goodwill. It was held that direction to auction trade mark is in consonance with intention
behind the decree. 576

When such a suit for specific performance is ended by a final decree transferring the title,
that title relates back to the date of agreement on which the suit is based and the court will
not permit the decree to be rendered nugatory by intermediate conveyances. Once this
established legal position is borne in mind, there shall not be any doubt about the
competence of the executing court in granting possession even if the decree is silent as far
as delivery of possession is concerned. 577

(k) Bankers Lien. Section 171 of the Indian Contract Act, 1872 gives statutory recognition to the
concept of bankers general lien. It provides that the bankers may, in the absence of a
contract to the contrary, retain as a security for a general balance of account, any goods
bailed to them. Money is a species of goods which may be the subject-matter of bailment
and over which lien may be exercised. The general lien of bankers, as judicially recognised
and dealt with in s 171 of the Indian Contract Act, 1872, attaches to all goods and securities
deposited with them as bankers by a customer or by a third person on a customers
account, provided there is no contract, express or implied, inconsistent with such lien. The
Supreme Court has laid down the law on bankers lien. It has been held after a detailed
survey of various authorities on English law on the subject that by the mercantile system
the bank has a general lien over all forms of securities or negotiable instruments deposited
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by or on behalf of the customer in the ordinary course of banking business and that the
general lien is a valuable right of the banker judicially recognised and in the absence of an
agreement to the contrary, a banker has a general lien over such securities or bills received
from a customer in the ordinary course of banking business and has a right to use the
proceeds in respect of any balance that may be due from the customer by way of reduction
of customers debit balance. Such a lien is also applicable to negotiable instruments
including FDRS which are remitted to the bank by the customer for the purpose of
collection. There is no gain saying that such a lien extends to FDRS also which are
deposited by the customer. When the words used in the letter accompanying the FDRS
gave the authority to the bank to retain the deposits so long as any amount on any account
is due from the judgment-debtor. The Supreme Court held that the recital in the letter
shown that a general lien is created in favour of the bank in respect of those two FDRS.
The bank was given the authority to retain the FDRS so long as any amount on any
account was due from the judgment-debtor. Thus, the bank had a right to set off in respect
of these FDRS if there was a liability of the judgment-debtor due to the bank.578

(l) Arbitration. Executing court, while deciding objections as to indivisibility of award, could
not decide whether portion of award declaring assets in favour of one group was
executable or not. 579 If a point of jurisdiction arises then the same can be agitated, not
only in an application under s 30 of the Arbitration Act, 1940 (now replaced by Arbitration and
Conciliation Act, 1996) but also in resistance to execution of decree passed upon the award.
580 No court can pass a decree directing a defendant to do an impossible or an illegal act. If

a decree were to be passed simpliciter for a sum expressed in a foreign currency, it would
be to direct the defendant to do an act, which would be in violation of the Foreign Exchange
Regulation Act, 1973 (now repealed FEMA, 1999). Such a decree can, therefore, only be
passed by making the payment in foreign currency, subject to the permission of the foreign
exchange authorities being granted. If, however, the authorities do not grant permission
for payment of the judgment debt in foreign currency, it would not be possible for the
defendant to make such payment, resulting in the decree becoming infructuous and the
plaintiff getting nothing under it. The court must, therefore, provide for the eventuality of
the foreign exchange authorities not granting the requisite permission or even if such
permission is given, the defendant not paying the decretal debt, or not wanting to
discharge the decree by making payment in foreign currency or in Indian rupees. This can
only be done by the decree providing in the alternative for payment of a sum of money in
Indian rupees, which will be equivalent to the sum decreed in foreign currency. It is but
just, that a man, who is in law entitled to receive a sum of money in a foreign currency,
should either receive it in such currency or should receive its equivalent in Indian rupees.581

Where parties have entered into an agreement, containing Arbitration Clause, but
subsequently, on their own volition consented to abandon Arbitration Clause, and had
entered into another agreement to refer their matter to High Power Committee as per
mechanism evolved by Central Government, it is incumbent upon parties to abide by the
said subsequent agreement in toto and take recourse to mechanism evolved by them. The
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mere use of word Arbitration or Arbitrator in a clause in agreement will not make it an
arbitration agreement. The intention of parties should be gathered from the terms of the
agreement. 582

(m) Adjustment of Decree. The question whether a decree has been paid or adjusted out of
court, is one for the court of execution to decide under this section. An executing court
has jurisdiction to record an adjustment entered into between the decree-holder and the
judgment-debtor and to ascertain its legal effect. 583 If the judgment-debtor applies to
enter up satisfaction of a decree by a writing in the nature of a compromise and the decree-
holder objects that the writing was obtained by fraud, the question is one relating to the
discharge of the decree, and is to be decided by the court of execution under this section.
584 An application by a decree-holder to set aside an order recording satisfaction of a

decree on the ground of fraud of his agent and the judgment-debtor, falls under this
section. 585 If the adjustment has not been certified by the judgment-debtor within the
time allowed by law, and the decree-holder proceeds to execute the decree, the dispute, no
doubt, is one relating to the satisfaction of the decree, but it cannot be dealt with either
under this or any other section relating to execution, for an uncertified adjustment cannot
be recognised by any court executing the decree. 586 Where it was admitted that payment
had been certified or recorded, the same, (even if act ually made) could not be recognised
by the court executing the decree. 587 By virtue of O 21, r 2(3), a payment or adjustment,
which has not been certified or recorded in accordance with the rule, shall not be
recognised by any court executing the decree. Therefore, when a decree-holder takes out
execution, the judgment-debtor will not be entitled to plead (if, by the date of his plea, a
period of 30 days has expired from the date of payment or adjustment, as the case may be)
that he has paid the money due, or has otherwise adjusted the decree, outside the court.
The expression may in O 21, r 2(3), has to be construed and understood as shall. By
placing this construction, no inconsistency arises between O 21, r 2 and s 47. It does not
mean that the provisions in O 21, r 2 read with Art. 125 of the Limitation Act, 1963,
should be ignored.588 The general and broader provisions of s 47 of the Code of Civil
Procedure, clothing the court with the jurisdiction to decide all questions pertaining to
execution, discharge and satisfaction of a decree cannot be allowed to defeat the special
provisions of O 21, r 2 of the Code of Civil Procedure dealing with adjustments of the decree.
When the satisfaction of the decree is based on an adjustment, provisions of s 47 cannot
be pressed into service unless the adjustment is recorded in accordance with r 2 of O 21 of
the Code of Civil Procedure. 589 It is no doubt open to the parties to adjust or compromise
their rights under the decree, but if it amounts to adjustment of decree, it must be reported
to the court whose duty it is to execute the decree so that that court may record or certify
the same. If it is not done, the court, before whom the execution proceedings are initiated,
will proceed to execute the decree. It is not every time that the decree-holder and
judgment-debtor enter into a compromise after the decree. The judgment-debtor may even
set up a false case of compromise and creation of fresh tenancy after the decree. It is in
order to prevent such judgment-debtors that O 21, r 2 has been enacted so that if such
compromise or creation of fresh tenancy has not been recorded, the judgment-debtor be
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not encouraged to imitate another round of litigation under s 47 of the Code of Civil Procedure.
590 In a Madras case, it was not in dispute that the entire amount due under the decree

passed by the trial court had been discharged by payment and deposit, and therefore, there
was no further amount due to the plaintiff under the decree as passed by the trial court. It
was held that the plaintiff may be entitled to further amounts in the event of its success in
the appeal filed by it against the decree. But that would not prevent the executing court
from recording the payment made by the defendant towards the decree passed by the trial
court. In fact, an unconditional deposit of the amount decreed in court will operate as a
discharge of the decree. Just because an appeal against the decree is pending, at the
instance of the plaintiff, it does not mean that the decree passed by the trial court could
not be satisfied by the defendant by payment or adjustment otherwise. It is not in dispute
in the instant case that the entire amount due under the decree passed by the trial court
had been discharged by payment and deposit, and therefore, there is no further amount
due to the plaintiff under the decree passed by the trial court. The plaintiff may be entitled
to further amounts, in the event of its success in the appeal filed by it against the decree.
But that will not prevent the executing court from regarding the payments made by the
trial court. In fact, unconditional deposit of the amount decreed in court will operate as a
discharge of the decree. 591

(n) Adjustment of Fine Paid in Criminal Court. Where the payment or deposit made by
respondent in the criminal case was the amount fined, a part of it was ordered to be paid
to petitioner. So, out of Rs 22,000 imposed as fine, if Rs 11,280 has not been ordered to be
paid to the petitioner in the criminal case, that amount would have gone to the state as fine
amount and not that, the amount would have remained with the respondent. Further, the
said payment of Rs 11,280 was made in that court as part of fine amount in pursuance of
order of sentence passed in criminal proceedings for the offence committed by respondent
and not towards the liability arising under civil law or sought to be enforced against him by
petitioner in execution proceedings. In other words, payment or satisfaction of decree
passed in suit would not have come to the aid of respondent for avoiding the consequence
of default in the payment of entire or any part of fine amount ordered in criminal case.
Similarly, payment of fine amount in the criminal case would not have discharged the
respondent from his liability to pay the amount claimed in civil proceedings. 592

(o) Award of Lok Adalat. The award of the Lok Adalat is fictionally deemed to be decree of
court and therefore the courts have all the powers in relation thereto as it has in relation to
a decree passed by itself. This includes the powers to extend time in appropriate cases. The
award passed by the Lok Adalat is the decision of the court itself, though arrived at by the
simpler method of conciliation instead of the process of arguments in court. The effect is
the same. 593

Where the suit for possession was decreed in favour of appellant decree holder and
pending appeal the dispute referred to the Lok Adalat , the award was passed by the Lok
Adalat on basis of compromise. The award provided for sale of scheduled property to
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appellant on payment of sum within two years. The plea of the respondent was that
execution of sale deed could not take place due to default on part of appellant. Notice and
telegram was issued, requiring respondent to execute sale deed as submitted in award. The
respondent did not receive said notice and it was returned unserved. No obligation was
held cast on appellant to examine the postman. The presumption under s 114 of the Indian
Evidence Act, 1872 attracted the obligations on respondent to evince his willingness to
execute sale deed within two years and not on appellant as assumed by the High Court.
The order of the High Court dismissing petition for execution of award filed by appellant
was found not proper.594

(p) Agreement to Give Time. A fair bargain for time in consideration of a reasonable rate of
interest properly recorded, has its effect upon the rights of the parties under the decree and
the executing court has jurisdiction under this section to ascertain its legal effect and to
order accordingly. 595

(q) Substituted Share. Where a decree gives a right to possession of a share in a ijmali mahal ,
which has prior to the date of the decree been partitioned under the Estates Partition Act,
1897, the court in proceedings for execution of the decree, has power under this section to
put the decree-holder in possession of the specific land substituted for his share on
partition.596 Where, after the mortgagee had obtained a decree for the sale of the
mortgaged properties, they were acquired under the Land Acquisition Act, 1894, the decree-
holder was held entitled to proceed in execution against the compensation amount as
substituted security.597

(r) Accretion to Mortgaged Property. The question, whether certain property is an accretion to
the mortgaged property, is a question to be determined under this section in execution of a
decree for redemption obtained by the mortgagor against the mortgagee. 598

(s) Rateable Liability of different Mortgaged Properties. Question relating to rateable liability of
different mortgaged properties is within the section. 599

(t) Waste Committed by Judgment-Debtor after Decree for Possession. The question whether the
judgment-debtor has committed waste, eg, cut down trees, after a decree against him for
possession, is one to be dealt with under this section, and not by a separate suit; 600 also
compensation for such waste; 601 so also waste committed by decree-holder in possession,
602 so also a claim for damages for damage done to the property of a co-sharer after a

decree for partition. 603 It is observed in Kunhikoya v. Ahmed Kutty 604 that a claim by a party
to a decree based on allegations of waste is not within the scope of s 47. This observation
is open to question. The real ground of the decision, however, is that a person against
whom the claim was made, was not a representative of the judgment-debtor and therefore
s 47 had no application.

(u) Decree for Possession. Where a decree is passed for possession in a suit for pre-emption,
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conditional on the plaintiff paying a specified sum of money within a time fixed by the
court, and the money is paid, but possession is not delivered to the plaintiff, his only
remedy is by an application under this section. A suit for possession is barred under this
section. 605 The High Court of Kerala, however, has taken the view that where there is
only delivery by symbolical possession in execution, the decree-holder can maintain a suit
for possession on the basis of execution sale. 606

Section 47 bars a separate suit only in respect of a question relating to execution, discharge
or satisfaction of the decree. If there is a subsequent dispossession after the decree of
possession is complied with, a suit to obtain possession is not barred simply because there
was an earlier decree obtained by the plaintiff for possession which decree had been
complied with. In fact, there will be no question of executing the earlier decree, when it
has already been complied with. 607 Where a decree for possession in favour of the
plaintiff provided for the defendants removing construction materials stored by him in the
property, a suit by the latter for damages on the ground that the decree-holder prevented
him from removing them, is barred under this section. 608 Where the landlord obtained a
decree in ejectment and after recovering possession sued the judgment-debtor for
compensation for certain sums paid by him, it was held that this was not a question
relating to the execution, discharge and satisfaction of the decree and the executing court
cannot go into it. 609 In a decree for possession, if the legal representatives of a judgment-
debtor contend that they were in possession in their own right, that contention must be
decided in execution proceedings. 610 In an execution of a decree for possession of
immovable property, the judgment-debtor tenant delayed the execution of the decree for
several years. The High Court of Uttarakhand directed the judgment debtor to pay
rent/damages as were being paid earlier to the decree-holder till the date of delivery of
possession. 611 Where a compromise decree providing for eviction is challenged by the
tenant as a nullity on the ground that it was in violation of the relevant Rent Act, the
executing court can go into the decree to ascertain whether the grounds for eviction
permissible under the Act, were pleaded and admitted by the tenant when he agreed to the
consent decree. 612 The question relating to delivery of possession to the auction purchaser
or its representative is a matter relating to execution, discharge and satisfaction of the
decree within the meaning of s 47 of the Code of Civil Procedure. Sub-section (1) of s 47
prohibits determination of such questions by way of a separate suit and mandates that such
questions shall be determined only by the court executing the decree and not by a separate
suit. 613

(v) Resistance or Obstruction to the Possession of Property. Provision is made in the Code of Civil
Procedure for delivery of possession of immovable property in execution of a decree and
matters relating thereto. In O 21, r 35 provisions are made empowering the executing
court to deliver possession of the property to the decree holder, if necessary, by removing
any person bound by the decree who refuses to vacate the property. In r 36, provision is
made for delivery of formal or symbolical possession of the property in occupancy of a
tenant or other person entitled to occupy the same and not bound by the decree to
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relinquish such occupancy. Rules 97 to 101 of O 21 contain the provisions enabling the
executing court to deal with a situation when a decree holder entitled to possession of the
property encounters obstruction from any person. From the provisions in these rules
which have been quoted earlier, the scheme is clear that the legislature has vested wide
powers in the executing court to deal with all issues relating to such matters. It is a general
impression prevailing amongst the litigant public that difficulties of a litigant are by no
means over on his getting a decree for immovable property in his favour. Indeed, his
difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle
such a situation and to allay the apprehension in the minds of litigant public that it takes
years and years for the decree holder to enjoy fruits of the decree, the legislature made
drastic amendments in provisions in the aforementioned rules, particularly, the provision
in r 101 in which it is categorically declared that all questions including questions relating
to right, title or interest in the property arising between the parties to a proceeding on an
application under rr 97 or 99 or their representatives, and relevant to the adjudication of
the application shall be determined by the court dealing with the application and not by a
separate suit. For this purpose, the court shall, notwithstanding anything to the contrary
contained in any other law for the time being in force, be deemed to have jurisdiction to
decide such questions. On a fair reading of the rule it is manifest that the legislature has
enacted the provision with a view to remove, as far as possible, technical objections to an
application filed by the aggrieved party whether he is the decree holder or any other person
in possession of the immovable property under execution and has vested the power in the
executing court to deal with all questions arising in the matter, irrespective of whether the
court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory
mandate and the object and purpose of the provisions should not be lost sight of by the
courts seized of an execution proceeding. The court cannot shirk its responsibility by
skirting the relevant issues arising in the case. The position is manifest that when any
person claiming title to the property in his possession is obstructing the attempt by the
decree-holder to dispossess him from the said property, the executing court is competent
to consider all questions raised by the persons offering obstruction against execution of the
decree and pass appropriate order, which under the provisions of O 21, r 103 is to be
treated as a decree. 614

(w) Validity of an Assignment of a Decree. Whether the assignment of a decree is valid or not is
essentially a question arising between the parties and relates to execution of the decree and
falls under this section. A suit for the declaration that the assignment is valid does not lie.
615 Where a debt on which a suit had been filed was assigned, the assignee could apply

under s 146 and O 22, r 10, to bring himself on record and execute the decree which was
passed on the debt and his application is one under s 47. 616

(x) Mutual Obligations Under a Decree. Where a decree for specific performance directed that
on the plaintiffs tendering or paying the amounts specified, the defendants were to execute
in favour of the plaintiffs, proper deeds of transfer of certain properties, the question
whether the defendant is able to perform his part of the decree and whether he transfers
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the very thing which the decree directs him to transfer must be determined in execution
and not by a separate suit. 617 In the case of such a decree, even if it is silent about giving
possession, the executing court under this section, can direct possession to be given to the
decree-holder as possession is incidental in such a decree. 618

(y) Scaling of Decrees. Where a mortgage decree was scaled, interest reduced and a new decree
passed, the order scaling the decree is not an order relating to execution of the decree
within s 47, but is a new decree and appealable as such. 619 But an order made for the
enforcement of the order falls within s 47. 620

(z) Suits Giving Relief to Tenants against Eviction. The question whether a tenant against whom
a decree in ejectment has been passed is a Kudikidappakaran, liable to be evicted only in
accordance with the provisions of the Travancore Prevention of Eviction Act, 1948, or
whether he is entitled to the protection under the provisions of the Stay of Execution
Proceedings Act, 1950, are questions which should be determined by the executing court.
621 Where a decree for ejectment was made against a tenant in breach of the provisions of

the Rent Control Order giving him protection, it was held that the execution court must
refuse to enforce it. 622 Regarding the existence of any of the grounds mentioned in s 13 of
the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the executing court will
proceed to record the statements of each party and such other witnesses of both the
parties, as it thinks necessary to reach any conclusion. It is none of the concern of the
court to see what shall be the result on two interpretations of a particular provision of the
law. 623 When s 2 (2) was not amended, an order under s 47 by reason of a legal fiction was
to be treated as a decree and, thus, an appeal against an order made under s 47 was
maintainable in terms of s 96 of the Code of Civil Procedure. After the amendment of s 2 (2) of
the Code of Civil Procedure no appeal lies under s 96 of the Act. If an objection filed under s
47 of the Code of Civil Procedure is stated to be an appealable order coming within the purview
of s 104 of the Code of Civil Procedure, the purpose of the amendment would be frustrated. If
decree is valid and has not been held to be a nullity by reason of lack of inherent
jurisdiction by a court of law, the question as of the same being an order appealable in
terms of cl 15 of Letters Patent does not arise. 624 This case is an example of as to how a
small step in haste makes a person repent at leisure. The landlady, exasperated by laws
delay, wanted to seize an opportunity to dislodge the tenant. In her enthusiasm to execute
the decree, the landlady persuaded the executing court to bye-pass the process of law and
obtain a warrant for possession and got it executed post-haste. This was despite a stay
order passed against the execution of decree. The executing court did not care to inquire
into and find out whether the conditions of the stay were fulfilled and the stay order had
been automatically vacated. The first Appellate Court had not taken care to put a time limit
for performance of the conditions imposed upon the tenant for staying the execution of
the decree. It was not, therefore, simply a case where the conditions of the stay order not
having been complied with within the time given by the Appellate Court. Some inquiry was
absolutely necessary before the stay order could have been treated as automatically vacated
for non-compliance of the conditions imposed by the stay orders. 625
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Against the decree for ejectment passed by a civil court, qua a commercial tenancy in the
state of Delhi, before the declaration of law by the Supreme Court in Gian Devi Anand case
626 that such a tenancy is heritable, the judgment-debtors can successfully raise objection to

its execution on the ground that the same was passed by a court lacking inherent
jurisdiction and therefore inexecutable.

Because of the operation of s 14 of the Delhi Rent Control Act, 1958, the only authority to
pass a decree for ejectment of the tenanted premises is the Rent Controller appointed
under the Act and s 50 of the Act specifically bars the jurisdiction of the civil court to
entertain any suit or proceeding in so far as it relates to the eviction of any tenant from the
premises which were covered by the Delhi Rent Control Act, 1958. The eviction decree was
passed by the civil court, on the basis of the view taken by the High Court, that
commercial tenancies are not heritable and that the statutory tenancy of the original tenant
came to an end on his death. In Gian Devi Anands case, 627 the interpretation given by the
Delhi High Court that commercial tenancies were not heritable was overruled, as being
erroneous. The Supreme Court, in Gian Devi Anands case 628 did not lay down any new law
but only interpreted the existing law which was in force. The interpretation of a provision
relates back to the date of the law itself and cannot be prospective of the judgment. When
the court decides that the interpretation given to a particular provision earlier was not legal,
it declares the law as it stood right from the beginning as per its decision. The
interpretation given by Supreme Court declaring that the commercial tenancies are
heritable would be the law as it stood from the beginning as per the interpretation put by
Supreme Court. It would be deemed that the law was never otherwise. Jurisdiction of the
civil court has not been taken away by the interpretation given by Supreme Court. Supreme
Court declared that the civil court had no jurisdiction to pass such a decree. A decree
passed by a court having no jurisdiction over the subject-matter would be a nullity and the
judgment-debtor can object to the execution of such a decree being a nullity and non est.
Its invalidity can be set up whenever it is sought to be enforced, including the stage of
execution of the decree or any other collateral proceedings. The view of High Court, while
rejecting the objection raised to executability of decree that the decision of Supreme Court
in Gian Devi Anand case 629 would operate prospectively, was found improper. 630

The tenants right to remain in occupation of the non residential premises governed by the
Maharashtra Rent Control Act, 1999 is a property, such property is saleable and the tenant
has disposing power over the interest of tenancy for this benefit and in view thereof, it can
be said that the interest of the tenant of non-residential premises to which the Maharashtra
Rent Control Act, 1999 applies is attachable and saleable in execution of the decree against
the tenant. 631

(za) Sub-tenant. The history of the litigation reveals that the tenant surrendered the lease
with effect from 31 August 1953 by a notice, but failed to vacate it on the due date.
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Landlord was therefore required to file a suit against the tenant on the basis of the notice
for surrender of tenancy.

During pendency of the suit, the tenant entered into a compromise and in terms thereof
vacated the leased premises. As against the sub-tenants, which the tenant had inducted
during subsistence of tenancy, one of the terms of the compromise decree reserved liberty
to the landlord to take necessary legal steps for their eviction. The landlord thereafter
instituted an independent suit for eviction of the sub-tenant. In that suit, the court held
that the remedy of the landlord is to execute the compromise decree. The firm as sub-
tenant, had filed a counter suit seeking declaration of its status as direct tenant under Act
of 1950 and protection thereunder. In the counter suit of the sub-tenant, the court took
the same view that the remedies of the parties lay in execution proceedings. The judgment
rendered in the counter suit of the sub-tenant, i.e. , the firm, was challenged in Supreme
Court in special leave petition but it was withdrawn. The judgment rendered in the counter
suit, as also the other rendered in the suit filed by the landlord against the sub-tenant, had
attained finality. It is only after the landlord failed in obtaining eviction decree in the suit
filed by it that it moved an application for execution of the compromise decree. One of the
terms of the compromise decree which reserved the right to the landlord to take necessary
legal steps to evict the sub-tenants, makes the decree executable to that extent. It could
not, therefore, be urged by the firm that the compromise decree on its terms is not
executable. 632

Where a suit for recovery of possession was filed against lessee of land only without
including the building thereon which was constructed and sublet by lessee with the
permission of lessor, the decree passed upon admission of lessee to surrender the land
would be inexecutable against the sub-lessees, particularly when no leave was obtained
under O 2, r 2 in respect of the building. Therefore, the decree as it stood was final and
could be executed only against the land and against the lessee. It could not have been
executed in respect of the building constructed thereon, nor it could be executed against
persons who were not sub-lessee/tenant of the land; which was the subject matter of the
suit but were sub-lessees/tenants in respect of the building, which comprised of the land
and the building. Moreover, though a decree for eviction against the lessee/tenant is
binding on the sub-lessee/tenant, there are some exceptions to it. One such exception is
that the sub-tenant/lessee has a right independent of the lessee/tenant. In case the sub-
lessee/tenant is able to prove collusion, then the sub-lessee/tenant is said to have a right
independent of the lessee/tenant, and in this instant case, collusion between landlord and
lessee was prima facie apparent because the decree was passed on admission of lessee to
surrender the suit land though he was receiving substantial amount of rent from sub-
lessees and also because he did not file any objection to application for amendment so as
to include building. 633

(zb) Alteration in circumstances. As to the power of the executing court to take note of altered
circumstances existing at the date of execution, see the cases noted below. 634
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17. Questions not relating to execution, discharge or satisfaction. If the question that
arises between the parties or their representatives does not relate to the execution,
discharge, or satisfaction of the decree, the section does not apply and a separate suit will
lie. The following are leading cases on the subject:

(a) Questions as to the Validity of the Decree. The principle generally is that the court executing
the decree cannot go behind the decree and question its validity. The section assumes that
a valid decree exists. 635 It cannot hold an investigation to determine that the court which
passed the decree, lacked jurisdiction to do so. 636 A decree passed by a court without
jurisdiction over the subject matter or on other grounds which goes to the root of its
exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice . A decree passed
by such a court is a nullity and is non est . Its invalidity can be set up whenever it is sought
to be enforced or is acted upon as a foundation for a right, even at the stage of execution
or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court
to pass a decree which cannot be cured by consent or waiver of the party. 637 A decree
passed by a court having no jurisdiction over the subject-matter would be a nullity and the
judgment-debtor can object to the execution of such a decree being a nullity and non est .
Its invalidity can be set up whenever it is sought to be enforced including the stage of
execution of the decree or any other collateral proceedings. 638 In the eyes of law, a
procedural irregularity in itself would not amount to branding the decree as without
jurisdiction or a nullity. 639 In this case, an argument was advanced that a decree is a nullity,
can be raised even in execution proceedings and a separate suit for a declaration that the
decree is a nullity is not maintainable under s 47. The Karnataka High Court did not
consider this question as this ground was not urged before the lower court and in the
memorandum of appeal. It is respectfully submitted that the defects of jurisdiction can not
be cured hence it is a wrong judgment. In view of Sushil Kumar Mehta v. Gobind Ram Bohra ,
640 it will not be open to a party to challenge a judgment when it is sought to be enforced

on the ground that the judgment is based on wrong conclusions or on erroneous findings
or on wrong application of law. As the remedy of the aggrieved party in such cases is to
challenge the same in appeal or revision, as the case may be and not to challenge it when it
is sought to be enforced, the respondents challenge in this case against the judgment
cannot be sustained. Since the plea of lack of jurisdiction was pleaded by the respondents
and that has been considered and found against them, they cannot raise the very same
point in the executing court. 641 Nor can it set aside a sale on the ground that it was illegal
in the absence of leave by the insolvency court which has appointed the receiver. 642 When
respondents could not be said to be necessary party to the suit, non-joinder of
respondents, would not make a decree passed by the Court of Small Causes, Bombay,
nullity or inexecutable. If the decree is not null and void, as per settled law, appropriate
proceedings will have to be taken by the persons aggrieved by such decree. 643 Where an
arbitrator under the Punjab Co-operative Societies Act, 1961 has jurisdiction to make an award
and makes such award after due notice to the parties, the executing court cannot declare
the award non est and refuse to execute the award. A decree (or award) is non est , only if it is
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against a dead person or against a person not represented or is otherwise made without
jurisdiction.

The award cannot be regarded as non est merely because no reasons were recorded. 644

See note Powers of executing court under s 38, and the note under the heading To what
decree the section applies under s 47 above . But a suit to set aside a decree as invalid is
not barred by s 47, for, the section refers to cases where the satisfaction of the decree as
distinguished from its validity is in issue. 645 But s 8 of the Societies Registration Act, 1860,
which imposes a bar for imposing liability on the members of the society and the decree
passed against the members of the society in their individual capacity is a nullity. The
decree passed against the office bearers of the society cannot be upheld as the decree
against them in their personal capacity. The personal decree passed against the office
bearer of society is a nullity and unenforceable under the law. When once the decree
becomes a nullity, it cannot be executed through the execution proceedings against the
personal property of the bearer of society. 646 That would also be the case where the
challenge is that the decree was obtained by fraud. Such an objection cannot be tried by
the executing court. 647 But, in a recent decision, the Supreme Court has stated that when
the decree is passed by a court which lacks the inherent jurisdiction to pass it, objection as
to the validity of the decree can be raised in an execution proceeding if the objection
appears on the face of the record. But if it does not so appear and requires examination of
the questions raised and decided at a trial, or which could have, but have not been raised,
the executing court will have no jurisdiction to entertain such an objection. Thus, where a
decree for eviction of a tenant has been made by a small cause court without any objection
as to its jurisdiction having been raised and the question depends on the interpretation of
the terms of the lease and the use to which the land was put at the date of the lease, it was
held that these questions cannot be allowed to be raised in the execution proceedings. 648
The principle that an executing court can go into question of lack of jurisdiction apparent
on the record is well-settled. 649 This can be done even where execution has been struck
off in full satisfaction 650 or where delivery of disputed property has been taken in
execution. 651 But where a decree has been passed in a suit filed without notice under s 164
of the Maharashtra Co-operative Societies Act, such a suit lacks maintainability but is not one
without inherent jurisdiction. If the question of maintainability has not been raised, the
decree is binding on the parties and that point cannot be agitated in the executing court. 652

Similarly, a decree passed on an unregistered award is not a nullity. An objection against

such a decree would not be entertained in execution. 653 The question that the decree is
barred by limitation, can be gone into in execution proceedings but not the question that
on account of certain statutory provisions the judgment-debtor was entitled to certain
relief, for, such a question does not directly relate to execution, 654 nor can the executing
court say that a part of the decree contravenes the terms of s 23 of the Moneylenders Act,
1946 and therefore is inexecutable, 655 nor the decree passed against the governing body of
the college which was defendant without seeking leave of the court to continue the suit
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against the university upon whom the interest of the original defendant devolved and
impleading would make the decree void ab initio so as to invoke application of s 47 of the
Code of Civil Procedure and entail dismissal of execution. 656 Under the unamended section,
the view taken was that the question of delivery of possession of a property purchased by a
decree-holder in execution, was not a question relating to execution, discharge or
satisfaction of the decree 657 since, such a question was something consequential upon his
purchasing the property and therefore the purchasers right was either to apply under O 21,
r 97 or file a separate suit. 658 This is no longer correct in view of the new explanation II.
But it may still be held that a dispute between the decree-holder who has purchased the
property in auction sale and his assignee as to who is entitled to the money deposited by
the judgment-debtor for having the sale set aside, does not relate to execution. 659 Such an
assignee is not a deemed purchaser under cl (a) of Explanation II, nor does the question of
deposit of delivery of possession of the auctioned property arise.

Though the general principle is that executing courts cannot go behind the decree and
question its validity, courts have, sometimes, taken into account legislation affecting the
decrees. In one case, the plaintiff obtained a decree for injunction restraining a district
board from realising an illegal tax. After the decree was passed, the tax was validated by
legislation and the court refused to execute the decree on the ground that the decree was
no longer capable of execution. 660 The proprietor of an estate obtained a decree for
possession of certain lands. Before the date of the decree, the title to the lands was
extinguished by the MP Abolition of Proprietary Rights Act, 1951 but this fact had not
been brought to the courts notice when the decree was passed. The judgment-debtor
objected to the execution of the decree on the ground that it was in contravention of the
provisions of the Act and was therefore a nullity. The Supreme Court upheld the objection
and held that the objection could be taken before the executing court under this section. 661
A reversioner against whom a decree is being executed as legal representative of the
deceased judgment-debtor, cannot object in execution that the debt for which the decree
was passed was not binding on the estate of which he is the reversioner but may file a
separate suit for a declaration to that effect. 662 If sons, who are not parties to the suit
against their father on a mortgage and who had been found not to be represented in the
suit by their father, desire to challenge the mortgage on the basis of which the suit was
brought and decree obtained by the mortgagee, they cannot do so in execution. 663 Where
a decree passed against a minor is sought to be executed, the questions whether the minor
was properly represented and whether he has suffered any prejudice, cannot be
investigated in execution proceedings. 664 When the minor has not been properly
represented in a suit, he is not a party to the suit in the proper sense of the term. A suit by
him to set aside the decree in the suit and the sale in execution of the decree is not barred
by this section. 665 But where a suit was decreed, as against a number of defendants some
of whom were minors, a suit by the major defendants disputing the validity of the decree
on the ground that the minors were not properly represented in the previous suit was held
to be barred by this section. 666 An executing court cannot investigate into facts to
determine whether relationship of landlord and tenant existed between the parties when
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the rent court passed the order of eviction in order to determine whether that court had
jurisdiction to do so. 667 If a decree strikes at the jurisdiction of the court or the court lacks
jurisdiction, it strikes at the very root of the authority to pass the order or the decree. Such
a decree will be a nullity. Nullity has to be understood in the sense that it is ultra vires the
power of the court passing the decree and not merely avoidable decree. 668 A declaratory
decree merely declares the right of the decree-holder vis-a-vis the judgment-debtor and
does, in terms, direct the judgment-debtor to do or refrain from doing any particular act or
thing. If a decree does not direct reinstatement or payment of arrears of salary, the
executing court could not issue any process for the purpose as that would be going outside
or beyond the decree. 669

(b) Mal-administration of Judgment-debtors Estate. A decree-holder failing to realise his decree by

execution against the judgment-debtors executor, may file a suit against the executor for
the administration of the estate and for an account on the footing of misadministration.
This is his only remedy for the conduct of the executor and is not a matter for the court of
execution. 670

(c) Second Suit for Redemption. When a mortgagor is, in effect, bringing a suit to execute a
previous mortgage-decree for redemption, the suit is barred under this section. 671 But if
the right to redeem was reserved to him by the decree in the previous suit, a fresh suit for
redemption will lie. 672 The better opinion is that if the former mortgage-decree does not
extinguish the right of redemption, a fresh suit for redemption will not be barred. 673 Such
a suit is not an execution of the former decree, but a fresh exercise of the same right.

(d) Payment Before Decree. In execution of a decree, it is not open to the judgment-debtor to
contend that he should get credit for the amount paid before the decree. 674

(e) Construction of Decree. Executing court can interpret the decree sought to be executed. For
doing so, it can refer to reliefs sought in the plaint and discussions in the judgment in
order to ascertain the true import of the decree. The plaintiff in an Orissa case, prayed for:
(i) declaration of title to the suit land;
(ii) confirmation of possession and (in the alternative); and
(iii) for recovery of possession.

The suit was tried and decreed ex parte. On the basis of the evidence on record, the plaintiff
was found to be in possession and, accordingly, a decree declaring that the plaintiff had got
the right, title and possession over the land in suit was passed. It was held that the
executing court was justified in interpreting the decree to mean that the reliefs sought in
the plaint were granted and since one of the reliefs sought was to direct delivery of
possession, the execution application for delivery of possession was maintainable even in
the absence of a specific direction for delivery of possession in the decree. 675 It is well-
settled that a decree which merely declares the right of the party and has not directed any
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act to be done, is incapable of being executed and only a separate suit, and not an
application under s 47 of the Code of Civil Procedure, will lie to impose the right so declared. It
is equally well-settled that the question whether the decree is capable or incapable of
execution is pre-eminently one coming under the provisions of s 47 of the Code of Civil
Procedure. The question, as to executability of the decree, can be decided by executing court
only and not by the court passing the decree. At the same time, the executing court has to
execute the decree as it is and it cannot go behind the decree. 676 A plea by the managing
director and the director of a private company that they are not personally liable, is a mixed
question of fact and law and could not be raised before an executing court, irrespective of
the fact that a joint decree is passed against the private limited company and its managing
directors and its directors. 677

In a case, decree for permanent injunction was passed restraining the judgment-debtor
from planting any tree on the land in question. The decree did not speak of removal of any
tree which had already been planted. The Supreme Court held that interpreting the said
decree by the executing Court and holding that there should not be any tree within two
karams on either side of common boundary of parties was not in consonance with the
tenor of the decree. It was further held that as the decree did not clothe the decree holder
to pray for execution of the decree by way of removal of the trees, the same could not
have been directed by the learned executing Court in the name of construing the spirit of
the decree under execution. 678

18. Parties to the suit. If the question is one relating to the execution, discharge, or
satisfaction of the decree, but does not arise between the parties to the suit, the section
does not apply, and a suit is not barred. Parties ordinarily means parties who are opposed
to each other in the suit, though not necessarily as plaintiff and defendant; 679 for, in a
partition suit co-defendants may be opposed to each other. Thus, where a decree was
passed against J and R on a joint debt and it was scaled as against J , a subsequent
application by J to adjust towards the decree as scaled, payments made by R is not within
this section, as it is not one between the parties to the order scaling the debt nor could they
be adjusted as they were prior to the scaling. 680 Where a party not taking part in the
execution proceedings to be intimated about the date fixed for hearing 681 questions arising
between parties who are not opposed to each other, or between a party and a stranger, do
not fall under s 47. The following are illustrations:

(a) Questions Between Decree-Holders Inter se. Disputes between rival decree-holders seeking to
attach the same property, 682 or claiming against each other in the distribution of assets, 683
or between joint decree-holders inter se, 684 are not within the section, unless they affect
the judgment-debtor. 685 Where one of the two legal representatives of a decree-holder
transferred his rights in the decree to a third person a suit by the latter against the other
legal representative for his share of the realisations is not barred by this section. 686

In a case, where there was a dispute between decree-holders that warrant of possession
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should not be issued only in favour of one but should be issued in favour of all the decree-
holders jointly and an application under s 47 was filed, it was held that such a dispute
between co-decree holders/co-plaintiffs is not covered by this section. 687 The Madhya
Pradesh High Court relied on the decision of the Apex Court in Jagdish Dutts case 688
wherein it has been laid down that a joint decree can be executed as a whole since it is not
divisible and it can be executed in part only where the share of the decree-holders are
defined or those shares can be predicted or the share is not in dispute.

(b) Questions Between Judgment-Debtors Inter se. The Allahabad High Court has held that
questions between judgment-debtors inter se are not within the section. 689 But the Madras
High Court has held that they are 690 and this has been followed by Rangoon. 691 Where
there is money decree against the principal debtor and the guarantors, their liability is joint
and several. Decree-holder need not exhaust his remedies against the
mortgaged/hypothecated property as well as the principal debtor before proceeding
against the guarantors.

The proposition that the decree-holder must exhaust remedies against the principal debtor
suffers from the vice of total vagueness. The stage when such remedies would be deemed
to have been exhausted, will have to be necessarily spelt out. If not, such a proposition
would create almost insurmountable difficulties in the way of the decree-holder. The law
should not be interpreted so as to deny to the decree-holder, the fruits of his decree. 692
From the scheme of O 21, r 49, it would be clear that in execution of a decree obtained
against a partner in his personal capacity, the property of the partners cannot be attached,
although an order charging the interest of such partner in the partnership property etc
contemplated by O 21, r 49 can be passed. 693

(c) Questions Between a Party and his own Representatives. 694 A question arising between the
representatives of one of the parties is also not a question between the parties and their
representatives. 695

(d) Question Between Decree Holder and Successor-in-interest of Judgment Debtor. If the decree was
passed against the governing body of the college which was the defendant without seeking
leave of the court to continue the suit against the university upon whom the interest of the
original defendant devolved and impleading it, such an omission would not make the
decree void ab initio so as to invoke application of s 47 and entail dismissal of execution.
The validity or otherwise of the decree may be challenged by filing a properly constituted
suit or taking any other remedy available under law on the ground that original defendant
absented himself from the proceeding of the suit after appearance, as it had no longer any
interest in the subject of dispute or did not purposely take interest in the proceeding or
colluded with the adversary or any other ground permissible under law. 696

(e) Party Added at the Execution Stage. Party added at the execution stage is not within the
section, such as a receiver. 697
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(f) Questions Between a Party and a Stranger. A dispute between a party to the suit or his
representatives on the one hand and a stranger (not a purchaser at the execution sale) on
the other, is outside the scope of this section. Under the new Explanation II , a purchaser
or property at a sale in execution of a decree, though a stranger to the suit, is deemed to be
a party to the suit in which the decree has been passed. Before the recent amendment, the
view taken was that a suit by the purchaser in court auction of the interest of a co-sharer
against the other co-sharers for partition and separate possession of that interest does not
fall under this section. 698 But, after the amendment, such a purchaser is a deemed party to
the suit wherein the decree was passed and the question of delivery of possession of the
co-sharers share in the property would be deemed to be a question relating to execution.
Hence the view held in those cases may not henceforth be held to be correct. Where,
pending a second appeal, the decree-holder died and his widows were brought on record
as his legal representatives, an application by a third person claiming to be the
representative of the deceased decree-holder to enforce the decree is not within this
section. 699 Proceedings against the garnishee in execution are outside s 47, 700 and so is an
order directing execution on the application of a commissioner for recovery of costs
directed to be paid by a party. 701 The members of joint Hindu family do not become
entitled to file objections under s 47, Code of Civil Procedure. Section 47, is a special provision
regarding objections in the execution by the parties to the suit. It cannot be extended to
the persons, who are not parties to the suit on the basis that they are also members of joint
Hindu family. This provision cannot be availed by them and the only option for them is to
file a separate suit. 702

When a party is suing or being sued in a representative capacity (s 11, Expln VI and O 1, r
8) all persons whom such party represents, are parties. Thus, if a decree is passed against a
karnavan of a tarwad in his representative capacity, all members of the tarwad are parties to
the suit, 703 in their capacity as members of the tarwad . 704 A minor 705 or a lunatic 706 not
represented by a proper guardian ad litem is deemed not to be a party to the suit. So also,
when a decree is passed against a manager of a joint Hindu family, the junior members will
be constructively parties to the suit only with reference to disputes relating to joint family
properties but not those relating to their individual properties. 707 An objection, however,
on this ground cannot be taken in execution proceedings against the minor or lunatic, for
an executing court cannot go behind the decree, but the judgment may be attacked in
revision or by appeal or by a regular suit. 708 A judgment-debtor, who objected to a sale of
property on the ground that he had acquired a fresh title to it, subsequent to the decree,
was held not to be a party to the suit in respect of that objection. 709 A benamidar is neither
a party nor a representative of a party within this section. 710 A dispute between a decree-
holder and his assignee is not a dispute between parties to the suit and a separate suit
relating to the validity of the assignment is competent. 711 Where in a suit for possession
there was no privity of contract between plaintiff-landlord and respondents, it was the case
of the plaintiff-landlord that property was let out to respondents. Respondents were also
not claiming through the plaintiff-landlord but through the tenant of plaintiff, and at most
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could be treated to be sub-tenants. The respondents/sub-tenant cannot, in the instant case,

be said to be necessary party to suit proceedings and were not required to be joined as
defendants in suit. Non-joinder of respondent sub-tenant to the suit, will not make decree
passed in suit nullity or inexecutable qua sub-tenant. 712

Where a person, who has been joined as a party to a suit being a co-sharer, claims that the
property sold at a court auction in execution of the decree in the suit is in excess of what
could be sold and he is resisted not only by the auction-purchaser but also by the decree-
holder, an issue relating to execution of the decree arises between such person and the
decree-holder, both of whom were parties to the suit. The fact that he was merely joined as
proforma defendant will make no difference. 713 By reason of the new Explanation II(a),
the auction-purchaser is also a deemed party to the suit.

Summary suit for recovery of money advanced by plaintiff to respondent no 2, a

proprietary concern was decreed. The decree was put in execution. A receiver was
appointed in respect of properties of respondent no 2. Respondent no 1, a public limited
company filed objection to appointment of receiver. The stand of respondent no 1 was
that the company has taken over the business of the proprietary concern of respondent no
2. The company is a tenant under the mother of respondent no 2. Since the receiver was
appointed without notice to the company, the substantial rights and interest over the
properties as tenants were being affected. The revisional court set aside the order of
appointment of receiver on ground that on the basis of affidavits it was not possible to say
that transfer if any made by respondent no 2 to the company is a fraudulent transfer and
the matter has assumed the proportion of a full blown suit. The revisional court directed
the execution court to decide the question of title.

It was held that the order of revisional court was clearly unsustainable on more grounds
than one. Respondent no 1 claimed its tenancy from mother of respondent no 2. Her
application to be impleaded as a party in the present proceedings was rejected. At no point
of time had she pressed a claim of being the owner of the property. In any event, the
question of tenancy cannot be decided by the execution court. The executing court cannot
go beyond the decree. It is the settled position in law which flows from s 38 of the Code of
Civil Procedure, except where the decree is a nullity or is without jurisdiction. The crucial
expression in s 47 is all questions arising between the parties to the suit or their
representatives. Order 21, r 54 deals with attachment of immovable property, while r 58
deals with adjudication of claims to, or objections to attachment of property. The case of
respondent no 1 was thus not covered by s 47 or O 21, r 54 or r 58. 714

19. Explanations I and II: Deemed parties to the suit and deemed questions
relating to execution, discharge or satisfaction. Under s 244 of the Code of Civil
Procedure 1882, the High Courts of Allahabad 715 and Calcutta 716 took the view that a
plaintiff whose suit has been dismissed and a defendant against whom a suit had been
dismissed, ceased to be parties to the suit. On the other hand, the High Courts of Madras,
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717 Bombay 718 and later on Calcutta, 719 held that such persons continued to be parties to
the suit for purposes of this section. To resolve this conflict, the legislature introduced an
explanation by which it gave effect to the latter view. However, the further question still
remained unresolved, viz, whether a claim for possession by a purchaser in court auction
held in pursuance of execution of a decree is not one relating to execution of the decree.
The recent amendment omits the explanation and brings, in its place, two explanations.
The first explanation is a reproduction of the first part of the deleted explanation and the
second explanation enacts that such a purchaser is not only to be deemed a party but the
question relating to delivery of possession to him is to be deemed to be one relating to
execution, discharge or satisfaction of the decree. All objections, therefore, to attachment
or sale by the judgment-debtor fall under this section and not O 21, r 58. 720 But if an
objection is raised by two persons, one of whom is a party, but the other is not, and such
an objection is dismissed, the latter could file a suit under O 21, r 63. 721 But that is no
longer possible as that rule has been omitted by 1976 Amendment Act. The procedure laid
down for the execution of the decrees is elaborately dealt with in O 21 of the Code of Civil
Procedure. Various safeguards were fixed to ensure that if any issue arises during the
execution, the same can be dealt with in execution petition proceedings instead of driving
the parties to file separate suit for appropriate relief. As can be seen from s 47 of the Code of
Civil Procedure, all the questions arising between the parties to the suit in which the decree
was passed relating to the execution, discharge or a satisfaction of the decree are required
to be considered by the executing court. Therefore, the requirement of s 47 is that the
question should arise between the parties to the suit and the question should relate to the
execution, discharge or satisfaction of the decree, subject to the explanation. Therefore,
when once the decree is executed or decretal amount is discharged, or the satisfaction is
recorded by the court, no further question would arise for determination of the court. That
is the reason why deeming clauses were introduced. In Explanation II, the purchaser of the
property, at a sale in execution of the decree, was also deemed to be a party to the suit and
all questions relating to the decree of the possession of such property was deemed to be a
question relating to execution, discharge or satisfaction of the decree. 722

As the words of sub-s 1 indicate the words parties to the suit need not be given a limited
meaning as connoting only parties opposed to each other in the suit. A judgment-creditor
and his representative as also a judgment-debtor and his representative are parties opposed
to each other. 723 Where, on an application for execution of a money decree obtained
against the insolvents and their sons, the joint family property of the judgment-debtors
attached before judgment was sought to be proceeded against, the official receiver, who
was a party to the decree, prayed for an order to deliver the attached property for
administration by him on the insolvency side. The issue between him and the attaching
decree-holder, was whether the property was the self-acquired property of the insolvents
or was the joint family property of the father and the sons. It was held that the issue was
between parties to the suit and related to the execution of the decree and consequently had
to be decided by the executing court. 724 On the other hand, the question still remains
whether a person against whom the suit is dismissed on the ground of misjoinder, is a
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party within the meaning of this section. Such a person was improperly impleaded and
therefore, was never treated by the court as a party to whom the decree would be binding.
In this case, the High Court, while deciding the appeal of the judgment-debtor, had
observed that so far as compensation is concerned it would be opened to the D-1 to seek
compensation for the properties in an appropriate proceedings in accordance with law.
The Supreme Court, in appeal, did not consider necessary to get into the scope of s 47 of
the Code of Civil Procedure to decide the controversy. It was observed by the Honble Supreme
Court that the words in an appropriate proceedings cannot certainly mean execution
proceedings of the very same decree, which is but the same proceedings. The said words
meant a separate independent proceedings. 725

In Krishnappa v. Periaswamy , 726 the Madras High Court held that a defendant, against
whom the suit was dismissed on account of misjoinder is not a party. In Sunamma v.
Radhobhayi , 727 the same High Court held that a defendant who had been properly
impleaded, but as against whom the suit was dismissed because the plaintiff had
abandoned his case, as against him is a defendant against whom a suit has been dismissed
under s 47. But when a party whose joinder is not proper is exonerated, he ceases to be a
party and the claim preferred by him to the property attached in execution does not fall
within this section. 728 So also, where sons who were impleaded in a suit for the recovery
of a debt of the father, pleaded exemption from liability and were exonerated, it was held
that they ceased to be parties to the suit and that s 47 did not apply. 729 In a later case,
however, it has been held that whether a party to a suit who has been exonerated continues
to be a party within this section when he is struck off on the ground on which he is
exonerated and when he is struck off on the ground that his joinder was improper, he
ceases to be a party. 730 When a suit is dismissed against the defendant on the ground that
he is not concerned with it, he is no longer a party for the purpose of s 47. 731 Where, in a
suit on a mortgage, the minor son of the mortgagor who disputed its validity, was directed
to be removed, it was held that he still continued to be party and that the binding character
of the mortgage could be decided in execution. 732 A person, who is not a party to a
promissory note, cannot be properly impleaded as a party in a suit thereon and when on
his objection, the suit is withdrawn and dismissed as against him, he is not a party within s
47. 733 In Abdul v. Sundara , 734 a Full Bench of the Madras High Court held that a person
who is not a proper party to the suit, is not a party under s 47 for the purposes of
execution, and that it matters not that the court, instead of striking out his name under O
1, r 10(2), has dismissed the suit as against him. A person whose name is struck off the
record, is a person whom the court does not regard as a person to be bound by the decree
and is, therefore, not a party under s 47. 735 The Allahabad High Court has held that an
order exempting a defendant from the suit is equivalent to an order dismissing the suit as
against him and that if his name is not struck off the record, he is a party to the suit for
purposes of the execution. 736 The executing court can decide the question about the non-
executability of the decree, or it being a nullity and that this aspect of controversy is
covered by the expression execution, discharge or satisfaction of the decree used in s 47 of
the Code of Civil Procedure. 737
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20. Representatives. The representative in this section includes not only legal
representatives in the sense of heirs, executors or administrators, but also representative in
interest, that is, any transferee of the decree-holders interest, or any transferee of the
judgment-debtors interest, who so far as such interest is concerned is bound by the decree.
738 The word representative as used in this section means a person in whom the interest of

a party to the suit has vested either by an act of the party (ie, a transferee from the party) or
by operation of law, which ordinarily means and includes cases of testamentary and
intestate succession upon the death of the party to the suit or upon his insolvency or cases
of forfeiture. 739 Even a transferee pendente lite is a representative of his transferor within
the meaning of sub-s (3) of s 47. One who claims to be a transferee by operation of law,
would as well be a representative of the decree-holders interests in the decree and the
decree-holder disputes it, the execution court has to resolve the dispute for proceedings
with the execution of decree. The word representative used in s 47 is obviously much
wider than the words legal representative as used in s 50 of the Code of Civil Procedure. 740 In
the case of a pre-emption decree, the right to execute it after the death of the pre-emptor
decree-holder, will vest in his legal representative by operation of law. But that would not
be the position where the pre-emptor decree-holder assigns his rights in the decree, in
favour of a third party since the decree-holder has no right to transfer a pre-emption
decree. 741 A surety for the performance of a decree is not a representative of a party
within the meaning of this section. 742 It was at one time supposed that a transferee, by
judicial sale, could not be a representative, 743 but this view is no longer tenable. He is now
a deemed party to the suit to which the decree has been passed. Hence an auction-
purchaser is a necessary party in a revision petition filed against an order refusing to stay
confirmation of court sale. 744 It was also said that a representative is a person who
succeeds to the rights of any of the parties after decree; 745 but this is incorrect for a
transferee may be bound by the decree on the doctrine of lis pendens. 746 Thus, when at the
time of the purchase, the property purchased was under attachment in execution of a
decree, the purchaser was regarded as a representative of the judgment-debtor. 747

ILLUSTRATIONS

(i) A , in execution of his decree, obtained on 14 March, an order for the attachment of the
property of B . The attachment was actually effected on 17 March. But, before this, B had
obtained an interim order from the court of appeal for stay, a copy of which was received
by the court of execution on 16 March. The stay order was vacated on 15 April. C ,
believing that the attachment after the stay order was invalid, purchased the property from
B on 27 May. A , however, continued to prosecute his execution proceeding against B and
three years later the High Court restored the attachment. Held that, as C purchased during
the pendency of the execution proceedings, he was bound by the order of the High Court
on the principle of lis pendens and must be regarded as a representative of B . The question
of the validity of the attachment is one that falls to be decided by the court of execution,
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and it mattered not that the court was called upon to decide the question formally after the
judgment-debtor had sold the property. 748

(ii) A filed a suit against B and obtained an attachment of the properties before judgment.
Then, in execution of an award passed by the Deputy Registrar of Co-operative Societies,
the properties were brought to sale and purchased by C . Then A obtained a decree and
proceeded to sell the same property. C preferred a claim under O 21, r 58 and that having
been dismissed, filed a suit under O 2 1, r 63. It was held that he was a representative of
the judgment-debtor, and that the petition under O 21, r 58 was misconceived, that the
suit under O 21, r 63 was not maintainable but that it could be converted into a proceeding
under s 47. 749 This cannot now be done in view of the omission of sub-s (2) of s 2 ; r 63
of O 21 having also been omitted, no such suit is possible and therefore the remedy of C is
only under this section.

The High Court of Bombay once took the view that a purchaser pendente lite was not the
representative of his vendor. 750 But this view was dissented from by the High Court of
Madras 751 and was contrary to the view taken by the Privy Council 752 and the High Court
of Calcutta. 753 At a later date, the High Court of Bombay changed its view and held, in a
suit for possession of immovable property, that a transferee of a defendant pendente lite was
a representative of the defendant. 754 That was also the view of the High Court of Nagpur.
755 According to a Calcutta decision, two tests are to be employed in order to determine

whether a particular person is a representative: first, whether any portion of the interest of
the decree-holder or of the judgment-debtor which was originally vested in one of the
parties, has by the act of the parties or by operation of law vested in the person sought to
be treated as a representative, and secondly, if there has been devolution of interest in the
person in whose favour it has taken place. 756 A devisee, 757 a legatee, 758 a lessee, 759 and a
person taking joint property under the rule of survivorship 760 are representatives. A sub-
lessee is a representative of the lessee and would be bound by a decree for possession
passed against the lessee provided the eviction is based on a ground which determines the
sub-lease. 761

In a suit for specific performance of contract, an objection was raised by the judgment-
debtor in the execution proceeding that property under the draft sale deed was joint family
property and not his exclusive property and that property has been sold to two outsiders.
It was held by the Orissa High Court that the objection raised by the judgment-debtor for
the first time is not tenable in view of the provisions of s 52 of the Transfer of Property Act.762
The principle of law has been explained in the following words:

Lis Pendens is a doctrine common to the Courts of both law and equity and rests on the
foundation that it would be plainly impossible that any act ion or suit could be brought to
a successful termination if alienations pendente lite were permitted to prevail. The law
maxim ut lite pendente nihil innovetur, i.e. during litigation nothing new should be
introduced, aims at prevention of multiplicity of suits. Even otherwise, where a decree is
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for execution of a document, the executing Court has only to determine whether the draft
document is in conformity with the terms of the decree. The executing Court having no
power to go beyond the decree is not only to act in consonance with the terms of the
decree but ensure that the draft document does not go beyond the terms. Thus where a
decree does not deal with or has given no direction regarding possession of any third
and/or alienation pendente lite, the executing Court will have no jurisdiction to delve into
such aspects. 763

The legatee of a part of an estate is not a legal representative. 764

The following are illustrations of persons held to be representatives under this section:

(a) Effect of Death of Decree Holder on Execution. It is true that in the light of the provisions of r
12 of O 22, Code of Civil Procedure, the provisions of O 22 do not apply to the execution
proceedings and the execution cannot abate on the death of the decree holder, but the
question is as to whether from this provision, it can be concluded that execution can
proceed after the death of the decree holder without substitution of his heirs. The reply
will certainly be in the negative. There must be somebody to prosecute the proceedings
and the execution proceedings cannot be proceeded till the heirs of the decree holder are
substituted. The decree holder, who moved application for execution, died in the year
1982. Her heirs have still not been substituted. The natural question is as to who will
prosecute the execution proceedings.

This principle will equally apply to the decree holder. Therefore, the execution cannot
proceed till the heirs of the decree holder are brought on record in her place. 765

(b) Questions Between Legal Representatives of Deceased Decree-holder. In one case, two persons,
namely the wife and sister of deceased decree-holder claimed the right to represent him.
The proceedings were instituted by the petitioner who claimed to be the heir of the decree-
holder alleging herself to be the sister of the decree-holder. The issue, therefore, which has
arisen is between two persons claiming a right to represent the deceased decree holder.
Neither the petitioner nor the respondent no 2 is a party to the suit. In such a situation, the
dispute about the right of representation is not really between the parties or with even one
of the parties to the suit, but between two sets of persons claiming to represent one of the
parties, namely, the plaintiff decree holder. It is a dispute about who is the legal
representative. In such a situation the provisions of s 47 are not applicable as that
provision applies only to a dispute between parties to the suit. Sub-section (3) of s 47
provides that where a question arises as to whether any person is or is not the
representative of a party such question shall for the purposes of this section be determined
by the court. The words of this sub-section make it clear that the determination is to be for
the purposes of s 47. The purpose of s 47 is the decision of questions arising between
parties to the suit or their representatives and relating to execution discharge or satisfaction
of the decree. Now, the question whether a person is a representative of a party when
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raised by the other party to the suit would be covered under sub-s (1) of s 47 as it would
be a decision between the representative of one party on the one hand and the other party
on the other hand. But where the dispute between two persons claiming to be the legal
representative of one party arises on the death of that party, the dispute is not one between
two parties to the suit or between a representative of one party on the one hand and the
other party to the suit on the other hand and hence would not be a dispute covered under
the scope of s 47 (1) or of s 47 (3), Code of Civil Procedure. Thus, where a judgment-debtor
challenges the right of a person claiming to be the representative of the decree-holder, he
is challenging the right of such person to execute the decree and a question relating to
execution therefore arises between the parties to the suit but a dispute between two
persons claiming to be the legal representative of the decree-holder in which the judgment-
debtor is not interested would not be a dispute between the parties to the suit or with any
party to the suit at all and hence would not be covered under s 47. 766

(c) Transferee of a Decree. A transferee of a decree, or of the interest of any decree-holder in a

joint-decree within the meaning of O 21, r 16, is a representative of the decree-holder. 767
A transferee from such transferee is also a representative of the decree-holder. 768

A judgment-creditor who attaches a decree held by the judgment-debtor against another is

a representative of the judgment-debtor. A holds a decree against B. C obtains a decree
against A , and, in execution, attaches the decree held by A against B . C is a representative
of A in proceedings in execution of A s decree against B. 769 (d) Transferee of Property from a
Judgment-debtor under Money Decree.A obtains a decree against B for Rs 5,000. B then sells
certain property belonging to him to C. C is not a representative of B , for the decree is a
simple money decree, and does not relate to the specific property sold to C . 770

(e) Pre-emption Decree.A obtains a decree for pre-emption and deposits the requisite amount
and then transfers the lands to B. A suit by the transferee for recovery of possession of
lands is not barred as the decree for pre-emption is personal to the decree-holder and the
transferee is not his representative. 771

(f) Decree for Specific Performance. An application for possession of properties in execution of a
decree for specific performance of an agreement to sell, obtained against the transferee of
the vendor, falls within this section as the transferee is the representative of the vendor
with respect to the liability of the latter to deliver possession. 772

(g) Transferee from Judgment-debtor of Property Under Attachment. A purchaser, lessee, or

mortgagee, from a judgment-debtor, of property belonging to the judgment-debtor and
attached in execution of a decree against him, is the representative of the judgment-debtor,
within the meaning of this section, for the property being under attachment at the date of
the purchase, lease or mortgage, the purchaser, lessee or mortgagee is bound by the decree
so far as the interest transferred to him is concerned. 773 But where the judgment-debtor
enters into a contract to sell property before it is attached, the transferee from him
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pursuant to the contract is not his representative. 774 Where in execution of a money
decree, the judgment-debtor was arrested, and he was released on his executing a bond
securing immovable properties, an application by the decree-holder to enforce the bond as
against a person who had obtained a subsequent mortgage from the judgment-debtor fails
within this section as he is a representative of the latter. 775

(h) Purchaser of Judgment-debtors Equity of Redemption Under a Private Sale.A obtains a decree
against B for sale of certain property, mortgaged to him by B . After the date of the decree,
B sells his equity of redemption in the mortgaged property to C. C is a representative of B ,
the judgment-debtor, for the property having been purchased after it was affected by A s
mortgage-decree, C is, to the extent, bound by A s decree. Hence, any question relating to
the execution of As decree, and arising between A and C , must be determined by the
court executing A s decree, and not by a separate suit, 776 and even so if the execution is of
the personal decree passed under O 34, r 6. 777 The same procedure would apply even if B
had transferred his interest in the property to C during the pendency of the mortgage suit
and before the passing of the decree. 778

(i) Purchaser of Judgment-debtors Equity of Redemption at a Judicial Sale.A obtains a decree against
B for the sale of certain property mortgaged to him by B. Before the property could be
sold in execution of A s decree, X , who holds a money decree against B , brings B s equity
of redemption in the mortgaged property to sale in execution of his decree, and it is
purchased by C. C is a representative of B, and judgment-debtor, for the property having
been purchased after it was affected by A s mortgage-decree, C is, to that extent, bound by
A s decree. Hence, any question relating to the execution of As decree, and arising
between A and C , must be determined by the court executing A s decree and not by a
separate suit. 779 A obtained a decree for maintenance and it was charged on property X .
In a sale in execution of the decree, B became the purchaser. X was again sold, in
execution for recovery of subsequent maintenance, and purchased by A. A, having been
obstructed in taking possession, filed a suit against B in ejectment. It was held that it was
barred, as B was a representative of the judgment-debtor and the dispute fell within s 47.
780 But where the properties were sold in court auction prior to the suit on a mortgage and

purchased by the defendants, a suit by the purchaser in execution of the mortgage decree
to eject him is not barred by s 47. 781

(j) A Purchaser of Property from a Party to a Suit in Which an Injunction has Been Granted Affecting
Such Property is not a Representative within the Meaning of this Section.A obtains a decree against B,
restraining B by an injunction from obstructing him in the exercise of his right of way to
his land over B s land. A then sells his land to C. If B obstructs C in the enjoyment of the
right of way, C s proper remedy is by way of suit against B and not in execution under this
section. The reason is that an injunction does not run with the land, and C cannot,
therefore, claim the benefit of the decree against B . 782 Note that C is not a transferee of
the decree, but of the property only. 783
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(k) Official Assignee. The Official Assignee claiming property on behalf of the creditors of an
insolvent judgment-debtor, is not a representative of the judgment-debtor within the
meaning of this section. 784 Nor is a receiver appointed under O 40, r 1 the representative
of the judgment-debtor or decree-holder, as the case may be, as the title of none of parties
to the suit is transferred to him, there being only change of possession. 785 In such a case,
he is really a third party making a claim though for some purposes he would be entitled as
representing the judgment-debtor to litigate matters under s 47. 786 An application by an
official receiver on the insolvency of the judgment-debtor to have a sale in execution of a
decree set aside is made by him as a representative of the judgment-debtor. 787 Whether
such a receiver is a representative of the judgment-debtor or not, is a question to be
determined on the facts of each case. 788 A receiver appointed under O 40, is not a
representative of any party to the suit in which he has been appointed receiver. 789 The
Custodian of Evacuee Properties is a representative of the evacuees and is entitled to apply
under s 47 to set aside a, sale of his interest in execution of a decree on the ground that it
is prohibited by the Administration of the Evacuee Property Act, 1950 and is void. 790

(l) Purchaser from a Judgment-debtor under Order 21, Rule 83. The High Court of Allahabad has
held that a purchaser from a judgment-debtor under O 21, r 83, is a representative of the
judgment-debtor within the meaning of this section. 791 A obtains a decree against B . In
execution of the decree certain property belonging to B is attached and an order is made
for the sale thereof. B then obtains a certificate from the court under O 21, r 83, to sell the
property by private sale, and the property is sold to C in pursuance of the certificate. C is a
representative of B within the meaning of this section.

(m) Purchaser from a Judgment-debtor of an Occupancy Holding. A purchaser from the judgment-
debtor of an occupancy holding not transferable by custom is a representative of the
judgment-debtor. If the holding is sold in execution of the decree against the judgment-
debtor, and he is dispossessed by the auction-purchaser, he may apply for possession
under this section, and not under O 21, r 100. 792 In Tulsiram v. Lakshmichand , 793 the
occupancy right of a tenant A was sold in execution of a decree and purchased by X. Then
the landlord B pre-empted and the sale was set aside on his depositing the sale amount.
Subsequently, B attached and withdrew the amount deposited by X into court in execution
of a rent decree obtained against A . X is entitled to recover the amount from B in a
separate suit as he had ceased to be representative of A when B attached the amount.

(n) Purchaser from a Judgment-debtor of a Portion of a Holding. A purchaser from a judgment-

debtor of a portion of a holding, is, so far as his interest is concerned, bound by the decree
for rent obtained against the judgment-debtor under s 148 A of the Bengal Tenancy Act,
1885 and by the sale in execution of that decree. He is, therefore, a representative of the
judgment-debtor, and if he is dispossessed by the auction-purchaser, he may apply for
possession under this section, but not under O 21, r 100. 794
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(o) Stranger Purchaser at a Court Sale and a Purchaser at a Revenue Sale. A purchaser at a court
sale in execution of a decree of a civil court, who is a stranger, was held to be not a
representative either of the judgment-debtor or the decree-holder. 795 So also, a purchaser
at a sale, held by a revenue court. 796 Now under Explanation II, such a purchaser is
deemed to be a party to the suit and all questions relating to delivery of possession of him
are questions relating to execution to be determined under this section.

21. Objections to attachment or sale by parties or their representatives. Objections to

attachment made by a judgment-debtor or his representative must be distinguished from
those raised by either of them on behalf of a third person. In the former case, the
objection falls under this section and a separate suit has been held to be barred. 797 The
objection could be taken before the sale is confirmed 798 but not after it is confirmed. 799 In
the latter case, the objection is in effect by a third person and falls under O 21, r 58. Until
recently, the position was that such an objector could proceed either by an application
under O 21, r 58 or by a suit. But with the deletion of r 63 of O 21 by the Amendment
Act, 1976, such a suit is no longer possible and therefore he has to file an application
under O 21, r 58 and such an application would be disposed of according to the provisions
of that rule as amended by the Amendment Act, 1976.

If the judgment-debtor objects that the property is not liable to attachment or sale 800 or
that the decree-holder, in connivance with a court peon, has misappropriated part of the
property attached, 801 the objection is by the judgment-debtor on his own behalf and it
must be decided by the executing court under this section. Similarly, if property is attached
as property of a deceased judgment-debtor in the hands of his legal representative, and the
latter objects that it is not the property of the deceased, but his own property, the case falls
under this section for the legal representative is not setting up a jus tertii. 802 A person
against whom a suit is dismissed, is still a party to the suit under Explanation I and an
objection to attachment by him will fall under this section. 803 So also, when on a debt due
by a father, a decree is passed against the sons as his legal representatives, an objection by
them in execution that the decree was not binding on them because the debt was illegal or
immoral is one to be decided in execution. 804 But if the objection is made by the
judgment-debtor or his representative, not on his own behalf, but on account of a third
party as trustee, 805 or as shebait of an idol, 806 or on the ground that the property is wakf ,
807 the objection is under O 2 1, r 58, and not under this section. Where a decree for sale

of mortgage property is passed against a mortgagor and on his death, his legal
representative is brought on record, an objection that the mortgagor had no title to the
property, does not fall under this section, as the objection relates to the validity of the
decree. 808 A suit on a mortgage was filed after the death of the mortgagor, against persons
alleged to be his legal representatives and they pleaded that the properties belonged to
them in their own right. The plea was overruled and a decree passed. A subsequent suit by
them challenging the validity of the decree was held not to be barred as the question did
not relate to execution, discharge or satisfaction of the decree. 809 In cases where the
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mortgagee decree-holder or his assignee had acquired the equity of redemption in an item
of the mortgaged properties after the decree, there is a conflict of opinion as to whether
the mortgage decree is pro tanto satisfied. The preponderance of authority is that it is not,
and the equities between him and the judgment-debtors can only be determined in a
separate suit. 810 So also an objection that the debt in respect of which decree was obtained
against the father (who had died subsequent to the passing of the decree) did not exist, as a
fact, did not, in the special facts of that case, fall under this section. 811

In a money suit for realization of Bank loan, a decree was passed in favour of the Bank. In
the execution proceeding filed by the bank, the properties of the judgment-debtors were
put to auction. In course of the execution proceeding, the judgment-debtors filed
objection that the delay on the part of the decree-holder in selling the property has fetched
lesser price causing loss to the judgment-debtors. However, the judgment-debtors offered
other properties which, if sold, would satisfy the decree. It was held by the Orissa High
Court that the dwelling-house of judgment-debtors will not be sold and steps be taken to
consider other properties offered for sale. 812

When a judgment-debtor seeks the setting aside of a sale by invoking O 21, r 90 of the
Code of Civil Procedure, he is accepting the factum of the sale or the reality of the sale and is
only questioning it on the basis of the material irregularities referred to in O 21, r 90. In a
case where the judgment-debtor is proceeding under s 47 of the Code of Civil Procedure, he
attacks the sale either on the ground that it is void, or that it is voidable on grounds of
illegality, not covered by O 21, r 90 of the Code of Civil Procedure. Where O 21, r 90 applies, s
47 is not available. 813

If a decree is passed against the Karnavan as the manager of a Malabar Tarwad , the
executing court has jurisdiction to determine the decree-holders right to execute the decree
against the other members of the Tarwad . 814

22. Objections to attachment by sale by third parties. If the objection was made by a
third party, the position, until the Amendment Act, 1976 was passed was that he could
proceed either under O 21, r 58 or by a suit 815 but the claim could not be dealt with under
this section. 816 Now a suit is not possible and the claim by such a third party would be
under O 21, r 58 as amended. 817

23. Execution purchaser. There has been a large body of case law relating to questions
arising after the sale of the judgment-debtors property in which the auction purchaser was
concerned. These questions fell into two classes:
(a) where questions arose between the decree-holder on the one hand and the
judgment-debtor on the other hand, the auction-purchaser being only interested in
the result; and
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(b) where questions arose between the auction-purchaser on the one hand and a party
to the suit or his representative on the other hand.

As regards (a), there was no difficulty since these were questions between the parties to the
suit and therefore they fell under this section. 818 It was well-settled that as between the
judgment-debtor and the decree-holder, an objection to the sale in execution could only be
taken in execution and the old s 244, corresponding to this section, was held to prohibit a
suit by a party or his representative against an auction-purchaser. 819 The leading case on
the subject was Prosunno Kumar v. Kali Das. 820 A judgment-debtor, therefore, can seek to
set aside an execution sale:
(i) on deposit under O 21, r 89;
(ii) for material irregularity under O 21, r 90;
(iii) for fraud under O 21, r 90; and
(iv) for other reasons, eg, that the sale is illegal or a nullity for want of notice under O
21, r 22, 821

or under O 21, r 66; 822

(v) or that the judgment-debtor has been adjudged insolvent and the decree gives no
charge upon land, 823
(vi) that the property is not liable to attachment and sale; 824
(vii) that the sale is in contravention of O 34, r 14; 825 that the sale was not warranted
by the terms of the decree; 826 as for example where the properties themselves were
sold, though the decree directed only the sale of mortgage, rights over them; 827
(viii) that the property sold did not belong to the judgment-debtor; 828 that the decree-
holder had purchased without leave of the court; 829
(ix) that the decree had been adjusted; 830
(x) that the sale is invalid having been held after a stay order; 831
(xi) that the property sold was that of the decree-holder instead of the judgment-debtor;
832

(xii) that the receiver had purchased the property in court sale without the sanction of
the court. 833

An order setting aside an auction sale for non-payment of deposit as provided by O 21, r
85, is one under this section whether the auction-purchaser is the decree-holder or a
stranger. 834 Where the auction-purchaser deposited the balance amount under O 21, r 85,
but failed to lodge the receipt therefore, and the court ordered resale, an application for
review of such order is within this section. 835 In general, a party can attack an execution
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sale only in execution proceedings and not in a separate suit. A person against whom the
suit is dismissed is a party and a suit by him to set aside an execution sale is barred. 836

The section is very wide, and in a sense, all questions relating to execution, discharge or
satisfaction of the decree that arise between the decree-holder and the judgment-debtor fall
under this section. The section, however, must be so construed as not to render,
redundant, the other provisions of the Code of Civil Procedure, e.g. rr 89, 90, and 91 of O 21.
837 It has been held that an application by the decree-holder for confirmation of the sale

on the judgment-debtors failure to carry out the terms of the arrived at in a proceeding
under O 21, r 90 is an application under this section. 838 But an order allowing an
application by the decree-holder under O 21, r 66 for reduction of upset price in a sale
does not. 839 An application by the judgment-debtor to set aside a sale on the ground of
failure to affix the sale proclamation in any part of the property, proclaimed for sale, falls
under this section and not under O 21, r 9. 840 Broadly stated, when a sale in execution of a
decree whose validity is not questioned, is attacked on the ground that it is not merely
irregular but illegal and void, that must be done by a proceeding under this section and not
in an independent suit. 841 As regards (b), i.e. questions between the auction-purchaser on
the one hand and a party to the suit or his representative on the other hand cases fell into
two classes:
(i) cases where the decree-holder himself was the purchaser and the judgment-debtor
claimed to set aside the sale; and
(ii) cases arising between the auction-purchaser and the judgment-debtor and where the
former sought to recover possession of the property purchased by him.

In such cases, the property may have been purchased by the decree-holder with the leave
of the court under O 21, r 72 or by a stranger. Even where the decree-holder himself was
the purchaser, two questions used to arise, viz, whether for the purpose of recovering
possession of the property the decree-holder purchaser was a party to the suit within the
meaning of this section or whether he had ceased to be a party to the suit by reason of his
purchase and whether the question as to delivery of possession to him was one relating to
execution, discharge or satisfaction. In such a class of cases, it was held that so far as the
judgment-debtor was concerned, he had to proceed by an application under this section.
842 But as regards the judgment-creditor purchaser there was a conflict of opinion on both

the points. The High Courts of Madras, 843 Calcutta 844 and Nagpur 845 held that the
decree-holder retained his character as a party to the suit though he was also the purchaser
and the question as to delivery of possession to him was one which related to execution of
the decree. The High Court of Madhya Pradesh also took the view that dispute as to
possession between the decree-holder auction-purchaser and the judgment-debtor was one
falling within this section 846 and so also such a question between the decree-holder
auction purchaser and a transferee from the judgment-debtor subsequent to attachment. 847

According to the other view which was held by the Allahabad, 848 Patna, 849 Bombay, 850
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Lahore, 851 and Rangoon 852 High Courts, a decree-holder-purchaser stood on the same
footing as a stranger purchaser so that he could proceed either under O 21, r 95 or by a
suit for possession. The reasoning was that either the question of possession to such a
purchaser was not one relating to execution 853 or that the decree-holder-purchaser on his
purchase, ceased to be a party to the suit. The cases in which it was held that the decree-
holder-purchaser ceased, on his purchase, to be a party were not correctly decided in view
of the Privy Councils ruling that such a purchaser continued to be a party even after
purchase by him. 854 If the decree-holder-purchaser is obstructed in obtaining possession
by a stranger claiming bona fide to be in possession on his own account, the question would
not be within the purview of this section but within the purview of O 21, r 97 and r 101, as
recently amended and not by a suit as held earlier. 855

Similarly, if the decree-holder purchaser were to be obstructed in obtaining possession by

the judgment-debtor and a stranger to the suit, the case would not fall under this section.
But the remedy would not be by a suit as held in earlier decisions 856 but by an application
under O 21, rr 97 and 101 as amended by the Amendment Act, 1976. Some of the
Allahabad cases where questions were raised as to whether the decree-holder-purchaser
was or was not the representative of the decree-holder, are no longer relevant as the
remedy of a decree-holder where possession by him is resisted is by way of an application
to the executing court under O 21, r 97 and not by a suit.

Under the section, as it stood before its amendment by Act 66 of 1956, where a stranger
auction-purchaser sought to recover possession from the judgment-debtor, the questions
raised were:
(i) whether such a purchaser was the representative of either party to the suit; and
(ii) whether, the question of possession by him was a question relating to execution,
discharge or satisfaction of the decree.

The conflict of opinion as regards question (2), has been already referred to. On the
question whether a stranger purchaser is a representative or not and if so, whose
representative, there was conflict. The High Courts of Bombay 857 and Patna 858 held that
he was not a representative of either party to the suit. On the other hand, the Calcutta 859
and Allahabad 860 High Courts held that he was not the representative of the decree-holder
but that he was the representative of the judgment-debtor. In Madras, there was conflict
within the High Court itself, until such conflict was sought, though not successfully, to be
resolved by a full bench in Veyindramuthu v. Maya Nadan . 861 The Lahore view was that a
stranger purchaser was not the representative of the judgment-debtor. 862 For the view of
Oudh Court. 863 The Nagpur High Court held that a dispute between a stranger auction-
purchaser and the judgment-debtor regarding delivery of possession is one relating to
execution and further that such an auction-purchaser is the representative of the decree-
holder and therefore such a question would fall under the purview of this section. 864
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All the High Courts 865 seemed to hold that where an auction-purchaser, who is a stranger,
was resisted in obtaining possession by the judgment-debtor of the property purchased by
him in execution, he could apply for delivery of possession under O 21, r 95 and that this
section would not apply either because he was not the representative of the decree-holder
or because the question as to delivery of possession to him was not one relating to
execution, discharge or satisfaction. The Bombay view was that an auction-purchaser, even
if he were the benamidar for the decree-holder was a stranger. 866 In Madras, the Full Bench
decision in Veyindramuthu s case 867 was treated as an authority for the proposition that an
auction-purchaser, though he be a stranger, must proceed by an application under this
section and not by a suit. But this view was changed in a later Full Bench case 868 where it
was held that when the judgment-debtor or any one at his instigation resists or obstructs
the stranger auction-purchaser, the latter must proceed under O 21, r 97 and not under this
section.

Apart from cases under O 21, r 95, questions relating to execution may arise in different
ways. The High Court of Allahabad held that where property not included in the mortgage
deed or in the mortgage decree was sold and delivered to a stranger purchaser in execution,
the judgment-debtor could not apply under this section and that his remedy was by a suit.
869 The Madras High Court following Veyindramuthu s case, held that it was this section

which applied. 870 A Full Bench of the Allahabad High Court has held that an auction-
purchaser under a decree which has been, after confirmation of the sale, set aside as a
result of a separate suit, could apply under this section for recovery of the purchase money
from the decree-holder. 871 But a Full Bench of the Madras High Court has held that
where the sale was set aside in execution by an application under O 21, rr 89, 90 or 91, the
auction-purchaser could obtain refund under O 21, r 93, but where the sale turned out to
be futile as the result of a finding that the judgment-debtor had no saleable interest in the
property, in a suit by a third party after confirmation of the sale, the remedy was by way of
a suit. 872 In the face of such a medley of conflicting views, it was time for the legislature to
intervene and resolve the conflicts. This was done, though partially, by Act 66 of 1956
which amended the explanation to the section by providing that for purposes of this
section, a purchaser at a sale in execution of the decree is a party to the suit. Consequently,
a purchaser at an execution sale, whether he is the decree-holder or not, is a party to the
suit and the question raised earlier whether he was a representative or not and if so,
whether, of the decree-holder or of the judgment-debtor ceased. The result of the
amendment was that all questions arising between the auction-purchaser and the
judgment-debtor had to be decided by the executing court and not by a separate suit. 873 In
spite of the amended explanation, it was still necessary in order to bring the dispute under
this section, that it must relate to execution, discharge or satisfaction of the decree. Thus,
with the changed explanation, the earlier decisions dealing with the question whether an
auction-purchaser is, or is not, a party to the suit and the distinction between a decree-
holder purchaser and a stranger purchaser have lost their relevance. 874 But if a right to file
a suit was available to a stranger auction-purchaser under the law as it stood before the
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amendment, that right would still survive since the amended explanation, did not expressly
or by necessary implication take away such a right. 875 The partial lacuna left by Act 66 of
1956, regarding the question as to when a question is to be regarded as one relating to
execution, has now been filled in by the Amendment Act, 1976 which by the new
Explanation II has enacted that not only an auction-purchaser is to be deemed to be a
party to the suit wherein the decree has been passed but also that all questions relating to
delivery of possession of such property shall be deemed to be questions relating to
execution, discharge or satisfaction. Henceforth, all questions relating to delivery of
possession between an auction-purchaser, whether he is a decree-holder or a stranger and
the judgment-debtor and his representatives are to be determined under this section.
Under s 47, Explanation II(a), the auction-purchaser is deemed to be a party. Under
Explanation II(b), questions relating to possession are deemed to be questions relating to
execution etc. Hence, such questions when raised by or against an auction purchaser, have
to be determined by the court executing a decree, and not by separate suit. 876

24. Application by an auction-purchaser for costs on improvementswhen sale set

aside. If the order confirming a sale is set aside and the auction purchaser applies for
compensation as regards improvements made by him, the application does not fall under
this section. It does not relate to the execution, satisfaction or discharge of the decree. But
the court can act under s 151. 877

25. Sub-section (3): Inquiries as to who is representative of a party. The question

whether a person is a legal representative of a party so that execution should proceed
against him is one to be decided by the court in execution. 878 An application by a person
who claims that the decree-holder on record is a benamidar and that he is the heir of the
true decree-holder is not within this section. 879 The court, no longer, has the option of
staying the execution proceeding until the matter is settled by suit. This sub-section is
ancillary to sub-s (1) and is limited to questions relating to the execution, discharge and
satisfaction of a decree, and does not apply to the determination of a question between
rival representatives of one party. 880 The same rule applies when the question arises in
execution proceedings as to whether a certain person is a transferee of a decree, for a
transferee of a decree is, as stated above, a representative of a party within the meaning of
this section. Until the amendment of the definition of decree by the deletion of the words
s 47 in s 2(2) by the Amendment Act, 1976, an order determining whether a person is a
representative of a party was a decree and therefore appealable 881 This is no longer the
position .

If the transferee of a decree dies pending execution, the executing court has power, under
this section, to inquire whether the transferee was merely a benamidar for another and to
allow the real owner to execute the decree. 882

26. Stay of execution. The words or to the stay of execution thereof which occurred in s
244 after the words execution, discharge or satisfaction of the decree were omitted in 1908.
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As a result of the deletion, two possible views were entertained. One was that the words
were omitted because they were thought superfluous, as a plea that the execution may be
stayed was equivalent to the plea that the decree should not be executed and it was thus a
question relating to the execution of the decree. 883 The other view was that they were
deliberately omitted and therefore questions relating to stay of execution were no longer
within the section. 884 The Lahore High Court, after considering all the authorities, took
the former view 885 and held that an order staying execution was one relating to the
execution of the decree in the same way that an order dismissing an application for
execution as time-barred would so relate and that the only difference between the two was
that in one there was temporary suspension, while in the other there was prohibition. It
has been held that a person who has stood as surety for costs and against whom a decree
for costs has been consequently passed is a judgment-debtor within the meaning of s 2
(10) and can therefore apply for stay of execution of the decree pending an appeal
therefrom. 886 The High Court of Rajasthan, in Sohanmal v. Rajmal , 887 held that the
question whether an order staying execution is appealable or not, depended on whether it
finally decided any question as to the rights and liabilities of parties is no longer correct law
in view of the amendment of the definition of a decree in s 2 (2).

An order made at the instance of an interim receiver under s 52 of the Provincial Insolvency
Act, 1920 stopping a sale, does not fall under this section.888 The courts are normally slow
in staying the execution of a decree unless some cogent reasons are placed before the
court. 889

27. The term execution has not been stayed. The term execution has not been stayed
(Under Section 9 (2); Presidency Towns Insolvency Act (3 of 1909)) could only mean an
execution which is possible in a civil court under Code of Civil Procedure. The order as such
not being capable of execution in a civil court under Code of Civil Procedure, it must be taken
as being not capable of execution as it stands today. 890

28. Sub-section (2)its omission. Sub-section 2 was introduced in this section, in order to
give legislative sanction to the practice followed by the courts under the earlier Code of Civil
Procedure. It enabled the court to treat an application under this section, as a suit or a suit as
an application. If an application was brought, the court could treat it as a suit but then it
had to be disposed of by itself and the parties were not to be referred to a separate suit. 891
Conversely, if a suit was brought for determination of a question which fell under this
section, the court had a discretion, either to dismiss it or treat the plaint as an application
under this section and dispose it of accordingly, provided of course, that the court in
which the suit was brought, had jurisdiction to execute the decree 892 and the execution
was not time-barred. 893 An application for execution could be treated as a suit, only when
the court in which it was made, had jurisdiction to try it. 894 Accordingly, a small cause
court could not convert an application by a sub-tenant claiming relief under the rent Act
into a suit for declaration of title. 895 The power was discretionary 896 and therefore no
appeal lay against an order under the sub-section though the definition of decree, as it then
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stood, brought such an order within it. 897 The discretion being judicially exercisable, its
exercise had to be in accordance with law. 898 The power was also exercisable by an
Appellate Court which could treat a plaint filed in the lower court as an application and the
decree brought before it in appeal as an order under this section. But the Appellate Court
also would not exercise its discretion unless the court which passed the decree had
jurisdiction to execute the original decree 899 and the suit was filed within the period of
limitation prescribed for applications under this section. 900 In a case where a party, instead
of applying under this section, filed a suit which he prosecuted upto the stage of a second
appeal, the High Court of Allahabad refused to exercise its discretion to treat the plaint as
an application. 901 A minor, objected in execution proceedings that he had not been
represented by any guardian ad litem in the suit but the executing court refused to entertain
the objection as one affecting the validity of the decree.

On appeal from that order, the Allahabad High Court treated the application as a suit and
made a declaration that the decree was not binding on the minor. 902 Conversely, when a
minor filed a suit to set aside a sale on the ground that he was not properly represented in
the execution proceedings, it was held that the sale was not binding on him, but that that
question should be agitated in execution proceedings and accordingly the plaint was treated
as an execution application. 903

These powers have now been withdrawn by the legislature omitting sub-s 2 from the
section. The omission is in pursuance of the legislative policy that all questions between
the parties to the suit in which the decree was passed and their representatives should be
disposed of under this section and not by a suit and further that an order made in such
applications is not a decree from which an appeal would lie. The omission had to be
logically effected since the power of the court to convert an application into a suit and vice
versa ceased to be relevant, or in consonance with the amendments carried out in this
section as also s 2 (2).

29. Where a sale is sought to be set aside on the ground of fraud. It has been stated
above, that the procedure for setting aside a sale on the ground of fraud in publishing or
conducting the sale is by an application under O 21, r 90 and not by a separate suit. But an
execution sale may also be challenged on the ground that the decree on which it is
founded, is itself tainted with fraud, and in this case, the remedy is by a regular suit. The
following are the leading cases on the subject:

(i) A suit will lie to set aside a decree and the sale held in execution of the decree where
both the decree and sale are impeached on the ground of fraud. 904 The reason is that the
question of the validity of a decree can only be determined by a regular suit. 905

(ii) A obtains an ex parte decree against B . In execution of the decree, a certain property
belonging to B is sold and purchased by C. The decree is then set aside under O 9, r 13. B,
thereafter, sues A and C to set aside the sale challenging not only the sale, but also the
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decree, on the ground of fraud. The suit is not barred under this section; B is entitled to
show that the decree was obtained by fraud, and this can only be done in a regular suit. 906

30. Setting aside sale instances. A bare reading of s 47 of the Code of Civil Procedure shows
that its scope is very wide and comprehensive enough to include all questions relating to
the execution, discharge, or satisfaction of the decree. The question about saleability of the
judgment-debtors interest in a property attached in the execution proceedings is held to be
a question which falls within s 47.

Following are the illustrations of sales which are held to be liable to be set aside under s 47
of the Code of Civil Procedure.
(i) A sale in contravention of s 99 of the Transfer of Property Act, 1882 is void,
notwithstanding that a third party is the purchaser and only a portion of the
property sold was under mortgage. Such a sale may be set aside under the present
section.907
(ii) Where the decree-holder is himself the auction purchaser and the ex parte decree, in
execution of which he purchased, has been subsequently set aside under O 9, r 13,
the sale cannot stand, even though it had been confirmed. An application to set
aside the sale under such circumstances comes under this section. 908
(iii) A court, in execution of decree, has no jurisdiction to sell property over which it
had no territorial jurisdiction at the time it passed the order of a sale; such a sale
may be set aside under this section. 909
(iv) Where, through inadvertence or otherwise, the court orders sale of any property in
execution of the decree, notwithstanding such previous discharge of it, the sale
under such order would be null and void as ultra vires . Such a sale may be set aside
under this section. 910
(v) The question arising between a judgement-debtor and the auction purchaser as to
whether certain property was liable to attachment and sale, is one to be determined
under this section. 911
(vi) Where a judgment impeaches the validity of execution proceedings which
proceeded and led up to the sale of his property, and thus seeks to have sale set
aside, his remedy lies by application under this section. 912
(vii) An application to set aside an execution sale on the ground of fraud, the fraud
being that the decree had been satisfied by payment to the husband of the decree-
holder on the day before the sale, but the payment was not certified and the sale
was held, comes within the scope of this section. 913
(viii) An application by the judgment-debtor asking the court to set aside the sale and
to restore him to possession of the property not covered by the decree is an
application relating to the execution, discharge or satisfaction of the decree under
this section. 914
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(ix) An application to set aside an execution sale on the ground of absence of notice of
the settlement of sale proclamation, as required by O 21, r 66 can only be
considered under this section. 915

31. Appeal. Before the Amendment Act, 1976, the determination of a question under this
section was under s 2 (2) as it, then was, a decree and as such, unless it was an order under
O 43, r 1 subject to an appeal and a second appeal. The omission of the words Section 47
from the definition of decree in s 2 (2) has now drastically changed the position. An
application under this section is not a suit. The order determining it is no longer a decree
and is appealable only if it falls under s 104 (1)(i). Sub-section (2) of s 104 provides that no
appeal shall lie from any order passed in appeal under this section. Orders passed under
this section are not appealable, unless they are orders falling under O 43, r 1. A
determination under O 21, rr 34, 73, 92 or 106 (1) is appealable under O 43, r 1 read with s
104 (1) (i). Such a determination, when it is between the parties to the suit or their
representatives, would fall under this section but would nevertheless be subject to one
appeal, if it is also an order falling under O 43, r 1. As regards appeal, therefore, orders
under this section would be:
(i) orders also falling under O 43, r 1; and
(ii) orders not falling under O 43, r 1 and therefore not appealable.

An order of the executing court refusing to restore an application by the judgment-debtor

dismissed earlier for default, amounts to confirmation of sale but since it is not a reference
to set aside the sale, it is not appealable under O 43, r 1. 916 Disputing from Parshva
Properties v. AK Bose , 917 the Punjab and Haryana High Court has held that an order under s
47 is (after 1976) not a decree and not appealable as a decree. 918

Appeals already filed and pending on the date when the Amendment Act, 1976 was
brought into force i.e. 1 February 1977, are expressly saved by s 97 (2) of the Amendment
Act. 919

32. Dismissal of appealeffect on pending execution. When the Supreme Court had
stayed the execution proceedings pending disposal of the civil appeal, after the disposal of
the appeal, there was no impediment or bar to continue the execution proceedings on the
application moved by the appellants to proceed with the execution. The High Court
committed a manifest error in taking a view that a fresh execution petition should be filed
after the dismissal of the appeal by this court as the decree passed by the High Court had
merged with the decree of Supreme Court and the execution petition filed earlier which
was pending, was not maintainable. As already noticed above, this court, in appeal, only
confirmed the decree passed by the High Court without any alteration or modification.
Even otherwise, in a pending execution case, amendment could be sought if it was needed
after dismissal of the appeal by this court, under O 21, r 11(2)(d) of the Code of Civil
Procedure, in the execution application, the particular as to whether any appeal has been
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preferred from the decree is to be mentioned. If an appeal has been preferred from a
decree and after disposal of the appeal necessary information can be given by filing an
application, if need be seeking an amendment. It is one thing to say that the earlier decree
passed gets merged in the decree passed by the Appellate Court, yet it is a different thing
to say that an execution petition filed earlier is not maintainable and that there is a need to
file a fresh application for execution after a decree is passed by the Appellate Court,
particularly when the Appellate Court had stayed the execution proceedings filed earlier, it
was obvious that the execution proceedings could be continued after dismissal of the
appeal by Appellate Court without any alteration. 920

33. Revision. The exercise of power under s 115 of the Code of Civil Procedure is broadly
subject to the conditions that the decision, i.e. , the impugned order, must have been given
by a court subordinate to the High Court, and no appeal lies either to the High Court or to
any lower Appellate Court against the said decision and in deciding the case, the
subordinate court must have appear ed to have exercised the jurisdiction not vested in it by
law or failed to exercise a jurisdiction vested in it by law or acted in the exercise of its
jurisdiction illegally or with material irregularity. The purpose behind s 115 of the Code of
Civil Procedure is to provide means to an aggrieved party to obtain ratification of a non
appealable order. Therefore, for the maintainability of a revision petition there must be an
error relating to the jurisdiction committed by the court below either by way of assumption
of jurisdiction which it does not have or failure to exercise jurisdiction which it has or by
exercising its jurisdiction illegally or with material irregularity. In this case, the impugned
order is a composite order saddling a special cost of Rs 25,000 against the judgment-
debtors petition besides a direction to the seristedar to calculate the amount due under the
decree taking into account the compound interest at the rate of 15 per cent per annum,
capitalising the said interest in the principal sum. The operative part of the decree has been
quoted above wherein simple interest at the rate of 15 per cent per annum had been
awarded on the principal sum of Rs 2,58,222 wef 5 October 1985, till its realisation. There
is no decree in this case for payment of compound interest at the rate of 15 per cent per
annum with annual rest capitalising the sum with the principal amount. It is the settled
principle of law that an executing court has no jurisdiction to go behind a decree. The
learned court below has construed the interest at the rate of 15 per cent per annum as
compound interest which is not in the decree. The executing court has no right to vary the
terms of the decree, however, erroneous it may be in the execution proceeding. Therefore,
it is a clear case in which the executing court has committed a manifest error relating to its
jurisdiction which it does not have and the exercise of its jurisdiction is definitely illegal
and it equally suffers with material irregularity which has cost irreparable injustice to the
judgment-debtors petitioner in this case and in this view of the matter, failure of justice
was occasioned in this case. Viewed thus, the revision filed by the judgment-debtors
petition is maintainable. 921

The expression other proceedings in s 115 of the Code includes proceedings under s 47.
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As such, revision petition against an order rejecting objection under s 47 of the Code
would be maintainable. 922

34. Appeal remanded for disposaleffect on execution. Where no order for execution of
decree was passed at any stage of proceedings and a remand order was passed by the
Supreme Court in a Special Leave Petition, for hearing appeal by Appellate Court de novo,
still the decree of trial court would be executable as the Supreme Court judgment was
passed neither in affirmation of the decree of the trial court in expressed terms; nor any
stay of operation of the decree of the trial court has been granted. Logically, the appeal has
been restored in the same position as if it were before. 923

In this case to apply principle of merger there must be a decree of the Supreme Court and
the aforesaid order cannot partake of the character of the decree. The order of remand
does not decide anything else, rather it is sent for the decision to the subordinate court. It
is needless to mention that there is a distinction between decree and order. 924

It cannot also be said in such a case that the decree of trial court is not in existence in view
of the order of remand. Unless there is a decree, question of deciding the appeal does not
and cannot arise. It is absurd to suggest that for the purpose of hearing of the appeal the
decree would be operative, whereas for execution purpose it is kept in abeyance in view of
the order of remand. The law cannot be applied discriminatingly in the same context. It
cannot further be said that because of the order of remand of the Supreme Court, stay of
operation of the decree had become automatic, as it will defeat the mandatory provision of
the other portion of the law as O 41, r 5 provides for granting stay of operation of the
decree by the Appellate Court. 925

35. Orders passed under Special Statutes. A dispute between the parties arising out of
an order passed under a special statute is within this section if it relates to execution,
discharge or satisfaction thereof. 926 Thus, orders passed under s 15 of the Bombay
Agricultural Debtors Relief Act, 1974; 927 under s 20 of the Madras Agriculturists Relief
Act, 1938; 928 under s 16 of the Bengal Premises Rent Control (Temporary Provisions)
Act, 1950; 929 under s 18 of the Madras Buildings (Lease and Rent Control) Act, 1946 930
have been held to be appealable under this section. In view, however, of the change in s 2
(2) this observation is no longer applicable and though such orders would fall under this
section, an appeal against them can only lie if they fall under s 104 (1)(i).

36. Limitation procedure and evidence. An application under this section to set aside a
sale in execution of a decree must be made within 30 days from the date of the sale. 931 But
if the sale is void, as where no notice is given as required by O 21, r 22, it is not necessary
to apply to the court to set aside the sale. Hence the Article applicable in such a case is the
residuary Art. 137 which provides a period of three years from the date when the right to
apply accrues, and not Art. 127. 932 An application under this section by a representative of
a judgment-debtor to set aside a sale on the ground that the property sold, belongs to him
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and not to the deceased judgment-debtor, is governed by Art. 127 and must be made
within 30 days from the date of sale. 933 In the case of execution against government,
limitation does not commence until after compliance of s 82 since the decree until then is
not executable. 934 The objections under s 47 should not be disposed of summarily. It is
true that the executing courts are not enjoined by the statute to frame issue and dispose off
the same in the same manner as a suit. Nevertheless, it is under an obligation to decide the
dispute in a judicial manner. If the judgment-debtor wants to lead evidence, the judge
ought to allow an opportunity to prove the assertion made in the objection petition. The
executing court cannot dismiss the objection petition without going into the merits of the
case. 935 A suit was filed for the recovery of profits alleged to have been misappropriated
by the receiver. It was decreed ex parte . Both the parties to the decree died. The successor-
in-interest of the decree-holder applied for execution. It was held that succession certificate
was not needed. The amount in question was not a debt. 936 Symbolical delivery of
possession of the sold properties supported the case of the intervener to be in possession.
The sale being void, the intervener is entitled to continue in possession and the decree-
holder is not entitled to interfere with it. 937 The upset price has some relation to the price
which the property intended to be sold in the auction is expected to fetch. When the court
gives the price, it cannot do so merely on the ipse dixit of either of judgment-debtor or the
decree-holder. What should be the amount to be fixed as the upset price must, therefore,
be determined after an objective consideration of all the relevant facts to which the court
must apply its mind, so as to safeguard the interests of the judgment-debtor. The court
must, therefore, have before it, the necessary material with regard to the nature of the
property whether the property is agricultural property, the use to which the property was
being put, whether the cultivation is dry cultivation or wet and such other factors which
ultimately go to determine the value of the property. 938 If the decree is not fully satisfied
the decree-holder is entitled to bring the other properties of the judgment-debtors to sale.
The auction-purchaser similarly has a right to seek permission to deposit the entire sale
price. The court sales are not an empty formality. The objections, if any, regarding
confirmation of sale, must be raised before the executing court. Judgment-debtor must not
be granted interim stay. 939 Property was sold in execution of a decree suit. A suit to set
aside the sale was decreed, declaring the decree (which was the subject matter of execution)
as not binding on the plaintiff. Direction for restitution of suit property was also contained
in the decree. Decree was not merely declaratory. Considering the long pendency of
litigation, the Supreme Court directed payment of market value of the suit property by the
defendant, instead of restitution. On the facts and in the circumstances, and in
consideration of the fact that the litigation was pending for a long period, the Supreme
Court directed that justice and equity would be met after assessing the prevailing market
value of the disputed house and the site as on date and directed the appellant to pay the
value thereof within a time to be fixed by the District Court of Kotah. 940 Executing court
cannot take additional evidence. It can however, appoint a commissioner to ascertain
identity of the property in terms of the decree. A compromise decree finally allotted
specific properties to the parties. It was held that it was executable by itself. Final decree
need not be drawn up. 941
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If, the Appellate Court has dismissed the appeal filed by judgment-debtor against decree of
trial court, the decree of trial court merges with the decree passed by the Appellate Court
and the execution petition filed within 12 years from the date of order of the Appellate
Court is not barred by limitation. 942 The period of limitation for filing execution petition
begins to run when the decree or order becomes enforceable. Appeal preferred against a
decree is a continuation of suit. It is the decree of the Appellate Court only which is
enforceable and capable of execution and not the decree passed by the trial Court. 943
However, were filing of appeal against decree cannot make the decree in executable. The
decree remains executable but its execution can be suspended by order of the Appellate
Court as per O 41, r 5 (1) or by the executing Court as per O 41, r 5 (2). 944

In the undernoted case, 945 the Supreme Court held that S. 4 (b) (i) of the Pondicherry
Limitation (Repeal of Local Laws) Act, 1994 would not save the execution petition from
the bar of limitation, where the execution petition is filed after the period of limitation. In
that case, the execution petition to execute the decree passed on 22.4.1983 was filed on
10.11.1995. Earlier execution petition filed by the decree-holder was dismissed for default
and the petition filed for its restoration was dismissed as not pressed. The Supreme Court
observed that no execution petition was pending on the date of commencement of the
1994 Act and as such the savings clause will not be applicable.

Limitation period for execution is governed by art 136 of the Limitation Act, 1963 read
with Art. 134. Section 47 is not concerned with limitation.946 The Supreme Court in
Ramanna v. Mallaparaju , 947 laid down that an application by a party to the suit to recover
possession of the properties which had been taken delivery of under a void execution sale
would be in time under Art. 181 of the Limitation Act, 1908, if it was filed within three
years of its dispossession. Art. 128 of the Limitation Act, 1963 of which the corresponding
article is Art. 165 of the Limitation Act, 1908, lays down that the period of limitation is 30
days from the date of dispossession, for filing a petition for possession, by one dispossesd
of immoveable property and disputing the right of the decree-holder or purchaser at a sale
in execution of the decree. It has been made clear in Rammannas case that this Article
applies only to applications for being restored to possession by persons other than the
judgment-debtors as under O 21, r 100 of the Code of Civil Procedure and applications by
judgment-debtors claiming relief on the ground that their properties which had been
erroneously taken is execution of decree, are not governed by it. 948 The plea of lack of
jurisdiction can be raised at any time even in second appeal, so also on the execution sides.
949 The Madras High Court, relying upon Bhanwarlal v. Satyanarain , 950 held that each

occasion of section gives a cause of act ion for filing an application to remove the
obstructions. 951 The provision under Limitation Act, 1908 are applicable to proceedings of
execution by virtue of O 21, r 105 (4). 952

37. Res Judicata. Principles of res judicata as also of constructive res judicata apply to
decisions in execution proceedings as between the parties. 953 Therefore, if a judgment-
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debtor, who might and ought to have raised a defence at an appropriate stage, has failed to
do so, he would be precluded from urging it at any subsequent stage of the proceedings. 954
Accordingly, where the court is competent to decide a question as to jurisdiction arising
from the interpretation or the applicability of a statute, even an erroneous decision is
binding on the parties. 955 Where the widow of the judgment-debtor failed to appear in
spite of notice under O 21, r 22 and raise the objection as to the saleability of the property
before an order of attachment was made, it was not open to her, to subsequently file an
application, under this section for release of the property even though the property
proceeded against was her personal property and not belonging to her husband. 956 But the
dismissal of an application resisting the execution for default of the judgment-debtor is not
a decision after hearing the parties and therefore does not operate as res judicata . 957 The
decree-holder, after fighting the legal battle for more than a decade, succeeded in getting a
decree for the restoration of possession of the land in dispute. Only symbolic possession
was delivered to her, as the land was under crops. There was no evidence to hold that the
decree-holder consented to symbolic possession in lieu of act ual physical possession. It
was held that the executing court was wrong in drawing an inference that the decree-holder
was satisfied with mere symbolic possession, merely, because the first execution
application was allowed to be dismissed in default. Refusal to entertain a second execution
application on that ground was illegal. Non-appearance of the decree-holder on the date
fixed by the executing court cannot lead to a conclusion that she was satisfied with
symbolic possession in lieu of actual physical possession. Such a consent, if any, has to be
given in the executing court, and even if such consent was given, it could not amount to
the satisfaction of the decree which was for act ual physical possession. Hence, there was
no bar to the maintainability of the second execution application. 958

See also notes under s 11.

38. Estoppel. In the case of acquisition of land, the reference court amended its earlier
order granting compensation. The order in question has attained finality by reason whereof
the original decree stood amended. The executing court in view of the decision, in itself,
could not have gone behind the decree. The executing court thus proceeded to pass the
impugned judgment on a wrong premise. The executing court keeping in view its limited
jurisdiction could not have gone into the question as to whether the reference court was
correct in passing the order amending the decree or not. The executing court did not have
any jurisdiction to go into the said question. A decree passed by a competent court of law
can be suitably amended. A decree, so amended on an application filed by the claimant for
review thereof becomes final. If the state was aggrieved by and dissatisfied therewith it
could have taken the matter by filing an appropriate application before the High Court.
But keeping in view of the fact that the said order was allowed to attain finality, the court
could not have permitted the state to reagitate the said question before the executing court
by filing an application under s 47 of the Code of Civil Procedure or otherwise. In a case of this
nature the principle of estoppel by records shall come into play. 959
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39. Satisfaction of decree. Decree sought to be executed was a decree for permanent
injunction regarding user of flour mill.

As soon as the possession of the atta chakki itself was entrusted back to the decree-holder,
there could be no further occasion for violating the decree for permanent injunction which
restrained the respondent/judgment-debtor from using the chakhi or from using the power
connection for the chakki . Therefore, the entire decree stood satisfied on the delivery of
the chakki back to the decree-holder. 960

In law, where a person having two alternative courses of action which are mutually
exclusive, chooses to adopt one and reject the other expressly or impliedly, then he is said
to have elected to choose one. He is subsequently precluded from adopting the course
which he intended to reject. It is known as the doctrine of election. Like estoppel, it is also
a child of equity. It is founded on the principle that one should not be permitted to
approbate and reprobate, that is, blow hot and cold at the same time. It has been extended
and applied as an aspect of estoppel to prevent a person from falling a victim to what
would have otherwise resulted in injustice to him and unfair advantage to the doctrine of
approbation and reprobation, which is akin to the law of election and estoppel, applies to
those cases where a person has elected to take a benefit otherwise than on merits of the
claim. Another criterion for the applicability of the doctrine is that the person receiving the
benefit must have a choice between two rights, and after the exercise of the choice,
restitution is impossible or inequitable. 961

For the purposes of the common law doctrine of election, where a person has an
unrestricted choice between two mutually inconsistent courses of act ion which affect his
rights, knowledge of the right to elect is a precondition to the making of an effective
election, and there can be no knowledge of the right to elect unless the person knows his
legal right as well as facts giving rise to those rights. 962

In a case, where the decree-holder bank had filed an execution proceedings under the
Code and had simultaneously initiated revenue recovery proceedings under s 69 (2) of the
Kerala Revenue Recovery Act, 1968 for recovery of Bank debt, it was held by the Kerala High
Court Division Bench that proceedings under s 47 of the Code and under s 69 (2) of the
Act are independent of each other in scope and purport and can be simultaneously
employed to attain ultimate goal of recovery of the amount. It was not necessary to stop
one of the processes to continue with the other.963

The Supreme Court on several earlier occasions had considered the applicability of the
doctrine of election in legal proceedings. In Bhau Rams case, 964 a five-Judge Bench of the
Supreme Court was hearing an appeal against a pre-emption decree. The defendant had
withdrawn the pre-emption amount deposited in court. A preliminary objection was raised
whether the defendant, having taken the benefit from the decree, can challenge the same
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decree. Mudholkar, J., speaking for the majority view, held that the principle that a person
who takes benefit under an order cannot repudiate that part of the order which is
detrimental to him, on the ground that he cannot be allowed to approbate and reprobate,
is applicable only to cases where the benefit conferred by the order is something apart
from the merits of the claim involved.

In another case, 965 a three-Judge Bench of the Supreme Court, in a suit for redemption,
held that where the mortgage enjoys benefits under a deed, he must also accept the
obligations thereunder.

This doctrine came to be noticed by the Supreme Court again in a case under the
Securitisation and Reconstruction of Financial Assets and Enforcement of Securityinterest
Act, 2002 (NPA Act, for short) and the Debt Recovery Tribunal Act, 1993 (DRT Act, for
short). It was held that NPA Act is additional remedy to DRT Act and together they
constitute one remedy. Thus the doctrine of election does not apply. 966 S.H. Kapadia, J.
(as he then was), speaking for the Bench, observed as follows:

In the light of the above discussion, we now examine the doctrine of election. There are
three elements of election, namely, existence of two or more remedies; inconsistencies
between such remedies and a choice of one of them. If any one of the three elements is
not there, the doctrine will not apply. According to American Jurisprudence, 2nd. Vol. 25,
page 652, if in truth there is only one remedy, then the doctrine of election does not apply.
In the present case, as stated above, the NPA Act is an additional remedy to the DRT Act.
Together they constitute one remedy and, therefore, the doctrine of election does not
apply. Even according to snells Equity (Thirty-first Edition, page 119), the doctrine of
election of remedies is applicable only when there are two or more co-existent remedies
available to the litigants, at the time of election which are repugnant and inconsistent. In
any event, there is no repugnancy nor inconsistency between the two remedies, therefore,
the doctrine of election has no application. 967

375 . Sub-s (2) omitted by Act 104 of 1976, s 20 (w.e.f. 1-2-1977). Prior to omission sub-s (2) stood as under:
(2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a
proceeding and may, if necessary, order payment of any additional court-fees.
376 . Subs. by Act 104 of 1976, s 20 for the former Explanation (w.e.f. 1-2-1977).
377 . See Code of Civil Procedure 1908, O 20, r 12.
378 . As to the effect of the omission, see notes, Stay of execution.
379 . See notes below under the head sub-s (2)its omission.
380 . See notes below under the head sub-s (3): Inquiry as to who is the representative of a party.
381 . N.S.S. Narayana Sarma v. Goldstone Exports (P.) Ltd., AIR 2002 SC 251.
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382 . Bandi Prasad Rao v. P. Hari Kesavulu , AIR 2007 AP 125 [LNIND 2006 AP 1277]: 2007 (1) Andh LT 629 [LNIND 2006 AP 1277].
383 . Dhurandhar Prasad Singh v. Jai Prakash University , AIR 2001 SC 2552 [LNIND 2001 SC 1428].
384 . State Bank of India v. Maa Sarada Oil Mills , AIR 2003 Gau 22 [LNIND 2002 GAU 332]: AIR 1999 SC 2628 [LNIND 1998 SC 958].
385 . Prakash Nathyaba Bhosale v. Laxman Ganabe Bhosal e, AIR 2003 Bom 41 [LNIND 2002 BOM 675]; Shevantibai Maruti Kalhatkar v. Ramu
Rakhamaji Kalhatkar , AIR 1999 SC 2623.
386 . Kopargaon Sahakari Society v. Deorao , AIR 1976 Bom 333 [LNIND 1975 BOM 177].
387 . Lilavati v. Municipal Corpn Bombay 66 Bom LR 868.
388 . Monalisa Rohinton Irani v. Naval H Tata , AIR 2001 Bom 495 [LNIND 2001 BOM 421].
389 . State of Bihar v. Mijaj International , AIR 2004 Jhar 29 [LNIND 2003 JHAR 89].
390 . O. Sreenivasulu v. P. Santhi , AIR 2007 AP 115 [LNIND 2006 AP 1294]: (2007) 2 ALD 175 [LNIND 2006 AP 1294] : (2007) 2 ALT
673.
391 . Vedic Girls S.S. School, Arya Samaj Mandir, Jhajjar v. Smt. Rajwanti , AIR 2007 SC 1779 [LNIND 2007 SC 298]: (2007) 5 SCC 97 [LNIND
2007 SC 298].
392 . Ibid , at p. 1782.
393 . Radhey Shyam Gupta v. Punjab National Bank , AIR 2009 SC 930 [LNIND 2008 SC 2152]: (2009) 1 SCC 376 [LNIND 2008 SC 2152].
394 . Monalisa Rohinton Irani v. Naval H Tata , AIR 2001 Bom 495 [LNIND 2001 BOM 421]
395 . Ibid .
396 . Ibid .
397 . Saraswat Trading Agency v. Union of India, AIR 2004 Cal 267 [LNIND 2004 CAL 153].
398 . R.S. Bajwa & Co. v. State of Chhattisgarh, AIR 2008 Chhat 75: (2008) 4 MPHT 105.
399 . Nilamani Pradhan v. Narottam Pradhan, AIR 2008 Orissa 185: (2008) supp OLR 877.
400 . Ram Narain v. Suraj Narain, (1934) 9 Luck 435, AIR 1934 Oudh 75(FB); Hans Raj v. Niranjan Lal, AIR 1952 Punj 159; Nandagopal v.
Baidyanath, AIR 1957 Pat 87.
401 . V. Appannammanayuralu v. B. Sreeramulu, : AIR 1978 Andh Pra 160.
402 . Radha Prasad v. Lal Saheb, (1891) 13 All 53 : 17 IA 150; Janardhan v. Ramachandra, (1903) 26 Bom 317; Sripat v. Tribeni, (1918) 40 All 423;
Imdad Ali v. Jagan Lal, (1895) 17 All 478; Narendra v. Gopal, (1912) 17 Cal LJ 634; Subramania v. Vaidyanatha, (1915) 38 Mad 602; Jangli Lal
v. Laddu Ram, (1919) 4 Pat LJ 240 (FB). Where the defendant died after the hearing was concluded but before judgment was ponounced,
the decree was held to be valid on the nunc pro tunc, doctrine Chetan v. Balbhadra, (1891) 21 All 314; see also Munna Koer v. Durga Prasad,
(1917) 2 Pat LJ 192.
403 . Beni Prasad v. Mukteswar, (1899) 21 All 316; Mahabir v. Narain, AIR 1931 All 490(FB), (1932) 54 All 25; Cantonment Board v. Kishen Lal,
AIR 1934 All 609(FB) : ILR 57 All 1.
404 . Chintaman v. Chintaman, (1898) 22 Bom 475; Gomathan v. Komandur, (1904) 27 Mad 318; Rangasami v. Tirupati, (1905) 28 Mad 26;
Kumareetta v. Sabapathy, (1907) 30 Mad 26; Khetrapal v. Shyama, (1904) 32 Cal 265; Liladhar v. Chathurbuj, (1899) 21 All 277; Hira Lal v.
Parmeshwar, (1899) 21 All 356; Ragha v. Gopal, AIR 1930 Bom 132: (1930) 54 Bom 162; Ajoy Kumar v. Pushpabala, AIR 1952 Assam 54:
1951 ILR Assam 522.
405 . AIR 1954 SC 340 [LNIND 1954 SC 67]: (1955) 1 SCR 117 [LNIND 1954 SC 67] : (1954) SCJ 514 [LNIND 1954 SC 67].
406 . See notes to s 38 under the heading Power of execution court.
407 . Sundar Dass v. Ram Prakash, AIR 1977 SC 1201 [LNIND 1977 SC 101]: (1977) 3 SCR 60 [LNIND 1977 SC 101] : (1977) 2 SCC 602.
408 . Shivaji v. Vital, AIR 1927 Bom 53: 28 Bom LR 1367; Dadu v. Tukaram, AIR 1959 Bom 221 [LNIND 1958 BOM 43]; Ballkrishna v.
Shantilal, AIR 1961 Bom 56 [LNIND 1959 BOM 112]: (1960) Bom 554 : 62 Bom LR 410; Ballabhadas v. Parmal, AIR 1961 MP 36
[LNIND 1960 MP 193].
409 . Central Bank of India v. Vaibi Das, AIR 1968 Pat 32.
410 . Prahalad Dora v. State, AIR 1969 Ori 21 [LNIND 1968 ORI 85]: 34 Cut LT 1175.
411 . Ganapathi v. Balasubramania Gounder, AIR 1987 Mad 124 [LNIND 1986 MAD 346].
412 . V. Chinna Lakshmaiah v. Samurla Ramaiah, : AIR 1991 Andh Pra 177.
413 . Gopal Krishna Kamath v. R. Bhaskar Rao, AIR 1989 Ker 251 [LNIND 1988 KER 316].
414 . M.T. Gore v. V.R. Kolhatkar, AIR 1980 Bom 277.
415 . Ramaswami v. Mudhiah, AIR 1925 Mad 279: (1925) 48 Mad 482.
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416 . Prakash Chand v. Harnam Singh, AIR 1973 SC 2065 [LNIND 1973 SC 101]: (1973) 2 SCC 481.
417 . Rajendra Narain v. Bajrang, AIR 1983 All 364.
418 . Ramakrishna v. Mukund Shankar, AIR 1963 All 49 [LNIND 1962 ALL 96].
419 . Bapurao v. Hanumanthrao, AIR 1950 Hyd 48.
420 . Dharam Dutt v. Ram Lal, AIR 1957 Punj 161.
421 . M. Hegde v. Meenakshi, AIR 1960 Mys 193.
422 . Noha Haja v. Veeram, AIR 1942 Mad 364 [LNIND 1941 MAD 274].
423 . Ram Lakhan Tewari v. Ram Samujh Tewari, AIR 1981 All 211.
424 . Babusaheb Singh v. Parsid Narain Singh, AIR 1991 SC 1731.
425 . Govindamal v. Chidambara, AIR 1963 Mad 215 [LNIND 1961 MAD 86].
426 . Bhaurao v. Savitribai, AIR 1991 Bom 55 [LNIND 1990 BOM 444].
427 . Pokhraj Jain v. Padma Kashyap, AIR 1990 Del 159 [LNIND 1989 DEL 244].
428 . Chandmul v. Vishnu Sarma, AIR 1953 Ajm 43.
429 . Lichubala Biswas v. Jindar Mondal, AIR 1990 Cal 151 [LNIND 1989 CAL 379].
430 . State of West Bengal v. Kamala Prasad, AIR 2010 SC 1456 [LNIND 2010 SC 179]: (2010) 4 SCC 568 [LNIND 2010 SC 179].
431 . Satpal Tandon v. Jyotsna Ghosh, AIR 1991 Cal 228 [LNIND 1989 CAL 328].
432 . Madan Lal v. District Judge Pauri Garhwal, AIR 1988 All 40 [LNIND 1987 ALL 194].
433 . Radha Dei v. Lalit Bihari Mohanty, AIR 1991 Ori 36 [LNIND 1990 ORI 34].
434 . Hoshiarpur Central Co-op. Bank Ltd. v. Urmar Harmonium Reed Workshop CIS Ltd., AIR 1989 P&H 245 (DB).
435 . V.S. Alwar Ayyannagar v. Gurusamy Thevar, AIR 1981 Mad 354 [LNIND 1981 MAD 134].
436 . State of Uttar Pradesh v. Matendra Tripathi, AIR 1984 All 59.
437 . Union of India v. S.B. Singh, AIR 1988 All 225 [LNIND 1988 ALL 126].
438 . Rahima Khatun v. on the death of Samser Ali his LRS Amrun Nahar, AIR 1985 Gau 40 [LNIND 1984 GAU 29].
439 . Laxmi Furniture and Saw Mills v. HPFC, AIR 1985 HP 108 [LNIND 1985 HP 37].
440 . Ghulam Nabi Khan v. Abdul Gani Khan, AIR 1981 J&K 103.
441 . Narinder Kumar v. H.C. Mehta, AIR 1987 Del 275 [LNIND 1986 DEL 229].
442 . Krishnan v. Muthu Gounder, AIR 1997 Mad 57 [LNIND 1996 MAD 591].
443 . Indian Iron and Steel Co. Ltd. v. Chagan Lal Marwari, (1994) Supp 3 SCC 719.
444 . Salim Sultan v. Third Addl District Judge, AIR 1983 All 32.
445 . Joseph alias Kunjachan v. Sethyappa, AIR 1991 Ker 120 [LNIND 1990 KER 477].
446 . Lichubala Biswas v. Jindar Mondal, AIR 1990 Cal 151 [LNIND 1989 CAL 379].
447 . N. Palaniappan v. G. Pandwangan, AIR 1990 Mad 327 [LNIND 1990 MAD 14].
448 . Jagannathan v. Angamuthu Pillai, AIR 1990 Mad 226 [LNIND 1989 MAD 210].
449 . Jugal Kishore Singh v. Lakshmi Kumari, AIR 1981 Ori 121.
450 . Ramanand v. Jai Ram, AIR 1921 All 369: (1921) 43 All 170; Ramaswami v. Muthiah, AIR 1925 Mad 279: (1925) 48 Mad 482.
451 . Azizan v. Matuklal, (1896) 21 Cal 437; Lal Das v. Kishore Das, (1896) 22 Bom 463.
452 . Imdad Ali v. Jagan Lal, (1895) 17 All 478; Collector of Jaunpur v. Bithal Das, (1902) 24 All 291; Gopi Rai v. Rambhanjan, AIR 1922 Pat 166:
(1922) 1 Pat 336.
453 . Chaudry Wahed v. Jumabe, (1873) 11 Beng LR 149, 155; Prosunno Kumar v. Kali Das, (1895) 19 Cal 683 : 19 IA 166; Amir Chand v. Bakshi,
(1916) 30 Mad LJ 238 : 32 IC 354 (PC).
454 . Set Umedmal v. Srinath, (1900) 27 Cal 810; Goberdan v. Bishan, (1901) 23 All 116, 118; Jamini Nath v. Dharma Das, (1906) 33 Cal 857; Amar
Chandra v. Sebak Chand, (1907) 34 Cal 642; Ram Chand v. Shamas Din, AIR 1938 Lah 690; Durga Devi v. Shanti Prakash, AIR 1961 Punj 229:
(1960) 1 Punj 731; Chhtradharilal v. Shyamabai, AIR 1966 MP 67: 1965 MPLJ 627.
455 . Charu Chandra v. Birendra Nath, (1969) 2 Cal 656, AIR 1970 Cal 34 [LNIND 1969 CAL 66]: 73 Cal WN 645.
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456 . Gurdev Singh v. Punjab National Bank, AIR 1998 P&H 106.
457 . Dularey Lodh v. Third Addl District Judge, Kanpur, (1984 ) 3 SCC 99 [LNIND 1984 SC 142].
458 . Rock Tyres, Chandigarh v. Ajit Jain, AIR 1998 P&H 202.
459 . Also see If frivolous objections of the present kind are permitted to unreasonably and unnecessarily prolong the delivery of possession
to a decree-holder, in accordance with law, it would certainly amount to putting a premium on abuse of process of law. B. Gangadhar v.
B.G. Rajalingam, AIR 1996 SC 780 [LNIND 1995 SC 669]; Jagdish Narain v. Satish Chand Goswami & ors, AIR 1997 Raj 209.
460 . Vigneshwar v. Ganga Bai Coam Narayan Bhat Prasad, AIR 1997 Kant 149 [LNIND 1996 KANT 475].
461 . R.P.A. Valliammal v. R. Palanichami Nadar, (1997) 10 SCC 209 [LNIND 1997 SC 174].
462 . Chloride India Ltd. v. District Judge, Puri, AIR 1997 Ori 135 [LNIND 1996 ORI 43] (DB).
463 . Arjun Sethi v. LA Collector, Cuttak, AIR 1998 Ori 34 [LNIND 1997 ORI 30]; State Bank of India v. Indexport Registered, (1992) 3 SCC 159
[LNIND 1992 SC 378] (FB), AIR 1992 SC 1740 [LNIND 1992 SC 378].
464 . Man Industrial Corp. Ltd. v. RFC, AIR 1997 Raj 108.
465 . Sarish Chandra v. The 17th Addl District Judge, Lucknow, AIR 1994 All 117 [LNIND 1993 ALL 79].
466 . Basu Dev & anor v. The Fourth Addl District Judge, Jhansi, AIR 1997 All 288 [LNIND 1997 ALL 131].
467 . Kamta Prasad v. The Second Addl Judge, Mainpuri, AIR 1997 All 201 [LNIND 1996 ALL 567]; Tokerimum Nisa v. Sultana Khanan, AIR
1993 Ori 34 [LNIND 1992 ORI 144]; Potti Venkata Kasi v. V.V. Vyas, AIR 1983 AP 64 [LNIND 1982 AP 68].
468 . Baaji Govindan v. Kerala State Housing Board, Thiruvananthapuram, AIR 1999 Ker 31 [LNIND 1998 KER 365] (DB).
469 . Jaseentha Joseph v. Louius Neeklauusc, AIR 1997 Ker 40 [LNIND 1996 KER 229].
470 . Atava Akkulamma v. Gajjela Papi Reddy, AIR 1995 Andh Pra 166.
471 . Lalita Devi v. Kamla Devi, AIR 1995 All 21 [LNIND 1994 ALL 159].
472 . Prakash Nathyaba Bhosale v. Laxman Ganaba Bhosale, AIR 2003 Bom 41 [LNIND 2002 BOM 675].
473 . (1897) 24 Cal 355.
474 . AIR 1929 Cal 374: (1929) 57 Cal 403 : 33 Cal WN 795.
475 . AIR 1936 Pat 270; Harihar v. Bhubneshwar, (1936) 15 Pat 422.
476 . Beni Madhab v. Rai Charan, AIR 1929 Cal 247: (1929) 56 Cal 467; U Tin v. Maung Sein, AIR 1931 Rang 117(FB) : (1931) 9 Rang 305;
Sukhdeo v. Donger, AIR 1935 All 588: (1935) All LJ 490.
477 . Venkataramanachariar v. Meenatchisundararamaiyer, (1909) 19 Mad LJ 1; Thathu Naick v. Kondu Reddi, (1909) 32 Mad 242; Munshi China
Dandasi v. Munishi Pedda Tatiah, AIR 1921 Mad 279: (1921) 41 Mad LJ 261.
478 . Y. Prasad Rao v. P. Venkat Raju, AIR 2007 AP 142 [LNIND 2006 AP 1342]: 2007 (3) Andh LT 403 [LNIND 2006 AP 1342].
479 . Rabindranath v. Dhirendranath, AIR 1940 Cal 82: (1940) 43 Cal WN 1007; Kalyandas v. Ganga Bai, AIR 1961 MP 67.
480 . Jagdish Chandra v. Kameshwar, AIR 1953 Pat 178, ILR 31 Pat 851.
481 . A Paints and Chemicals v. Sant Ram, AIR 1976 Del 137 [LNIND 1975 DEL 145].
482 . Prataprai Trambakalal Mehta v. Jayant Nemchand Shah, AIR 1996 Bom 296 [LNIND 1987 MP 308].
483 . Smt. Gyan Devi v. Smt. Leela Devi, AIR 2007 Del 240(DB).
484 . (1898) 22 Bom 463 ; followed in Burjorij v. Madhavlal, AIR 1934 Bom 370.
485 . (1902) 29 Cal 810 (FB).
486 . Choti Narain v. Mst Kameswar, (1902) 6 Cal WN 796; Hasan Ali Gauzi Ali, (1904) 31 Cal 179; Harendranath v. Gopal Chandra, AIR 1935
Cal 177.
487 . Mulla v. Maung Po, AIR 1928 Rang 140: (1928) 4 Rang 118; Moolla v. The Chartered Bank of India, AIR 1928 Rang 36: (1927) 5 Rang 685.
488 . Dilsukh Rai v. Lakshman Das, AIR 1927 Lah 894: (1927) 9 Lah LJ 7; Robert Hercules v. Skinner, (1937) Lah 209, AIR 1937 Lah 537.
489 . Bhasker Dattareya v. Nilkant, AIR 1938 Nag 265.
490 . Co-operative Bank v. Ram Sarup, AIR 1953 Punj 267.
491 . ILR 40 Mad 233 : 32 MLJ 13 : AIR 1918 Mad 1174(FB).
492 . Rama Iyer v. Srinivasa Pathar, ILR 19 Mad 230; Rukmani v. Krishnamacharya, 9 Mad LT 464; Krishnamachariar v. Rukmani, 15 MLJ 370;
Subramanya v. Kumaravelu, 39 Mad 541; Velu v. Krishnaswami, AIR 1925 Mad 591 [LNIND 1924 MAD 309]: 48 MLJ 277, and
Venkatasubba v. Manickammal, AIR 1926 Mad 582 [LNIND 1925 MAD 374], wherein Chidambara v. Krishna, supra was followed.
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493 . Butchayya v. Tayar Rao, (1930) 54 Mad 184 : 60 MLJ 721 : AIR 1931 Mad 399 where the authorities are discussed.
494 . See also Pappanna v. Venkayya, AIR 1935 Mad 860 [LNIND 1935 MAD 182]: ILR 58 Mad 994 : 69 MLJ 451; Perumalsami v. Rajammal,
AIR 1955 Mad 339 [LNIND 1954 MAD 231]: 68 LW 233.
495 . AIR 1972 Mad 108 [LNIND 1971 MAD 109]: (1971) 2 MLJ 487.
496 . Adappa Papamma v. Venkayya, AIR 1935 Mad 860 [LNIND 1935 MAD 182] (FB).
497 . Harnam Singh v. Arbindu Nath, AIR 2004 P & H 210.
498 . Rangaswamy Reddiar v. CJ Ammal, AIR 1974 Mad 6 [LNIND 1972 MAD 278].
499 . Gopal Lal v. Babu Lal, AIR 2004 Raj 273.
500 . Gowri Singh v. Gajadhar Das, 6 All LJ 403; Narain v. Basudev, AIR 1950 All 427 [LNIND 1950 ALL 23].
501 . AIR 1962 All 374 [LNIND 1961 ALL 149]: (1962) 1 All LJ 423.
502 . Ratan Chand Firm v. Subramanyam, AIR 1960 AP 324 [LNIND 1959 AP 161].
503 . AIR 1951 Tr & Coch 216.
504 . Usman v. Mammooty, AIR 1961 Ker 179 [LNIND 1960 KER 234].
505 . Mohammad Aleem v. Maqsood Alam, AIR 1989 Raj 43.
506 . Md. Hanif Khan v. Naresh Prasad, AIR 2010 Jhar 73 [LNIND 2009 JHAR 48]: 2010 AIR Jhar R 564.
507 . Transport Corpn of India Ltd. v. Haryana State Industrial Corpn. Ltd., AIR 1991 P&H 225.
508 . Bishambar Nath Agarwal v. Kishan Chand, AIR 1990 All 65 [LNIND 1989 ALL 309] (DB).
509 . Padma Ben Banushali v. Yogendra Rathore, AIR 2006 SC 2167 [LNIND 2006 SC 298]: (2006) 12 SCC 138 [LNIND 2006 SC 298].
510 . Ibid .
511 . The Oudh Commercial Bank Ltd, Fyzabad v. Bind Band Kuer, AIR 1939 PC 80: 66 IA 84 at 101 : (1939) 41 Bom LR 708; Bhiki v. Kundanlal,
AIR 1940 All 107: (1939) All LJ 1051; Chaube Mahendra Rao v. Lala Bishambar Nath, AIR 1940 All 270(FB).
512 . Ganpat Rao v. Sridhar, AIR 1955 Bom 64 [LNIND 1954 BOM 60]: ILR 1955 Bom 57 [LNIND 1954 BOM 60] : 56 Bom LR 1005.
513 . Bharat Bank v. Sehgal Bros, AIR 1960 Punj 459; affirmed on appeal Sehgal Bros v. Bharat Bank, AIR 1961 Punj 439.
514 . Haridas Mundra v. Mahabir, AIR 1975 Cal 357 [LNIND 1974 CAL 219]: 79 Cal WN 810.
515 . Motilal v. Md Hssan Khan, AIR 1968 SC 1087 [LNIND 1968 SC 38]: (1968) 2 SCJ 824 [LNIND 1968 SC 38].
516 . Gandhi Gopaldas v. Lalitabai, AIR 1971 Guj 270 [LNIND 1970 GUJ 5]: 12 Guj LR 492.
517 . Deepchand v. Ticamchand, AIR 1974 Cal 222 [LNIND 1973 CAL 159].
518 . Parmananda v. Bhagabati Dei, AIR 1969 Ori 32 [LNIND 1968 ORI 81]: 34 Cut LJ 1121.
519 . Chitra Talkies v. Durga Dass, AIR 1973 All 40: (1972) 2 All 90.
520 . Nebubala Sardar v. Abdul Aziz Baidya, AIR 1991 Cal 402 [LNIND 1991 CAL 53].
521 . Brijlal v. Roshanlal, AIR 1980 HP 13 [LNIND 1979 HP 3].
522 . Ghulam Nabi Khan v. Abdul Gani Khan, AIR 1981 J&K 103.
523 . Kanbi Vaju Vasta Botad v. Kanbi Popat Vasta, AIR 1985 Guj 184 [LNIND 1984 GUJ 33].
524 . Mohammad Aleem v. Maqsood Alam, AIR 1989 Raj 43.
525 . N. Kullayyappa v. N. Dastagiri Saheb, AIR 1982 AP 154 [LNIND 1981 AP 265].
526 . Bishambar Nath Agarwal v. Kishan Chand, AIR 1990 All 65 [LNIND 1989 ALL 309] (DB).
527 . Bibekannanda Bhowal v. Satindra Mohan Deb, AIR 1996 SC 1985 [LNIND 1996 SC 793].
528 . Gobardan Das v. Dau Dayal, AIR 1932 All 273(FB) : ILR 54 All 573; Venkatagiri v. Satagopa, 14 MLJ 359; Lodd Govinddas v. Ramdas, AIR
1916 All 604; Azizur Rahman v. Aliraja, AIR 1928 Cal 527.
529 . Fateh Muhammad v. Gopal Das, ILR : 7 All 424.
530 . AIR 1939 PC 80: 66 IA 84.
531 . ILR (1940) All 107; Mahendra v. Lala Bishembar, 1940 All 377 (FB); Bhiki Mal v. Kundan Lal, AIR 1940 All 270; Chatrapati v. Hari Ram,
1940 All 536, AIR 1940 All 423; Ram Sevak v. Ram Sadhari, AIR 1952 All 169 [LNIND 1951 ALL 33]; Durga Prasad v. Ganga Bai, AIR
1958 All 387 [LNIND 1957 ALL 150]; Meg Raj v. Kesariman, AIR 1948 Nag 35, ILR , 1947 Nag 197.
532 . Mahmud Hassain v. Motilal, AIR 1961 All 1 [LNIND 1960 ALL 113] (FB).
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533 . Sehgal Bros v. Bharat Bank, ILR , 1961 Punj 439 ; affirming ILR 1960 Punj 459 (Bharat Bank v. Sehgal Bros., ).
534 . Pratibha Singh v. Shanti Devi Prasad, AIR 2003 SC 643 [LNIND 2002 SC 755].
535 . Pratibhe Singh v. Shanti Devi Prasad, AIR 2003 SC 643 [LNIND 2002 SC 755].
536 . Ravinder Kaur v. Ashok Kumar, AIR 2004 SC 904 [LNIND 2003 SC 887].
537 . P. Varadarajulu v. Agricultural Produce Market Committee, AIR 2004 SC 1989 [LNIND 2004 SC 419]: 2004 AIR SCW 2189.
538 . K. Shetrimayum Ibohal Singh & Aur v. State of Manipur & Ors, AIR 2006 (NOC) 1367(Gau) : (2006) 1 Gau LT 252.
539 . Ram Agarwal v. Smt. Brijendra Kaur, AIR 2008 Uttr. 25 [LNIND 2008 UTTAR 303]: 2008 (4) ALJ 176.
540 . Duljeet v. Rewal, (1878) 22 WR 435; Biru Mahata v. Shyama Churn, (1895) 22 Cal 483; Pratab Singh v. Beni Ram, (1880) 2 All 61; Abdul Karim
v. Islamun Nissa Bibi, (1916) 38 All 339; Ganapatrao v. Anandrao, (1920) 44 Bom 97; Sharfu v. Mirkhan, (1919) 1 Lah LJ 230; Rajaratnam v.
Sheikh Hasambi, AIR 1926 Mad 968 [LNIND 1926 MAD 101]: (1926) 51 Mad LJ 255; Radha Charan v. Kailash, AIR 1928 Cal 776;
Lakshminarayan v. Laduram, AIR 1932 Bom 96: (1931) 33 Bom LR 1557; Provita Sundari v. Saroda Charan, AIR 1935 Cal 15: (1934) 38 Cal
WN 996; Ramanandam v. Jaffer, ILR 33 Pat 394.
541 . M. Pillai v. P.K.V. Naidu, AIR 1968 Mad 433 [LNIND 1966 MAD 126]: (1968) 3 Mad 224 : (1968) 2 MLJ 472 [LNIND 1967 MAD
307].
542 . Narinder Singh v. Kishan Singh with Thakar Dwara Bhagwan Narainji Dham through Mahant Govind Dass v. Sarabjit Singh, AIR 2002 SC 2603
[LNIND 2002 SC 411].
543 . C.S.J. Hussain v. Rameshwar, AIR 1972 All 350: (1972) All WR 174; Shiv Prasad v. Talidevi, AIR 1973 Raj 159.
544 . M.P. Shreevastava v. Veena, AIR , 1966 Punj 506 : 1965 Punj LR (supp) 135.
545 . AIR 1956 SC 87 [LNIND 1955 SC 96]: [1955] 2 SCR 938 [LNIND 1955 SC 96] : (1956) SCJ 101 [LNIND 1955 SC 96]; Benares Ice
Factory v. Sukhlal, AIR 1961 Cal 422 [LNIND 1960 CAL 91].
546 . Patankar v. Sastri, AIR 1961 SC 272 [LNIND 1960 SC 203]: [1961] 1 SCR 591 [LNIND 1960 SC 203] : (1961) 1 SCJ 221 [LNIND
1960 SC 203].
547 . Vidya Sagar v. Sudesh Kumari, AIR 1975 SC 2295 [LNIND 1975 SC 399].
548 . Marret v. Mahomed, AIR 1930 PC 86: (1930) 34 Cal WN 425.
549 . Tharapada Mishra v. Hare Kishen, AIR 1957 Cal 335 [LNIND 1956 CAL 179].
550 . (1956) Cut 631 : AIR 1957 Ori 14 [LNIND 1956 ORI 25].
551 . Sansarchand Mela Ram v. Shamlal Danpat Rai, AIR 1957 Punj 307.
552 . Raja Babu v. Sayed Mahomed, AIR 1961 Raj 227 [LNIND 1960 RAJ 148].
553 . Harnam v. Muhammad, (1905) 27 All 485; Dhan Kunwar v. Mahtab Singh, (1900) 22 All 79.
554 . Nilratan v. Ram Rattan, (1901) 5 Cal WN 627.
555 . Varkey v. Bhaskaran, AIR 1958 Ker 78 [LNIND 1957 KER 223]; Gayaprosad v. Dhanrupmal, AIR 1954 Cal 492 [LNIND 1953 CAL
111].
556 . Sarwari Begum v. Nazir Ahmed, AIR 2003 Cal 230 [LNIND 2003 CAL 157].
557 . Sanjukta Sahoo v. Sailabala Mishra, AIR 2009 Ori 62 [LNIND 2008 ORI 69]: 2009 (107) Cut LT 32 : 2009(2) Civil Court C 795.
558 . Saran v. Bhagwan, (1903) 25 All 441; Swamirao v. Valentine, (1920) 44 Bom 702; Ratnasi Agariya v. Jay Singh, AIR 1955 Nag 29: ILR 1955
Nag 425.
559 . See note under that section, Where the decree is varied or reversed.
560 . C. Mukkayi v. Pattavumma, AIR 1955 Mad 173 [LNIND 1954 MAD 180]; Ayisumma v. Kunhammayan, AIR 1958 Ker 84 [LNIND 1957
KER 175].
561 . State Bank of Travancore v. Devassia Joseph, AIR 1990 Ker 195 [LNIND 1990 KER 5].
562 . Sachi Prasad v. Amarnath, (1919) 46 Cal 103; Yosef v. Moses, AIR 1931 Bom 490: (1931) 33 Bom LR 114.
563 . Ajab Rao v. Atmaram, AIR 1954 Nag 245: (1954) Nag 332; Joseph v. Makkaru, AIR 1960 Ker 127 [LNIND 1959 KER 228]. For further
discussion see notes under O 21, r 32(5).
564 . State Bank of India v. Goutmi Devi Gupta, AIR 2002 MP 81 [LNIND 2001 MP 367].
565 . C. Laxmaiah v. State Bank of Hyderabad, Madanapuram Branch, AIR 2006 (NOC) 1409(AP), (2005) 3 Andh LT 539.
566 . Ibid .
567 . Biswanath v. S.D. Uttara Bewa, AIR 1988 Orissa 9: (1986) 2 OLR 480 (D.P. Mohapatra, J.).
 Page 78 of 89
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568 . Hrushikesh Panda v. Indramani Swami, AIR 1987 Ori 79 [LNIND 1986 ORI 68] (DB).
569 . Padmalaya v. Shyam Sunder Sahu, AIR 1980 Ori 1 [LNIND 1979 ORI 34].
570 . Ibid .
571 . Kitabian Bibi v. Ramlal Durgadutta, AIR 1984 Gau 44.
572 . Pathi Venkata Viswanatham v. Vallabha Vyas, AIR 1983 AP 64 [LNIND 1982 AP 68].
573 . K. Saraswaty v. P.S.S. Somasundaram, AIR 1989 SC 1553 [LNIND 1989 SC 281].
574 . Smt. Suluguru Vijaya v. Pulumati Manjula, AIR 2007 AP 35 [LNIND 2006 AP 1170]: 2007 (2) Andh LT 218 [LNIND 2006 AP 1170].
575 . Jafar Mian v. Qaiser Jahan Begum, AIR 2007 All 5: 2006 (6) ALJ 296.
576 . Kale Khan Mohd. Hanif v. Mohd. Iqbal, AIR 2009 MP 84 [LNIND 2008 MP 860] (DB).
577 . Prataprai Trambakalal Mehta v. Jayant Nemchand Shah, AIR 1996 Bom 296 [LNIND 1987 MP 308].
578 . Syndicate Bank v. Vijay Kumar, AIR 1992 SC 1066; State Bank of India v. Goutmi Devi Gupta, AIR 2002 MP 81 [LNIND 2001 MP 367].
579 . Ramesh C. Vaish v. Banwari Lal Jaipuria, AIR 1999 Cal 339 [LNIND 1999 CAL 134] (DB).
580 . J.D. Singh v. Calcutta Port Trust, AIR 1994 Cal 148 [LNIND 1993 CAL 3].
581 . Forasol v. ONGC, (1984) Supp SCC 263.
582 . Paradeep Phosphates Ltd. v. Paradeep Port Trust, AIR 2009 Ori 139 [LNIND 2009 ORI 49]: 2009 (107) Cut LT 836 (DB).
583 . Chaube Mahendra Rao v. Lala Bishamber Nath, AIR 1940 All 270(FB) : (1940) All LJ 301 : (1940) ILR All 377.
584 . Muhammad Kasim v. Rukia Begam, (1919) 41 All 443.
585 . Monorath v. Atmaram, AIR 1943 Nag 335; Sheodahin Tiwari v. Ranijanam Tiwari, AIR 1934 Pat 202; Gajraj Singh v. Debi Singh, AIR 1937
Oudh 298.
586 . Azizan v. Matuk Lal, (1894) 21 Cal 437; Bairagulu v. Bapanna, (1892) 15 Mad 302; Dino Bundhu v. Hari, (1904) 31 Cal 480; Ram Labhaya v.
Mukundamal, AIR 1922 Lah 428: (1922) 3 Lah 319.
587 . Bhabani Dasya v. Tulsi Ram Keot, AIR 1990 Gau 90 [LNIND 1989 GAU 5].
588 . P. Narasaiah v. P. Rajoo Reddy, AIR 1989 Andh Pra 264.
589 . Badriprasad v. Mallubhai & Ors., AIR 1994 MP 37 [LNIND 1993 MP 83] (DB).
590 . Sultana Begum v. Prem Chand Jain, (1997) 1 SCC 337; Pratapari Trambakal Mehta v. Jyant Nemchand Shah, AIR 1992 Bom 48 [LNIND 1991
BOM 185].
591 . K.R. Shankar Rai v. State Bank of India, AIR 1989 Mad 255 [LNIND 1988 MAD 291]. Also see the Code of Civil Procedure, O 21, r 2(3).
592 . Gayathri v. Clement Mary, AIR 2003 Kant 134 [LNIND 2002 KANT 603].
593 . P.T. Thomas v. Thomas Job, AIR 2005 SC 3575 [LNIND 2005 SC 576].
594 . Ibid .
595 . Oudh Commercial Bank Ltd. v. Binda Bansi Kuer, AIR 1939 PC 80: 41 Bom LR 708 PC : ILR 14 Luck 192; Bhiki v. Kundanlal, AIR 1940 All
107: (1939) All LJ 1051. For cases of eviction see J. Bhimraju v. K.K. Subudhi, ILR AIR 1972 Ori 81 [LNIND 1971 ORI 11]: (1971) Cut
523; Bhagat Ram v. Lilawati, AIR 1973 HP 57 [LNIND 1972 HP 39]; Doshi Kantilal v. M Chandulal, AIR 1973 Guj 80 [LNIND 1971 GUJ
31].
596 . Baijnath v. Ravaneshwar, AIR 1922 PC 54: 49 IA 139 : ILR 1 Pat 378; Nabbobai v. Hassan Gani, AIR 1954 MB 181: 1954 MB 426.
597 . Ramanathan v. Abdul Hamid, AIR 1963 Mad 73 [LNIND 1962 MAD 89]; Nabbobai v. Hasan Gani, AIR 1954 MB 181: (1954) MB 426;
Sudhir Kumar v. Chandrakantha, AIR 1955 Cal 560 [LNIND 1947 CAL 1]: 52 Cal WN 446.
598 . Motilal v. Bai Mani, AIR 1925 PC 86: 52 IA 137 : ILR 49 Bom 233.
599 . Pandurang Kashinath Patel v. Subari Deorao Despande, AIR 1949 Nag 155: (1948) ILR Nag 595.
600 . Hari v. Sakharam, AIR 1923 Bom 391: (1923) 25 Bom LR 449; Kumara Rama Panikkar v. Variath Ouseph, AIR 1953 TC 77; Phool Kuer v.
Manoharmal, AIR 1955 All 223 [LNIND 1954 ALL 190]: (1954) All LJ 730; Manishankar v. Niranjan Sarup, AIR 1955 All 686 [LNIND
1954 ALL 146].
601 . Poomalai v. Ramalingam, AIR 1977 Mad 411 [LNIND 1976 MAD 260]: (1977) 2 Mad 365.
602 . T.S. Ramanatha Ayyar v. S. Abdul Salam Sahib, AIR 1945 Mad 179.
603 . Varadaraja v. Parameswara, AIR 1935 Mad 280: (1935) 68 Mad LJ 27.
604 . AIR 1952 Mad 59 [LNIND 1951 MAD 354]: (1951) 2 Mad LJ 399.
 Page 79 of 89
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605 . Raman v. Jai Ram, AIR 1921 All 369: (1921) 43 All 170; Sovani v. Bhima, AIR 1922 Pat 407: (1922) 1 Pat 157; Abdul Karim v. Islam-un
Nissa, (1916) 38 All 339.
606 . Chathu v. Janaki Amma, AIR , 1969 Ker 121.
607 . Uma Shanker v. Sarbjeet, AIR 1996 SC 1005 [LNIND 1996 SC 2342].
608 . Murari Lal v. Debi Saran, AIR 1956 All 555 [LNIND 1956 ALL 43].
609 . Mana Devi v. Malki Ram, AIR 1961 All 84 [LNIND 1960 ALL 102].
610 . S.T.R. Pillai v. Dhanlakshmi, AIR 1972 Mad 190 [LNIND 1971 MAD 174]: 85 MLW 19.
611 . Murli Singh (deceased by LRS.) v. Ram Singh, AIR 2007 Utr 80: 2007 (3) UC 1509.
612 . Nai Bahu v. Lala Ramnarayan, AIR 1978 SC 22 [LNIND 1977 SC 296]; Nagindas v. Dalpatram, AIR 1974 SC 471 [LNIND 1973 SC
375].
613 . K.N. Krishnappa v. T.R. Gopalkrishna Setty, AIR 1997 Kant 152 [LNIND 1996 KANT 153]; Gal Nagamma v. Hardar Bahubali, AIR 1992
Kant 208 [LNIND 1991 KANT 75].
614 . N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd., AIR 2002 SC 251.
615 . Kundanmal Jasraj v. Surajkuvarbai, AIR 1943 Bom 455: 45 Bom LR 859; Balchand v. Kachru, AIR 1938 Nag 267.
616 . Jugal Kishore v. Raw Cotton Co., AIR 1955 SC 376 [LNIND 1955 SC 21]: [1955] 1 SCR 1369 [LNIND 1955 SC 21] : (1955) CJ 371 :
(1955) SCA 440 [LNIND 1955 SC 21].
617 . Jai Narain v. Kedarnath, AIR 1956 SC 359 [LNIND 1956 SC 7]: [1956] SCR 62 [LNIND 1956 SC 7].
618 . Narayana Pillai v. P.C. Subbalakshmi Ammal, AIR , 1978 Ker 236; Prataprai Trambakalal Mehta v. Jayant Hemchand Shah, AIR 1996 Bom 296
[LNIND 1987 MP 308].
619 . Rajindra v. Balmukand, AIR 1954 All 63 [LNIND 1953 ALL 185].
620 . Ashalata v. Jedunath, AIR 1954 SC 409 [LNIND 1954 SC 79]: [1955] 1 SCR 150 [LNIND 1954 SC 79] : (1954) SCJ 690 [LNIND 1954
SC 79] : (1956) SCA 635.
621 . Varkey Chacko v. Mathai Varkey, AIR 1953 TC 427.
622 . K. Punnan v. P. Kurup, AIR 1986 TC 1(FB).
623 . Kishan Lal v. Shyam Lal represented by, Kedar, AIR 1990 Raj 46(DB).
624 . Ramesh C. Vaish v. Banwarilal Jaipuria, AIR 1999 Cal 339 [LNIND 1999 CAL 134] (DB).
625 . Kaushalya Bai v. Fifteenth Addl Judge to the Court of District Judge, Indore, AIR 1994 MP 55 [LNIND 1993 MP 51] (DB).
626 . Gian Devi Anand v. Jeevan Kumar, AIR 1985 SC 796 [LNIND 1985 SC 162].
627 . Ibid .
628 . Ibid .
629 . Ibid .
630 . Sarwan Kumar v. Madan Lal Aggarwal, AIR 2003 SC 1475 [LNIND 2003 SC 169].
631 . TES Pvt. Ltd. v. Indian Chemicals, AIR 2004 Bom 198 [LNIND 2004 BOM 265] (FB).
632 . Arm Group Enterprises Ltd. v. Waldorf Restaurant, AIR 2003 SC 4106 [LNIND 2003 SC 377].
633 . Mehta Suraya v. United Investment Corpn, AIR 2002 Cal 108 [LNIND 2002 CAL 50].
634 . Ramabhadra v. Ramanna, AIR 1952 Mad 125 [LNIND 1951 MAD 90]; Nabbaobai v. Hasan Gani, AIR 1954 MB 181: 1954 MB 426.
635 . Fazal Ilahi v. RB Sabel & Co., AIR 1935 Lah 549.
636 . Ahmed Khan v. Mohd Khasim, AIR 1976 Kant 13 [LNIND 1975 KANT 73].
637 . Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193 [LNIND 1989 SC 558].
638 . Sarwan Kumar v. Madan Lal Aggarwal, AIR 2003 SC 1475 [LNIND 2003 SC 169].
639 . Rafique Bibi v. Sayed Waliuddin, AIR 2003 SC 3789 [LNIND 2003 SC 719].
640 . (1990) 1 SCC 193 [LNIND 1989 SC 558]; Laxmi Narayan Rao v. Janardan Shettigara, AIR 1994 Kant 105 [LNIND 1993 KANT 171].
641 . K.P. Antony, Santhosh, Edakkad Amsom, Puthiyangadi, Calicut v. Thandiyode Plantations Pvt. Ltd., Thandiyode, South Wynad & ors, AIR 1996
Ker 37 [LNIND 1995 KER 184].
642 . Manulal v. Natwarlal, AIR , 1976 Pat 321.
 Page 80 of 89
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643 . Balavant N. Viswamitra v. Yadav Sadashiv Mule, AIR 2004 SC 4377 [LNIND 2004 SC 797].
644 . Hoshiarpur Central Co-op Bank v. Urmar Harmonium Reed Workshop CIS Ltd, AIR 1989 P&H 245 (DB).
645 . Ram Charan v. Salik Ram, AIR 1930 All 628: (1930) 52 All 217; Raja Ram v. Chhaddammi, AIR 1926 All 475: (1926) 48 All 574.
646 . Someswara Swamy Vari Devasthanam v. Dasam Suryavaryane, AIR 2004 Andh Pra 223.
647 . Sudindra v. Budan, (1886) 9 Mad 80; Dhanii Ram v. Luchmeswar, (1896) 23 Cal 639; Karam Ali v. Mt. Sagi, AIR 1962 Pat 432.
648 . V.D. Modi v. R.A. Rehman, (1970) 2 MLJ 85 [LNIND 1970 SC 148]; ND Co-op Trans Society v. Suraj Mani, AIR 1977 HP 35 [LNIND
1976 HP 33].
649 . M.S. Adekar v. A.V. Umathe, AIR : 1965 Bom 129.
650 . Raja Ram v. Bhagwan Das, AIR 1973 All 82: (1972) ILR All 783.
651 . Sitaram Srigopal v. Union Carbide, AIR , 1973 Cal 322 : 77 Cal WN 525.
652 . ETGUS Society v. Sunil Waste Corpn, AIR 1971 Bom 91 [LNIND 1970 BOM 15]: 72 Bom LR 620.
653 . Bansilal v. Nandlal, AIR 1975 MP 25 [LNIND 1974 MP 19].
654 . Narsimhrao v. Venkateswarlu, AIR : 1965 Andh Pra 346 : 1965 Andh WR 435.
655 . Yusufbhai Ismailbhai v. Manilal Mohanlal, AIR 1965 Guj 282 [LNIND 1963 GUJ 11].
656 . Dhurandhar Prasad Singh v. Jai Prakash University, AIR 2001 SC 2552 [LNIND 2001 SC 1428].
657 . Dayashankar v. Khubchand, AIR 1973 Raj 304.
658 . K.K. Thakkar v. L.A. Patil, AIR 1968 Bom 98 [LNIND 1966 BOM 85]: 69 Bom LR 502 : 1967 Mah LJ 861 [LNIND 1966 BOM 85].
659 . Krishnan Nair v. Kunchi Amma, AIR 1967 Ker 86 [LNIND 1965 KER 278]: (1966) 2 Ker 234.
660 . Bukkan Singh v. District Board, AIR 1933 Lah 41: (1933) 14 Lah 230.
661 . Haji S.K. Subhan v. Madhorao, AIR 1962 SC 1230 [LNIND 1961 SC 334]: (1962) 2 SCJ 575 [LNIND 1961 SC 334].
662 . Hamidgani v. Ammasahib, AIR 1941 Mad 898 [LNIND 1941 MAD 38]; Tallapragada v. Boorugapally, (1907) 30 Mad 402; Ala Singh v.
Wavawa, (1931) PR 14.
663 . Thiruvendipuram Dorairajam v. Venaswami Rama Naidu, AIR 1950 Mad 47 [LNIND 1949 MAD 269]; Hamidgani v. Ammasahib, AIR 1941
Mad 898 [LNIND 1941 MAD 38]; Lakshamadu v. Ramudu, AIR 1939 Mad 867: (1940) ILR Mad 123; Ram Gopal v. Ajodhya Pradad, AIR
1953 All 281 [LNIND 1949 ALL 163]; Devana Philipose v. Venkita Subba, AIR 1954 TC 118: (1953) TC 275 : 1952 Ker LT 289.
664 . Umar v. Mahahabirlal, AIR 1940 Pat 59.
665 . Dwarka v. Sitta, (1940) ILR All 344.
666 . Ballabhdas v. Parmal Singh, AIR 1961 MP 36 [LNIND 1960 MP 193].
667 . Narayana Gowda v. Krishna Madyastha, AIR : 1976 Kant 56.
668 . Urban Improvement Trust, Jodhpur v. Gokul Narain, AIR 1996 SC 1819 [LNIND 1996 SC 757].
669 . State of Madhya Pradesh v. Mangilal Sharma, (1998 ) 2 SCC 510 [LNIND 1997 SC 1663].
670 . Saratmani v. Bata, (1908) 35 Cal 1100.
671 . Hari v. Shappurji, (1887) 10 Bom 461.
672 . Tani v. Hari, (1887) 16 Bom 659 (FB); Abdul v. Vaman, AIR 1921 Bom 284: (1921) 45 Bom 1355; Ambu v. Kelu, AIR 1930 Mad 305:
(1930) 53 Mad 805.
673 . See note, Finality of Decree in Redemption Suits.
674 . Bhaskar v. Nilkanth, AIR 1938 Nag 265; Seth Sanwal Das v. Seth Narain Das, AIR 1955 Bhopal 3.
675 . Biswanath v. S.D. Uttara Bewa, AIR 1988 Ori 9 [LNIND 1986 ORI 169].
676 . Radha Rajak v. Balmiki Devi, AIR 1998 Pat 75.
677 . Indian Overseas Bank v. A.B. Senam, AIR 1999 Ker 364 [LNIND 1999 KER 36].
678 . Gurdev Singh v. Narain Singh, AIR 2008 SC 630 [LNIND 2007 SC 1322]: (2007) 14 SCC 173 [LNIND 2007 SC 1322].
679 . Bathai Bayyalakshmi Amal v. Thoppai Bapu Aiyar, AIR 1946 Mad 90 [LNIND 1945 MAD 219]: (1946) Mad 640; Mangaya v. Sriramula,
(1913) 24 Mad LJ 477; Sundar Das v. Bishan Das, AIR 1936 Lah 116.
680 . Janki Bai v. Bikaji, 59 Bom LR 610.
681 . Dataram Jaganath Firm HUF v. MS Jagi, AIR 1990 Ori 160 [LNIND 1990 ORI 1].
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682 . Ram Chunder v. Hamiran, (1906) 11 Cal WN 433; Ramanathan v. Karuppaya, (1926) 51 Mad LJ 436; M Salamatulla v. Murlidhar, AIR 1936
Oudh 277.
683 . Sanjivii v. Ramasami, (1885) 8 Mad 494; Viswanathan v. Yawabanda, AIR 1936 Mad 136: (1936) 59 Mad 399.
684 . Munshi Rai v. Rup Narain, AIR 1927 Pat 288: (1927) 6 Pat 386. But see Abdul Satar v. Chi Doe Rhi, AIR 1927 Rang 45: (1926) 4 Rang
418.
685 . Hari Kishen v. Gopeswar, AIR 1937 Cal 177.
686 . Siva Parvathamma v. Krushna Chandra, ILR AIR 1956 Ori 53: (1955) Cut 454.
687 . Shiv Autar v. Hariom, AIR 2007 MP 130 [LNIND 2007 MP 590]: 2007 (3) Civil Court C 35 (Gwalior Bench).
688 . Jagdish Dutt v. Dharma Pal, AIR 1999 SC 1694: (1999) 3 SCC 644.
689 . Raynor v. Mussoorie Bank, (1885) 7 All 681; Abdul Aziz v. Abdul Rahim, AIR 1929 All 291: (1929) 27 All LJ 757.
690 . Vedaviasa v. Madura, AIR 1924 Mad 365 [LNIND 1923 MAD 123]: (1924) 45 Mad LJ 478.
691 . Abdul Satar v. Chi Doe Rhi, AIR 1927 Rang 45: (1927) 4 Rang 418.
692 . State Bank of India v. Balak Raj Abrol, AIR 1989 HP 41 [LNIND 1988 HP 26].
693 . K.P. Sobhana Ltd. v. Catholic Syrian Bank Ltd, AIR 1989 Ker 246 [LNIND 1988 KER 510].
694 . Annamalai Mudali v. Ramaswami Mudali, AIR 1941 Mad 161: (1941) Mad 438; Maganlal v. Doshi, (1901) 25 Bom 631; Raynor v. Mussoorie
Bank, (1885) 7 All 681, 686; Bhagwati v. Banwari Lal, (1909) 31 All 82 (FB); Kedar Nath v. Arun Chandra, AIR 1937 All 742(FB) : (1937) All
921.
695 . Mundyappu Hengsu v. Sampa Alvathi, AIR : 1965 Mys 268.
696 . Dhurandhar Prasad Singh v. Jai Prakash University, AIR 2001 SC 2552 [LNIND 2001 SC 1428].
697 . Satyanarayan Bannerjee v. Kalyani Prasad Singh Deo, (1945) 49 Cal WN 558 : 80 CLJ 198.
698 . Avidayamma v. Paramartha, AIR 1954 Tr & Coch 299; Suryanjaneyulu v. Venkateswarlu, AIR 1955 Pat 203.
699 . Kalabathi v. Chandra Narain, AIR 1962 Pat 55; Mst Manturni v. Munni Lal, AIR 1963 Pat 127.
700 . Bharat Pictures Ltd. v. U.P. Chougani, AIR 1954 Bho 30.
701 . Ramkeshwar Prasad v. Babu Girija, AIR 1957 Pat 501.
702 . Shyam Sunder v. Firm Narain Das Bal Krishna, AIR 2001 All 222 [LNIND 2001 ALL 246].
703 . Marivittil v. Pathram, (1907) 30 Mad 215; Kamal Kutti v. Ibrayi, (1901) 24 Mad 658.
704 . Narayanan v. Theva Amma, AIR 1927 Mad 1043 [LNIND 1927 MAD 294]: (1927) 51 Mad 46.
705 . Rashid-un-nissa v. Muhammad, (1909) 31 All 572 : 36 IA 198.
706 . Kalipada v. Hari, (1917) 44 Cal 627 : 35 IC 856.
707 . Junnoo Singh v. Ram Narain, AIR 1956 All 580 [LNIND 1956 ALL 69].
708 . Kalipada v. Hari, (1917) 44 Cal 627 : 35 IC 856 .
709 . Sham Lal v. Amar Prasad, (1917) 2 Pat LJ 219.
710 . Venkamma v. Parthasarathi, AIR 1926 Mad 1081 [LNIND 1926 MAD 171]: (1926) 51 Mad LJ 381.
711 . Sarab Sukh v. Prem Dutt, AIR 1937 Lah 465: (1937) Lah 162.
712 . Balavant N. Viswamitra v. Yadav Sadashiv Mule, AIR 2004 SC 4377 [LNIND 2004 SC 797].
713 . Shiv Ram Kehar Singh, AIR 1934 Lah 105.
714 . TCI Finance Ltd. v. Calcutta Medical Centre Ltd., AIR 2005 SC 3654 [LNIND 2005 SC 727].
715 . Kalka v. Basant, (1901) 23 All 346; Sheo Parshad v. Nawab Singh, (1910) 32 All 321.
716 . Rahimuddi v. Loll Meah, (1902) 29 Cal 696; Ram Pershad v. Jagannath, (1903) 30 Cal 134.
717 . Ramaswami v. Kameshwaramma, (1990) 23 Mad 361 (FB).
718 . Gawri v. Vigneswar, (1863) 17 Bom 49.
719 . Nirode Kali Roy v. Harendra Nath, AIR 1938 Cal 113: (1938) 1 Cal 280.
720 . Jamini v. Kali Prasad, AIR 1921 Cal 242: (1921) 34 Cal LJ 477; Sheikh Kaloo v. Bholanath, (1925) 6 Pat LJ 725; Mst Madho v. Hazari Mal,
AIR 1929 Pat 141: (1929) 8 Pat 717; Chettyar Firm v. Teo Ee Sanh, AIR 1927 Rang 273: (1927) 5 Rang 393.
721 . Thandaran v. Unnalachan, AIR 1934 Mad 435 [LNIND 1934 MAD 65]: (1934) 57 Mad 822.
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722 . Chivukula Ranjith Kumar v. Santhilal Nemichand, AIR 2000 AP 113 [LNIND 1999 AP 756].
723 . Mohd Akhtar Ali v. Badrudin, AIR 1973 Pat 187.
724 . Venkata Suryanarayana v. Official Receiver, AIR 1965 Andh Pra 451 : (1965) 2 Andh WR 321.
725 . MPEB v. Central Indian Electric Supply Co. Ltd., (1995) 1 SCC 364 [LNIND 1995 SC 9].
726 . (1917) 40 Mad 964 ; followed in U. Kala v. Ma Hnin, AIR 1927 Rang 137: (1927) 5 Rang 110.
727 . (1918) 41 Mad 418.
728 . Mahalakshmamma v. Hanumayya, AIR 1953 Mad 916: (1953) 1 MLJ 808; Ramayya v. Venkanraju, AIR 1954 Mad 916; Ramayya v.
Venkanraju, AIR 1954 Mad 864 [LNIND 1954 MAD 51] (FB) : (1954) 2 MLJ 176; Mulkraj v. Ramdas, AIR 1962 J&K 43.
729 . Ramayya v. Venkanraju, AIR 1954 Mad 864 [LNIND 1954 MAD 51] (FB) : (1954) 2 MLJ 176, (suit against the son on a promissory
note executed by the father to which he was not a party).
730 . Kailasa Reddiar v. Ponnammal, (1961) 2 MLJ 119.
731 . Suresh Mohan v. Shamal Mall, AIR 1957 Pat 437: ILR 36 Pat 424.
732 . Mohalinga v. Santhangopalakrishna, AIR 1958 Mad 80 [LNIND 1956 MAD 313]: (1958) 2 MLJ 580 [LNIND 1958 MAD 57].
733 . Suryaprakasa Rao v. Abdullah Saheb, AIR 1959 AP 106 [LNIND 1958 AP 60]: (1958) ILR AP 759.
734 . AIR 1930 Mad 817 [LNIND 1930 MAD 92] (FB) : (1913) 54 Mad 81 ; approving Krishnappa v. Periaswamy, (1917) 40 Mad 964, and
overruling Sethu v. Ramaswamy, AIR 1926 Mad 484 [LNIND 1925 MAD 283]: (1926) 49 Mad 494, and Linga v. Lakshumanan, AIR 1926
Mad 687 [LNIND 1925 MAD 289]: (1926) 50 Mad LJ 387; Kusmi v. Sadasi, AIR 1942 Pat 432: (1942) 21 Pat 601; Radha Nath v.
Ramchandra, AIR 1954 Cal 367 [LNIND 1954 CAL 29].
735 . Nallaperumal v. Sakul, AIR 1928 Mad 276 [LNIND 1927 MAD 318]: (1928) 54 Mad LJ 721.
736 . Seed Ahmed v. Raza Hussain, AIR 1933 All 57: (1932) 54 All 1031; Sachitanand v. Radhapat, AIR 1928 All 234: (1928) 26 All LJ 524
737 . Sunder Theaters v. Allahabad Bank, AIR 1999 All 14 [LNIND 1998 ALL 291].
738 . Ishan Chunder v. Beni Madhub, (1897) 24 Cal 62; Gulzari Lal v. Madho Ram, (1904) 26 All 447; Tara Prasanna v. Nilmoni, (1914) 41 Cal 418;
Azhar Hussain v. Mohammad Shibli, AIR 1939 Nag 183: (1939) Nag 548; Gauri Dutt v. Dawring, AIR 1934 Pat 413: (1934) 13 Pat 735;
Bankery Behari Lal v. Mst Brij Rani, AIR 1944 Oudh 314; Annamalai Mudali v. Ramaswami Mudali, (1941) Mad 1003 : (1954) 1 MLJ 501.
739 . Hanmantagouda v. Shivappa, (1940) 42 Bom LR 1123; Ajodheya Lal v. Mahanath Brijkishore, AIR 1940 Pat 615.
740 . Gangabai Gopal Dass Mohta v. Ful Chand, AIR 1997 SC 1812 [LNIND 1996 SC 2182]: (1997) 10 SCC 387 [LNIND 1996 SC 2182].
741 . Hazari v. Zila Singh, AIR 1970 P&H 215 : (1970) 1 Punj 326 : 71 Punj LR 927.
742 . Raghuber Singh v. Jai Indra Bahadur Singh, 46 IA 228 : 236; Abdul Ali v. Rupchand, AIR 1953 Hyd 111. See s 145 below.
743 . Gour Sundar v. Hem Chunder, (1889) 16 Cal 335; Sabhaji v. Sri Gopal, (1895) 17 All 222.
744 . Mst Kariman Bai vs Laxman Lal Ram Pratap, AIR , 1978 Raj 120.
745 . Bankey Beharilal v. Mst Brij Rani, AIR 1944 Oudh 314; Kameshar Prassad v. Ran Bahadur, (1896) 12 Cal 458.
746 . Sheo Narain v. Chunilal, (1900) 22 All 243; Gopinath v. Sajani, (1905) 10 Cal WN 240; Gur Prasad v. Ram Lal, (1899) 21 All 20.
747 . Ibid.
748 . Venkatachalapathi v. Venkatappayya , AIR 1932 Mad 86 [LNIND 1931 MAD 174]: (1931) 55 Mad 495 : 136 IC 306.
749 . Veerayya v. Veeraraghaviah , AIR 1961 AP 298 [LNIND 1960 AP 181].
750 . Basappa v. Bhimangowda, AIR 1928 Bom 65: (1928) 52 Bom 208.
751 . Lakshminarayana v. Hanumayuya, AIR 1937 Mad 508.
752 . Parmeshri Din v. Ram Charan, AIR 1937 PC 260: (1937) 39 Bom LR 1019 : 41 Cal WN 1130.
753 . Nishi Kanta v. Kumar Promotha Nath, (1934) 37 Cal WN 1015 : AIR 1934 Cal 145.
754 . Gopal v. Dnyanu, ILR AIR 1938 Bom 367: (1938) Bom 649.
755 . Narayan Rao v. Chunilal, AIR 1953 Nag 263: (1952) ILR Nag 150.
756 . Ajodhya Rao v. Hardwar Ray, (1907) 9 CLJ 485; Naranappa v. Khurana, AIR 1953 Mys 153; J.L. Arora v. M.E. Periera, AIR 1977 Del 12
[LNIND 1976 DEL 40].
757 . Bhawani Shanker v. Naranshaker, (1899) 23 Bom 536.
758 . Chettiar Firm v. Teo Ee San, AIR 1927 Rang 273: (1927) 5 Rang 393.
759 . Nishi Kanta v. Kumar Promatha Nath, AIR 1934 Cal 145; Murari Lal v. Debi Saran, AIR 1956 All 555 [LNIND 1956 ALL 43].
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760 . Peari Lal v. Chandi Charan, (1906) 11 Cal WN 163.

761 . Guru Shiddhaswami v. Dakshina Maharashtra Digambar Jain Sabha, AIR 1953 SC 514 [LNIND 1953 SC 88]: (1953) SCJ 730 [LNIND 1953
SC 88].
762 . Doki Surya Prakash Rao v. Gopal Krishna Dolai, AIR 2007 Orissa 168.
763 . Ibid , at p. 170.
764 . Deshpande v. Srinivasan, (1954) Mad 1003 : (1954) 1 MLJ 501; Natesa v. Alamelu, (1950) 1 MLJ 476.
765 . Makkhan Lal Jaiswal v. Executive Engineer, Land Planning Division, AIR 2002 All 75 [LNIND 2002 ALL 33].
766 . Nand Rani v. Civil Judge, Junior Division, Pilibhit, AIR 2004 All 307.
767 . Dwar Buksh v. Fatik, (1899) 26 Cal 250; Badri Narain v. Jai Kishen, (1894) 16 All 483; Sheo Prasad v. Lall, AIR 1925 Pat 449: (1925) 4 Pat
120.
768 . Ganga Das v. Yakub Ali, (1900) 27 Cal 670.
769 . Sah Man Mull v. Kanagasabapathi, (1893) 16 Mad 20; Krishnan v. Venkatapathi, (1906) 29 Mad 318; Peary Mohun v. Romesh, (1888) 15 Cal
371. See also O 21 : r 53(3).
770 . Madho Das v. Ramji, (1894) 16 All 286; Shivram v. Jivu, (1889) 13 Bom 34; Rashbehary v. Surnomoyee, (1881) 7 Cal 403; Mst Bhampul v.
Harbuksh Singh, (1912) PR No 64 p. 242 (gift by judgment-debtor of his entire property).
771 . Ramsingh v. Gaindaram, AIR 1953 Punj 163: (1954) ILR Punj 15.
772 . Subhodh Kumar v. Hiramoni, AIR 1955 Cal 267 [LNIND 1954 CAL 168].
773 . Gur Prasad v. Ram Lal, (1899) 21 All 20 (sale); Mathewson v. Gobardhan, (1901) 28 Cal 492 (lease); Paramananda v. Mahabeer, (1897) 20 Mad
378 (mortgage); Kuppana v. Kumara, (1911) 34 Mad 450 (sale); Narayenaswami v. Seshappier, (1907) 17 Mad LJ 321 (mortgage); Lalji Mal v.
Nand Kishore, (1897) 19 All 332; Ishar Das v. Parma Nand, (1925) 6 Lah 544 : AIR 1926 Lah 134(mortgage); Manicka Chettiar v. Rajammal,
1955 (2) MLJ 357 : 1955 MWN 664. See s 64.
774 . Varughese v. Ouseph Lonan, AIR 1952 TC 467: (1952) TC 201.
775 . Subramanya v. Esakki Madan, AIR 1953 TC 364.
776 . Madho Das v. Ramji, (1894) 16 All 286.
777 . Samhut Rai v. Sambaran Rai, AIR 1944 Pat 105: (1943) 22 Pat 678.
778 . Sheo Narain v. Chunilal, (1900) 22 All 243.
779 . Gulzari Lal v. Madho Ram, (1904) 26 All 447; Ishan Chunder v. Beni Madhub, (1897) 24 Cal 62; Radha Kishun v. Hem Chandra, (1907) 11
CWN 495; Mahimuddin v. Pamu Sahani, AIR 1952 Ori 64 [LNIND 1951 ORI 20].
780 . Tirugnana Sambanda Mudaliar v. Meenakshi Ammal, AIR 1963 Mad 144 [LNIND 1962 MAD 6].
781 . Kedarnath v. Sheo Narain, AIR 1957 Pat 408.
782 . Jamsetji v. Hari Dayal, (1908) 32 Bom 181.
783 . See notes to s 50, Decree for injunction.
784 . Kasi Prasad v. Miller, (1885) 7 All 752; Grey v. Hazari Lal, (1908) 30 All 486; Sardarmal v. Aranvayal, (1896) 21 Bom 205; Frederick Peacock v.
Madan Gopal, (1902) 29 Cal 428; Official Assignee of Madras v. Aiyu, (1925) 48 Mad LJ 530 : AIR 1925 Mad 688; Re Frank Morton Fisk, AIR
1956 Cal 656 [LNIND 1954 CAL 180]: 60 Cal WN 61.
785 . Satyanarayan Bannerjee v. Kalyani Prasad Singh Deo Bahadur, AIR 1945 Cal 387: (1945) 49 Cal WN 558 : 80 CLJ 198.
786 . Mohitosh v. Satish, AIR 1932 Cal 203: (1931) 35 Cal WN 971; Official Receiver v. Imperial Bank of India, AIR 1935 Mad 151 [LNIND 1934
MAD 238]: (1935) 58 Mad 403.
787 . Dineshchandra v. Munshi Jahanali, AIR 1935 Cal 503: (1935) 62 Cal 457; Narasimhacharyudu v. Sambayya, AIR 1960 AP 131 [LNIND 1959
AP 66].
788 . Official Receiver, Guntur v. Amara Seshayya, AIR 1941 Mad 262 [LNIND 1940 MAD 261].
789 . Surendra Nath Chatterjee v. Surendra Nath Basu, AIR 1951 Pat 451.
790 . Durga Prasad v. Custodian of Evacuee Property, AIR 1960 P & H 341 (FB) : (1960) 2 Punj 159.
791 . Gobardhan v. Bishan, (1901) 23 All 116.
792 . Panchratan v. Ram Sahay, (1918) 3 Pat LJ 579.
793 . AIR 1953 Nag 334: (1952) ILR Nag 89.
794 . Bhikhia v. Biri Bihari, (1917) 2 Pat LJ 478; Surendra Narain v. Gopi, (1905) 32 Cal 1031; Krishna Chandra v. Dina Nath, AIR 1928 Cal 94:
(1928) 54 Cal 1064.
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795 . See Maruti v. Krishna, AIR 1967 Bom 34 [LNIND 1965 BOM 15]: (1966) ILR Bom 154 : 67 Bom LR 534.
796 . Hanmantagauda v. Shivappa, (1940) 42 Bom LR 1123.
797 . Rahim Buksh v. Kishen Lal, AIR 1939 All 328; Pannalal v. Mst Naraini, AIR 1952 SC 170 [LNIND 1952 SC 16]: [1952] SCR 544
[LNIND 1952 SC 16] : (1952) SCJ 211 [LNIND 1952 SC 16] : (1953) SCA 871 [LNIND 1952 SC 16]; Mst Karimunnissa v. Alfuddin, AIR
1960 MP 76 [LNIND 1959 MP 29]; Prafulla Chandra v. Calcutta Credit Corpn., AIR 1965 Assam 21.
798 . Baleshwar v. Ram Ranvijaya Prasad Singh, AIR 1947 Pat 46: (1947) 26 Pat 201; Ram Chander v. Sarupa, AIR 1939 Lah 113: (1939) ILR Lah
103; Pokhar Singh v. Tular Ram, AIR 1935 All 1016; Adit Prasad v. Sheo Mangal, AIR 1967 All 258 [LNIND 1965 ALL 196].
799 . Baleshwar v. Ram Ranvijaya Prasad Singh, supra; Firm Wasti Ram Gurditta Mal v. Mst Ganeshi, AIR 1939 Lah 405: (1939) ILR Lah 116; but
see Ram Chand v. Shamas Din, AIR 1938 Lah 690.
800 . Jaga Tarini Dasi v. Sarajranjan Pal, AIR 1941 Cal 357: (1941) 1 Cal 336 : (1940) 45 Cal WN 323 : 74 CLJ 169; Trimbak v. Govinda, (1895)
19 Bom 328; Majed v. Raghubar, (1900) 27 Cal 187; Gohar v. Kasi, (1900) 27 Cal 415; Ajodhia v. Mahadeo, AIR 1927 All 574; Brown v. Hanson,
AIR 1933 Bom 185: (1933) 35 Bom LR 360; Lakku v. Radha Bai, AIR 1952 Bom 438 [LNIND 1951 BOM 196]; Bajnath Mukherjee v.
Chota Nagpur Banking Assn., ILR 27 Pat 399; Jagunandan Prasad v. Bhagwat Mahton, AIR 1955 Pat 350: ILR 34 Pat 366; Pappayamma v. Rama
Raju, AIR 1962 Ori 69 [LNIND 1961 ORI 39].
801 . Gajadhar v. Babu Arjun, (1916) 1 Pat LJ 558.
802 . Sant Ram v. Atma Singh, AIR 1948 E Punj 8; Amiya Prabha Das v. Jyoti Bhusan Ghosh, AIR 1947 Cal 364: (1946) 50 Cal WN 548 : 82 CLJ
131; Sethchand v. Durga, (1890) 12 All 313; Panchanun v. Rabia Bibi, (1890) 17 Cal 711 (FB); Kali Charan v. Jewat, (1906) 28 All 51;
Vengapayyan v. Karimpanakal, (1903) 26 Mad 501; Madhusudan v. Gobinda, (1900) 27 Cal 34; Murigeya v. Hayat Saheb, (1899) 23 Bom 237;
Gokulsing v. Kissensing, (1910) 34 Bom 546; Umeshananda v. Mohendra, (1911) 14 Cal LJ 337; Ajo Koer v. Gorak Nath, (1914) 19 Cal WN 517;
Dull v. Shit Lal, (1917) 39 All 47; Bhagwant Ram v. Nizam Din, AIR 1921 Lah 173: (1921) 3 Lah LJ 406; Arunachellam v. Maung San Ngwe,
AIR 1924 Rang 323: (1924) 2 Rang 168; Ishar Das v. Parma Nand, (1925) 6 Lah 544 : AIR 1926 Lah 134; Mashwe v. Maung Ba, (1927) 5
Rang 659 : AIR 1928 Rang 29; Naida v. Rajendra, (1928) 48 Cal LJ 551; Maria v. Pana, AIR 1928 Bom 534: (1928) 30 Bom LR 1447;
Charusilla Dasi v. Sukhdev, AIR 1935 Cal 14: (1935) 60 CLJ 251; Dinbai v. Bamansha, AIR 1934 Bom 296: (1934) 58 Bom 513; Swaminathan
v. Somasundaran, AIR 1938 Mad 731: (1938) ILR Mad 1080; Ajo Koer v. Gorak Nath, 481; Fakir v. Giribala, 22 CLJ 305; Pappayamma v.
Rama Raju, AIR 1962 Ori 69 [LNIND 1961 ORI 39].
803 . Anant v. Brijmohan, AIR 1956 Nag 93: (1955) ILR Nag 72.
804 . Sethuram v. Jaychand, AIR 1962 Raj 136 [LNIND 1961 RAJ 67].
805 . Chokkalingam Chettiar v. Raman Chettiar, AIR 1946 Mad 209: (1946) ILR Mad 707; Marigeya v. Hayat Saheb, (1899) 23 Bom 237; Bhudrudin
v. Abdul Rahim, (1908) 31 Mad 125; Indomati v. Jogashar, (1906) 28 All 644; Roop Lal v. Bekani, (1890) 15 Cal 437.
806 . Kartick Chandra v. Ashutosh, (1912) 39 Cal 298; Upendranath v. Kusum, (1915) 42 Cal 440; contra Shah Naim v. Girdhari, AIR 1927 Oudh
120: (1927) 2 Luck 145.
807 . Sheikh Nazir v. Muhammad, AIR 1922 Pat 196: (1922) 1 Pat 637.
808 . Jatru Pahan v. Ambikajit Prasad, AIR 1946 Pat 214: (1954) 24 Pat 741; Hamidgani v. Amma Sahib, AIR 1941 Mad 898 [LNIND 1941
MAD 38]; Ramaswami v. U. Tun Tha, AIR 1940 Rang 161; Venkate Gowda v. Basava Gowda, AIR 1952 Mys 3: (1952) ILR Mys 147; Daud
Beg v. Mahammudi Begum, AIR 1952 All 881 [LNIND 1952 ALL 62]; Devasia Philipose v. Harihara Iyer, AIR 1954 TC118: (1952) TC 275.
809 . Ramgopal v. Ajodhia Prasad, AIR 1953 All 281 [LNIND 1949 ALL 163]: (1951) ILR 1 [LNIND 1951 RAJ 219] All 545.
810 . Shrinivasacharyulu v. Venkatevaradacharyulu, AIR 1946 Mad 155: (1946) ILR Mad 120; Sheo Narain Sah v. M. Deolodhan Kuer, AIR 1948 Pat
208: (1946) 26 Pat 97.
811 . Lakshamadu v. Ramudu, AIR 1939 Mad 867: (1940) ILR Mad 123.
812 . Hari Mohan Behera v. State Bank of India, AIR 2007 Orissa 96: 2007 (1) OLR 337.
813 . G. Rajarethna Naikan v. P.N. Parameswara Kurup, AIR 1997 Ker 361 [LNIND 1997 KER 117]; Mangal Prasad v. Krishan Kumar Maheshwari,
AIR 1992 SC 1857.
814 . Pandayappa v. Chennappa, AIR 1940 Mad 165.
815 . Kanhaya Lal v. National Bank of India, (1913) 40 Cal 598 : 40 IA 56; Sundar Singh v. Ghasi, (1896) 18 All 410; Raghunath v. Sarosh, (1899) 23
Bom 266.
816 . Siveshwar Prasad v. Lal Harnarain, AIR 1945 Pat 116: (1944) 23 Pat 760; Ramanathan v. Levvai, (1900) 23 Mad 195; Peari Lal v. Allahabad
Bank, AIR 1926 All 244: (1926) 24 All LJ 334.
817 . See notes above, Objections by parties or their representatives.
818 . Bhagwat Narain v. Mahadeo Prasad, AIR 1942 Pat 244: (1941) 21 Pat 233; Basti Ram v. Fattu, (1886) 8 All 146 (FB); Dhani Ram v.
Chaturbhuj, (1899) 22 All 108.
819 . Bhagwat Narain v. Mahadeo Prasad, AIR 1942 Pat 244: (1941) 21 Pat 233; Nadarmuni v. Veerabhadra, (1911) 34 Mad 417; Gokul Singh v.
Kissen Singh, (1910) 34 Bom 546; Mohan Singh v. Punchanan, AIR 1927 Cal 106: (1927) 53 Cal 837.
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820 . (1892) 19 Cal 683 : 19 IA 166; Sadho v. Abhenandan, (1904) 26 All 101; Gaya Prasad v. Randhir Singh, (1906) 28 All 681; Mathura Das v.
Lachman, (1902) 24 All 239; Harihar Kanta v. Rama Pandu, (1909) 33 Bom 698; Bhagwat Narain v. Mahadeo Prasad, supra; Murlidhar Bhattar v.
Mahendra Nath Das, AIR 1949 Ori 73: (1949) 1 Cutt 269; Mst Shabbir Bandi v. Mohammad Hashim, AIR 1944 Oudh 43.
821 . Bhau Kumar v. Lachmi Kant, AIR 1941 Pat 566; Imam-un-nissa v. Liakat Hussain, (1881) 3 All 424; Sahdeo v. Ghasiram, (1894) 21 Cal 19;
Rajagopala v. Ramanujachariar, AIR 1924 Mad 431: (1924) 47 Mad 288.
822 . Dada v. Jayachand, AIR 1958 Bom 278 [LNIND 1957 BOM 184]: (1958) ILR Bom 633.
823 . Anatharama v. Vettah, (1916) 30 Mad LJ 611.
824 . Mst. Shabbir Bandi v. Mohammad Hashim, AIR 1944 Oudh 43; Ram Gopal v. Khiali Ram, (1844) 6 All 448; Basti Ram v. Fattu, (1886) 8 All
146; Durga Charan v. Kali Prasanna, (1899) 26 Cal 727.
825 . Ashuttosh v. Behari Lal, (1908) 35 Cal 61; Izhuvan v. Izhuvan, (1907) 30 Mad 313; Bhaichand v. Ranchhodas, (1921) 45 Bom 174 : AIR 1921
Bom 285.
826 . Ganga Devi v. Ram Prasad, (1925) 23 All LJ 558 : AIR 1925 All 551.
827 . Merla Ramanna v. Nallapa Raju, (1955) 2 SCR 938 [LNIND 1955 SC 96] : AIR 1956 SC 87 [LNIND 1955 SC 96]; Marrat v. Shivaji &
Sons, AIR 1930 PC 86; Venkatachalam v. Perumal, (1912) MWN 44.
828 . Mst Shabbir Bandi v. Mohammad Hashim, supra; Gokulsing v. Kissensing, (1910) 34 Bom 546.
829 . Genu v. Sakharam, (1898) 22 Bom 271; Durga v. Balwant, (1901) 23 All 478; Viraraghava v. Venkata, (1893) 16 Mad 287; Bank of Upper
India v. Fitzholmes, AIR 1928 Lah 666.
830 . Dhani Ram v. Chaturbhuj, (1900) 22 All 86.
831 . Mohanlal v. Shibdhari, AIR 1922 Pat 146; Sarat Chandra Gayan v. Port Canning and Land Development Co. Ltd., AIR 1946 Cal 45: 80 CLJ 35;
Superior Bank v. Budh Singh, (1924) 22 All LJ 413 : AIR 1924 All 698.
832 . Hafez Uzir v. Nasimannessa, AIR 1928 Cal 865.
833 . Govindarajulu v. Sivarama, 1952 (2) MLJ 294 : AIR 1953 Mad 822 [LNIND 1951 MAD 286]; Aravindaksha v. Lakshminarayana, (1956)
TC1113.
834 . Nandlal v. Siddiquan, AIR 1957 All 558 [LNIND 1954 ALL 175]; Siribhan v. Jit Singh, AIR 1956 Pepsu 77.
835 . Veerayya v. Tirichirapalli District Board, AIR 1961 Mad 409 [LNIND 1960 MAD 89].
836 . Ramanna v. Nallaparaju, supra , Kuttikrishnan Nair v. Madhavan Nair, AIR 1957 Ker 382; Shiva Pujan v. Baban Lal, AIR 1959 Pat 13.
837 . Harindra Nath v. Bhola Nath, AIR 1937 All 407.
838 . Ram Kalpa Kundu v. Kasi Nath Dutta, AIR 1950 Cal 582 [LNIND 1949 CAL 89]: (1949) 54 CWN 690; G Raja Rethna Naikkan v. P.N.
Parmeshwara Kurup, AIR 1997 Ker 361 [LNIND 1997 KER 117].
839 . Raghunath Raju v. Kasim Khan, AIR 1966 AP 152 [LNIND 1965 AP 102].
840 . Iyer v. Kunhamuthammad, AIR 1965 Ker 99 [LNIND 1963 KER 145]; Narayanappa v. Akkulappa, AIR 1965 AP 215 [LNIND 1963 AP
216].
841 . Marla Ramanna v. Nallaparaju, AIR 1956 SC 87 [LNIND 1955 SC 96]: (1952) SCR 938; Rajagopala Iyer v. Ramanujachariar, AIR 1924 Mad
431(FB); Lakhu v. Radhabai, AIR 1952 Bom 438 [LNIND 1951 BOM 196]: (1952) ILR Bom 1056; Ramlal v. Mst. Rannia, AIR 1947 Pat
454(FB); Bansi Sao v. Debi Prasad, AIR 1961 Pat 508; Cheria Chacko v. Kumaran Kesavan, AIR 1963 Ker 258 [LNIND 1962 KER 213],
explaining the observations in Nanibai v. Geeta Bai, AIR 1958 SC 706 [LNIND 1958 SC 50]: 1958 SCJ 925 [LNIND 1958 SC 50]. As to
the application of this section, when the sale is attacked as void on the ground that the decree itself is void, see notes To what decree the
section applies above .
842 . Ganapathy v. Krishnamachariyar, (1918) 45 IA 54 : 60; Ramabhadra v. Kadiryarwami, AIR 1922 PC 252: 48 IA 155.
843 . Kasinatha v. Uthumansa, (1902) 25 Mad 529; Kattayat v. Raman, (1903) 26 Mad 740; Sandhu v. Hussain, (1905) 28 Mad 87; Veyindramuthu v.
Maya Nadan, (1920) 43 Mad 107 (FB).
844 . Kailash v. Gopal, AIR 1926 Cal 798: (1926) 53 Cal 781 : 30 Cal WN 1059 : AIR 1930 Cal 586; Jiteswari v. Sudhakrishna, AIR 1932 Cal 672:
(1932) 59 Cal 956; Galstaun v. Syed Mahammad, AIR 1932 Cal 627: (1932) 36 Cal WN 242; Kalipada v. Basanta Kumar, AIR 1932 Cal 126:
(1932) 59 Cal 117; Kedar Nath v. Kshiroda, (1933) 37 Cal WN 671; Sariatoola v. Rajkumar, (1900) 27 Cal 709; Ramnarain v. Bandi Pershad,
(1904) 11 IC 737; Hari Charan v. Mon Mohan, (1914) 18 Cal WN 27; Debi Prasad v. Satish Chandra, AIR 1944 Cal 32.
845 . Semabai v. Ganpatrao, AIR 1938 Nag 212: (1938) ILR Nag 583; Narayan Rao Amrita Rao v. Chunilal Sitaram, AIR 1953 Nag 236: (1952)
ILR Nag 150.
846 . Ram Ratan v. Chauwamal, AIR 1959 MP 348 [LNIND 1959 MP 156].
847 . Gita Bai v. Daulatrao, AIR 1962 MP 62 [LNIND 1961 MP 42]; Bhikumal v. Ram Chander Babulal, AIR 1946 Lah 134: (1946) ILR Lah
672; Manicka Chettiar v. Rajambal, (1955) 2 MLJ 357 : 1955 MWN 664.
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848 . Bhagwati v. Banwari Lal, (1909) 31 All 82 (FB); Buddhu Misir v. Bhagirathi, (1918) 40 All 216; Mohsin v. Haider, AIR 1928 All 368: (1928) 50
All 670; Kedar Mal v. Arun Chandra, AIR 1937 All 742(FB) : (1937) All 921; Mst Suraj Dei v. Mst Gulab Dei, AIR 1955 All 49 [LNIND
1954 ALL 182]: (1955) 1 All 687, overruling Baburan v. Pyarilal, AIR 1919 All 390.
849 . Haji Abdul Gani v. Raja Ram, (1916) 1 Pat LJ 232; Dahminder Das v. Bakshi, (1918) 3 Pat LJ 571; Sridhar v. Jageshwar, (1919) 4 Pat LJ 716;
Jadab v. Rameshwar, (1930) 9 Pat 332 : AIR 1930 Pat 308; Ram Kumar v. Ramcharan, (1930) 9 Pat 775 : AIR 1930 Pat 311, dissenting from
Askaran v. Raghunath, AIR 1925 Pat 478: (1925) 4 Pat 726; Tribeni Prasad v. Ramasray, AIR 1931 Pat 241(FB) : (1931) 10 Pat 670 : 133 PC
337.
850 . Hargovind v. Bhudar, AIR 1924 Bom 429: (1924) 48 Bom 550, overruling Sadashiv v. Narayan, (1911) 35 Bom 452; Lakshman v. Govind,
AIR 1924 Bom 527: (1924) 26 Bom LR 843; Hiralal v. Ramchandra, AIR 1930 Bom 375: (1930) 54 Bom 479.
851 . Chotha Ram v. Karmon Bai, (1918) PR No 8, p. 34; Nusrat Ali v. Sakina Begam, (1919) PR No 121, p. 312; Sardar Mal v. Kartar Singh, AIR
1939 Lah 211: (1939) ILR Lah 295; Qazi Abdul Ghani v. Lala Lal Chand, AIR 1940 Lah 230; Bali Lal v. Durga, (1920) 1 Lah 134; Ram Singh
Gopal Singh v. Abdulla Habibulla, 1945 Lah 252 : AIR 1944 Lah 402(FB).
852 . Martin v. Hashim, AIR 1930 Rang 61: (1930) 8 Rang 162.
853 . Gaya Baksh v. Kuar Rajendra, AIR 1928 Oudh 199(FB) : (1928) 3 Luck 182.
854 . Ganapathy v. Krishnamachariyar, (1918) 45 IA 54, 60.
855 . Dwipalchandra v. Jeeban, AIR 1931 Cal 574: (1931) 58 Cal 808.
856 . Goba v. Sakharam, (1920) 44 Bom 977.
857 . Maganlal v. Doshi Mulji, (1901) 25 Bom 631; Gokulsing v. Kissensing, (1910) 34 Bom 546; Bai Mani v. Ranchodlal, AIR 1923 Bom 214: (1923)
25 Bom LR 147; Narsinbhat v. Bandu Krishna, (1918) 42 Bom 411 : 20 Bom LR 495; Hanmantagouda v. Shivappa, (1940) 42 Bom LR 1123.
858 . Bhagwat Narain v. Mahadeo Prasad, AIR 1942 Pat 244: (1941) 21 Pat 233.
859 . Ishan Chunder v. Beni Madhub, (1896) 24 Cal 62 (FB).
860 . Gulzari Lal v. Madho Ram, (1904) 26 All 447 (FB); Ananti Kunwari v. Ajudhia Nath, (1908) 30 All 379.
861 . But see the following cases: (1920) 43 Mad 107; Krishna v. Saraswatula, (1908) 31 Mad 177; Nadamuni v. Veerabhadra, (1910) 34 Mad 417;
Subbamma v. Chennayya, (1918) 41 Mad 467; Veyindramuthu v. Maya Nadan, (1920) 43 Mad 107; Sornam v. Tiruvazhiperumal, AIR 1926 Mad
857 [LNIND 1926 MAD 70]: (1926) 51 Mad LJ 126; Sandhu v. Hussain, (1905) 28 Mad 87; Manickka v. Rajagopala, (1907) 30 Mad 507;
Nilkantharao v. Mst Satyabhama Bai, AIR 1944 Nag 25: (1944) Nag 230; Paramananda v. Mahabeer, (1897) 20 Mad 378; Sivarama v.
Somasundara, (1905) 28 Mad 119; Kuppana v. Kumara, (1911) 34 Mad 450; Veyindramuthu v. Maya Nandan, (1920) 43 Mad 107; Nadamuni v.
Veerabhadra, (1910) 34 Mad 417 : 421; Arasayee v. Sokkalinga, (1916) 1 MWN 287; Jainulabdin v. Krishna, AIR 1921 Mad 420 [LNIND
1921 MAD 36]: (1921) 41 Mad LJ 120; Sorimuthu v. Muthu Krishna, AIR 1933 Mad 598 [LNIND 1932 MAD 271]: (1933) 65 Mad LJ 253;
Thondam Annamalai v. Tiruttani Ramasami, AIR 1941 Mad 161(FB).
862 . Hukum Chand v. Ganga Ram, (1919) Punj Rec No 12, p. 25.
863 . see Narotam v. Sukraj , (1928) 3 Luck 717 : AIR 1928 Oudh 442.
864 . Ramavatar Lakshman Prasad v. Mst. Jugram Bai, AIR 1956 Nag 81: (1956) Nag 371.
865 . Bai Mani v. Ranchodlal, AIR 1923 Bom 214: (1923) 25 Bom LR 147; Kishori Mohun Roy v. Chunder Nath, (1887) 14 Cal 644; Bhagwati v.
Banwari Lal, (1909) 31 All 82 (FB). See also cases cited under the head, First where the decree-holder is himself the purchaser; Hari
Kishan v. Radha Kishan, AIR 1957 All 251 [LNIND 1956 ALL 187]; Devi Singh v. Tara Chand, AIR 1962 HP 8.
866 . Ramchandra v. Gajanan, (1920) 44 Bom 352.
867 . (1920) 43 Mad 107.
868 . Thondam Annamalai v. Tiruttani Ramasami, AIR 1941 Mad 161(FB).
869 . Muna Lal v. Collector of Shahjahanpur, AIR 1923 All 470: (1923) 45 All 96; see also Imtiaz-un-nissa v. Chuttan Lal, AIR 1925 All 236: (1925)
47 All 304; Nagabhatta v. Nagappa, AIR 1923 Bom 62: (1923) 46 Bom 914 (judgment-debtor estopped as he had not objected to the sale).
870 . Jainulabdin v. Krishna, AIR 1921 Mad 420 [LNIND 1921 MAD 36]: (1921) 41 Mad LJ 120.
871 . Bindeshri Prasad v. Badal Singh, AIR 1923 All 394: (1923) 45 All 369.
872 . Macha Koundan v. Kottora Koundan, AIR 1936 Mad 50: (1936) 58 Mad 202.
873 . Harnandrai v. Debidutt, AIR 1973 SC 2423 [LNIND 1973 SC 200]: (1973) 3 SCC 467; SPL Pillai v. Subhasini, AIR 1972 Ker 162
[LNIND 1971 KER 143]: (1971) 2 Ker 472.
874 . Sham Mohan Lal v. Jai Gopal, AIR 1968 Del 104 [LNIND 1967 DEL 75]; Janak Raj v. Gurdial Singh, AIR 1966 Punj 315: (1966) 2 Punj
593.
875 . V.S.M. Iyer v. Azharkhan, AIR 1972 Ker 135 [LNIND 1971 KER 253]: (1972) 1 Ker 248 : (1972) Ker LR 70; but see Sadhucharan v.
Sudershan, AIR 1965 Ori 2 [LNIND 1964 ORI 37].
876 . Ganpat Singh v. Kailash Shankar, (1987) 3 SCC 146 [LNIND 1987 SC 469].
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877 . A.R. Dawar v. Ganesh Datta, AIR 1940 Lah 59.

878 . Ganga Singh v. Badri Singh, AIR 1945 Oudh 314: (1945) 20 Luck 471; Mst Muna Koer v. Durga Prasad, (1917) 2 Pat LJ 192; Babu Lal v.
Janak, AIR 1926 All 681: (1926) 48 All 429; Shaligram v. Mst Dhurpati, AIR 1939 Nag 147: (1930) ILR Nag 165; Damodarlalji v. Sone
Basantlal, AIR 1952 Pat 333: ILR 27 Pat 848; Rangappa v. Rindava, AIR 1954 Bom 139 [LNIND 1953 BOM 5].
879 . Parasnmal v. Jeth Singh, AIR 1957 Raj 253 [LNIND 1955 RAJ 194]: (1956) ILR Raj 217.
880 . Venubai v. Damodar, AIR 1933 Bom 396: (1933) 57 Bom 641; Maganlal v. Doshi Mulji, (1901) 25 Bom 631; Charan Singh v. Sardar Khan,
AIR 1935 Lah 384; Md Abdul Matin v. Mst Bibi Hamidan, AIR 1932 Pat 329. But see Nathamai v. Kasilya, AIR 1934 Mad 181 [LNIND
1933 MAD 304]: (1934) 57 Mad 457; Ananta Parkash v. Dharmanand, AIR 1957 Punj 64.
881 . Badri Narain v. Jai Kishen, (1894) 16 All 483; Krishnama v. Appasami, (1902) 25 Mad 545; Ganga Das v. Yakub Ali, (1900) 27 Cal 670; Khem
Singh v. Raghubir, AIR 1925 All 578: (1925) 47 All 365; Narasimha v. Venkatachalapathi, AIR 1934 Mad 181 [LNIND 1933 MAD 304]:
(1934) 57 Mad 457; Jnanendra Nath v. Girish Chandra, (1935) 39 Cal WN 313; Ram Autar v. Bate Krishna, AIR 1936 All 479: (1936) All LJ
541.
882 . Krishan v. Janakiramayya, AIR 1927 Mad 903 [LNIND 1927 MAD 206]: (1928) 51 Mad 219.
883 . Subramania v. Kumaravelu, (1916) 39 Mad 541 : 542; Chidambaram v. Krishna, (1917) 40 Mad 233; Srinivas Prosad v. Kesho Prosad, (1911) 14
CLJ 489; Bolanath v. Satya Charan, (1951) 2 Cal 70; Audh Behari v. Sailendranath, AIR 1954 Cal 339 [LNIND 1954 CAL 18].
884 . Janardhan v. Martand, AIR 1921 Bom 208: (1921) 45 Bom 241; Ramchandra v. Balmukand, (1905) 29 Bom 71; Rajendra Kishore v. Mathura
Mohan, (1919) 25 Cal WN 555 (order refusing to stay execution); Hussain Bhai v. Beltie Shah, AIR 1924 All 808: (1924) 46 All 733, (order
staying execution for a definite period); U. San v. U. Chit, AIR 1931 Rang 221: (1931) 9 Rang 354 (order refusing to stay execution);
Chidambaran v. Samasundaram, AIR 1938 Rang 317: (1938) Rang 580.
885 . Durga Devi v. Hans Raj, AIR 1930 Lah 187: (1930) 11 Lah 402, dissenting from Janardhan v. Martand, (1921) 45 Bom 241 and Husain Bhai
v. Beltie Shah, (1924) 46 All 733 and Rejendra Kishore v. Mathura Mohan, (1919) 25 Cal WN 555.
886 . Shivbasappa v. Marigowda, AIR 1934 Bom 252: (1934) 58 Bom 485.
887 . AIR 1963 Raj 4 [LNIND 1962 RAJ 216].
888 . Ethirajulu v. Official Receiver, AIR 1933 Mad 152 [LNIND 1932 MAD 228]: (1933) 56 Mad 453.
889 . Rohit Kumar v. Bodh Pal Singh, AIR 1997 Raj 159.
890 . T.T.V. Dhinkaran v. Dy. Director, Enforcement Directorate, AIR 2003 Mad 59 [LNIND 2002 MAD 934].
891 . Seetharaman v. Chidambaram, AIR 1933 Mad 166 [LNIND 1932 MAD 197]: (1933) 56 Mad 447.
892 . Jhamman Lal v. Kewal Ram, (1900) 22 All 121; Sadho v. Abhenandan, (1904) 26 All 101, 103; Sheodihal v. Bhawani, (1907) 29 All 348;
Venkata Krishnama v. Krishna Rao, (1909) 32 Mad 425; Ramanna v. Nalaparaju, AIR 1956 SC 87 [LNIND 1955 SC 96]: (1952) SCR 938;
Basantlal v. Beharilal, (1953) ILR Punj 609 : AIR 1953 Punj 118; Raman Nair v. Lakshmi Amma, AIR 1952 TC 96.
893 . Sadashiv v. Narayan, (1911) 35 Bom 452 : 461; Bhaichand v. Ranchhoddas, AIR 1921 Bom 285: (1921) 45 Bom 174 : 176; Protiva Sundari
Debi v. Sarada Charan, AIR 1934 Cal 15: (1934) Cal WN 996; Nirode Kali Roy v. Rai Herendra Nath, (1938) 1 Cal 280 : AIR 1938 Cal 113.
894 . Suryanarayana v. Venkata, AIR 1954 Mad 239 [LNIND 1953 MAD 122]: (1954) Mad 338 : (1953) 2 MLJ 495.
895 . Khetra Mohan v. Parbati, AIR 1955 Cal 295 [LNIND 1954 CAL 126].
896 . Sachi Prasad v. Amarnath, (1919) 46 Cal 103; Meghraj Sah v. Raj Bhansi Lal, AIR 1958 Pat 546.
897 . Ramanuja v. Soliappa, AIR 1931 Mad 270 [LNIND 1930 MAD 190]: (1931) 60 Mad LJ 471.
898 . Manishankar v. Niranjan Swarup, AIR 1955 All 686 [LNIND 1954 ALL 146].
899 . Azizuddin v. Ramanugra, (1887) 14 Cal 605; Biru Mahata v. Shyama Churn, (1895) 22 Cal 483; Pasupathy v. Kothanda, (1905) 28 Mad 64;
Jotindar v. Mahomed, (1905) 32 Cal 332; Debendra Nath v. Prasanna Kumar, (1907) 5 LJ 328; Mohan Singh v. Punchanan, AIR 1927 Cal 106:
(1927) 53 Cal 837.
900 . Lalman Das v. Jagan Nath, (1900) 22 All 376; Sarjan Bibi v. Ashanulla, AIR 1927 Cal 411: (1927) 54 Cal 524.
901 . Puran Chandra v. Bawan Das, (1900) AWN 196.
902 . Daulat Singh v. Maharaj Raja Ramji, AIR 1926 All 387: (1926) 48 All 362; Chhutkeo v. Lala, (1931) 6 Luck 452 : AIR 1931 Oudh 45.
903 . Venkata v. Perumal, (1951) TC728 : AIR 1952 TC136 [LNIND 1951 KER 110].
904 . Abdul v. Mahomed, (1894) 21 Cal 605; Pran Nath v. Mohesh Chandra, (1897) 24 Cal 546; Moti Lal v. Russick Chandra, (1899) 26 Cal 326.
905 . See notes above, Questions not relating to execution, discharge or satisfaction.
906 . Ram Narain v. Shew Bhunjan, (1900) 27 Cal 197; Debendra Nath v. Prasanna Kumar, (1907) 5 CLJ 328.
907 . Mayan v. Pakuran, (1899) ILR 22 Mad 347.
908 . Umedmal v. Srinath, (1904) ILR 27 Cal 810.
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909 . Prem Chand v. Mokhoda Devi, (1890) ILR Cal 699.

910 . Chunni v. Lala Ram, (1883) ILR 5 All 5.
911 . Basti Ram v. Fathu, (1896) ILR 8 All 146.
912 . Mohdi Begam v. Rasul Beg, 48 IC 39.
913 . Alkokeshi v. Mohini, 10 IC 625.
914 . Raja Ram v. Itraj, (1914) 17 OC 94.
915 . Thakedath v. Subramania, 53 IC 809; V Subbamma v. Koniki Chengama Naidu, AIR 1999 Andh Pra 55.
916 . Gopilal v. Sitaram, AIR , 1968 MP 196 : 1968 MPLJ 365.
917 . AIR 1979 Pat 308.
918 . Jagat Ram v. Jagjit Singh, AIR 1984 P&H 281.
919 . Mohan Das v. Kamla Devi, AIR 1978 Raj 127; Nanda Kishore v. Mahabir Prasad, AIR 1978 Ori 129 [LNIND 1977 ORI 42].
920 . Krishna Gopal Chawla v. State of Uttar Pradesh, AIR 2001 SC 3832 [LNIND 2001 SC 2311].
921 . State of Bihar v. Mijaj International, AIR 2004 Jhar 29 [LNIND 2003 JHAR 89].
922 . Ram Agarwal v. Smt. Brijendra Kaur, AIR 2008 Uttr 25 [LNIND 2008 UTTAR 303]: 2008 (4) ALJ 176.
923 . Kanchan Udyog Ltd. v. Mcdowell & Co. Ltd., AIR 2003 Cal 207 [LNIND 2002 CAL 425].
924 . Kanchan Udyog Ltd. v. Mcdowell & Co. Ltd., AIR 2003 Cal 207 [LNIND 2002 CAL 425].
925 . Ibid .
926 . Kunjan Nair Krishan Menon v. Ouseph Devasia, AIR 1955 TC 183.
927 . Guru Basappa v. Neelkantappa, AIR 1951 Bom 136 [LNIND 1951 BOM 18]: (1955) ILR Bom 393 : 53 Bom LR 371.
928 . Desikachaiar v. Ramachndra, AIR 1951 Mad 393: 1951 (1) Mad LJ 23 : AIR 1953 Mad 56, overruling Nagappa Chettiar v. Annapoorni Achi,
AIR 1941 Mad 235 [LNIND 1940 MAD 421]: (1941) ILR Mad 261.
929 . Dalhousie Traders Ltd. v. Md. Sadique, AIR 1954 Cal 220 [LNIND 1953 CAL 145]: 57 Cal WN 945.
930 . Seshadri v. Narayana, AIR 1951 Mad 640 [LNIND 1950 MAD 172]: 1951 (1) Mad LJ 55, LW 121 : 1951 Mad WN 44.
931 . Limitation Act 1963, Sch 1, art 127.
932 . Rajagopala v. Ramanujachariar, AIR 1924 Mad 431(FB) : (1924) 47 Mad 288; Manmatha Nath v. Lachmi, AIR 1928 Cal 60: (1928) 55 Cal 96;
Marla Ramanna v. Nallapa Raju, AIR 1956 SC 87 [LNIND 1955 SC 96]: (1952) SCR 938.
933 . Satish Chandra v. Nishichandra, (1919) 46 Cal 975.
934 . Union of India v. K. Khandelwal, AIR 1970 Ori 137 [LNIND 1969 ORI 4].
935 . Woolways, shop-cum-office, Chandigarh v. Central Bank of India, Chandigarh, AIR 1990 P&H 92.
936 . Snehakana Sur v. Abani Bhusan, AIR 1982 Cal 378 [LNIND 1982 CAL 48] (DB).
937 . Jugal Kishore Singh v. Lakshmi Kumari, AIR 1981 Ori 121.
938 . Elumalai Naicker v. Kishtambal Ammal, AIR 1988 Mad 106 [LNIND 1987 MAD 184].
939 . Venkateshwara Oil Mills v. Syndicate Bank, AIR 1989 Kant 225 [LNIND 1988 KANT 161].
940 . Bhanwarlal v. Premlata, AIR 1990 SC 623 [LNIND 1990 SC 12].
941 . Lalmuni Devi v. Shiv Shankar Tiwary, AIR 1980 Pat 184.
942 . Hari Singh v. Harbhajan Singh, AIR 2001 P&H 108.
943 . Arakhita Naik v. Narasingh Naik, AIR 2007 Orissa 175: 2007 supp OLR 337.
944 . Suresh Kumar v. Virendra Kumar, AIR 2007 Raj 117 [LNIND 2007 RAJ 123]: 2007 (3) Civil Court C 272 : 2007 (2) Raj LW 1574.
945 . Kanagavaliammal v. R. Balsubramanian, AIR 2008 SC 1991 [LNIND 2008 SC 753]: (2008) 5 SCC 212 [LNIND 2008 SC 753].
946 . Ganpat Singh v. Kailash Shankar, AIR 1987 SC 1443 [LNIND 1987 SC 469]: (1987) 3 SCC 146 [LNIND 1987 SC 469].
947 . AIR 1956 SC 87 [LNIND 1955 SC 96].
948 . Achamma Cyrisc v. Kerala Financial Corpn., AIR 1997 Ker 75 [LNIND 1996 KER 422].
949 . Bhavrvad Chotta Bhaga v. Bhavrvad Jaga Dahya, AIR 1999 Guj 17 [LNIND 1998 GUJ 213].
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950 . AIR 1995 SC 358 [LNINDORD 1994 SC 27].

951 . Adimoolam Mudaliar v. P.L. Unnamalai Achi, AIR 1998 Mad 17 [LNIND 1997 MAD 598] (DB).
952 . R. Parsuraman v. K. Jayalaxmi, AIR 1995 Mad 242 [LNIND 1994 MAD 325].
953 . Ravti Devi v. Khiali Ram, AIR 1967 Del 119 [LNIND 1967 DEL 69]; Narayan Chandra v. Nath Bank Ltd, AIR 1967 Pat 124: ILR 44 Pat
87; Nairanjan Das v. Liquidator Puri Bank, AIR 1968 Ori 183 [LNIND 1968 ORI 40]; Girdharan Parasad v. State, AIR 1968 Pat 77; Bijali
Bala v. Charu Bala, AIR 1969 Pat 21; Sarjug Singh v. Bassisut Singh, AIR 1970 Pat 237: ILR 47 Pat 173; Perraju v. Venkamma, AIR 1971
Andh Pra 74 : AIR 1971 Pat 107; Shanker v. Sukhai, AIR 1976 All 229.
954 . Pushpa v. Ganpat Singh, AIR 1977 Raj 216.
955 . Piarelal v. Bhagwat Prasad, AIR 1969 MP 35 [LNIND 1968 MP 62].
956 . Chandra Choor v. Krishnavati, AIR 1969 Pat 251.
957 . Shivshankar v. Baikunth, AIR 1969 SC 971 [LNIND 1969 SC 99]: (1969) 1 SCC 718 [LNIND 1969 SC 99].
958 . Ajit Kaur v. Mandir Jhok Haridhar, AIR 1989 P&H 194.
959 . Jaya Chandra Mohapatra v. Land Acquisition Officer, Rayagada, AIR 2005 SC 4165 [LNIND 2004 SC 1165].
960 . Shiv Charan Din Dayal Jain v. Mohan Lal, AIR 2004 Del 139 [LNIND 2003 DEL 799].
961 . Woodroffe & Amir Alis Law of Evidence, 17th Ed. Vol. 4 p. 5075.
962 . Peyman v. Lonjani, [1984] 3 All ER 703 : [1985] ch 457 (Ch. D.).
963 . Syndicate Bank v. S.S. Sheriff, AIR 2007 Ker 189(DB).
964 . Bhau Ram v. B. Baijnath Singh, (1962) 1 SCR 358 [LNIND 1961 SC 113] : AIR 1961 SC 1352 [LNIND 1961 SC 113].
965 . C. Beepathumma v. V.S. Kadambolithaya, [1964] 5 SCR 836 : AIR 1965 SC 241.
966 . Transcore v. Union of India, AIR 2007 SC 712 [LNIND 2006 SC 1055]: (2008) 1 SCC 125 [LNIND 2006 SC 1055].
967 . Ibid , at page 733.

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 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Limit of time for Execution

S. 48 Execution barred in certain cases.

S. 48 has been repealed by S. 28 of Limitation Act, 1963 (w.e.f. 1-1-1964) and its place has
now been taken by Art 136 of Limitation Act, 1963.

The section, prior to its deletion, was as follows:

48. (l) Where an application to execute a decree not being a decree granting an injunction
has been made, no order for the execution of the same decree shall be made upon any
fresh application presented after the expiration of 12 years from

the date of the decree sought to be executed; or

where the decree or any subsequent order directs any payment of money or the delivery of
any property to be made at a certain date or at recurring periods, the date of the default in
making the payment or delivery in respect of which the applicant seeks to execute the
decree.

(2) Nothing in this section shall be deemed

to preclude the court from ordering the execution of a decree upon an application
presented after the expiration of the said term of twelve years, where the judgment-debtor
has, by fraud or force, prevented the execution of the decree at some time within twelve
years immediately before the date of the application; or

to limit or otherwise affect the operation of Art. 183 of the First Schedule to the Indian
Limitation Act, 1908.

This section has been repealed by s 28 of the Limitation Act, 1963. In its place, a new
provision, Art. 136, has been introduced which prescribes for the execution of any decree
(other than a decree granting a mandatory injunction) or order of any civil court a period
of 12 years:
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where the decree or order becomes enforceable or where the decree or any subsequent
order directs any payment of money or the delivery of any property to be made at a certain
date or at recurrent periods, when default in making the payment or delivery in respect of
which execution takes place:

Provided that an application for the enforcement or execution of a decree granting a

perpetual injunction shall not be subject to any period of limitation.

The period of twelve years prescribed by Section 48 is retained under Arts. 136 and is now
the only period of limitation. It is therefore no longer necessary to keep the execution alive
by successive applications within three years for complying with the original Art. 182.

Those interested in pending proceedings under Section 48 as it stood before its deletion
are requested to refer to the commentary under that section contained in the earlier
edition. The following case decided after the amendment may to such readers be of
interest. 968

968 . K. Ramayya v. V.K. Nageshwarrao, AIR 1969 AP 250 [LNIND 1967 AP 116]; Sita Devi v. Anna Rao, AIR 1970 AP 43 [LNIND 1968 AP
2]; Rameswar Sarma v. Madan lal Agarwalla, AIR 1965 Assam 96; L.R. Goud v. Raju Bai, AIR 1971 AP 336 [LNIND 1970 AP 4]; Lalji Raja
& Sons v. Hanraj Nathuram, AIR 1971 SC 974 [LNIND 1971 SC 141]; K. Muniswamappa v. P. Chennakrishnappa, AIR 1971 Mys 266: 1 Mys
LJ 48; Mitthan Lal v. Parwati, AIR 1977 All 236.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Transferees and Legal Representatives

S. 49. Transferee.

Every transferee of a decree shall hold the same subject to the equities (if any) which the
judgment-debtor might have enforced against the original decree-holder.

Equity of judgment-debtor. This is the same principle as that enacted in s 132 of the
Transfer of Property Act, 1882. A right of set-off is an equity, and if the judgment-debtor has
the right to set off a cross decree under O 21, r 18, he has this right also against the
transferee of the decree-holder.969 But the question of set-off will arise when the decree will
be act ually put under execution. The court to which an application for transfer of a decree
is made cannot go into the question of equities under this section. 970 The section applies
to all decrees including mortgage-decrees. 971 The judgment-debtor is entitled to claim
under this section, only those equities which he had against the original decree-holder and
not against his transferee, and accordingly, a payment made by him to a transferee from
the decree-holder whose transfer was invalid cannot be set up against a transferee who has
obtained a valid transfer. 972 A company borrowed a loan from the bank, but failed to
repay. Consequent upon this, the bank tried to exercise the right of set off in terms of the
contractual obligations assumed by the petitioners (company), by transferring the amounts
deposited by petitioners in the current account to the loan account. The question arose
whether the respondent bank had the right to claim set off of the amounts deposited in the
current accounts by transferring them to the loan account, in order to realise the loans
advanced to the petitioners, which they had failed to discharge. It was held that the matter
fell within the domain of the law of contract, and the right of set off claimed by the bank
could not be denied on the pretext that the transfer of the amounts in the current account
would result in the negation of the activities of the petitioners in publishing the
newspapers, weeklies, etc. The enforcement of the doctrine of set off for the amounts to
be realised by the bank, cannot be said to be arbitrary or mala fide. 973

(i) A holds a decree against B for Rs 5,000. B holds a decree against A for Rs 3,000. A
transfers his decree to C. C cannot execute the decree against B for more than Rs 2,000. 974
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(ii) A obtains a decree against B for Rs 5,000. B then sues A to recover Rs 2,000. Pending
B s suit, C obtains a transfer of A s decree with notice of B s suit . A decree is then passed
for B in his suit against A . C applies for execution against B of the whole decree for Rs
5,000. He is not entitled to execute the decree for more than Rs 3,000 as the transfer was
taken with notice of B s suit. 975

The second illustration is the case of Kristo Ramani v. Kedarnath , 976 in which it was assumed
that the assignee must have notice of the equity. However, it is submitted, that it matters
not that the assignee was, unaware of the equity provided it was existing at the time of the
assignment; s 132 of the Transfer of Property Act, 1882, illust (i) and the case of Monmohan v.
Dwarka Nath. 977 In the latter case the court said:

Under section 49 of the Code the assignee (of a decree) stands in no better position than
the assignor and takes it subject to all the equities and defences, subsisting at the time of
the assignment, which the judgment-debtor could have asserted against it in the hands of
the judgment-creditor, notwithstanding that the assignee may have had no notice thereof.

If the equity is not existing at the time of the assignment there is no right to set-off. 978
The right of a judgment-debtor to ask for a stay of execution under O 2l, r 29 is an equity
which binds the assignee of a decree. 979 An application for stay of execution is
maintainable under O 21, r 29 even though the decree-holder has assigned his decree in
favour of a stranger pending the suit of the judgment-debtor and the assignee is not a party
therein. The assignee takes his assignment subject only to the equity in favour of the
judgment-debtor under O 21, r 29 and it is immaterial that the assignee had no notice of
the suit. 980 It has however, been held by the High Court of Rajasthan that the mere
pendency of a suit by the judgment-debtor against the decree-holder is not an equity within
this section and that consequently, the assignee of a decree does not take it, subject to any
decree that may subsequently be passed in the suit of the judgment-debtor. 981

Court-fee is essentially a matter between the State and the person, who comes to the court,
as a pauper or otherwise. The person, who raises the question of court-fee, cannot take
upon itself the role of the state. It has been held by a Division Bench of the Gauhati High
Court that the fact that the decree has been obtained by a person without paying any
court-fee or without paying appropriate court-fee, the decree, if validly granted, cannot be
held to be in executable or a nullity, particularly, when the bona fide of the person who
obtains the decree, is not challenged or is in dispute. 982

S. 50. Legal Representative.

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(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder
of the decree may apply to the Court which passed it to execute the same against
the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable
only to the extent of the property of the deceased which has come to his hands and
has not been duly disposed of; and, for the purpose of ascertaining such liability, the
Court executing the decree may, of its own motion or on the application of the
decree-holder, compel such legal representative to produce such accounts as it
thinks fit.

1. Changes in the law. The present section differs from the corresponding s 234 of the
Code of Civil Procedure 1882, in one respect, viz, that the words fully satisfied have been
substituted for the words fully executed. 983

2. Judgment-debtor dies. This refers to natural death and not to civil death. If the
judgment-debtor becomes a sanyasi his son is not his legal representative. 984

3. Judgment-debtor applying for insolvency. Where property of the judgment-debtor is

sold by the decree-holder after the judgment-debtor has applied for insolvency, without
notice to the official receiver, the sale is a nullity, as the adjudication of the insolvent
relates back to the date of his petition and the properties of the judgment-debtor vests in
the official receiver from that date. 985

4. Extent of liability of legal representative. It is well settled that legal representative of

judgment-debtors are liable for the debts of the predecessor to the extent of estate
acquired by the legal representative from their predecessors. 986 This section enables a
decree-holder to execute his decree against the legal representative of a deceased judgment-
debtor. The property that can be attached is the property of the judgment-debtor found in
the hands of the representative, and the property of the representative, from whatever
source derived, to the extent of that, which he has wasted out of the assets come to his
hands without satisfying the debts of the deceased. 987

The liability of a legal representative in execution proceedings is confined to the property

of the deceased which has act ually come to his hands. If the decree-holder seeks to make
the legal representative answerable also for the property of the deceased, which, with due
diligence on his part would have come to his hands, his proper remedy is by way of suit
against the legal representative, and not by proceedings in execution under this section. 988
Suit was filed for recovery of money and decreed against appellants husband. Execution of
decree was sought by attaching movable property of the wife after death of the husband-
appellant took the plea that she did not inherit any property of her husband and that it was
her personal property. Order for attachment and sale without considering the matter and
in violation of ss 5253, is illegal. 989
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Sub-section (2) of s 50 of the Code makes it very clear that the legal representative is liable
only to the extent of the property of the deceased, which is inherited by him. Appointment
of the legal representative on compassionate ground cannot be termed as property
inherited from his father. Therefore, attachment of salary cannot be ordered against the
said judgment-debtor. 990

The extent of the liability of the legal representative is decided by the court executing the
decree and the court may call for an account of the property of the judgment-debtor that
has come into the hands of the legal representative. The decree-holder must prove in the
first instance that some assets have come to the legal representative, and the onus is then
shifted to the latter, to show how the assets including rents and profits have been applied.
991

A decree-holder is entitled under this section to have the amount of the decree paid out of
the assets of the deceased in the hands of the legal representative which have not yet been
duly disposed of. Hence, the legal representative is bound to pay to the decree-holder, the
full amount of the decree, though there may be other creditors of the deceased, and the
assets may not be sufficient to pay them all in full. 992 On the death of the judgment-
debtor in a motor vehicle accident, the amount of compensation awarded by the Accidents
Claims Tribunal is payable to his real heirs only. The said amount cannot be said to have
been part of the estate of the deceased. It is, therefore, not liable to be attached in
execution of the decree against the judgment-debtor, as the asset of the deceased is in the
hands of his legal representatives. But when the decree was made personally against one of
the legal representatives along with the deceased, the share of the legal representative in the
compensation amount would be liable to be attached. 993 In a case where the decree
restrains a judgment-debtor from doing something in his own hand to the detriment of the
decree-holder or in derogation of a right claimed by the judgment-debtor to enjoy his own
property as a owner, the decree could not be understood as merely personal and not
binding on the representatives or assignees of the judgment-debtor in relation to the
property in respect of which it is obtained. 994

5. Legal representative. The effect of s 50 read with O 21, r 22 is that there are two
requirements for all execution applications against legal representatives. The first is that the
application must be made to the court which passed the decree and the second is that
notice of execution must be served on the legal representative. An application for transfer
of a decree under s 39 is not sufficient compliance of this section. 995 Legal representative
means a person, who, in law, represents the estate of a deceased person, and includes any
person who intermeddles with the estate of the deceased. 996 Thus, where a judgment-
debtor dies and a stranger takes possession of his property, the decree may be executed
against the stranger, for he is a legal representative within the meaning of this section. 997
A residuary legatee in possession of the judgment-debtors estate is his legal representative
although letters of administration have not yet been issued to him. 998 A nominee under an
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insurance policy has been held to be a legal representative of the deceased policy-holder. 999
The purchaser of the business of a firm against which a decree has been passed is not the
legal representative of the firm within the meaning of this section. The decree against the
firm cannot, therefore, be executed against the purchaser. 1000 The widow and the daughter
of the judgment-debtor remain liable under s 50 of the Code of Civil Procedure and the
provisions of Hindu Succession Act on the death of the judgment-debtor.1001

6. Before the decree has been fully satisfied. The corresponding section of the Code of
1882 (s 234) provided in effect that if a judgment-debtor died before the decree had been
fully executed, the holder of the decree might apply to the court which passed it to execute
the same against the legal representative of the deceased. This gave rise to the question as
to when a decree could be said to be fully-executed? It was held by the High Court of
Madras that a decree could not be said to be fully executed until the property attached was
sold, and that if the judgment-debtor died before sale, his legal representatives ought to be
brought on the record; and if the property was sold without the legal representatives being
brought on the record, the sale was absolutely void. 1002 On the other hand, it was held by
the High Court of Allahabad that once the property was attached the decree was fully
executed and that it was not necessary to bring the legal representatives on the record and
a sale held in their absence was not void. The latter decisions were based on the ground
that once a property was attached, it was in the hands of the law, and the attachment did
not abate on the death of a judgment-debtor. 1003 At the same time, there were cases in
which it was held that omission to being the legal representatives on the record, did not
vitiate the sale, but was at most an irregularity within the meaning of s 311 of the Code of
1882 [now O 21, r 90]. 1004 It was to remove this conflict of decisions that the words
satisfied has been substituted in the present section for the word executed. The effect of
this alteration in the language is to supersede the Allahabad decisions in so far as they hold
that after attachment, it was not necessary to bring the legal representatives on the record;
for a decree cannot be said to be fully satisfied merely because the property was attached.
The words of the enactment that the holder of a decree may apply have led to a further
controversy as to whether a sale held without bringing on record the legal representatives
of a deceased judgment-debtor was void or voidable. It was held by the Calcutta High
Court that such a sale was merely irregular and liable to be set aside under O 21, r 90, on
proof of substantial injury. 1005 A Full Bench of the Madras High Court has however held
that in such a case, the sale is void. 1006 The Patna High Court has also followed this view
in a case where this judgment-debtor died after the publication of the sale proclamation
and no notice of the execution was, given to his legal representative. 1007 The Calcutta
High Court has, in a later case, 1008 followed the Full Bench decision of the Madras High
Court, observing that its earlier decision given in Tharanginis case cannot be considered to
be right in view of the decision of the Privy Council in Raghunath Das s case. 1009 The
question has since been considered by a Full Bench of the Calcutta High Court 1010 which
has held that the omission to bring the legal representatives on record rendered the sale a
nullity. That is also the view taken by the High Courts of Kerala 1011 and Rajasthan, 1012
which have observed that the words may apply meant only that the decree-holder may
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elect to proceed against the legal representatives or not and that when he does elect to
proceed against them, he must take proceedings against them under this section and that in
that context the word may mean shall. Thus, the law may be taken to be well settled that a
sale held without bringing on record the legal representatives of a deceased judgment-
debtor is a nullity. But where an order has been made bringing the legal representatives on
record and the sale is held, that is not liable to be attacked as a nullity on the ground that
the order as to representation is erroneous. And where there are several legal
representatives and only some of them are brought on record, the sale will be binding on
all of them. 1013

7. Before the decree has been passed. A decree against a person who has died pending
the suit without his legal representatives being brought on the record is a nullity and
cannot be executed against the legal representatives. 1014 But a decree passed by the Privy
Council in ignorance of the death of a respondent was held not to be a nullity. 1015 In such
a case, it has been held that the decree of the Privy Council may be executed under this
section against the property of the judgment-debtor, in the hands of his legal
representatives. 1016

8. May apply to execute the decree against the legal representatives. Where
execution proceedings have been commenced against a judgment-debtor, they can be
continued after his death by substituting the name of the legal representative in place of
that of the judgment-debtor in the application for execution already on the files of the
court. It is not necessary to file a fresh application for execution under O 21, r 11. 1017 At
the same time notice should be given to the legal representative under O 21, r 22. If such
notice has been served on the legal representative, the order substituting his name can be
made ex parte . 1018 The Madras High Court has held that if execution is necessary against
the legal representative of the deceased judgment-debtor, the decree-holder has no option
but to proceed under this section or to present a fresh application for execution. 1019 It has
been held that legatees who have taken possession of their legacies, are legal
representatives against whom execution can be taken under this section. 1020

9. To which Court application should be made. The application to execute the decree
against a legal representative of the judgment-debtor should be made to the court which
passed the decree. 1021 But this is only a question of procedure and if the court to which
the decree is sent for execution, makes the order that is an irregularity which may be
waived. 1022 The Appellate Court ought not to interfere where the merits of the case are
not affected by the irregularity. 1023

10. Death of legal representative. If the legal representative of a judgment-debtor against

whom execution has been taken out under this section dies before the decree has been
fully executed, the decree-holder may execute the decree against the legal representative, of
that legal representative to the extent of the assets of the original judgment-debtor that
may have come into his hands. 1024
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11. Legal representative bound by previous proceedings. The legal representative is

bound by orders passed in execution against the deceased judgment-debtor. A obtains a
decree against B. A then transfers the decree to C. C applies for execution against B , and
an order is made for execution after notice to A and B as provided by D as, r 16, [Code of
Civil Procedure 1882], s 232. A then dies, and his legal representative D is brought on the
record under this section. The order for execution having been passed in A s lifetime, D
cannot object to execution on the ground that the transfer to C was fraudulent. 1025

12. Decree for injunction. An injunction obtained against a defendant, restraining him
from obstructing plaintiffs ancient rights, may, on the death of the defendant, be enforced
under this section, against his son as his legal representative, by procedure under O 21, r
32. 1026 Similarly, a decree for an injunction against a manager and representative of a joint
Hindu family can be enforced after his death against a son who represents the joint family.
1027 But such an injunction cannot be enforced under this section against a purchaser of

the property from the defendant, for an injunction does not run with the land. The remedy
of the decree-holder is to bring a fresh suit for an injunction against the purchaser, 1028
when the decree is one restraining the owner of the property from blasting rocks in his
property on a finding that such blasting would injuriously affect the adjacent property of
the decree-holder. When once a decree is passed, it is obvious that the defendant in the
suit, judgment-debtor, would be precluded from carrying on blasting operation in his
property. To say that when he is succeeded by the others, they would not be bound by the
restrain relating to the enjoyment of the particular property is to derogate from the
principle of the public policy that there shall be no second litigation in respect of the same
right and the same property. It cannot be the policy of law that every time an assignment
of the decree schedule property take place, the decree-holder should institute a fresh suit
against the assignee, so as to prevent them from disobeying the decree obtained by the
decree-holder against the original owner of the property. 1029 The Bombay High Court has
held that an injunction can be enforced against a person who has purchased while
execution proceedings are pending, by virtue of the doctrine of lis pendens . 1030

In execution of a decree for perpetual injunction, the liability of the legal representatives of
the judgment-debtors is limited to the extent of interference which was restrained through
such decree. It is only such legal representatives who defy the decree that can be proceeded
against. 1031

13. Application of this section to Orders. This section is applicable to orders which are
executable as decrees. 1032
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969 . Kaim Ali v. Lakhikant, (1868) 1 Beng LR 23 (FB); Kristo Ramani v. Kedarnath, (1889) 16 Cal 619; Sinnu v. Santhoji, (1903) 26 Mad 428; Brij
Mohan v. Manmohan, AIR 1937 All 351: (1937) All 553.
970 . Dutta v. Tarubala, AIR 1937 Cal 570.
971 . Sheo Prasad v. Lall, (1924) 4 Pat 120 : AIR 1925 Pat 449.
972 . Harjang Singh v. Gowardhandas, AIR 1952 Punj 183: (1951) ILR Punj 475.
973 . Canara Bank v. Taraka Prabhu Publishers Pvt Ltd, AIR 1991 AP 258 [LNIND 1990 AP 185] (FB).
974 . Kaim Ali v. Lakhikant, (1868) 1 Beng LR 23 (FB).
975 . Kristo Ramani v. Kedarnath, (1889) 16 Cal 619.
976 . Ibid .
977 . (1910) 12 Cal LJ 312; Dew Aye v. Aye Maung, AIR 1937 Rang 316; Suyanarayana v. Nageswara Rao, AIR 1945 Mad 381 [LNIND 1945
MAD 66]: (1946) Mad 30.
978 . Nagendra Nath v. Haran Chandra, AIR 1933 Cal 865: (1933) 37 Cal WN 758.
979 . Gurushantappa v. Nagappa, AIR 1938 Bom 253: (1938) Bom 263.
980 . Kottayam Orient Bank Ltd. v. Moosa Rawther, AIR 1959 Ker 402 [LNIND 1958 KER 227]: 1958 Ker LT 1012 : (1958) Ker LJ 1255.
981 . Anupchand v. Hira Chand, AIR 1962 Raj 223 [LNIND 1962 RAJ 113].
982 . Maya Rani Ghosh v. State of Tripura, AIR 2007 Gau 76(DB) : 2007 AIHC 2169 (Agartala Bench).
983 . See notes below under the head: Before the Decree has Been Fully Satisfied.
984 . Madho Rao v. Gur Narain, AIR 1931 All 306: (1931) 53 All 529; Sudhamoyee v. Bhujendra, AIR 1935 Cal 713 [LNIND 1935 CAL 1].
985 . Henry Merien v. Official Receiver, Madura, AIR 1935 Mad 907 [LNIND 1935 MAD 175].
986 . Madhukar Sagun Karpe v. Institute of Public Assistance, AIR 1998 Bom 201 [LNIND 1998 BOM 35].
987 . Rajrup Singh v. Ramgolam, (1888) 16 Cal 1; Chintamoney Dutt v. Mohesh Chandra, (1896) 23 Cal 454.
988 . Khushrobhai v. Hormazsha, (1887) 11 Bom 727; Saratmani Debi v. Batta Krishna, (1908) 35 Cal 1100; Leong Ah Choy v. TD Findlay & Sons,
Ltd., AIR 1937 Rang 274.
989 . Anmina Poul Choudhary and Biswas v. Bank of Baroda, AIR 1991 Ori 115 [LNIND 1990 ORI 168].
990 . Bandaru Srinivassa Rao v. M/s. Sreyobhilashi Chit Funds, Wyra, AIR 2008 AP 97: 2008 (1) Andh LD 392.
991 . Raja of Kalahasti v. Prayag, (1916) 30 Mad LJ 391. Mohammad Shariff v. Mehraj Din, AIR 1934 Lah 106; Lal Behari Prasad v. Bindesari Misra,
AIR 1934 All 249.
992 . Venkatarangayan v. Krishnasami, (1899) 22 Mad 194.
993 . Janaki v. Prabhat Finance by Partner, AIR 1986 Mad 273 [LNIND 1985 MAD 245].
994 . Chothy Theyyathan v. John Thomas, AIR 1997 Ker 249 [LNIND 1997 KER 26].
995 . Presidency Industrial Bank v. HL Industries, AIR 1969 Bom 84 [LNIND 1967 BOM 122]: 70 Bom LR 373 : 1969 Mah LJ 49 [LNIND
1967 BOM 122].
996 . See s 2, cl (11).
997 . Saratchandra Deb v. Bichitranand Sahu, (1950) Cut 413 : AIR 1951 Ori 22. The decision to the contrary in Chatakelan v. Govinda, (1894) 17
Mad 186, is no longer law. See note Legal representative under s 2(11).
998 . Porosanno Chundra v. Kristor, (1877) 4 Cal 342; Chuni Lal v. Osmond, (1877) 4 Cal 342; Chuni Lal v. Osmond, (1903) 30 Cal 1044.
999 . Rajaram v. Mata Prasad, AIR 1972 All 167(FB).
1000 . Harish Chandra Chandpore Co. Ltd, (1903) 30 Cal 961; Arbuthnots Insutrials Ltd. v. Mathu Chettiar, (1908) 31 Mad 464.
1001 . Raghu Mandala Kasibabu v. State Bank of India, AIR 1999 Ori 160 [LNIND 1999 ORI 96].
1002 . Ramasami v. Bagirathi, (1883) 6 Mad 180; Groves v. Administrator-General, (1899) 22 Mad 119.
1003 . Sheo Prasad v. Hira Lal, (1890) 12 All 440 [LNIND 1923 BOM 130] (FB); Abdur Rahman v. Shankar, (1895) 17 All 162; Stowell
v. Ajudhia Nath, (1884) 6 All 255.
1004 . Aba v. Dhondu Bai, (1895) 19 Bom 276; Net Lall v. Sheikh Kareem, (1896) 23 Cal 686; Bepin Behary v. Sosi Bhusan, (1913) 18 Cal
WN 766.
1005 . Jagadish v. Bama Sundari, (1919) 23 Cal WN 608; Tarangini v. Raj Krishna, (1927) 32 Cal WN418.
 Page 9 of 9
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1006 . Kanchamalai v. Shahaji, AIR 1936 Mad 205 [LNIND 1935 MAD 332] (FB) : (1936) 59 Mad 461; Faizuddi v. Razia Begum, AIR
1942 Cal 436: (1942) 2 Cal 262 : (1942) 46 Cal WN 631 : 75 Cal LJ 368.
1007 . Ajab Lal Dubey v. Hari Chaaran Tewari, AIR 1945 Pat 1(FB) : (1944) 23 Pat 528.
1008 . Faizuddin Talukdar v. Razia Begum, 75 CLJ 368.
1009 . Raghunath Das v. Sundar Das Khetri, (1915) 42 Cal 72.
1010 . Smt Shanti Devi v. Khandu Bala Dasi, AIR 1961 Cal 336 [LNIND 1952 CAL 173]: 65 Cal WN 171; Rajilakshmi v. Bonomali, AIR 1955 Cal
573 [LNIND 1954 CAL 154].
1011 . Kolappa v. Krishna, AIR 1962 Ker 144 [LNIND 1961 KER 307]: (1961) Ker LJ 1231 : (1961) Ker LT 1013 [LNIND 1961 KER 307];
Chacko Piley v. Iype Varghese, AIR 1956 TC 147; Fernandez v. Madhavi, AIR 1955 TC 92: 1955 Ker LT 46.
1012 . Mubarak Begum v. Sushil Kuar, AIR 1957 Raj 154 [LNIND 1956 RAJ 147].
1013 . Sathruhan Prasad v. Sudip Narain, AIR 1955 Pat 408, following the Privy Council decision in Mallikarjuna v. Narahari, 25 Bom 337 : 27 IA
216; Mahadeo v. Shantilal, AIR 1957 Bom 170 [LNIND 1957 BOM 43]; Hardaya Devi v. Fideen, AIR 1962 All 125 [LNIND 1961 ALL
38]; but See Chacko Piley v. Iype Varghese, AIR 1956 TC147 [LNIND 1955 KER 45]. See further s 65 notes under the heading Sale when
void and when voidable and s 52 notes under the heading Decree against wrong person as heir and legal representative.
1014 . Radha Prasad v. Lal Saheb, 17 IA 150; Jungli Lall v. Laddu Ram, (1919) 4 Pat LJ 240; Seshamma v. Venkata, AIR 1924 Mad 713: (1924) 47
Mad LJ 235; Elisa v. A Dass, AIR 1992 Mad 159 [LNIND 1991 MAD 7].
1015 . Deonandan v. Janki Singh, (1920) 5 Pat LJ 314; Sri Chandra Chur v. Msst Shyam, AIR 1932 Pat 261: (1932) 11 Pat 445.
1016 . Sir Chandra Chur v. Mst Shyam, AIR 1932 Pat 261: (1932) 11 Pat 445.
1017 . Purshottam v. Rajbai, (1910) 34 Bom 142; Bhagwan Das v. Jugal Kishore, (1920) 42 All 570; Shankar v. Hiralal, (1931) 33 Bom LR 585;
Premabai v. Jiwandas, AIR 1936 Bom 546: (1936) 38 Bom LR 977; Komalavalli v. Kunju Pillai, AIR 1954 TC 26. See O 22, r 12.
1018 . Nachiamma v. Subramanian, AIR 1928 Rang 40: (1928) 5 Rang 775.
1019 . Kanchamalai v. Shahaji, AIR 1936 Mad 205 [LNIND 1935 MAD 332] (FB) : (1936) 59 Mad 461.
1020 . Natesa Sastri v. Sundaram Chettiar, AIR 1953 Mad 623.
1021 . Hirachand v. Kasturchand, (1894) 18 Bom 224; Seth Shapurji v. Shankur, (1895) 17 All 431; Swaminatha v. Vaidyanath, (1905) 28 Mad 466;
Sham Lal v. Modhusudam, (1895) 22 Cal 558; Msst. Begam v. Bulaqi Shah, AIR 1926 Lah 34; Manjulabai v. Pandurang, AIR 1933 Bom 215:
(1934) 36 Bom LR 443; Official Trustee v. Basdeo Bhagat, AIR 1937 Pat 239; Damodarlalji v. Basant Lal, AIR 1952 Pat 333: (1948) 27 Pat 848;
Prasadi v. Gulam, AIR 1951 Pat 618.
1022 . Jang Bahadur v. Bank of Upper India, AIR 1928 PC 162: 55 IA 227; Sham Lal v. Madhusudan, (1895) 22 Cal 558; Sri Chandra Chur
v. Mst. Shyam, AIR 1932 Pat 261: (1932) 11 Pat 445; Mathu Karuppan v. Shellani Achi, AIR 1938 Rang 385: (1938) Rang 335; Punjab Co-op
Bank v. Bikramlal, AIR 1959 Punj 71: (1958) Punj 2430; SB Mills v. Union of India, AIR 1965 Pat 52: (1964) BLJR 212.
1023 . Debendra Nath v. G.A. Aratoon, AIR 1941 Pat 139; Srimathi Nilawwa v. Virupaxappa, AIR 1959 Mys 99.
1024 . Jafri Begam v. Saira Bibi, (1900) 22 All 367; Raghu Mandala Kasibabu v. SBI, AIR 1999 Ori 160 [LNIND 1999 ORI 96].
1025 . Mulchand v. Chhagan, (1886) 10 Bom 74; Liladhar v. Chaturbhuj, (1899) 21 All 277.
1026 . Sakarlal v. Parvatibai, (1902) 26 Bom 283; Amritlal v. Kantilal, AIR 1931 Bom 280: (1931) 33 Bom LR 266. Code of Civil
Procedure 1882, s 260.
1027 . Ganesh v. Narayan, AIR 1931 Bom 484: (1931) 55 Bom 709.
1028 . Dayasbhai v. Bapalal, (1902) 26 Bom 140; Vithal v. Sakharam, (1899) 1 Bom LR 854; Jamsetji v. Hari Dayal, (1908) 32 Bom 181.
1029 . Chothy Theyyathan v. John Thomas, AIR 1997 Ker 249 [LNIND 1997 KER 26]. See notes to s 47, Representatives No
(6)Purchaser of Property.
1030 . Krishnabai v. Savlaram, AIR 1927 Bom 93: (1927) 51 Bom 37.
1031 . Kalpuri Ellamma v. Nellutla Venkata Lakshmi, 2008 (72) All Ind Cas 669.
1032 . Abdul Fatha v. Mohd Jabbar, (1956) 2 MLJ 475.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Procedure in Execution

S. 51. Powers of Court to enforce execution.

Subject to such conditions and limitations as may be prescribed, the Court may, on the
application of the decree-holder, order execution of the decree

(a ) by delivery of any property specifically decreed;

(b ) by attachment and sale or by sale without attachment of any property;
(c ) by arrest and detention in prison; 1033 [for such period not exceeding the period
specified in Section 58, where arrest and detention is permissible under that
section];
(d ) by appointing a receiver; or
(e ) in such other manner as the nature of the relief granted may require:

1034[Provided that where the decree is for the payment of money, execution by
detention in prison shall not be ordered unless, after giving the judgment-debtor
an opportunity of showing cause why he should not be committed to prison, the
Court, for reasons recorded in writing, is satisfied

(a ) that the judgment-debtor, with the object or effect of obstructing or delaying the
execution of the decree,
(i ) is likely to abscond, or leave the local limits of the jurisdiction of the Court, or
(ii ) has, after the institution of the suit in which the decree was passed, dishonestly
transferred, concealed, or removed any part of his property, or committed any
other act of bad faith in relation to his property, or
(b ) that the judgment-debtor has, or has had since the date of the decree, the means to
pay the amount of the decree or some substantial part thereof and refuses or
neglects or has refused or neglected to pay the same, or
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(c ) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary
capacity to account.

Explanation. In the calculation of the means of the judgment-debtor for the

purposes of clause (b ), there shall be left out of account any property which, by
or under any law or custom having the force of law for the time being in force,
is exempt from attachment in execution of the decree.]

STATE AMENDMENT

UP Amendment. After cl (b ) the following cl (bb ) was added by UP Act 24 of 1954:

(bb) by transfer other than sale, by attachment or without attachment of any property.

HIGH COURT AMENDMENT

Calcutta. In clause (b ) omit the words or by sale without attachment between the words
sale and of any.

In the proviso omit the words for reasons recorded in writing after the words the Court
and before the words is satisfied.

Add the proviso

Provided also that the Court of Small Causes of Calcutta shall have no power to order
execution of a decree by attachment and sale of immovable property or by appointing a
receiver in respect of such property. vide Cal. Gaz., Pt. I, dated April 20, 1967. 1. Choice
of appropriate mode of execution. The various modes mentioned in this section are not
open to the executing court in every case. The court ought to be guided by the procedure
laid down in the Code of Civil Procedure and must resort to the method appropriate to each
case. 1035 It is for the decree-holder to choose in which of the several modes mentioned in
the section, will he execute the decree, but his option is subject to the provisions of the
Code of Civil Procedure and to the, discretion of the court. 1036 If the mode of procedure
provided by the law at the time when execution is sought is different from that prevalent
when the decree was passed, by reason of an alteration effected in the law in the meantime,
the altered law must be followed. The decree-holders right to execute the decree under s
51 is subject to the rules for the time being in force. Section 51 itself provides that it is
subject to the prescribed conditions and limitations. 1037

The Andhra Pradesh High Court has held that the decree, be it of any Court, including the
Apex Court, can be subjected to execution and enforced by different modes, may be under
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the provisions of O XXI, r 35 or s 144 or s 151 of the Code depending upon the facts and
circumstances of each case, and the imperative need to give quietus to the litigation
expeditiously and for ever. 1038

Section 51 of the Code makes it explicit that arrest and detention of the judgment-debtor
is one of the modes of execution of the decree. Once the decree-holder satisfies the Court
that the judgment-debtor has sufficient means but has neglected to discharge the debt, the
Court cannot dismiss the execution petition on the ground that the decree-holder has
alternative remedy of getting properties of the judgment-debtor attached. The decree-
holder can choose any of the modes available to him under s 51 of the Code. 1039

Under O 21, r 64 makes provision for sale of attached property, while r 66 takes in cases
covered by r 64 and also decrees where attachment is not necessary. Therefore, the specific
mention of attachment of property in r 64 would not take away the application of r 66 to
decrees for execution of which no attachment is necessary. 1040

2. Constitution ality. Imprisonment of a judgment-debtor in execution cannot be ordered

unless the conditions given in s 51 are satisfied. Hence, the section does not violate 21 of
the Constitution of India.1041

3. Enforcing decree and its satisfaction: Distinction. A distinction has to be drawn

between the mode of enforcing decree on one hand and act ual satisfaction thereof;
sending a person to prison is a mode of enforcement. It is not a mode of satisfaction of
the decree. The whole purpose of detaining a person in civil prison is to compel a person
liable to obey the mandate of a decree who refused to comply with the terms of the decree
without satisfactory cause. The purpose of sentencing him to prison is not to wipe out his
liability of comply with the decree. A sentence of prison or detention of a person in civil
prison, is not a substitute for compliance of the decree. It is not a mode of discharging or
satisfying a decree. The compliance of the decree can only be sought by resorting to these
penal actions. The liability or obligation flowing from the decree cannot be taken to have
been discharged by detaining a person liable to comply with the decree, in prison. At the
cost of repetition, it may be stated that it is only a mode or method of implementation of a
decree and/or mandate flowing therefrom. No other view is possible. 1042

4. Execution of decree writ not proper remedy. Petition seeking writ directing
respondent to give all assistance to petitioner in taking over management of institutions in
pursuance of the decree of a civil court is not maintainable. A decree passed by the civil
court must be passed in terms of the provisions contained in the Code of Civil Procedure. The
writ petition is not the appropriate remedy therefor. 1043

5. Simultaneous execution. Simultaneous execution, both against the property and

person of the judgment-debtor, is allowed under O 21, r 30. 1044 Under the Code of Civil
Procedure, there is no statutory provision against a number of execution proceedings
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continuing concurrently. Section 51 of the Code of Civil Procedure gives an option to the
creditor of enforcing the decree either against the person, or the property of the debtor;
and nowhere has this been laid down that the prosecution against the person of the debtor
shall not be allowed unless and until the decree-holder has exhausted his remedy against
the property. 1045 For conditions and limitations as to arrest and detention, s 58, cl (c) of
the operative part of this section has been amended so as to bring it in harmony with the
limitations and conditions laid down now in s 58. But the court has discretion under O 21,
r 21, to refuse simultaneous execution and to allow the decree-holder to avail himself of
only one mode of execution at a time. 1046 The Privy Council has said that the difficulties
of a litigant in India begin when he has obtained a decree, 1047 and the court is not justified
in refusing execution against the person on the ground that the decree-holder should first
proceed against the property. 1048 But the Calcutta High Court has said that there may be
circumstances which would justify such a refusal. Execution should be refused against the
person when the decree-holder has a mortgage on the property of the judgment-debtor
which would yield a large surplus. If realised in execution, but which prevents the
judgment-debtor from raising money on the property. 1049 The court has power under this
section, to order delivery of movable property and also to direct conditional attachment of
other properties. 1050

6. Section 51, Clause (B). The principle underlying cl (b) of the section is that if the
property sought to be attached is within the limits of the courts jurisdiction, the court can
attach and sell the property. The fact that the place of business of the judgment-debtor
company is outside its jurisdiction or that the dividend on its shares is payable only in a
place outside its jurisdiction is not material. 1051 The words attachment and sale in the
clause are to be read disjunctively. 1052 Therefore, attachment of the property is neither
necessary nor an essential step in the process of realisation of the decretal amount by sale
of the property. 1053 Accordingly, where property is sold without attachment or under an
invalid attachment, it is only a case of irregularity, and the sale is not void. 1054

7. Clause (C)Arrest and detention. Section 51, Code of Civil Procedure, provides that one of
the modes of the execution of a decree is arrest and detention of the judgment-debtor in
civil prison. The proviso to this section restricts the power of the executing court to direct
the arrest and detention of the judgment debtor in execution of the decree for payment of
money. The object of the proviso is to afford protection to indigent and honest debtors.
Therefore, mere non-payment of the amount of the decree is not enough to send the
judgment-debtor to prison. But if the conduct of the judgment-debtor is dishonest or
countumacious he is liable to be arrested and detained. The judgment-debtor is not
protected if there is element of bad faith in his conduct. If he has the means to pay and still
he refuses or neglects to honour his obligation under the decree, he becomes liable to
imprisonment under s 51, Code of Civil Procedure. In short, honest judgment-debtors must be
protected and dishonest ones should be punished. 1055

On a combined reading of ss 51(c) and 58 of the Code of Civil Procedure, it has been held,
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that in the execution of a decree of prohibitory injunction under O 21, r 32, the judgment-
debtor cannot be detained in a civil prison for more than three months and he cannot be
detained more than once. Even otherwise, the matter is left to the discretion of the court,
and it would be a sound exercise of discretion to treat the judgment-debtor on par with the
other judgment-debtors and the detention cannot exceed the period of three months. In
the instant case, the judgment-debtor had already been detained for a period of three
months. The order of the court for his detention, till he obeyed the decree, was held to be
contrary to the provisions of s s 51 and 58 of the Code of Civil Procedure, read with O 21, r
32, besides being arbitrary. 1056 Before detention in prison can be ordered, the court must
be satisfied that the judgment-debtor has or had, since the decree, the means to pay.
Otherwise, the order may be vitiated by non-application of mind. 1057

Mere inability to pay debt and satisfy the degree is no ground to detain the judgment-
debtor in civil prison. Where there is attempt by the judgment-debtor to evade rigours of
the decree by fraudulently seeking to transfer property to third party, issuance of warrant
of arrest is proper. 1058

In a case of execution of recovery certificate under the Maharashtra Co-operative Societies Act,
1961, where the respondents having means to pay, refused and neglected to pay the
decretal amount and did not even bother to reply to the notice of show-cause, the notice
was made absolute and warrant of arrest directed to be issued against them. 1059

Where an employee under suspension is paid subsistence allowance and accepts the same,
it cannot be said that he was a man without means to pay the decretal amount. Therefore,
having accepted to discharge his liability, if he has failed and neglected to do so knowingly
and deliberately, the petition for his arrest is not liable to be dismissed. 1060

When the judgment-debtor categorically disclosed in his counter-affidavit in the Execution

Petition, about his salary particulars and expressed in unequivocal terms, his willingness to
have his salary attached. This conduct cannot either be called as mala fide or deliberate
refusal or negligence on the part of the judgment-debtor.

If from the counter-affidavit filed by the judgment-debtor, it could be seen that he has
been drawing substantial amount towards his salary, the same can be attached for the
realisation of the decretal amount, instead of resorting to an extreme step of ordering the
arrest of the judgment-debtor. 1061

8. Arrest of guarantor. Where the petitioner, as a guarantor, accepted the terms and
conditions of loan granted to the principal borrower and suffered a composite decree, he
could not contend that the judgment-debtor / principal borrower should be directed to sell
mortgaged property first and for recovery of balance amount, if any, to proceed against
principal borrower and guarantor, the evidence showed that despite having means the
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petitioner/guarantor evaded payment of decretal amount, so the order directing arrest of

petitioner or guarantor cannot be said to be without jurisdiction. 1062

9. Clause (D). Refusal or neglect envisages capacity to pay but deliberate non-payment,
merely because judgment-debtor possesses immovable property, order of detention in civil
prison cannot be made for his failure to pay.

It is open to the decree-holder to file a petition for attachment and sale of the immovable
property. The decree-holder, in this case, has not taken recourse to those provisions. It is
obvious that he is utilising the provisions of O 21, r 38, of the Code of Civil Procedure merely
as a lever to force payment without taking recourse to the proceedings for attachment and
sale of the immovable property. The petition appears to be wholly mala fide . 1063

10. Receiver in execution proceedings. The appointment of a receiver in execution

proceedings is a form of equitable relief which is granted on the ground that there is no
effective remedy by execution at law. 1064 Such a receiver has all the powers under O 40, r
1. The effect of the appointment of a receiver is to prevent the judgment-debtor from
collecting amounts due from the garnishee. Payment made by the garnishee to the
judgment-debtor would not operate as a discharge and he would still continue to be liable
to pay to the receiver. Where the decree-holder is appointed as the receiver he collects the
debts not as his own money, but as the officer of the court. Therefore, he cannot
appropriate that money towards money due to him by the judgment-debtor; 1065 but this
should not be resorted to, in order to circumvent a specific legal bar. So, an order
appointing a receiver in respect of the provident fund of a railway employee was
discharged. 1066 The Supreme Court has now held that the provident fund standing to the
credit of a retired government servant cannot be attached in view of s 2 (a) of the Provident
Fund Act, 1925, nor a receiver appointed for the same. 1067 and likewise, it has been held
that when there is a legal bar to the attachment of a property, as for example, the salary of
a private employee before it becomes payable, it cannot be got over by the appointment of
a receiver. 1068 No proceedings, by way of attachment or appointment of a receiver, can be
taken against properties which vest in the Custodian of Evacuee Property as the same is
prohibited by s 17 of the Evacuee Properties Act, 1950. 1069 The appointment of a receiver
in execution is, therefore, not a matter of right, and a proper case must be made out, to
justify the exercise by the court, of its discretion to make the appointment. 1070 The
discretion is regulated by the provisions of O 40, r 1, and cl (a) of that rule has been altered
to allow the court to appoint a receiver after decree. 1071 The court must be satisfied that
the appointment of a receiver is likely to benefit boththe decree-holder and the judgment-
debtorrather than a sale of the attached property, and for this reason, a receiver has been
appointed to realise an attached decree; 1072 to realise a debt attached in execution of a
decree; 1073 to collect the rents of an attached property; 1074 and to realise a decree for
maintenance charged upon immovable property. 1075 The court can, on the application of
the decree-holder of a decree on a simple mortgage, appoint a receiver for collecting the
rents and profits from the hypothecation for the benefit of the decree-holder. 1076 Again,
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the court must be satisfied that the decree is likely to be realised within a reasonable time
from the attached properties so that the judgment-debtor may not be burdened with
property while he is deprived of the enjoyment of it. 1077

Execution of decree by appointing a Court receiver is a mode of execution provided in s

51. A receiver cannot be appointed just for the asking. It is within the discretion of the
Court and this discretion has to be judiciously exercised in a fit case. No decree-holder can
transfer his responsibility to have the decree executed upon the shoulders of a Court
officer for no reason whatsoever. 1078

In Ma Mya v. Ma Mi Kye , 1079 a third share of certain promissory notes had to be realised in
execution and the Privy Council said that the right method of working out the decree was
by the appointment of a receiver. Again, in Nawab Bahadur v. Kernanai Bank , 1080 the Privy
Council upheld the appointment of a receiver to collect the rents and profits of properties
which had been settled upon the Nawab of Murshedabad and his lineal descendants by the
Murshedabad Act 15 of 1891, although the receiver was liable to be superseded by the
Secretary of State in exercise of a power reserved under the Act to apply the rents and
profits for the maintenance of the position and dignity of the Nawab . It has been held that
even if property is not liable to be attached and sold by reason of a section in a statute, a
receiver can be appointed to liquidate a decree from the profits of the property. 1081

The appointment of a receiver to take charge of the, judgment-debtors property is an

exceptional remedy and when there is admittedly ample property of the judgment-debtor
available for satisfaction of the decree, there is no good reason to appoint a receiver.
Besides, when execution proceedings are to be transferred to the collector , a receiver
cannot be appointed. 1082

11. Receiver of properties outside the local jurisdiction. The court may appoint a
receiver of property outside the local limits of its territorial jurisdiction. The principle by
which the act ion of a court in effecting sales in execution is confined to property situate
within its territorial jurisdiction is prima facie not applicable to a sale by a receiver which
need not necessarily be a sale by public auction as distinct from private treaty. 1083 If,
according to the law of an Indian state, it was not shown that the son could not be made
liable for the debts of his father, in respect of property in his hands, liable under Hindu
Law for the debts of the father, a receiver can be appointed of the property in the state.
Though the court cannot, in such a case, empower the receiver to take possession of the
property, it can direct the son in possession of the property, to hand over the property to
the receiver. 1084

12. Receiver of future maintenance. The Privy Council has held that though a right to
future maintenance cannot be attached [s 60(1)(n)], the court may, in a proper case, eg,
where provision is made for the maintenance of the judgment-debtor out of the income of
villages, appoint a receiver for realising the rents, and paying thereout to the judgment-
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debtor a sum sufficient for his maintenance and the balance to the decree-holder. 1085 The
Bombay High Court doubts whether the property in the Privy Council decision was really
covered by the expression a right of future maintenance and holds that property which is,
at law, unattachable cannot be realised by equitable execution. 1086

The Madras High Court has followed the Privy Council decision and appointed a receiver
of future maintenance; 1087 but in an earlier decision, it had held that a receiver could not
be appointed, as a right of future maintenance cannot be attached. 1088 The Lahore High
Court had, by way of equitable execution, appointed a receiver of a house in which the
judgment-debtor had a right of residence, though he had no power to transfer the same.
1089

13. Appeal. A obtains a decree against B . By consent of parties, C is appointed receiver to

take charge of certain properties for the execution of the decree. A then applies to the
court for the discharge of C as receiver, but the application is refused. The order was one
relating to execution within the meaning of s 47, and was therefore, then appealable. 1090
An order appointing a receiver in execution is one falling in substance within O 40, r 1,
and is as such appealable under O 43, r 1 (s). 1091

14. Clause (E). This is a residuary clause and comes into play only when the decree
cannot be executed in the modes provided in cll (a)(d). 1092 But when the property is
attachable, the court, under this clause, in the absence of any specific provision or form,
can evolve a prohibitory order suitable to the nature of the clause. 1093 However, the clause
does not authorise a court to read into the decree, a supplementary or alternative relief
which is not in it, nor does it enable the court to give a mandatory direction to remove
something which was not in existence at the time of the decree. 1094 Thus, where a decree
in a suit for redemption directs the defendant-mortgagee to deliver to the plaintiff
mortgagor the documents of title relating to the mortgaged property, but does not provide
for an alternative relief, the court has no power under this clause to award damages in
execution. 1095 This conclusion might have been arrived at on the simple ground that a
court executing a decree has no power to add to the terms of a decree.

15. Decree for the payment of money. A decree for the payment of arrears of alimony is
a decree for the payment of money within the meaning of this section. 1096

16. Lease of the judgment-debtors land. The Allahabad High Court recently held that
an executing court is bound by methods laid down in s 51, and that as the power to lease is
not included in the power to sell property, lease can only be granted under conditions
prescribed in ss 72 and 68 read with Sch III of the Code of Civil Procedure. 1097 The view of
the Lahore High Court was to the contrary. 1098

17. Proviso. The proviso, together with the explanation added by s 2 of the Code of Civil
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Procedure (Amendment) Act, 1936 restricts the power of the court to direct the arrest of a
judgment-debtor in execution of a decree for the payment of money.

Its provisions are mandatory and must be strictly complied with. No order for arrest
should be made unless the court is satisfied for reasons to be recorded in writing that the
judgment-debtor should be committed to prison for one of the reasons set out therein. 1099
According to the Madras High Court, the inhibition contained in s 51, proviso, applies
only to an order for detention in prison and not to order for arrest of the judgment-debtor.
Therefore, where, in the proceedings for execution of a money decree, on the day the
matter was called, the judgment-debtor was absent and the court act ing on the affidavit
filed by the decree-holder, found that the judgment-debtor had sufficient income, the
order of the court directing arrest of the judgment-debtor would be valid. 1100

In execution of a decree for prohibitory injunction, the judgment-debtor cannot be

detained for more than three months and for more than one time. Section 58 applies to all
decrees. This is evident from s 51 which uses the expression execution of a decree. There
is absolutely no reason to prescribe an unlimited period in the case of a decree for
prohibitory injunction. 1101

Under the provisions of O 21, r 30; O 21, r 32 and O 39, r 2A, for the breach of a decree
for prohibitory injunction, the judgment-debtor cannot be detained for more than three
months and for more than one time, according to the Andhra Pradesh High Court. 1102
The Andhra Pradesh High Court in the above case dissented from the Gujarat decision to
the contrary. The Gujarat High Court had taken the view that in the case of decree for
prohibitory injunction, no time limit is prescribed. According to the Andhra Pradesh High
Court, however, s 51 (c) read with s 58 lays down a limit of three months in the case of all
decrees, subject to the further limits laid down in the section regarding money decree. 1103
The restrictions mentioned in s 51 of the Code of Civil Procedure as to arrest and detention,
apply also where the decree is against the husband for maintenance. In particular, the wife,
decree-holder, has to satisfy the court that the husband has means to pay. The executing
court can also act on the presumption that the husband has the means, but the husband
should be given an opportunity to rebut the presumption. 1104

In execution of a decree by arresting the judgment-debtor, the burden is on the decree-

holder to show that the judgment-debtor was resorting to unfair means for avoiding
payment. In a case, where the judgment-debtor of a money decree was once arrested and
thereafter released after recording his undertaking about repayments, it was held that this
fact itself was no ground for his re-arrest. It was also held that the fact that he was
pursuing the profession of a doctor or that he was proprietor of a hospital, by itself does
not ipso facto lead to an inference that he has sufficient means to pay decree-debt. 1105

The Explanation to s 51 of the Code will show that in calculation of the means of the
judgment-debtor for the purpose of cl. (b) of the Proviso, any property which is exempted
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from attachment in execution of the decree either by law or by custom having the force of
law shall be left out. Thus where execution of a money decree is sought by arrest and
detention and salary is shown as the means of the judgment-debtor, an enquiry is necessary
as to what is the attachable portion of the salary in terms of s 60 of the Code. 1106

The enquiry prescribed under O 21 r 40(1) of the Code is not an empty formality.
Mandatory duty is cast upon the decree-holder to establish as to incapacity of the
judgment-debtor to pay the decretal amount and to establish intentional evasion to satisfy
the decree. Acceptance of affidavit of the decree-holder in preference to objection of
judgment-debtor for issuance of warrant of arrest is erroneous. 1107

The object of detaining a judgment-debtor in a civil prison is not to punish him for any
crime but for enabling the decree-holder to realise the money decreed in his favour, and
for the purpose of achieving this alone, the conditions in the proviso have been
formulated. It is some contumacious conduct on the part of the judgment-debtor and not
mere inability to pay, which renders him liable to be arrested. Though at a particular point
of time the conditions of the proviso might have been satisfied, yet if the order passed by
the court has not been taken advantage of or not given effect to within a reasonable time,
the position of the judgment-debtor might so change that the conditions set out in the
proviso would be considered as no longer satisfied. 1108 The conditions in the proviso are a
mandate to the court and are intended to protect debtors who cannot pay for reasons
beyond their control. Whether the judgment-debtor appears or not, the court must satisfy
itself whether materials on record bring the case within any of the clauses of the proviso;
1109 but it has also been held that the conditions as to the existence of the grounds

specified in the proviso and the court, recording its reasons, apply not to an order for
arrest but to an order for detention in prison which represents a later and a different stage
in the proceedings. 1110 Under the new proviso, an arrest cannot be ordered unless there
has been some contumacious conduct on the part of the judgment-debtor. Mere inability
to pay does not justify an arrest. 1111 Where the judgment-debtor having other claims to
meet, utilised the money for satisfying them, he cannot be held to have neglected to pay
the same to the decree-holder. 1112

According to the Madras High Court, before making an order for the arrest and detention
of judgment-debtor, the court should, in suitable cases first order payment by instalments.
1113 After hearing the judgment-debtor, the court must be satisfied that the judgment-

debtor was act ing dishonestly or with bad faith. Clause (b) of the proviso to s 51 deals
with a situation where a judgment-debtor, having the means to pay the amount of the
decree or some substantial part thereof, refuses or neglects to pay the same. By means of
explanation to the proviso, property which cannot legally be attached in execution of a
decree, is directed to be counted out, for the purpose of ascertaining the means or capacity
of the judgment-debtor, to pay the amount of the decree . Section 51 does not authorise the
execution of money decree by arrest of the judgment-debtor, except where the judgment-
debtor acts in bad faith. There can be no legal or Constitutional objection for execution of
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a decree by arrest and detention of an individual judgment-debtor, who deliberately refuses

or neglects to pay a decretal amount while possessing the capacity to pay. 1114 An order for
arrest cannot be passed, merely on the allegation that the income of the judgment-debtor
was rupees seventy thousand, when there is no supporting proof on the record, of such
income. Where the judgment-debtor is in a position to pay the amount in instalments, such
a course should be adopted by the court before making an order of committal to prison on
the first application. The mere fact that the judgment-debtor pays by instalments, does not
mean that he has the means to pay the entire amount immediately. Similarly, the mere fact
that he possesses immovable property, does not justify an order of detention in civil prison
on his refusal to pay. 1115 Judgment-debtor was working in a bank and was having land in
which he was raising tobacco crop. He purchased cloth on credit. There was failure to pay
the amount of credit. Decree against him can be enforced by directing arrest and detention
in civil prison of judgment-debtor, if he neglects or refuses to pay the decretal amount
without any reasonable explanation. Every judgment-debtor is not immune from arrest.
There can be no legal or Constitutional objection for execution of a decree by arrest and
detention of an individual judgment-debtor who deliberately refuses or neglects to pay a
decretal amount while possessing the capacity to pay. 1116 Simple default by the judgment-
debtor, in payment of the decretal amount to the decree-holder, is not enough for the
executing court to order his arrest. The decree-holder must prove that the judgment-
debtor was having enough funds to pay the decretal amount. 1117 According to the Madras
High Court, the court, before making an order for the arrest and detention of judgment-
debtor, should in suitable cases, first order payment by instalments. 1118 Mere non-payment
does not mean refusal or neglect to pay. Refusal implies that a request was made to the
judgment-debtor at the time when he had the means to pay and the judgment-debtor
declined to make any payment. Neglect to pay also connotes that when the judgment-
debtor could have paid, he just omitted to pay, owing to his negligence or carelessness. It
may be that the judgment-debtor may have had other claims to satisfy or more urgent
necessities to meet. He cannot then be said to have neglected to pay.

Where the son and brother of the judgment-debtor filed a suit against him claiming certain
property as their own and obtained an injunction staying its sale, it cannot be said that the
judgment-debtor had obstructed the execution of the decree. 1119 The onus of proof is on
the decree-holder to establish that the judgment-debtor has sufficient means to pay the
debt. 1120 Where the judgment-debtor is in possession of a house which he owns, the
normal presumption is that he is able to pay by sale or mortgage of that house. But there
must be evidence to show that apart from his owning the house, he is in possession of it
and is in a position to realise substantial cash by its sale, mortgage or other encumbrance.
1121 Refusal or neglect envisages capacity to pay, coupled with deliberate non-payment.

Merely because judgment-debtor possesses immovable property, an order of detention in

civil prison cannot be made for his failure to pay. 1122 A director of a company occupies a
fiduciary position; so he can be arrested in execution of a decree which the company had
obtained against him for loss caused by his negligence. 1123 In a proceeding instituted for
the arrest of the guarantor in civil prison, the guarantor is not entitled to raise the plea that
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he has no means to pay the decree debt. Being the guarantor, he is in a fiduciary capacity to
pay the account to the decree-holder, which is the first requirement of cl (c) of proviso to s
51. Every judgment-debtor, whether he is a principal debtor or a mere guarantor or a
surety, has the said obligation to the decree-holder in accordance with the nature and
circumstance in each case. 1124 Under s 51, proviso (c), where a decree is passed against a
director of a company for loss caused by him as director (to the company), the director can
be arrested, because he occupies a fiduciary position. 1125 A partner failing to pay money in
his hands and received by him on account of partnership is not liable as a person act ing in
a fiduciary capacity. In Prem Ballabh v. Mathura Datt , 1126 the respondent as the managing
partner was liable to render accounts of the partnership assets in his hands. On taking of
the accounts, it was found that he overdrew the partnership account, and a decree was
passed against him. No fraud or clandestine dealing was alleged or proved. It was held that
the decree was not for a sum which he was bound to account in a fiduciary capacity and
therefore condition (c) of the proviso did not apply. Order for arrest without recording
reasons, therefore, would be regarded as being without jurisdiction, even if made for the
second time. 1127 It has been held that an order of committal to prison should not be made
on the first application for execution and that the judgment-debtor should, in the first
instance, be directed to pay the amount by instalments. 1128 For instances in which the
judgment-debtor was held liable to be arrested on the ground that he was bound in a
fiduciary capacity to pay the amount, see the cases noted below. 1129

The words fiduciary capacity mentioned in proviso (c) to s 51, has not been defined in the
Code or in the General Clauses Act or in Family Courts Act. The relationship between
husband and wife can be described as fiduciary relationship. In execution of a money
decree against husband, the husband stands in fiduciary capacity in relation to the wife,
because the wife walks into the matrimonial home with cash, ornaments and articles
belonging to her and entrusts the same to her husband.9696 Relying on dictionaries, Law
Lexicons and precedents to ascertain the precise scope of the expression bound in a
fiduciary capacity to account, the Division Bench of Kerala High Court observed as
follows:

29. The above discussions lead us to the conclusion that husband and wife relationship can
be held to be a fiduciary relationship. It also follows that in respect of cash, ornaments and
articles brought by the wife to he matrimonial home and entrusted to the husband, he is
bound in a fiduciary capacity to account to the wife whenever she makes a demand.
Elements of trust are involved in such relationship and in the entrustment of
cash/ornaments/articles. We do not, in these circumstances, have any hesitation to agree
that proviso (c) to s 51 of the CPC squarely applies and the pleas which may be available
under cls (a) and (b) of s 51 of the CPC shall not be available to a judgment-debtor, if the
case falls within cl (c). 1130

When the decree for the payment of money is passed jointly and severally against two or
more defendants, there is no question of one being a personal debtor and the other a
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surety. Both are equally liable for the entire amount and the decree-holder is entitled to
realise the amount from any of them. If the decree-holder wants personal execution, and
when his allegations for that purpose are denied, it is for him to satisfy the court, that
conditions for ordering personal execution are there. When the person carries on a
business, it does not automatically follow that the business is profitable and that the person
carrying on the business has the means to satisfy the decree. 1131

When the decree is for payment of money jointly and severally against two or more
defendants, there is no question of one being a personal debtor and the other a surety.
Both are equally liable for the entire amount and the decree-holder is entitled to realise the
amount from any of them. It cannot be said that in a money decree, personal execution
could be ordered against a person without affording him an opportunity to show cause
why he should not be committed to the civil prison and when he shows cause, without the
requisite satisfaction, simply on the ground that he is a surety. The execution court is
concerned only with the liability under the decree and is to see whether personal execution
could be had against them. It is the decree-holder who wants personal execution; when his
allegations for that purpose are denied, it is for him to satisfy the court that conditions for
ordering personal execution are there. What is required to be proved is that the judgment-
debtors have, or had, since the date of the decree, the means or capacity to pay off decree
amount or some substantial portion of it and they refused or neglected to pay. When a
person carries on a business, it does not automatically follow that business is profitable and
there are means. 1132 The fact that order for detention may not serve the purpose of
realising the decretal money, would not be sufficient. The legislative intent is clear. The
purpose was to act as deterrent to all others and to provide an absolute civil liability for
those who were found guilty and a decree passed in respect of the money in fiduciary
capacity. 1133

In order to satisfy whether the judgment-debtor has got means to pay the decree amount,
filing of affidavit alone is not sufficient. It has got to be proved by adducing evidence both
orally and documentary. It is only on the basis of the documents filed and the oral
evidence adduced, the court can come to the conclusion whether the judgment-debtor got
the means to pay the decree amount or not. 1134 In a case, the executing court after issuing
show cause, did not hold any inquiry as contemplated of cl (1) of r 40 of O 21 nor has
complied the conditions laid down in proviso to s 51, so as to record his reasons after its
satisfaction for detaining or sending the judgment-debtor in civil prison. Therefore, the
order passed without filing the mandatory provisions were not sustained, and were
accordingly quashed. 1135

18. Explanation. As by reason of s 168 A of the Bengal Tenancy Act, 1885, property of
the judgment-debtor other than the defaulting tenure or holding cannot be attached and
sold in execution of the rent decree, the value of such other property cannot be taken into
account in estimating the means of the judgment-debtor for the purpose of determining
the question as to whether the judgment-debtor can be arrested. 1136
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19. Operation of section subject to any special or local law. By virtue of s 4 of the Code
of Civil Procedure, this section must be read subject to any conditions or limitations which
may be prescribed by any local or special law. Sections 58A and 59 of the Madras Estates
(Abolition and Conversion into Ryotwari) Act, 1946, which ensure for the landholder,
immunity from arrest, in execution proceedings are a special law, within the meaning of s 4
of the Code of Civil Procedure, and have accordingly the effect of overriding this section. 1137 By
virtue of s 17 of the Evacuee Property Act, as amended in 1951, the decree-holder is
debarred from proceeding in any manner, against any property, declared as evacuee
property or deemed to be such, in execution of a decree. 1138 Section 51 of the Code of Civil
Procedure is not applicable to issue of warrant of arrest under s 281 of Zamindari Abolition
and Land Reforms Act, 1950. 1139

The Supreme Court has held that attachment of property made in an execution does not
get determined when an order of stay is passed under s 4 of the Tamil Nadu Indebted
Agriculturists (Temporary Relief) Act, 1975. The stay under the Act was only in relation to
further proceedings in pursuance of the attachment, that is, sale of the attached property.
It was held that sale of the attached property made during the period of stay is void. 1140

Raveendran, J., speaking for the Supreme Court Bench in the above case observed as
follows:

The execution application of the appellant was closed on 15-02-1975 in view of Section 4
of the Debt Relief Act staying execution against agriculturists. The stay of further
proceedings in execution under section 4 of the Debt Relief Act was only for a specified
limited period. The proviso to section 4 clearly implied that any attachment made in such
stayed execution proceedings shall continue to be in affect, by providing that the Court will
have to pass if necessary the orders for custody or preservation of the attached property
during the pendency of the stay under the Debt Relief Act. Therefore the enactment of the
Debt Relief Act did not determine the attachment. What was stayed or kept in abeyance
during the period when the statutory stay of execution operated, was not the attachment,
but the further proceedings in pursuance of the attachment, that is, sale of the attached
property. On the expiry of the moratorium period under the Debt Relief Act on 17-10-
1979, the decree holder became entitled to continue the execution by proceeding with the
sale. 1141

20. Application of the section to Orders passed under the Banking Companies Act,
1949. Under s 45 H of Banking Companies Act, 1949, the High Court has power to execute
an order passed under that Act, as if it were a decree, in the modes prescribed in this
section. 1142 The bank account of the judgment-debtor was attached by the executing
court. The order was passed on the assumption of an erroneous entry in the bank account,
showing credit in the account of judgment-debtor, while in fact there was no such amount.
The erroneous entry was corrected by the bank when detected. In such circumstances, the
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order of the executing court to the bank to pay the decretal amount is not sustainable as
the decree is against the judgment-debtor and not the bank. 1143

21. State Amendment in Uttar Pradesh. In s 51, after cl (b), the following shall be added
as a new cl (bb):

(bb) by transfer other than sale, by attachment or without attachment of any property. 1144

S. 52. Enforcement of decree against legal representative.

(1) Where a decree is passed against a party as the legal representative of a deceased
person, and the decree is for the payment of money out of the property of the
deceased, it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor and he
fails to satisfy the Court that he has duly applied such property of the deceased as is
proved to have come into his possession, the decree may be executed against the
judgment-debtor to the extent of the property in respect of which he has failed so
to satisfy the Court in the same manner as if the decree had been against him
personally.

1. Scope of the section. Section 50 provides for a case where a decree has been passed
against a party and the party dies before the decree is fully satisfied and the decree is
sought to be executed against his legal representative. The present section provides for a
case where the decree is passed against the legal representative of a deceased person. In the
latter case, the legal representative is the judgment-debtor. 1145 If such a decree is for
payment of money out of the property of the deceased, the section allows the decree to be
executed against the property of the deceased in the hands of the legal representative, 1146
but so long as it remains in his hands. In a suit by a vendee for refund of consideration
against the legal representatives of the vendor on the ground that the vendor had no
subsisting title, the legal representatives are liable to refund only out of the assets of the
deceased vendor in their hands. 1147 If the executor or administrator against whom the
decree is passed, hands over the property to the legatee or heirs, the property cannot be
redeemed in execution; a separate suit would be necessary. 1148 In order that the section
may apply, the decree must not only be against the legal representative, but it must also be
for the payment of money out of the property of the deceased. 1149 The form in which the
decree is drawn up is not the relevant criterion. So long as the decree in substance directs
payment out of the property, it is sufficient. 1150 Where the defendant dies pending the suit
and his legal representative are brought on record, it is essential that the decree should be
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passed against them. It was accordingly held that a decree passed against the deceased
defendant and not the legal representatives was bad and inexecutable. 1151 It is not,
however, competent for the court to pass a decree against the legal representatives so as to
make them personally liable. 1152 A decree which merely states that the money is
recoverable from the assets of the deceased without specifying in whose hands they are, is
invalid and inexecutable. 1153 The court has no discretion to limit the decree that a
particular item of the deceaseds property should be first proved against. 1154 Whether a
decree, passed against a judgment-debtor is sought to be executed under s 50 against his
legal representatives, or whether the decree itself has been passed under this section against
the legal representatives, the extent of their liability is the same. They are liable only for
what has come into their hands as assets of the deceased and not duly accounted for. 1155
But in so far as the property of the deceased which has come into the hands of the legal
representative has not been duly applied by him, the decree may be executed against the
legal representative as if the decree was to that extent passed against him personally. An
executor or administrator under the Indian Succession Act, 1925, s 323, is bound to pay the
creditors of the deceased equally and rateably; if he fails to do so, he cannot be said to have
applied the assets duly within the meaning of this section, and he will be personally liable
to the extent to which he has not done so. To ascertain whether the assets have been duly
applied, the court of execution may direct an inquiry into the accounts of the executor or
administrator.1156 The executor or administrator may show that he is not liable, as he has
duly applied the property of the deceased which has come into his possession. This, in
English law, is called the plea of plene administravit. In an Allahabad case 1157 Ashworth J,
differing from Mukerji J, held that the plea could be raised in the suit itself. If the executor
or administrator has paid a legacy and left no assets for the payment to the decree-holder,
the latter has also his remedy under s 361 of the Indian Succession Act, 1925, and may require
the legatee to refund. But this remedy must be exercised by suit, and the decree-holder
cannot, in execution of a decree against the executor or administrator, attach property
which he has parted with, to a specific legatee.1158

Sections 50 and 52 apply in two different situations. Section 52 applies where the
defendant dies during the pendancy of the suit and his legal representatives are brought on
record and decree is passed against them. Under s 50 the decree is passed against the
original debtor and the decree is sought to be executed against his legal representatives.
Therefore, under s 50 the burden is on the decree-holder to show that the property in
question has come into the hands of the legal heirs. But under s 52 the burden is on the
legal representatives to show that they have not received the property from the deceased.
Thus, in the case of a money decree passed against a person who was dead at the time of
execution, it was for the legal representative/wife to show that she has not received
property attached by Bank from her deceased husband. 1159

If the legal representative is the heir of a deceased Hindu or Mahommedan, every payment
by the heir on account of debt due by the deceased would be a due application of the
assets, whether the debts were paid rateably or not. There is no analogy between the case
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of an executor or administrator governed by the provisions of the Indian Succession Act,

1925 and of an heir as a legal representative under the Hindu or Mahommedan law.1160
Section 52 of the Code of Civil Procedure adumbrates that a money decree passed against the
legal representative of the deceased defendant, out of the property of the deceased in his
hands, may be executed by attachment or sale of that property. If the legal representative
fails to satisfy the court that he duly applied the property to discharge the debt, or the
court is not satisfied of his so doing, the court would proceed against the legal
representative personally and to apply the property by sale to satisfy the decree debt. At
the time when the application for passing the final decree is filed, it is enough if the legal
representative are impleaded, all or any of the legal representative or one of the legal
representatives of the deceased defendant-judgment-debtor to represent the estate of the
deceased. If the death of the defendant takes place pending passing of final decree, they
may be brought on record under s 151 of the Code of Civil Procedure or under O 1, r 10 of the
Code of Civil Procedure. 1161

2. Plea of absence of assets. The suit is not the stage at which the question whether the
deceased has left behind assets can be gone into. It is a matter which must be appropriately
determined in execution proceedings. 1162 And where the decree passed under s 52
specified certain properties as the assets of the deceased, the decree-holder was held not
barred from proving at the stage of execution, that other assets of the deceased had not
come into the hands of the legal representatives and from proceeding against them. 1163
The burden is on the decree-holder to prove that the assets of the deceased have come
into the hands of the legal representatives, 1164 and then it is for the latter to account for
them. 1165 If they fail to satisfy the court that they have applied the property of the
deceased, they are personally liable to the extent of the property in respect of which they
so fail. 1166 The mere fact that the legal representatives of the deceased are parties to the
decree which is against the assets of the deceased, does not render them personally liable in
the absence of an order of the court to that effect. 1167

3. Lis Pendens. If it could be read from the objections that the objectors had purchased
the property much before the institution of the suit and their vendor, so also they
themselves were not joined as parties to the suit. If such was the objection, then
application of s 52 of the Transfer of Property Act, 1882 was patently illegal. The order passed
by the learned executing court cannot be allowed to stand, as not only it is contrary to law
but the same is contrary to the facts. The order passed by the executing court was
accordingly quashed.1168

4. Costs. It has been held that when a suit is decreed against a legal representative with
costs, the liability is only to pay the costs out of the assets of the deceased unless the
decree otherwise provides. 1169

5. Legal representative. Legal representative means a person who, in law, represents the
estate of a deceased person, and includes any person who intermeddles with the estate of
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the deceased, and, where a party sues or is sued in a representative character, the person on
whom the estate devolves on the death of the party so suing or sued. 1170

Where a legal representative is sued on the ground that he has intermeddled with the
estate, it is for the plaintiff to establish that the property belonged to the deceased. 1171 A
decree obtained against one representative without any inquiry as to who are the legal
representatives of the deceased, cannot bind the other legal representatives who are not
made parties. Doctrine of substantial representation cannot be invoked in such a case. 1172

As to how far a decree passed against one of several Mahommedan heirs binds the other
heirs, see the undernoted case. 1173

(As to the liability of Hindu sons for their fathers debts see s 53 below, the Bombay Hindu
Heirs Relief Act, 1886, and the observations in the judgment of the Full Bench in Jamburao
v. Annappa. 1174 )

6. Out of the property of the deceased. The expression property includes the income of
immovable property though it cannot be both attached and sold. 1175 Income from a
hereditary office in a temple requiring personal services is not property of the deceased
within this section. 1176 A decree was passed against a Hindu widow as the legal
representative of her deceased husband and made realisable from the husbands estate in
her hands. In order to defeat the execution, the widow made a fictitious gift of a house
belonging to her husband, in favour of a person. It was held that the decree could be
executed against the house. 1177 This right of the creditors of an ancestor to proceed
against his assets in the hands of his heirs is lost if the assets are transferred by the latter
for consideration and without notice of the creditors claim; and the right is not revived
even if the transfer is set aside on the insolvency of the heir under the provisions of the
insolvency law. 1178 In one case, this section was invoked by a decree-holder to make the
legal representatives of the deceased judgment-debtor liable to account for the profits
received by them from out of the properties of the deceased in their hands and to make
them available for satisfaction of the decree under O 34, r 6. 1179

In a case the original defendant expired during the pendency of the suit. The legal
representatives were not brought on record in the execution proceedings but in the original
proceedings itself. It was held by the Karnataka High Court that the deceased defendant
had one-third share in the suit schedule property and a charge has been created under the
judgment and decree on the said property. Therefore, the decree-holder in executing the
said decree against the legal representatives of the deceased is bound to proceed for
recovery of money out of the property of the deceased. 1180

Where the decree does not impose a liability on a Hindu widow personally, she can take
the plea in execution that her personal property cannot be attached. Even where the decree
purports to impose her personally liable, she can assail that part of the decree in appeal. 1181
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In an Andhra Pradesh case for the recovery of a decretal debt, the decree-holder brought
to sell the Matruka property of her late husband for the satisfaction of her decretal debt.
The sale was confirmed and possession was delivered to the auction purchaser. The
plaintiffs claimed to be the children of the judgment-debtor through his second wife. They
subsequently came to know that the decree-holder did not deliberately bring them on
record, in the execution proceedings. Their case was that the entire execution proceedings
after the death of the judgment-debtor were vitiated by fraud and collusion and the sale
was not binding on their shares. The plaintiff who claimed to be legal representatives of
the deceased judgment-debtor, did not apply to be impleaded as such. The auction-
purchaser was not a party to the proceedings and was a bona fide purchaser, not in collusion
with the judgment-debtor or the decree-holder. It was held that the court sale under which
the auction purchaser had purchased the suit property, was valid and binding, even in
respect of the shares of the plaintiff and was not liable to be set aside. 1182

7. Decree against wrong person as heir and legal representative. A decree obtained
against an executor or administrator of the estate of a deceased person is a decree against
the estate of the deceased. A decree against a karnavan as representative of the deceased
binds the estate; and this is so even though there has been a disposition by Will of which
the plaintiff was not aware; 1183 but a decree obtained against the heir of a deceased Hindu
or Mahommedan as his legal representative, is not a decree against the estate of the
deceased even if the decree provides for the payment of the decretal amount of the
property of the deceased in the hands of such heir. The question has largely been discussed
whether a decree obtained against some of the legal representative or against persons
wrongly believed to be legal representatives, is binding on the estate of the deceased. It was
held in some cases that a decree obtained by the creditor of a deceased Hindu against a
wrong person as his heir cannot be executed against the estate of the deceased, in the
hands of the rightful heir; 1184 and that if the property of the deceased was sold in
execution of the decree against a wrong person as heir, the auction- purchaser may be
dispossessed by the rightful heir. 1185 The Calcutta High Court has held that if a plaintiff
sues in good faith a person who appears to him to be the proper legal representative, the
decree binds the estate of the deceased. 1186

Likewise, where the plaintiff, in ignorance of a will left by the deceased, sued the heirs as
legal representatives, it was held that in the absence of fraud or collusion, the estate was
bound although under the will other persons were entitled to represent the estate. The
High Court of Orissa has held likewise where the decree was against a person who was in
possession ascertaining a claim to succeed the estate. 1187 This decision was approved by
the Madras High Court in Shanmugham v. Govindaswamy , 1188 where it was held that when
the decree-holder bona fide impleaded a person in possession as the legal representative of
the deceased defendant, the decree passed against him, bound all the legal representatives.
On the question whether a decree obtained against some of the legal representatives binds
the estate, the preponderance of judicial opinion is that it does, provided, however, that the
plaintiff act ed bona fide 1189 and was no fraud or collusion. This conclusion is based on the
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theory of substantial representation. 1190 This rule will not apply to cases where there is
fraud or collusion or where there are circumstances indicating that the trial was not fair or
real or where it is found that the absent heir had a special defence which was not and could
not be tried. 1191 This would be the position even when a wrong legal representative is
brought on record 1192 or where a decree is passed without the legal representatives having
been brought on record but the estate is adequately represented by others. 1193

8. Decree against executor who has not intermeddled or proved. A creditor or a

deceased debtor cannot sue a person named as executor in the will of the deceased, unless
he has either administered, that is, intermeddled with the estate, or proved the Will.
Whether a decree is obtained against such person and property belonging to the estate of
the deceased is sold in execution of the decree, the sale does not bind the estate.

S. 53. Liability of ancestral property.

For the purposes of Section 50 and Section 52, property in the hands of a son or other
descendant which is liable under Hindu law for the payment of the debt of deceased
ancestor, in respect of which a decree has been passed, shall be deemed to be property of
the deceased which has come to the hands of the son or other descendant as his legal
representative.

1. Scope of the section. This section enacts a rule of procedure and its operation is
attracted only when the son is under a liability under the Hindu Law. It does not, by itself,
create or take away any substantive right. 1194 It has no application when the ancestor
against whom a decree has been passed, is still alive. 1195 It has been designed to enlarge
the class of property liable for execution under ss 50 and 52 by deeming certain property
to have come into the hands of the legal representative as property of the deceased, which,
in fact, has not done so. The class of property to which the section is applied is property in
the hands of a son or other descendant of the deceased, which may not have descended to
him from the deceased ancestor, but which under the Hindu Law, would be liable for the
payment of his debt. It is, thus, descriptive of the class of property, which can be reached
in execution and does not limit the nature of the debt for which execution can be levied.
1196 It has been enacted to enforce the recognised rule of the Hindu Law, namely, that

members of a joint Hindu family may not escape the payment out of joint family property,
of any debt incurred and decreed against their father before his death, provided that such
debt is not tainted by immorality. The Bombay High Court, at one time, held that the
section was restricted to this case only and was limited to money decrees and to property
which a son had taken by devolution or succession and not by survivorship. 1197 This
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decision was later on overruled by a full bench of that court. 1198 The Madras High Court
had, however, given the section a wider scope and held that it included all cases where
property, which is liable under Hindu law for the payment of a debt of a deceased ancestor
has come into the hands of a son, or other descendant. Therefore, a decree passed against
a father, as manager of a joint Hindu family, for the recovery of property was enforced in
execution against a son who had taken the property by survivorship. 1199 The Privy Council
has held that s 53 is not limitative but descriptive, and is intended merely to enforce a
recognised rule of Hindu Law that a son is liable to pay the debt of his father which is not
tainted by illegality or immorality. 1200 Section 50 is not limited to the execution of decrees
for debt, but applies to all decrees. If s 53 is considered to be not descriptive but limitative
and confined to a decree for debt, and if a joint son is not considered to be the legal
representative of his father under s 50, a decree for possession or a decree other than a
decree for a debt obtained against a father in a joint Hindu family, would not be
enforceable in execution against the son, who is joint with his father and is brought on the
record as his legal representative. In this case, the Bombay High Court held that a decree
for an injunction passed against a father as manager of a joint Hindu family could be
executed against a son who had taken the family property by survivorship. In the previous
case, 1201 such an execution was refused and the son who had taken joint family property
by survivorship, was held not to be the legal representative of his father; but this case was
overruled by a full bench of that court 1202 and goes against the decision of the judicial
committee in Rao Bhimsing s case above on the ground that the decree was against the
father personally, and not as representing the family. In the case of money decree, if the
decree is against a coparcener personally, it cannot be executed after his death, against
another coparcener who has taken the property by survivorship, if he is neither a son nor
grandson but a nephew, who is under no obligation to pay the debt of the deceased. 1203

The High Court of Bombay has held that the son of a Hindu, where there has been no
appointment of an executor or administrator, in law, represents the estate of his father and
is, therefore, his legal representative within the meaning of s 2 (11) of the Code of Civil
Procedure. 1204 The Privy Council has also held that the son coming into an impartable
ancestral estate of a Mitakshara family is a legal representative of his father who was the last
holder. 1205 Hence, where there is an allegation that the estate of the father is in the hands
of the son, the son is liable to have a decree passed against him for the fathers debt, to be
recovered only out of any assets of the father which may have come into his hands and are
not duly accounted for. However, where there is a decree against both the father and son,
but it is executed only against the father, the sons interest in the joint family property
proceeded against, will not be affected. 1206

This section assumes the existence of a debt; hence, where in a suit against the father on a
mortgage of ancestral property, the sons are not impleaded but are brought on record after
the death of the father after the preliminary decree and are not allowed to raise the
question regarding the binding nature of the debt, the sons are not precluded from
disputing the existence of the debt itself in a separate suit. 1207
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This section was first enacted in the Code of Civil Procedure 1908 and a controversy then
arose whether it applied to pending execution proceedings. It was held in Inderjit v. Arshad
Ali , 1208 that it did, whereas in Gummurthi Naidu v. Varadappa Chetty , 1209 a different view
was taken. The question is not one which is likely to arise for decision hereafter, but on
principle when once it is held that the section enacts a rule of procedure and on that there
has been no dispute, the conclusion is inescapable that it must apply to pending
proceedings. The Kerala High Court has, on this principle, held that the section is
applicable to decrees passed before the Code of Civil Procedure, was extended to the area in
question. 1210

2. Hindu Law. The expression Hindu Law would include in its ambit, the modern
legislation on Hindu law. It should not be considered as only Hindu law prevailing before
the Hindu Succession Act, 1956.

3. Decree. The section is not limited to money decrees but applies to all decrees. 1211

4. Property in the hands of a son. This includes the undivided share of the son in the
joint family property which is held by himself and other coparceners. 1212 But it will not
include the watan property that is in the hands of the son, having regard to the provision in
s 5 of the Bombay Hereditary Offices Act, 1874. 1213 It is, however, otherwise if the decree
for money had been obtained against the watandar father and his son during the life-time of
the father. 1214 Where a provident fund that is standing to the credit of a deceased
judgment-debtor is paid to his dependent minor son under s 4 (1) of the Provident Funds Act
19 of 1925, the amount so paid is not part of the assets of the father. 1215 This section
applies in the case of the sons of a judgment-debtor only, and not in the case of his
brother, 1216 or mother, 1217 or father 1218 or uncle. 1219 The judgments mentioned herein are
all prior to the coming in force of the Hindu Succession Act, 1956, hence, will not be
applicable in present circumstances. Where a suit on a mortgage by the father was filed
against the sons and the grandsons but was dismissed against the latter, it was held that the
interest of the grandsons in the joint property was not liable to attachment under the
decree.1220

If the father dies leaving sons and also his own father and subsequently the fathers father
dies, it was held that the decree could not be executed against the ancestral property in the
hands of the sons. 1221 This view has been dissented from, in the undermentioned case. 1222

The expression other descendant shall include heirs as mentioned in the Schedule to the
Hindu Succession Act, 1956.

5. Liability of ancestral property in execution proceedings. Under the Hindu Law,

when a son or grandson takes any ancestral property by survivorship, he is bound to pay
out of such property, all debts of his ancestor, not incurred for immoral or illegal purposes.
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In the case of a decree against a Hindu father, there was a conflict of decisions under the
Code of Civil Procedure 1882 as to the procedure for enforcing this liability. The section
settles this question of procedure. 1223 We proceed to consider the subject under the
following four heads:

(a) Money Decree against Father : Execution after his Death: Partition.A and his sons B and C
constitute a joint Hindu family owning an ancestral house. D obtains a decree against A
for Rs 5,000 . A dies and on his death, B and C take the ancestral property by survivorship
. D, whose remedy is not confined to the one-third share of the father, 1224 applies for
execution of the decree against B and C by attachment and sale of the whole of the family
house. Is he entitled to do so or must he institute a fresh suit against B and C to recover
the debt? According to the procedure prescribed by the Code of Civil Procedure, D should
bring B and C on the record as the legal representatives of A under s 50, and then apply
under that section to the court which passed the decree to execute it against B and C to the
extent of the ancestral property come to their hands. The words in s 50 are, to the extent
of the property of the deceased which has come to his [legal representatives] hands. According
to the present section, the ancestral property in the hands of B and C , being liable under
Hindu law for the payment of A s debts, is deemed, for the purposes of s 50, to be the
property of the deceased which has come to the hands of B and C as the legal
representatives of A . If B and C object that the debt in respect of which the decree was
passed was tainted with immorality, the question is one relating to the execution of the decree
between the decree-holder and the representative of the judgment-debtor within the
meaning of s 47, and it should be determined by the court executing the decree. 1225 This
coincides with the view taken by the High Courts of Bombay and Calcutta under the Code
of Civil Procedure 1882. 1226 According to the Madras and Allahabad decisions under that
Code, a decree against a Hindu father could not be executed against ancestral property in
the hands of the sons, even to the extent of the fathers interest in the property, and the
only remedy of the decree-holder was to institute a regular suit against the sons. This view
proceeded on the ground that the question whether the debts were tainted with immorality
was not one that could be gone into in execution proceedings, and that the sons were not
the legal representatives of their father so far as the ancestral property was concerned
within the meaning of s 234 of the Code of Civil Procedure 1882 (now replaced by Code of
Civil Procedure, 1908).1227 These decisions are no longer law. 1228

Partition. Under Hindu Law, the son, meaning thereby, a male descendant within three
decrees, is under a pious obligation to discharge, out of his share in the joint family
properties, the debts of his father which are neither illegal nor immoral even though they
are not for purposes binding on the family. Being a substantive obligation, it is not
destroyed by a partition taking place subsequent to the contracting of the debt. 1229 But
judicial opinion was divided on the question as to the mode in which this obligation could
be enforced after partition. It was held by the High Courts of Patna 1230 Nagpur 1231 and
Bombay 1232 that after partition, the creditor could not execute a decree obtained against
the father alone against the shares allotted to the sons on partition but that he must file a
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suit against him on the debt and execute the decree passed therein against the properties
that fell to their share. The decisions of the Madras High Court on the question were
conflicting. In Venkatanarayana v. Somaraju , 1233 it was held by a full bench that where a
partition takes place after a suit is filed against the manager or father, the decree could be
executed against the joint family properties which are allotted to the coparcener or son as
the suit must be taken to have been laid against the manager or father, in a representative
capacity. But the preponderance of authority was in favour of the view that as the power
of the father to represent must come to an end on division, a decree passed, thereafter,
could not be executed against the properties in the hands of divided members. 1234 The
controversy has now been set at rest by the decision of the Supreme Court in Pannalal v.
Mst Narayani , 1235 wherein it has been held that a decree obtained against the father
cannot, after partition, be executed against the shares allotted to the sons.

(b) Attachment in Execution of Money Decree Against Father : Death of the Father Before Sale. All the
High Courts are agreed that where the father dies after attachment of the ancestral
property, the proceedings in execution can be continued against the sons. 1236 And the
Privy Council has accepted this view. 1237 The Supreme Court has also now reaffirmed it.
1238 In fact, having regard to the provisions of the present section, a separate suit against

the sons would be barred by s 47.

(c) Mortgage Decree Against Father: Death of Father Before Sale. Where a decree is obtained
against the father for sale of ancestral property mortgaged by him, and he dies before sale,
the proceedings in execution may be continued against the sons. But the sons, not being
parties to the suit, are entitled to raise, in execution proceedings, such questions as they
could have raised if they had been made parties. 1239 They can dispute the factum of the
debt, or they can show that the debt was incurred for immoral purposes and is not,
therefore, binding on the property. 1240 But the Lahore High Court has held that the son is
not entitled in the case of a mortgage decree to object in execution proceedings that the
debt is immoral and not binding on him. 1241

(d) Decree Against Sons for Fathers Debt for Payment out of Ancestral Property. In such a case, the
decree-holder may proceed to execute the decree by attachment and sale of the ancestral
property come to the hands of the sons. The proceedings would be under s 52. The
expression Property of the Deceased in that section would be construed in the light of the
present section. In fact, s 53 is an explanation to ss 50 and 52, explaining the meaning of
the expression property of the deceased.

It will be seen that, under the present Code of Civil Procedure, a creditor can follow the
property in the hands of the sons or grandsons in execution not only in cases (b), (c) and
(d), but also in case (a).

The four heads set forth above, refer to decree for the debt of a deceased ancestor, but as
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already stated, the section is not limited to such decrees, but includes all decrees against a
deceased ancestor.

6. Debt of a deceased ancestor. As to debts for which a Hindu son or grandson is liable,
see Pannalal v. Naraini. 1242

S. 54. Partition of estate or separation of share.

Where the decree is for the partition of an undivided estate assessed to the payment of
revenue to the Government, or for the separate possession of a share of such an estate, the
partition of the estate or the separation of the share shall be made by the Collector or any
gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the
law (if any) for the time being in force relating to the partition, or the separate possession
of shares, of such estates.

HIGH COURT AMENDMENT

Karnataka. For Section 54, substitute the following section:

S. 54. Partition of estate or separation of share. Where the decree is for the partition of
an undivided estate assessed to the payment of revenue to the Government or for the
separate possession of a share of such an estate, the partition of the estate or the
separation of the share of such an estate shall be made by the Court in accordance with law
if any, for the time being in force relating to the partition or the separate possession of
shares and if necessary on the report of a revenue officer, not below the rank of Tahsildar
or such other person as the Court may appoint as commissioner in that behalf [CPC
(Karnataka Amendment) Act, 1995 (Act 36 of 1998), S. 2 (w.e.f. 1-2-2001) ]

abc

1. Alteration in the section. The word Government was substituted for the words the
Crown by the Adaptation of Laws Order 1950.

2. Partition by Collector. Under s 54 of the Code of Civil Procedure, the collector can effect
partition of an estate assessed to payment of land revenue. 1243

This section is a reproduction of s 265 of the Code of Civil Procedure 1882 with a few
verbal alterations. Where a decree has been passed for partition or for separate possession
 Page 26 of 38
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of a share of an estate of the description mentioned in this section, the proper authority to
effect the partition or to deliver possession of the share is the collector; the court has no
power to do so. 1244 Section 54 does not talk about a final decree. All that is required of a
civil court in a case for partition of an undivided estate assessed to payment of land
revenue of government or for the separate possession of a share in such an estate is to pass
a preliminary decree and declare the rights of the parties and give direction for such
partition or separation to be made by the collector. Thereafter, the execution is to be
effected by the collector. The civil court, after passing such a preliminary decree for
partition, becomes functus officio and has no jurisdiction to act in any manner thereafter so as
to pass a final decree or deliver possession to a party in accordance with such decree. 1245
But the partition intended to be left to the collector is one which has some impact upon
the revenue and the revenue records. If a decree does not direct a share in one or more
survey numbers to be separated, there is no reason why the work of allotment of the entire
survey number assessed to payment of revenue to a particular party should be left to the
collector. 1246 But aliter where the collector refuses to effect partition. 1247

In a suit for partition, once the court passes the decree declaring shares of the parties in an
undivided estate assessed to the payment of revenue to the government and orders
division and separate possession of such estate in accordance with the shares so declared,
then the court is enjoined to direct such partition or separation be effected by the collector
or any Gazetted Officer subordinate to collector deputed by him in that behalf. Further, in
order to give meaningful effect to such declaration and direction issued in terms of s 54
read with O 20, r 18(1) of the Code of Civil Procedure, the court is further enjoined to send
the relevant papers to the concerned collector or Gazetted Officer. Once the papers are
transmitted to the revenue officer, the court passing the decree for partition under O 20, r
18(1) of the Code of Civil Procedure becomes functus officio in relation to the decree for
partition passed by it and all further proceedings for the execution of such decree are to be
carried out by the concerned revenue officer. The civil court is not the executing court for
the purpose of execution of the decree for partition of the estate which is subject to the
assessment for payment of revenue to the government. Being so, the question of
approaching the civil court under s 47 of the Code of Civil Procedure, with grievance regarding
non-compliance of such decree or acts in contravention thereof or in violation of law by
the revenue officer in the course of execution of such decree does not arise at all.
Certainly, the provisions of O 21 would not be attracted in such cases as the execution of a
decree is not by the civil court. Being so, neither the provisions of s 47 nor those of O 21
of the Code of Civil Procedure can be of any help in such cases. Further, the matters
pertaining to the execution of such decrees cannot be dealt with under the exercise of
inherent powers under s 151 of the Code of Civil Procedure. Undoubtedly, therefore, it can be
said that the grievance relating to refusal of the revenue officer to execute the decree and
therefore, direction for the execution to be carried out in terms of the decree, i.e. , as per
the declaration of shares under O 20, r 18 of the Code of Civil Procedure can be entertained
by the civil court in exercise of its inherent jurisdiction to pass order under s 151 of the Code
of Civil Procedure for compliance of the said declaration, i.e. , for execution of the decree in
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accordance with the terms thereof. Therefore, in cases of contravention of provisions of

law or transgression of law or non-enforceability of the decree for partition on account of
events occurring subsequent to the passing of such decrees or in relation to the similar
such grievances, the limited control which can be exercised by the civil courts can be only
by way of an independent suit. The bar for suit under s 47 of the Code of Civil Procedure could
be applicable only in cases where the question can be determined by the court executing
the decree. Once it is clear that the civil court is not the court executing the decree for
partition of the estate which is subject to the assessment for payment of revenue to the
government, the bar provided under s 47 of the Code of Civil Procedure for an independent suit
by the parties to the decree cannot come in the way of the party approaching the court
with such suit regarding the grievance in relation of the execution of the partition decree.
1248

In a partition suit pertaining to agricultural lands in the State of Maharashtra, the execution
of decree is to be performed by Collector or his subordinate officer according to the
provisions of s 85 of Maharashtra Land Revenue Code 1965 and rr 5, 6, 7 of the
Maharashtra Land Revenue (Partition of Holdings) Rules 1967. The Civil Court after
passing the decree becomes functus officio so far putting the decree-holder in act ual physical
possession of the property. The provisions of O 21, r 35 of the CPC do not apply in case
of possession of agricultural land. 1249

3. Application of the section. If a decree is for the partition of an undivided estate

assessed to the payment of revenue to government, the section requires that the partition
should be carried out by the collector. In a case decided by a full bench of the High Court
of Calcutta, there was a dictum to the effect that the section only applies to a decree which
directs distribution of revenue as well as a division of land. 1250 This case has been
followed by the Patna High Court. 1251 There is, however, nothing in the section which so
limits its operation. In Abdul Razak v. Shreenath Ghosh , 1252 Chief Justice Rankin said:

It is idle to say that it is open to the plaintiff to insist that it be carried out by a
commissioner under the civil court merely because he has not asked for partition of the
revenue. Whether he has asked for partition of the revenue or not, if he has a right to the
partition of an undivided estate, his right is to a complete partition and it is certainly the
right of any other party to object to an incomplete partition which would leave his interest
at the mercy of the plaintiff, if the plaintiff makes default in paying his share.

It has been held by the Nagpur High Court that a civil court is not competent to effect
partition of revenue paying property if the parties to the suit had not specifically asked for
separation of the liability of each of them, as regards payment of land revenue, but if the
collector refuses to make a partition of the revenue paying property, the civil court can do
so . 1253 Where the share to be divided is assessed to land revenue, the same shall be done
by the deputy commissioner or an officer authorised by him and not by the court or by the
commissioner appointed by the court. 1254 Where the decree in question was not a decree
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for partition simpliciter but under the decree, the partition was to take effect only if the
judgment-debtor failed to pay the amount within the stipulated period, it was necessary for
the court to see as to whether the clause as to partition had become operative before
sending the papers to the deputy commissioner for partition under s 54 of the Code of Civil
Procedure. The order sending records to deputy commissioner for effecting partition
without hearing the purchaser from judgment-debtor was improper. It also violates the
principles of natural justice. 1255

The section does not apply to the partition of a mouza which is part of a revenue paying
estate. 1256 In such a case, the object of the suit is not to have the parent estate divided into
several separate estates, but only to divide the lands of the mouza among persons who are
jointly interested in them. 1257

4. For the separate possession of a share of such an estate. These words refer to the
case of a man whose right is to the possession of an aliquot portion or share of the whole
estate considered as one. In such a case, the partition is made by the collector, as it is the
duty of the collector to see that the proper share of the revenue is put upon the particular
land or share of land. 1258 This section does not bar the jurisdiction of a civil court to effect
a partition of a revenue paying estate where no separate allotment of the revenue is asked
for, and this applies also to proceedings before the arbitrators. 1259 A person on whom any
interest has devolved on account of transfer during the pendency of any suit, or a
proceeding can participate in the execution proceedings even though his name may not
have been shown in the decree, preliminary or final. The collector may proceed to make
allotment of properties in an equitable manner instead of rejecting his claim for such
equitable partition on the ground that he has no locus standi . A transferee from a party of a
property which is the subject matter of partition, can exercise all the rights of the
transferor. Since a party can ask for an equitable partition, a transferee from him can also
do so. 1260

5. Partition. The term partition in this section, is not confined to a mere division of the
lands in question into the requisite parts, but includes the delivery of the shares to their
respective allottees. 1261

In a suit for possession filed by daughters claiming shares in the property of their father,
when separate partitions are not claimed, the decree in such a case would be hit by s 54
and would be inexecutable in absence of identification of separate shares of parties in the
suit land. 1262

6. Addition of Party after Preliminary Decree. It will not be permissible to add a party
to a suit for partition after the preliminary decree if the addition requires the preliminary
decree to be reopened to enable the party to reagitate matters decided under the
preliminary decree because such matters became final. He can, however, be added if he has
no objection to come on record subject to matters decided under the preliminary decree. It
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would be permissible to add him as party if he wants equities to be settled in his favour as
this has to be done under the final decree and the matter is still open after preliminary
decree. He cannot however be allowed to be added if he wants to contest the whole suit
on merits. 1263

If the petitioners do not want to reopen the decree and they are accepting the decree as it
is and they only want equities to be settled in their favour they can be added as parties to
the deukhast proceedings. 1264

In a suit for partition of a Joint Hindu Family property, where death of one of the parties
to the suit occurs subsequent to the passing of the preliminary decree, shares of other
parties thereby many change. Under such circumstances, the Court can pass subsequent
preliminary decree or amend the preliminary decree already passed. Such order making
variation in shares is a decree in itself which would be appealable. 1265

7. Jurisdiction of Court to control Collectors action. Where a decree relates to an estate

of the kind mentioned in this section, it should not only declare the rights of the several
parties interested in the property, but should direct the act ual partition or separation to be
made by the collector or any Gazetted Officer subordinate of the collector deputed by him
in that behalf. 1266 Where a decree is sent by the civil court to the deputy commissioner for
execution, the latter can delegate the function to his gazetted assistant; but the gazetted
assistant cannot further delegate that function to the tehsildar . Proceedings taken by the
tehsildar under such a delegation are without jurisdiction and void. The mere fact that the
petitioner had a concern in the holding of the auction proceedings and had not protested
against it, is not of any consequence at all. Therefore, the High Court could not refuse to
interfere with the impugned proceedings of the tehsildar , which were without jurisdiction.
1267 When a party to a decree, which has been sent to the collector under s 54 dies, or

becomes insolvent or transfers his interest pendente lite, the collector need not send back the
case to the court. Section 54 can be so construed that the collector will act in accordance
with the law (if any) for the time being in force, relating to the partition or the separate
possession of shares. 1268 After a decree for partition is passed under this section, the court
has nothing further to do with it by way of execution. 1269 This section places the execution
of the decree entirely in the hands of the collector. But if the collector contravenes the
decretal command of the court, or transgresses the law for the time being in force, relating
to partition, his act ion is subject to the control and correction of the court which passed
the decree and sent it to him for execution. 1270 In such a case, the aggrieved party should
proceed by an application under s 47, and not by a separate suit. 1271 Even where directions
for partition have been given to the collector, by the court, if the partition has not been
made or commenced, the court can recall the record, if it has been wrongly transmitted or
directed. 1272 Where a collector has made a partition, there is nothing to prevent him from
reversing the partition for mistake or other causes, before he has passed final orders and
returned the proceedings to the court. 1273 An order directing partition by the collector is
not a preliminary decree within O 20, r 18. It is, so far as the court is concerned, a final
 Page 30 of 38
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decree and an order transmitting the papers to the collector is ministerial and not judicial
and not appealable. 1274 It is competent to the collector to himself entertain an application
for partition after a civil court passes a decree. 1275

It has been held that an objection that the collector has made an unequal partition is no
ground for interference by the court with the order passed by the collector. 1276 But in a
Madras case, where all the parties objected to a partition effected by the collector on the
ground that it was unequal, the court held that it had power to entertain the objection. 1277
The section in any case does not exclude the right of superior revenue authorities to
examine and correct any decision or order of the collector in exercise of their appellate or
revisional powers. 1278

From the statutory definition though relating to payment of court-fees, it appears that
engagement with the government by the estate holder is required to determine the
payment of revenue and in absence of such engagement the estate must be separately
assessed with revenue. The land or immovable property rateably assessed for revenue is
not the estate as contemplated under s 54 of the Code of Civil Procedure.

The individual land or immovable property enjoyed separately or jointly subject to

payment of statutory revenue is not covered by the provision of s 54 of the Code of Civil
Procedure. 1279

8. Estate. The word estate is here used in its ordinary sense. 1280 Sheri lands, that is lands
held under a lease from government for a fixed period, come within the terms of this
section as revenue-paying lands 1281 but isolated plots of land which fall short of being the
share of a co-sharer of a mahal do not. 1282 A raiyatwari -holding has been held not to be an
estate within the meaning of the section. 1283

9. Estate assessed to the payment of revenue. This section refers to estates assessed to
revenue in one lump sum for the whole estate, and not to estates, like the ordinary paddy
land holding in Burma, which are assessed at acre-rates. 1284 A mouza is generally part of a
revenue paying estate, but is not itself an estate assessed to the payment of revenue. 1285
The words estate assessed to the payment of land revenue do not cover lands which have
been built upon and become houses or factories. 1286

10. Limitation. Where the application for issuance of precepts to the collector, for
effecting partition of shares in agricultural land accessed to the payment of land revenues
as per shares indicated in the decree was dismissed merely because the application has been
made almost after 45 years of the passing of the decree, the court would be considered to
have committed serious error of law and jurisdiction and the order dismissing the
application was liable to be set aside. The principle of equity made basis, for the order,
could not be made applicable when law of limitation does not bar making such an
application beyond any period. The law of limitation has to be read as provided in the
 Page 31 of 38
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statute, and it does not spring from the common law of the country or principle of equity.
The application filed by the applicant for issuance of precept to the collector for effecting
partition of the decree, being not an application for an execution of a decree, is not
covered by any provisions contained in Limitation Act, 1963.1287

1033 . Ins. by CPC (Amendment) Act 104 of 1976, s 21 (w.e.f. 1-2-1977).

1034 . Ins. by CPC (Amendment) Act 21 of 1936, s 2.
1035 . Anandi Lal v. Ram Sarup, AIR 1936 All 495(FB) : (1936) All LJ 605; Murari Lal v. Nawal Kishore, AIR 1961 Punj 547; Ram
Lochan v. Mahadeo Prasad, AIR 1970 All 544 [LNIND 1970 ALL 57]: (1970) All LJ 687.
1036 . Umakant v. Renwick & Co. Ltd., AIR 1953 Cal 717 [LNIND 1953 CAL 75]: 58 Cal WN 683.
1037 . Mahadev Prasad v. Ram Lochan, AIR 1981 SC 416 [LNIND 1980 SC 384]: (1980) 4 SCC 354 [LNIND 1980 SC 384].
1038 . Pentakota Krishna Bhagwan v. Alla, AIR 2007 AP 2008: 2007 (3) Andh LT 103 [LNIND 2007 AP 222].
1039 . Gudiwada Munemma v. Jawardhal, 2007 (1) Civil Court C 332 : 2006 (6)Andh LT 587.
1040 . P.K. Kuruvilla v. The Corporation Bank, 2008 (1) Ker LT 604 (DB).
1041 . Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470 [LNIND 1980 SC 48]: (1980) 2 SCC 360 [LNIND 1980 SC 48] : (1980) 2 SCJ
358; Subhash Chand Jain v. Central Bank of India, AIR 1999 MP 195 [LNIND 1998 MP 199].
1042 . Yashodabai Ganesh Naik Gaunekar v. Gopi Mukund Naik, AIR 2003 Bom 77 [LNIND 2002 GOA 25].
1043 . Swamy Atmananda v. Swami Bodhananda, AIR 2005 SC 2227 [LNIND 2005 SC 367].
1044 . Venkappa v. Lakshmikant, AIR 1956 Hyd 7: (1955) ILR Hyd 797.
1045 . Shyam Singh v. Collector, District Hamirpur, (1993) Supp 1 SCC 693.
1046 . Subrahmanaya v. Ponnuswami, (1957) 1 MJL 208.
1047 . Court of Wards v. Maharajah Coomar Ramaput, (1972) 14 MIA 605, 612 : 17 WR 159 PC.
1048 . Hargobind v. Hakim Singh, AIR 1926 Lah 110: (1926) 6 Lah 548.
1049 . Mono Mohan v. Upendra Mohan, AIR 1935 Cal 127: (1935) 38 Cal WN 1085.
1050 . Umakant v. Renwick & Co., AIR 1953 Cal 717 [LNIND 1953 CAL 75]: 58 Cal WN 683 .
1051 . M.A.A. Raoof v. K.G. Lakshmipathi, AIR 1969 Mad 268 [LNIND 1968 MAD 96]: (1968) 2 MLJ 34 [LNIND 1967 SC 322].
1052 . Amulya Chandra Roy v. Kumar Pasupati Nath Malia, AIR 1951 Cal 48 [LNIND 1951 CAL 50]: 55 Cal WN 385 (FB); Narasingh
Dutt v. Ram Pratap, AIR 1961 All 436 [LNIND 1961 ALL 17].
1053 . Karnataka Bank v. K. Shamanna, AIR 1972 Mys 321; Krishnamukhatal v. Bhagwan, AIR 1974 Guj 1 [LNIND 1972 GUJ 56].
1054 . Rahim Bux v. Samlulla & Sons, AIR 1963 All 320 [LNIND 1962 ALL 195].
1055 . Prakash Bhagwani v. Sammati Food Products Pvt. Ltd. Sagar, AIR 2002 MP 127 [LNIND 2002 MP 457].
1056 . Dodha Narayana v. Velli Reddemma, AIR 1990 Andh Pra 147.
1057 . Pundlik v. Maharastra State Finance Corpn, AIR 1992 Bom 48 [LNIND 1991 BOM 185].
1058 . Jagdish Prasad sharma v. M/s. Standard Brands Ltd., 2006 (135) DLT 608 : 2007 (50) All Ind Cas 771.
1059 . Greater Bombay Co-op. Bank v. M/s. Satguru Construction, 2007 (3) Bom CR 707 [LNIND 2007 BOM 110] : 2007 (6) AIR Bom R
447.
1060 . Velraj v. Muthiah, AIR 2008 Mad 239 [LNIND 2008 BMM 449]: 2008 (5) Mad LJ 1307 (Madurai Bench).
1061 . K. Vijayakumar v. N. Gururaja Rao, AIR 2004 Andh Pra 435.
1062 . Ch. Sankara Reddy v. Andhra Bank, AIR 2006 Andh Pra 319.
1063 . Ganesa Nadra v. K. Chellathai Ammal, AIR 1989 Mad 8 [LNIND 1986 MAD 330].
 Page 32 of 38
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1064 . Pursattamdas v. Baijnath, AIR 1941 Cal 241; Re Shephard, Atkins v. Shephard, (1889) 43 Ch. D. 131; Saileshwar v. Kanti Kumar, AIR
1965 Pat 238; Dhirendra Nath v. Santasila Debi, AIR , 1969 Cal 406.
1065 . Arumugha Thevar v. Palaniammal, AIR 1973 Mad 426 [LNIND 1972 MAD 90]: (1973) 1 MLJ 111 [LNIND 1972 MAD 90].
1066 . Dominion of India v. Ashutosh Das, AIR 1950 Cal 212: AIR 1950 Cal 349.
1067 . Union of India v. Hira Devi, AIR 1952 SC 227 [LNIND 1952 SC 36]: (1952) SCR 765 [LNIND 1952 SC 36] : 1952 SCJ 326
[LNIND 1952 SC 36].
1068 . Vasant Shamrao v. Jaganath, AIR 1955 Bom 450 [LNIND 1955 BOM 9]: (1955) Bom 589 : 57 Bom LR 416.
1069 . Custodian of Evacuee Property v. Simla Banking and Industries Co, AIR 1951 Punj 434: (1951) ILR Punj 306; Abdul Kaliq Khan v.
Custodian of Evacuee Property, AIR 1954 Hyd 674.
1070 . Pramatha Nath v. HV Low & Co, AIR 1930 Cal 502: (1930) 57 Cal 964; Hemendra Nath v. Prokash Chandra, AIR 1932 Cal 189:
(1932) 59 Cal 205.
1071 . Shambu Nath v. Balmukund, AIR 1931 Oudh 307: (1932) 7 Luck 203; Hemendra Nath v. Prokash Chandra, AIR 1932 Cal 189: (1932) 59 Cal
205.
1072 . Pratap Singh v. Delhi and London Bank, (1908) 30 All 393.
1073 . Toolsa v. Antone, (1887) 11 Bom 448.
1074 . Maung Thein v. SA Firm, AIR 1925 Rang 318: (1925) 3 Rang 235.
1075 . Hemangiri Dassee v. Kumode Chunder, (1899) 26 Cal 441.
1076 . Omkarlal v. Rampal, AIR 1961 Raj 179 [LNIND 1960 RAJ 130]: (1961) 1 Raj 9.
1077 . Hemendra Nath v. Prokash Chandra, AIR 1932 Cal 189: (1932) 59 Cal 205.
1078 . Ge Country Wide Consumer Financial Services Ltd. v. Ganesh Jagannath Thanekar, AIR 2008 Bom 4 [LNIND 2007 BOM 345]: 2007
(3) All MR 526.
1079 . AIR 1929 PC 246: (1929) 7 Rang 388.
1080 . AIR 1931 PC 160: 58 IA 215.
1081 . Manohar Singh v. Hakim Riazuddin, AIR 1934 Nag 605; Mohammad Sharif v. Boughton, AIR 1938 Lah 458.
1082 . Firm Narain Dass, Gulab Singh v. Patiala Durbar, AIR 1940 Lah 345.
1083 . Pramatha Nath v. HV Low & Co., AIR 1930 Cal 502: (1930) 57 Cal 964.
1084 . Sunder Singh v. Lala Ganga Ram, AIR 1938 Lah 93: (1938) Lah 305.
1085 . Rajindra Narain v. Sundara Bibi, AIR 1925 PC 176: 52 IA 262 : ILR 47 All 384.
1086 . Secretary of State v. Bai Somi, AIR 1933 Bom 350: (1933) 57 Bom 507.
1087 . Secretary of State v. Venka, AIR 1926 Mad 565 [LNIND 1926 MAD 1]: (1926) 49 Mad 567.
1088 . Palikandy v. Krishna, (1917) 40 Mad 302.
1089 . Tikka Sant Singh v. Sain Das, AIR 1937 Lah 433(the house had been let to a tenant).
1090 . Rameshwar Singh v. Hitendra Singh, (1918) 3 Pat LJ 513.
1091 . Moideen Batcha v. Sulaiman, AIR 1956 Mad 163 [LNIND 1955 MAD 161].
1092 . Murarilal v. Nawal Kishore, AIR 1961 Punj 547.
1093 . Champaran Sugar Co. v. Haridas, AIR 1966 Cal 134 [LNIND 1965 CAL 65]: 69 Cal WN 815.
1094 . Zenkata Subbayya v. S. Veerayya, AIR 1969 Andh Pra 96.
1095 . Marath v. Seshu, AIR 1922 Mad 299 [LNIND 1921 MAD 126]: (1922) 42 Mad LJ 365.
1096 . Khambata v. Khambata, AIR 1941 Bom 17: (1940) 42 Bom LR 945.
1097 . Bhagwati Singh v. Kashi Narain, AIR 1938 All 290(FB).
1098 . Punjab National Bank Ltd. v. Shamsher Singh, AIR 1936 Lah 696; Datar Kaur v. Ram Rattan, AIR 1920 Lah 456(FB) : (1920) 1
Lah 192.
1099 . Parmanandaswami v. Shunmugam Pillai, AIR 1949 Mad 822: 1949 MWN 194; Kuttalalinagam v. Chinnakannu, AIR 1952 Mad 18
[LNIND 1951 MAD 187]; Bansidar v. Pribhu Dayal, AIR 1954 Raj 1 [LNIND 1952 RAJ 143]; Muthu v. Mani, AIR 1956 Mad 580
[LNIND 1949 MAD 213]; Kunhiraman v. Madhavan Nair, AIR 1957 Mad 761 [LNIND 1956 MAD 187]: (1957) 2 MLJ 28 [LNIND 1956
MAD 187]; Paramananda v. Maheshwar Panda, (1960) ILR Cut 33.
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1100 . K.N. Gangappa v. A.M. Subramanya Mudaliar, AIR 1988 Mad 182 [LNIND 1986 MAD 362].
1101 . Dodla Narayana v. Velti Reddemma, AIR 1990 Andh Pra 147.
1102 . Ibid , 151, para 7.
1103 . Prabhat Bai v. Aravind Kumar , AIR 1987 Guj 160 [LNIND 1986 GUJ 90].
1104 . Pankaj Mahakud v. Tara Mahakud , AIR 1992 Ori 199 [LNIND 1992 ORI 117].
1105 . Tamil Nadu Mereantile Bank v. N. Poulose , 2007 (1) Ker LJ 238.
1106 . S. Balamurli v. K. Vikramanunni , AIR 2007 Ker 280 [LNIND 2007 KER 422]: (2007) 3 KLJ 112.
1107 . B.S. Ashok v. Investment Trust of India Ltd. , 2010 (2) AIR Kar R 396.
1108 . Gopichand v. Brahmo , AIR 1968 Del 101 [LNIND 1967 DEL 74]: (1967) 69 Punj LR 328; but see also Ulahannan Job v. Presidential Trust ,
AIR 1964 Ker 16: (1964) 2 Ker 200.
1109 . Jogendra Missir v. Ram Nandan , AIR 1968 Pat 218: 46 ILR Pat 1142.
1110 . Pattaramaiah v. Haji Ibrahim Essack & Sons , AIR 1959 Mys 94; dissenting from Kunhiraman v. Madhavan Nair , AIR 1957 Mad 761
[LNIND 1956 MAD 187]: (1957) 2 MLJ 28 [LNIND 1956 MAD 187]; Madhusudan v. Tribak , AIR 1961 Bom 23 [LNIND 1960 BOM
6]: (1960) ILR Bom 523 : 62 Bom LR 599; Ramchandra Iyer v. Thomas Mathai , AIR 1966 Ker 65 [LNIND 1964 KER 339]; W.M. Singh v.
A. Debota , AIR 1973 Gau 84: (1973) Assam LR 104; N. Mudalidar v. PJAM & Co. , AIR 1972 Mad 292 [LNIND 1972 MAD 3]; P.G.R.
Padayachi v. Mayavaram Financial Corpn. , AIR 1974 Mad 1 [LNIND 1973 MAD 8].
1111 . Prabhu Dayal v. Bhondu Mal , AIR 1938 Lah 692.
1112 . Harpal Singh v. Hiralal , AIR 1955 All 402 [LNIND 1954 ALL 221].
1113 . V.P. Madhavam Nambiar v. Chaldean Syrian Bank Ltd. , AIR 1955 Mad 409 [LNIND 1954 MAD 199]; approved in V. Ganesa Nadar v. K.
Chellathai Ammal , AIR 1989 Mad 8 [LNIND 1986 MAD 330].
1114 . J.J. Shankar v. W.M. Ismail , AIR 1981 AP 336.
1115 . V. Ganesa Nadar v. K. Chellathi Ammal , AIR 1989 Mad 8 [LNIND 1986 MAD 330].
1116 . J.J. Shankar v. W.M. Ismail , AIR 1981 AP 336.
1117 . K.A.L.R.M. Alagappan v. Rajaguru & Co. , AIR 1985 Mad 353 [LNIND 1984 MAD 327].
1118 . V.P. Madhavan Nambiar v. Chaldean Syrian Bank Ltd. , AIR 1955 Mad 409 [LNIND 1954 MAD 199]; approved in V. Ganesa Nadar v. K.
Chellathai Ammal , AIR 1989 Mad 8 [LNIND 1986 MAD 330].
1119 . Matha Gowder v. Kada Gowder , AIR 1954 Mad 81 [LNIND 1953 MAD 39]; Paramananda v. Maheshwar Panda , (1960) ILR Cut 33; Prahlad
v. Sakku Bai , AIR 1961 Bom 142 [LNIND 1960 BOM 29].
1120 . Atta Karim v. Mst. Bibi Habibai Soghra , AIR 1951 Pat 355; Jugal Kishore v. Pralhad Rai , AIR 1939 Pat 22; Jassawala v. Amulya Chandra , AIR
1940 All 494; Harpal Singh v. Hiralal , AIR 1955 All 402 [LNIND 1954 ALL 221]; Paramananda v. Maheshwar Panda , (1960) ILR Cut 33;
Madhavan Nambiar v. Chaldean Syrian Bank Ltd. , AIR 1955 Mad 409 [LNIND 1954 MAD 199]: (1955) 2 MLJ 121 [LNIND 1954 MAD
199], where it is observed that the question was not one of strict proof but of prima facie inference; but see IK Merchants Ltd. v. Indira
Prakash , AIR 1973 Cal 306 [LNIND 1973 CAL 13]; Kesava Pillai v. Ouseph Joseph , AIR 1977 Ker 27: (1976) 2 Ker 92.
1121 . V.K.S. Sivam v. Thirupathi Swami , AIR 1972 Mad 9 [LNIND 1971 MAD 142]: (1971) 2 Mad LJ 396.
1122 . V. Ganesa Nadar v. K. Chellathai Ammal , AIR 1989 Mad 8 [LNIND 1986 MAD 330].
1123 . M.A. Malik v. V.S. Thiruvengadaswami , AIR 1950 Mad 208 [LNIND 1949 MAD 118].
1124 . V. Velayudhan v. State Bank of India , AIR 1989 Ker 38 [LNIND 1988 KER 89].
1125 . Tussidas Mundhra v. Official Liquidator , AIR 1983 Cal 403 [LNIND 1982 CAL 298]; M.A. Malik v. S. Thiru Venugadaswamy , AIR 1950
Mad 208 [LNIND 1949 MAD 118] followed.
1126 . AIR 1967 SC 1342 [LNIND 1966 SC 314].
1127 . Venkatasubba Rao v. Sreeramalu , AIR 1949 Mad 470.
1128 . Madhavan Nambiar v. Chaldean Syrian Bank Ltd , AIR 1955 Mad 409 [LNIND 1954 MAD 199]: (1955) 2 Mad LJ 121; Khemchandra v.
Budh Singh , AIR 1961 Raj 243 [LNIND 1960 RAJ 11]: (1960) Raj 1355.
1129 . Ambadi v. Balan , AIR 1959 Ker 273 [LNIND 1958 KER 124]: (1958) Ker LT 801; Mathura Dutt v. Prem Ballabh , AIR 1961 All 19
[LNIND 1960 ALL 41].
96 Sunitha K.K. v. A.S. Ramesh , AIR 2010 Ker 184 [LNIND 2010 KER 469]: 2010 (3) Ker LT 501 [LNIND 2010 KER 469] (DB).
1130 . Ibid , at p. 191.
1131 . D. Viswanathan v. K. Karnataka Bank Ltd. , AIR 1988 Ker 274.
 Page 34 of 38
(IN) Mulla : The Code of Civil Procedure, 18th Edition

1132 . Ibid .
1133 . Jolly George Varghese v. Bank of Cochin , AIR 1980 SC 470 [LNIND 1980 SC 48].
1134 . P. Azeez Ahmad v. State Bank of India , AIR 1995 Mad 194 [LNIND 1994 MAD 571].
1135 . Subhash Chand Jain v. Central Bank of India , AIR 1999 MP 195 [LNIND 1998 MP 199].
1136 . Praful Chandra Ghosh v. Naresh Chandra Bose , AIR 1946 Cal 498: (1946) 50 Cal WN : (655) : 81 Cal LJ 302.
1137 . Seetharama Rao v. Raja Kumar , AIR 1961 Andh Pra 399.
1138 . Abdul Kaliq Khan v. Custodian of Evacuee Property , AIR 1954 Hyd 674.
1139 . T.N. Mathur v. State of Uttar Pradesh , (1993) Supp 1 SCC 722; Ram Narain Aggarwal v. State of Uttar Pradesh , (1983) 4 SCC 276 [LNIND
1983 SC 213].
1140 . C.S. Mani v. B. Chinnasamy , AIR 2010 SC 3600 [LNIND 2010 SC 815]: (2010) 9 SCC 513 [LNIND 2010 SC 815].
1141 . Ibid , at p. 3604.
1142 . Dhakuria Banking Corpn. Ltd. v. Surabala Debi , AIR 1953 Cal 610 [LNIND 1952 CAL 162].
1143 . Indian Overseas Bank v. Darbara Singh , (1997) 11 SCC 338.
1144 . Uttar Pradesh Act 24 of 1954 , s 2 and Schedule , Item 5 , Entry 4 (wef 30111954).
1145 . Birdichand v. Badasaheb , AIR 1927 Bom 52: (1927) 28 Bom LR 1322.
1146 . Champaklal v. Rayachand , AIR 1932 Bom 522: (1932) 34 Bom LR 1005.
1147 . Susila Devi v. Sridhar , AIR 1970 Ori 89 [LNIND 1969 ORI 111]: (1970) ILR Cut 911.
1148 . Satkari Banerjee v. Sushil Kumar Mukherjee , AIR 1951 Cal 577 [LNIND 1951 CAL 136].
1149 . Lalji Kunverji v. Heirs of Dungershi , AIR 1974 Guj 42 [LNIND 1973 GUJ 100].
1150 . Rani Brijraj Kumari v. Manoranjan Prasad Singh , AIR 1947 Pat 365: (1946) 25 Pat 550; Pannalal v. Mst Naraini .
1151 . Andi Vasudevan v. Bhagavathi Pillai Vasudevan , AIR 1963 Ker 263 [LNIND 1962 KER 124].
1152 . Jayavanth Rai v. Narsing Sakaram , AIR 1923 Bom 414.
1153 . Madhavan v. Choorppa , AIR 1934 Mad 562 [LNIND 1934 MAD 49]: (1934) Mad WN 800.
1154 . Chekka Suryanarayana , Receiver of RB Pydah Venkatachalapati Estate v. Ynumala Rajyalakashmi Devi , AIR 1950 Mad 407 [LNIND 1949
MAD 315].
1155 . Chandravathi Bai v. Chaganlal , (1960) ILR 2 AP 449; Venkatachal v. Umayal Achi , AIR 1958 Mad 395 [LNIND 1957 MAD 238].
1156 . Daw Toke v. Maung Ba Han , AIR 1927 Rang 127: (1927) 5 Rang 44.
1157 . Tamiz Bano v. Nand Kishore , AIR 1927 All 459: (1927) 49 All 645.
1158 . Jaychandra v. Satischandra , AIR 1930 Cal 762: (1931) 58 Cal 170; Greender Chandra v. Mackintosh , (1879) 4 Cal 897; Debi Prosanna v. Indra
Narain , AIR 1941 Cal 27: (1941) 45 Cal WN 78.
1159 . Sandhya Sisodiya v. Syndicate Bank , AIR 2007 MP 228 [LNIND 2006 MP 772]: 2007 (52) All Ind Cas 528 (Gwalior Bench).
1160 . Veerasokkaraju v. Papiah , (1903) 26 Mad 792; Haji Saboo Sidick v. Ally Mahomed , (1906) 30 Bom 27.
1161 . Ratna alias Ratnavati v. Syndicate Bank , (1995) 1 SCC 407.
1162 . Mohinuddin v. Sayeed Unissa , (1961) 2 AP 350 : (1961) 1 AP WR 241 : (1961) AP LT 213; Tamiz Bhano v. Nand Kishore , AIR 1927 All 459:
(1927) 49 All 645; Motoram v. Daw , AIR 1934 Rang 196; Ranjit v. Narmadid , AIR 1931 Nag 173.
1163 . Mohinduddin v. Syed Unnissa , (1961) 2 AP 350 : (1961) 1 AP WR 241 : (1961) AP LT 213.
1164 . Venkatachalam v. Umayal Achi , AIR 1958 Mad 395 [LNIND 1957 MAD 238]: (1958) 2 Mad LJ 26 : 71 LW 126; Lakshmilal v. Onkarlal ,
AIR 1955 Raj 33 [LNIND 1954 RAJ 16].
1165 . Chandravath Bai v. Chaganlal , (1960) ILR 2 AP 449.
1166 . Lakshmilal v. Onkarlal , AIR 1955 Raj 33 [LNIND 1954 RAJ 16]; Venkatachalam v. Umayal Achi , AIR 1958 Mad 395 [LNIND 1957
MAD 238]: (1958) 2 Mad LJ 26 : 71 LW 126; Amir v. Saidanbai , AIR 1960 MP 68 [LNIND 1959 MP 41].
1167 . Subramania v. Ramabadra , AIR 1956 TC 88.
1168 . Ram Kumar v. Deenanath , AIR 2002 Chhat 1.
1169 . Ramsingh v. Khirodhan Devi , AIR 1963 Pat 151.
1170 . Dinamoni Chaudhurani v. Elahatdut Khan , (1904) 8 Cal WN 843. See s 2(11) and notes.
 Page 35 of 38
(IN) Mulla : The Code of Civil Procedure, 18th Edition

1171 . Sheonarayan Harlal v. Kanhaiyalal , AIR 1948 Nag 168.

1172 . Upperi Janaki v. Balakrishnan Nambyar , AIR 1981 Ker 52.
1173 . Ram Charan v. Hanifa , AIR 1932 All 591: (1932) 54 All 796.
1174 . (1940) 42 Bom LR 1066 : 1076.
1175 . Kadirvelusami v. The Eastern Development Corpn. , AIR 1924 Mad 530 [LNIND 1923 MAD 271] (FB) : (1924) 47 Mad 411; Manzur Hussain
v. Ram Rattan , AIR 1936 Lah 236; Shahanshah Begum v. Akbar Husain , AIR 1938 Oudh 45: (1938) 13 Luck 689; Phool Kunwar v. Rikhi Ram
, AIR 1935 All 261.
1176 . Karunambal v. Chellaya , AIR 1952 Mad 114 [LNIND 1951 MAD 82]: (1951) 2 Mad LJ 395 : 64 LW 845 : 1951 MWN 729.
1177 . Ram Piari v. Diwan Shib Ram , AIR 1934 Lah 659.
1178 . P. Chettyar v. T. Chettyar , AIR 1934 Rang 162: (1934) 12 Rang 602.
1179 . Allahabad Bank v. R.S.A. Singh , AIR 1976 All 447.
1180 . B.S. Ashok v. Investment Trust of India : 2010 (2) AIR Kar R 396.
1181 . Laxmidhar Sahu v. Padmini Tripathi , AIR 1991 Ori 9 [LNIND 1990 ORI 136].
1182 . Chekuri Venkataraju v. Kazi Nazeeruddin , AIR 1983 Andh Pra 431 (DB).
1183 . Kolaremathu v. Madhavi , AIR 1928 Mad 243 [LNIND 1927 MAD 157]: (1927) Mad WN 894.
1184 . Kaliappan v. Somanna , AIR 1927 Mad 197 [LNIND 1926 MAD 272].
1185 . Amarchand v. Paramanand , AIR 1934 All 474.
1186 . Bibuti Bhusan Ray v. Naredra Narayana Ghose , AIR 1951 Cal 228.
1187 . Snat Chandra Deb v. Bichitrananda Shahu , AIR 1951 Ori 212: (1951) ILR Cut 413.
1188 . 73 LW 640 : AIR 1961 Mad 428 [LNIND 1952 MAD 69].
1189 . M. Metilda v. Kunjiram , AIR 1969 Ker 149 [LNIND 1968 KER 80].
1190 . Daya Ram v. Shyam Sundari , AIR 1965 SC 1049 [LNIND 1964 SC 221].
1191 . Mohd. Sulaiman v. M. Ismail , AIR 1966 SC 792 [LNIND 1965 SC 229]: (1966) 1 SCR 937 [LNIND 1965 SC 229].
1192 . Shanmugham v. Govindaswamy 73 LW 640 : AIR 1961 Mad 428 [LNIND 1952 MAD 69]; Amarchand v. Paramanand , AIR 1934 All 474;
Jharu v. Pardhan , AIR 1937 Lah 277; Krishnavathi v. Gunja , AIR 1941 Pat 299; Bibuti Bushan Roy v. Narendra Narayan , AIR 1951 Cal 228;
Mst. Karam Kaur v. Matwal Chand & anor , AIR 1933 Lah 380; Chacko Pyle v. Iype Varghese , AIR 1956 TC147 [LNIND 1955 KER 45].
1193 . Manjappa v. R. Bhandary , AIR 1968 Mys 202: (1967) 2 Mys LJ 192.
1194 . Pannalal v. Narayani , AIR 1952 SC 170 [LNIND 1952 SC 16]: (1952) SCJ 211 [LNIND 1952 SC 16].
1195 . Bijaj Rai Singh v. Ram Padarnath , AIR 1936 Oudh 139.
1196 . Rao Bhimsingh v. Shersingh , AIR 1948 PC 1: 74 IA 247 : (1947) 52 Cal WN 109 : 50 Bom LR 1.
1197 . Chunilal v. Bai Mani , (1918) 42 Bom 504. Approved in Dwarka Das v. Krishna Kishore , AIR 1921 Lah 34: (1921) 2 Lah 114, and Jagannath
v. Moti Lal , AIR 1923 All 539: (1923) 45 All 455.
1198 . Jamburao v. Annapa , AIR 1941 Bom 23: (1841) Bom 177 : 42 Bom LR 1066 (FB).
1199 . Meyappan v. Meyappan , AIR 1924 Mad 571 [LNIND 1923 MAD 178]: (1924) 40 Mad LJ 471; Shankerrao Deshmukh v. Vinayak , AIR
1951 Nag 307: (1950) Nag 806.
1200 . Rao Bhimsingh v. Shersingh , AIR 1948 PC 1: 74 IA 247 : (1947) 52 Cal WN 109 : 50 Bom LR 1; Ganesh v. Narayana , AIR 1931
Bom 484: (1931) 55 Bom 709.
1201 . Chunilal v. Bai Mani , (1918) 42 Bom 504.
1202 . Jamburao v. Annapa , (1940) 42 Bom LR 1066 : AIR 1941 Bom 23(FB).
1203 . Jagannath v. Moti Lal , AIR 1923 All 539: (1923) 45 All 455.
1204 . Jamburao v. Annappa , AIR 1941 Bom 23(FB) : (1940) 42 Bom LR 1066.
1205 . Rao Bhimsingh v. Shershingh , AIR 1948 PC 1: 74 IA 247 : (1947) 52 Cal WN 109 : 50 Bom LR 1.
1206 . R.K. Iyengar v. T. Pillai , AIR 1971 Mad 303.
1207 . Lakshamadu v. Ramudu , AIR 1939 Mad 687.
1208 . 4 IC 492.
 Page 36 of 38
(IN) Mulla : The Code of Civil Procedure, 18th Edition

1209 . (1911) 2 Mad WN 386.

1210 . Gopalakrishna v. Subramanaya Iyer , (1961) Ker LJ 901 : (1961) Ker LT 1126.
1211 . Rao Bhimsingh v. Sher Singh , AIR 1948 PC 1: 74 IA 247 : (1947) 52 Cal WN 109 : 50 Bom LR 1; Ganesh v. Narayan , AIR 1931 Bom 484:
(1931) 55 Bom 709; Meyappan v. Meyappan , AIR 1924 Mad 571 [LNIND 1923 MAD 178]: (1924) 46 Mad LJ 471.
1212 . Malak Chand v. Hira Lal , AIR 1935 Oudh 510(FB) : (1935) 11 Luck 449; Phagu Mal v. Dhani Ram , AIR 1934 All 101; Chotey Lal v.
Ganpat Rai , AIR 1934 Bom : (1941) 43 Bom LR 232.
1213 . Vithaldas v. Shrinivasrao , AIR 1934 Bom 116: (1934) 58 Bom 218; Ramabai v. Government of Bombay , (1941) 43 Bom LR 232.
1214 . Vishwanath v. Keshavbhat , AIR 1934 Bom 119: (1934) 58 Bom 273.
1215 . Thaj Mahomed Saib v. Balaji Singh , AIR 1934 Mad 173 [LNIND 1933 MAD 233]: (1934) 57 Mad 440.
1216 . Sheo Gopal v. Firm Ganesh Dass Ram Gopal , AIR 1937 Oudh 327: (1938) 13 Luck 241; Veerappa Chettiar v. Ramaswami Iyer ILR 27 Mad
106; Narasinbhat v. Chenappa ILR 2 Bom 479.
1217 . Govindamma v. Bullemma , AIR 1962 Andh Pra 243 : (1962) 1 Andh WR 151 : (1962) 1 Andh LT 240; affirming Govindamma v. Bullemma
,AIR 1957 Andh Pra 47.
1218 . Jaganath Prasad v. Sitaram ILR 11 All 302.
1219 . Narasinbhat v. Chenappa ILR 2 Bom 479.
1220 . Raja Ram v. Raja Baksh , AIR 1938 PC 7: (1938) 13 Luck 61 : 40 Bom LR 277.
1221 . Binda Prasad v. Raja Ballabh , AIR 1926 All 220: (1926) 48 All 245.
1222 . Devi Das v. Jada Ram , AIR 1933 Lah 857: (1934) 15 Lah 50.
1223 . Shiekh Karoo v. Rameshwar , AIR 1923 Pat 143: (1921) 6 Pat LJ 451.
1224 . Narayan v. Sagunabai , AIR 1925 Bom 193: (1925) 49 Bom 113.
1225 . Ramanand v. Chhotey Lal , AIR 1923 All 124: (1922) 20 All LJ 969.
1226 . Umed v. Goman Bhaiji , (1896) 20 Bom 385; Shivram v. Sakharam , (1909) 33 Bom 39; Amar Chandra v. Sebak Chand , (1907) 34
Cal 642; Hanmant v. Ganesh , (1919) 43 Bom 612 : 626.
1227 . Ravi Varma v. Koman , (1882) 5 Mad 223; Ariativdra v. Dorasami , (1888) 11 Mad 413; Periasami v. Seetharama , (1904) 27 Mad
243 (FB); Venkatarama v. Senthivelu , (1890) 13 Mad 265; Lachmi Narain v. Kunji Lal , (1894) 16 All 449; Jagannath v. Sita Ram , (1889) 11 All
302; Narsingha v. Lalji , (1901) 23 All 206.
1228 . Bhadri Venkataswami v. Mandi Tata Reddy , AIR 1947 Mad 162: (1947) Mad 463.
1229 . Pannalal v. Narayani supra; Jakati v. Borkar , AIR 1959 SC 282 [LNIND 1958 SC 108]: [1959] SCR 1384 [LNIND 1958 SC
108] : (1959) SCJ 719.
1230 . Atul Krishna v. Lal Nanaji , AIR 1935 Pat 275(FB) : (1935) 14 Pat 732.
1231 . Govindaram Dwarkadas v. Nathanmal , AIR 1937 Nag 45: (1938) ILR Nag 10; Jai Narain v. Sonaji , AIR 1938 Nag 24: (1938) ILR Nag 136.
1232 . Surajmal v. Motiram , AIR 1940 Bom 22.
1233 . AIR 1937 Mad 610 [LNIND 1937 MAD 85] (FB) : (1937) ILR Mad 888 : (1937) 2 Mad LJ 251; followed in Venkataratna v.
Venkatasubbiah , AIR 1950 Mad 136 [LNIND 1949 MAD 73] (1949) 2 Mad LJ 539.
1234 . Tirumalaimuthu v. Subramanya , AIR 1937 Mad 458 [LNIND 1936 MAD 320]: (1937) 1 Mad LJ 243; Kuppan Chettiar v. Masa
Goundan , AIR 1937 Mad 424 [LNIND 1936 MAD 396]: (1937) 1 Mad LJ 249; Official Receiver v. Seshiah , AIR 1941 Mad 262 [LNIND
1940 MAD 261]: (1940) 2 MLJ 860 [LNIND 1940 MAD 261]; Ramanathan v. Ramanathan , (1949) 2 Mad LJ 751.
1235 . AIR 1952 SC 170 [LNIND 1952 SC 16]: (1952) SCR 544 [LNIND 1952 SC 16] : 1952 SCJ 211 [LNIND 1952 SC 16]. For
later decisions; Suryanarayana v. Ganesulu , AIR 1954 Mad 203 [LNIND 1953 MAD 33]; Chinnaramiah v. Venkan Raju , AIR 1954 Mad
864 [LNIND 1954 MAD 51]: (1954) ILR Mad 834 : (1954) 2 Mad LJ 176; Kumaji Sarimal v. Devadatan , AIR 1958 AP 216; Padmavathi v.
Manilal , AIR 1959 Bom 141 [LNIND 1958 BOM 28].
1236 . Sivagiri Zamindar v. Teruvengada , (1884) 7 Mad 339; Lachmi Narain v. Kunji Lal , (1894) 16 All 449; Peary Lal v. Chandi Charan ,
(1906) 11 Cal WN 163.
1237 . Rao Bhimsingh v. Shersingh , AIR 1948 PC 11: 74 IA 247 : (1947) ILR Nag 830 : (1947) 52 Cal WN 109 : 50 Bom LR 1.
1238 . Jakati v. Borkar , AIR 1959 SC 282 [LNIND 1958 SC 108]: [1959] SCR 1384 [LNIND 1958 SC 108] : (1959) SCJ 719.
1239 . Chander Pershad v. Sham Koer , (1906) 33 Cal 676; Umamaheswara v. Singaperumal , (1885) 8 Mad 376; Hira Lal v. Parmeshar ,
(1899) 21 All 356.
1240 . Ramkrishna v. Vinayak , (1910) 34 Bom 354; Indar Pal v. Imperial Bank , (1915) 37 All 214.
1241 . Shio Das v. Karam Chand , AIR 1934 Lah 438: (1934) 15 Lah 772.
 Page 37 of 38
(IN) Mulla : The Code of Civil Procedure, 18th Edition

1242 . AIR 1952 SC 170 [LNIND 1952 SC 16]: [1952] SCR 544 [LNIND 1952 SC 16].
1243 . Chandmal Dogarmal Shelot v. Shantilal Valchand Shelot , AIR 2003 Bom 445 [LNIND 2003 BOM 496].
1244 . Gendmal Amolakchand v. Laxman Tanba , AIR 1945 Nag 86: (1944) ILR Nag 852; Abdul Ali v. Mirza Vigar Ali Beg , AIR 1949
Oudh 37: (1947) 23 Luck 77; Dattatraya v. Mahadaj , (1892) 16 Bom 528.
1245 . Bhagwan Singh v. Babu Shiv Prasad , AIR 1974 MP 12 [LNIND 1973 MP 55].
1246 . Ragha v. Ramji , AIR 1974 Guj 36.
1247 . Sevakram Motiram v. Chunilal Bhagchandra , AIR 1951 Nag 359.
1248 . Prakash Nathyaba Bhosale v. Laxman Ganaba Bhosale , AIR 2003 Bom 41 [LNIND 2002 BOM 675].
1249 . Arun Ashruba Mhaske v. Atmaram Dattu , 2007 (4) Mah LJ 157 : 2007 (5) All MR 167.
1250 . Jogadeshwari v. Kailash Chandra , (1879) 24 Cal 725 (FB).
1251 . Radha Kishan v. Bhola , AIR 1934 Pat 365: (1934) 13 Pat 637; Priyanath Roy v. Sreedhar Chandra Roy , AIR 1945 Cal 28: (1945) Cal WN
223.
1252 . AIR 1931 Cal 93: (1931) 58 Cal 122; Fulchand v. Vaman Rao , AIR 1951 Hyd 86: (1951) ILR Hyd 436; Pratap Singh v. Karpal
Singh 3 Pepsu LR 173.
1253 . Sewakram v. Chunnilal , AIR 1951 Nag 359: (1951) ILR Nag 558.
1254 . Ramakrishnacharya v. Sreenivasacharya , AIR 1989 Kant 30 [LNIND 1987 KANT 208] (DB).
1255 . Krishnabai v. Krishna Rao Janantaro Desai , AIR 1995 Ker 172 [LNIND 1994 KER 208].
1256 . Debi Singh v. Sheo Lall Singh , (1889) 16 Cal 203; Jogadeshwari v. Kailash Chandra , (1897) 24 Cal 725 (FB); Roy Kiran v. Rama Nath
, AIR 1931 Cal 104: (1931) 34 Cal WN 895; Srinivasathathachar v. Srinivasathathachar , AIR 1933 Mad 259 [LNIND 1932 MAD 180]:
(1933) 56 Mad 443.
1257 . AIR 1933 Mad 259 [LNIND 1932 MAD 180]: (1933) 56 Mad 443; Abdul Razak v. Shreenath Ghosh , AIR 1931 Cal 93: (1931)
58 Cal 122.
1258 . AIR 1933 Mad 259 [LNIND 1932 MAD 180]: (1933) 56 Mad 443; Abdul Razak v. Sreenath Ghosh , AIR 1931 Cal 93: (1931)
58 Cal 122.
1259 . Tikaram v. Hansraj , AIR 1954 Nag 241.
1260 . Khemchand Shanker Choudhary v. Vishnu Hari Patil , (1983) 1 SCC 18 [LNIND 1982 SC 186]; Anandi Devi v. Mahendra Singh ,
AIR 1997 Pat 7.
1261 . Parbhudas v. Shankarbhai , (1887) 11 Bom 662.
1262 . Eknathbuwa Gyanoba Bharati (deceased by LR) v. Sheshabai Laxman Buwa , 2009 (3) AIR Bom R 208 : 2008 (6) All MR 762
(Aurangabad Bench).
1263 . Mannubai Nandgopal Pande v. Shivprasad Nandlal Pande , (1979) Mah LJ 252; Chandmal Dongarmal Shelot v. Shantilal Valchand Shelot
, AIR 2003 Bom 445 [LNIND 2003 BOM 496].
1264 . Chandmal Dongarmal Shelot v. Shantilal Valchand Shelot , AIR 2003 Bom 445 [LNIND 2003 BOM 496].
1265 . Kusum Dashrath Kharmare v. Popat Madhau Gangarde , 2008 (1) Mah LJ 267 : 2008 (1) All MR 576 (Aurangabad Bench).
1266 . Manjundappa v. Sonnappa , AIR 1965 Mys 73; Rupan Rai v. Subh Karan , (1919) 41 All 207; Asman Singh v. Tulsi Singh , (1917) 2
Pat LJ 221.
1267 . Putta Kamaiah v. State of Karnataka , AIR 1990 Kant 79 [LNIND 1989 KANT 271].
1268 . Khem Chand v. Vishnu , AIR 1983 SC 124: (1983) 1 SCC 18 [LNIND 1982 SC 186]. See O 20, r 18.
1269 . Ningappa Balappa v. Abashkhan Gouskhan , AIR 1956 Bom 345 [LNIND 1955 BOM 229].
1270 . Dev Gopal v. Vasudev , (1888) 12 Bom 371 : 376; Ganoji v. Dhondu , (1890) 14 Bom 450; Purshottam v. Balkrishna , (1904) 28
Bom 238; Ramchandra v. Krishnaji , (1916) 40 Bom 118 : 12425; Timmana v. Govind , AIR 1926 Bom 258: (1926) 28 Bom LR 523.
1271 . Gendamal Amolakchand v. Laxman Tanba , AIR 1945 Nag 86: (1944) ILR Nag 852; Krishnaji v. Damodar , (1903) 5 Bom LR 648.
1272 . N.R. Patil v. Kariappa , AIR 1965 Mys 46.
1273 . Krishnaji v. Damodar , (1903) 5 Bom LR 648.
1274 . Narasu v. Narayanan 1958 Mys 718 : AIR 1959 Mys 233.
1275 . Prabudayal v. Sub-Divisional Officer, Karvi , AIR 1958 All 673 [LNIND 1958 ALL 7].
1276 . Venkataraghava v. Venkata Hanumantha , AIR 1945 Mad 336 [LNIND 1945 MAD 132] (FB) : (1946) ILR Mad 10; Dev Gopal
v. Vasudeo , (1888) 12 Bom 371; Shrinivas v. Gurunath , (1891) 15 Bom 527; Bhimangauda v. Hanmat , (1918) 42 Bom 689.
 Page 38 of 38
(IN) Mulla : The Code of Civil Procedure, 18th Edition

1277 . Chinna v. Krishnavanamma , (1896) 19 Mad 435.

1278 . Paygonda v. Jingonda , AIR 1968 Bom 198 [LNIND 1967 BOM 12]: 69 Bom LR 579.
1279 . Ranjit Kumar Chakraborty v. Jiban Chandra Chakraborty , AIR 2001 Gau 73 [LNIND 2000 GAU 320].
1280 . Secretary of State v. Nundan Lall , (1884) 10 Cal 435.
1281 . Dattatraya v. Mahadaji , (1892) 16 Bom 528.
1282 . Ram Dayal v. Megu Lal , (1884) 6 All 452; Ram Khelawan v. Sriram , AIR 1952 All 191.
1283 . Muttuvayyangar v. Kudalalagayyanagar , (1883) 6 Mad 97; Muttuchudambar v. Karupa , (1884) 7 Mad 382.
1284 . Maung Po Nyn v. Ma Saw Tin , AIR 1926 Rang 80: (1927) Rang 206.
1285 . Abdul Razak v. Shreenath Ghosh , AIR 1931 Cal 93: (1931) 58 Cal 122; Roy Kiran v. Rama Nath , AIR 1931 Cal 104: (1931) 34
Cal WN 895.
1286 . Rameswarnath v. Jageshwarnath , AIR 1953 Punj 250: (1954) ILR Punj 372.
1287 . Ramrathibai v. Suraj Pal , AIR 1995 Bom 445 [LNIND 1995 BOM 249]; Sanna Palaiah v. Soncha Boraiah , AIR 1998 Kant 87
[LNIND 1997 KANT 75].

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Arrest and Detention

S. 55. Arrest and detention.

(1) A judgment-debtor may be arrested 1288 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 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 1289 [State Government] may appoint
for the detention of persons ordered by the Courts of such district to be detained :

Provided, firstly, that for the purpose of making an arrest under 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 dwelling-house is in the occupancy of the judgment-debtor and he
refuses or in any way prevents access thereto, but when the officer authorised to
make the arrest had 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 :

Provided, thirdly, that if the room is in the act ual occupancy of a woman who is
not the judgment-debtor and who according to the customs of the country does
not appear in public, the officer authorised to make the 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 facility for withdrawing, may enter the room for
the purpose of making the arrest :

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 of the arrest to the officer
arresting him, such officer shall at once release him.
 Page 2 of 10
(IN) Mulla : The Code of Civil Procedure, 18th Edition

(2) The 1290 [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 1291
[State Government] in this behalf.
(3) 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 declared an insolvent, and that he 1292 [may 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.
(4) Where a judgment-debtor expresses his intention to apply to be declared an
insolvent and furnishes 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 1293 [may release] him from arrest, and, if he fails so to apply and to appear,
the Court may either direct the security to be realized or commit him to the civil
prison in execution of the decree.

HIGH COURT AMENDMENT

Calcuttta. In clause (1) insert the words Calcutta or after the words Civil prison
of and before the words the district in which; and omit clauses (3) and (4), vide
Cal. Gaz., Pt. I, dated April 20, 1967.

1. Changes introduced by the section. This section corresponds with s 336 of the Code
of Civil Procedure 1882 except in the following particulars:
(i) Any outer door of a dwelling-house may now be broken to effect the arrest of a
judgment-debtor in execution of a decree. But the dwelling house must be in the
occupancy of the judgment-debtor. 1294
(ii) The security under sub-s (4) must not only be for the filing by the judgment-debtor
of a petition in insolvency, but also for his appearance, when called upon, in any
proceeding, upon the application in insolvency or upon the decree in execution of
which he was arrested. 1295
(iii) A power has been conferred on the local government to exempt certain persons
from arrest [see sub-s (2)].
(iv) The words Provincial Government in sub-ss (1) and (2) were substituted for the
words Local Government and the words Official Gazette in sub-s (2) were
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substituted for the words local Official Gazette by para 4 of the Government of
India (Adaptation of India Laws) Order 1937.

2. Arrest of Judgmentdebtor. Where the decree holder stated that judgment-debtor was
owner of valuable land, the statement of another witness corroborated the version of the
decree holder but the judgment debtor, without filing documents relating to said land, gave
an evasive reply by stating that he cultivated the same land as the lessee, so the executing
court without believing his version, directed for his arrest, the said finding of executing
court could not be interfered with in revision. 1296

3. Breaking open of outer door. The outer door may be broken open where a dwelling
house is in the occupancy of the judgment-debtor, and he refuses or prevents access
thereto. But this does not authorise him the breaking open of the outer door of a dwelling
house merely because the judgment-debtor is to be found in that house.

4. Sub-section (2). The sub-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.

5. Sub-section (4): Insolvency after order for arrest. If a judgment-debtor against

whom an order for arrest has been made, is adjudicated insolvent without a protection
order, the adjudication does not prevent his arrest, and the court of execution must require
the judgment-debtor to give security under the latter part of sub-s (4), that he will appear
when called upon in any proceeding in insolvency or upon the decree in execution of
which he was arrested. 1297

Where a judgment-debtor, apprehending his arrest in connection with execution of decree,

filed an application under the Provincial Insolvency Act, 1920, it was held by Andhra Pradesh
High Court that such application would be premature in view of the specific provision of s
55 (3) of the Code.1298

In case of execution of a money decree, the duty of the Court to inform the judgment-
debtor that he may apply to be declared insolvent arises only after the judgment-debtor is
arrested and brought before the Court. Thus, where the arrest of the judgment-debtor did
not take place on the date on which arrest warrant was issued, s 52 of the Provincial Insolvency
Act, 1920 is not attracted and consequently pendency of Insolvency petition filed to
adjudicate the judgment-debtor as insolvent would not affect the execution
proceedings.1299

6. Sub-section (4): Expresses his intention to apply to be declared insolvent. This

expression of intention is equivalent to a statement made to the judgment-creditor by the
judgment-debtor of an intention to suspend payment of his debts. It is, therefore, an act of
insolvency as defined in s 9 of the Presidency-towns Insolvency Act, 1909. 1300
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7. Sub-section (4): Within one month. The court has no power to extend the period of
one month for applying for adjudication. Section 148 does not apply to such a case. 1301
The word month is introduced into this section by way of defining the obligation of the
surety. The intention expressed is to be declared insolvent and not to he declared insolvent
at the end of a month provided nothing does turn up. 1302

8. Sub-section (4): Discharge of surety. Sub-section (4) makes it clear that where a
security bond is passed in the terms of that sub-section, that is, where a surety undertakes:
(i) that the judgment-debtor will within one month apply to be declared an insolvent;
and
(ii) will appear, when called upon, in any proceeding upon the application or upon the
decree in execution of which he was arrested, the security will be realised when
there is a failure to comply with either condition. 1303 The surety, however, is not
released by the mere filing by the judgment-debtor of the petition in insolvency; the
security continues until a final order is made on the petition. 1304 A bona fide petition
is a sufficient compliance with the condition of the bond. When a bona fide petition
was presented within one month but was rejected as not being in proper form, and
a fresh petition was presented later and the debtor was adjudged insolvent, the
surety was discharged. 1305 A security-bond furnished for the appearance of the
judgment-debtor is in the nature of a continuing guarantee and when the surety
produces the judgment-debtor before the court and requests to be absolved from
further liability under the bond, the court should not refuse to grant the prayer, 1306
but he cannot be discharged unless he has fully carried out his undertaking. 1307

A surety under this section is discharged by the death of judgment-debtor before breach of
either of the two conditions mentioned above. 1308 But the death of the judgment-debtor
after the first condition has failed, namely, the undertaking to apply to be declared an
insolvent within one month, cannot affect the suretys liability with regard to that
condition. 1309 A surety is also discharged if the execution proceedings are struck off, 1310
or dismissed for default of appearance even though they are subsequently restored, 1311 but
not if liability had already accrued under the bond by a breach of either of the two
conditions before the proceedings were struck off. 1312 If the court makes an erroneous
order discharging a surety, the decree-holder may apply for revision of the order, but
cannot treat it as a nullity. 1313 When a person executes a surety-bond, undertaking to
produce a judgment-debtor in the court on a particular day, the mere fact that the
judgment-debtor is suffering from fever on that day does not absolve the surety from
liability, when the illness is not so serious as to render his appearance in court physically
impossible. 1314

Sub-section (4) provides that if the judgment-debtor fails to apply or to appear, the court
may either direct the security to be realised or commit the judgment-debtor to prison. This
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is an alternative and not a concurrent remedy. It does not mean that the court can proceed
both against the surety and the judgment-debtor. If the surety is proceeded against and the
amount is recovered from him, the judgment-debtor is committed to jail, in execution. If
the judgment-debtor is committed to jail, the position is just the same as if the surety had
never come forward. 1315 But the mere fact that the judgment-debtor is rearrested, 1316 or
that a warrant is issued against him, is not sufficient of itself to discharge the surety. 1317

9. Realisation of security. See s 145.

See O 21, r 40 (proceedings on appearance of judgment-debtor in obedience to notice or

after arrest).

A woman cannot be arrested or detained in civil prison under O 38, r 1 (arrest before
judgment). If under s 56 of the Code of Civil Procedure, the court cannot order the arrest or
detention, in civil prison, of a woman in execution of a decree for the payment of money,
it cannot certainly order her arrest in a suit filed for the recovery of money, where a decree
is yet to be passed. 1318

S. 56. Prohibition of arrest or detention of women in execution of decree for money.

Notwithstanding anything in this Part, the Court shall not order the arrest 1319 or detention
in the civil prison of a woman in execution of a decree for the payment of money.

Security for Costs. This section provides that a woman shall not be arrested in execution
of a decree for the payment of money. At the same time, if the plaintiff is a woman and
her suit is for the payment of money, she may be required to give security for the
defendants costs. 1320

S. 57. Subsistence allowance.

The State Government may fix scales, graduated according to rank, race and nationality, of
monthly allowances payable for the subsistence of judgment-debtors.

Subsistence allowance (O 21 r 39).

HIGH COURT AMENDMENT

Calcutta. Substitute the words The High Court may, subject to the approval of the State
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Government for The State Government may. Omit the word monthly between the words
of and allowances vide Cal. Gaz., Pt. I, dated April 20, 1967.

S. 58. Detention and release.

(1) Every person detained in the civil prison in execution of a decree shall be so
detained,
(a ) where the decree is for the payment of a sum of money exceeding 1321 [five
thousand rupees ], for a period not exceeding three months, and
1322 [(b ) where the decree is for the payment of a sum of money exceeding two
thousand rupees, but not exceeding five thousand rupees, for a period not
exceeding six weeks]:

Provided that he shall be released from such detention before the expiration of
the said period of detention,

(i ) on the amount mentioned in the warrant for his detention being paid to the
officer in charge of the civil prison, or
(ii ) on the decree passed against him being otherwise fully satisfied, or
(2) A judgment-debtor released from detention under this section shall not merely by
reason of his release be discharged from his debt, but he shall not be liable to be re-
arrested under the decree in execution of which he was detained in the civil prison.

abc

1. Alteration in the Section. In cl (a) of sub-s (1), the words fifty rupees for a period of
six months and were replaced by one thousand rupees, for a period not exceeding three
months by the Code of Civil Procedure (Amendment) Act, 1976 (w.e.f. 1-2-1977). By
subsequent amendment by the Code of Civil Procedure (Amendment) Act, 1999, vide its s 5,
the words one thousand rupees were replaced by five thousand rupees. This amendment
was effective from 1 July, 2002.

By the Code of Civil Procedure (Amendment) Act, 1999, vide its s 5, the words two thousand
rupees in sub-s (1A) were inserted in place of five hundred rupees.

In cl (b) of sub-s (1), the words five hundred rupees have been replaced by two thousand
rupees, and the words one thousand rupees by five thousand rupees by s 5 by the said
Amending Act of 1999.
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The amended section is enforceable from 1 July 2002. It shall not apply to or affect any
person detained in the civil prison, in execution of the decree before the commencement
of the amended provision.

The effect of the amended provision is that a person could be detained in the civil prison
in execution of a decree for payment of money, provided that the amount of money decree
is exceeding Rs 2000. The period of detention is dependent upon the amount of decree.
Where the amount of money decree is exceeding Rs 2000 but not exceeding Rs 5000, the
imprisonment cannot exceed six weeks. Where the amount of money decree is exceeding
Rs 5000, the period of imprisonment cannot exceed three months.

2. Period of detention in jail. The section as it stood prior to its amendment, by the Code
of Civil Procedure (Amendment) Act, 1976 provided that the period of detention shall be:
(i) six months the amount of the decree exceeded Rs 50; and
(ii) six weeks in any other case.

The words were thus such that the court had no discretion to fix shorter periods than
those prescribed in the section. 1325 The Amending Act of 1976, first raised the limit to Rs
1000 and secondly, provided that where it does not exceed Rs 500 no detention in civil
prison shall be ordered. Furthermore the words not exceeding three months and not
exceeding six weeks gave discretion to the court to order detention for any period not
exceeding the maximum provided in the section. The amended sub-s (1A) clarified that no
detention can henceforth be ordered where the total amount of the decree does not exceed
Rs 500. According to the Patna High Court, the amended sub-s (1A) applies even to
pending cases, that is, to applications filed when the unamended section was in force but
which were pending on 10 September, 1976 when the amended section came into force.
1326 Where, however, the decretal amount is more than Rs 500, but does not exceed Rs

1000, the maximum period of detention is six weeks. Where the amount of the decree
exceeds Rs 1000, the period of detention cannot exceed three months. 1327 A judgment-
debtor who has been arrested and detained in civil prison in execution of a decree payable
in instalments cannot again be arrested in execution of the same decree in respect of
subsequent instalments, as there is only one decree, though payable by instalments. 1328

It has been held by the Calcutta High Court that under no circumstances a person can be
detained in a civil prison for execution of a decree beyond a period of three months. Since
the law sanctions detention only upto to three months, detention beyond this period
would be violative of 21 of the Constitution of India. Moreover, s 58 (2) specifically lays down
that such release would not be construed as discharge of his debts, it will not affect the
interests of the decree-holder. In any case, it is open to the decree-holder to initiate
appropriate proceedings for attachment of the properties of the judgment-debtor.1329
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3. Re-arrest. The immunity of judgment-debtor from a second arrest depends not only
upon his having been arrested, but upon his having been detained in jail under the arrest.
Thus, where a judgment-debtor, while act ing as a pleader in court, was arrested and
discharged on the ground that he was exempt from arrest under s 642 of the Code of Civil
Procedure 1882 (now s 135 CPC, 1908), it was held that he was liable to be re-arrested in
execution of the same decree against him. 1330 Similarly, where a judgment-debtor was
arrested, but was liberated without having been sent to jail, owing to non-payment of
subsistence money, it was held that he was liable to be re-arrested in execution of the same
decree. 1331 Sub-section (2) refers to release from detention in jail and not to release from
detention in the court house. 1332

4. Interim protection order. A is arrested and committed to jail in execution of a decree

against him. While in jail he files his petition in insolvency, and obtains an interim
protection order for one week, and is thereupon released from jail. He then applies for a
further protection order, but his application is refused. Is A liable to be re-arrested in
execution of the same decree? The Calcutta High Court has held that he is not liable to be
re-arrested, on the ground that a judgment-debtor once discharged from jail, cannot be
arrested a second time in execution of the same decree. 1333 On the other hand, the High
Court of Bombay has held that A is liable to be re-arrested, as the only cases in which a
judgment-debtor is exempt from re-arrest are those specified in this section, and that
release under an interim protection order is not one of them. 1334 The Calcutta decisions, it
is submitted, are not correct.

5. Contempt of Court. This section does not apply to cases of imprisonment for
contempt of court. 1335

6. Satisfaction of Decree. The question, which arises whether the debt can be said to
have been discharged merely because the judgment-debtor has been detained in civil
prison for a full term. Section 51 of the Code of Civil Procedure merely prescribes different
modes for achieving an object. If the object is the realisation of dues, this object cannot be
said to have been achieved merely because the judgment-debtor was detained in civil
prison. It is for this reason, there is provision in sub-s (2) of s 58 of the Code of Civil Procedure
that a judgment-debtor released from detention shall not, merely by reason of his release,
be discharged from his debt. 1336

S. 59. Release on ground of illness.

(1) At any time after a warrant for the arrest of a judgment-debtor has been issued the
Court may cancel it on the ground of his serious illness.
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(2) Where a judgment-debtor has been arrested, the Court may release him if, in its
opinion, he is not in a fit state of health to be detained in the civil prison.
(3) Where a judgment-debtor has been committed to the civil prison, he may be
released therefrom
(a ) by the State Government on the ground of the existence of any infectious or
contagious disease, or
(b ) by the committing Court, or any Court, to which that Court is subordinate, on
the ground of his suffering from any serious illness.
(4) A judgment-debtor released under this section may be re-arrested, but the period of
his detention in the civil prison shall not in the aggregate exceed that prescribed by
Section 58.

1288 . No displaced person is liable to arrest or imprisonment in execution of any decree for the recovery of any debt: see s 30.
Displaced Persons (Debts Adjustment) Act 70 of 1951. See also s 29 of Army Act, 1950 and Air Force Act, 1950, s 29 of Navy Act, 1957.
1289 . Subs. for Provincial Government by AO, 1950.
1290 . Subs. for Provincial Government by AO, 1950.
1291 . Subs. for Provincial Government by AO, 1950.
1292 . Subs. by CPC (Amendment) Act 3 of 1921, for will be discharged.
1293 . Subs. by CPC (Amendment) Act 3 of 1921, for shall release.
1294 . See sub-s , (1), proviso , (2).
1295 . See notes below: Discharge of surety.
1296 . K. Munir athnam v. D. Bhaskar Naidu , AIR 2006 (NOC) 1124(AP) : (2006) 3 Andh LD 486.
1297 . M.V.L.A. Vishwanathan v. Abdul Majid , AIR 1925 Rang 305: (1925) 3 Rang 187.
1298 . Elluri Venkata Sai Surya Prakasa Rao v. Guttikonda Srirama Murthy , 2007 (1) Andh LD 152.
1299 . Vaddireddy Venkatata Subba Reddy v. Narapureddy Kalyanamma , 2008 (6) Andh LT 673 [LNIND 2008 AP 718] : 2009 (75) All
Ind cas 866.
1300 . Kishore v. Netherlands Trading Society , AIR 1930 Cal 555: (1930) 34 Cal WN 401.
1301 . Narasinha v. Rangachari , AIR 1926 Mad 689: (1926) 50 Mad LJ 477.
1302 . Kishore v. Netherlands Trading Society , AIR 1930 Cal 555: (1930) 34 Cal WN 401.
1303 . Woriur Commercial Bank v. Kaja Maroop , AIR 1923 Mad 1081: (1926) 52 Mad LJ 523.
1304 . Abdul v. Mistri , AIR 1922 Bom 340: (1922) 46 Bom 702; L.V. Colato v. U. Aung Din , AIR 1936 Rang 168: (1936) 14 Rang
190.
1305 . Channappa v. Yellappa , AIR 1931 Bom 444: (1931) 33 Bom LR 820.
1306 . Siraj-ud-din v. Guranditta Mal , AIR 1934 Lah 962.
1307 . Sankaranarayana v. Peranisiram , AIR 1942 Mad 101.
1308 . Krishnan v. Ittiman , (1901) 24 Mad 637; Nabin Chandra v. Mirtunjoy , (1914) 41 Cal 50.
1309 . Makanji v. Bhukandas , AIR 1924 Bom 428: (1924) 48 Bom 500.
1310 . Lalji v. Oodya , (1887) 14 Cal 757.
1311 . Kali Ram v. Umrao Singh , AIR 1934 Lah 92.
1312 . Dedhraj v. Mahabir , (1920) 5 Pat LJ 417.
1313 . Nageshar v. Gudrimal , AIR 1933 All 382: (1933) 55 All 548.
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1314 . Re Kumarswamy Reddiar , AIR 1938 Mad 530 [LNIND 1938 MAD 19].
1315 . Raghubir Singh v. Maharul Huque , AIR 1942 Pat 506: (1942) 21 Pat 644; Makanji v. Bhukandas , AIR 1924 Bom 428: (1924) 48 Bom 500.
1316 . Channappa v. Yellappa , AIR 1931 Bom 444: (1931) 33 Bom LR 820 ; explaining a dictum in Makanji v. Bhukandas , AIR 1924 Bom 428:
(1924) 48 Bom 500.
1317 . Makanji v. Bhukandas , AIR 1924 Bom 428: (1924) 48 Bom 500.
1318 . Chelsea Mills v. Chorus Girl , AIR 1991 Del 129 [LNIND 1990 DEL 80].
1319 . No displaced person is liable to arrest or imprisonment in execution of any decree for the recovery of any debt: see s 30. Displaced
Persons (Debts Adjustment) Act 70 of 1951. See also s 29 of Army Act, 1950 and Air Force Act, 1950, s 29 of Navy Act, 1957.
1320 . See O 25, r 1 (3).
1321 . Subs. for one thousand rupees by the CPC (Amendment) Act, 1999, s 5 (46 of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-
2002.
1322 . Subs. for (b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one
thousand rupees, for a period not exceeding six weeks; by the CPC (Amendment) Act, 1999 (46 of 1999), s 5 (w.e.f. 1-7-2002).
1325 . Subudhi v. Singi , (1890) 13 Mad 141.
1326 . Matal Chamar v. Phagu Rai , AIR 1978 Pat 143.
1327 . Pundlik v. Maharastra State Finance Corpn. , AIR 1992 Bom 48 [LNIND 1991 BOM 185].
1328 . Dhanalakshmi Ammal v. Krishnamurthi , AIR 1951 Mad 756 [LNIND 1950 MAD 158]: (1951) 1 Mad LJ 515 : 64 LW 239 :
(1951) Mad WN 200.
1329 . Samiran Sen v. Arpita Sen , AIR 2009 Cal 229 [LNIND 2008 CAL 775]: 2008 (4) Cal LT 508.
1330 . Rajendra v. Mohun , (1896) 23 Cal 128.
1331 . H. Raham v. Ram Sahai , (1904) 26 All 317.
1332 . Kesar Singh v. Karam Chand , AIR 1937 Lah 253.
1333 . Re Bolye Chund , (1893) 20 Cal 874; Judah v. Secretary of State for India , (1886) 12 Cal 445.
1334 . Shamji v. Poonja , (1902) 26 Bom 652; Suraj Din v. Mahabir Prasad , (1911) 33 All 279.
1335 . Martin v. Lawrence , (1879) 4 Cal 655.
1336 . Santosh Kumar Mode v. Adaita Ballav Satpathy , AIR 1992 Ori 29 [LNIND 1991 ORI 189]; Padrauna Rajkrishna Sugar Works Ltd.
v. Land Reforms Commr , AIR 1969 SC 897 [LNIND 1969 SC 30]; Malli K. Dhanlakshi v. Malli Krishnamurthy , AIR 1951 Mad 756
[LNIND 1950 MAD 158].

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Attachment

S. 60. Property liable to attachment and sale in execution of decree.

(1) The following property is liable to attachment 1337 and sale in execution of a decree,
namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills
of exchange, hundis, promissory notes, Government securities, bonds or other
securities for money, debts, shares in a corporation and, save as hereinafter
mentioned, all other saleable property, moveable or immoveable belonging to the
judgment-debtor, or over which, or the profits of which, he has a disposing power
which he may exercise for his own benefit, whether the same be held in the name
of the judgment-debtor or by another person in trust for him or on his behalf:

Provided that the following particulars shall not be liable to such 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 materials and the sites thereof and the land
immediately appurtenant thereto and necessary for their enjoyment) belonging
to 1338 [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;
(f) any right of personal service;
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(g) stipends and gratuities allowed to pensioners of the Government 1339 [or of a
local authority or of any other employer], or payable out of any service family
pension funds notified 1340 in the Official Gazette by the Central Government or
the State Government in this behalf, and political pensions;
(h) the wages of labourers and domestic servants, whether payable in money or in
kind;
(i) salary to the extent of the first 1341 [one thousand rupees] and two-thirds of the
remainder] 1342 [in execution of any other than a decree for maintenance]:

1343[Provided that, where any part of such portion of the salary as is liable to
attachment has been under attachment, whether continuously or
intermittently, for a total period of twenty-four months, such portion shall be
exempt from attachment until the expiry of a further period of twelve
months, and, where such attachment has been in execution of one and same
decree, shall, after the attachment has continued for a total period of twenty
four months, be finally exempt from attachment in execution of that decree]:

1344 [(ia) one-third of the salary in execution of any decree for maintenance;]
1345 [(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, 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;
1346 [(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 a 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 Offcial Gazette declare to
be exempt from attachment, and any subsistence grant of 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;
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(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.

1347 [Explanation I. The moneys payable in relation to the matters men tioned
in clauses (g), (h), (i), (ia), (j), (l) and (o) are exempt from attachment or sale,
whether before or after they are act ually payable, and, in the case of salary,
the attachable portion thereof is liable to attachment, whether before or after
it is actually payable].

[Explanation II .In clauses (i ) and (ia ),] salary means the total monthly
1348

emoluments, excluding any allowance declared exempt from attachment

under the provisions of clause (l ), derived by a person from his employment
whether on duty or on leave.

Explanation III .In clause (l ) appropriate Government means

(i) as respects any person in the service of the Central Government, or any
servant of a 1349 [Railway administration] or of a cantonment authority or of
the port authority of a major port, the Central Government;
(ii) 1350 [***];

(a) by his own labour, or

(b) by the labour of any member of his family, or
(c) by servants or labourers on wages payable in cash or in kind (not being as a
share of the produce), or both.
(1A) Notwithstanding anything contained in any other law for the time being in force,
an agreement by which a person agrees to waive the benefit of any exemption under
this section shall be void].
(2 ) Nothing in this section shall be deemed

to exempt houses and other buildings (with the materials and the sites thereof
and the lands immediately appurtenant thereto and necessary for their
enjoyment) from attachment or sale in execution of decrees for rent of any such
house, building, site or land.
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STATE AMENDMENTS

Andhra Pradesh.

(1) The following amendments were made by CPC (Andhra Pradesh) (Andhra Area)
Amendment Act, 1950 (34 of 1950), s 2 (w.e.f. 2-1-1951).

In its application to the Andhra area of the State of Andhra Pradesh in clause (g) of the
Proviso to sub-section (1) of Section 60, after the words stipends and gratuities allowed to
pensioners of the Government insert the words or of a local authority.

(2) In its application to the Telangana area of the State of Andhra Pradesh in the proviso
to sub-s (1) :

(i) after clause (g) insert the following:

(gg ) pension granted or continued by the Central Government, the Government of the
pre-Reorganisation Hyderabad State or any other State Government on account of past
services or present infirmities or as a compassionate allowance;

(ii) after Explanation 2 insert Explanation 2A which is same as below with the addition of
clause (gg ) or after under the provisions of [Andhra Pradesh Act 18 of 1953 (w.e.f. 2-12-
1953)].

(3) In its application to the whole State in the proviso to sub-s (1 ).

(i) after clause (k) insert the following:

(kk ) amounts payable: under policies issued in pursuance of the rules for the Andhra
Pradesh Government Life Insurance and Provident Fund and the Hyderabad State Life
Insurance and Provident Fund:

(ii) After Explanation 2 insert the following:

Explanation 2A.Where any sum payable to a Government servant is exempt from

attachment under the provisions of clause (kk), such sum shall remain exempt from
attachment notwithstanding the fact that owing to the death of the Government servant it
is payable to some other person.

(Andhra Pradesh Act 11 of 1953 and Act 10 of 1962).

(4) The following amendments were made by Andhra Pradesh Act 24 of 1979, S. 2 (dated 17-9-1979)
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(i) In the proviso to S. 60(1) after clause (kk) insert as under:

(kkk ) amounts payable under the Andhra Pradesh State Employees Family Benefit Fund
Rules;

(ii) In Explanation 2A, for the expression clause (kk ) substitute the expression clauses (kk
) and (kkk ).

Delhi. As in Punjab.

Gujarat. The following amendments were made by CPC (Bombay Amendment) Act, 1948
(Bom. Act 60 of 1948), S. 2, dated 30-11-1948.

In sub-section (1) of Section 60 :

(a) after clause (g) of the proviso, the following new clause shall be inserted namely:

(gg) stipends and gratuities allowed to pensioners of a local authority, and

(b) in Explanation 1, after the brackets and letter (g) the brackets and letters (gg) shall be
inserted.

Haryana. Same as in Punjab.

Himachal Pradesh. (1) The following amendments were made by Himachal Pradesh Act
31 of 1978, S. 21, dated 1-4-1979.

Amendments are the same as in Punjab, with the following modifications:

(i) in sub-section (4) words as defined in the Punjab Alienation of Land Act, 1900 not
included.
(ii) Sub-section (5) not taken.
(iii) Sub-section (6) numbered as (5).

(2)

(i) The following amendments were made by CPC (Himachal Pradesh Amendment) Act 6
of 1956.

In sub-s (1 ) at the end of (c ), insert the following:

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or compensation paid for such houses and buildings (including compensation for the
materials and the sites and the land referred to above) acquired for a public purpose;

(ii) after clause (c ) insert the following:

(cc) compensation paid for agricultural lands belonging to agriculturists and acquired for a
public purposes;

Karnataka. In its application to the Karnataka area, in the proviso to sub-s (1 ) after clause
(p ) insert:

(pp ) where the judgment-debtor is a servant of the State Government who has insured his
life under the rules in force relating to the Official Branch of the Karnataka Government
Life Insurance Department,
(1) in the case of insurance effected prior to the ninth day of May, 1911, the whole of
the bonus payable or paid thereunder to such servant, or in the event of his death to
his nominee or other person or persons entitled to such bonus under the said rules;
and
(2) in the case of insurance effected on or after the ninth day of May, 1911, and such
insurance is compulsory, then the bonus in respect of the compulsory premia
payable or paid to such servant, or in the event of his death to his nominee or other
person or persons entitled to such bonus under the said rules. [C P Code (Mysore
Am) Act 14 of 1952].

Kerala. The following amendments were made in its application to the State of Kerala.

(1) In its application to the State of Kerala including the Malabar district, in clause (g) of
the Proviso to sub-section (1), after the words stipends and gratuities allowed to
pensioners of the Government insert the words or of a local authoritycpc (Kerala
Amendment) Act, 1957 (13 of 1957), S. 3 (w.e.f. 1-10-1958). This amendment was made
prior to the amendments made by the Contract Act 104 of 1976, s 23.

(2) In its application to the State of Kerala, in S. 60(1), in the proviso after clause (g ) insert
as under:

(gg ) all moneys payable to the beneficiaries under the Family Benefit Scheme for the
employees of the Government of Kerala. [Vide Kerala Act 1 of 1988, s 2 (w.e.f. 5-1-1988 ]

Maharashtra. In its application to the Hyderabad area of the State of Bombay, see the
amendment in Andhra Pradesh (vide Hyderabad Act II of 1953 adapted by Bom (H) ALO
1956 and Bom AO 1957).
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[C P Code (Bom Am) Act 60 of 1948; (Hyderabad Am) 11 of 1953 as amended by

Maharashtra Act 6 of 1965].

The following amendments were made by Maharashtra Act 65 of 1977, S. 6, dated 19-12-1977.

In its application to the State of Maharashtra in S. 60, in sub-section (1), in the proviso

(a) after clause (g) insert clause (gg), namely:

(gg) in the Hyderabad area of the State of Maharashtra, any pension granted or continued
by the Central Government or the Government of the former State of Hyderabad or any
other State Government, on account of past services or present infirmities or as a
compassionate allowance, which is not covered by clause (g);

(b) After clause (kb), clause (kbb), be inserted as under:

(kbb) the amounts payable under the policies issued in pursuance of the Rules for the
Hyderabad State Life Insurance and Provident Fund, which are not covered under clause
(ka) or (kb).

Explanation. Where any sum payable to a Government servant is exempt from attachment
under this clause or clause (gg) such shall remain exempt from attachment,
notwithstanding the fact that owing to the death of the Government servant the sum is
payable to some other person;.

Punjab. [Punjab Relief of Indebtedness Act 7 of 1934, s 35 as amended by Punjab Acts 12

of 1940, 6 of 1942 and 14 of 1960].

(a) In sub-sec (1 ) in the Proviso:

(i) In cl (c), for the words occupied by him the following words shall be deemed to be
substituted, viz. : not proved by the decree-holder to have been let out on rent or lent to
persons other than his father, mother, wife, daughter, daughter-in-law, brother, sister or
other dependants or left vacant for a period of a year or more.

(ii) After cl (c ) the following clauses shall be deemed to be inserted, viz. :

(cc ) Milch animals, whether in milk or in calf, kids, animals used for the purposes of
transport of draught cart and open spaces or enclosures belonging to an agriculturist and
required for use in case of need for tying cattle, parking carts, or stacking fodder or
manure:
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(ccc ) one main residential-house and other buildings attached to it (with the material and
the sites thereof and the land immediately appurtenant thereto and necessary for their
enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by
him:

Provided that the protection afforded by this clause shall not extend to any property
specifically charged with the debt sought to be recovered.

(b) After sub-sec (2 ) the following sub-sections shall be deemed to be inserted, viz. :

(3) Notwithstanding any other law for the time being in force an agreement by which a
debtor agrees to waive any benefit of any exemption under this section shall be void.

(4) For the purposes of the section the word agriculturist shall include every person
whether as owner, tenant, partner or agricultural labourer who depends for his livelihood
mainly on income from agricultural land as defined in the Punjab Alienation of Land Act,
1900.

(5) Every member of a tribe notified as agricultural under the Punjab Alienation of Land
Act, 1900, and every member of a scheduled caste shall be presumed to be an agriculturist
until the contrary is proved.

(6) No order for attachment be made unless the court is satisfied that the property sought
to be attached is not exempt from attachment or sale.

Rajasthan. In sub-s (1 ) in the Proviso:

(i) In cl (b ) after the word agriculturist insert the words his milch cattle and those likely to
calve within two years [Rajasthan Act 19 of 1958, w.e.f. 18-4-1958].

(ii) after clause (k), insert the following:

(kk) moneys payable under Life Insurance Certificates issued in pursuance of the Rajasthan
Government Servants Insurance Rules, 1953.

(iii) after Explanation 3 insert the following:

Explanation 4 . Where any money payable to a Government servant of the State is exempt
from attachment under the provision contained in clause (kk ), such money shall remain
exempt from attachment notwithstanding the fact that owing to the death of a
Government servant it is payable to some other person. (Rajasthan Act 16 of 1957).
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Tamil Nadu. The following amendments were made by CPC (Madras Amendment) Act,
1950 (34 of 1950), S. 2 (w.e.f. 2-1-1951) and Madras Act No. 22 of 1957, S. 3, dated 18-12-
1957 and Madras (A.T.) A.L.O., 1961 w.e.f. 1-4-1960.

In its application to the State of Madras including the Kanyakumari district and the
Schencottah taluk of the Tirunelveli district, and the added territories the amendment
made in Section 60 is the same as that of Kerala.

Union Territory (Chandigarh). The following amendments were made by Punjab

Reorganisation Act, 1966 (31 of 1966), S. 88, dated 1-11-1966.

In its application to the Union Territory of Chandigarh amendments in the section are the
same as in Punjab.

Union Territory (Pondicherry). The following amendments were made by Pondicherry

(Extension of Laws) Act, 1968 (26 of 1968), S. 3(i) and Schedule, Part II (w.e.f. 5-9-1968).

In its application to the Union Territory of Chandigarh amendments in the section are the
same as in Tamil Nadu.

Uttar Pradesh. [C P Code (UP Am) Act, 35 of 1948, s 2 (w.e.f. 28-8-1948)].Add the
following Explanation (1A) after Explanation 1 in sub-sec (1 )

Explanation (1A) .Particulars mentioned in clause (c) are exempt from sale in execution of a
decree whether passed before or after the commencement of the C P Code (United
Provinces Amendment) Act, 1948, for enforcement of a mortgage of charge thereon.

HIGH COURT AMENDMENT

Calcutta High Court. The following modifications were made by Calcutta Gazette, dated
27-4-1967, Part I, S. 757.

In its application to all the suits or proceedings in the Court of Small Causes, Calcutta, in s
60 add the provision after sub-section (1) provided that nothing in this section shall be
taken as conferring on the Court of Small Causes of Calcutta, any jurisdiction to attach and
sell immovable property in execution of a decree:

Provided also that this section shall, so far as the Court mentioned in the last preceding
proviso is concerned, apply only to decrees obtained in suits instituted after the 31st of
May 1937, and the law applicable to suits instituted up to that date shall be the law which
was here before in force in that Court.
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1. Changes introduced in previous law in 1908. This section corresponds with s 266 of
the Code of Civil Procedure 1882 except in the following particulars:
(i) In cl (a), the words cooking vessels, beds, and and such personal ornaments as, in
accordance with religious usage, cannot be parted with by any woman, were added.
See notes below.
(ii) The latter portion of cl (h) relating to agricultural produce is new.
(iii) Clause (c) stood as follows in s 266 of the Code of Civil Procedure 1882: The
materials of houses and other buildings belonging to and occupied by agriculturists.
(iv) In cl (g), the words or payable out of any service family pension fund notified in the
Gazette of India by the Governor-General in Council in this behalf were added.
(v) Clause (h) was newly inserted. It is now reproduced in cl (1) with some
modifications.
(vi) In cl (i), the words or allowances equal to salary and while on duty were added. See
notes below.
(vii) Cl (k) is new. See notes below.
(viii) In cl (1), the words whether payable in moneys or in kind were newly inserted.
The clause is now cl (h) with some additions.
(ix) The alterations in sub-s (2), cl (a), correspond with the alterations in sub-s (1), cl (c).

2. Subsequent amendments in sub-section (1) Prior to Amending Act, 1976.

(i) In cl (g) the words pensioners of the Crown and the Central Government or the
Provincial Government were substituted for the words pensioners of the Government and
the Governor-General in Council by para 3 and sch 1 of the Government of India
(Adaptation of Indian Laws) Orders 1937, and the words Official Gazette were substituted
for the words Gazette of India by para 4 of the Government of India (Adaptation of
Indian Laws) Order 1937. By the Adaptation of Laws Order 1950, the word Government
took the place of the word Crown and the word State was substituted for the word
Provincial.

(ii) Clause (h) as enacted in 1908 ran thus:

Allowances (being less than salary) of any public officer or of any servant of a railway
company or local authority while absent from duty.

This provision, with certain modifications, has been transferred to cl (1) by the Code of Civil
Procedure (Second Amendment) 1937. In its place by the said Act, cl (1) was transferred as
cl (h) with the addition of words and salary to the extent of the first hundred rupees and
one-half the remainder of such salary. The original cl (1) ran thus:
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...the wages of labourers and domestic servants whether payable in money or in kind.

The words and salary, to the extent of the first hundred rupees and one-half the remainder
of such salary were, however, omitted by the Code of Civil Procedure (Amendment) Act, 1943.
1353

(iii) Clause (i) has been subjected to various amendments from time-to-time

(a) By Act 26 of 1923, the words twenty rupees and forty rupees that existed in the clause
as it stood in 1908 were replaced by the words forty rupees and eighty rupees. Act 9 of
1937 raised the limit of exemption to the first hundred rupees and one half of the
remainder of the salary, and by Act 26 of 1963 the words the first two hundred rupees
were substituted for the words first hundred rupees.

(b) Clause (i) with the amendment made by Act 26 of 1923 so far as it is relevant here ran
thus:

...the salary or allowances equal to salary of any such public officer or servant as is referred
to in cl (h), while on duty, to the extent of
(i) the whole of the salary, where the salary does not exceed forty rupees monthly;
(ii) forty rupees monthly, where the salary exceeds forty rupees and does not exceed
eighty rupees monthly; and
(iii) one moiety of the salary in any other case.

The clause was re-cast by Act 9 of 1937.

(c) By Act 20 of 1925, a proviso was added to cl (i). It ran thus:

Provided that where the decree-holder is a society registered or deemed to be registered

under the Co-operative Societies Act, 1912, and the judgment-debtor is a member of the
society, the provisions of sub-cll (i) and (ii) shall be construed as if the word twenty were
substituted for the word forty wherever it occurs and the word forty for the word eighty.

This proviso was dropped when this clause was amended and re-enacted by Act 9 of 1937.

(d) A new proviso was added by Act 9 of 1937 with a view to see that a judgment-debtor is
not continuously oppressed.

(e) By s 2, of the Code of Civil Procedure (Amendment) Act (V of 1943), the present clause
and proviso were substituted for the old clause and proviso.
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(f) Word Government has been substituted for the word Crown by Adaptation of Laws
Order 1950.

(g) By the Amendment Act 66 of 1956, the words in execution of any decree other than a
decree for maintenance were inserted in the clause and a fresh cl (i-a) was added.

4. Clause (j) was amended by the Amending Act 35 of 1934 and the Government of India
(Adaptation of Indian Laws) Order 1937. The clause originally ran thus:

...the pay and allowances of persons to whom the Indian articles of war apply.

The words the Naval Discipline Act as modified by were omitted by the Adaptation of
Laws Order 1950, and the s 10 of Code of Civil Procedure (Amendment) Act, 1951, the words
and figures the Army Act, 1950 were substituted for the words and figures the Indian Army
Act 1911, or the Burma Army Act. The words The Air Force Act, 1950, or were inserted by
Act 66 of 1956.

5. In cl (k) the year of the Provident Funds Act now in force is given. The amendment was
made by Act 9 of 1937.

6.
(a) Clause (1) was enacted by Act 9 of 1937 It deals with the question of allowances.
The original clause which dealt with the question was cl (h) of the Code of Civil
Procedure as enacted in 1908. The present clause requires a notification by the
appropriate government before exemption can be claimed. 1354
(b) In this cl (1), the words appropriate Government were substituted for the words
Governor-General in Council by para 3 and sch 1 of the Government of India
(Adaptation of Indian Laws) Order 1937, read with the Government of India
(Adaptation of Indian Laws) Supplementary Order 1937. So also, the words Official
Gazette were substituted for the words Gazette of India by para 4 of the said Order
of 1937. For the words public officer and any such officer or servant the words
Servant of the Crown and any such servant respectively were substituted by s 2 of the
Code of Civil Procedure (Amendment) Act, 1943, word Government has been
substituted for the word Crown by the Adaptation of Laws Order 1950.

7. In cl (o) the words any Indian law were substituted for the words any law passed under
the Indian Councils Act s 1861 and 1892, by the Government of India (Adaptation of
Indian Laws) Order 1937.

8. The expln to sub-s (1) was numbered as expln 1 and the words and in the case...actually
payable were added by the Amending Act 9 of 1937, with effect from 1 June, 1937. The
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words servant of the Crown were substituted for the words public officer by s 2 of the Code
of Civil Procedure (Amendment) Act, 1943, and the word Government has been substituted
for the word Crown by the Adaptation of Laws Order 1950.

9. Explanation 2 is new. It was added by Act 9 of 1937. It explains the word salary used in
cll (h) and (i). It took effect from 1 June, 1937.

10. Explanation 3 was added by para 3 Sch 1 of the Government of India (Adaptation of
Indian Laws) Order 1937. By s 2 of the Code of Civil Procedure (Amendment) Act, 1943, in cll
(i) and (ii) the word person was substituted for the words public officer and in cl (iii), the
words the servants of the Crown were substituted for the words public officer. Clause (ii)
was omitted by Indian Independence (Adaptation of Central Acts and Ordinances) Order
1948. By the Adaptation of Laws Order 1950, the words a Railway Administration were
substituted for the words a Federal Railway and in cl (iii), the words railway or which
appeared before local authority, are omitted and the word Government is substituted for
the word Crown.

3. Amendments in sub-section (2) Prior to Amending Act, 1976. This sub-section, as

it stood in 1908; comprised of two cll (a) and (b), and cl (h) was repealed by Act 10 of
1914, Sch 11. The Amendment Act, 1976 does not make any changes in this sub-section.

4. Changes made by the Amendment Act, 1976.

(i) Clause (c) to the proviso to sub-s (1) has been amended so as to extend the
exemption from attachment and sale to houses and other buildings belonging to not
only an agriculturist but also to a labourer or a domestic servant.
(ii) Clause (g) to the proviso to sub-s (1) has been amended so as to extend the
exception to stipends and gratuities allowed to pensioners of a local authority or any
other employer.
(iii) Clause (i) has been amended to enlarge the exception as to salary to the extent of
the first four hundred rupees and two thirds of the remainder. The new proviso to
cl (i) does away with the distinction between judgment-debtors who are government
servants or railway employees and other salaried judgment-debtors.
(iv) Clause (j) has been substituted so as to extend to all persons to whom the Navy Act,
1957 applies.
(v) The new cl(kb) extends the exception from attachment, to moneys payable under
life insurance policies.
(vi) The new cl (kc) exempts from attachment, interest of tenants in a residential
building governed by rent Act s.
(vii) Explanations (I) and (II) are altered in consonance with changes carried out in cll
(g), (h), (i), (ia), (k), (l), and (o).
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(viii) Explanations (IV) (V) and (V1) define the expressions wages, labourer,
agriculturist and when such an agriculturist shall be deemed to cultivate land
personally.
(ix) Sub-section (IA) has been added so as to render an agreement waiving the benefit
of any of the exceptions under sub-s (1) void.

5. Changes made by the Amendment Act, 1999. In clause (i) of proviso to sub-s (1), the
words four hundred rupees have been replaced by one thousand rupees by s 6 of the Code of
Civil Procedure (Amendment) Act, 1999. The amendment which came in to effect from 1
July 2002 does not exempt salary from attachment to the extent mentioned in cl (i) of the s
60 before the commencement of amended provisions.

6. In execution of a decree. The expression decree, in this section, refers to a money-

decree, and not a mortgage decree, for, attachment is not necessary in mortgage decrees.
The result is that the exemptions from attachment and sale contained in the proviso to this
section do not apply to a mortgage decree for sale. 1355 Provisions of s 60 (1) proviso and s
60 (1A), do not apply to a mortgage decree. Execution of a mortgage decree in regard to a
residential house is not barred by s 60 (1A), which prohibits waiver of the exemption. 1356
A mortgage decree itself directs the sale. No attachment is necessary. Hence, properties
exempt under s 60 (1) proviso, can be sold pursuant to the final decree for sale. As no
attachment is necessary, no scope exists either for invoking s 60 (1) main part, or for
considering exemption under s 60 (1) proviso. 1357 Section 60(1) does not apply to a sale
held in revenue recovery proceedings. 1358 In s 60 (1)(c), proviso the words attachment or
sale really contemplate the case of attachment and sale. In the proviso or should be read as
and, since the latter word is the word used in the main part. In a mortgage decree there is
no question of attachment. Hence, the exemptions from attachment do not apply to a
mortgage decree. 1359 Wherein order is made for the payment of a fictitious sum without
giving any opportunity to any person against whom the order is made, to show cause
against the passing of such an order for the said sum, the order is a nullity. When a decree
for order is illegal, any sale held in execution of such a decree or order and confirmed can
not be set aside on the ground that it was illegal when the sale is in favour of third party.
But where a decree or order is a nullity, it will be deemed to have no existence at all and
any sale held in execution of any decree or order must also be held to be null and void. 1360

7. Saleable property. Subject to the proviso to sub-s (1), all saleable property which
belongs to the judgment-debtor may be attached and sold in execution of a decree against
him. The equity of redemption of a mortgagor in mortgaged property is saleable property
within the meaning of this section, and is, therefore liable to be attached and sold in
execution of a decree against him. 1361 If transfer of a particular property is prohibited by
law, it cannot be attached, because it is not saleable property. Hence, a tenancy right whose
transfer is prohibited by s 14 (1)(b), Delhi Rent Control Act, 1958, cannot be attached.1362
The legislature never contemplated in s 15 (1) of Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 that the lessee of a non-residential premises cannot transfer and
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assign the interest in the lease hold rights. Thus, where the notification was issued
permitting transfer of interest of the lessee in the business premises under proviso to s 15
(1) of Bombay Rent Act, the goodwill and tenancy rights in such premises would be
saleable property over which the lessee would have disposing power and therefore, they
would be liable to attachment and sale under s 16 of the Code of Civil Procedure and s 15 (1) of
Bombay Act would be no bar. 1363 A preliminary decree for the realisation of unpaid
consideration on a mortgage bond is attachable under this section. 1364 The share of a
partner in a partnership business is saleable property, and can be attached and sold in
execution of a decree obtained against him by his creditor. 1365 A preliminary decree for
accounts in a suit for dissolution of partnership and accounts 1366 as also a preliminary
decree in favour of the judgment-debtor in a suit for accounts 1367 is attachable. The right
to claim specific performance of a contract to sell land is also attachable and saleable. 1368
Similarly, a right to purchase shares or even an option to do so is a right to property. The
benefit under such a contract does not become non-assignable by a condition that certain
consideration has to be paid for such purchase. That being so, such a right is attachable.
1369 A life-interest in trust funds is attachable and saleable in execution of a decree against

the life-tenant. 1370 Similarly, a vested remainder can be attached and sold in execution of a
decree against the remainderman. 1371 The beneficial interest of the party, in which the
judgment-debtor has no legally transferable interest or the judgment-debtor in a deed of
trust can be attached if it is vested but not if it is contingent. 1372 The interest of a member
of a Kshatriya tarwad is liable to attachment and sale as it is partible under the law. 1373 The
expression saleable property connotes that the property in question is saleable by court
auction at a compulsory sale. Such a connotation implies that the concerned property is
capable of being transferred. Consequently, the property in which the judgment-debtor has
no legally transferable interest or the transfer of which is prohibited by any law for the time
being in force, cannot be sold in court auction and is not a saleable property. On this
principle, the Bombay High Court in Harsukh Jadhavji Joshi v. Ramesh H. Shah 1374 held that
under s 29 (2) of the Maharashtra Co-operative Societies Act, 1960, and the bye-laws of the
housing society in question, a member of such society was a tenant of premises allotted to
him and as such had no saleable interest or disposing power without the consent of the
society. Any attachment and sale of such interest in execution of a decree passed against
such a member by a third person was illegal. In appeal, 1375 the Supreme Court, reversing
the High Court, held that a flat in a tenant co-partnership housing society was liable to
attachment and sale in execution of a decree against a member in whose favour or for
whose benefit it has been allotted by the society, that the right to occupy such a flat
assumed significant importance and acquired, under the law, a stamp of transferability in
furtherance of the interest of commerce and that in the absence of unambiguous and clear
legal bar it would not be in the interest of commerce to impose a ban on its saleability. It
further held that there was no absolute prohibition either in the Act or the rules or in the
bye-laws against transfer of interest of a member and that though the flat was owned by
the society, the allottee had a right or interest to occupy the same and that there was
nothing in s 31, showing that the right to occupy, which was a right which can be sold in
auction, was not attachable in execution proceedings. Though there were certain
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restrictions under s 29 (2), and bye-law 71D, they were not such that their breach would
render the transfer void. It is submitted that this decision requires reconsideration since
(i) it fails to take into consideration various aspects relating to the rights of such
building societies both under the Co-operative Societies Act, 1912 and the bye-laws
made thereunder;
(ii) the fact that, the society is, and remains, even after allocation of a flat to its
member, the owner of such a flat;
(iii) that though the allottee-member can transfer the occupancy rights in such a flat,
such right is not absolute and is limited in that the society has, in certain
circumstances, under its own rules, to which the member and his right to transfer is
subject to, the right to refuse to accept the transferee as its member. These rights of
such a society, which was not before the court, have not been adequately
considered and so also the consequences following from the judgment on a large
number of such societies. The judgment does not consider the question as to what
would happen to the execution sale, if the society for valid reasons were to refuse,
under its rules, to accept the auction-purchaser as its member. Such a situation
would involve such a society into litigation to prevent which is the principal object
of the Co-operative Societies Act, 1912. In view of the impact of the judgment on a
number of such societies, the court ought at least to have given a chance to the
society to be heard before it gave the judgment affecting its right. The adjudication
of an Indian citizen as insolvent in a foreign state does not affect the rights of the
decree-holder to attach and sell his immovable properly in this country. 1376 The
fact that the property attached is the only source of livelihood does not exempt it
from attachment. 1377

The word saleable, in this section means saleable by auction at a compulsory sale under the
orders of the court. It has no references to property made non-transferable by an
agreement between the parties to a transaction. It has, accordingly, been held that a
condition in a permanent lease that the landlord would re-enter if the tenant made any
transfer of the land demised, does not make the land unsaleable in execution. The lease
forbids a sale by the tenant, but does not prevent a sale by the court. 1378 Likewise, when
the law allows the transfer of a property subject to certain restrictions or under certain
conditions, it can be attached and sold 1379 but if the prohibition by the statute is absolute,
as for example, in the case of evacuee property under the provisions of Punjab Evacuees
(Administration of Property) Act, 1947, then the property be attached or sold; 1380
however, when the property is not alienable by a coercive process of law, it has been held
that the court can hardly be deemed to have jurisdiction to attach it. 1381 Country liquor is
saleable property within the meaning of this section, though the permission of the
collector may be necessary to the sale under the Abkari Act. 1382

(a) Government Grant Containing Prohibition Against Alienation. When a government grant
contains a prohibition against alienation of an estate and the power of voluntary transfer is
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thus taken away, and the judgment-debtor is only entitled to enjoy profits during his life-
time, the decree-holder can proceed only against the profits and not against the estate. 1383

(b) Security Deposit. Money or other valuable security deposited as security for the due
performance of duty by a servant with his master, may be attached in execution of a decree
against the servant, but the attachment will be subject to the lien which the master has
upon the deposit, and the deposit cannot be sold until the same is at the disposal of the
servant free from the lien of the master at the expiration of the period of employment. 1384
Security deposit made by the appellant to England for the costs of the respondent can be
attached, as the appellant has the power of disposal over the same for his benefit. 1385

(c) Land Assigned for Maintenance. Where land was assigned to a Hindu widow for her
maintenance with a proviso against alienation, it was held that she had no saleable interest
in the usufruct. 1386

(d) Non-transferable Office. A religious office is not saleable property. 1387 Similarly, the right
of managing a temple, of officiating at the worship conducted in it, and of receiving the
offerings at the shrine, is not saleable. 1388 The right to officiate at funeral ceremonies is
also not saleable. 1389 The property of a temple cannot be sold away from the temple. But
there is no objection to the sale of the right, title and interest of the servant of a temple in
land belonging to the temple which he holds as remuneration for his service, the interest
sold being subject in the hands, of the alienee to determination by the death of the original
holder, or by his removal from office for failure to perform the service. 1390 Crops standing
on properties which constitute emoluments of archaka service are liable to attachment and
sale in execution of a decree. 1391

(e) Service of a Public Nature. Land burdened with the performance of a service of a public
nature, e.g. land held on Swastivachakam service tenure, is inalienable, and cannot be
attached. 1392

(f) Chhotanagpur Encumbered Estates Act, 1896. Land released from management under the
Chota Nagpur Estates Act, 1896, is under s 12 A of that Act inalienable during the life-
time of the holder without the sanction of the commissioner. Without such sanction it
cannot be attached and sold. 1393

(g) Restraint Upon Anticipation. The income of property subject to a restraint upon
anticipation accruing due after the date of the judgment, cannot be attached in execution
of a decree against the separate property of a married woman passed under s 8 of the
Married Womens Property Act, 1874. 1394

(h) Right of Residence. The right of a widow under the Hindu law to reside in her husbands
family house is a purely personal right and cannot be transferred. Such right cannot be
attached in execution as it is not saleable property, 1395 even if the right has been asserted
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by her by obtaining a decree in a subsequent suit against the creditor purchaser of the
house. 1396

(i) Right of a Patentee. See the case under noted. 1397

(j) Burmese Marriage Property. The interests of parties to a Burmese Buddhist marriage in the
marriage property is an indeterminate interest and not saleable within the meaning of this
section. 1398 Under s 10 of the Employees Provident Funds and Miscellaneous Provisions
Act, 1952, the amount standing to the credit of a member in the fund is immune from
attachment. This immunity is available, even to a fund managed under a scheme framed by
the organisation under the act. 1399 There was unimpeachable evidence that a widow was
residing in a part of a building, with her children. The decree-holder was not establishing
that the widow was residing elsewhere or, that the property in dispute was in the
possession of any person other than the widow. Objection under s 47, to the effect that
being a residential house, it could not be attached in execution of a decree, was upheld. 1400

(k) Interest of Tenant of a Non-residential Premises. Section 56 of Maharashtra Rent Control Act,
1999 leaves no manner of doubt that it enables the tenant to claim or receive any sum of
any consideration, as a condition of the relinquishment, transfer or assignment of his
tenancy of any premises. It indicates that the tenant has a disposing power in respect of the
interest in the tenancy in the non-residential premises for his own benefit either by
surrendering it to the landlord for any sum or consideration or transfer or assign the
tenancy for consideration. Clause (kc) appended to the proviso of sub-s (1) of s 60, Code of
Civil Procedure prohibits the attachment and sale of interest of the lessee of a residential
building to which the Maharashtra Rent Control Act, 1999 applies the Rent Control Act
applies but the said prohibition is not applicable to the interest of a tenant of a non
residential premises to which the Act applies and therefore, it can safely be held that the
interest of the tenant in the non-residential premises to which the Act of 1999 applies is
attachable and saleable in execution of the decree against the tenant. 1401

Section 56 of Maharashtra Rent Control Act, 1999, gives a valuable right and creates a
further interest in respect of premises let to a tenant. In view of s 56 of the 1999 Act a
fortiorari tenancy rights of a tenant constitute saleable property and give tenants a disposing
power in respect thereof and the same are, therefore, liable to be attached and sold in
execution of a decree. Tenancy rights thus can be attached and sold in execution of a
decree. However, this cannot affect the rights of the landlords/head tenants in any
manner, for the right of a tenant under s 56 of the 1999 Act can only be exercised with the
consent of the landlord. In execution of a decree against the tenant-sub-tenant, the court
cannot force an unwilling landlord/head tenant to enter into such an agreement. But if
such an agreement is entered into by the landlord or head tenant with a tenant or sub-
tenant as the case may be, the consideration received by the latter is liable to be attached
and sold. Further, if the landlord and/or the head tenant is willing to enter into an
agreement as contemplated in ss 26 and 56, it would be possible for the executing court to
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force the tenant or sub-tenant to enter into an agreement contemplated therein. Needless
to say, the executing court at that stage would not confirm the agreement, sale, assignment
or transfer unless it is satisfied that the same was reasonable, fair and genuine. In this
regard, such a sale would be no different from a sale of any other property. 1402

8. Property. A sues B for partnership accounts. The question of accounts is then referred
to arbitration with the consent of the parties. Before the award is made, X , a creditor of A
, applies for attachment of the rights and interest of A in the award. The attachment
cannot be allowed for the expectant claim under an inchoate award is not property within
the meaning of this section. 1403 Money paid into court, as a fine in a criminal case against a
judgment-debtor is, after the order imposing the fine is set aside, attachable under this
section, as money belonging to the judgment-debtor even before the issue of a refund
certificate. 1404 Money deposited by a judgment-debtor, voluntarily, in another suit is liable
to attachment though such attachment has to abide the result of that suit. 1405 Where the
judgment-debtor acquired certain bhoomidari rights, and on her death, her adopted son
succeeded to them, those rights were the assets of the deceased and were liable to be
attached in execution of a decree against the deceased. 1406 An annuity payable to a deity
under the UP Zamindari Abolition and Land Reforms Act, 1950 in lieu of the zamindari
property is liable to he attached in execution of a decree against the deity. 1407

The doors and windows of a building cannot be separately attached, for they have no
separate existence as property. 1408 An unascertained right in unascertained property could
not be the subject of attachment. 1409

Coparcenary Property. A creditor having a decree against a Hindu father alone, can attach and
sell in execution thereof, the interest of the sons in the joint Hindu family property, on the
principle of pious obligation of the sons to discharge the liability of the father. Even if the
decree is against the father alone and whether the sons are represented by the father or
not, the judgment-creditor can proceed to execute the decree against the sons interest in
the joint family property unless the debt is held to be avyavaharika. 1410 But, if there has
been a partition between the father and the sons, a decree obtained thereafter against the
father cannot be executed against properties which have fallen to the shares of the sons,
even though the debt in respect of which the decree was passed was contracted before the
partition. 1411

9. Disposing power. A property may not belong to a judgment-debtor, and yet he may
have a disposing power over it exercisable for his own benefit. In such cases, the property
is liable to attachment and sale, subject to the proviso to this section.

(a) Trustee of a Charity. A trustee of a religious endowment has no disposing power over the
corpus of the trust estate exercisable for his own benefit; hence the corpus cannot be
attached. 1412
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(b) Life Interest. Where under a compromise with a reversioner, a Hindu widow was allowed
to keep certain property for her life, and she agreed not to alienate it, and on her death, the
property was to pass to the reversioner, it was held that she had no disposing power over
the property. 1413 In the case of an impartible zamindari , if a junior member is given a
specified share in profits in lieu of maintenance during his life-time, unless the right to
receive profits corresponds to joint ownership in the property, it has been held that the
right is purely personal and is not capable, of being attached. 1414

(c) Bonus Sanctioned by Railway Company. A bonus sanctioned by a railway company, to its
servant, is virtually a gift which must be completed either by a document or by act ual
payment as required by s 123 of the Transfer of Property Act, 1882. A railway company
sanctioned a bonus toA , and the amount was forwarded to the district paymaster of the
company for payment to A. Before the amount was paid to A , it was attached in the
hands of the paymaster by a creditor of A . It was held that the amount could not be
attached, for the gift was not complete, and A had, therefore, disposing power over the
money. 1415

(d) Delivery to Post Office.A sends a cover containing currency notes to the post office for
delivery to B , the addressee. Can the cover be attached while it is still in the Post Office by
a creditor of B ? It has been held that it can be attached, the reason given being that the
cover is in the disposing power of B . When once the letter has been posted, the property
in it becomes vested in the addressee. 1416

(e) Auctioneer. An auctioneer has no disposing power over the whole of the sale proceeds of
goods sold by him, but only over that portion of it which represents his commission.
Hence, the whole of the sale proceeds in the hands of an auctioneer cannot be attached in
execution of a decree against him. but only so much of it as represents his commission. 1417

(f) Life Policy. Where a married man effects a policy on his own life, and the policy is
expressed on the face of it to be for the benefit of his wife, or of his wife and children or
any of them, then, in cases to which the Married Womens Property Act, 1874, applies, the
simple declaration on the face of the policy that the policy is for the benefit of his wife or
children amounts to a trust for them, and the policy cannot be attached by his creditors
[see s 6 of the Act]. But in cases to which that Act does not apply, such a declaration is not
sufficient to create a trust, and the insured has a disposing power over the policy for his
own benefit, and the policy may be attached by his creditors, unless it has been assigned as
provided by s 130 of the Transfer of Property Act, 1882, or a trust has been declared in respect
thereof as provided by s 5 of the Indian Trusts Act, 1882. But, where the policy is not
expressed to be for the benefit of the wife or children, and they are simply named as the
persons who are to receive the amount in case of the prior death of the assured, there is no
trust created and the amounts continue to belong to the assured and can be attached.1418
There was a conflict of opinion as to whether s 5 of the Act applied to Hindus, for it was
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held by the High Court of Madras that it did, 1419 and by the High Courts of Bombay, 1420
and Calcutta, 1421 that it did not. But the Act has been amended (see Act 13 of 1923), and
the provisions of that section are made applicable to policies of insurance effected by
Hindus, Mahommedans, Sikhs or Jains in Madras after 31 December, 1913 (being the year
of the Madras decision), and in other parts of British India after 1 April, 1923; but nothing
contained in the Amending Act is to affect any right or liability which has accrued or been
incurred under any decree of a competent court passed before 1 April, 1923. The word
property is used in the widest possible sense and includes properties belonging to the
coparceners of a joint Hindu family over which the father and the manager has a disposing
power. 1422 Money deposited in court can be attached but the attachment will be subject to
the result of the suit. 1423

10. Debts. Debts are expressly mentioned in the section, and they are liable to attachment
and sale. A debt is an obligation to pay a liquidated (or specified) sum of money . 1424
Money that has not yet become due, does not constitute a debt, for there is no obligation
to pay that which has not yet become due. The word debt, in this section, means an act
ually existing debt, that is, a perfected and absolute debt. Rent, which has not become due,
is not a debt and cannot be attached. 1425 A sum of money which might, or might not,
become due, or the payment of which depends upon contingencies which may or may not
happen, is not a debt. 1426 A money-claim that has already become due is a debt, and it may
be attached as such, though it may be payable at a future day; but a money-claim accruing
due is not a debt and cannot be attached. The attachment must operate at the time of the
attachment and not be anticipatory so as to fasten on a claim that may ripen into a debt at
some future time. 1427 A debt for the purpose of being attachable need not have become
payable. For instance, a bond which has not matured and which will become payable after
some time, is a debt which can be attached and sold. 1428 So also, it has been held that a
debt due to the judgment-debtor under a promissory note is attachable even though the
note has been endorsed to a benamidar , who holds it in trust. 1429 But, it would be
otherwise if the endorsement was made bona fide in favour of a third party. A contractor to
the military authorities entered into an arrangement with a bank. The arrangement was that
the bank would finance him against his bills for supplies under the contract. The
contractor executed an irrevocable power of attorney in favour of the bank, authorising the
bank to receive payment of the bills. The contractor made out a bill on the authorities and
delivered the same to the bank for collection, with the endorsement that the amount under
the bill should be paid to the bank. The bank duly sent the bill for payment, but before it
could receive payment, a judgment-creditor in execution of a money-decree, attached it.
The attachment was held not to be valid on the ground that the power of attorney coupled
with the endorsement on the bill, amounted to an equitable assignment of the fund by way
of security. 1430 The word debts includes a share of debts. 1431 A mere right to receive
profits, the profits not having yet accrued due, is not attachable. 1432 The right to receive
profits in future, unless it is incidental to the ownership of property, is incapable of being
attached and sold. 1433 But a decree directing an inquiry into, mesne profits can be attached
and sold. 1434
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A debt that is enforceable, only by a foreign court, is not liable to attachment under this
section. 1435

ILLUSTRATIONS

(i) A delivers goods to his agent, B , for sale. B sells the goods, and receives the sale
proceeds. The sale proceeds in the hands of B constitutes a debt due to A , and they may,
therefore, be attached while in B s hands in execution of a decree against A , Madho Das v.
Ramji . 1436

(ii) A is bound under a deed to pay a monthly allowance to B for B s maintenance. C , who
holds a decree against B , attaches, in August, the allowance for September. The
attachment is not valid, for the allowance can only be attached as a debt and the allowance
for a debt due to B at the time of attachment in August: Haridav v. Barbda Kishore . 1437

(iii) A agrees to sell his property to B for Rs 2,000 to be paid to A on the execution of the
conveyance. The purchase-money payable to A is not a debt owing to him by B until the
conveyance is executed, Hence, its cannot be attached before the execution of the
conveyance in execution of a decree against A , Ahmaduddin v. Majlis Rai . 1438 But once the
sale is completed, the amount representing the purchase-money may be attached in the
hands of B , and it does not make any difference that the whole is payable in one sum or
by instalments or in the shape of periodical payments; Harshankar v Baijnath . 1439 (iv)
Maintenance allowance that has already become due, private pensions that have already
become due, and the wages of private servants [other than those mentioned in cl (h)] that
have already become due are debts within the meaning of this section, Kasheeshuree v. Greesh
Chunder ;(maintenance) 1440 Bhoyrub v. Madhub Chunder ; 1441 Ayyavayyar v. Virasami ; 1442 Devi
Prasad v. Lewis . 1443 But arrears of maintenance payable under the order of a criminal court
are not liable to attachment as a debt, if the right to receive maintenance is only a personal
right created by the order, Giribala Dasi v. Nirmalabala . 1444

(v) A agrees to advance Rs 5,000 to B on a mortgage of B s property. B advances Rs 3,000

only. C , who holds a decree against B , seeks to attach the balance, of Rs 2,000 payable by
A to B as a debt due by A to B . C cannot attach the balance, for it is not a debt due by A
to B . It is clear that if A fails to pay the balance, B is not entitled to specific performance,
and his only remedy against A is by way of damages for non-payment of the balance, Phul
Chund v. Chand Mal ; 1445 Sewa Singh v. Milki Singh . 1446

As to the mode in which a debt may be attached, see O 21, r 46; and O 21, r 79.

11. Clause (a): Cooking vessels. This clause should be liberally interpreted. Cooking
vessels are not only vessels in which food is actually cooked, but also vessels necessary for
cooking operations, such as a thali and a Gagra. 1447
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12. Clause (a): Ornaments. Ornaments on the person of a Hindu wife, forming part of
her stridhan, cannot be attached in execution of a decree against the husband, even though
the Hindu law concedes him a personal right of user. 1448 The mangalsutra, a neck ornament
which is worn by a Hindu married woman during the life-time of her husband without
ever removing it, is also exempted from attachment. 1449 A dress or a personal clothing
intended for wearing is wearing apparel, whether used or new. If a new apparel is kept for
use at a future date, it is nonetheless a wearing apparel. 1450

13. Clause (b): Tools of artisans. In Ramachandra Ayyar v. Sesha Ayyangar , 1451 it was
observed The word artisan had a well-recognised meaning and is roughly synonymous with
craftsman or mechanic.

See also the undermentioned cases for the meaning of the word artisan. 1452 This clause
should be liberally construed. Even tools of complicated character such as those of a
goldsmith would fall within the proviso, 1453 as also a lathe, a drilling machine and a
weeding machine, too, operated by electric power. 1454 Nor is it necessary that they should
act ually be in use at the time of the attachment. It is sufficient if they can be used when
required. 1455 Sewing machines in a tailors shop are exempt from attachment under this
proviso. 1456 Mechanical tools are covered by s 60 (1), proviso (b) of the Code of Civil
Procedure (case law reviewed). 1457 The following have been held not to be artisans: a
surgeon or doctor, 1458 a musician, 1459 a firm. 1460 A person who does not himself use the
lathe machines is not an artisan (even assuming that lathe machines are tools), if the
machines are actually used only by his employees. In Bindeshari v. Banchilal , 1461 an extended
meaning was given to the word artisan as including a person who works in the production
of commodities, and it was held that a soap boiler who practiced the art of making soap
was an artisan and the paraphernalia of his soap factory were the tools of an artisan. So
also, utensils used for making sweetmeats were held to be tools of an artisan. 1462 But these
decisions were dissented from by the Madras High Court in Ramachandra Ayyar v. Sesha
Ayyangar and Punnavanam v. Muthuswami Achari and by the Rajasthan High Court in
Kanhayalal v. Sunderlal , wherein it was held that a halwai was not a mere artisan, but more a
shopkeeper who purchased commodities and processed them and that accordingly utensils
used by him for preparing sweetmeats were not exempt from attachment under this
proviso.

14. Clause (b): Implements of husbandry. Charaks, kadhais, and planks of timber used
by an agriculturist for extracting sugar juice from sugarcane which he has grown on his
field, and for turning into jaggery, are implements of husbandry, within the meaning of cl
(b), and are exempt from attachment. 1463 It has been held that a motor tractor cannot be
said to be an implement of husbandry. It is not indispensable to agriculture. 1464 It was
however held in Dwarka v. Meerut Municipality , 1465 that even a tractor used for large-scale
agricultural operations fell within this proviso but this decision had been dissented from by
the High Court of Madhya Pradesh which has held that engines and pumps installed for
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running a flour mill are not implements exempt from attachment under this proviso. 1466
The High Court of Madras also has held that an oil engine used as a quick mode of
drawing water from a well is not indispensable to an agriculturist to cultivate his land and is
not accordingly exempt from attachment. The ground on which the High Court so held,
was that the principle underlying cl (b) is that artisans who depend for their livelihood on
the tools which they possess or the implements of husbandry which they, as agriculturists,
require to earn, their livelihood should alone be exempted and that the word livelihood in
the clause connoted the idea of means of living or subsistence. 1467 The question arises
whether the pump set is an implement of husbandry belonging to an agriculturist and
exempt from attachment and sale under sub-cl (b) of s 60 (1). The Supreme Court, despite
having an opportunity in the above noted matter, decided not to pronounce a finding on
the above subject, hence, the conflicting High Court judgments would prevail in the
respective area. 1468

15. Clause (c): Houses occupied by agriculturists. The term agriculturist includes
persons engaged in cultivating the soil for remuneration, although they may have no
interest in the soil either as proprietor or tenant. 1469 It means a small holder who tills the
soil and cultivates it and not a large landed proprietor, even though his sole income is from
land. 1470 The term means a person who personally engages himself in tilling the soil and
whose livelihood depends upon the proceeds derived from that tillage of the soil. The true
test is whether a man personally engages in tilling and whether this occupation is essential
to his maintenance. 1471 In Pattabhirama Rao v. Venkatasubbamma , 1472 it was held that a
person might be an agriculturist even though he cultivated the lands, not personally, but
through labourers, if he maintained himself from the income therefrom. In Chandravathi
Tewari v. UP Government , 1473 a Full Bench of the Allahabad High Court held on a review of
the authorities that whether a person was an agriculturist depended not on whether the
income from the lands was the main source of his livelihood but whether his main
occupation was agriculture, i.e. , tilling the lands or directing or supervising agricultural
operations. An agriculturist does not cease to be one when he is unable to cultivate his
land in a year of scarcity. 1474 The meaning of the word agriculturist in this provision came
up for consideration before the Supreme Court in Appasaheb v. Bhalchandra , 1475 and it was
held that before a person could claim to be an agriculturist he must at least show that he
was really dependent for his living on tilling the soil and was unable to maintain himself
otherwise. It was accordingly held that a person who had a substantial income from lands
other than those cultivated by him as home farm lands and also cash allowances, was not
an agriculturist and that a building constructed by him was not within the exemption. In
the case of a minor, if it is shown that his main income is derived from agriculture, it is
immaterial that his lands are cultivated by labourers engaged for that purpose. Such a
minor is an agriculturist. 1476 The Code of Civil Procedure 1882 (now replaced CPC, 1908), s
266, exempted from attachment only the materials of houses occupied by agriculturists.
But it was held that even a house occupied by an agriculturist could not be attached
provided it was occupied by an agriculturist as such, 1477 that is to say, it was occupied by
him bona fide for the purposes of agriculture. 1478 The burden of proving that it was so
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occupied, lies on the agriculturist-debtor and it must be proved by him in execution

proceedings . 1479 The exemption extends after the death of the agriculturist, to his
representative occupying the house in good faith as an agriculturist. 1480 If, under a deed of
settlement, the settlee had only the right to enjoy the income of the house, without any
power to alienate it and after his death the house was to go to his heirs absolutely, the right
conferred on the settlee was not attachable in execution of a decree for maintenance of his
wife; but a receiver can be appointed to collect the rent and thus satisfy the decree. 1481 If,
however, a money-decree was passed against a person, who was not an agriculturist, and
his non-ancestral house was attached during his life-time, and the house was on his death
inherited by his son, who occupied it as an agriculturist, it was held that the house could
not be released from attachment. 1482

The right under the above provision is a personal right available to an agriculturist or a
labourer or a domestic servant. It is neither heritable nor alienable. It can be enforced only
during the life time of the person who is entitled to claim the right and after the death of
the person concerned, the said right ceased to exist. 1483 But if, by a consent decree, an
agriculturist agrees in consideration of time being given to him that his house may be
attached and sold on default in payment of the decretal amount, the house may be attached
and sold on default, 1484 for the privilege is one that may be waived. 1485 According to the
High Court of Andhra Pradesh, the protection under s 60 (1) proviso (c) cannot be
waived. The protection given to the agriculturist against attachment of his residential
house, is based upon high public policy of the state as any interruption of agricultural
operations is against the national interests and it may lead to fall, in agricultural production.
Such policy of the state cannot be defeated and any waiver of such a right is opposed to
public policy. 1486 It is submitted that the Andhra view is the correct view.

If a house occupied by an agriculturist is specifically mortgaged, it is not protected from

sale in execution of a decree upon the mortgage. Clause (c) does not prohibit the sale of
property specifically mortgaged, though it may be occupied by an agriculturist as such,
unless he is prohibited by law from mortgaging or selling it. 1487

Under this clause, the main residential building and all other buildings attached to it, would
be within the exemption. When the whole building is used for residential purposes, the fact
that there is a shop in the ground floor, will not take it out of the exemption. 1488 What is
contemplated is act ual possession. A house which is dilapidated and unoccupied and not
used for agricultural purposes is not exempt. 1489 The exemptions enumerated in s 60 are
applicable to proceedings by way of attachment and sale by the official receiver in exercise
of powers vested in him under the Provincial Insolvency Act, 1920.1490 It has been held that
the special provisions in favour of agriculturists do not offend Art. 14 or Art. 15 of the
Constitution. 1491

The Amendment Act, 1976, has extended the benefit now to a labourer and a domestic
servant. Both terms labourer and domestic servant are used in their ordinary meaning and
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not in any technical sense. A house or a building belonging to and occupied by a labourer
or a domestic servant would have the benefit of this clause. The court, in an execution
proceeding for the realisation of decretal amount by selling the immovable property (viz.
residential house), found that the judgment-debtor was not an agricultural labourer, but
was only a mason by profession. Still, the refusal of the benefit of s 60 (1), proviso (c) to
the judgment-debtor was unjustified. Initially, the burden is on the judgment-debtor to
show that he is entitled to the benefits of s 60. But, once he has discharged his burden and
the decree-holder adduces evidence that the judgment-debtor is not an agricultural
labourer, but is only a mason, the finding given by the lower court must be accepted. A
mason by virtue of the nature of the work that has been done by him, can be termed as a
skilled labourer. Therefore, the judgment-debtor, who is mason and who is residing in his
own residential house, is entitled to claim that his residential house is not liable to
attachment and sale in execution of a decree, in view of s 60 (1) (c) read with Expln IV to
the proviso. 1492

16. Clause (e): Right to sue for damages. Mesne-profits are in the nature of damages,
and the right to sue for mesne-profits is a right to sue for damages. Such a right cannot,
therefore, be attached and sold in execution of a decree against the person entitled to the
right. Thus, if A is entitled to claim mesne-profits from B for wrongful dispossession of
his lands, A s right to claim mesne-profits from B cannot be attached and sold in
execution of a decree against A . If the right is attached and sold and purchased by X, X is
not entitled to sue B for the mesne-profits, the sale to him being void. 1493 An insolvents
right to sue for contribution is not a right or property, under this clause, exempting it from
vesting in the official receiver under s 28 (5) of the Provincial Insolvency Act, 1920.1494 For the
test of mere right to sue for damages see Bansigopal v. P.K. Banerji. 1495 17. Clause (f): Right
of personal service. A vritti is a right to receive certain emoluments as a reward for
personal service, and is, therefore, exempt from attachment and sale. 1496 But a priests
share in the utpat or net balance of the offering to a deity may be attached and sold. 1497
The birt maka brahmani , or right to officiate as a priest at the funeral ceremonies of Hindus
dying within a particular district is a right of personal service and cannot therefore be
attached. 1498 Jatri bahis, which merely contain the names and addresses of pilgrims who are
clients of the judgment-debtor and which are of use to him to perform personal service to
the pilgrims are not attachable. 1499 Gangaputras occupy sites on the bank of the Ganges
where they erect wooden platforms for the use of pilgrims who bathe there and from
whom they receive offerings. This right to offerings is a right of personal service and
cannot be attached; but the right of occupancy of the sites and wooden platforms are
attachable. 1500 A pala or turn of worship is by custom alienable to persons within a limited
circle and is attachable. 1501 Where the khadims share in the offerings of the shrine was by
custom allowed to be sold among the khadims themselves, it was held that the right to such
a share was liable to attachment and sale in execution of a decree but that the right should
be sold only to a khadim . 1502 In the absence of any custom to the contrary or connection
between the shares of the offerings of a temple and the right to officiate as a priest thereof,
the shares cannot be said to be emoluments attached to the office and are liable to
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attachment and sale. 1503 Money due to a firm of managing agents is not for personal
service and so can be attached. 1504 The right of the judgment-debtor to receive offerings
in the Kalkaji temple, Delhi, was held to be exempt from attachment under this proviso as
no custom sanctioning transfer was established. 1505

18. Clause (g): Gratuity allowed by Government or local authority or any other
employer. The gratuity referred to in this section is a bonus allowed by government to its
servants in consideration of past service. It may be allowed to one who is not a pensioner
or it may be allowed to a pensioner in addition to his pension. In either case, it is exempt
from attachment. 1506 The amount earned by a deceased employee (judgment-debtor)
which has become payable to his legal representative, is not exempt from attachment. The
amount had lost the character of gratuity, as it is now payable to the legal representatives
of the employee. Once the employee dies, it cannot be held that the department holds the
money in trust for the legal representatives. 1507 Gratuity amount due from the Postal
Department to the heirs of a deceased judgment-debtor is within this proviso and cannot
be attached. 1508 The exemption, now, applies also to stipends and gratuities allowed to
pensioners of a local authority or of any other employer. Gratuity payable to an employee
under the Payment of Gratuity Act, 1972 would now be exempt from attachment and sale.

19. Stipends payable out of service family pension fund notified in the Official
Gazette. For notifications issued under this clause [i.e. cl (g)], see General Statutory Rules
and Orders, Vol III.

20. Political pensions. All pensions of a political nature payable directly by the
Government of India are political pensions. A pension which the Government of India
has given a guarantee that it will pay by a treaty obligation contracted with another
sovereign power is a political pension. 1509 Khandan allowance granted under the Tonk
Khandan Rules is political pension and exempt from attachment. 1510 Arrears of political
pension due to a pensioner and lying in the hands of government at the time of his death
do not lose their character of political pension by reason merely of the pensioners death.
The character of the fund remains unchanged so long as it remains unpaid in the hands of
government and it is not liable to attachment in the hands of government in execution of a
decree against the deceased. But once the fund has passed out of the hands of government
into the hands of the legal representative of the deceased, it may be attached like any other
portion of the deceaseds estate. 1511 Where the amount is disbursed and it goes into a bank
account it would retain its original character until the amount is withdrawn from the bank
account or converted into any other assets or investment. This carry over period would be
relatively short and the readdressed would be as to whether the disbursement is still intact
in its original form. If that is so, it could still be identifiable in its original status and the
immunity would carry over. 1512

A grant of a zamindari by government as a reward for past services rendered by a person

to government is not a pension, but a gift, and may, therefore, be attached in execution of
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a decree against the grantee. The word pension in this section implies periodical payments
of money by government. 1513 Cis-sutlej jaghirs have been held to be exempt from attachment
under this proviso. 1514 Allowances granted to the Candyan pensioners of Ceylon, 1515 to the
members of the family of the King of Oudh 1516 to the members of the Mysore family, 1517
and to the descendants of the Nawab of Carnatic, 1518 or paid by a foreign State by an
arrangement with the Government of India to a deposed Maharaja, 1519 are instances of
political pensions. Compensation paid to Jagirdars when their estates were abolished and
taken over by government 1520 and compensation paid to displaced persons 1521 are not
political pensions. The view expressed by the High Court of Madhya Pradesh in Usman Ali
Khan v. Sagarmul , 1522 that privy purse given to a prince on the merger of his state in the
Union of India was not a political pension was reversed by the Supreme Court in appeal
1523 on the ground that the periodical payment of money by the Government of India to a

ruler of a former Indian State as privy purse was made on political considerations and
under political sanctions and not under a right legally enforceable in any municipal court.
Such a payment was strictly a political pension and the use of the expression privy purse
instead of the expression pension, being due to historical reasons, was immaterial.

21. Private pensions. Private pensions, as distinguished from government pensions, are
not exempt from attachment and they may be attached either as debts or as property
belonging to the judgment-debtor within the meaning of this section. But they neither
constitute debts nor property belonging to the judgment-debtor until they have become
due and payable. Hence, they cannot be attached before they have become due and
payable. Pensions granted by railway companies to their servants were held to be private
pensions. 1524

22. Clause (h): Wages of labourers. A labourer is a person who earns his daily bread by
personal manual labour, or in occupations which require little or no art, skill or previous
education. 1525 Thus, persons who agree to spin cotton and to receive a certain amount of
money for a certain quantity of cotton spun by them are labourers, and their wages cannot
be attached. 1526 A weaver in a textile mill is a labourer within this proviso 1527 but not a
clerk. 1528 A winchman working under the Calcutta Dock Labour Board is not a labourer
since before he could be engaged he had to undergo training prescribed by s 21 of the
Calcutta Dock Workers (Regulation of Employment) Scheme. 1529 The old provision only
applied to the wages of labourers and domestic servants and there was no provision to
exempt the salary of a person in private employment. It was observed in the
undermentioned case 1530 that from the collection of words used in the clause, it was
arguable that the word salary in the clause was intended to mean salary of labourers and
domestic servants only. It has, however, been held that though the latter part of the clause
should have been the subject of a separate clause, yet on a consideration of the entire
section, there is no doubt that the clause protects from attachment, salary of all persons in
receipt of it other than public officers and servants of a railway company or local authority,
so far as the protection goes. 1531 These questions do not, now, arise as the subject of
wages of domestic servants and labourers has been put in a separate clause.
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There is a conflict of judicial opinion on the question whether wages include bonus
declared and payable to labourers. One view is that bonus is, as held by the Supreme
Court, 1532 a payment contingent on the earning of profits and is ex gratia and it is therefore
not wages, and is liable to attachment. 1533 As against this, it has been held that bonus
might be impressed with the character of wages either by statute or by agreement of
parties, that, in such cases, it cannot be attached and the question must be decided on a
consideration of the facts of each case. 1534 On consideration of the definition of gratuity
in different enactments, and the board analogy of the term with bonus, gratuity, payable on
retirement, to a labourer has been held to be wages; 1535 so also bonus. 1536

23. Clause (i): Salary. The clause applies to all salaries and is not confined to salaries of
any particular category or categories of persons. The Amendment Act, 1976, has increased
the exempt amount from the first two hundred and one half of the remainder to the first
four hundred 1537 rupees and two-thirds of the remainder. The proviso to the clause gives
additional protection. So far it applied only to government officers, railway employees and
employees of a local authority. As now amended, it applies to all employees. The salary can
be attached only partially, since it is exempt to the extent of the first four hundred rupees
and two-thirds of the remainder. In view of this exemption it was held that a public officer
could not be required to pay into court, a part of his salary as a condition precedent to his
being adjudged insolvent. 1538

The exemption did not occur in the Code of Civil Procedure 1859 (now replaced by CPC,
1908). Hence the salary of the persons mentioned in the clause was attachable to the extent
of the whole as debt. It was, therefore, not attachable until it had become due. 1539 Under
the subsequent Codes of 1877, 1882 and the present Code of Civil Procedure 1908, the salary
to the extent to which it is attachable, may be attached in advance. 1540 Originally, the
object of the exemption appears to be to enable an officer to maintain himself and his
family in a position suitable to his rank. Now the object is human consideration. But as
regards the portion of the salary that is attachable, it not a valid reason for refusing that the
attachment, if allowed, would not leave the judgment-debtor enough to live on. 1541 A
member of a provincial legislative assembly was held not to be a public officer and
therefore O 21, r 48 would not apply to him. 1542

This clause does not apply to arrears of salary. 1543 Dearness allowance has been held to be
part of salary and should be taken into account in calculating the attachable amount. 1544
But it would be otherwise where there is a statutory provision specifically exempting it
from attachment. 1545 The deductions made on account of provident fund under the
Provident Funds Act, 1925 as also under the provisions of the Income-tax Act, 1960 (now
replaced by Income Tax Act, 1961) by way of advance income tax should be made from the
non-attachable portion of the salary.1546 But the deduction of amount towards repayment
of temporary advance taken from General Provident Fund is not exempt and cannot be
excluded from attachment of salary. 1547 It has been held that when, salary has become
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exempt from attachment under the proviso to this clause, it would not be legal to appoint
a receiver therefore as that would be defeating the policy underlying it. 1548 Even where a
part of the attachable portion of the salary has been under attachment for 24 months, the
prescribed exemption applies. 1549 A comparison of s 60, prior to amendment and after
amendment, would show that in so far as attachment beyond 24 months is concerned,
there is no change, though the extent of salary which can be attached under the provision
now in force is more, which is, in fact, beneficial to the decree-holder. Therefore, in so far
as attachment beyond 24 months is concerned, there is no difference in the provision as it
existed at the time when the rule came in force, and the provisions now applicable in that
behalf. 1550

24. Salary of private servant. Explanation I : The moneys payable in relation to

matters exempt from attachment or sale. Prior to its recent amendment, a distinction
was made between particulars mentioned in cll (g), (h), (i), (j), (l) and (o) and salary of a
person other than that of a servant of the government, railway company or local authority
in that the former were exempt from attachment or sale whether before or after they were
actually payable and the latter only when lit was act ually payable. In view of this
distinction, it was held that the salary of a private servant to the extent allowable could be
attached a debt and hence it would not be attached before it had become due. 1551 This
distinction has now been done away with by the amended Expln (I). Hence it can be
attached in advance and before it has become due.

25. Clause (j). The pay of soldiers and followers of the Indian Army is under s 28 of the
Army Act, 1950 and is exempt from attachment.

26. Clause (k): Compulsory deposits in Provident Funds. The expression compulsory
deposit is defined in s 2 (a) of the Provident Funds Act, 1925 as being a subscription to, or
deposit in, a provident fund which, under the rules of the Fund, is not, until the happening
of some specified contingency, repayable on demand otherwise than for the purpose of the
payment of premium in respect of a policy of life insurance, and includes, etc. By s 3 of the
Act it is provided that a compulsory deposit in any government or Railway Provident Fund
shall not be liable to attachment under any decree or order of any civil, revenue or criminal
court in respect of any debt or liability incurred by the subscriber or depositor. A
compulsory deposit cannot be attached so long as it retains the character of compulsory
deposit. Thus contribution to the funds under the Employees State Insurance and
Employees Provident Fund Act, though not mentioned in the clause should be given the
benefit of exemption. 1552 An objection to attachment of compulsory deposit can be made
by the garnishee. 1553 This also applies to the provident fund of any institution to which
the provisions of the Act have been extended. 1554 A deposit which when it was made, was
a compulsory deposit, continues to retain that character so long as it remains in the hands
of the railway company. Portion of salary to be paid as compulsory deposit in Provident
Fund does not assume the character of compulsory deposit until the deposit is act ually
made. 1555 It does not lose that character though the employee may have ceased to be in
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the service of the company by retirement, resignation or dismissal, and though he may
have become entitled in that event to be paid the amount due to his credit in the provident
fund. It has been held by the Supreme Court that provident fund remaining unpaid to the
subscriber after his retirement retains its character as a compulsory deposit and cannot be
attached nor could a receiver be appointed therefore. 1556 In a case, the Supreme Court has
further held that so long as the provident fund dues are not paid to the government
employees on retirement or otherwise, the government is a trustee in respect of them and
has, as such, an interest in maintaining an objection in the court against attachment. 1557 It
makes no difference that the amount had been transferred from the provident fund
account to a miscellaneous account. 1558 But once it is paid out by the company on the
happening of any of the above events, it loses the character of compulsory deposit and it
may be attached in the hands of the party to whom it has been paid. 1559 Where a
subscriber to the Railway Provident Fund elected to be governed by the Provident Funds
Rules and requested payment in sterling and by bank draft in a bank in England and the
Railway Administration drew thereupon cheques in favour of the Reserve Bank with
instructions to convert them into sterling and to transmit the amounts to be subscribers
bank in England, it was held that the Reserve Bank was the agent of the Railway
Administration and not of the subscriber and therefore the monies remained under the
control of the Railways as Provident Fund money and was exempt from attachment. 1560
The same principle applies to the case of an optional subscriber who cannot, under the
rules, demand payment of his deposits at his option. 1561 Under s 3 (2) of the Provident
Funds Acts 1925 any sum standing to the credit of a subscriber vests on his death in the
dependent to whom it is payable under the rules of the Fund; it cannot therefore be
attached as assets of the deceased. 1562 Gratuity payable to government pensioner cannot
be attached, even in enforcement of an order relating to maintenance. Even if the
pensioner has not raised the objection, the attaching creditor cannot get the benefit of the
attachment. 1563

Annual contribution of an employee to the Provident Fund cannot be deducted from the
salary, for calculating the attachable portion of the salary. 1564

Exemption of Provident Fund amount from attachment under s 60 (1)(k) is available, only
so long as the amount is in the hands of the trustees. The exemption does not survive after
the amount is received by the employee entitled to the same. 1565

A sum standing to the credit of a subscriber under a benefit fund scheme which the
company may or may not pay, in its uncontrolled discretion, is not a debt which can be
attached. 1566

A compulsory deposit is not liable to be attached under the Criminal Law (Amendment)
Ordinance 1944, its provisions being subject to s 60 (1). 1567 The Supreme Court has held
that contributions to a Provident Fund in which the subscriber has, under the rules, a
present interest and over which he has not divested himself of his power of control are not
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exempt from attachment under this proviso. 1568 Monies payable under an insurance policy
on the life of the judgment-debtor are totally exempt from attachment and sale,
irrespective of whether the policy matures during the life-time of the assured or whether
the money is payable after his death. 1569

Under the new cl (ka), deposits in funds to which the Public Provident Fund Act, 1968 applies
and which are, under that Act, exempted from attachment are under this section also
exempt. So also, the moneys payable under an insurance policy on the life of the judgment-
debtor. Under another new cl (kc) the interest of a tenant of a residential building, to
which a Rent Act applies, is saved from attachment, such interest being a personal interest
of a statutory tenant. The proviso to s 60 (1) of the Code of Civil Procedure enumerates the
properties that are not liable for attachment. As per cl (1), allowances forming part of the
emoluments notified by the government in the Official Gazette to be exempt from
attachment is not attachable. It is not disputed that the government has notified that
dearness allowance, city contributory allowance and house rent allowance are exempt from
attachment. Therefore, the said amount must be excluded in deciding the attachable
portion of the salary.1570

27. Clause (kb). The legislative object behind this exemption protected under proviso
(kb) to s 60 (1), Code of Civil Procedure, is that the money payable under the policy of
insurance of life of a policy holder is intended to give some security to his heirs and legal
representatives. Such legislative object, cannot, in any way be diluted, merely because the
policy amount sought to be attached is that of the judgment debtor or otherwise; as
otherwise, the intention of the legislature to provide security to the legal representatives of
the policy holder would be defeated. 1571

Proviso (kb) to s 60 (1) Code of Civil Procedure, no doubt, exempts all money payable under
the policy of insurance under the life of the judgment debtor, but the policy amount under
life insurance scheme only confers a right not on the policy holder but on his legal
representatives. Therefore, moneys payable under the insurance policy of a judgment
debtor are entirely exempted from the attachment and sale, irrespective of the
circumstances as to whether the insurance policy matures during the life time of the
assured or the moneys become payable after the death of the judgment debtor. 1572

28. Interest of a Lessee in a Residential Building. Section 60 of the Code of Civil Procedure,
sets out the properties which are not liable to attachment and sale. The exclusion of
properties refers specifically to residential premises under s 60 (1) (kc) and not to premises
used for non-residential purposes. 1573

29. Clause (l): Allowances of a government servant. Under the Code of Civil Procedure
1882, it had been held that, in the absences of any specific provision, allowances (being less
than salary) of a public officer, while absent from duty, stood on the same footing as the
salary of a public officer while on duty and were exempt from attachment, only to the
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extent to which salary was exempt, and no more. Thus, where an officer was on sick leave
on half pay which was Rs 150, it was held that the decree-holder could attach, only Rs 75.
1574 In 1908, when the new Code of Civil Procedure was enacted, cl (h), as it then stood, was

enacted so that the whole of Rs 150 was exempted from attachment. The present clause
makes the exemption depend upon the terms of a notification by the appropriate
government and by expln 2, any allowance declared exempt from attachment, is excluded
from the definition of the term salary. A plain reading of the provisions of s 60 (1), (l)
shows that in order that an allowance forming part of the emoluments be exempt from
attachment, two conditions must be satisfied viz. :
(i) allowance must be payable to a government servant or servant of a railway company
or a local authority; and
(ii) the said allowance must be exempted from attachment by the appropriate
government by issue of an appropriate notification in the Official Gazette, or must
be a subsistence grant or allowance to any such servant. 1575

The Explanation (1) inserted by Act 14 of 1976 states that the money payable in relation to
the matters mentioned in clauses (g), (h), (i), (ia), (j), (l) and (o) are exempted from
attachment or sale whether before or after they are act ually payable. In other words, the
amounts payable, namely, subsistence grant or allowance payable to the person under
suspension till it is in the hands of the employer is exempt. The words used is actually
payable and not paid. Therefore, there is a clear indication that the above amounts in the
hands of the employer is exempted from attachment. 1576

30. Clause (m): Expectancy of succession etc. The interest, which a Hindu reversioner
has in the immovable property of a deceased Hindu, on the death of the deceaseds widow,
is an expectancy of succession by survivorship; in other words, it is an interest expectant
on the widows death to which the reversioner can only succeed if he survives the widow.
1577 The interest in the pre-empted property of a successful pre-emptor who has not yet

paid the pre-emptive price fixed by his decree, is a merely contingent interest which cannot
be attached. 1578 But the interest which a coparcener has in money awarded to him on
partition, is a vested interest although payment is deferred. 1579 It has been held by the
Privy Council that the words or other merely contingent or possible right or interest in this
sub-clause, cannot be construed as applying only to such possible rights or interest as are
ejusdem generis with an expectancy of succession by survivorship, that is to say, with a spes
succsessionis. 1580 A contingent interest, though transferable, is not attachable; it is only
vested interests that can be attached. 1581 Thus, where a certain portion of purchase price
in respect of a house was left reserved, till certain conditions were satisfied, the liability to
pay the reserved balance becomes attachable, once those conditions are satisfied. 1582

31. Clause (n): Right to future maintenance. If A is entitled to a monthly maintenance

allowance under an agreement, the allowance cannot be attached until after it has become
due. 1583 It cannot be attached prospectively, that is, before it has become due. 1584 So long
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as maintenance granted under s 488 of the Code of Criminal Procedure 1973 is not realised
it continues to be a right of future maintenance.1585 In other words, arrears of
maintenances may be attached, but not the right to future maintenance. Where the
judgment-debtor was entitled under his fathers will to a monthly allowance and it was
claimed to be for maintenance, it was held that the decree-holder was entitled to attach
what had fallen due and become arrears, but not future allowances and that portion; only
of the allowances which could be referred to maintenance was exempt and not the excess.
1586 A hereditary grant of an allowance of paddy out of the melwaram of certain land is not a

right to future maintenance so as to be exempt from attachment under this section. 1587
Where a person holds villages under a deed, which provides that he is to hold them and
receive the profits in lieu of maintenance without power of transfer, the interest of such
person in the village is a right to future maintenance. 1588 So also, allowances directed to be
paid to beneficiaries under a deed of Wakf were held to be maintenance not liable to be
attached. 1589 Where a widow made a gift of all the properties inherited by her, from her
husband to her daughters and they, in turn, settled some properties on her for
maintenance, it was held that they could not be attached. 1590 Likewise, when properties
allotted for maintenance are transferred, subject to an obligation to maintain the transferor,
it was held that they could not be attached. 1591 But the grant of a heritable estate to a
Khorposhdar in lieu of maintenance is liable to attachment in the absence of the proof of a
special custom that his right was not absolute. 1592 But an annuity is not a right to future
maintenance, and it may be attached and sold. 1593 An annuity payable under the UP
Zamindari Abolition and Land Reforms Act, 1950 is not exempt from attachment. 1594

32. Objection that property not liable to attachment and sale: when to be raised. A
obtains a decree against B , and applies for execution of the decree by attachment and sale
of certain property belonging to B . The property is attached and sold, and purchased by C.
B then applies to the court to set aside the sale on the ground that the property was not
liable to attachment and sale. Can the application been entertained? It has been held that if
B was a party to the order for sale, or was aware of it and did not appeal against it, he is
precluded from questioning the propriety of the order after thesale, and he cannot
therefore impeach the sale. A judgment-debtor who might have raised objection prior to
the sale, but who has refrained from doing so, and who might have appealed against the
order for sale, has no right after the sale has been carried out to prefer an objection that
the property sold was not legally saleable. 1595 It has been held that; the judgment-debtor
can raise this objection that the properties are exempt from attachment under this section
at any time before sale 1596 but it is well-settled that the objection is not open when the sale
has been confirmed. 1597 But if B was not aware of the proceedings in attachment of the
property, or of the proceedings in connection with the sale thereof, the application to set
aside the sale may be entertained even after the sale is confirmed. 1598 The same rule
applies where a sale effected by the collector is sought to be set aside on the ground that
the property was not ancestral and therefore could not legally be sold by the collector. 1599
Right to object to attachment and right to object to sale are independent of each other.
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The proviso uses the word or the frequent debtor can object even after court has directed
issue of warrant. Constructive res judicata does not apply in such a case. 1600

33. Waiver: Sub-section (1A). On the question whether it was open to the judgment-
debtor to waive the benefit of the exemptions under the proviso to sub-s (1), the
authorities were divided; some holding that they could be waived 1601 and some taking the
view that they could not be. 1602 This conflict has, by enacting sub-s (IA), been resolved in
favour of the latter view that no such waiver is legal and valid.

34. Explanations: (I)(VI). In a case to which the provisions of the Amending Act of 1937
did not apply, it was held that there was nothing which restricted the word salary to an
emolument which was payable monthly or that it had reference to the emolument payable
to a man holding a permanent or a semi-permanent employment. 1603 The expression
salary as defined by Expln II means the total monthly emoluments excluding allowances
exempt from attachment under cl (1). The allowances exempt under cl (1) are first to be
deducted from the total emoluments for the purpose of arriving at the salary. That would
be the salary out of which, under cll (i) and (ia), one-third is to be excluded if the decree in
execution is one for maintenance. 1604 Dearness and house rent allowances are to be
excluded from total emoluments for the attachable portion of the salary. 1605

Explanations II to VI are definitions which are intended for clarification.

35. Application of the section. This section enacts a rule of procedure. It was accordingly
held that a creditor who had obtained a decree prior to the coming into force of the Code of
Civil Procedure on 25 January, 1950 in Rajasthan, could, in execution, attach the salary of a
judgment-debtor only to the extent provided in this section. 1606 On the same principle, it
was held that further proceedings in an execution petition which had been filed in 1951 but
were pending till 1956, could be taken, only in accordance with proviso (i) as amended in
1956. 1607 But a single judge of the Allahabad High Court has, in Sheo Baran Singh v. Mohan
Lal , 1608 taken a contrary view and has observed that the Amendment Act 36 of l963 which
raised the exemption limit of salary from Rs 100 to Rs 200 was not retrospective in as
much as cll (a) to (i) of s 60 (1) were not procedural and that they conferred substantial
rights on judgment-debtors protecting certain classes of property from attachment. On this
reasoning, the High Court rejected the judgment-debtors contention that on the enactment
of the Amendment Act, attachment of his salary which was above Rs 100 but below Rs
200, which was levied before the amendment, should be lifted.

36. Crown Debts. Debts due to the state have no priority under this section. 1609

STATE AMENDMENT

Andhra Pradesh. In its application to the Andhra area of the State of Andhra Pradesh in
cl (g) of the proviso to sub-s (1) of s 60, the words of a local authority shall be inserted
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after the words stipends and gratuities allowed to the pensioners of the Government Code
of Civil Procedure (Andhra Pradesh) (Andhra Area) Amendment Act, 1950.

Note. The title of Madras Amendment Act (XXXIV of 1950) has thus been amended by
the Andhra Pradesh Act (IX of 1961).

In its application to the whole of the State of Andhra Pradesh, in the proviso to sub-s (1)
of s 60

(i) after cl (k) the following clause shall be inserted, namely:

(kk) amounts payable under policies issued in pursuance of the rules for the Andhra
Pradesh Government Life Insurance and Provident Fund.

(ii) after expln 2, the following explanation shall be inserted, namely:

Explanation 2A.Where any sum payable to a government servant, is exempt from

attachment, under the provisions of cl (kk), such sum shall remain exempt from
attachment notwithstanding the fact that owing to the death of the government servant it
is payable to some other person. Code of Civil Procedure (Andhra Pradesh) Telengana Area,
Amendment Act (XI of 1953) originally the Code of Civil Procedure (Hyderabad Amendment)
Act (XI of 1953). This Act has been amended and extended to the entire State of Andhra
Pradesh by the Code of Civil Procedure (Andhra Pradesh Unification and Amendment) Act (X
of 1962).

The following amendment were made by Andhra Pradesh Act 24 of 1979, s 2 (dated 17-9-
1979):

(i) In the proviso to s 60 (1) after clause (kk) insert as under

(kkk) amounts payable under the Andhra Pradesh State Employees Family Benefit Fund
Rules;

(ii) In Explanation 2A, for the expression clause (kk) substitute the expression clauses (kk)
and (kkk).

In its application to the Hyderabad area of the State of Andhra Pradesh in the proviso to
sub-s (i) of s 60

(i) after cl (g) the following clause shall be inserted, namely:

(gg) pension granted or continued by the Central Government, the Government of

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Hyderabad or any other State Government on account of past services or present

infirmities or as a compassionate allowance, and;

(ii) in Expln 2A, for the word, brackets and letter cl (kk) the words, brackets and letters cl
(gg) or cl (kk) shall be substituted Andhra Pradesh Act (XVIII of 1953), originally the Code
of Civil Procedure (Hyderabad Second Amendment) Act (18 of 1953).

Gujarat In sub-s (i) of s 60

(a) after cl (g) of the proviso, the following new clause shall be inserted, namely:

(gg) stipends and gratuities allowed to pensioners of a local authority.

(b) in Expln I, after the brackets and letter (g) the brackets and letters (gg) shall be inserted.

Himachal Pradesh In s 60, sub-s (1).

(i) at the end of cl (c), add the following words, namely:

or compensation paid for such houses and buildings (including compensation for the
materials and the sites and the land referred to above) acquired for a public purpose; and

(ii) after cl (c) insert the following, namely:

(cc) compensation paid for agricultural lands belonging to agriculturists and acquired for a
public purpose;

[Code of Civil Procedure (Himachal Pradesh Amendment) Act, 1956 (6 of 1956), s 2 w.e.f. 17
May, 1956].

Karnataka (previously Mysore) In its application to the State of Karnataka except Bellary
district, in the proviso to sub-s (1) of s 60 after cl (p), the following clause shall be added,
namely:

(pp) where the judgment-debtor is a servant of the State Government who has insured his
life under the rules in force relating to the Official Branch of the Mysore Government Life
Insurance Department
(i) in the case of insurances effected prior to the ninth day of May 1911, the whole of
the bonus payable or paid thereunder to such servant, or in the event of his death to
his nominee or other person or persons entitled to such bonus under the said rules;
and
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(ii) in the case of insurance effected or after the ninth day of May 1911, and such
insurance is compulsory, then the bonus in respect of the compulsory premium
payable or paid to such servant, or in the event of his death to his nominee or other
person or persons entitled to such bonus under the said rules.

Code of Civil Procedure [Mysore Amendment Act (XIV of 1952) (w.e.f. 1 April, 1951)].

Kerala In cl (g) of the proviso to sub-s (1), after the words stipends and gratuities allowed
to pensioners of the Government, insert the words or of a local authoritykerala Act 13 of
1957, s 3.

Maharashtra In sub-s (1) of s 60

(a) after cl (g) of the proviso, the following new clause shall be inserted, namely:

(gg) in the Hyderabad area of the State of Maharashtra, any pension granted or continued
by the Central Government or the Government of the former State of Hyderabad or any
other State Government, on account of past services or present infirmities or as a
compassionate allowance, which is not covered by cl (g);

Maharashtra Act No. LXV of 1977, s 6 (a);

(b) in its application to the Hyderabad area of the State of Bombayafter cl (kb ), insert the
following:

(kbb) the amounts payable under the policies issued in pursuance of the Rules for the
Hyderabad State Life Insurances and Provident Fund, which are not covered under cl (ka)
or (kb).

Explanation: Where any sum payable to a Government servant is exempt from attachment
under this clause or cl (gg), such sum shall remain exempt from attachment,
notwithstanding the fact that owing to the death of the Government servant the sum is
payables to some other person;

Maharashtra Act No. LXV of 1977, s 6 (b).

Punjab and Haryana In its application to the State of Punjab including the Pepsu area
thereof as it was immediately before 1 November, 1956

(a) In sub-s (1), in the proviso:

(i) In cl (c), for the words occupied by him the following words shall be deemed to be
substituted, viz. :
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not proved by the decree-holder to have been let out on rent or let to persons other than
his father, mother, wife, son, daughter, daughter-in-law, brother, sister or other dependants
or left vacant for a period of a year or more.
(ii) After cl (c), the following clauses shall be deemed to be inserted, viz. :

(cc) milch animals, whether in milk or in calf, kids, animals used for the purposes of
transport or draught cart and open spaces or enclosures belonging to an agriculturist and
required for use in case of need for tying cattle parking carts or stacking fodder or manure;

(ccc) one main residential house and other buildings attached to it (with the material and
the sites thereof and the land immediately appurtenant thereto and necessary for their
enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by
him: provided that the protection afforded by this clause shall not extend to any property
specifically charged with the debt sought to be recovered.

Vide Punjab Acts VII of 1934, XII of 1940 and VI of 1942 and Act XLIV of 1960. 1610

(b) After sub-s (2), the following sub-ss shall be deemed to be inserted, viz. :

(3) Notwithstanding any other law for the time being in force an agreement by which a
debtor agrees to waive any benefit of any exemption under this section shall be void.

(4) For the purposes of this section the word agriculturist shall include every person
whether as owner, tenant, partner or agricultural labourer who depends for his livelihood
mainly on income from agricultural land as defined in the Punjab Alienation of Land Act,
1900.

(5) Every member of a tribe notified as agricultural under the Punjab Alienation of Land
Act 1900, and every member of a scheduled caste shall be presumed to be an agriculturist
until the contrary is proved.

(6) No order for attachment shall be made unless the court is satisfied that the property
sought to be attached is not exempt from attachment or sale.

Punjab Relief of Indebtedness Act, VII of 1934, s 35 (as amended by Punjab Act s 12 of
1940 and 6 of 1942 and 44 of 1960).

For decisions on the Punjab amendment, see the undermentioned cases. 1611 Section 60 of the
Code of Civil Procedure applies to attachment and sale in execution of a decree of a civil court
only and has no application to an attachment and sale under any other statute unless made
expressly applicable thereto. The Punjab Land Revenue Act contains a complete code
providing for the modes and machinery for recovery of arrears of revenue. There is no
provision in this Act which makes the provisions of s 60, of the Code of Civil Procedure
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applicable to attachment, and sale for recovery of revenue under the Act, nor is there any
provision in the Act corresponding to cl (ccc) of the proviso to s 60 (1), Code of Civil
Procedure. The properties, if any, which are exempt from attachment and sale in revenue
recovery proceedings under the said Act, would be only such properties, as are so
exempted by the said Act. 1612

Rajasthan In the proviso to sub-s (1) of s 60

(i) in cl (b), after the word agriculturist, the words his milch cattle and those likely to
calve within two years shall be inserted.

Rajasthan Act XIX of 1958.

(ii) after cl (k), insert the following:

(kk) moneys payable under Life Insurances certificates issued in pursuance of the
Rajasthan Government Servants Insurance Rules 1953;
(iii) after expln 3, insert the following expln:

Explanation IVWHERE any money payable to a Government servant of the state is

exempt from attachment under the provision contained in cl (kk), such money shall remain
exempt from attachment notwithstanding the fact that owing to the death of a
Government servant it is payable to some other person.

Rajasthan Act XVI of 1957.

Tamil Nadu In its application to the State of Madras including the Kanyakumari district and
Shencottah taluk of the Tirunelveli district, and the added territories the amendment made
in s 60 is the same as that of Kerala Code of Civil Procedure (Madras Amendment) Act 1950, s
2 (w.e.f. 2 January, 1951) and Madras Act XXII of 1957, s 3 (18 December, 1957) and Mad
(AT) ALO, 1961 [w.e.f. 1 April, 1960].

Uttar Pradesh Add the following Expln 1A after Expln 1 in s 60, sub-s (1):

Explanation 1AParticulars mentioned in cl (c) are exempt from sale in execution of a

decree whether passed before or after the commencement of the Code of Civil Procedure
(United Provinces) (Amendment) Act, 1948, for enforcement of a mortgage or charge
thereon.

Code of Civil Procedure (UP) (Amendment) Act, 1948 (UP Act XXXV of 1948), s 2 (28
August, 1948).
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The following allowances payable to any public officer in the service of the UP
Government shall be exempt from attachment by order of a court, namely:
(i) All kinds of travelling allowances.
(ii) All kinds of conveyance allowances.
(iii) All allowances granted for meeting the cost of
(a) uniform; and
(b) rations.
(iv) All allowances granted as compensation for higher cost of living in localities
considered by Government to be expensive localities including hill stations.
(v) All house rent allowances.
(vi) UP Govt (Judicial Department) Notification No. 2156 VII-362 dated 17 January,
1941.
(vii) All allowances granted to provide relief against increased cost of living.

UP Govt. (Judl) Dept Notification No. 2692/Vll dated 15 July, 1949.

Union Territory (Chandigarh) In its application to the Union Territory of Chandigarh,

amendments in the section are the same as in Punjabpunjab Reorganisation Act, 1966, s 88
(1 November, 1966).

Union Territory (Pondicherry) In its application to the Union Territory of Pondicherry,

amendment in the section is the same as in Tamil Nadu-Pondicherry (Extension of Laws) Act,
1968, s 3 (i) and Schedule, Pt 11 (w.e.f. 5 September, 1968).

S. 61. Partial exemption of agricultural produce.

The State Government 1613 [* * *] may, by general or special order published in the Official
Gazette, declare that such portion of agricultural produce, or of any class of agricultural
produce, as may appear to the State Government to be necessary for the purpose of
providing until the next harvest for the due cultivation of the land and for the support of
the judgment-debtor and his family, shall, in the case of all agriculturists or of any class of
agriculturists, be exempted from liability to attachment or sale in execution of a decree.

Be exempted from liability to attachment or sale. These words are wide enough to
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include agricultural produce which has been hypothecated. 1614

S. 62. Seizure of property in dwelling-house.

(1) No person executing any process under this Code directing or authorizing seizure
of moveable property shall enter any dwelling-house after sunset and before sunrise.
(2) No outer door of a dwelling-house shall be broken open unless such dwelling-
house is in the occupancy of the judgment-debtor and he refuses or in any way
prevents access thereto, but when the person executing any such process has duly
gained access to any dwelling-house, he may break open the door of any room in
which he has reason to believe any such property to be.
(3) Where a room in a dwelling-house is in the act ual occupancy of a woman who,
according to the customs of the country, does not appear in public, the person
executing the process shall give notice to such woman that she is at liberty to
withdraw; and, after allowing reasonable time for her to withdraw and giving her
reasonable facility for withdrawing, he may enter such room for the purpose of
seizing the property, using at the same time every precaution, consistent with these
provisions, to present its clandestine removal.

HIGH COURT AMENDMENT

Calcutta. In sub-rule (2) omit the words unless such dwelling house is in the occupancy of
the judgment-debtor and he refuses or in any way prevents access thereto, after the words
be broken open and before the words but when the person.

Add the proviso after sub-rule (2)

Provided that the Court may, after service of such notice as it thinks proper, direct the
breaking open of an outer door of a dwelling-house in possession of the judgment-debtor
who prevents access thereto Vide Cal. Gaz. Pt. I, dated April 20, 1967.

1. Changes introduced in the section. This section corresponds with s 271 of the Code
of Civil Procedure 1882, except that the prohibition against breaking open any outer door
of a dwelling-house has been relaxed where the dwelling-house is in the occupancy of the
judgment-debtor. 1615

2. Dwelling-house. A shop or a godown is not a dwelling-house within the meaning of

this section. 1616
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S. 63. Property attached in execution of decrees of several Courts.

(1) Where property not in the custody of any Court is under attachment in execution of
decrees of more Courts than one, the Court which shall receive or realise such
property and shall determine any claim thereto and any objection to the attachment
thereof shall be the Court of highest grade, or, where there is no difference in grade
between such Courts, the Court under whose decree the property was first attached.
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a
Court executing one of such decrees.

[Explanation. For the purposes of sub-section (2), proceeding taken by a

1617

Court does not include an order allowing, to a decree-holder who has purchased
property at a sale held in execution of a decree, set-off to the extent of the
purchase price payable by him.]

HIGH COURT AMENDMENT

Calcutta. Add as sub-section (3)

(3)
For the purposes of this section the Court of Small Causes of Calcutta shall be deemed to be of the same
grade as a District Court. Vide Cal. Gaz. Pt. I, dated April 20, 1967.

1. Changes introduced in the section. This section corresponds with s 285 of the Code
of Civil Procedure 1882 except for the following particulars:
(i) The words is under attachment have been substituted for the words has been
attached. (See notes below, under the head Is under attachment).
(ii) Sub-section (2). 1618

2. Object of the section. The object of this section is to prevent different claims arising
out of the attachment and sale of the same property by different courts; in other words, it
is to prevent confusion in the execution of decrees. 1619 The principle underlying this
section is the principle of convenience, of avoiding multiplicity of proceedings and of fair
distribution and not the principle of exclusion. 1620

3. Application of the section. A attaches certain property in execution of a decree

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obtained by him against B in the small causes court at Surat. The same property is
subsequently attached by C in execution of a decree obtained against B in the court of the
subordinate judge at Surat. The court of the subordinate judge is a court of higher grade
than the small causes court, and it is, therefore, the proper court under this section for
deciding objections to the attachment, for determining claims made to the property, and
for ordering the sale thereof and receiving the sale proceeds. 1621

The section does not require that the higher court should have appellate or revisional
jurisdiction over the other court. It has reference only to the gradation of courts. The
subordinate court is a court of higher grade in relation to the court of the district munsif .
1622 In Rajasthan, the court of the civil judge is of a grade higher than that of the additional

munsif . 1623

The section casts upon the court of the higher grade, the duty of distributing the sale
proceeds and thereby, in effect, executing not only its own decree but the decree of the
inferior courts, irrespective of the fact that applications for execution of the decrees are
not made to the court of the higher grade but are made to the courts of the lower grade
before the receipt of the assets. 1624 In a case to which this section applies, the receipt of
assets by one of the courts contemplated in the section, amounts to a constructive receipt
of assets by each of such courts. 1625 Decree-holder obtained attachment before judgment,
in respect of certain immovable property. But he did not proceed against that property in
execution proceedings. It was held, that he would not be entitled to call in aid s 63, for
claiming rateable distribution when the assets were brought to sale in another court. 1626

4. Sub-section (2). This sub-section was added in 1908. It declares in effect that a
proceeding in execution shall not be deemed to be invalid merely because it was taken by a
court which, having regard to sub-s (1), ought not to have taken it. Under the Code of Civil
Procedure 1882, there was a conflict of decisions on the question whether the rule contained
in s 285 of that Code [now sub-s (1)] was a rule of procedure only or whether it affected
jurisdiction . The High Courts of Calcutta, 1627 Bombay, 1628 and Madras, 1629 held that the
rule was merely a rule of procedure, and did not oust the jurisdiction of the inferior court
in proceedings in execution of its own decree. On the other hand, the High Court of
Allahabad held that the section affected jurisdiction, that is to say, it took away the
jurisdiction of the inferior court in the several matters specified in the section. 1630 The
result was that where a sale was effected by a court of lower grade in a case where it ought
to have been effected by a court of higher grade, the sale according to the Calcutta,
Bombay and Madras decisions, was not for that reason invalid, but, according to the
Allahabad decisions, it was absolutely void as one made without jurisdiction. Sub-section
(2) gives effect to the Calcutta, Bombay and Madras decisions. 1631 The term court here
means a court to which the Code of Civil Procedure applies. The Registrar of Co-operative
Societies is not a court, although an attachment order passed by him has the same effect as
the one by a civil court. 1632
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There is yet another point which may be considered in the form of an illustration. A
obtains a decree against B in the court of a subordinate judge. In execution of the decree,
certain property belonging to B is attached by the subordinate judges court. C obtains a
decree against B in a District Court. The same property is then attached by the District
Court in execution of C s decree. The property is sold by the subordinate judge in
execution of As decree, although the proper court to sell the property is the District Court,
and it is purchased by X . Subsequently, the same property is sold by the District Court in
execution of C s decree, and it is purchased by Y Which of the two purchasers has the
better title? According to the decision of the Calcutta High Court in Bykant Nath v. Rajendra
Narain , 1633 X , the first purchaser, would take an indefeasible title:

(i) if the sale was held by the subordinate judges court in ignorance of the attachment by
the District Court; and

(ii) the purchase was made by X without notice of the attachment by the District Court;
but if the sale was held by the subordinate judges court after notice of the attachment by
the District Court, or the property was purchased by X with notice of that attachment, the
purchase of X would be liable to be defeated by the purchase of Y .

According to the decision of the Bombay High Court in Abdul Karim v. Thakordas , 1634 it
was quite enough to give an indefeasible title to X if he purchased without notice of the
attachment by the District Court. The Bombay court did not regard any notice which the
inferior court may have of the attachment by the superior court as of any consequence, for
the simple reason that the jurisdiction of a court cannot depend upon notice. A similar
view was taken by the Madras High Court. 1635 Under the present section, it seems X
would take an indefeasible title to the property, whether or not he or the subordinate
judges court had notice of the attachment by the District Court.

The result, therefore, is that where property is under attachment by two courts of different
grades and the property is sold by the court of lower grade in contravention of the
provisions of sub-s (1), the sale is not thereby rendered invalid, though the court selling the
property and the purchaser at the court of sale may be aware of the irregularity. The course
to be adopted by the court of higher grade in such a case is to accept the sale made by the
lower court, and to call for the proceeds of the sale and to distribute them rateably
amongst all the decree-holders. 1636 Where both the courts are subordinate to the District
Court, the procedure, according to the Bombay High Court, 1637 is for the party interested
to apply to that court to have the sale proceeds transferred to the court of higher grade;
according to the Calcutta High Court, 1638 the court of higher grade should move the
District Court for that purpose. The Bombay High Court has held that it is competent to
the petitioner to apply to the court of higher grade for a transfer of the sale proceeds to
that court and that court is competent to make the order. 1639 If the court of the lower
grade has given the decree-holder leave to bid and set-off, that according to the Calcutta
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High Court, is a proceeding which is saved by sub-s (2) and the assets available for rateable
distribution are the balance of purchase money after such set-off. 1640 But the other High
Courts have taken the view that though the sale itself is valid, the rights of the other
decree-holders for rateable distribution under s 73 are not affected by sub-s (2) and the
amount of set-off might be required to be produced for distribution among the decree-
holders. 1641 The legislature has now resolved this conflict by enacting the new Explanation
which provides that the expression proceeding taken by a court does not include an order
allowing to a decree-holder set-off to the extent of the purchase price payable by him and
thereby accepting the view taken by the majority of the High Courts.

If the same property is attached by a munsif and by a subordinate judge and is then sold by
the munsif to X, the sale is valid. But, if after the sale, the decree-holder in the subordinate
judges court applies to that court for sale, the question arises whether X is entitled to apply
to the subordinate judge under s 47 to stop the sale on the ground that the title to the
property has passed to him. According to the Madras High Court, he is, the reason given
being that he is the representative of the judgment-debtor within the meaning of s 47. 1642
According to the Calcutta High Court, he is not, the reason given being that he is not the
representative of the judgment-debtor. 1643 The question of such an auction-purchaser
being a representative or not, can no longer arise in view of the new explanation II to s 47
whereunder, such a purchaser is deemed to be a party to the suit in which the decree has
been passed.

5. Is under attachment. These words have been substituted for the words has been
attached to make it clear that the provisions of this section do not apply unless there are
two or more attachments existing at the same time. 1644 This section is attracted only when
there is more than one attachment, in execution of a decree. An attachment before
judgment does not become one in execution of a decree, until a decree is passed and an
application for execution is filed. Where, in execution of a decree, a garnishee produced
money in the court of the district munsif, who, acting under this section sent the same to
the court of the subordinate judge who had passed an order for attachment before
judgment. Of the amount, it was held that this section had no application and that the
district munsif should have paid the amount to the decree-holder who had obtained the
garnishee order. 1645 Where property, which is under attachment, in execution of a decree
of a superior court is sold by a court of lower grade in execution of a charge decree, this
section can have no application as there is no question of more than one attachment and
the sale will be valid; and the superior court cannot pass an order transferring the sale
proceeds to itself for distribution among the decree-holders. 1646

6. Decrees of more Courts than one. This section applies only as between civil courts of
different grades or as between revenue courts of different grades. It does not apply where
one decree is that of a civil court and another that of a revenue court. Hence, where the
same property is attached by a civil court and a revenue court, and it is sold by the revenue
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court, the purchaser is entitled to the property and it cannot be sold in execution of the
decree of the civil court. 1647

The High Court of Madras has held that even if the decrees are passed by the same court,
still this section will apply. The object of the section is to deal with the several attachments,
no matter whether the decrees passed are by the same court or by different courts. The
emphasis is upon the word attachment and not upon the word decrees. 1648

7. This section cannot be controlled by Section 38. Where act ing under this section,
the decree of the court of the lower grade is called up by the court of the higher grade, the
latter court has jurisdiction to sell the attached property. This section, if the facts apply,
cannot be controlled or governed by s 38. 1649

8. Rateable distribution. See notes to s 73, court to which application for execution
should be made.

S. 64. Private alienation of property after attachment to be void.

1650 [(1)] Where an attachment has been made, any private transfer or delivery of the
property attached or of any interest therein and any payment to the judgment-
debtor of any debt, dividend or other monies contrary to such attachment, shall be
void as against all claims enforceable under the attachment.
1651 [(2) Nothing in this section shall apply to any private transfer or delivery of
the property attached or of any interest therein, made in pursuance of any contract
for such transfer or delivery entered into and registered before the attachment.]

Explanation. For the purposes of this section, claims enforceable under an

attachment include claims for the rateable distribution of assets.

1. Changes introduced in the section. Section 276 of the Code of Civil Procedure 1882
was as follows:

When an attachment has been made by actual seizure or by written order duly intimated
and made known in manner aforesaid, any private alienation of the property attached,
whether by sale, gift, mortgage or otherwise, and any payment of the debt or dividend or a
delivery of the share, to the judgment-debtor during the continuance of the attachment,
shall be void as against all claims enforceable under the-attachment.
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The section [new sub-s (1)] differs from the corresponding s 276 of the Code of Civil
Procedure 1882, in the following respects:
(i) The words by act ual seizure or by written order duly intimated and made known in
manner aforesaid after the words where an attachment has been made in s 276 have
been omitted as being mere surplusage. 1652
(ii) The words during the continuance of the attachment, which occurred in s 276, have
been omitted, and the words contrary to such attachment have been substituted for
them. 1653
(iii) The explanation to the section is new. 1654

Vide the Code of Civil Procedure (Amendment) Act, 2002, by s 3, s 64 was renumbered as sub-
s (1) w.e.f. 1 July, 2002 and a new sub-s (2) was inserted in the section. The sub-s (2)
inserted by the Act of 2002 is in the nature of an exception to sub-s (1) and provides that
nothing in s 64 shall apply to any private transfer or delivery of the property attached or of
any interest therein, made in pursuance of any contract for such transfer or delivery
entered into and registered before the attachment. It is relevant to mention here that sub-s
(1) of s 64 provides that where an attachment has been made, any private transfer or
delivery of the property attached or of any interest therein and any payments to the
judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall
be void as against all claims enforceable under the attachment.

The object of s 64 is to prevent fraud on decree-holders and to secure the rights of the
attaching creditor against the attached property by prohibiting private alteration pending
attachment. Merely passing of an order of attachment does not ipso facto constitute
attachment; it must be followed by a procedure laid down in O 21. Many a times there is a
gap between passing of the order of attachment and act ual attachment, which allows a
dishonest litigant to prejudice the rights of the attaching creditors by transferring the
attached property before the order of attachment could be executed. Where the property
sought to be attached is transferred and registered after attachment, the order of
attachment prevails over the transfer. The difficulty arises where the property sought to be
attached is contracted for such transfer or delivery but is entered into before an order of
attachment is executed, and the registration of the transfer takes place after order of
attachment is executed.

The Supreme Court in Vannarakkal Kallathil Sreedharan v. Chandramaath Balakrishnan , 1655

has made the following observations:

Under a contract of sale entered into before attachment the conveyance after attachment
in pursuance of the contract passes on good title in spite of the attachment. The agreement
for sale indeed creates an obligation attached to the ownership of property and since the
attaching creditor is entitled to attach only the right, title and interest of the judgment-
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debtor, the attachment cannot be free from the obligations incurred under the contract for
sale. Though s 64 of the Code of Civil Procedure was intended to protect the attaching creditor,
but if the subsequent conveyance is in pursuance of an agreement for sale which was
before the attachment, the contractual obligation arising therefrom must be allowed to
prevail over the rights of the attaching creditor. The rights of the attaching creditor shall
not be allowed to override the contractual obligation arising from an antecedent agreement
for sale of the attached property. The attaching creditor cannot ignore the obligation and
proceed to bring the property to sale as if it remained the absolute property of the
judgment-debtor.

Further the Supreme Court 1656 has observed:

When the property belonged to the defendant-judgment debtors (vendors) and the sale
deed had already been executed by them prior to the attachment before judgment and only
its registration remains, then neither the attachment before judgment nor a subsequent
attachment or court sale of the property would confer any title by preventing the relation
back. The fact that the document of sale had not been registered until after the attachment
makes no difference. Even an unregistered document can be received as evidence for
purposes mentioned in the proviso to s 49 of the Registration Act. The contention that till
registration, the execution, the execution of the sale deed does not confer any rights
whatsoever on the vendee cannot be accepted.

The legislature by the insertion of sub-s (2) desired to limit the benefits of the above-
mentioned judgments to bona fide transfers. In any transaction for transfer or delivery of
the property attached, where the contract is executed and registered before attachment, the
mischief of sub-s (1) shall not apply. It shall, however, apply to following situation.
(i) Where the property is transferred and registered after attachment.
(ii) Where the property is transferred before attachment but registration takes place
after attachment.

The transactions, which fall in the mischief of sub-s (1), are void as against all claims
enforceable under the attachment. In the opinion of authors, this amendment is very fair
and protects the interest of bona fide purchasers as well as that of attaching creditors.

2. Object of the section. A sues B for Rs 5,000. B owns a house worth Rs 5,000 and he
has no other property. B may sell or mortgage the house notwithstanding the institution of
the suit against him and he may sell or mortgage it even after a decree has been passed
against him in the suit, and the sale or mortgage in either case will be perfectly valid and
pass a good title to the transferee. 1657 But if the property is attached in execution of the
decree, any private transfer of the property by B contrary to such attachment shall be void
as against all claims enforceable under the attachment. 1658 The object of the section is to
prevent fraud on decree-holders, 1659 and to secure intact the rights of the attaching
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creditor against the attached property by prohibiting private alterations pending

attachments. 1660

It may be noted that by insertion of sub-s (2) vide Amending Act (22 of 2002); the transfer or
delivery of property in respect of which there was registered contract before the
attachment is immune from the effect of sub-s (1).

3. Where an attachment has been made. An attachment to render a subsequent

alienation invalid must be made in the manner prescribed by the Code of Civil Procedure.
Thus, a promissory note must be attached by actual seizure as provided by O 21, r 51, and
not by the issue of a prohibitory order. The mere issue of a prohibitory order does not
amount to an attachment within the meaning of this section. 1661 The same is the position
where an injunction is issued, the breach of which may attract punishment, but does not
render a completed sale null and void. 1662

Where monies were due to a judgment-debtor under a contract entered into with the
Public Works Department, the provision of law applicable for attachment of the same is O
2l, r 52, and not O 21, r 46; and, where the court issued a notice under r 52, requesting the
officer to hold them subject to his further orders, the attachment is complete and the
subsequent assignment thereof by the judgment-debtor is hit by this section. 1663 Similarly,
in the case of immovable property, the attachment to render a subsequent alienation
invalid must be made in the manner prescribed by O 21, r 54; an order for attachment is
not enough. 1664 An attachment made under that rule operates as a valid prohibition
against alienation from the date on which the necessary proclamation is made and a copy
of the order of attachment is affixed as provided by that rule, and not from the date of the
order of attachment. 1665 In Muthiah Chetti v. Palanipp , 1666 Lord Shaw said:

A fascicules of clauses, beginning at Rule 41 of Order XXI and applicable to attachment of

property shows in instance after instance that attachment is a real thing, with a variety of
real applications suited to the nature of the property to be attached. These instances go to
show that under the Code of Civil Procedure in India the most anxious provisions are enacted
in order to prevent a mere order of a court from effecting attachment, and plainly
indicating that the attachment itself is something separate from the mere order, and is
something which is to be done and effected before attachment can be declared to have
been accomplished. Their Lordships need not repeat in another form these propositions.
The order is one thing, the attachment is another. No property can be declared to be attached
unless first the Order for attachment has been issued, and secondly in execution of that
order the other things prescribed by the rules in the Code have been done.

Thus where the order for attachment of immovable property was served on the judgment-
debtor and his attorney but the writ of attachment was not served by proclaiming it by beat
of drum upon the land before the challenged alienation by the judgment-debtor, it was
held that the alienation was not affected. 1667 In Mohammad Akbar Khan v. Mian Musharaf ,
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1668 the Privy Council held that where there is ample evidence of an attachment, in the
absence of any evidence to the contrary, it ought to be presumed that all necessary
formalities were complied with. 1669 An injunction restraining alienation of property by the
judgment-debtor does not operate as an attachment of the same for the purpose of this
section. 1670 In an Allahabad case, the executor sued for the recovery of a debt which was
due to the estate of the deceased. The court ordered attachment of the property of the
judgment-debtor. It was held that attachment before judgment terminates when the suit is
dismissed. Transfer during the subsistence of the attachment is void. 1671 Where a suit is
restored after setting aside its dismissal, then interim attachments and other interlocutory
orders automatically revive. Any sale of attached property, in the meantime, becomes void
under this section. 1672

4. Attachment before judgment. An alienation of property made after attachment before

judgment is void to the same extent, as an alienation made after attachment under a decree.
1673 Section 64 is meant to safeguard the interests of the creditor. It applies to attachment

before judgment also. As against the attaching creditor, a sale would not be effective, but,
if the order of attachment is withdrawn or the claim of the creditor is otherwise satisfied,
the sale deed executed, would convey good title to the transferee. Hence, if a person has
purchased the property attached before judgment, the transfer is ineffective and void, as
against the interest of the creditor purchaser. Petition for release of the disputed property
under O 21, r 58 is not maintainable. 1674 The attachment, however, must be made in the
manner prescribed by the Code of Civil Procedure, and, in the case of immovable property, as
prescribed by O 21, r 54. 1675 The High Court of Madras has held that an alienation of
property, after it is act ually attached, pursuant to an order for attachment before
judgment, is void under this section, even though the property was not actually attached in
pursuance of the order for attachment before judgment, until after the passing of the
decree, 1676 the ground stated being that the validity of an order for attachment before
judgment does not depend on the time when the property is act ually attached. This
decision is of doubtful authority. 1677 Where an order of attachment before judgment was
made in accordance with Form No 5 and not under O 21, r 54(2), and no objection was
raised by the defendant to whom notice was issued, it has been held that an objection that
the attachment was not made under proper provision of law is not open subsequently as it
does not go to the root of jurisdiction and can be waived and accordingly, an alienation
made after such attachment was hit by the section. 1678 Non-affixation of notice in revenue
office is not material irregularity and the private sale during attachment will be valid only if
shown that substantial injustice is caused to purchaser. 1679 Where there is a suit for
declaration of title and permanent injunction, sale of property in ignorance of temporary
injunction is only voidable and not void. 1680 When a suit is dismissed, an attachment
before judgment terminates without any order of the court. If the judgment is reversed on
appeal or annulled on review, the judgment does not revive the attachment so as to affect
alienation shade before the date of such reversal. 1681 In the under mentioned case, the sale
by the judgment-debtor to the third party and the sale by the purchaser to another person
(the respondent), were affecting during the substance of the attachment and before the
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dismissal of execution case, s 64 would render the sale void as against the appellant decree-
holder. 1682

5. Private transfer. [It may be noted that after insertion of sub-s (2) by Amendment Act
of 2002, the transfer or delivery of property in respect of which there was registered
agreement before the attachment is not void. The following text is therefore indicative of
the judicial opinion prior to said amendment.]

The expression private transfer means a voluntary sale, gift, or mortgage in contravention
of the attachment, and not the enforced execution of a conveyances or assignment in
obedience to a decree of a court competent to pass it. 1683 The decree may be one on an
award, 1684 even though the matters in difference were referred to arbitration without the
intervention of the court. 1685 It is only a private transfer that is avoided by the section. A
court sale in execution of a decree declaring a charge and delivery of the property by
reason thereto is not hit by the section. 1686 Releasing an easement by the dominant owner
to the servient owner is a transfer within the meaning of this section. 1687 Where pending a
litigation between A and B as regards a cinema house, X filed a suit against A and obtained
attachment before judgment of the house and thereafter A and B agreed to treat it as their
partnership property and a compromise decree was passed in those terms, it was held that
the agreement and the decree had the effects of transferring an interest in favour of B , and
were hit by this section. 1688

6. Contract for sale. [It may be noted that after insertion of sub-s (2) by the Amendment
Act of 2002, the transfer or delivery of property in respect of which there was registered
agreement before the attachment is not void. The following text is therefore indicative of
the judicial opinion prior to said amendment.]

The Calcutta High Court has held that a contract for sale entered into before an
attachment does not create any interest or charge which can prevail over the attachment.
1689 In a previous case, 1690 Woodroffe J., held that the contractual obligation prevailed

over the attachment. This is the view taken by the High Courts of Bombay 1691 and
Nagpur. 1692 In a Madras case, 1693 the learned judges said that it does not seem to be
sound sense that when a creditor attaches property, which is subject to a particular
obligation, he should be able to override it. The attachment will not override the
conveyance made in performance of contract of sale prior to the attachment; but will
fasten on any purchase money paid after the attachment. 1694 In Varughese v. Ouseph Lonan ,
1695 the High Court of Travancore-Cochin has held, dissenting from the view of Cumming

J., that where the judgment-debtor sells property subsequent to an attachment but
pursuant to an agreement entered into prior to the attachment, the sale is valid and the
attachment would take effect only on the purchase money paid by the vendee subsequent
to the attachment. Where there is a contract for sale, attachment made thereafter does not
affect a prior agreement to sell. Attachment could only fasten on the debtors right to the
unpaid purchase money, according to the Kerala High Court. 1696 The Supreme Court has
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now held that a conveyance executed after attachment, but in pursuance of pre-attachment
agreement, passes good title to the property so conveyed. The reasoning was that a
contract for sale creates an obligation to sell and the judgment-debtor cannot be relieved
of this obligation by the attachment. 1697

7. Private transfer 1698 void only as against claims enforceable under the attachment.
(i) In execution of a decree obtained by A against B , certain property belonging to B is
attached. During the pendency of the attachment, B mortgages the property to C.
The property is then sold in execution of the decree and purchased by D . Here, the
mortgage having been made contrary to the attachment is void as against A s claim,
and D is entitled to take the property free from the mortgage created by B. 1699 This
illustration shows the operation of the section. 1700
(ii) B s property is attached in execution of a money-decree obtained by A. While the
attachment is pending, B sells the property to C , who pays off a mortgage prior to
A s suit. The property is then sold in execution and is purchased by D . The sale to
C being contrary to the attachment, is void as against D. C may have a right of
subrogation to the prior mortgagee, but that does not give him a right to possession
as the mortgage was not usufructuary. 1701
(iii) B s property is attached in execution of a money-decree obtained by A against him.
While the attachment is pending, B sells the property to C , and pays, out of the sale
proceeds, the amount of the decree into court and the attachment thereupon ceases
(see O 21, r 55). The sale to C is valid, the decree having been satisfied by payment
into court, and there being no claim outstanding which is enforceable under the
attachment. 1702 Moreover, an alienation by means of which the decree in execution
of which the attachment was made is satisfied can scarcely be regarded as an
alienation contrary to the attachment. 1703
(iv) In execution of a decree obtained by A against B , the properties of the latter were
attached. B then sold them to C . The properties were then sold in execution and
purchased by D . The title of C cannot prevail against that of D even though he had
acquired the interest of the decree-holder prior to sale. 1704
(v) A obtains a decree against X and attaches his properties in execution. B obtains a
decree against X and in execution of his decree attaches the same properties, which
are then given as security for the decree by X. B then sells the properties in
execution. The sale is not hit by the section, as it is in furtherance of the
attachment, as not in enforcement of the security bond. 1705
(vi) On the same principle, where A attaches B s property in execution of a decree
obtained by him against B , and applications are thereafter made by other decree-
holders, C, D and E for rateable distribution without attaching the property in
execution of their decrees, and subsequently B sells the property to F and pays off
A (the attaching creditor), the other decree-holders, namely C, D and E are not
entitled to question the alienation to F. In the first place, the alienation can hardly
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be said to be an alienation contrary to the attachment within the meaning of this

section, for the alienation was the means by which the decree in execution of which
the attachment was made was satisfied. In the next place, it cannot be said that the
claims of C, D and E are claims for the rateable distribution of assets within the
meaning of the explanation to the section, for, to bring s 73 [which provides for
rateable distribution] into play, certain conditions are necessary, and one of them is
that there should be assets held by the court . In the case, now under consideration,
no assets came into the hands of the court at all. Therefore, C, D and E are not
entitled to question the alienation by B to F , and the alienation is perfectly valid. 1706
(vii) A decree-holder, though entitled to rateable distribution as contemplated by the
Explanation to the section, is not entitled to question a private alienation under this
section, unless his claim be one enforceable under the attachment within the
meaning of this section. The attachment referred to in this section is the attachment
under which the execution sale is made. Therefore, a claim enforceable under the
attachment means a claim enforceable under the attachment under which the
execution sale is made. 1707 A claim, under any other attachment, is not a claim
enforceable under the attachment within the meaning of this section. The result is
that:
(a) if A obtains a decree against B , and B s property is attached in execution of the
decree; and
(b) B subsequently alienates the property to C ; and
(c) the property is thereafter attached and sold in execution of a decree obtained by
D against B , and it is purchased by F ; and
(d) C sues F for possession, then:

Cs title is to be preferred to Fs title, and C is entitled to possession of the property. D

cannot object to the alienation to C, for the alienation to C was prior to his attachment.
Nor is A entitled to question the alienation, for the sale in execution was not made under
his attachment but under D s attachment. The sale having been made under D s
attachment, A s claim cannot be said to be a claim enforceable under the attachment
within the meaning of this section. The result would be the same even if we substitute A
for D , that is, even if the decree-holder in both cases was the same person. This is the
effect of the decision of their Lordships of the Privy Council in Mina Kumari v. Bijoy Singh ,
1708 a case under s 276 of the Code of Civil Procedure 1882 which did not contain the

explanation which now occurs at the end of the present section. But the decision
proceeded on the assumption that Sorabji v. Govind , 1709 considered in the notes below was
good law, an assumption which involved the proposition now quoted in the explanation.
Mina Kumari s case, therefore, would also govern cases under the present section.

If, in the case, put above, the property was sold by the court under A s attachment, instead
of D s and D had applied for execution before the court received the proceeds of the sale,
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the alienation to C would be void, it being contrary to A s attachment, and further, D

would be entitled to rateable distribution under s 73 .**************

The attaching decree-holder may agree with a purchaser of the property from the
judgment-debtor pending the attachment that he will not bring the property to sale in
execution of his decree. Such an agreement has the effect of rendering the alienation valid
as against the attaching creditor. 1710 The same would follow where there is a waiver by the
attaching decree-holder. But such waiver has to be proved by evidence of clear-cut
intention. 1711 A lease in contravention of s 64 (i.e. , after and during the subsistence of the
attachment) is voidable at the instance of the person who has purchased the property in
execution. Against such a purchaser, lessee cannot claim the status of the tenant. 1712 A
lease created during the subsistence of an attachment in contravention of s 64 is voidable.
1713

8. Contrary to such attachment. These words have been substituted for the words,
during the continuance of the attachment, which occurred in s 276 of the Code of Civil
Procedure 1882. The words during the continuance of the attachment were too wide, in
that, they comprised alienations that could not possibly prejudice the rights of an attaching
creditor, as where property is mortgaged by A to B , and the equity of redemption is
subsequently attached at the instance of C , in execution of a decree obtained by C against
A , and pending the attachment, the mortgage is transferred by B and A to D . In such a
case, the transfer of the mortgage, though made during the continuance of the attachment,
cannot prejudice C , the attaching creditor, for the effect of the transfer is merely to
substitute D for B. But the transfer having been made during the continuance of the
attachment, it came literally within the old s 276, though it was not contrary to the
attachment , and it was accordingly contended, in a case before the judicial committee
under s 276, that the transfer was void as against C . But this contention was overruled.
Their Lordships held that the object of s 276 was merely to prohibit alterations contrary to
the attachment , and that an alienation such as the above by B and A to D cannot, in any
sense, be said to be contrary to the attachment. 1714 The words contrary to the attachment
have now been substituted for the words during the continuance of the attachment and
they give effect to the Privy Council ruling, noted above. The object of the section is to
safeguard the interest of the judgment-creditors and not to deprive the judgment-debtor,
of his interest, in the property under attachment. Therefore, transfer of shares under
attachment is void, if it becomes necessary to auction, or otherwise transfer, the attached
shares for enforcement of claims. But if the attachment is for any reason raised, the
transfer, though made during the continuance of attachment, would be valid. 1715 Similarly,
a renewal, though pending the attachment of a mortgage already existing on the property,
is not a transfer contrary to the attachment. But if the amount secured by the renewed
mortgage exceeds the amount due under the original mortgage at the date of the
attachment, the additional security is to that extent void. 1716 If a judgment-debtor transfers
property after it has been attached in execution, and the property is then sold in execution,
the transfer is void as against the auction-purchaser, even if the auction-purchaser is a
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surety for the satisfaction of the decree, 1717 but the transferee is a person whose interests
are affected by the sale and is entitled to apply under O 21, r 90, to set aside the sale. 1718
Where a decree-holder attached property in execution of his decree and another decree-
holder applied for rateable distribution without attaching the property, in execution of his
decree and subsequently the judgment-debtor alienated the property and paid-off the
attaching decree-holder, it was held that the alienation to satisfy the decree under which
the attachment was made, was not contrary to such attachment within the meaning of this
section and that the other decree-holder was not entitled to question the alienation under
the section. 1719 The attachment which a judgment-creditor can have is as respect of the
right, title and interest of his debtor at the date of attachment. He cannot have any right
higher than that of his debtor at such date. Accordingly, if a person, having a contract of
sale in his favour has a pre-existing right of specific performance, the attachment would
not affect such right, for, the interest of the judgment-debtor in the attached property was
subject to the promisees right of specific performance. It follows that where an agreement
for sale has been entered into prior to the attachment and the property is purchased by the
promisee in specific performance of the agreement as a result of a consent decree, the right
of such a promisee would prevail over the purchase of the property by the judgment-
creditor at a court sale in consequence of the attachment. 1720 An attaching creditor does
not attach the physical property but only the right of the judgment-debtor in it on the date
of the attachment. If the judgment-debtor has incurred an obligation upon that right, prior
to the attachment, such as an agreement to sell or mortgage, the attaching creditor cannot
ignore such obligation as if the property was the absolute property of the debtor. 1721 What
the section provides is that where property has been attached, any subsequent alienation is
void against all claims enforceable under that particular attachment. 1722 An attachment
effected after private alienation, is not assisted by an attachment before the alienation. 1723
When a sale is set aside, as the result of a deposit under O 21, r 89, the decree becomes
satisfied and the attachment is extinguished and a mere claimant for rateable distribution
who had not attached the property cannot claim the benefit of this section and assail the
alienation made by the judgment-debtor. 1724

9. Explanation to the section: Claims for rateable distribution of assets under

Section 73 are claims enforceable under an attachment. The Explanation to the
section was inserted in 1908. A obtains a decree against B , and in execution of the decree
attaches Rs 7,000 belonging to B in the hands of a railway company. B then assigns the said
sum in the hands of the railway company to his attorneys for costs due to them subject to
A s attachment. After the assignment, C , another creditor of B , obtains a decree against B
, and in execution of his decree, attaches the said sum in the hands of the railway company.
Thereafter, the company pays the said sum to the Sheriff of Bombay. The assignment by B
to his attorneys, though made prior to C s attachment, is void as against C s claim, for, C s
claim is a claim for rateable distribution of assets (Rs 7,000) within the meaning of s 73 and
therefore, a claim enforceable under the attachment of A by virtue of the explanation to
this section. C is, therefore, entitled to be paid in priority to B s attorneys. This is the law
under the present Code of Civil Procedure, and it is in accordance with the view taken by the
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Bombay High Court in Sorabji v. Govind , 1725 decided under s 276 of the Code of Civil
Procedure 1882. The view taken by the other High Courts was that C s claim, being a
claim merely for rateable distribution cannot be said to be a claim enforceable under the
attachment, but this view is no longer law. 1726 The explanation gives effect to the Bombay
decision. But the explanation does not apply unless the claim of the subsequent decree-
holder can be said to be a claim for rateable distribution within the meaning of s 73. Now,
the essential condition of enforcement of claims for rateable distribution under s 73 is that
there should be assets held by the court (see s 73 below), and that condition was satisfied
in Sorabji v. Govind; but if there be no assets received by the court, as would be the case, if
no payment was made by the railway company to the Sheriff, and A s attachment came to
an end (O 21, r 55) by B satisfying A s decree out of court and certifying it to the court
under O 21, r 2, C s claim cannot be enforced as a claim for rateable distribution, and the
assignment to the attorneys will prevail over any claim, that may be made by C under his
subsequent attachment. 1727 The explanation to the section protects only those decree-
holder who are entitled to rateable distribution under s 73, and no decree-holder can be
entitled to rateable distribution under that section unless there are assets held by the court.
1728 In a Calcutta case, 1729 A , an execution creditor, attached a debt and the garnishee paid

the money to the Sheriff. The judgment-debtor obtained a stay order restraining the
execution creditor from executing his decree for two months, the money being ordered to
remain in the meanwhile in the hands of the Sheriff. While the money was with the Sheriff,
B another creditor, attached the money before judgment, obtained a decree and applied for
execution. B contended that he had a right of rateable distribution because while the
money was in the Sheriffs hands, it had not been received by the court. But it was held that
the money was assets received by the court when it was paid to the Sheriff, that B had no
right of rateable distribution as his application was after the receipt of assets; and that,
therefore B s attachment could not affect the rights of A as execution creditor. At the
same time, it must be noted that it is not enough that a decree-holder is entitled to rateable
distribution under s 73 ; to bring the explanation into play, it is also necessary that his claim
must be one, enforceable under the attachment within the meaning of the present section.
1730 The result is that the decree-holder is not entitled to the benefit of the explanation and

is not entitled to question a private alienation unless

(i) he is entitled to rateable distribution under s 73, for which it is absolutely necessary
that there should be assets held by the court; and
(ii) where there has been a sale in execution, his claim is one enforceable under the
attachment under which the sale was made as explained in Illust 41 under note, A
private transfer under this section.

As regards the first condition, it is obvious that it cannot be present if the judgment-debtor
satisfies the claim of the decree-holder out of court, and that is what happened in the
undermentioned cases. 1731 In the Privy Council case of Mina Kumari v. Bijoy Singh , 1732 the
first condition was satisfied or assumed to be satisfied, but the second condition was not.
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The wider meaning given to the expression claims enforceable under the attachment by the
explanation is confined to the purposes of s 64 only. There is no such provision in r 58 or
r 60 of O 21. Hence, an order made under O 21, r 58 cannot be given a wider meaning so
as to cover not only the decree in execution but other decrees as well. 1733

10. Private transfer under Order 21, Rule 83. The High Court of Bombay has held that a
private transfer of his property by a judgment-debtor made pursuant to the provisions of
O 21, r 83, is absolute, notwithstanding the provisions of this section, even against claims
enforceable under the attachment. 1734 The contrary has been held by the Madras High
Court. 1735

11. Mortgage executed before but registered after attachment, not affected. An
attachment will not affect a subsequent alienation. Under s 47 of the Registration Act, 1908, a
registered instrument operates from the date of execution. So, if property is attached after
the date of execution but before the date of registration of a mortgage, the mortgage will
not be invalid as against claims enforceable under the attachment.1736 But, the position
seems to have been reversed by insertion of sub-s (2) of the Code of Civil Procedure
(Amendment) Act, 2002, effective from 1 July, 2002.

12. Attachment raised and subsequently restored. Where the property of a defendant is
attached, and the attachment is subsequently raised by the executing court, but the
attachment is restored by the High Court on appeal, the order of the High Court relates
back to the date when the attachment was first made, with the result that an alienation of
the property made by the judgment-debtor between the date on which the attachment was
raised and that on which it was restored, is void, as against all claims enforceable under the
attachment. 1737 Likewise, when an execution petition, under which the attachment is
effected, is subsequently dismissed and in consequence the attachment ceases and
subsequently the order dismissing the execution petition is set aside, whether it be in
appeal, revision or a suit, the attachment revives as from the date when it was effected and
any private alienation of the property thereafter would be hit by the section. 1738 But this
section contemplates only one attachment and no other. Hence, the attachment during the
subsistence of which an alienation is made must be the same attachment under which all
claims of the attaching creditor are enforceable. Therefore, where a attaching-creditor has
got levied two attachments on the same property, one after the other, but the first
attachment has come to an end and the attaching creditor enforces his claim under the
second attachment, a transfer made by the debtor during the subsistence of the first
attachment would not be void. 1739

13. Private sale to decree-holder. A obtains a decree against B . In execution of the

decree, B s property is attached. Pending the attachment, B sells the property to C . A then
buys the same property from B . Is the sale to C void under this section? No, because A
brought the property not at a court-sale, but by private treaty with B . The title obtained by
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the purchaser on a private sale of properly in satisfaction of a decree, differs from that
acquired upon a sale in execution. Under a private sale, the purchaser derives title through
the vendor, and cannot acquire a title better than his. Under an execution sale, the
purchaser, notwithstanding that he acquires merely the right, title, and interest of the
judgment-debtor, acquires that title, by operation of law, adversely to the judgment-debtor,
and freed from all alienations and incumbrances effected by him after the attachment of
the property sold. 1740

14. Effect of striking off execution proceedings or of removing them from the file.
An attachment is not necessarily at an end because the execution case is struck-off or
removed from the file. The effect of such a proceeding depends on the circumstances of
each case. Where, after an attachment has been made, the proceedings in execution are
struck-off or removed from the file under circumstances which render a fresh attachment
necessary to bring the judgment-debtors property to sale, a private transfer of the property
by the judgment-debtor made after the proceedings are struck-off is valid , though the
same property may subsequently be re-attached in execution of the same decree on a fresh
application for execution. But if the execution proceedings are struck-off or removed from
the file under circumstances which render a fresh attachment necessary to bring the
judgment-debtors property to sale, a private transfer of the property by the judgment-
debtor made after the proceedings are struck-off is valid , though the same property may
subsequently be re-attached in execution of the same decree on a fresh application for
execution. But if the execution proceedings are struck-off or removed from the file under
circumstances which do not render a fresh attachment necessary, the transfer is void as
against all claims enforceable under the attachment, and the mere fact that a fresh
application for attachment is subsequently made in execution of the same decree will not
render the transfer valid. The reason is that in the former case, the proceedings in
execution are deemed to have terminated on their being struck-off or removed from the
file, and the attachment is deemed to be at an end, and the transfer having been made after
the termination of the attachment, it cannot be affected by the subsequent attachment. In
the latter case, however, the proceedings in execution are merely suspended , and the first
attachment is, therefore, deemed to subsist , and the second application for attachment is a
superfluity. 1741 Whether the execution proceedings have been struck-off or removed from
the file under one or the other circumstances is a question of fact in each case. 1742 But
where a fresh application for attachment is made, the presumption is that the first
attachment has ceased and the burden of proof is on the party alleging that the first
attachment was still subsisting when the second application was made and that the second
application was superfluous. 1743 B s property is attached in execution of a decree obtained
against him by A . The execution proceedings are then struck-off. B then sells the property
to C . The property is again attached on a fresh application by A . Is the sale valid? There
being a fresh application for attachment, the presumption is that the first attachment
ceased from the moment the proceedings were struck-off. The sale would, therefore, be
valid and the second attachment inoperative unless A showed that the first attachment was
still subsisting at the date of transfer and that the second application was superfluous.
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The above cases would not have arisen if the court, instead of making an order for striking
off proceedings or removing proceedings from the file, had made an order either
dismissing the application or adjourning the proceedings where the court was, by reason of
default on the part of the decree-holder, unable to proceed further with the proceedings in
execution. The practice of striking off proceedings or removing proceedings from the file
had no justification under any of the previous Codes. To put a stop to this practice, it is
now expressly provided by O 21, r 57, that where any property has been attached in
execution of a decree, but by reason of the decree-holders default, the court is unable to
proceed further with the application for execution, it shall either dismiss the application, or
for any sufficient reason adjourn the proceedings to a further date; upon the dismissal of
such application the attachment shall cease . Cases like the above are not likely to arise
under the Code of Civil Procedure, if the procedure prescribed by O 21, r 57, is strictly
followed. The High Court at Calcutta has commented on the impropriety of such orders as
struck-off or dismissed for the present on an execution application. 1744

15. Effect of dismissal of execution in default. If the execution petition was dismissed
for default on the part of the decree-holder, the executing court has no other option, but
to direct that the attachment shall cease. 1745

Thereafter, fresh proceedings in execution petition had been filed. Though it is stated that
all the execution proceedings are deemed to be the continuation of the earlier proceedings,
it cannot be accepted in view of the provisions of s 64, Code of Civil Procedure as interpreted
by the Supreme Court. 1746

16. Attachment does not create a charge. Attachment creates no charge or lien upon
the attached property. 1747 It only confers a right on the decree-holder to have the attached
property kept in custodia legis for being dealt with by the court in accordance with law. 1748 It
merely prevents and avoids private alienations; it does not confer any title on the attaching
creditors. 1749 There is nothing in any of the provisions of the Code of Civil Procedure which,
in terms, makes the attaching creditor a secured creditor or creates any charge or lien in his
favour over the property attached. 1750 But an attaching creditor acquires, by virtue of the
attachment, a right to have the attached property kept in custodia legis for the satisfaction of
his debt, and an unlawful interference with that right constitutes an act ionable wrong.
Thus, it is an actionable wrong if A cuts and carries away crops attached by B in execution
of a decree against C , and a suit will lie at B s instance against A to recover from A ,
damages which should not, however, exceed the value of the attached property. 1751 A
person, who claims under a private transfer from the judgment-debtor after attachment is
not entitled, to notice under O 21, r 22, as the decree-holder is entitled to ignore all
alienations subsequent to the attachment. 1752

17. Effect of order of adjudication on attachment. Where a judgment-debtor has been

adjudicated an insolvent, the whole of his property vests in the official assignee. What is
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the effect of an order of adjudication on an attachment levied prior to the date of the
adjudication order? Has the attaching creditor, by reason of his prior attachment, priority
over the official assignee in respect of the property attached by him prior to the date of the
adjudication order, or is the official assignee entitled to claim that the attached property by
virtue of the adjudication order, as part of the property of the insolvent? The courts in
India had held that whether the attachment is before judgment, 1753 or in execution of a
decree, 1754 the attaching creditor had no priority over the official assignee. These decisions
were based on the ground that an attachment in India does not create any charge or lien
upon the attached property such as attaches in England upon seizure under a writ of fi fa;
1755 and that once the order of adjudication is made, the attaching creditor is relegated to

the same position as other creditors. Again, the Presidency Towns Insolvency Act, s 53,
and the Provincial Insolvency Act, s 51, both enact that if execution of a decree has issued
against the property of a debtor, no person shall be entitled to the benefit of execution
against the official assignee or the official receiver except in respect of assets realised
before the order of adjudication. On the other hand, certain dicta of the Privy Council in
the case of Anantapadmanabhaswami v. Official Receiver , 1756 raise a doubt as to the
correctness of these decisions. In this case, property in Madras had been attached in
execution of a decree in 1926, but the judgment-debtor was adjudged insolvent in 1928 by
a foreign courtthe District Judge of Secunderabad. The Official Receiver, Secunderabad,
objected to the continuance of the execution proceeding on the ground that the property
had vested in him. The Madras High Court upheld the objection as the official receiver had
priority over the attaching creditor. The Privy Council reversed this decision for the reason
that the question was one of the comity of nations and not one of the municipal
bankruptcy codes of either country; and that although a foreign adjudication order will be
recognised as effective, it will not be allowed to interfere with any process at the instance
of a creditor already pending, even though the process be incomplete. The case was one of
a foreign adjudication order and their Lordships were careful to distinguish a foreign
adjudication order which operates under a rule of international law from a British
adjudication order which operates by force of a statute. But, as to British Adjudication
Orders, their Lordships observed that such orders would not be affected by s 64, as they
were not private transfers. Their Lordships then proceeded to suggest that the test was
whether the insolvent could have assigned the property to the trustee in bankruptcy. This
seems to imply that if the judgment-debtor is prevented by the attachment from alienating
the property, the property will not vest in the official receiver or the official assignee. With
reference to the case law as to the effect of an attachment their Lordships said:

In Krishnaswamy Mudaliar v. Official Assignee of Madras , 1757 the court appears to have ignored
the opinion expressed by this Board in Suraj Bunsi Koer v. Sheo Proshad Singh , 1758 which was
cited to them, and to have taken a dictum in the judgment of this Board in Motilal v. Karrab-
ul-din 1759 from its context and used it for a purpose which it did not have in view. In
Frederick Peacock v. Madan Gopal , 1760 the case of Suraj Bunsi Koer was not referred to and the
dictum from Moti Lal s case was similarly employed. Their Lordships desire to reserve their
opinion as to the soundness of the Madras and Calcutta decisions. The decision of this
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Board in Raghunath Das v. Sundar Das Khetri , 1761 was also referred to, but that decision
proceeded on an admission by counsel, the point was not argued and the case of Suraj
Bunsi was not referred to.

Where property has been sold before the order of adjudication and before the executing
court had knowledge of the insolvency proceedings and there is no application to have the
property delivered to the receiver, the executing court has jurisdiction to continue the
execution proceeding. 1762 Where an order of adjudication is passed after attachment, but
before sale, the attached property vests in the official assignee or receiver. The attaching
creditor cannot obtain satisfaction of his decree by sale. The order of adjudication has the
effect of divesting the right of the attaching creditor and remits him to the position of an
ordinary creditor. 1763 A transfer of property which is under attachment, is liable to be
challenged only by the attaching creditor and persons whose claim arises under the
attachment and not by other persons. It was, accordingly held that where the father was
adjudicated insolvent and the official receiver sold the interest of his sons also, it was not
open to them to question the same on the ground that their shares had been attached by
the decree-holder before adjudication. 1764

18. Presidency Towns Insolvency Act, 1909. Under that Act, the fathers power of
alienating for his debts, his sons share in the joint property of a Hindu Mitakshara family
vests in the official receiver but the Madras High Court has held that it is subject to the
attachment made by the sons creditor which had been made before the vesting. 1765

19. Effect of winding-up order on attachment. The position of the liquidator of a

registered company differs from that of the official assignee in that the property of the
company does not vest in him. An attachment, therefore, made on the property of the
company at the instance of a decree-holder before the winding-up of the company cannot
be released at the instance of the liquidator. 1766

20. Sub-section (2)Concept of Registration. Section 64(2) of the Code of Civil Procedure has
been inserted by Amendment Act, 2002. Section 64, as it originally stood, has been
renumbered as s 64 (1). Section 64(1), inter alia, provides that where an attachment has
been made, any private transfer or delivery of property attached or of any interest therein
contrary to such attachment shall be void as against all claims enforceable under the
attachment. Sub-section (2) protects the aforesaid acts if made in pursuance of any
contract for such transfer or delivery entered into and registered before the attachment.
The concept of registration has been introduced to prevent false and frivolous cases of
contracts being set up with a view to defeat the attachments. If the contract is registered
and there is subsequent attachment, any sale deed executed after attachment will be valid,
if it is unregistered, the subsequent sale after attachment would not be valid. Such sale
would not be protected. There is no ambiguity in sub-s (2) of s 64. 1767
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1337 . For immunity from attachment see Army Act, 1950, s 28; Air Force Act, 1950, s 28 and Navy Act, 1957, s 20.
1338 . Subs. by CPC (Amendment) Act, s 23 (w.e.f. 1-2-1977), for the words an agriculturist.
1339 . Ins. by CPC (Amendment) Act, s 23 (w.e.f. 1-2-1977).
1340 . For such notification, see Gazette of India, 1909, Pt I p. 5.
1341 . Subs. for four hundred rupees by the CPC (Amendment) Act, 1999 (46 of 1999), s 6 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-
2002.
1342 . Ins. by the CPC (Amendment) Act 66 of 1956.
1343 . Subs. for old proviso by CPC (Amendment) Act 104 of 1976, s 23 (w.e.f. 1-2-1977).
1344 . Ins. by the CPC (Amendment) Act 66 of 1956.
1345 . Subs. by the CPC (Amendment) Act 104 of 1976, s 23 (w.e.f. 1-2-1977).
1346 . Ins. by the CPC (Amendment) Act 104 of 1976, s 23 (w.e.f. 1-2-1977).
1347 . Subs. by ibid .
1348 . Subs. by CPC (Amendment) Act, 104 of 1976, s 23 (w.e.f. 1-2-1977) for the words Explanation 2in clauses (h) and (i).
1349 . Subs. for Federal Railway by AO, 1950.
1350 . Cl (ii ) omitted by AO, 1948.
1353 . See notes headed cl (h) below.
1354 . See note as to cl (k) above.
1355 . Mubarak v. Ahmad , AIR 1924 All 328(FB) : (1924) 46 All 489; Alla Baksh v. Chetram , AIR 1945 Lah 123: 47 PLR 107.
1356 . K.K. Lakshmi v. State Bank of Travancore , AIR 1988 Ker 311 [LNIND 1987 KER 133].
1357 . Nabisa Beevi v. Manager, Canara Bank Nagarcoil , AIR 1984 Mad 249 [LNIND 1984 MAD 94].
1358 . State of Punjab v. Dina Nath , AIR 1984 SC 352 [LNIND 1983 SC 340]: (1984) SCC 137.
1359 . Lavnan v. Subanna , AIR 1988 Kant 40 [LNIND 1987 KANT 46]; Rewali v. Chiranjilal , AIR 1944 Lah 29 followed.
1360 . Surinder Nath Kapoor v. Union of India , (1988) Supp SCC 626.
1361 . Parashram v. Govind , (1897) 21 Bom 226.
1362 . Belrex India Ltd. v. Shinghal Electric Co. , AIR 1983 Del 430 [LNIND 1983 DEL 85].
1363 . Union Bank of India v. M/s. Mitter Sain Rup Chand , AIR 1995 Bom 371 [LNIND 1995 BOM 192] (DB).
1364 . Ismail v. Johri Mal , AIR 1937 All 652.
1365 . Jagat Chunder v. Iswar Chunder , (1893) 20 Cal 693, see O 21, r 49.
1366 . Ratanshi v. Tricumji , AIR 1940 Pat 107: (1940) 18 Pat 698.
1367 . Mono Mohan v. Kali Kinkar , AIR 1935 Cal 751.
1368 . Rudra v. Krishna , (1887) 14 Cal 241.
1369 . Champaran Sugar Co. v. Haridas , AIR 1966 Cal 134 [LNIND 1965 CAL 65]: 69 Cal WN 815.
1370 . Abdul Latef v. Doutre , (1889) 12 Mad 250.
1371 . Annaji v. Chandrabai , (1893) 17 Bom 503; Matimala v. Surendra Nath , AIR 1936 Cal 802.
1372 . Rajes Kanta Roy v. Srimathi Shanti Debi , AIR 1957 SC 255 [LNIND 1956 SC 100]: [1957] SCR 77 [LNIND 1956 SC 100] :
1957 SCJ 197 : 1957 SCA 440.
1373 . Bank of New India v. Ponnamma , AIR 1961 Ker 105 [LNIND 1960 KER 221]: (1960) ILR Ker 906.
1374 . AIR 1974 Bom 87 [LNIND 1972 BOM 86]: 76 Bom LR 375.
1375 . Ramesh H. Shah v. Harsukh J. Joshi , AIR 1975 SC 1470 [LNIND 1975 SC 171]; Vrajlal v. Pandya v. Dr. Jaswant Shivlal , AIR
1977 Guj 131.
1376 . Lakhpat Rai v. Atma Singh , AIR 1962 Punj 228: (1961) 2 Punj 166.
 Page 64 of 74
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1377 . Harisingh v. Chandasingh , AIR 1968 Bom 380 [LNIND 1967 BOM 111]: 70 Bom LR 95 : (1968) Mah LJ 352 [LNIND 1967
BOM 57].
1378 . Keshab v. Ajahar , (1914) 19 Cal WN 1182; Golak Nath v. Mathuranath , (1893) 20 Cal 273.
1379 . Direndranath Chandra v. Satish Chandra , AIR 1956 Pat 4; Niresh Chandra v. Paresh Chandra , AIR 1959 Assam 61.
1380 . Aminchand v. Nashan Begum , AIR 1954 Punj 235; Sheik Mohd Din v. Thakar Singh , AIR 1952 Punj 428: (1952) ILR Punj 546.
1381 . Ramchandra v. Sukhdeo , AIR 1935 Nag 133.
1382 . Purshottam v. Balvant , (1908) 10 Bom LR 13 [LNIND 1907 BOM 175].
1383 . Ganjhu Upendra Singh v. Ganjhu Meghanath Singh , AIR 1939 Pat 598: (1939) 18 Pat 370.
1384 . Karuthan v. Subramanya , (1886) 9 Mad 203.
1385 . Province of Bengal v. Bholanath Sen , AIR 1950 Cal 174: (1949) 54 Cal WN 322.
1386 . Diwali v. Apaji , (1886) 10 Bom 342; Gulab Kuar v. Bansidhar , (1893) 15 All 371; Bansidhar v. Gulab Kuar , (1894) 16 All 443.
1387 . Kuppa v. Dorasami , (1883) 6 Mad 76; Narasimma v. Anantha , (1882) 4 Mad 391; Rangasami v. Ranga , (1893) 16 Mad 146;
Mancharam v. Pranshankar , (1882) 6 Bom 298.
1388 . Durga Bibi v. Chanchal , (1882) 4 All 81; Rama Varma v. Ramannayar , (1882) 5 Mad 89; Rajah Vurmah v. Ravi Vurmah , (1876) 1
Mad 235 : 4 IA 76; Gnanasambanda Pandara Sannadhi v. Velu Pandaram , (1900) 23 Mad 271 : 27 IA 69; Srimati v. Ratanmani , (1897) 1 CWN
493; Shailojanund v. Peary , (1902) 29 Cal 470.
1389 . Jhummun v. Dinooath , (1871) 16 WR 171.
1390 . Lotlikar v. Wagle , (1882) 6 Bom 596; Bishen Chand v. Nadir Hossein , (1888) 15 Cal 329 : 15 IA 1.
1391 . Kutumba Rao v. Govardhanam , AIR 1957 AP 349: (1957) Andh LT 219 : (1957) 1 Andh WR 139; Kesavacharyulu v. Venugopalasami , AIR
1956 AP 109 [LNIND 1955 AP 61].
1392 . Anjaneyalu v. Sri Venugopala , AIR 1922 Mad 197 [LNIND 1922 MAD 12]: (1922) 45 Mad 620.
1393 . Khitanarain v. Surju , AIR 1931 Pat 364: (1931) 10 Pat 582.
1394 . Goudkoin v. Vencatesa , (1907) 30 Mad 378.
1395 . Salakshi v. Lakshmayee , (1908) 31 Mad 500.
1396 . Karuppahli v. Singaravelu , AIR 1935 Mad 848 [LNIND 1935 MAD 151]. For other kinds of property which cannot be
alienated, see Transfer of Property Act, 1882, s 6.
1397 . Radha Kissen v. Hira Lal , AIR 1939 Cal 283: (1938) 2 Cal 618.
1398 . Ma Paing v. Maung Shwe Hpan , AIR 1927 Rang 274: (1927) 5 Rang 478.
1399 . Tata Iron & Steel Co. v. Bir Singh , AIR 1982 Pat 130.
1400 . Pushpamala Jain v. Bank of Baroda , AIR 1990 P&H 28.
1401 . TES Pvt. Ltd. v. Indian Chemicals , AIR 2004 Bom 198 [LNIND 2004 BOM 265] (FB).
1402 . VL & F Co. (M/s) v. PB and M Works Pvt. Ltd. (M/s) AIR 2003 Bom 217 [LNIND 2002 BOM 884].
1403 . Syud Taffuzzool v. Raghoonath , (1871) 14 MIA 40.
1404 . Harnam Singh v. Salig Ram , (1912) PR No 91 : 318.
1405 . M Kasiyya v. J Pullayya , AIR 1974 Andh Pra 220.
1406 . Kishan Singh v. Babu Singh , AIR 1973 All 196: (1973) All LJ 280.
1407 . Sarup Lal v. Radha Manoharji , AIR 1975 All 18.
1408 . Peru v. Ronu , (1885) 11 Cal 164.
1409 . Bebee Tokui v. Davod , (1856) 6 MIA 510.
1410 . Kanchan v. Babu Bhai , AIR 1967 Raj 184: (1967) Raj LW 290.
1411 . Pannalal v. Mst Naraini , AIR 1952 SC 170 [LNIND 1952 SC 16]: [1952] SCR 544 [LNIND 1952 SC 16] : 1952 SCJ 211 [LNIND 1952
SC 16]; Kuppuswami v. Rangai Gounder , AIR 1962 Mad 383 [LNIND 1961 MAD 98]: (1962) 2 Mad LJ 132 : 75 LW 144.
1412 . Bisen Chand v. Nadir Hossein , (1888) 51 Cal 329 : 15 IA 1.
1413 . Basangowla v. Irgowdati , AIR 1923 Bom 276: (1923) 47 Bom 97.
1414 . Ramchandra v. Sukhdeo , AIR 1935 Nag 133.
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1415 . Janki Das v. East Indian Rly. , (1884) 6 All 634; Natha v. Schiller , AIR 1924 Bom 88: (1923) 25 Bom LR 599.
1416 . Narasimhulu v. Adiappa , (1890) 13 Mad 242.
1417 . Smith v. Allahabad Bank , (1901) 23 All 135.
1418 . Ramballav v. Gangadhar , AIR 1956 Cal 275 [LNIND 1956 CAL 15].
1419 . Balamba v. Krishnayya , (1914) 37 Bom 483 (FB).
1420 . Shankar v. Umabai , (1913) 37 Bom 471.
1421 . Eshami Dasi v. Gopal , (1914) 18 Cal WN 1335; Krishna v. Mst. Promila , AIR 1928 Cal 518: (1928) 55 Cal 1315.
1422 . Muthulal Agarwal v. The Trustees of Provident Fund of Tin Plate Co. , AIR 1956 SC 675: (1956) SCR 100 [LNIND 1956 SC 12] :
(1956) SCC 336 : (1956) SCJ 406 [LNIND 1956 SC 12].
1423 . Josephs Tile Works v. Kottayam Bank , AIR 1953 TC 21.
1424 . Webster v. Webster , (1862) 31 Beav 393.
1425 . Lachman v. Jarundan , AIR 1928 All 193: (1928) 50 All 507.
1426 . Haridas v. Barodo Kishore , (1900) 27 Cal 38.
1427 . Syud Taffuzzool v. Raghoonath , (1871) 14 MIA 40, p. 50; Sher Singh v. Sri Ram , (1908) 30 All 246.
1428 . Bansi Lal v. Mohammad Hafiz , AIR 1939 Pat 77: (1939) 17 Pat 706.
1429 . Venkatarama v. Valli Akkal , AIR 1935 Mad 181 [LNIND 1934 MAD 243]: (1935) 58 Mad 693.
1430 . Bharat Nidhi Ltd. v. Takhatmal , AIR 1969 SC 313 [LNIND 1968 SC 416].
1431 . Upendra Mohan v. Malini Mohan , AIR 1937 Cal 199: (1937) 2 Cal 48.
1432 . Jagarnath v. Kishen , (1867) 7 WR 266; Sher Singh v. Sri Ram , (1908) 30 All 246; Nawab Khajeh Habibula v. Kaviraj , AIR 1929 Cal
352: (1928) 33 Cal WN 282.
1433 . Ramchandra v. Sukhdeo , AIR 1935 Nag 133.
1434 . Prasanna Kumar v. Asutosh Roy , AIR 1914 Cal 60: (1914) 18 Cal WN 450.
1435 . Ghanshamlal v. Bhansali , (1881) 5 Bom 249.
1436 . (1894) 16 All 286.
1437 . (1900) 27 Cal 38; Nilkunto v. Hurro , (1978) 3 Cal 414.
1438 . (1881) 3 All 12.
1439 . (1901) 23 All 164. As to attachment of right to claim specific performance, see note above : Saleable property.
1440 . (1866) 6 WR Mis 64 (maintenance).
1441 . (1880) 6 CLR 19 (private pensions).
1442 . (1898) 21 Mad 393.
1443 . (1908) 31 All 304 (wages of private servants).
1444 . AIR 1935 Cal 578: (1935) 62 Cal 404 : 157 IC 1089.
1445 . (1908) 30 All 252.
1446 . AIR 1936 Lah 727: (1936) 17 Lah 270 : 164 IC 258.
1447 . Bindeshari v. Banshi Lal , AIR 1932 All 344: (1932) 54 All 399.
1448 . Tukaram v. Gunaji , (1871) 8 BHC (AC) 129.
1449 . Appana v. Tangamma , (1885) 9 Bom 106.
1450 . Hiralal v. Harison , AIR 1974 Pat 39.
1451 . AIR 1943 Mad 523 [LNIND 1943 MAD 31]: (1943) 1 MLJ 414 [LNIND 1943 MAD 31] : 56 LW 301.
1452 . Nihal Singh v. Siri Ram , AIR 1939 Lah 388(FB); Karan Chand v. Official Receiver, Simla , AIR 1938 Lah 936: (1934) 15 Lah 26;
Maniklal v. Ramesh Chandra , AIR 1955 Cal 290 [LNIND 1954 CAL 149]: 59 Cal WN 466; Kanhaiyalal v. Sunder Lal , AIR 1957 Raj 353
[LNIND 1956 RAJ 81].
1453 . Punnavanam v. Muthuswami Achari , AIR 1962 Mad 444 [LNIND 1962 MAD 18].
1454 . Harjiram v. Ghanshaym , AIR 1972 Raj 62 [LNIND 1971 RAJ 117].
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1455 . Kanhaiyalal v. Sunder Lal , AIR 1957 Raj 353 [LNIND 1956 RAJ 81].
1456 . Ahmed Sayeed v. Kanizak , AIR 1941 All 157: (1941) All 278.
1457 . Harjiram v. Ghanshyam Das , AIR 1972 Raj 62 [LNIND 1971 RAJ 117] (case law reviewed).
1458 . Karamchand Sood v. Official Receiver , AIR 1938 Lah 936: ILR 15 Lah 26 : 34 PLR 809.
1459 . Manikyam v. Manikamma , AIR 1942 Mad 4: (1941) 2 MLJ 671 : 1941 MWN 783.
1460 . Champaklal v. Swastik Bharat Kala Kendra , AIR 1960 Bom 276 [LNIND 1959 BOM 51]: 61 Bom LR 1356.
1461 . AIR 1932 All 344: (1932) 54 All 399.
1462 . Mahabir v. Raghunandan , AIR 1935 All 848: (1935) All LJ 1011.
1463 . Lakshman v. Narhari , AIR 1924 Bom 294: (1923) 25 Bom LR 1211.
1464 . Saligram v. Sheopratap , AIR 1939 Nag 3: (1939) ILR Nag 355.
1465 . AIR 1958 All 561 [LNIND 1958 ALL 15].
1466 . Mathra Bai v. Kanhaiyalal , AIR 1959 MP 375 [LNIND 1959 MP 186]; Saligram v. Swaran Pratap ILR , AIR 1939 Nag 3: (1939)
Nag 355.
1467 . Aruamugha v. Marappa , AIR 1973 Mad 46 [LNIND 1972 MAD 370]: (1972) 2 MLJ 145 [LNIND 1972 MAD 370].
1468 . Shanti Devi v. State of Uttar Pradesh , (1997) 8 SCC 22 [LNIND 1997 SC 1190].
1469 . Devare v. Vaikunt , (1917) 41 Bom 475.
1470 . Hanmuntrao v. Dhunaraj , AIR 1948 Bom 229: (1947) ILR Bom 687 : 49 BLR 867; Muthu Venkatarama v. Official Receiver , AIR
1926 Mad 350 [LNIND 1925 MAD 313]: (1926) 49 Mad 227; Balwant Singh v. Anjaman Imadad , AIR 1939 Lah 40; but see observations
in Gowardhendas v. Mohanlal , AIR 1938 Nag 366: (1938) ILR Nag 461.
1471 . Nihal Singh v. Siri Ram , AIR 1939 Lah 388(FB); Parvata Neni v. Official Receiver, Masulipatam , AIR 1937 Mad 551(FB) : (1937) ILR Mad
777; Mst Araz Bibi v. Mubarak Ali , AIR 1938 All 85: (1937) All LJ 1314.
1472 . AIR 1952 Mad 807 [LNIND 1951 MAD 299]: (1952) 1 MLJ 291 [LNIND 1951 MAD 299].
1473 . AIR 1961 All 183 [LNIND 1960 ALL 162]: (1961) 1 All 141 : (1961) All LJ 88.
1474 . Pukh Raj v. Prabha , AIR 1970 Raj 108 [LNIND 1969 RAJ 124]: (1969) Raj LW 495.
1475 . AIR 1961 SC 589 [LNIND 1960 SC 249]: (1961) 2 SCR 163 [LNIND 1961 SC 11] : (1961) 1 SCA 735 [LNIND 1961 SC
11] : (1962) 2 SCJ 563 [LNIND 1960 SC 249]; Keshav Nandan v. Bank of Bihar , AIR 1977 Pat 185.
1476 . P. Bachubhai v. Lalita , AIR 1972 Guj 31 [LNIND 1971 GUJ 87], p. 33.
1477 . Radhakisan v. Balwant , (1883) 7 Bom 530; Bank of Chettinad v. Ko San Ok , AIR 1933 Rang 227: (1933) 11 Rang 372; Radha
Krishna v. Maiku , AIR 1936 Oudh 155.
1478 . Jivan v. Hira , (1888) 12 Bom 363; Mirza v. Jhenda Ram , AIR 1930 Lah 1034: (1931) 12 Lah 367; Basavayya v. Official Receiver ,
AIR 1960 Andh Pra 458.
1479 . Pandurang v. Krishnaji , (1904) 28 Bom 125; Jamna Prasad v. Raghunath , (1913) 35 All 307; Mirza v. Jhenda Ram , AIR 1930 Lah
1034: (1931) 12 Lah 367; Matu Ram & Sons v. Eligin Mills Co. , AIR 1974 Del 205 [LNIND 1973 DEL 173].
1480 . Radhakisan v. Balvant , (1883) 7 Bom 530; Badri Chandra v. Indrajit , AIR 1932 All 508: (1932) 54 All 736.
1481 . S. Chenchulakshmi v. A. Subramanian , AIR 1972 Mad 348 [LNIND 1971 MAD 264]: (1972) 1 MLJ 206 [LNIND 1971 MAD 264].
1482 . Hirda Ram v. Mohammad Din , AIR 1936 Lah 895; Baldev Singh v. Sher Singh , AIR 1939 Lah 556; Gurparshad v. Kishen Chand ,
AIR 1938 Lah 608; Buraj Ban Krishna Behari , (1953) Raj 759 : (1954) Raj LW 241.
1483 . Parbathy Antherjanam v. Indian Bank , AIR 1996 Ker 159 [LNIND 1996 KER 5].
1484 . Uzir v. Haradeb Das , (1920) 24 Cal WN 575.
1485 . Ganga Bishun v. Jagmohan , AIR 1927 Pat 233: (1927) 6 Pat 254; Ramadin v. Seth Sheodutt , AIR 1938 Nag 544; Ganpatrao v. A.V.
Zinzarde , AIR 1948 Nag 392: (1948) ILR Nag 530.
1486 . Duggirala Balurama Krishnayya v. Arukapudi Jagannadhan Rao , AIR 1983 Andh Pra 136 (DB).
1487 . Bhagwandas v. Kashibai , (1880) 4 Bom 25; Bhola Nath v. Kishori , (1912) 34 All 25; Mubarak v. Ahmad , AIR 1924 All 328(FB) :
(1924) 46 All 489; Khemchand v. Melaram , AIR 1955 J&K 33; Santha Kumari v. Suseeladevi , AIR 1969 AP 355 [LNIND 1968 AP 203];
Kochumariam v. KV Co. , AIR 1974 Ker 78 [LNIND 1973 KER 100].
1488 . Aga Jaffer Ali v. Radha Kishen , AIR 1951 Punj 433; Brij Mohan Lal v. Bakshi Ram , AIR 1975 P&H 214.
1489 . Channu v. Khem Karan , AIR 1961 All 566 [LNIND 1960 ALL 127].
 Page 67 of 74
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1490 . Basavayya v. Official Receiver , AIR 1960 Andh Pra 458.

1491 . Rura Ram v. Gurbachna , AIR 1954 Punj 254.
1492 . Challa Ramaiah v. Desu Guruvaiah , AIR 1989 Andh Pra 56.
1493 . Shyam Chand v. Land Mortgage Bank , (1883) 9 Cal 695.
1494 . Surannamukhi v. Virupakshmma , AIR 1969 Andh Pra 23.
1495 . AIR 1949 All 433. As to a decree for mesne-profits, see note 4(i), s 73.
1496 . Ganesh v. Shankar , (1886) 10 Bom 395; Govind v. Ramkrishna , (1888) 12 Bom 366; Rajaram v. Ganesh , (1899) 23 Bom 131.
1497 . Digamber v. Hari , AIR 1927 Bom 143: (1927) 29 Bom LR 102 ; followed in Muhammad Ali v. Muhammad Nazi , AIR 1934 Lah
57: (1934) 15 Lah 136.
1498 . Durga Prasad v. Shambhu , (1919) 41 All 656.
1499 . Lachman v. Baldeo , AIR 1922 Pat 556: (1922) 1 Pat 619.
1500 . Ganpat v. Kashmiri Bank , AIR 1929 Oudh 444: (1930) 5 Luck 206.
1501 . Haridas v. Charu Chandra , AIR 1933 Cal 757: (1933) 60 Cal 1351.
1502 . Muhammad Ali v. Muhammad Nazi , AIR 1934 Lah 57: (1934) 15 Lah 136.
1503 . Nand Kumar v. Ganesh Das , AIR 1936 All 131: (1936) 58 All 457.
1504 . Purasattamdas v. Baijnath , AIR 1941 Cal 240.
1505 . Har Parshad v. Prem Singh , AIR 1952 Punj 138.
1506 . Bawan Das v. Mul Chand , (1884) 6 All 173; Muhammad v. Carlier , (1882) 5 Mad 272 (decided under the Code of 1877 which
did not include gratuities).
1507 . Sathyavathy v. Bhargavi , AIR 1991 Ker 377 [LNIND 1991 KER 106] (DB).
1508 . Subramanya Iyer v. Hyder , AIR 1955 Mys 419; Calcutta Docklalous Board v. Sandhya Mitra , (1985) 2 SCC 1 [LNIND 1985 SC 46].
1509 . Bishambar v. Imdad Ali , (1891) 18 Cal 216 : 17 IA 181; Muthusami v. Prince Alagia , (1903) 26 Mad 423; Shiv Narain Singh v.
Munilal , AIR 1934 Lah 881; Achhru Mal v. Balwant Singh , AIR 1937 Lah 178: (1937) Lah 415; Raja Babhadar Singh v. Shankar Das , AIR
1937 Lah 211.
1510 . Abdul Bais Khan v. Budh Singh , AIR 1973 Raj 201.
1511 . Valia v. Anujani , (1903) 26 Mad 69.
1512 . Vigneshwar v. Ganga Bai Kom Narayan Bhatt Prasad , AIR 1997 Kant 149 [LNIND 1996 KANT 475].
1513 . Lachmi Narain v. Makund , (1904) 26 All 617; Nawab Bahadur v. Kernani Bank , AIR 1931 PC 160: 58 IA 215 : ILR 59 Cal 1; Bhiwaji
Chunilal v. Raje Chanishing , AIR 1948 Nag 194: (1947) ILR Nag 616.
1514 . Harnam Singh v. Ramji Das Pohlumal , AIR 1951 Punj 225.
1515 . Muthusami v. Prince Alagia , (1903) 26 Mad 423.
1516 . Bisambar Nath v. Imdad Ali , (1891) 18 Cal 216 : 17 IA 181.
1517 . Mahamed v. Mohamed , (1867) 7 WR 169.
1518 . Mahomed v. Comandur , (1869) 4 MHC 277.
1519 . Dongarchand v. Madho Singh , AIR 1927 Mad 604 [LNIND 1926 MAD 486]: (1927) 50 Mad 711.
1520 . Ambsingh v. Jathamal , AIR 1961 Raj 473: (1961) Raj LW 429.
1521 . KB Co-op. Credit Bank v. N.S. Verma , AIR 1962 Bom 121 [LNIND 1961 BOM 21].
1522 . AIR 1962 MP 320 [LNIND 1960 MP 55].
1523 . Usman Ali Khan v. Sangarmal , AIR 1965 SC 1798 [LNIND 1965 SC 61].
1524 . Bhoyrub v. Madhub Chunder , (1880) 6 CLR 19.
1525 . Mniswami v. Viswanatha , AIR 1957 Mad 773 [LNIND 1957 MAD 21]: (1957) 2 MLJ 400 [LNIND 1957 MAD 21] : 70 LW
701.
1526 . Jechand v. Aba , (1881) 5 Bom 132.
1527 . Mansuri Ibrahim Mohamed v. Kantilal Balabhai , AIR 1956 Bom 276 [LNIND 1955 BOM 233].
1528 . Manilal v. Mohan Lal , AIR 1945 Bom 102: (1945) ILR Bom 899.
 Page 68 of 74
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1529 . Bhikari Behara v. Dhanapatee , AIR 1970 Cal 176 [LNIND 1969 CAL 175]: 73 Cal WN 943.
1530 . Janendra Kumar v. Akash Chandra , AIR 1938 Cal 325.
1531 . Re Hormusji Jomshedji , AIR 1939 Sau 134.
1532 . Muir Mills Co. Ltd. v. Suit Mills , AIR 1955 SC 170 [LNIND 1954 SC 159]: (1955) 1 SCR 1991 : 1955 SCJ 214 [LNIND 1954
SC 159] : 1955 SCA 321; Meenakshi Mills Ltd. v. Workmen , AIR 1958 SC 153 [LNIND 1957 SC 117]: 1958 SCA 440.
1533 . Munisami v. Viswanatha , AIR 1957 Mad 773 [LNIND 1957 MAD 21]: (1947) 2 MLJ 400 : 70 LW 701; Sheo Dutt Singh v. Ali
Mohamad 63 Cal WN 207; Muhamad v. Rucky , AIR 1962 Ker 63 [LNIND 1961 KER 31].
1534 . Jeevanlal v. Ramtuji Bhaji , AIR 1945 Bom 119; Harji Malla v. Karsanji , AIR 1954 Sau 19; Nathamal Sucheti v. Dasarath , AIR
1959 Mys 96: (1958) ILR Mys 132.
1535 . Badlu Prasad v. Tirjuji Sitaram , AIR 1965 MP 42 [LNIND 1963 MP 19].
1536 . Ganpathia v. Swaminatha , AIR 1969 Mad 440 [LNIND 1968 MAD 26]: (1969) 2 LLJ 159; P. Krishna Rao v. Thimurshakhan ,
AIR 1970 Mad 135 [LNIND 1969 MAD 70]: (1969) 2 MLJ 241 [LNIND 1969 MAD 70]; Gopalan v. Angamali Chit Fund , AIR 1977 Ker
120 [LNIND 1975 KER 83].
1537 . Now one thousand as per Amending Act, (46 of 1999).
1538 . Jahar Ali v. Mushardan , AIR 1930 Pat 326: (1930) 9 Pat 304.
1539 . Om Prakash Gupta v. United Provinces , AIR 1951 All 205 [LNIND 1950 ALL 315]; Tejram v. Kusaji , (1870) 7 BHC (AC) 110.
1540 . Beard v. Egerton , (1883) 6 Mad 179; Bhoyrub v. Madhub Chunder , (1880) 6 CIR 19.
1541 . Debi Prasad v. Lewis , (1918) 40 All 213.
1542 . Satyapriya Bannerjee v. Kundanmull , AIR 1939 Cal 428: (1939) 1 Cal 523.
1543 . Union of India v. Hira Devi , AIR 1952 SC 227 [LNIND 1952 SC 36]: (1952) SCR 7655 : 1952 SCJ 326 [LNIND 1952 SC 36] :
1952 SCA 323 [LNIND 1952 SC 36]; Divisional Accounts Officer v. Radha Kissen , AIR 1959 Cal 666 [LNIND 1957 CAL 124]: (1958) CLJ
208.
1544 . Srinivasan v. Padmasini Ammal , AIR 1957 Mad 622 [LNIND 1957 MAD 78]; Champa Devi v. Sat Narain 74 Punj LR 211.
1545 . Pashupatinath v. Gomi Shankar , AIR 1956 Pat 159: ILR 34 Pat 406.
1546 . Ibid ; Superintendent, RMS Division, Calcutta v. Co-op. Society, Howrah , AIR 1944 Cal 135: (1944) 2 Cal 137 ; but see Municipal
Corpn. of Rangoon v. Ram Behari , AIR 1939 Rang 432.
1547 . Florence Mabel RJ v. State of Kerala , AIR 2001 Ker 19 [LNIND 2000 KER 255].
1548 . Kasiprasad v. A.A. DCRUZ , AIR 1958 Cal 19: 61 Cal WN 740.
1549 . Biman Kumar v. Commercial Engineering Corpn. Ltd , AIR 1983 Cal 45 [LNIND 1982 CAL 247] (DB).
1550 . Ibid .
1551 . Ayyavayyar v. Virasami , (1898) 21 Mad 393; Debi Prasad v. Lewis , (1909) 31 All 304; Ramgopal v. Misrilal & Sons , AIR 1953 Mys 127:
(1954) ILR Mys 5.
1552 . Behudoor v. Pasupathy , AIR 1973 Ker 175 [LNIND 1972 KER 198]: (1973) 1 LLJ 516.
1553 . MSM Railway v. Chengali Syedali , AIR 1950 Mad 402 [LNIND 1949 MAD 314].
1554 . Mai Dan v. Imperial Bank of India , AIR 1936 Lah 694; Krityanand v. Saileswar , AIR 1937 Pat 22: (1936) 15 Pat 779.
1555 . Superintendent, RMS Division, Calcutta v. RMS Division Co-op. Credit Society Ltd., Howrah , AIR 1944 Cal 135.
1556 . Union of India v. Hira Devi , AIR 1952 SC 227 [LNIND 1952 SC 36]: [1952] SCR 765 [LNIND 1952 SC 36] : (1952) SCJ 326
[LNIND 1952 SC 36] : (1952) SCA 323 [LNIND 1952 SC 36]; Taj Mahamad v. Balaji , AIR 1934 Mad 173 [LNIND 1933 MAD 233]:
ILR 57 Mad 440; Abdul Wahidkhan v. Renny Charles , AIR 1965 Mys 303.
1557 . Union of India v. JC Fund and Finance , AIR 1976 SC 1163 [LNIND 1976 SC 112].
1558 . Iswardas v. Gregory , AIR 1955 Cal 509 [LNIND 1955 CAL 57]: 96 CLJ 126.
1559 . Veerchand v. BB and CI Railway , (1905) 29 Bom 259; Sett Manna Lal v. Gainsford , (1908) 35 Cal 641; Hindley v. Joy Narain ,
(1919) 46 Cal 962; Secretary of State v. Raj Kumar , AIR 1923 Cal 585: (1923) 50 Cal 347; Devi Prasad v. Secretary of State , AIR 1924 All 68:
(1923) 45 All 554; Official Assignee of Madras v. Mary Dalgaims , (1903) 26 Mad 440; Nagindas v. Ghelabhai , (1920) 44 Bom 673 (insolvency
of railway servant); Gauri Shankar v. R.J. De Cruz , AIR 1927 Oudh 22: (1926) 1 Luck 313 (insolvency of railway servant); Walchand v.
Williams , AIR 1935 Bom 396: (1935) 59 Bom 517; Joseph Benjamin Bonjour v. Official Assignee , AIR 1956 Mad 283 [LNIND 1955 MAD
177]; Central Bank v. M.V.V. Rao , AIR 1949 Cal 144: (1945) 1 Cal 277.
1560 . Union of India v. Radha Kissen , AIR 1969 SC 762 [LNIND 1968 SC 376].
1561 . Jagannath v. Tara , AIR 1924 Pat 524: (1924) 3 Pat 74.
 Page 69 of 74
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1562 . Thaj Mahomed v. Balaji , AIR 1934 Mad 173 [LNIND 1933 MAD 233]: (1934) 57 Mad 440.
1563 . Rangamma v. C.S. Appaji Murthy , AIR 1989 NOC 52(Kant).
1564 . Kausalay Devi v. Parveen Bankers , AIR 1980 Ker 148 [LNIND 1979 KER 189].
1565 . Madhavan Nambiar v. Syndicate Bank , AIR 1991 Ker 367 [LNIND 1991 KER 180].
1566 . Jiwan Hansraj v. Irrawaddy Flotilla Co. , AIR 1933 Rang 23: (1933) 11 Rang 116.
1567 . N.K. Banerji v. State of Bihar , AIR 1961 Pat 384.
1568 . Muktilal v. Trustees of the Provident Fund of the Tin Plate Co. of India Ltd. , AIR 1956 SC 336 [LNIND 1956 SC 12]: (1956) SCR
100 [LNIND 1956 SC 12].
1569 . Federal Bank Ltd. v. Indira Devi Kunjamma , AIR 1986 Bom 101 [LNIND 1984 BOM 323].
1570 . A.B. Sasidharan v. KCT S Sadhaka Sangham , AIR 1995 Ker 153.
1571 . Regional Manager, LIC of India v. John Bosco , AIR 2002 Mad 348 [LNIND 2002 MAD 297].
1572 . Regional Manager, LIC of India v. John Bosco , AIR 2002 Mad 348 [LNIND 2002 MAD 297]; Sarbiti Devi v. Usha Devi , AIR 1984
SC 346 [LNIND 1983 SC 365].
1573 . Union Bank of India v. Mittersain Rup Chand , AIR 1995 Bom 371 [LNIND 1995 BOM 192] (DB).
1574 . Beard v. Egertton , (1883) 6 Mad 179.
1575 . A.B. Vorkady v. United Bank of India , AIR 1996 Kant 79 [LNIND 1995 KANT 191].
1576 . Velraj v. Muthiah , AIR 2008 Mad 239 [LNIND 2008 BMM 449]: 2008 (5) Mad LJ 1307.
1577 . Ram Chunder v. Dhurmo , (1871) 15 WR 17 (FB); Anandibai v. Rajaram , (1898) 22 Bom 984; Pestonji v. Patrick , AIR 1936 Sau
65.
1578 . Gorak Singh v. Sidh Gopal , (1906) 28 All 383. See O 20, r 14.
1579 . Alagirisami v. Lakshmanan , AIR 1926 Mad 371: (1926) 50 Mad LJ 79.
1580 . Pestonji v. Anderson , AIR 1939 PC 6: (1939) Bom 36.
1581 . Rajes Kanta Roy v. Srimathi Shanti Debi , AIR 1957 SC 255 [LNIND 1956 SC 100]: [1957] SCR 77 [LNIND 1956 SC 100].
1582 . Basant Lall v. Dwarka Prasad , AIR 1978 All 436.
1583 . Kasheeshuree v. Greesh Chunder , (1866) 6 WR 64 Mis; Bala Prasad v. Ajodhya Prasad , AIR 1952 Pat 78.
1584 . Haridas v. Baroda Kishore , (1900) 27 Cal 38; Asad Ali Haidar Ali , (1911) 38 Cal 13; Palikandy v. Krishnan , (1917) 40 Mad 302.
1585 . Shiela Rani v. Durga Parshad , AIR 1965 Punj 79: (1964) 2 Punj 477 : 66 Punj LR 1111.
1586 . Chittoory Venkataraju v. Thermmana Satiraju , AIR 1954 Mad 946 [LNIND 1954 MAD 63]: (1954) 2 MLJ 324; but see Official
Receiver v. Venkayya , AIR 1960 AP 353 [LNIND 1959 AP 153]: (1959) 2 Andh WR 524 : (1959) Andh LT 931.
1587 . Ashfaq Md. Khan v. Nazir Bamma , AIR 1942 Oudh 410: (1942) 18 Luck 147; Vaidyanatha v. Eggia , (1907) 30 Mad 297; Province
of Orissa v. Rangamma , AIR 1950 Ori 220.
1588 . Rajindra Narain v. Sunderara Bibi , AIR 1925 PC 176: (1925) 52 IA 262; Bansidhar v. Gulab Kuar , (1894) 16 All 443, in appeal
from Gulab Kuar v. Bansidhar , (1893) 15 All 371 (Hindu widow).
1589 . Zahinuddin Hussain v. Chokkey Lal , AIR 1952 All 662 [LNIND 1949 ALL 252].
1590 . Sampato Kuer v. Dulhein Mukha Debi , AIR 1960 Pat 360.
1591 . Official Receiver v. Venkayya , AIR 1960 Andh Pra 353 : (1959) 2 Andh WR 524 : (1959) Andh LT 931.
1592 . Ramprasad v. Motiram v. Surya Rao , AIR 1957 AP 215 [LNIND 1955 AP 109].
1593 . Sundar Bibi v. Raj Indar , AIR 1921 All 120: (1921) 43 All 617; Chunni Lal v. Jai Gopal , AIR 1936 Lah 55: (1936) 17 Lah 378.
1594 . Sarup Lal v. Radha Manoharji , AIR 1975 All 18. See note to s 51 : Receiver of future maintenance.
1595 . Ramchaibar Misra v. Bechu Bhagat , (1885) 7 All 641; Umed v. Jas Ram , (1907) 29 All 612; Pandurang v. Krishnaji , (1904) 28 Bom
125; Dwarkanath v. Tarini Sankar , (1907) 34 Cal 199; Lala Ram v. Thakur Prasad , (1918) 40 All 680; Sabha Ram v. Kishan Singh , AIR 1931
All 112: (1930) 52 All 1027 : 133 IC 478; Mahadeo v. Khanderao , AIR 1939 Bom 526: (1939) 41 Bom LR 1166 ; but see Ram Chandar Singh
v. Sarupa , AIR 1939 Lah 103: (1939) Lah 103.
1596 . Kannan v. Govindan , (1960) 2 Ker 234 : (1962) Ker LJ 668 : (1962) Ker LT 675.
1597 . Ramanlal v. Shantilal , AIR 1961 All 178 [LNIND 1959 ALL 151].
1598 . Durga Charan v. Kali Prasanna , (1899) 26 Cal 727.
 Page 70 of 74
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1599 . Daulat Singh v. Jugal Kishore , (1900) 22 All 108; see s 69 and Sch III to the Code of Civil Procedure 1908.
1600 . Ram Singh v. Bherulal , AIR 1982 MP 95 [LNIND 1981 MP 4].
1601 . Rajendra Kanwar v. Chetanlal , AIR 1940 Lah 65; Uzir Biswas v. Hara Dev , AIR 1920 Cal 424; Chittarmal v. Ramdevi , AIR 1927 Pat 233;
Mahadeo v. Dhamukal , AIR 1946 All 432; Bala Prasad v. Ajodhya Prasad , AIR 1952 Pat 78: ILR 30 Pat 1146.
1602 . Subramanya v. Satyanathan , AIR 1942 Mad 391: (1942) ILR Mad 640 : 203 IC 200; MSM Rly v. Rupchand , AIR 1950 Bom 155
[LNIND 1947 BOM 74]: (1950) Bom 185; Ram Naresh v. Ganesh Mistri , AIR 1952 All 680 [LNIND 1951 ALL 145]; Indesry v. Parasuram
, (1961) Raj LW 261.
1603 . Bansi Lal v. Mohammad Hafiz , AIR 1939 Pat 77: (1939) 17 Pat 706.
1604 . Kasturi Radhakrishna Murty v. K. Lakshminarasamma , AIR 1972 AP 256 [LNIND 1971 AP 231].
1605 . Kaushalya Devi v. Praveen Bankers , AIR 1980 Ker 148 [LNIND 1979 KER 189]; A.B. Sasidharan v. Kootukadu Cherupuskas , AIR
1995 Ker 152 [LNIND 1994 KER 16]; Central Government Compilation of Treasury Rules, vol 1, r 225, note 2, referred to.
1606 . Abdul Gafur v. Ram Narain , AIR 1951 Raj 926.
1607 . Pralhad v. Mst Sakhu Bai , AIR 1961 Bom 142 [LNIND 1960 BOM 29].
1608 . AIR 1968 All 147 [LNIND 1966 ALL 45].
1609 . Murli Tahilram v. Asomal & Co , AIR 1955 Cal 423 [LNIND 1955 CAL 24]: 59 Cal WN 701.
1610 . Ude Bhan v. Kapoor Chand , AIR 1967 Punj 53: (1966) 2 Punj 400 : 68 Punj LR 591; Yogesh Sharma v. Devi Dayal Jain , AIR 1977 Del 270
[LNIND 1977 DEL 40].
1611 . Agha Jafar Ali Khan v. Radha Kishan , AIR 1951 Punj 433; Firm Ganga Ram v. Firm Jai Ram , AIR 1957 Punj 293: (1957) ILR Punj 1558;
Sampat Kumar v. Nathu Ram , AIR 1958 Punj 326: (1958) ILR Punj 1445; Narain Devi v. Durga Devi , AIR 1959 Punj 324: 61 Punj LR 219;
Ram Lal v. Piaral Lal , AIR 1973 SC 2124 [LNIND 1973 SC 191]: (1973) 2 SCC 192 [LNIND 1973 SC 191].
1612 . State of Punjab v. Dina Nath , (1984) 1 SCC 137 [LNIND 1983 SC 340]; Kiran Bala v. Surinder Kumar , AIR 1996 SC 2094 [LNIND 1996
SC 737].
1613 . The words with the previous sanction of the G.G. in C omitted by Act 38 of 1920, s 2 and Sch. I, Pt. I.
1614 . See s 60, cl (b). As to attachment of agricultural produce, see O 21, rr 4445. As to sale of such produce, see O 21, rr 7475.
1615 . See note to s 55 : Breaking open of outer door.
1616 . Damodar v. Ishwar , (1879) ILR 3 Bom 89.
1617 . Ins. by CPC (Amendment) Act 104 of 1976, s 24 (w.e.f. 1-2-1977).
1618 . See notes below.
1619 . Ram Narain v. Mina , (1898) 25 Cal 46; Bykant Nath v. Rajendro Narain , (1886) 12 Cal 333.
1620 . Surendra Kumar v. Jamini Kumar , AIR 1936 Cal 723: (1937) 1 Cal 391; Ramchandra v. Digambar Tejiram , (1960) ILR Bom 8 :
AIR 1960 Bom 230 [LNIND 1959 BOM 46]: 61 Bom LR 1665 (FB).
1621 . Turmuklal v. Kalyandas , (1895) 19 Bom 127; Ballu Ram v. Raghubar , (1894) 16 All 11; Gordhan v. Azim Khan , AIR 1963 Raj 224 [LNIND
1963 RAJ 174].
1622 . Gouri Shankar v. Kasi Prasad , AIR 1957 Cal 648 [LNIND 1957 CAL 72]: 61 Cal WN 725.
1623 . Daulat Singh v. Karni Dan , AIR 1968 Raj 296 [LNIND 1968 RAJ 23].
1624 . Dhirendra Rao v. Virbhadrappa , AIR 1935 Bom 176(1935) 59 Bom 310; Thanmull v. K. Krishnaswami , AIR 1935 Mad 988
[LNIND 1935 MAD 180].
1625 . Thanmull v. Krishnaswami , AIR 1935 Mad 988 [LNIND 1935 MAD 180]; Simla Banking & Industrial Co. Ltd., Lahore v. Indo-
Swiss Trading Co. Ltd., Calcutta , AIR 1938 Lah 754.
1626 . K. Suryavati v. Suryakantam , AIR 1984 AP 227.
1627 . Bykant Nath v. Rajendro Narain , (1886) 12 Cal 333; Ram Narain v. Mina , (1898) 25 Cal 46; Gopi Chand v. Kasimunneesa , (1907)
34 Cal 836.
1628 . Abdul Karim v. Thakordas , (1898) 22 Bom 88; Turmuklal v. Kalyandas , (1895) 19 Bom 127; Patel Naranji v. Haridas , (1894) 18
Bom 458.
1629 . Kunhayan v. Ithukutti , (1899) 22 Mad 295.
1630 . Chiranji v. Jawahir , (1904) 26 All 538; Har Prasad v. Jagan Lal , (1905) 27 All 56; Durpati v. Bibi Ramrach Pal , (1909) 31 All 527.
1631 . Srinivasachariar v. Appavoo , AIR 1924 Mad 889: (1924) 47 Mad LJ 720; Giris v. Sri Krishna , AIR 1924 Cal 168: (1923) 38 Cal LJ 266;
Veeraya v. Veeraraghavayya , AIR 1961 Andh Pra 298 : (1961) 1 Andh WR 218.
 Page 71 of 74
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1632 . Profulla Chandra v. Calcuttal Credit Corpn. , AIR 1965 Assam 21.
1633 . (1886) 12 Cal 333.
1634 . (1898) 22 Bom 88.
1635 . Kunhayan v. Ithukutti , (1899) 22 Mad 295.
1636 . See Bykant Nath v. Rajendro Narain , (1896) 12 Cal 333; Patel Naranji v. Haridas , (1894) 18 Bom 458 : 463; Nilkanta v. Gosto ,
(1919) 46 Cal 64; Karupan v. Somasundaram , AIR 1927 Mad 67 [LNIND 1926 MAD 257]: (1926) 51 Mad 661; Surendra v. Jamini , AIR
1936 Cal 723: (1936) 40 Cal WN 1307.
1637 . (1894) 18 Bom 458.
1638 . (1919) 46 Cal 64.
1639 . Deekappa v. Chanbasappa , AIR 1925 Bom 420: (1925) 49 Bom 655.
1640 . Ahinath v. Nipal Chandra , AIR 1937 Cal 55.
1641 . Meghraj Easwardar v. Corpn. of Madras , AIR 1936 Mad 797 [LNIND 1936 MAD 120]: ILR 59 Mad 1028; Kesara Rao v. Moolchand , AIR
1937 Nag 393: (1937) ILR Nag 466; Vishnu Ram v. Bank of Bihar , AIR 1946 All 291: (1946) ILR All 346; Ramchandra v. Digambar Tejiram
supra , wherein, the previous authorities are discussed.
1642 . Srinivasachariar v. Appavoo , AIR 1924 Mad 889: (1924) 47 Mad LJ 720.
1643 . Mahadeo Lal v. Darsan , (1911) 15 Cal WN 542.
1644 . Stowell v. Ajudhia , (1884) 6 All 255; Fatima Khatun v. Ashananda , (1939) 1 Cal 488.
1645 . Subramaniam v. Pakkiriswami , AIR 1957 Mad 159 [LNIND 1956 MAD 123]: (1957) 1 MLJ 9.
1646 . Surajben v. Raichand , AIR 1963 Guj 140 [LNIND 1962 GUJ 135].
1647 . Roshan Lal v. Muhammad , AIR 1921 Lah 142: (1921) 43 All 612.
1648 . Megraj v. Corpn. of Madras , AIR 1936 Mad 797 [LNIND 1936 MAD 120]: (1936) 59 Mad 1028.
1649 . Venkata Reddi v. Venkataratnam , AIR 1939 Mad 169: (1939) ILR Mad 248.
1650 . S 64 renumbered as sub-section (1) by CPC (Amendment) Act, 2002 (22 of 2002), s 3 (w.e.f. 1-7-2002) vide Notfn. S.O.
604(E), dt. 6-6-2002.
1651 . Sub-section (2) inserted by CPC (Amendment) Act, 2002 (22 of 2002), s 3 (w.e.f. 1-7-2002) vide Notfn. S.O. 604(E), dt. 6-6-2002.
1652 . Sinnappan v. Arunachalam , (1919) 42 Mad 844. See notes below : Where an attachment has been made.
1653 . See notes below Contrary to such attachment.
1654 . See notes below: Explanation to the Section, etc.
1655 . (1990) 3 SCC 291 [LNIND 1990 SC 137].
1656 . Hamda Ammal v. Avadiappa Pathar , (1991) 1 SCC 715.
1657 . Pullen Chetty v. Ramalinga Chetty , (1870) 5 Mad HCR 368.
1658 . Devi Sahai v. Govindrao , AIR 1965 MP 275 [LNIND 1964 MP 36]; Kusuma Dei v. Malati , AIR 1969 Ori 195 [LNIND 1969
ORI 41].
1659 . Shivlingappa v. Chanbasappa , (1960) 360 Bom 337, p. 339.
1660 . Dinobundhu v. Jogmay , (1902) 29 Cal 154 : 29 IA 9; Supreme General Films Exchanges Ltd. v. Brijnath , AIR 1975 SC 1810
[LNIND 1975 SC 250]; PG Munnuswami v. PR Panduranga , AIR 1978 Andh Pra 47.
1661 . Subramania v. Chokkalinga , AIR 1923 Mad 317 [LNIND 1922 MAD 183]: (1923) 46 Mad 415.
1662 . Kusuma Dei v. Malati , AIR 1969 Ori 195 [LNIND 1969 ORI 41].
1663 . Hemraj v. Waman Rao , AIR 1954 MB 378.
1664 . Pokhpal Singh v. Kanhaiya Lal , AIR 1946 All 438: (1946) ILR All 788; Nur Ahmad v. Altaf Ali , (1878) 2 All 58; Ganga Din v.
Khushali , (1885) 7 All 709; Satya Charan v. Madhub , (1905) 9 Cal WN 693; Ahmad Yar v. Bose , AIR 1925 Lah 483: (1925) 7 Lah LJ 501;
Bharat Chandra v. Gauranga , AIR 1927 Cal 885: (1928) 55 Cal 454.
1665 . Romanayakudu v. Boya , (1919) 42 Mad 565 : 50 IC 261; Sinnappan v. Arunachalam , (1919) 42 Mad 844 (FB); Mula Ram v.
Jiwandaram , AIR 1923 Lah 423: (1923) 4 Lah 211; Auru Jogulu v. Thammanna , AIR 1954) Cut 394; Mahadeo v. Janak Singh , AIR 1954 Bom
251 [LNIND 1953 BOM 117]: (1954) ILR Bom 695; Jagannath v. Kahabir , AIR 1955 Pat 231; Venkatasubbarao v. Krishnayya , AIR 1956
Andh Pra 59; Monoharlal v. Bengal Immunity Co. , AIR 1945 Cal 308: (1945) 1 Cal 601.
1666 . AIR 1928 PC 139: 55 IA 256 : ILR 51 Mad 349; Nabadwipchandra v. Loke Nath , AIR 1933 Cal 212: (1932) 59 Cal 1176.
 Page 72 of 74
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1667 . Monoharalal Bannerjee v. Bengal Immunity Co. Ltd. , AIR 1945 Cal 308: (1944) 49 Cal WN 226.
1668 . (1934) 61 IA 371 : AIR 1934 PC 217.
1669 . See the Indian Evidence Act 1872, s 114.
1670 . Ram Lakkan v. Mahbood Hasan , AIR 1954 All 422 [LNIND 1953 ALL 298]: (1944) All LJ 118.
1671 . Dhan Singh v. Bapoo Ram , AIR 1981 All 1.
1672 . Nancy Johnydom v. Prabhatilal , (1987) 4 SCC 78 [LNIND 1987 SC 599].
1673 . Gann v. Jangi Lal , (1899) 26 Cal 531; Shivlal v. Taniram , (1938) 30 Bom LR 1136 : AIR 1928 Bom 444; Tarak Nath v. Sanat ,
AIR 1929 Cal 494: (1929) 57 Cal 274.
1674 . Rushi Mahakur v. Dibya Shankar , AIR 1988 Ori 145 [LNIND 1987 ORI 151].
1675 . Bharat v. Gauranga , (1928) 55 Cal 545 : AIR 1927 Cal 885; Venkatasubbarao v. Krishnayya , AIR 1956 Andh Pra 59.
1676 . Venkatasubbiah v. Venkata Seshaiya , (1919) 42 Mad 1.
1677 . See notes above : Where an attachment has been made.
1678 . Gaya Thakur v. Bhagwat Prasad , AIR 1963 Pat 286.
1679 . Peta Thallamma v. Padmallu Gopala Krishna Murthy , AIR 2003 Andh Pra 353.
1680 . Prana Krushna v. Uma Kanta Panda , AIR 1989 Ori 148 [LNIND 1988 ORI 32] (DB).
1681 . Dular Singh v. Ramchandar , AIR 1934 All 165.
1682 . Nancy John Lyndon v. Prabhati Lal Choudhary , (1987) 4 SCC 78 [LNIND 1987 SC 599]. See notes to O 38, r 9.
1683 . Imperial Bank of India v. Balasubramania , AIR 1945 Mad 412; Qurban Ali v. Ashraf Ali , (1882) 4 All 219; Shankari Sitaya v.
Mudaragaddi , AIR 1924 Mad 610 [LNIND 1924 MAD 4]: (1924) 46 Mad LJ 361; Lakshman v. Ramchandra , AIR 1932 Bom 301: (1932)
34 Bom LR 117.
1684 . Saburdas Mahasukram v. Gopalji Nandas , AIR 1943 Bom 283: 45 Bom LR 526; Narayana v. Biyari , AIR 1922 Mad 221
[LNIND 1921 MAD 120]: (1922) 45 Mad 103.
1685 . Mohomed Afzal Khan v. Abdul Rahman , AIR 1932 PC 235: 59 IA 405 : ILR 13 Lah 702.
1686 . Neelacanda v. Parameswara Kurup , AIR 1954 Tr & Coch 176 : (1953) ILR Tr & Coch 396.
1687 . Kristodhone v. Nandarani , (1908) 35 Cal 889.
1688 . Ramakanta v. Bhagban Ram , AIR 1962 Assam 56.
1689 . Tarak Nath v. Sanat , AIR 1929 Cal 494: (1930) 57 Cal 274.
1690 . Madan Mohan v. Rebati Mohan , (1916) 21 Cal WN 158.
1691 . Basappa v. Hanmappa , AIR 1939 Bom 492: (1939) 41 Bom LR 943.
1692 . Ghusaram v. Parashram , AIR 1936 Nag 163: (1936) ILR Nag 172; Durga Prasad v. Seetla Prasad , AIR 1940 Oudh 80.
1693 . Venkata Reddi v. Yellappa Chetti , (1917) 38 IC 107.
1694 . Veeraraghavayya v. Kamala Devi , AIR 1935 Mad 193 [LNIND 1934 MAD 387]: (1935) 68 Mad LJ 67; Veerappa v. Venkatarama
, AIR 1935 Mad 872 [LNIND 1935 MAD 222]: (1936) 59 Mad 1. This was also the view of Pearson J., in Tarak Nath v. Sanat 57 Cal
274, where he disagreed with Cumming J., in his interpretation of the judgment of Woodroffe J., in Madanmohan v. Rebati 21 Cal WN
158.
1695 . AIR 1952 Tr & Coch 467 : (1952) Tr & Coch 201.
1696 . Narayanan Nair Ramkrishnan Nair v. Zacharia Kuriakose , AIR 1991 Ker 152 [LNIND 1990 KER 50].
1697 . K.K. Sreedharan v. C. Balakrishnan , (1990) 1 Scale 519 (SC); Handa Amual v. Aradippa Patkar , (1991) 1 SCC 715.
1698 . Anund Lall v. Jullodhur , (1872) 14 MIA 543; Dinendronath v. Ramkumar , (1881) 7 Cal 107, 118; Swarup Chand v. Jankiramayya ,
AIR 1942 Mad 330 [LNIND 1941 MAD 151]: (1942) 1 MLJ 318 [LNIND 1941 MAD 151]; Official Receiver, Muzaffarnagar v. Chandra
Shekhar , AIR 1977 All 77.
1699 . Srinivasa v. Vellayan , (1926) 51 Mad LJ 143 : AIR 1926 Mad 966 [LNIND 1926 MAD 25].
1700 . See note below : Private sale to decree-holder.
1701 . Bijai v. Raghunath , AIR 1926 All 734: (1926) 48 All 698, on appeal Bijai v. Rudra , AIR 1929 PC 288: (1930) 32 Bom LR 144.
1702 . Umesh Chunder v. Raj Bullub , (1882) 8 Cal 279; Anund Lall v. Jullodhur , (1872) 14 MIA 543 : 550; Abdul Rashid v. Gappa Lal ,
(1898) 20 All 421; Khushalchand v. Nandram , (1911) 35 Bom 516; SPLKSM Chettyar v. U. Sient , AIR 1932 Rang 103: (1932) 10 Rang 199.
 Page 73 of 74
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1703 . Annamalai v. Palamalai , (1918) 41 Mad 265 : 276 (FB); Mehar Chand v. Joti Prasad , AIR 1934 All 1057; Radha Ballabha v. Bohra
Makhan Lal , AIR 1937 All 641.
1704 . Dasarathlal v. Ananthkumar , AIR 1951 Nag 311: (1951) ILR Nag 416.
1705 . Ramaswami v. Muthuveerappa , AIR 1958 Mad 531.
1706 . Annamalai v. Palamalai , (1918) 41 Mad 265 (FB); Bhupal v. Kundan Lal , AIR 1921 All 45: (1921) 43 All 399; Radha Ballabha v.
Bohra Makhan Lal , AIR 1937 All 641.
1707 . Annamalai v. Palamalai , (1918) 41 Mad 265 (FB); Kasherchand v. Wazir Begum , AIR 1937 Nag 1.
1708 . 44 IA 72.
1709 . (1892) 16 Bom 91.
1710 . Gangayya v. Venkataramaya , AIR 1923 Mad 230: (1923) 44 Mad LJ 80.
1711 . Ramchandra v. Ramchandra , AIR 1970 Ori 164 [LNIND 1969 ORI 7].
1712 . Om Prakash Garg v. Ganga Sahu , (1981) 3 SCC 553.
1713 . Johney D Couto v. State of Tamil Nadu , AIR 1988 SC 108 [LNIND 1987 SC 802].
1714 . Dinobundhu v. Jogmaya , (1901) 29 Cal 154, p. 166 : 29 IA 9, p. 10; Srinivasa v. Vellayan , AIR 1925 Mad 388: (1924) 47 Mad LJ 913 (where
the mortgage prior to the attachment was not kept alive); Prakasa v. Yelamarti , AIR 1926 Mad 1082 [LNIND 1925 MAD 388]: (1926)
51 Mad LJ 358; Qurban Ali v. Ashraf Ali , (1882) 4 All 219.
1715 . MK Sugar Mills v. JK Sugar Mills , AIR 1965 All 135: (1963) 33 Com Cas 1142; Official Receiver, Muzaffarnagar v. Chandra Shekhar , AIR
1977 All 77.
1716 . Mahadevappa v. Srinivasa , (1882) 4 Mad 471.
1717 . Dasarathlal v. Anand Kumar , AIR 1951 Nag 311.
1718 . Naranappier v. Chidambaram , AIR 1933 Mad 96 [LNIND 1932 MAD 137]: (1932) 63 Mad LJ 945.
1719 . Mehar Chand v. Joti Prasad , AIR 1934 All 1057: (1935) 33 All LJ 4.
1720 . Purna Chandra v. Daulat Ali , AIR 1973 Cal 432 [LNIND 1973 CAL 168].
1721 . Angu Pillai v. MSMK Chettiar , AIR 1974 Mad 16 [LNIND 1972 MAD 198]: (1973) 1 MLJ 334 [LNIND 1972 MAD 198].
1722 . Byrappa v. S. Mani , AIR 1970 Mys 152: (1969) 2 Mys LJ 465.
1723 . Nana Rao v. Arunachalam , AIR 1940 Mad 385 [LNIND 1939 MAD 334] (FB) : (1940) Mad 526.
1724 . Johor & Sons Ltd. v. Mathew , AIR 1962 Ker 106 [LNIND 1961 KER 95]; following Ramiah v. Namiah , AIR 1943 Mad 165
[LNIND 1942 MAD 228]: (1943) Mad 175.
1725 . (1892) 16 Bom 91, referred to in Mina Kumari v. Bijoy Singh , (1917) 44 IA 72 : ILR 4 Cal 662; followed in Chunilal v.
Karamchand , AIR 1922 Bom 241: (1922) 46 Bom 895; Pratapa v. AEL Mission , AIR 1926 Mad 307 [LNIND 1924 MAD 435]: (1926) 19
Mad 38.
1726 . Manohar v. Ram Autar , (1903) 25 All 431; Kunhi v. Makki , (1900) 23 Mad 478; Durga Churn v. Monmohini , (1888) 15 Cal 771.
1727 . Jetha Bhima & Co. v. Lady Janbai , (1912) 37 Bom 138; Mina Kumari v. Bijoy Singh 44 IA 72 : 78 : 44 Cal 662 : 673; Annamalai v.
Palamalai , (1918) 41 Mad 265 : 275 : 285.
1728 . Annamalai v. Palamalai supra; Chindha v. Chhaganlal , AIR 1928 Bom 545: (1928) 30 Bom LR 1488; Babu Ram v. Kaloo Mal ,
AIR 1934 All 1069: (1934) All LJ 1091.
1729 . Murlidas v. Baijnath , AIR 1930 Cal 623: (1930) 57 Cal 736.
1730 . Mina Kumari v. Bijoy Kumar , (1917) 44 IA 72 : 79.
1731 . Jetha Bhima & Co. v. Lady Janbai , (1912) 37 Bom 138; Annamalai v. Palamalai , (1918) 41 Mad 265 (FB); Rangi Ram v. Gangu , (1919) PR
No 5 p. 93; Bhupal v. Kundan Lal , AIR 1921 All 450: (1921) 43 All 399. Another case in which there may be no assets held by the court,
is where the decree-holder is given leave to bid and to set-off the amount of the decree against the purchase-money under O 21, r 72,
and the former exceeds the latter; Mina Kumari v. Bijoy Singh 44 IA 72 : 78 : 44 Cal 662.
1732 . (1917) 44 IA 72 : ILR 44 Cal 662.
1733 . Bibi Amar Kaur v. Shiv Karan , AIR 1965 Punj 206: (1965) 1 Punj 160.
1734 . Shivlingappa v. Chanbasappa , (1906) 30 Bom 337.
1735 . Thiraviyam v. Lakshmna , (1918) 41 Mad 616.
1736 . Nabadwipchandra v. Loke Nath , AIR 1933 Cal 212: (1932) 59 Cal 1176.
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1737 . Annapurna Patrani v. Lakshmana Kara , AIR 1950 Mad 740 [LNIND 1950 MAD 245]; Aziz Bakhsh v. Kaniz , (1912) 34 All
490; Gopal v. Kashi , (1920) 42 All 39; Dular Singh v. Ram Rhander , AIR 1934 All 165.
1738 . Susila Bala v. Guest Keen Williams Ltd , (1949) 1 Cal 177.
1739 . Motilal Madan Chand Lodha v. Ragho T. Patil , AIR 1974 Bom 261 [LNIND 1973 BOM 40]: 76 Bom LR 207 : (1974) Mah LJ
404 [LNIND 1973 BOM 40].
1740 . Dinendranath v. Tarakchandra , (1881) 7 Cal 107; Budhu v. Barkat Ram , (1920) 2 Lah LJ 99.
1741 . Kishen Lal v. Charat Singh , (1901) 23 All 114; Puddomonee Dosee v. Muthooranath, (1874) 12 Bom LR 411; Pearey Lal v. Chundi Charan, (1906)
11 Cal WN 163; Shaikh-Kumar-ud-din v. Jawahir Lal, 32 IA 102.
1742 . Mohunt Bhagwan v. Khetter Moni , (1896) 1 Cal WN 617; Rangaswami v. Periasami , (1894) 17 Mad 58; Mungul Pershad v. Girja Kant
, (1882) 8 Cal 51 : 8 IA 123; Srinivasa v. Sami Rau , (1894) 17 Mad 180; Mahomed v. Kishore-Mohun , (1895) 22 Cal 909 : 22 IA 129; Duad Ali
v. Ram Prasad , (1915) 37 All 542; Yakub Ali v. Durga, (1915) 37 All 518.
1743 . Hafiz v. Abdullah , (1894) 16 All 133.
1744 . Krishna Kamini v. Gireeschandra , AIR 1936 Cal 293: (1936) 63 Cal 57 : 39 Cal WN 1030.
1745 . Athiappa Asari v. Chinna Gounder , (1980) 93 Mad LW 542 [LNIND 1979 MAD 379]; Kaliammal v. S. Santha , AIR 2003 Mad 6
[LNIND 2002 MAD 478]
1746 . M Marathachalam Pillai v. Padmawathi Ammal , (1970) 2 SCWR 174; see also Kaliammal v. S. Santha , AIR 2003 Mad 6 [LNIND
2002 MAD 478].
1747 . Sarkies v. Bundho Baeed , (1869) 1 NWPHC Rep 172; Soobul Chunder v. Russick Lall , (1888) 15 Cal 202; Zemindar of Karvetnagar of
Trustee of Tirumalai , (1909) 32 Mad 429; Frederick Peacock v. Madan Gopal , (1902) 29 Cal 428; Narayan Ganesh v. Fatma Duad , AIR 1952
Bom 70: (1952) Bom 83 : 53 Bom LR 821; Hansraj v. Dhanwant Singh , AIR 1961 Punj 510: (1961) ILR Punj 369 : 63 PLR 391; Govt. of
Travancore Cochin v. Bank of Cochin Ltd., AIR 1954 TC 243(FB) : (1954) TC 281.
1748 . Krishan v. Travancore Bank Ltd., AIR 1956 TC 34.
1749 . Sheoraj Singh v. Gajadhar Prasad , AIR 1942 Oudh 465: (1942) 18 Luck 366; Motilal v. Karrab-ul-din , (1898) 25 Cal 179 : 24 IA
170; Raghunath Das v. Sundar Das , (1914) 42 Cal 72 : 41 IA 251; Ram Bhaj v. Ram Das , AIR 1923 Lah 261: (1922) 3 Lah 414; Subbarao v.
Official Receiver , AIR 1965 Andh Pra 52.
1750 . Kristnaswamy v. Official Assignee of Madras , (1903) 26 Mad 673; Deputy Commr. of Police, Madras v. S. Vedantam , AIR 1936 Mad
132 [LNIND 1935 MAD 277]: (1936) 59 Mad 428; Manickam Chettiar v. Income Tax Officer, Madras , AIR 1938 Mad 360 [LNIND 1937
MAD 404] (FB) : (1938) ILR Mad 744; Kamala Bala Dasi v. Surendra Nath Ganguly , (1937) 2 Cal 675 : AIR 1937 Cal 517.
1751 . Shankaralinga v. Kandasami , (1907) 30 Mad 413.
1752 . Anasuryamma v. Venkatagiri Rao , AIR 1957 Andh Pra 38.
1753 . Kristnasawmy v. Official Assignee of Madras , (1903) 26 Mad 673.
1754 . Frederick Peacock v. Mohan Gopal , (1902) 29 Cal 428; Jitmand v. Ramchand , (1905) 29 Bom 405; Sir Chand v. Murli Lal , (1912) 34
All 628; Raghunath Das v. Sundar Das, 41 IA 251; Muhammad Sharif v. Radha Mohan , (1919) 41 All 274.
1755 . Re Prem Lal Dhar , (1917) 44 Cal 1016.
1756 . 60 IA 167, 17475 : 37 Cal WN 553 : AIR 1933 PC 134.
1757 . (1903) 26 Mad 673.
1758 . 6 IA 88.
1759 . 24 IA 170.
1760 . (1902) 29 Cal 428.
1761 . 41 IA 251 : ILR 42 Cal 72.
1762 . Chandumal v. Bhikamchand , AIR 1936 Nag 117: (1936) ILR Nag 41.
1763 . Subbarao v. Official Receiver , AIR 1965 Andh Pra 52.
1764 . Ramachandran v. Kanni Velan , AIR 1959 Ker 141 [LNIND 1958 KER 100].
1765 . Swarup Chand v. Jankiramayya , AIR 1942 Mad 330 [LNIND 1941 MAD 151]: (1942) 1 Mad LJ 318.
1766 . Amrita Lal v. Anukul , (1916) 43 Cal 586.
1767 . Salem Advocate Bar Association v. Union of India , AIR 2005 SC 3353 [LNIND 2005 SC 573].

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Sale

S. 65. Purchasers title.

Where immoveable property is sold in execution of a decree and such sale has become
absolute, the property shall be deemed to have vested in the purchaser from the time when
the property is sold and not from the time when the sale becomes absolute.

1. Corresponding section of the Code of Civil Procedure, 1882. Section 316 of the Code of
Civil Procedure 1882 ran as follows:

When a sale of immovable property has become absolute in manner aforesaid, the court
shall grant a certificate stating the property sold and the name of the person who at the
time of sale is declared to be the purchaser. Such certificate shall bear the date of the
confirmation of the sale; and, so far as regards the parties to the suit and persons claiming
through or under them, the title to the property sold shall vest in the purchaser from the
date of such certificate and not before:

Provided that the decree under which the sale took place was still subsisting at that date.

The first part of s 316 now stands as O 21, r 94, with slight verbal alterations. The second
part, with certain substantial alterations to be presently noted, stands as s 65. The proviso
to s 316 was omitted altogether.

2. Changes introduced in the section. Under s 316 of the Code of Civil Procedure 1882,
the title to immovable property sold at an execution sale vested in the purchaser from the
date of the certificate of sale, that is, the date on which the sale became absolute. Under
the present section, the title to such property, where the sale has become absolute vests in
the purchaser from the time when the property is sold, and not from the time when the
sale becomes absolute. If the sale is otherwise in order, and the property is purchased by a
stranger, the sale must be confirmed even though the decree in execution of which the sale
was held, is reversed on appeal after the sale and before its confirmation. 1768 With the
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omission of proviso to s 316, it is not necessary that the decree must subsist at the date of
the confirmation of the sale.

3. Vesting of property in auctionpurchaser. In the case of a private sale of immovable

property, the property vests in the purchaser from the time when the deed of sale is
executed. The reason is that a voluntary sale becomes absolute on execution and delivery
of the deed by the vendor. In the case, however, of a court sale, the property does not vest
in the purchaser, immediately on the sale thereof. The reason is that a compulsory sale
does not become absolute until some time after the sale. A period of at least 30 days must
expire from the date of sale before the sale can become absolute. During that period, the
sale is liable to be set aside at the instance of the judgment-debtor, on the ground of
irregularity in publishing or conducting the sale, or on deposit by him in court, of the
amount specified in the sale proclamation together with a percentage on the purchase
money by way of compensation to the purchaser (O 21, rr 8990). An application by the
judgment-debtor to set aside the sale in either of these two cases, must be made within 30
days from the date of sale. Where such an application is made, the sale does not become
absolute merely on the passing of an order of confirmation, but on the termination of
proceedings commenced with such an application to set aside the sale or the order
confirming such sale. 1769

If no such application is made, an order confirming the sale must be made and the
certificate under O 21, r 94 issued. 1770 It is upon such confirmation that the sale becomes
absolute (O 21, r 92). Once an order was made under O 21, r 92 confirming the sale, the
title of the auction-purchaser related back to the date of the sale as provided under s 65 of
the Code of Civil Procedure. The title in the property, thereafter, vests in the auction-purchaser
and not the judgment-debtor. 1771 After the sale has become absolute, a certificate is
granted by the court to the purchaser, which is called a certificate of sale (O 21, r 94). Such
certificate bears as date, the day on which the sale became absolute. It is only when the sale
becomes absolute that the sold property vests in the purchaser. 1772 But though the
property does not vest in the purchaser until the sale has become absolute, when it does
vest in him it shall be deemed to have vested on the sale becoming absolute from the time
when it was sold. The vesting of the property is thus made to relate back to the date of sale
1773 even when the sale is held by the collector under rules framed by the local government

under s 68 of the Code of Civil Procedure1774 and the auction-purchaser is entitled to sue for
profits from the date of the purchase. 1775 Though the sale does not become absolute till
confirmation and the title till then does not vest in the purchaser, another decree-holder
cannot enforce his decretal claim by attaching the same property. 1776 The High Court of
Gujarat has held that since the title as well as possession as acquired by the auction-
purchaser after the sale becomes absolute, the judgment-debtor, where the property is let
out to the tenants, continues to be the landlord till then, and can collect the rents. 1777

The fact that the purchaser has not taken possession of property through court or that he
has taken only symbolical possession, does not affect his title as that is complete when the
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sale is confirmed. 1778 As the title of the purchaser vests not on the date of sale but on the
date of its confirmation, it may be defeated by events subsequent to the sale which prevent
its confirmation. Thus, where the property sold was an estate which had, after the sale
vested in the state, the sale could not be confirmed and the purchaser could get no title. 1779

There is a conflict of opinion as to the right of a decree-holder auction-purchaser who is

permitted to set-off the purchase to claim interest thereon after the date of sale. One view
is that he is bound to set-off the purchase amount as on the date of sale and that the
decree would stand eo extanti satisfied as on that date and cannot carry interest thereafter.
1780 The other view is that the vesting of title in the auction-purchaser has nothing to do

with the decree-holders right to withdraw the amount from court and that, therefore, the
purchase amount to set-off should carry interest after the date of confirmation of sale. 1781
It is submitted that the latter view is doubtful. The decree-holder purchaser is entitled to
profits from the date of sale as purchase by him takes effect from that date and it seems
illogical that he should be entitled to both the interest on the purchase money and mesne
profits from the land from the date of purchase till the date of confirmation.

4. Successive purchasers at sales in execution of money decrees. Under the Code of

Civil Procedure 1882, s 316, the property sold vested in the purchaser from the date of
certificate of sale, and not before. This gave rise to some difficulty when the question arose
as to which of two successive auction-purchasers should have priority in cases where the
later purchaser had the certificate of sale issued to him first. Had the question been
determined with exclusive reference to the terms of that section, the priority would have
rested with the purchaser who first procured the certificate of sale. But this inequitable
result was avoided, and the difficulty was got over by holding that the first purchaser has,
by his prior purchase, obtained an equitable interest in the property, and that the
subsequent purchaser must be deemed to have purchased the property subject to such
interest. 1782 No such difficulty can arise under the Code of Civil Procedure 1908, for it is
provided by the present section that the property is to be deemed to have vested in the
purchaser from the date of sale, and not from the date of the certificate of sale.

ILLUSTRATION

In execution of a money-decree obtained by A against B , certain immovable property

belonging to B is sold and purchased by P1 . The same property is subsequently purchased
by P2 at a sale in execution of a money-decree obtained by C against B . P2 obtains a
certificate of sale first, and is placed in possession of the property. Subsequently P1 obtains
a certificate of sale, and sites P2 for possession. Under the present section, P1 is entitled to
possession, for the property is to be deemed to have, vested in him from the date of sale,
and the sale to him was prior to the sale to P2 . The same result was arrived at under the
Code of Civil Procedure 1882 by holding that P2 bought subject to P1 s equitable interest and
he could not, therefore, retain possession against P1 after P1 s title was perfected by the
issue of a certificate to him. The principle is that a prior sale in pursuance of an attachment
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prevails over a subsequent sale even if the subsequent sale is in pursuance of an earlier
attachment. 1783

But where property is sold in execution of a decree to P1 , and the sale is set aside on the
ground of irregularity under O 21, r 90, and the sale property is subsequently sold in
execution of another decree and is purchased by P2 . P2 is entitled to priority as against P1
, even though the sale to P1 may subsequently be confirmed. The sale to P1 not having
been confirmed until after thesale to P2 , P1 is not entitled to priority over P2 . Even under
the Code of Civil Procedure 1882, P1 would not be entitled to priority over P2 , for the sale to
him (P1 ) having been set aside, it could not be said that P2 purchased subject to P1 s
interest in the property. P1 had no interest in the property when it was sold to P2 . 1784

5. Successive purchasers at sales in execution of mortgage decrees. Priority between

successive purchasers of the same mortgaged property in execution of mortgage decrees
against the same mortgagor is determined by the dates of the several purchases, and not by
the dates of the several mortgages. 1785

6. Suit for possession by auction-purchaser. It was held under the Code of Civil Procedure
1859, that a purchaser of immovable property at a court-sale could not maintain a suit for
possession thereof against a third person, unless he had a certificate of sale issued to him
before suit, although the sale had become absolute. The reason given was that the transfer
of property to a purchaser at a court-sale was not complete until a certificate of sale was
issued to him. The decisions turned upon the language of s 259 which provided that the
certificate shall be taken and deemed to be a valid transfer of such right, title and interest
as had passed from the judgment-debtor to the purchaser. The line of reasoning adopted
was that if a certificate was to be taken as a transfer, the transaction must necessarily be
incomplete until the certificate was issued. The said words were construed as controlling
the operation of s 256 which provided that a sale became absolute when it was confirmed
by the court. 1786 But it was held that as against the judgment-debtor and his
representatives, the purchasers title became complete on the confirmation of the sale. 1787
Under the present section, it seems, that an auction-purchaser can maintain a suit for
possession even against a person not a party to the suit after the sale is confirmed by the
court, though no certificate has been issued to him before the institution of the suit,
provided it is produced at or before the passing of the decree. The reason is that property
under the present section vests in the purchaser immediately the sale is confirmed by the
court and the vesting is not postponed until the grant of a certificate. In a case under the
Code of Civil Procedure 1859 where the equity of redemption of the judgment-debtor was
sold, it was held that the purchaser was entitled to sue the mortgagee for redemption, even
before the issue of certificate, the reason given being that the suit was not one in ejectment
on title, but one for redemption and, therefore, of an equitable nature, and the purchaser
was equitably entitled to redeem. The certificate in that case was produced at the hearing.
1788
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7. Mesne profits. Under the Code of Civil Procedure 1882, the property sold vested in the
purchaser from the date of the sale certificate and not before. Hence, it was held that the
purchaser was entitled to mesne-profits from the date of the certificate, and not from the
date of sale. 1789 Under the present section, the property is to be deemed to vest in the
purchaser from the date of sale. The purchaser, therefore, is entitled to mesne-profits from
the date of sale. 1790

8. Title of auction-purchaser. Under the Code of Civil Procedure 1882, property sold in
execution of a decree vested in the purchaser so far as regards the parties to the suit and
persons claiming through or under them. That is to say, a purchaser at a court-sale was
entitled to hold the property only against the judgment-debtor and his representatives but
not against third parties. The words italicised above, which occurred in s 316 of the Code
of Civil Procedure 1882, have been omitted in the present section. The omission, however,
has not the effect of enlarging the purchasers rights, and a purchaser at a judicial sale will,
now, as before, get a good title only against persons bound by the decree, but not against
strangers. 1791

9. Sale when void and when voidable. A sale in execution of a decree is void, if the
court has no jurisdiction to sell the property. Thus, a court has no jurisdiction to sell
property in execution of a decree, if the notice required by O 21, r 22, is not served. 1792
Similarly, a court has no jurisdiction to sell the property of a person who was not a party to
the suit in which the property was sold or property represented on the record. 1793 Again,
the court of first instance has no jurisdiction to sell property after an order is made by the
Appellate Court for stay of execution. 1794 In each of these cases, the sale is a nullity, and
may be disregarded without any proceeding to set it aside. 1795

But where a court has jurisdiction to sell the property, and there has been an irregularity in
the course of execution proceedings, the sale is not void, but merely voidable. Thus, where
the notice required by O 21, r 22, is served upon a person who was not, in fact, the legal
representative of the deceased judgment-debtor, but whom the court wrongly held to be
his legal representative the sale is voidable, and not void. 1796 Similarly, a sale is voidable
and not void if there has been material irregularity or fraud in publishing or conducting the
saleo 21, r 90.

Irregularities of Procedure in Obtaining Decrees or in Execution Proceedings . Provided that the court
has jurisdiction to sell, a purchaser at a court-sale is not bound to inquire into the
correctness of the decree or of the order for sale. To hold that a purchaser at a sale in
execution is bound to inquire into such matters would throw a great impediment in the
way of purchasers under executions. If the court has jurisdiction, a purchaser is no more
bound to inquire into the correctness of an order for execution, than he is as to the
correctness of the judgment upon which the execution issues. 1797 Strangers to a suit are
justified in believing that the court has done that which by the direction of the Code it
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ought to do. 1798 Therefore, when property sold in execution of a decree under the order
of a competent court is purchased by a stranger bona fide and for value, the sale cannot be
set aside on the ground that the judgment-debtor has a cross-decree of a higher amount
and the court, therefore, ought not to have directed the sale, 1799 or that the decree had
been satisfied out of court before the sale, 1800 or that the court wrongly held that the
defendant was served with the summons and on that finding passed an ex parte decree
against him, 1801 or that though an attachment was subsisting at the date of the sale, the
decree-holders application for an order of sale had been dismissed for want of prosecution
before sale, 1802 or that the property was not liable to attachment and sale within the
meaning of s 60, 1803 or that the execution of the decree was barred by limitation, 1804 or
that the decree proceeded upon an erroneous view of the law, 1805 or that the decree was
one which the court ought not to have passed. 1806

The above principles apply in favour of a third party purchasing at a court-sale; they do not
apply where the decree-holder himself is the purchaser. The reason is that where the
decree-holder himself is the purchaser, he must be held to have had notice of all the facts
relating to the suit and execution proceedings. 1807 Nor do they apply in favour of a party
to the suit, though he may not be a decree-holder. 1808 Auction sale was confirmed in the
name of the highest bidder. Sale certificate was, however, issued in the name of a society.
It was held that the sale did not become void thereby. The judgment-debtor cannot file a
suit for possession on the basis of title. The society (the holder of the sale certificate),
cannot be held to be a trespasser. Even if it is presumed that the sale certificate was
wrongly issued in the name of the society, yet the sale in favour of the highest bidder was
not void and the judgment-debtors could not take the stand that they were the true owners
of the disputed house as the sale itself was void and that they were not required to file a
suit for setting aside the sale. The sale of the property in question was perfectly valid and,
as soon as the sale was confirmed in favour of the highest bidder under O 21, r 92 of the
Code of Civil Procedure, the judgment-debtor ceased to have any right or title in the property.
1809

10. Effect of reversal of decree upon sale where decree reversed after confirmation
of sale. There is a great distinction between decree-holders who come in and purchase
under their own decree, which is afterwards reversed or modified, and bona fide purchasers
who come in and buy at a sale in execution of the decree to which they are not parties, and
at a time when that decree is a valid and subsisting decree and when the order for sale is
valid order. A bona fide purchaser, who is a stranger to the decree, does not lose his title to
the property by the subsequent reversal or modification of the decree. But, where the
decree-holder himself is the purchaser, the sale may be set aside if the decree is
subsequently reversed or modified. Where the purchaser is a stranger, the judgment-debtor
whose property is sold is entitled only to the sale proceeds of the property if the decree is
subsequently reversed. But where the purchaser is the decree-holder, he is bound to
restore the property to the judgment-debtor. 1810 A sale in execution of a decree at which a
third party becomes the purchaser is upheld, notwithstanding the subsequent reversal of
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the decree, because otherwise there will be less inducement of intending purchasers to buy
at an execution-sale, and consequently less chance of property fetching proper value at
such sales. 1811 But where property sold in execution of a decree is bought by the decree-
holder, and it is subsequently re-sold by him to a bona fide purchaser for value, such
purchaser acquires a good title, though the decree may be subsequently reversed. 1812 A
stranger auction-purchaser who is not a party to the decree, is protected against the
vicissitudes of fortune of the litigation and remain unaffected and does not lose title to the
property by subsequent reversal or modification of the decree. The property bona fide
purchased ignorant of the litigation should be protected. The judicial sale in particular
would not be robbed of all their sanctity. It is a sound rule based on legal and equitable and
consideration but a distinction is made between such purchaser and a decree-holder who
purchases the property in execution of his own decree which is afterwards modified or
reversed. Where the purchaser is the decree-holder, he is bound to restore the property to
the judgment-debtor by way of restitution. The true question is whether the stranger
auction-purchaser had knowledge of the pending litigation about the decree under
execution. If it is shown by evidence that he was aware of the pending appeal against the
decree when he purchased the property, court cannot assume that he was a bona fide or
innocent purchaser for giving him protection against restitution. His knowledge about the
pending litigation would make all the difference in the case. He may be a stranger to the
suit, but he must be held to have taken calculated risk in purchasing the property. He is
evidently a speculative purchaser and in that respect, he is in no better position than the
decree-holder purchaser. The need to protect him against restitution therefore, seems to be
unjustified. Similarly the auction-purchaser who was a name lender to the decree-holder or
who has colluded with the decree-holder to purchase the property, also could not be
protected to retain the property, if the decree is subsequently reversed. 1813

11. Effect of reversal of decree upon sale where decree reversed before confirmation
of sale. On referring to s 316 of the Code of Civil Procedure 1882, it will be observed that
it contained a proviso, the effect whereof was stated to be that a sale could not be
confirmed if, at the time of application for confirmation, the decree under which the sale
was effected had ceased to be a subsisting decree. 1814 That proviso has not been
reproduced in the present section. Under the present section, therefore, a sale held in
execution of a decree may be confirmed, in any event where the purchaser is a third party,
though the decree has been reversed before confirmation of the sale. 1815

12. What passes at a Court sale. See notes to O 21, r 94.

13. Non-Application of Section. The application of s 65 turns upon the scope of s 341
of UP Zamindari Abolition and Land Reforms Act, 1950, which applies the provisions of
the Code of Civil Procedure to the proceedings taken under that Act. Section 341, however,
applies to the court only so far as it can be applied consistently with the Act and not in
derogation of it. As is clear, the procedure incorporated in UP Zamindari Abolition and
Land Reforms Act and the rules made under it specifically exclude the operation of s 65 of
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the Code of Civil Procedure. 1816

S. 66. Suit against purchaser not maintainable on ground of purchase being on behalf
of plaintiff.

* * [* * * * *]

The section prior to its repeal, was as follows:

(1) No suit shall be maintained against any person claiming title under a purchase
certificate by the court in such manner as may be prescribed on the ground that the
purchase was made on behalf of the plaintiff or on behalf of someone through
whom the plaintiff claims [and in any suit by a person claiming title under a
purchase so certified, the defendant shall not be allowed to plead that the purchase
was made on his behalf or on behalf of some-one through whom the defendant
claims.]
(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any
purchaser certified as aforesaid was inserted in the certificate fraudulently or
without the consent of the real purchaser, or interfere with the right of a third
person to proceed against that property though ostensibly sold to the certified
purchaser, on the ground that it is liable to satisfy a claim of such third person
against the real owner.

The above section was repealed and replaced by the Benami Transaction (Prohibition) Act,
1988. We are providing hereinafter the commentary on the above section as it stood
before its repeal for the benefit of those who would be interested in understanding the law
as it stood prior to its repeal.

abc

1. Section explained. In a case where the real owner is in possession of the property and
the benamidar, whose name is entered in the certificate of sale files against him a suit for
possession, the real owner is prevented from a defence that the plaintiff is only a nominal
purchaser. The bar now is against the real owner both as a plaintiff and as a defendant in a
suit by or against his benamidar whose name as a purchaser is certified by the Court.

2. Benami purchases. The object of the section is to put a stop to benami purchase at
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execution-sales, 1817 and to secure the best price for the properties sold in Court auction.
1818 If A under a secret understanding with B purchases property with his own money but

in B s name, the purchase is said to be benami. In such a case B is merely a benamidar or

ostensible owner; he holds the property in trust and A may compel him to transfer the
property to him (A ). If, however, A s object in purchasing the property in B s name was
to defraud his creditors and the object of the fraud is carried out , the court will not assist A in
recovering possession of the property from B ; but if the object of the fraud is not carried
out, the Court will assist A in recovering possession of the property from B
notwithstanding A s primary intention to effect a fraud. This is the law as applicable to
benami purchases at a private sale . 1819 The law, however, is different as to benami
purchases at a court sale. If A purchases property in B s name at a court sale and a
certificate of sale is issued to B (O 21, r 94), B will conclusively be deemed to be the real
purchaser as against A , and no suit will lie under this section by A against B for
possession of the property, unless A can prove that B s name was inserted in the certificate
fraudulently or without his consent [see sub-section (2)]. The plaintiff filed a suit against a
third party in the name of A and also obtained a decree in favour and in the name of A .
The plaintiffs also executed the decree in the name of A and purchased in execution of
that decree the property in question in the name of A at a Court auction. The plaintiff
thereafter took possession of the property and remained in possession without any
difficulty from A . But after A s death, his sons got their names mutated and dispossessed
the plaintiffs. The plaintiffs thereupon filed a suit against A s sons for possession which
suit was held barred under sub-s (1). 1820 The same rule applies even if the claim made by
the beneficial owner is not for the whole of the property of which of the property the
defendant is certified purchaser. Thus, if B is the certified purchaser of certain property,
part of which was purchased by him on his own account, and part benami of A, A is not
entitled to maintain a suit under this section for recovery of the part purchased by B
benami for him. 1821 This is so because the beneficial owner has necessarily to rely on the
sale certificate issued in favour of the person in whose name the auction purchase has been
made. 1822 The mere fact, however, that the plaintiff has described the defendant as a
benamidar does not make the transaction benami if it was not benami in fact; it is a mere
misdescription, and it is no ground for refusing the plaintiff relief to which he is otherwise
entitled. 1823

Sub-section (1) as it stood before its recent amendment laid down a bar against a suit by
the real owner against the certified purchaser or person claiming title under him. The
recent amendment provides an additional bar and that is that where the real owner is in
possession of the property and the person, in whose favour the sale certified as certified by
the Court stands, files a suit against him for possession, the real owner as the defendant is
barred from pleading that the purchase was made on his behalf or on behalf of someone
through whom he claims. The bar under sub-section (1) is against the real owner both as a
plaintiff in a suit filed by him against the certified purchaser and against him as a defendant
in a suit filed by such purchaser.
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3. Section must be construed strictly. Where a transaction is once made out to be

benami, the Courts of India, which are bound to decide according to equity and good
conscience, will deal with it in the same manner as it would be treated by an English Court
of equity. 1824 That is to say, effect will be given to the real and not to the nominal title,
unless the result of doing so would be to work a fraud upon innocent persons. 1825 The
present section provides that when property is sold at a court sale, no suit shall be
maintained against the certified purchaser on the ground that the purchase was made
benami. It provides in effect that the certified purchaser shall be conclusively deemed to be
the real purchaser, and shall not be liable to be ousted on the ground that his purchase was
really made on behalf of another. In other words, the provisions of the present section bar
the equitable jurisdiction of the Courts. The section, therefore, must be construed strictly
and not extended beyond its express terms. But though the section prohibits suits against
the certified purchaser to assert a benami title against him, it does not make benami purchases
illegal . The object of the stringent provisions of this section is to discourage benami
purchases at court sales, but not to render such purchases illegal . 1826

4. Scope of the section. The section refers to execution sales only and has no application
to a sale held by receiver, 1827 not to sales held under the rules of the Co-operative Societies Act
and sale certificates issued thereunder, 1828 not to revenue sales. 1829 But the section applies
to sales held by a Collector in execution of decrees of Civil Courts transferred to him
under s 67. 1830 Benamidar possesses ostensible title. He holds and represents the property
for all practical purposes to the entire world, except the real owner. Section 66 of Code of Civil
Procedure does not create any legal bar for a benamidar to recognise the title of a legal
owner. He can do so, by an instrument which constitutes a deed of release. It is well settled
that the purchaser of a property from an ostensible owner is protected from the real
owner, save for the want of knowledge of a real owner. Hence a benamidar can transfer a
valid title to the purchaser. 1831

5. Whether section retrospective. The High Court of Calcutta has held that this section
does not apply if the sale was held and confirmed before January 1, 1909, when the present
Code came into force, and that the section applicable is s 317 of the Code of 1882. 1832
That is also the view of the Lahore High Court. 1833 But if the sale was held before, but
confirmed after that date, the present section applies for the title of the execution
purchaser cannot be said to have been perfect until the confirmation of the sale. 1834 It is
submitted that even if the sale was confirmed before January 1, 1909, this section would
apply to the case and not s 317. 1835

6. Suits outside the section. Sub-section (1) as it stood before its recent amendment
provided a bar only against a suit by the real owner against his benamidar on the ground
that the purchase was made on behalf of himthe plaintiff. In other words, it was only in
suits against the certified purchaser as the defendant that such purchaser was to be conclusively
deemed to be the real purchaser. That being so, it was held that if the real owner was in act
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ual possession, he could resist a suit filed against him by the certified purchaser for
possession or for rents or profits and plead that such certified purchaser was only his
benamidar. 1836 This is no longer correct since the Amendment Act, 1976, has added that
such a defence by the real owner is no longer available to him. But a suit by a certified
purchaser as plaintiff for a declaration that he had purchased the property at the auction
sale in his own right and not in benami is not barred. 1837 The section is also no bar to a suit
by the beneficial owner for possession against the judgment-debtor pursuant to an
agreement made between them after the sale of the property, provided the certified
purchaser is joined as a party to the suit, and he does not claim the property. 1838 Section 66
does not bar the benamidar from recognising the title of the real owner by executing an
instrument of release. 1839 In a Patna decision where all important cases were noticed and
summarised X purchased the property at a court sale in the benami of Y . He then agreed
to sell it to Z . Y proceeded on this agreement and executed the conveyance in favour of Z
who paid the price not to X but to Y . A suit by X against Y to recover the money was
held not to be barred. 1840 Again, if C , the certified purchaser sells the property purchased
to D , and then D agrees to sell it to P , who is the beneficial owner, a suit by P against D
to enforce the agreement of sale is based on a contract which is a separate transaction and
outside the section. 1841

The section applies, as is clear from its words either when a suit is filed by a person
claiming to be the real purchaser as plaintiff against the certified purchaser as the
defendant on the allegation that the purchase was made on behalf of the plaintiff or on
behalf of someone through whom the plaintiff claims. This is clear from the word plaintiff
in sub-section (1). The section now provides a further bar against the beneficial owner
claiming to be so in a suit against him by the certified purchaser for possession where the
former is in possession. The question as to whether the bar applies to suits for partition
was left open in Jitendra Nath Sur v. Amarendra Nath Sur . 1842 In that case A was alleged to
have purchased a property at a Court sale in the benami of one of his sons, B . After A s
death, his other son C filed a suit for partition against B claiming a share in that property.
It was contended that this section was not a bar as in a partition suit every defendant was
in the position of a plaintiff and the defence of B that it was his own acquisition was to be
regarded as a claim made by him as if he was the plaintiff. The point was left open as the
Court found that the property was purchased by B with his own money.

7. Suit by a third person for a declaration that the certified purchaser is merely a
benamidar. Under the corresponding s 317 of the Code of 1882, the High Court of
Calcutta held that the only suits barred under that section were suits brought by the beneficial
owner as plaintiff against the certified purchaser as defendant, and that suits brought by a
third party as plaintiff against the certified purchaser as defendant for a declaration that the
property, though ostensibly sold to the certified purchaser, is liable to satisfy a claim of
such third party against the beneficial owner, were not barred under that section. 1843 On
the other hand, the High Courts of Madras 1844 and Allahabad 1845 held that even suits
brought by third person as plaintiff were barred under that section. The present section gives
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effect to the Calcutta decisions by providing in the sub-section (2) that nothing in this
section shall interfere with the right of a third person to proceed against that (sic ) property,
though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a
claim of such third person against the real owner.

ILLUSTRATION

A obtains a decree against B , and attaches certain property alleged to belong to B . C

objects to the attachment, alleging that he is the certified purchaser of the property, having
purchased the same at a Court-sale held in execution of a decree obtained against B by D .
A alleges that the property was purchased by C benami for B , and sues C for a declaration
that C was merely the benamidar for B . The suit is not barred under this section, for it is a
suit not by the beneficial owner , but by a third person .

8. Suit by beneficial owner in possession for declaration of title. There is a conflict of

opinion whether a suit by a beneficial owner in possession for a declaration of his right to the
property against the certified purchaser is barred under this section. The High Court of
Calcutta in a case under s 317 of the Code of 1882, held that such a suit was not barred
under that section. 1846 On the other hand, the High Court of Allahabad held that such suit
was barred under this section. 1847 A obtains a decree against B . In execution of the decree,
certain property belonging to B is sold. B purchases the property in C s name. The
certificate of sale is granted to C , but B continues in possession of the property. After a few
years C gives notice to the tenants not to pay rent to B . B thereupon sues C for a declaration
that he is the real purchaser and for an injunction restraining C from interfering with his
tenants. The suit is not barred according to the Calcutta decision. It is barred according to
the Allahabad decision. In the Calcutta case, the Court said: It is not a case in which the
plaintiff seeks to obtain a decree for possession against the ostensible purchaser. Resting, as it
does, on an existing possession , we do not think that it is a suit of the nature prohibited by s
317. As to this it was observed by Strachey, C. J., in the Allahabad case cited above: If the
learned Judges in that case meant to lay down that s 317 applies only where the plaintiff,
being out of possession, seeks to recover possession from a certified purchaser, and can
never apply to a suit by a plaintiff in possession for a declaration that the certified
purchaser out of possession was not the real purchaser, I cannot agree with them.
Bannerji, J., said: The first paragraph [of the section] is not confined to a suit for recovery
of possession only. The correctness of the Calcutta decision was doubted by the same
Court in the undermentioned cases, 1848 but the principal of that decision was followed by
the same High Court in another case. 1849 It was held in the last-mentioned case that where
a Mahomedan father purchases property at a Court-sale with his own money in the name
of one of his sons, and then lets the property to a tenant and the tenant pays rent to him , this section
is no bar to a suit by the other sons against the tenant and the son in whose name the
property was brought for recovery of rent after their fathers death. The Patna High Court
holds that a suit for a declaration of a title by the beneficial owner is barred, and that it is
immaterial whether the plaintiff is in possession and seeks confirmation of possession, or
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whether he is out of possession and seeks to recover possession. 1850 It is submitted that
the Patna view is correct. The words no suit with which sub-section (1) commences takes
in all suits against the certified purchaser by the beneficial owner and it is immaterial
whether such beneficial owner is in possession and seeks a declaration that it is rightful or
whether he is not in possession and wants to recover it.

Where the beneficial owner has been in possession for twelve years or upwards , a suit will lie at
his instance against the benamidar for a declaration of his title to the property. The basis of
such is the plaintiffs title by possession . The suit is based, not on the ground that the
defendant is a benamidar, but on the title by possession . Such a suit does not come within the
purview of this section. 1851

9. Persons claiming through beneficial owner. This section precludes a suit by the
beneficial owner or one claiming through him. 1852 The amendment in sub-s (1) similarly
precludes a plea by the defendant that the purchase by the plaintiff was made on his behalf
or on behalf of someone through whom the defendant claims. It does not preclude a suit
by a person who does not claim through the beneficial owner, but claims through another
person. 1853 An attaching decree-holder does not claim under his judgment-debtor and is
not debarred from claiming that property standing in the name of a third person really
belongs to the judgment-debtor and that is expressly saved by sub-s (2). 1854

10. Joint purchase. The provisions of this section are designed to create some check on
the practice of making what are called benami purchases at execution sales for the benefit
of judgment-debtors, and in no way affects the title of persons otherwise beneficially
interested in the purchase. 1855 It has accordingly been held that where one of several
holders of a joint mortgage decree applies for execution of the decree under O 21, r. 15,
on behalf of all, and the purchase money is set off against the entire amount of the debts,
the other decree-holders are entitled to a declaration that the purchase was made on behalf
of all the decree-holders, 1856 and so when one of three legal representatives of the
deceased decree-holder applied to execute the decree under O 21, r 15(l) the purchase by
him was held to ensure for the benefit of the other legal representatives as well and a suit
by them for partition of their shares was held to be not hit by the section. 1857 Where the
defendant is the holder of the certificate of sale, another person cannot claim that he was
the owner of half of the property. 1858

Where property is purchased at a Court-sale by a member of a joint Hindu family in his

name, but with family funds , the other members are entitled to sue him for a declaration that
the purchase was made on behalf of the family, though the certificate of sale is in his name.
The section does not apply to such a case. This was decided by their Lordships of the
Privy Council in Bodh Singh v. Gunesh Chunder , 1859 a case under the Code of 1859. Their
Lordships said: [The provisions of the section] cannot be taken to affect the right of
members of a joint Hindu family, who by the operation of law , and not by virtue of any
private agreement or undertaking [such as exists between a benamidar and the beneficial
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owner], are entitled to treat as part of their common property an acquisition, howsoever
made, by members of the family in his sole name, if made by the use of the family funds.
The same principle applies where the parties stand in the relation of partners, and the
purchase is made by one of the partners in his name with partnership funds; 1860 or by the
agent of one of the parties on behalf of all but the sale-certificate is not taken in the name
of all. 1861 It cannot however be assumed that merely because two persons jointly provide
funds for purchasing the property at an auction sale that constituted a partnership for a
single venture. 1862 It has been generally held that when the plaintiff claims property not on
the ground that the purchase was benami for him but on the ground that he is entitled to it
under some general principles of law such as trust or on the basis of an agreement between
the parties, this section has no application. 1863 It has been held by a Full Bench of the
Andhra High Court that a suit based on allegations of benami is within the prohibition of
the section and must fail, unless it falls within sub-section (2) and that it makes no
difference that the parties stand in fiduciary relationship to each other and that s 82 of the
Trusts Act is subject to this section. 1864 But persons who are not partners cannot contract
themselves out of the section; and if several persons purchase property at a Court-sale in
the name of one of them, the others cannot maintain a suit for their share against the
certified purchaser. 1865

When property is purchased at a Court-sale by two or more persons jointly, the executing
Court has no power to grant the certificate of sale to one of them only without the consent
of the others. If it does so, the case is one within sub-s (2), and the other purchasers are
entitled to maintain a suit against the certified purchaser for their share of the property. 1866

If a joint Hindu family consists of A and his sons, and A purchases property at a Court-
sale with the family funds without the concurrence of his sons in the name of a third
person, are the sons entitled to recover their share of the property from the third person
[certified purchaser]? The High Court of Madras 1867 has held that they are, the reason
given being that the purchase cannot in such a case be said to have been made by the
father on behalf of the sons, and the sons are not, therefore, beneficial owners, and the
section does not apply. On the other hand, the Allahabad High Court has held that if a
managing member makes a purchase in the name of a third person, the purchase though
made without the consent of his sons, must be deemed to have been made on behalf of
the sons, and the sons are precluded by this section from maintaining the suit. 1868 The
Allahabad High Court purports to follow the Privy Council ruling in Suraj Narain v. Ratan
Lai , 1869 but that case, as pointed out by the Madras High Court, was a case under s. 317
of the Code of 1882, which contained the words on behalf of any other person , now altered
into on behalf of the plaintiff . The view expressed by the Allahabad High Court has been
dissented from by the Calcutta High Court in Durgadas v. Bagalananda . 1870 The Madras
High Court has again considered the question in the light of the authorities referred to
above and has held affirming its previous decision in Nataraja v. Ramaswami supra that the
sons are not precluded from recovering their share on the ground that the purchase was
benami. 1871
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11. Where beneficial owner is in possession with permission of certified purchaser.

The High Court of Madras has held that if after obtaining a certificate of sale, the
purchaser acknowledges that his purchase is benami and gives up possession, or does some
act which clearly indicates an intention to waive his right, or restore the property to the
beneficial owner, such act may, by reason of the antecedent relation between the parties,
operate as a valid transfer of the property from the purchaser to the beneficial owner.
Thus, if A is the manager of B s estate [and this is the antecedent relation between the
parties], and the estate is sold in execution of a decree against B , and is purchased by B in
A s name, a suit will lie at the instance of B against A for possession, if, after obtaining the
certificate of sale, A delivers possession of the property to B, and then disturbs B in his
possession. The reason given is that the permission to hold possession amounts to a
transfer of title from the benamidar to the beneficial owner and the suit is thus based not on
the ground that the purchase was benami but on a fresh title created by the transfer. 1872
The High Court of Allahabad has dissented from this view, and held, relying on the Privy
Council case of Lokee v. Kallypuddo , 1873 that the mere permission to hold possession
cannot give or transfer a title from the benamidar to the real owner, and that a suit like the
above would be barred under this section. 1874 The Calcutta High Court has followed the
Allahabad decision. 1875 However that may be, if the certified purchaser allows the
beneficial owner to take possession, the section does not enable him to sue the beneficial
owner for possession, because possession has come into the hands of the person entitled
to it. 1876 This is so because as the section then stood the only bar was as against a suit by a
beneficial owner against his benamidar . The section as now amended contemplates a suit by
a benamidar against a beneficial owner or someone who claims through him. In such a- suit
the defendant-beneficial owner is barred from taking the plea that the purchase by the
plaintiff was on his behalf or on behalf of someone through whom he claims and therefore
cannot recover possession from him. But where A purchased property in execution
benami in the name of B and got into possession of the properties and thereafter B dies
and his son C had his name entered in mutation proceedings and then A was dispossessed,
a suit by him for declaration of title and possession was held barred by this section. 1877

12. Suit for specific performance against certified purchaser. In Venkatappa v. Jalayya ,
1878 a Full Bench of the Madras High Court held that this section does debar a plaintiff

from maintaining a suit for specific performance against the certified purchaser, if the
plaintiffs claim is based upon an agreement to convey the property entered into after the
purchase. The decision in Venkatappas case was approved by the Judicial Committee in
Ramatbai v. Peria . 1879 In Ramatbais case it was held that the present section does not debar
a plaintiff from maintaining a suit for specific performance against the certified purchaser
if the plaintiffs claim is based upon an agreement made after the purchase to transfer the
property to the plaintiff in pursuance of an agreement made before it. If the contract is
subsequent to the purchase, such a purchase is not affected by the section. 1880 It has been
held by the Bombay High Court that even a contract entered into prior to the sale is not
hit by the section and a suit to enforce it against the auction purchaser is maintainable 1881
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but there are observations in the decisions of the Calcutta High Court which take a
different view. 1882

13. Certified purchaser. Where a purchaser, who had not obtained a certificate was sued,
and afterwards applied for and obtained a certificate, it was held that he was a certified
purchaser within the meaning of this section. 1883

14. Successor in title of certified purchaser. This section bars a suit not only against a
certified purchaser, but also against persons claiming title from him. 1884 Under the Code of
1882 there was a conflict of decisions as to whether s 317 of that Code was a bar to suits
against persons claiming title from the certified purchaser. On the one hand the High
Courts of Madras, Allahabad and Calcutta held that the expression certified purchaser in s
317 of that Code did not include a person claiming through or under the certified purchaser,
such as an heir or an assignee, 1885 and that that section, therefore, was no bar to a suit
against such person. On the other hand, the Bombay High Court held that the expression
certified purchaser included his successor in title. 1886 The present section contains a
legislative recognition of the view taken by the High Court of Bombay. 1887 It is obvious
that the section does not apply where the real owner seeks a declaration of his title against
a person who does not claim under a certified purchaser. 1888

S. 67. Power for 1889 [State overnment] to make rules as to sales of land in execution of
decrees for payment of money.

1890 [(1)] The 7[State Government] 1891 [* * *] may, by notification in the Official
Gazette, make rules for any local area imposing conditions in respect of the sale of
any class of interests in land in execution of decrees for the payment of money,
where such interests are so uncertain or undetermined as, in the opinion of the
State Government, to make it impossible to fix their value.
1892 [(2) When on the date on which this Code came into operation in any local
area, any special rules as to sale of land in execution of decrees were in force
therein, the 1893 [State Government] may, by notification in the Official Gazette,
declare such rules to be in force, or may, 9[* * *] by a like notification, modify the
same.

Every notification issued in the exercise of the powers conferred by this sub-
section shall set out the rules so continued or modified.]

1894 [(3) Every rule made under this section shall be laid, as soon as may be after it
is made, before the State Legislature.]
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Sub-section (2) was inserted in the section by the Code of Civil Procedure
Amendment Act I of 1914. As to the result where no notification is issued as
provided by sub-s (2), see the undermentioned cases. 1895

Delegation to Collector of Power to Execute Decrees against Immovable Property

S. 68. 68.

[Repealed by s 7 of the Code of Civil Procedure (Amendment) Act 66 of 1956].

S. 69. 69.

[Repealed by s 7 of the Code of Civil Procedure (Amendment) Act 66 of 1956].

S. 70. 70.

[Repealed by s 7 of the Code of Civil Procedure (Amendment) Act 66 of 1956].

S. 71. 71.

[Repealed by s 7 of the Code of Civil Procedure (Amendment) Act 66 of 1956].

S. 72. 72.

[Repealed by s 7 of the Code of Civil Procedure (Amendment) Act 66 of l956].

However, s 16 of the Amendment Act, 1956 provides:

Where before the commencement of this Act, the execution of a decree has been
transferred to the Collector under section 68 of the Principal Act and is pending before the
Collector on such commencement, then notwithstanding the omission of sections 68 to 72
inclusive and the third schedule to the principal Act, the decree shall be executed by the
Collector in accordance with the provisions of the said sections and the said schedule, as if
this Act had not been passed.
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In view of the above saving provision, those interested in pending cases are requested to
refer to the previous edition for the commentary therein and also to MN Gujjar v. GS
Belekar . 1896

1768 . Sorimuthu v. Muthu Krishna , AIR 1933 Mad 598 [LNIND 1932 MAD 271]: (1933) 56 Mad 808.
1769 . Narayan Pillai v. Damodaran , AIR 1967 Ker 159 [LNIND 1966 KER 104].
1770 . Bishan Paul v. Mothu Ram , AIR 1965 SC 1994; Janak Raj v. Gurdial Singh , AIR 1967 SC 608 [LNIND 1966 SC 290];
Kocherlokota Venkata Jagannatha Rao Guru v. Ravu Venkata Kumara Mahipati Rao, 63 IA 304 : 4 Cal WN 1130.
1771 . Sagar Mahila Vidhayala, Sagar v. Pandit Sadashiv Rao Harshe , (1991) 3 SCC 588 [LNIND 1991 SC 296].
1772 . Vishnu v. Yusuff , AIR 1925 Bom 483: (1925) 27 Bom LR 963.
1773 . Jamuna Devi v. Mangal Das , AIR 1946 Pat 644: (1945) 25 Pat 13; Abdul Rahman v. Fateh Narain , AIR 1926 Oudh 189: (1926) 1
Luck 80; Nidphal v. Union of India , AIR 1966 All 360 [LNIND 1965 ALL 199]; Marimuthu v. Ambujam Amfmal , AIR 1978 Mad 50
[LNIND 1977 MAD 60].
1774 . Ram Krishan v. Satwa , AIR 1949 Nag 127: (1948) ILR Nag 610.
1775 . Shyam Lal v. Sunder Lal , AIR 1937 All 661; Bhagavandas Krishnadas v. P.S. Soma Iyer , AIR 1969 Ker 263 [LNIND 1968 KER
153]: (1969) Ker LJ 80.
1776 . V.T.C. Chettiar v. P.S.P. Chettiar , AIR 1973 Mad 313 [LNIND 1972 MAD 259].
1777 . Chimanlal Narsibhai v. Amratlal Chhotalal , AIR 1974 Guj 218 [LNIND 1974 GUJ 48].
1778 . Giriyamman v. Ramachandran , AIR 1954 TC 384; Velayudhan v. Ouseph , AIR 1953 TC 574; Abdul Basti v. Abdul Alim , AIR
1952 Punj 407.
1779 . Ramachandra v. Eva Mitra , AIR 1960 Pat 378: ILR 38 Pat 1.
1780 . Vairavan Chettiar v. Rayalu Ayyar & Co., AIR 1951 Mad 844 [LNIND 1950 MAD 321]: (1951) 1 Mad LJ 298.
1781 . Kishan Lal v. Kothari Jathmal , AIR 1959 MP 115.
1782 . Yeshwant v. Govind , (1886) 10 Bom 453; Chintamanra v. Vithabai , (1887) 11 Bom 88.
1783 . V.S.T. Venkita Reddiar v. S. Noordeem , AIR 1978 Ker 11 [LNIND 1977 KER 132].
1784 . Banke Lal v. Jagat Narain, (1900) 22 All 168.
1785 . Kutti v. Subramania , (1909) 32 Mad 485; Nanakchand v. Telukdye , (1880) 5 Cal 265; Bogi Arijisah v. Kannappa , AIR 1954 Mad
266 [LNIND 1953 MAD 52]: (1953) 1 Mad LJ 477; Giriyamman v. Ramachandram , AIR 1954 TC 384.
1786 . Padu v. Rakhmai , (1873) 10 Bom HC 435; Harkishandas v. Bai Ichha , (1880) 4 Bom 155.
1787 . Raj Kishan v. Radha Madub , (1874) 21 WR 349; Kushal v. Bhimabai , (1888) 12 Bom 589; Shivram v. Ravji , (1883) 7 Bom 254.
1788 . Krishnaji v. Ganesh , (1882) 6 Bom 139.
1789 . Amir Kazim v. Darbari , (1902) 24 All 475; Shiam Lal v. Nathe Lal , (1911) 33 All 63.
1790 . Ma Hawa Bi v. Sein Kho , AIR 1928 Rang 67: (1927) 5 Rang 803; Abdul Ghani v. Lal Chand , AIR 1940 Lah 230.
1791 . Umes Chunder v. Zahur Fatima , (1891) 18 Cal 164, 178 : 17 IA 201.
1792 . Raghunath Das v. Sundar Das 41 IA 251.
1793 . Khairajmal v. Diam , (1905) 32 Cal 296 : 32 IA 23; Radha Pradad v. Lal Sahab , (1819) 13 All 53 : 17 IA 150; Beni Prasad v.
Mukhtesar , (1899) 21 All 316; Rashid-un-Nissa v. Muhammad , (1909) 36 IA 168; Payidanna v. Lakshminarasamma , (1915) 38 Mad 1076.
1794 . Ramanathan v. Arunachellam , (1915) 38 Mad 766.
1795 . Khairajual v. Daim , (1905) 32 Cal 296, p. 312.
1796 . Malkarjun v. Narhari , (1901) 25 Bom 337, 348 : 27 IA 216; Amarchand v. Parmanand , AIR 1934 All 474.
1797 . Rewa Mahton v. Ram Kishen Singh , (1887) 14 Cal 18, 24 : 13 IA 106; Mothura Mohun Ghose v. Akhoy Kumar Mitter , (1888) 15 Cal
557; Narayan v. Kaliana , (1896) 19 Mad 219.
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1798 . Malkarjun v. Narhari , (1901) 25 Bom 337, 247 : 27 IA 216; Paresh Nath v. Hari Charan , (1911) 38 Cal 622.
1799 . Rewa Mahton v. Ramkishen Singh , (1887) 14 Cal 18 : 13 IA 106.
1800 . Mothura Mohun Ghose v. Akhoy Kumar Mitter , (1888) 15 Cal 557; Yellappa v. Ramchandra , (1897) 21 Bom 463.
1801 . (1911) 38 Cal 622.
1802 . Rangasami v. Periasami , (1894) 17 Mad 58.
1803 . Dwarkanath v. Tarini , (1907) 34 Cal 199; Umed v. Jas Ram , (1907) 29 All 612; Pandurang v. Krishnaji , (1904) 28 Bom 125.
1804 . Saroda Churn v. Kahomed , (1885) 11 Cal 376.
1805 . Girdharee Lall v. Kantoo Lall , (1875) 14 Beng LR 187 : 1 IA 321.
1806 . Kaunsilla v. Chandar Sen , (1901) 23 All 25. See notes to s 60, Objection that property not liable to attachment and sale when
to be raised, notes to O 21, r 22, Consequence of omission to give notice, and Notice to wrong person, and notes to O 21, r 90, Material
irregularity in publishing or conducting the sale.
1807 . Khiarajmal v. Daim , (1905) 32 Cal 296, 315 : 32 IA 23; Mina Kumari v. Jagat v. Settani , (1844) 10 Cal 220; Gungapershad v. Gopal
Singh , (1897) 11 IA 234.
1808 . Official Receiver v. Chettiappa , AIR 1926 Mad 78 [LNIND 1925 MAD 12]: (1925) 48 Mad 767.
1809 . Sagar Mahila Vidyalaya v. Pandit Sadashiv Rao Harsha , AIR 1991 SC 1825 [LNIND 1991 SC 296].
1810 . Zain-ul-Abdin v. Muhammad Asghar Ali , (1888) 10 All 166 : 15 IA 12; Mukhoda v. Gopal Chunder , (1899) 26 Cal 734; Umedmal v. Srinath ,
(1900) 27 Cal 810; Paresh Nath v. Hari Charan , (1911) 38 Cal 622, 627; Shivbai v. Yesoo , (1919) 43 Bom 235, 238; Piari Lal v. Hanif-un-Nissa
, (1916) 38 All 240 (stranger purchaser); Chintaman v. Chunisahu , (1916) 1 Pat LJ 43, 46, (decree-holder purchaser); Agha Husain v. Qasim
Ali , (1925) 23 All LJ 946, AIR 1926 All 35.
1811 . Mukhoda v. Gopal Chunder , (1899) 26 Cal 734, 737. See notes to s 144, Who may apply for restitution.
1812 . Shiek Ismal v. Rajab Rawther , (1907) 30 Mad 295; Marimuthu v. Subbaraya , (1903) 13 Mad LJ 231.
1813 . Chinnammal v. P. Arumugham , (1990) 1 SCC 513 [LNIND 1990 SC 21].
1814 . Doyamoyi Dasi v. Sarat Chunder , (1898) 25 Cal 175; Mul Chand v. Mukta , (1888) 10 All 83; Ram Sukh v. Ram Sahai , (1907) 29 All 591;
Nataraja v. Ramaswamy , AIR 1922 Mad 481 [LNIND 1922 MAD 76]: (1922) 45 Mad 856.
1815 . Sarimuthu v. Muthu Krishna , AIR 1933 Mad 598 [LNIND 1932 MAD 271]: (1933) 56 Mad 808; Venkates Kotadia v. Shanta Bai , (1960) 2
MLJ 346 [LNIND 1960 MAD 259]; Ambujammal v. Thangavelu Chettiar , (1941) 1 MLJ 193 [LNIND 1940 MAD 400]. See O 21, r 92(1)
and note the words, court shall make an order confirming the sale.
1816 . Jagdish Sugar Mills Ltd. v. Commr of Income-Tax, Lucknow , (1986) 3 SCC 578 [LNIND 1986 SC 589].
* Omitted by the Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988), s 7 (w.e.f. 19-5-1988), prior to its omission s 66 stood as under
:
S 66. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff. (1) No suit shall be maintained
against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the
purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims, and in any suit by a person
claiming title under a purchase so certified, the defendant shall not be allowed to plead that the purchase was made on his behalf or on
behalf of someone through whom the defendant claims.
(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the
certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that
property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against
the real owner.

1817 . Bibi Kaniz Ayesha v. Mojibul Hassun Khan , (1941) 20 Pat 855 : (1942) AP 230; Prem Sukh Gulgulia v. Habib Ullah , (1945) AC 355 :
(1945) 49 CWN 371; Bodh Singh v. Ganesh Chunder , (1874) 12 Beng LR 317; Ganga Sahai v. Kesri , (1942) IA 177 : 37 All 544 : 19 CWN
1175.
1818 . Latchumanan v. Veerappa , AIR 1956 Mad 10 [LNIND 1955 MAD 132].
1819 . Govinda v. Lala Kishun , (1901) 28 Cal 370; Jadunath v. Ruplal , (1906) 33 Cal 967; Chenvirappa v. Puttappa , (1887) 11 Bom 708; Sidlingappa
v. Hirasa , (1907) 31 Bom 405; Yaramati v. Chundru , (1897) 20 Mad 326; Muthuraman v. Krishna , (1906) 29 Mad 72; Munisami v. Subaryar ,
(1908) 31 Mad 97; Kondeti v. Nukamma , (1908) 31 Mad 485. See Indian Trusts Act, 1882 s 84.
1820 . Jadunandan Singh v. Baldeo Singh , 1965 AP 384.
1821 . Durga v. Bhagwandas , (1901) 23 All 34; see Bishan Dayal v. Kesho Prasad , (1937) All 113 : (1937) AA 176. On appeal to Privy Council
(1940) 42 Bom LR 138 : (1940) A PC 202. But see Hari v. Ramchandra , (1907) 31 Bom 61.
1822 . Rangasami Gounder v. Easwarmurthi , (1967) 2 Mad 112 : (1967) 2 MLJ 162 : 1967 AM 437.
1823 . Venkatappa v. Jaldyya , (1919) 42 Mad 615 (FB).
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1824 . Kahandas, In re , (1881) 5 Bom 154.

1825 . Mayne's Hindu Law, sec. 442.
1826 . Girijanandini Devi v. Bijendra Narain , (1967) 1 SCR 23 [LNIND 1966 SC 208] : 1967 SC 1124; Ranchhoddas v. Manga Bhika Bhole
, (1950) AB 277; Shrideo Ram Mandir v. Nathu Ram , (1941) Nag 90 : (1941) AN 84; Ganga Sahai v. Kesri , 42 IA 177 : (1915) 37 All 545;
Buhuns v. Lalla Buhoree , (1872) 14 MIA 496; Lokhee v. Kallypuddo , (1875) 23 WR 358 : 2 IA 154; Muhammad Abdul Jalil v. Muhammad Obaid
Ullah , (1929) 56 IA 330 : 51 All 675 : (1929) APC 228; Qandhara v. Gokal Chand , (1933) 14 Lah 712 : (1933) AL 636; Abdul Hamid
Muhammed , (1920) 2 Lah LJ 353 -359.
1827 . Narain Das v. Ramchandra , (1926) 48 All 209 : ('26) AA 124.
1828 . Srinivasacharyulu v. Hanumantha Rao , (1955) AAP 10 : 1954 MWN 915.
1829 . Munnabi v. Mohanlal , 1952 Nag 366 : (1953) AN 259.
1830 . Gangaram v. Thulsiram , 1954 Nag 166 : (1954) AN 77.
1831 . Satyabhamabai v. Pandurang Marotrao Pawar , AIR 1990 Bom 134 [LNIND 1989 BOM 267] (AA Desai, J.).
1832 . Promotha Nath v. Mohini , (1920) 47 Cal 1108.
1833 . Jai Kishan v. Parmeshri , (1937) AL 471.
1834 . Fazlul v. Sardar , (1928) 32 CWN 112 : (28) AC 338.
1835 . Muhammad Abdul Jalil v. Muhammad Obaid Ullah , (1929) 56 IA 330 at pp. 331, 332, 51 All 675 : (29) APC 228 : 31 Bom LR
1393, 1395-1396.
1836 . Lokhee v. Kallypuddo , 1875 23 WR 358 : 2 IA 154; Jan Muhammad v. Ilahi Baksh , (1876) 1 All 290; Govinda v. Lala Kishun ,
(1901) 28 Cal 370; Vishnu v. Ragho , (1903) 5 Bom LR 329; Ghazi-ud-din v. Bishan Dial , (1905) 27 All 443; Haji Mohammad v. Nur Fatna
Begum , (1938) All 556 : (38) AA 391; Kesavan Padmanabhan v. Sanku Narayanan , (1958) A Ker 368 : 1958 Ker LJ 99 : 1958 Ker LT 524.
1837 . Unconvenanted Service Bank v. Abdul Bari , (1896) 18 All 461.
1838 . Prem Sukh Gulgulia v. Habib Ulla , (45) AC 355 : (1945) 49 CWN 371; Sheo Shankar v. Mahabir Prasad , (1947) 26 Pat 505 : (48)
AP 350; Saradindu v. Gosta , (1922) 27 CWN 208 : (23) AC 302; see Asghari Begam v. Kanhaiya Lal , (1936) All LJ 1169 : (36) AA 750.
1839 . Satyabhamabai v. Pandurang Pawar , AIR 1990 Bom 134 [LNIND 1989 BOM 267] (DB).
1840 . Sheo Shanker v. Mahabir Prasad , (1947) 26 Pat. 505 : (48) AP 350.
1841 . Allibhai v. Dadu , (1931) 33 Bom LR 1296 : (31) AB 578; Muniappa v. Thangavelu , (37) AM 362.
1842 . (45) AC 458 : (1945) 79 C.L.J. 248.
1843 . Kanizak v. Monohur , (1886) 12 Cal 204; Subha Bibi v. Hara Lal , (1894) 21 Cal 519.
1844 . Rama Kurup v. Sridevi , (1893) 16 Mad 290. But see Kollantavida v. Tiruwalli , (1897) 20 Mad 362.
1845 . Delhi and London Bank v. Partab Bhaskar , (1899) 21 All 29; Kishan Lal v. Garuddhwaja Prasad , (1899) 21 All 238; Ram Narain v.
Mohanian , (1904) 26 All 82; Khuda Baksh v. Aziz Alam , (1905) 27 All 194; Sarju Prasad v. Bindeshri , (1911) 33 All 382.
1846 . Sasti Churn v. Aunopurna , (1896) 23 Cal 699.
1847 . Bishan Dial v. Ghazi-ud-din , (1901) 23 All 175.
1848 . Hanuman Pershad v. Jadu , (1916) 43 Cal 20, 26; Umasasi v. Akrur , (1926) 53 Cal. 297 : (26) AC 542.
1849 . Mahamad v. Mahammad , (1919) 24 CWN 51.
1850 . Keshri Mull v. Sukan Ram , (1933) 12 Pat 616 : (33) AP 264.
1851 . Karim v. Bibi Sakina , 1964 SC 1254; Muhammad Abdul Jalil v. Muhammad Obaid Ullah , (1929) 56 IA 330 : 51 All 675 : (29) APC 228;
Karamuddin v. Naimut , (1892) 19 Cal 199. See also Bishan Dial v. Ghazi-ud-din , (1901) 23 All 175, 178-179; Ram Chardra v. Jaith Mal , (34)
AA 990; Dolgovind v. Anathbandhu , (1954) A Ori 244.
1852 . Karim v. Bibi Sakina , supra .
1853 . Narain v. Durga , (1913) 35 All 138.
1854 . Shaligram v. Narainsa , 1954 Nag 457 : (1954) AN 223.
1855 . Ganga Sahai v. Keshri , (1915) 37 All 545, 554-555 : 42 IA 177, 182.
1856 . (1915) 37 All 545 : 42 IA 177, supra; Achhaibar v. Tapasi , (1907) 29 All 557; Bibi Kaniz Ayestha v. Mojibul Hassan Khan , (1941)
20 Pat. 855 : (42) AP 230.
1857 . Thimmappa v. Subba Rao , (1960) AMYS 249.
1858 . Shivnarayan v. Baulal , AIR 1988 MP 123 [LNIND 1987 MP 245].
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1859 . (1874) 12 Beng LR 317; Durgadas v. Bagalananda , (1934) 61 Cal. 440 : (34) AC 567 : 38 CWN 494; Girijnanandini Devi v.
Bijendra Narain , (1967) 1 SCR 93 [LNIND 1966 SC 149] : 1967 SC 1124 : 46 Pat 193.
1860 . Achhaibar v. Tapasi , (1907) 29 All 557, 561; Vishvanath v. Pandharinath , (1926) 50 Bom 600 : (26) AB 525; Ratanlal Haiarilal v.
Seth Lakshmi Narain , (1962) A MP 28 : (1962) Jub LJ 75.
1861 . Bhudarsao v. Samarathmal , (40) AN 1.
1862 . Rangaswami Goundar v. Easwarmurthi , (1967) 2 Mad 112 : 1967 AM 437 : (1967) 2 MLJ 162.
1863 . Suryanarayana v. Venkatasubbiah , 1951 (2) MLJ 76 [LNIND 1951 MAD 73] : (1951) AM 943 : 64 LW 608; Lakshmanan
Chettiar v. Veerappa Chettiar , 1955 (2) MLJ 460 [LNIND 1956 MAD 51]; G. Raman v. G. Keshavan , (1959) A Ker 249 : 1959 Ker LT 304.
1864 . Kotaiah v. Venkatasubbaiah , 1961 (2) And WR 196 : (1962) AAP 49; Jadunandan Singh v. Baldeo Singh , 1965 AP 384.
1865 . Iswar Chandra v. Kabiruddin , (1934) 61 Cal 371 : (34) AC 322.
1866 . Bhabatram v. Durgesh , (1926) 51 Cal 992 : (26) AC 719.
1867 . Nataraja v. Ramaswamy , (1922) 45 Mad 856 : (22) AM 481; Natesa v. Venkatramayan , (1883) 6 Mad 135; Minakshi v.
Kalianarama , (1897) 20 Mad 349.
1868 . Baijnath Das v. Bishen , (1921) 43 All 711 : (21) AA 185 (purchased by manager, in his wifes name); Ram Rup v. Khadiru , (1928)
50 All 52 : (28) AA 619.
1869 . (1917) 44 IA 201, 211 : 40 All 159, 170.
1870 . 61 Cal 440 : 38 CWN 494 : (34) AC 567 : 150 IC 1051.
1871 . Krishna Bhatta v. Ganapathi , (1955) AM 648.
1872 . Monappa v. Surappa , (1888) 11 Mad 234; Sankunni v. Narayanan , (1894) 17 Mad 282; Kumbalinga v. Ariaputra , (1895) 18 Mad
436; Venkatappa v. Jalayya , (1912) 43 Mad 615, 616.
1873 . (1875) 23 WR 358 : 2 IA 154.
1874 . Bishan Dial v. Ghazi-ud-din , (1901) 23 All 175, 179-180.
1875 . Harish v. Nripandra , (1920) 24 CWN 1024; Ali Ahmad v. Shamsunnessa , (1938) 42 CWN 1059 : (38) AC 602.
1876 . Muhammad Abdul Jalil v. Muhammad Obaid Ullah , (1929) 56 IA 330 : 51 All 675 : (?29) APC 228.
1877 . Saligram v. Baldeo , (1960) AP 56.
1878 . (1919) 42 Mad 615; Baburam v. Dokhina , (1919) 24 CWN 27.
1879 . (1920) 47 IA 108 : 43 Mad 643. See also Balaram v. Nakru , (1928) 30 Bom LR 821 : (28) APC 75.
1880 . Prem Sukh Gulgulia v. Habab Ulla , (45) AC 355 : (1945) 49 CWN 371; Haran Chandra v. Ram Kumar , (1932) 35 CWN 940 :
(32) AC 170.
1881 . Nimalchand v. Madanlal , 1952 Bom 40 : (1952) AB 30.
1882 . Haran Chandra v. Ram Kumar , supra; Upendra v. A. Ahmed , 61 Cal 371 : (1934) AC 322.
1883 . Aldwell v. Ilahl Baksh , (1883) 5 All 478.
1884 . Sowkar Kamurudeen v. Noor Mahomed , (1915) 28 Mad LJ 251.
1885 . Theyyavelan v. Kochan , (1898) 21 Mad 7; Sibta v. Bhagoli , (1899) 21 All 196; Dukhada v. Srimonto , (1899) 26 Cal 950.
1886 . Hari v. Ramchandra , (1907) 31 Bom 61.
1887 . Manji v. Hoorbai , (1911) 35 Bom 342, 347.
1888 . Abinas Chandra v. Pratul Chandra , (1928) 55 Cal 1070 : (28) AC 448.
1889 . Subs. for Provisional Government by A.O. 1950.
1890 . S 67 renumbered as sub-s (1) by Act 1 of 1914, s 3.
1891 . The words with the previous sanction of the G.G. in C. omitted by Act 38 of 1920, s 3 and Sch. I, Pt. I.
1892 . Added by Act I of 1914, s 3.
1893 . Subs. for Provisional Government by AO 1950.
1894 . Ins. by the Delegated Legislation Provisions (Amendment) Act, 1983 (20 of 1983), s 2 & Sch. (w.e.f. 15-3-1984).
1895 . Kishore Chand v. Ishar Singh , (1913) PR No 89, p. 318; Fakir v. Amin Chand , AIR 1921 Lah 223: (1921) 3 Lah LJ 5.
1896 . AIR 1965 Mys 250; Kuber Singh v. Digvijay Singh , AIR 1968 All 125 [LNIND 1966 ALL 125].
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End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Resistance to Execution

S. 74. Resistance to execution.

Where the Court is satisfied that the holder of a decree for the possession of immovable
property or that the purchaser of immovable property sold in execution of a decree has
been resisted or obstructed in obtaining possession of the property by the judgment-
debtor or some person on his behalf and that such resistance or obstruction was without
any just cause, the court may, at the instance of the decree-holder or purchaser, order the
judgment-debtor or such other person to be detained in the civil prison for a term which
may extend to thirty days and may further direct that the decree-holder or purchaser be put
into possession of the property.

HIGH COURT AMENDMENT

Calcutta. Omit the words that the holder of a decree for the possession fo immovable
property or after the words Court is satisfied; and the word immovable before property;
insert the words referred to in Section 28 of the Presidency Small Cause Courts Act, 1822;
after the word property and before the words sold in execution omit the words decree-
holder or between the words at the instance of the and purchaser; omit the words decree-
holder or between the words direct that the and purchaser. Vide Cal. Gaz. Pt. I, dated April
20, 1967.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part II EXECUTION

Distribution of Assets

S. 73. Proceeds of execution sale to be rateably distributed among decree-holders.

(1) Where assets are held by a Court and more persons than one have, before the
receipt of such assets, made application to the Court for the execution of decrees
for the payment of money passed against the same judgment-debtor and have not
obtained satisfaction thereof, the assets, after deducting the costs of realization,
shall be rateably distributed among all such persons:

Provided as follows:

(a ) where any property is sold subject to a mortgage or charge, the mortgagee or

incumbrancer shall not be entitled to share in any surplus arising from such sale;
(b ) where any property liable to be sold in execution of a decree is subject to a
mortgage or charge, the Court may, with the consent of the mortgagee or
incumbrancer, order that the property be sold free from the mortgage or charge,
giving to the mortgagee or incumbrancer the same interest in the proceeds of
the sale as he had in the property sold;
(c ) where any immovable property is sold in execution of a decree ordering its sale
for the discharge of an incumbrance thereon, the proceeds of sale shall be
applied

first, in defraying the express of the sale;

secondly, in discharging the amount due under the decree;

thirdly, in discharging the interest and principal monies due on subsequent

incumbrances (if any) ; and

fourthly, rateably among the holders of decrees for the payment of money
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against the judgment-debtor, who have, prior to the sale of the property,
applied to the Court which passed the decree ordering such sale for
execution of such decrees, and have not obtained satisfaction thereof.

(2) Where all or any of the assets liable to be rateably distributed under this section are
paid to a person not entitled to receive the same, any person so entitled may sue
such person to compel him to refund the assets.
(3) Nothing in this section affects any right of the Government.

HIGH COURT AMENDMENT

Calcutta. Omit clause (c ) of the proviso in sub-rule (1 ). Vide Cal. Gaz. Pt. I,
dated April 20, 1967.

1. Changes introduced by the section. The present section differs from the
corresponding s 295 of the Code of Civil Procedure 1882, in the following respects:
(i) The words, where assets are held by a court, have been substituted for the words,
whenever assets are realised by sale or otherwise in execution of a decree. This it is
submitted, introduces an important alteration, though the High Court of Bombay
has held otherwise. 1897
(ii) The words, before the receipt of such assets, have been substituted for the words,
prior to the realisation. 1898
(iii) The words by which such assets are held are omitted after the words made
application to the court.
(iv) The word, passed, has been added after the word, money. 1899
(v) The words, interest in, in cl (b) have been substituted for the words, right against, to
bring the wording of that clause into line with the Transfer of Property Act, 1882, s 96.
This is a mere verbal alteration.

2. Rateable distribution: object of the section. What is contemplated under the

provisions of s 73 of the Code of Civil Procedure is the existence of more than one decree
against the same judgment-debtor and the decree holders have made their applications for
execution of their decrees and have not been fully satisfied. Once that is the position, as
soon as the assets of the judgment-debtor are received by another court, they can make an
application under s 73 for rateable distribution without getting their decrees transferred to
the court which received the assets. Even the attachment of the assets of the judgment-
debtor, by all the decree holders is also not necessary and the requirement is only to make
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an application after the receipt of the assets by the court, an application under s 73 for
rateable distribution. If such applicant fulfils the other requirements contemplated under s
73, he is entitled for rateable distribution. 1900

The object of s 73 is to prevent unnecessary multiplicity of execution proceedings, to

obviate, in a case where there are many decree holders, each competent to execute his
decree by attachment and sale of a particular property, the necessity of each and every one
separately attaching and separately selling that property. 1901

The object of this section is to provide a cheap and expeditious remedy for the execution
of money-decrees held against the same judgment-debtor by adjusting the claims of rival
decree-holders without the necessity for separate proceedings. 1902 The doctrine of rateable
distribution does not apply to more than one decree held by the same decree-holder. 1903
Under the Code of Civil Procedure 1859, s 270, the creditor who first attached the property
had a prior claim to have his decree satisfied out of the sale-proceeds to the exclusion of
other creditors, but now, all judgment-creditors who apply to the court prior to the receipt
of the sale-proceeds by the court, are entitled to share rateably. 1904 In Bithal Das v. Nand
Kishore , 1905 Strachey CJ said:

The object of the section is two-fold. The first object is to prevent unnecessary multiplicity
of execution proceedings, to obviate, in a case where there are many decree-holders, each
competent to execute his decree by attachment and sale of a particular property, the
necessity of each and every one separately attaching and separately selling that property. The
other object is to secure an equitable administration of the property by placing all the
decree-holders in the position 1 have described upon the same footing, and making the
property rateably divisible among them, instead of allowing one to exclude all the others
merely because he happened to be the first who had attached and sold the property.

A obtains a decree against B in court X for Rs 4,000, and applies to that court for
execution of his decree by attachment and sale of certain property belonging to B , and the
property thereupon attached. C then obtains a decree also against B in court X for Rs
2,000, and applies to that court for execution of his decree by attachment and sale of the
same property attached in execution of A s decree. The property is then sold by the court
in execution of A s decree for Rs 3,000. C is entitled to share rateably in the net sale-
proceeds, that is to say, if the net sale-proceeds amount to Rs 3,000, A will be paid Rs
2,000 and C will be paid Rs 1,000. It is not necessary to entitle C to participate in the assets
that he should have given notice to A of the application made by him for execution of his
decree. 1906 The section is wide enough to include transferees of decrees. 1907

While considering the question of rateable distribution, only the unsatisfied portion of the
decree ought to be taken into account. 1908 Rateable distribution should be made according
to the amount due to each decree-holder at the time the distribution is made and not
according to the amount due at the time when the assets were received by court. 1909
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If a plaintiff obtains a decree on the admission of the defendant 1910 and the decretal
amount is directed to be recovered out of a sum due to the defendant judgment-debtor in
another court, a rival decree-holder cannot claim rateable distribution out of the sum. 1911

The section has no application to money belonging to third persons and deposited into
court for a specific purpose. Thus, when a person, not a judgment-debtor, deposits into
court, money for the express purpose of satisfying the mortgage decree and extinguishing
the mortgage lien, that money does not belong to the judgment-debtor and is not available
for rateable distribution. 1912 Where A , who had obtained a decree for reconveyance of
properties on payment of a certain amount, entered into an agreement with B whereby B
was to advance the amount and take a usufructuary mortgage over the properties therefor
after reconveyance is obtained and in case of failure to obtain reconveyance was to be
repaid out of the monies in court deposit , it was held that the latter were not assets
belonging to the judgment-debtor and this section had no application. 1913 The language of
the section is clear that the assets distributable are only what may be left over after
deducting the costs. 1914

3. Attachment of salary. Rateable distribution applies to attachment of salary which is

attachable even though it is already under attachment by reason of O 21, r 48. 1915 The
restriction imposed by s 60 (1)(i) on the rights of the decree-holder to attach salary,
operates only when the dispute is between him and the judgment-debtor. It has no
application when the dispute is as to the rights of the decree-holders inter se. It is,
therefore, not open to one decree-holder claiming rateable distribution under this section
to raise an objection based on s 60 (1)(i) against another decree-holder. 1916

4. Conditions for rateable distribution. To entitle a decree-holder to participate in the

assets of a judgment-debtor, the following conditions must be present:
(i) The decree-holder claiming to share in the rateable distribution should have applied
for execution of his decree to the appropriate court.
(ii) Such application should have been made prior to the receipt of the assets by the
court.
(iii) The assets of which a rateable distribution is claimed must be assets held by the
court.
(iv) The attaching creditor as well as the decree-holder claiming to participate in the
assets should be holders of decrees for the payment of money.
(v) Such decrees should have been obtained against the same judgment-debtor.

No rateable distribution can be claimed under the section unless all the conditions
enumerated above are fulfilled. 1917
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5. Application for execution. In order to entitle a decree-holder to the benefits of this

section, it is necessary that he must have applied for execution before the receipt of assets
are provided under O 21, r 11. 1918 It is not necessary that he should have, in addition filed
an independent application for rateable distribution. 1919 Even the attachment of the assets
of the judgment-debtor by all the decree-holders is not necessary and the requirement is
only to make an application after the receipt of the assets by the court, an application
under s 73 for rateable distribution. If such applicant fulfils the other requirements,
contemplated under s 73, he is entitled for rateable distribution. 1920 A decree-holder who
has not applied for execution cannot claim the benefit of rateable distribution. 1921

An execution petition is not bad under this section for not containing all the particulars
required by O 21, r 11. It is sufficient if it substantially complies with it. 1922 The question
is, whether a decree-holder can participate in rateable distribution, if he has applied for that
only without applying for execution. In Balaji v. Gopal , 1923 it was held that he was not. In
Devorojo Kuer v. Jadunandan , 1924 an application under O 21, r 11 was held to be sufficient,
although the applicant did not ask for attachment or sale of the property but only for
rateable distribution of the assets to be realised at the execution sale of another decree-
holder. A similar view was taken in Kasi Prosad v. Motilal , 1925 where it was held that while a
bare application for rateable distribution would not be valid under this section, an
application which contains all the particulars required in O 21, r 11, would be valid though
it did not pray for any of the reliefs mentioned in O 21, r 11, but only for rateable
distribution. In Saraswathi v. Govinda Rao , it has been held that rateable distribution is one
of the modes of execution recognised by the Code of Civil Procedure and a decree-holder who
specifies that relief in the execution petition is also entitled to share in the distribution. 1926
Where he has recovered a part of the decretal amount out of court and filed an execution
application for the balance, he would be entitled to rateable distribution even if such
application is closed for want of bidder at the auction-sale. 1927

A decree-holder who has applied for execution will be entitled to rateable distribution even
though he has not attached the properties, provided he satisfies the other conditions
mentioned in the section. 1928 It is not necessary to entitle a decree-holder to claim the
benefit of this section that he should have given notice of execution to the other decree-
holders or to the judgment-debtor. 1929 Before the decree-holder can claim rateable
distribution under this section, the application must be one which on the face, of it is
entitled to succeed. 1930 Where the execution application was not accompanied by a copy
of the decree, as required by the rules of the Calcutta High Court, it was held that there
was no valid execution petition and the decree-holder was not entitled to participate in the
distribution. 1931

The Andhra Pradesh High Court has held that a person who is a stranger to the execution
proceeding, has no locus standi to file petition under s 73 of the Code for distribution of
assets. 1932
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6. Application of the section to Orders. The section also applies where an application
for execution is in respect of an order which has the force of a decree, as for instance, an
order made under s 469 of the Companies Act, 1956.1933

7. Court to which application for execution should be made. Those decree-holders

alone were, under the old law, entitled to rateable distribution who have applied for
execution of their decrees as provided by O 21, r 11 1934 to the court by which the assets
are held. 1935 Under the present Code of Civil Procedure, it is sufficient that the application has
been made to the appropriate court. This is because under s 63 where property has been
attached in execution of decrees of several courts, the receipt of assets by one court
constitutes receipt of assets by the other courts. 1936 The High Court of Punjab has taken
the view that the appropriate court means the court which passed the decree or the court
to which the decree is transferred for execution. No application, therefore, can directly be
made to any other court, merely on the ground that that court holds asset, of the
judgment-debtor. Too much importance cannot be attached to the article the in s 73. The
words the court indicate that application has to be made to the appropriate court which
passed the decree. The section merely sets out the prerequisite conditions before rateable
distribution can be allowed. It does not, in terms, say that application for execution has to
be made to the court where the assets are lying. 1937 On the other hand, the High Court of
Madras has taken the view that s 73 cannot be read with s 63, that the application for
execution in terms of s 73 must be filed in the court which has received and held the
assets, and that this section cannot be construed so as to enable all the decree-holders,
irrespective of their applications in different courts, to claim the benefit of rateable
distribution. The reason is that the court which has received and held the assets may not
know the number of applications in various courts. 1938 It is submitted that the Bombay
and Punjab view is correct, first, because ss 73 and 63 must be read harmoniously and
secondly, because the reason given in the Madras case cannot be sustained since the court
receiving and holding the assets must know from the applications before it approves for
execution in other courts. Besides, such a view is contrary to the primary principle that
execution application must be lodged in the court which has passed the decree or to the
court to which it is transferred for execution. An application to the court which passed the
decree to issue a precept of attachment under s 46, to the court by which the assets are
held is not sufficient. 1939 Nor is an application to a court in anticipation that the decree
will be transferred to it for execution. 1940 But this was a decision of a single judge and has
been overruled in Ademma v. Venkatasubbayya , 1941 in which it was held that an application
for execution may be entertained by the transferee court before the receipt of the decree.
Where two decrees were passed against the same judgment-debtor in a small cause court
and one of the decree, holders had his decree transferred to the original side and in
execution thereof immovable properties were sold, it was held that the other decree-holder
was not entitled to share in the distribution of the sale proceeds, as he had applied for
execution only in the small cause court and had not got his decree transferred to the
original side and applied there for execution. 1942
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The question is, where property of the same judgment-debtor is attached in execution of
decrees of more courts than one and the property is sold by the court of the highest grade,
whether the holders of decrees of inferior courts are bound, in order to have the benefit of
rateable distribution, to have their decrees transferred to the court of the highest grade and
make fresh applications for execution to that court? A obtains a decree against B in the
court of a subordinate judge of the First Class. In execution of the decree, B s property is
attached by that court. C then obtains a decree against B in the court of a subordinate
judge of the Second Class and applies to that court for execution of his decree by
attachment and sale of the same property. The property is then sold by the First Class
subordinate judge in execution of A s decree, and the sale-proceeds are received by that
court. Here the court of the subordinate judge of the First Class is the court by which the
assets are held. Is C entitled to rateable distribution? No, according to a previous decision
of the High Court of Bombay, he not having applied to the court of the subordinate judge
of the First Class for execution of the decree, that being the court by which the assets are
held. 1943 But this was a decision under the old Code of Civil Procedure and is not now the law
in Bombay. 1944 Yes, according to the Calcutta, 1945 Allahabad, 1946 Rangoon 1947 and
Madras 1948 High Courts the reason given being that under s 63 the court of the
subordinate judge of the First Class is the court to determine all claims relating to the
attached property and such claims include claims for rateable distribution. It is not
necessary that the other decree-holders should get their decrees transferred or should file
fresh execution applications. They need only apply to the court carrying out the execution
proceedings, for they have a claim which it is the duty of the court under s 63 to
determine. 1949

8. Before the receipt of the assets. An application for execution must have been made
before the receipt of assets by the court 1950 and it must be subsisting and pending at the
date of the order. 1951 Where the judgment-debtor had died at the date of receipt of assets
and his legal representatives had not been brought on record, it was held that there was no
execution application pending at the material rate and that the decree-holder could not
claim rateable distribution. 1952 So also, where the execution petition had been dismissed
before the receipt of the assets, it was held that the decree-holder was not entitled to relief
under this section. 1953 An order dismissing an execution petition for non-joinder of a
receiver, who was a necessary party, was held to disentitle the decree-holder to relief under
this section. 1954 But an order of dismissal can bar the grant of relief under this section only
when it is judicial and is tantamount to a denial of the right on the merits and not when it
is administrative and made for statistical purposes. 1955 Thus, where a judgment-debtor was
brought under arrest and was granted time for payment of the decree amount on his
furnishing security, and on that being done, the execution petition was dismissed, it was
held that this order did not take away the right of the decree-holder to get rateable
distribution. 1956 Where a decree-holder had attached the equity of redemption in certain
properties of the judgment-debtor and thereafter they were sold in execution of a decree
on the mortgage and the execution petition was, in consequence, dismissed but the
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attachment continued, it was held that the dismissal did not preclude the decree-holder
from claiming rateable distribution in the mortgage decree-holders sale. 1957 But where the
application for execution was struck-off as infructuous, it was held that it could not be held
to be pending merely because the attachment was ordered to continue for six months. 1958
In Sunil Roy v. Bishwanath , 1959 a car belonging to the judgment-debtor and in the
possession of a third party was attached on 8 August 1953 by A under O 21, r 46, in
execution of his decree in the court of the second subordinate judge, Alipore. B, who had
obtained a decree against the same judgment-debtor in the court of the subordinate judge,
Alipore, attached the car on 21 September 1953 under O 21, r 43, and also applied for
rateable distribution in the court of the second subordinate judge on 25 September 1953.
The car was sold on 28 September 1953 and the sale proceeds deposited in the court.
Thereafter, on the application of the judgment-debtor. the attachment in B s suit was
raised by an order of the subordinate judge on 5 January 1954 on the ground that the
attachment on 21 September 1953 under O 21, r 43 was bad, the proper provision being
held to be O 21, r 46. On 25 January 1954, the execution petition also was dismissed for
non-prosecution. The application for rateable distribution was subsequently dismissed by
the second subordinate judge on the ground that the attachment effected on 25 September
1953 under O 21, r 43, was bad. It was held by the Calcutta High Court, reversing this
order, that the attachment though irregular was not a nullity, B had acquired on the date of
receipt of assets, a right to get rateable distribution and that could not be defeated by the
subsequent order dismissing the execution petition. It was also observed that the dismissal
of the execution petition would not affect the rights of the decree-holder to get rateable
distribution unless he had waived or abandoned his rights against the judgment-debtor. 1960

The corresponding s 295 of the Code of Civil Procedure 1882 commenced as follows:

Whenever assets are realised by sale or otherwise in execution of a decree, and more
persons than one have prior to the realisation , applied to the court by which such assets
are held.

The present section begins as follows:

Where assets are held by a court and more persons than one have, before the receipt of
such assets, made application to the court.

The word realisation was rather obscure. Indeed it called for several decisions in which the
courts had to define its precise meaning. The word receipt which is now substituted for
realisation is not likely to require any judicial interpretation. Cases of the character noted
below which turned upon the word realisation are not likely to arise under the present
section; so clear is the meaning of the word receipt.

A, B and C held each a money-decree against the same judgment-debtor. In December

1892, A attached by a prohibitory order, funds of the judgment-debtor in the hands of D .
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1961 In January 1893, B attached the same funds in execution of his decree. In February
1893, D paid the funds into court. On the same day, but after payment was made into
court, C applied to attach the fund as property in the custody of the court (O 21, r 52, Code
of Civil Procedure 1882, s 272 ). It was held under s 295 of the Code of Civil Procedure 1882
that the funds should be rateably distributed between A and B , and that C was not entitled
to participate therein, as his application was made subsequent to the realisation of the
assets by the court. 1962 The decision would be the same under the present section for it is
quite clear that C s application was made after the receipt of the assets by the court.

It was held under s 295 of the Code of Civil Procedure 1882 that where property is sold in
execution of a decree, the sale-proceeds are deemed to be realised not when the 25 percent
is deposited by the purchaser into court under s 306 (now O 21, r 841), but when the
balance of the purchase-money is paid. 1963 Hence, a decree-holder who applied for
execution before the entire amount due from the purchaser had paid into court was held
entitled to share in the rateable distribution though the application was made after deposit
of the 25 percent. But, it was held that a decree-holder who applied for execution after the
entire amount of the purchase-money had been paid into court, was not entitled to share in
the rateable distribution, though his application was made before the sale was confirmed
by the court under s 312 (now O 21, r 921); and the decision was put on the ground that
the point of time when assets are realised is when the sale-proceeds are paid into court,
and not when the sale becomes absolute. 1964 The result would be same under the present
section if the word received is substituted for the word realised. 1965 Where the balance
purchase money was deposited into court by the purchaser before the time specified in O
21, r 85, the assets must be held to have been realised on the date of act ual deposit and
not the date within which it could have been deposited. 1966

Mere attachment of a fund in court does not amount to receipt of that amount by the
executing court. Therefore, decree-holders who apply for execution before the assets are
actually received, are entitled to rateable distribution. 1967

The Madras High Court held the view that where immovable property is sold in execution,
in separate parcels, the sale proceeds are not deemed to have been realised until the entire
purchase money in respect of all the parcels is paid into the court. 1968 This view was
followed at one time by the Calcutta High Court. 1969 But later on, the High Court changed
its view and held that where immovable property is sold in separate lots, the sale proceeds
are deemed to have been realised on the several dates on which they are received by the
court. 1970 As regards movables, the Lahore court had held that if the property consists
exclusively of movables, and they are sold in separate lots on different dates, the sale-
proceeds are deemed to be realised on the several dates on which they are received by the
officer of the court and not on the date on which the last payment is received. Thus, if
some of the movables are sold and the price thereof is received on January 5, and the rest
are sold and the price thereof is received on January 10, a decree-holder who applies for
rateable distribution on January 7 is entitled to rateable distribution of the sale-proceeds
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realised on January 10, but not of those realised on January 5. 1971 Assets in this section
mean money. Where certain National Savings Certificates were attached on 20 September
1950, and cashed on a creditor who had attached the certificates on 14 December 1950 he
was held entitled to participate in the distribution. 1972

Where property is sold in execution by a person appointed by the court under O 21, r 65,
the receipt of purchase-money by such person is for the purposes of this section
equivalent to receipt of assets by the court. The material date, therefore, is not the date on
which the court receives the amount of the purchase-money from such person, but the
date on which such person receives the purchase-money from the purchaser. 1973

When property which is attached in execution of decrees of several courts, is sold by a

court of inferior grade and the sale-proceeds are transferred to the court of highest grade
for rateable distribution, the date of receipt of assets is the date when the sale-proceeds are
received by the latter court. 1974 If property is attached in execution of decrees of several
courts and is sold by the court of superior grade, it is sufficient if execution applications to
the inferior courts are made before the receipt of sale proceeds by the superior court and
such applicants are entitled to rateable execution. 1975 A filed a suit in court X and attached
before judgment, movables belonging to the defendant B. C filed a suit in court X against
B and also attached the same movables before judgment. The movables being perishables
were sold and the sale proceeds deposited in court X . Thereafter, both the suits were
decreed. A applied for execution on 27 January 1948 and C on 7 February 1948. On 20
March 1948, the court ordered the payment of the entire amount to A. It was held by the
High Court of Bombay, reversing this order that the assets must be taken to have been
realised by the court only on 20 March 1948, when it passed an order for payment in the
execution application and that in consequence, C , who had applied for execution earlier
was entitled to rateable distribution. 1976 If court A attaches the proceeds of a sale held by
the collector and directs the collector to send the sale-proceeds to itself, and the collector
sends the proceeds not to court A but to court B , there is no constructive receipt of assets
by court A . 1977

When a decree-holder is given leave to bid and set-off at a court-sale, there is a receipt of
assets when the sale takes place. 1978 In such a case, the decree-holder purchaser must
share the proceeds of the sale rateably with the competing decree-holders. 1979 As set-off
takes effect on the date of sale, it is only those decree-holders who had applied for
execution before sale that would be entitled to share in distribution. 1980 Accordingly,
where a decree-holder is permitted to bid and set-off and the amount of the bid is less than
the decretal amount, the subsequent applicant, though applying immediately after the sale,
is not entitled to the benefit of this section. 1981 The court, ordering rateable distribution,
may make an order for the refund of the proportionate amount to he enforced by
summary process in execution. 1982

Permission granted to decree-holder to bid for attached property in Court auction sale and
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to set-off purchase money towards amount due under decree as provided under O 21, r 72
of the Code, is subject to provision of rateable distribution under s 73. The auction
purchaser/decree-holder is liable to deposit portion of that purchase money for rateable
distribution amongst other decree-holders. 1983

Where the executing court and the custody court are the same, the money realised by a
decree-holder even after application has been made for rateable distribution, must be
distributed rateably. 1984 Where the executing court and the custody courts are the same,
realisation takes place on the court passing an order directly or impliedly as custody court,
transferring the amount to the credit of the decree under execution. 1985 And even when
the court in which the money is in deposit and the court executing the decree are the same,
until there is an order transferring the fund to the execution case, there is no receipt of
assets and decree-holders who have applied for execution before the transfer are entitled
to participate in the distribution. 1986

(a) Sale by Collector. Where the sale is held by the collector, the application for execution
must be made before the sale-proceeds are received by him, though he may send the sale-
proceeds to the court under sch III, cl 9, at a later date. 1987

(b) Sale in Execution of Mortgage Decree. In the case of a sale in execution of a mortgage
decree, the words prior to the sale in cl (c) show that the receipt of the assets is the date of
the sale and not the date when the money is act ually received. 1988

9. Assets held by a Court.

(a) Payment Out of Court. Far more important than the change effected by the word receipt is
the change introduced by the omission of the words whenever assets are realised by sale or
otherwise in execution of a decree, and the substitution therefor of the words where assets
are held by a court. The Code of Civil Procedure contemplates the court receiving certain
assets and then proceeding to hold them. The language of the section does not admit any
limitation to the words assets held by a court. Therefore, even where money is deposited in
a court for the discharge and satisfaction of a particular decree, it is not that decree-holder
alone who will be entitled to that money. Other decree-holders, whose applications for
satisfaction of their money-decrees are pending before that court, have the right to share it.
1989 Money paid by a garnishee to the Sheriff are assets received and held by the court

although the judgment-debtor obtains a stay order directing the money to remain in the
Sheriffs hands. 1990 So also, money paid in court under the first proviso to O 21, r 83 is
asset held by the court. 1991 The words held by the court coupled with the word realisation
which occurs later on in the section, include, it is submitted, several kinds of assets which
were held not liable to rateable distribution under s 295 of the Code of Civil Procedure
1882. A right to rateable distribution is conditional upon there being assets in the hands of
the court. Hence, where the decree-holder, who attaches the property of a judgment-
debtor in execution of his decree, purchases the same by private treaty with the latter, in
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satisfaction of his decree before the sale of the property by the court, there are no assets
held by the court. 1992 A decree, in favour of the judgment-debtor, which is liable to be
extinguished by being set-off against a cross decree against the judgment-debtor cannot
amount to assets held by the court within the meaning of this section if the right of set-off
has been exercised. 1993 If a surety against whom execution has been taken out pays the
amount out of court to the decree-holder, there is no receipt of any asset by the court. 1994

(b) Payment by Cheque. Where, in the course of execution proceedings, a payment was made
by a garnishee by cheque in favour of the court and the same was returned for correction
and a fresh cheque was sent for the correct amount, there was a receipt of assets only
when the new cheque was accepted. 1995

(c) Assets Recovered from Surety. The liability of the surety is coextensive with that of the
judgment-debtor. Hence, assets obtained in execution of a decree from the surety of the
judgment-debtor cannot be rateably distributed to the holder of another decree against the
judgment-debtor as the surety is not the judgment-debtor of such decree-holder and had
not undertaken to stand surety for both the decrees. 1996 But according to the High Court
of Rajasthan, although a surety of a judgment-debtor is not a judgment-debtor within the
strict meaning of s 2 (10), the liability sought to be enforced against him, by reason of the
decree having been passed and his principal having failed to discharge it, is the same as that
of his principal. Accordingly, the liability of the surety is not a distinct and separate liability
and the surety of the judgment-debtor is not a different judgment-debtor to whom this
section would not apply. 1997

(d) Undivided Hindu Coparcenery: Rateable Distribution. Where the share of an undivided Hindu
coparcener in the joint family is attached during his lifetime and sold in execution of a
decree passed against him, the proceeds of such sale are available for rateable distribution
under this section only among such creditors, who have attached the share of the
coparcener during his lifetime in execution of their decrees against him. 1998

10. Assets available for rateable distribution. Assets held available for rateable
distribution under s 295 were:
(a) sale-proceeds of property sold in execution of a decree; 1999 and
(b) assets realised otherwise in execution of a decree. These words were held to mean
assets realised from the property of the judgment-debtor by such modes as those
prescribed by s 291 (O 21, r 69), s 305 (O 21, r 83) and s 322 (sch III, paras 2 and
7). 2000

This was explained in decisions as meaning assets realised in one of the modes expressly
prescribed by the sections of the Code. 2001 The following were held to be assets of this
class:
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(i) debts attached under s 268 (now O 21, s 461 ) and paid into court by the garnishee;
2002

(ii) rents of property under attachment realised by a receiver appointed under s 503
[now s 51, cl (d)] at the instance of the decree-holder. 2003 (The appointment of a
receiver by the court in such a case is a process of execution);
(iii) money in the custody of a public officer attached under s 272 (now O 21, r 52) and
paid into court by that officer; 2004
(iv) money realised in execution of a decree held by the judgment-debtor against
another, where such decree is attached and realised under O 21, r 53 (Code of Civil
Procedure 1882, s 273 ); 2005
(v) money paid under O 21, r 69, to the officer conducting the sale to stop the sale; 2006
(vi) money raised by the judgment-debtor by private alienation under O 21, r 83, and
paid into court; 2007
(vii) the deposit of 25 percent paid by a defaulting execution purchaser which has not
under O 21, r 86, been forfeited to government. 2008

11. Assets not available for rateable distribution. Assets not realised by sale or
otherwise in execution of a decree were not liable to rateable distribution under s 295.
Following are instances of assets held not to be realised by sale or otherwise in execution
of a decree within the meaning of s 295, and therefore not subject to rateable distribution.

In these cases, all decided under the present section, 2009 it was held that the moneys held
by the court were not assets available for rateable distribution within the meaning of the
section:

ASorabji v. Kala . 2010 Money paid into court by a judgment-debtor under O XXI, r 55(a) 2011
for payment of the amount due to the decree-holder at whose instance the property was
attached has been held not subject to rateable distribution under this section (this is the
same as case B above). Sir Basil Scott CJ, said:

In the reference to the costs of realisation, we have an indication that the legislature
contemplated that the assets referred to should be assets held in the process of execution.
If we were to hold that money paid into court under O XXI, Rule 55, was assets held by
the court within the meaning of Section 73, we should be only nullifying the provisions of
Rule 55; for, there would no inducement to any judgment-debtor to procure a payment
into court of the amount of the claim of his attaching creditor if the money could at once
be absorbed by rateable distribution amongst a number of other creditors.

This assumes that the word realised means realised by sale or other process of execution
expressly prescribed by the Code of Civil Procedure. It is submitted, with respect, that the
words sale or otherwise which occurred in s 295 of the Code of Civil Procedure 1882
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having been omitted in the present section, the interpretation put upon those words in
previous cases 2012 can no longer govern cases arising under the present Code. All that is
necessary under the present Code of Civil Procedure is that :
(i) there should be assets held by the court; and
(ii) that such assets should have been realised or obtained in execution proceedings.

It cannot possibly be said that moneys paid into court by a judgment-debtor under stress
of execution under O 21, r 55 (a), are not assets obtained in execution proceedings. It is
indeed difficult to see how this view of the section nullifies the provisions of O 21, r 55;
for money paid into court under r 55 may be held to be assets subject to rateable
distribution, and yet full effect may be given to r 55. There is no reason why because a
particular payment may operate to release the person (see case B ) or property of a
judgment-debtor from attachment, that payment should be applied for the benefit
exclusively of the decree-holder at whose instance the person or property of the judgment-
debtor was attached. Moreover, the object of O 21, r 65, is not to afford any inducement
to a judgment-debtor as supposed by the court in Sorabji v. Kala. All that O 21, r 55, says is
that the circumstances mentioned in cll (a), (b) and (c) of that rule shall have the effect
indicate in the rule. As to the argument based on the costs of realisation, it cannot,
possibly, be said that no costs were incurred in obtaining the moneys from the judgment-
debtor. The decision in Sorabji v. Kala has been disapproved by the High Court of Madras.
2013 It has also been disapproved by Pratt J, in a later Bombay case Nathma1 v. Maniram .
2014 As to the first of the two grounds on which the decision in Sorabji v. Kala was based,

namely, that the money was not realised in process of execution, Pratt J, said that it
followed the cases decided on the words sale or otherwise, which were held to mean sale
or other process of execution expressly provided for in the Code of Civil Procedure, but that it
was too restrictive a construction under the amended section. 2015 As to the second
ground, namely, that to allow rateable distribution of money paid into court under O 21, r
55 would be to nullify the provisions of r 55, the learned judge said:

I also venture to doubt the correctness of the second reason. Order XXI, rule 55, operates
effectively where there is one decree-holder. If there are a number of decree-holders, there
is no scope for the rule, for the judgment-debtor has no motive for paying off one
judgment-creditor when the same property is liable to be re-attached by the others. To
allow one decree-holder to be paid off in full when the property is insufficient to discharge
other judgment debts might possibly be undue preference and defeat the object of the
section which is equal distribution of all the moneys received in execution. Again, why
should a judgment-creditor, whose attachment has been removed under Order XXI, rule
55, be in a better position than a judgment-creditor who has taken the trouble of bringing
the property to sale. Lastly, if the money paid under Order XXI, rule 55, to remove an
attachment is not available for rateable distribution, than a fortiori money paid to stop a sale
under Order XXI, rule 83, would also not be so available. But even under the old section it
was assumed by Sir Charles Sargent in Purshottamdas s case that money paid to stop a sale is
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available for rateable distribution. So that the interpretation put upon the section in Sorabji
v. Kala makes the new section more restrictive than the old one, and this is not what the
Legislature intended.

The decision in Sorabji v. Kala has also been dissented from by the Calcutta High Court in
Noor Mahomed v. Bilasiram . 2016 In that case Rankin J, said:

The money, paid with whatever motive, if paid to the court, is paid upon terms of the
Code whatever they may be. These terms, as I read section 73, have been laid down so that
distinctions in the form in which execution has been had, in the precise extent to which
execution has been allowed to run, in the exact source or genesis of the fund in court, are
now no part of the definition of the assets that are subject to distribution rateably. The
object of the new Code is to avoid anomaly. To introduce a distinction on the strength of
the voluntariness of the payment or the purpose of the debtor, is I think to cut down the
language and intention of the Code upon a principle which is inapplicable to the subject-
matter and which if applicable is very difficult to imply.

The same view has been taken in later decisions of the same court. 2017 The view taken in
Sorabji s case has not been accepted by the Patna High Court. 2018 The Nagpur Court has
held that money paid under coercive process is available for rateable distribution. 2019 In a
later Bombay case, 2020 Mjrza J, refused to follow the opinion of Scott CJ, in Sorabji v. Kala
on the ground that it was obiter. However, in a later decision, 2021 Beaumont CJ relying on
Sorabji s case observed:

It seems to he clear that if a court receives money on terms that it is to be applied for
payment of debt of A, it cannot apply the money in payment of the debt of B . The court
cannot commit what would be in substance a breach of trust. The general principle above
mentioned was laid down by a Division Bench of this court in Sorabji v. Kala. The actual
decision has been dissented from in some other High Courts...but the general principle has
not, I think, been dissented from.

In a Madras case referred above, 2022 it was held that moneys paid into court under O 21, r
83(2), were assets liable to be distributed rateably within the meaning of this section. In the
course of the judgment, however, the learned judges went to the length of observing that
the assets referred to in the present section need not be assets obtained in execution
proceedings. This indeed is an extreme view and it was dissented from Pratt J, the learned
judge holding that the reference to the costs of realisation and the position of the section
in the Code of Civil Procedure at the end of Pt II on Execution led irresistibly to the
conclusion that the assets to be available for rateable distribution must have been obtained
in execution. 2023 The view taken by Pratt J, is, it is submitted, correct. A year later Rankin
J, took much same view as Pratt J. 2024 The learned judge said:

If for example a defendant is made to pay into court the amount of the plaintiffs claim as a
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condition of getting an adjournment it does not follow from my reading of section 73 that
other creditors could claim to share. Nor could they under Order 21, rule 52, where funds in
court are themselves the subject matter of the execution.

BEbji Umersey v. W&A Graham & Co. 2025 Money paid by a judgment-debtor under arrest
under s 55, proviso 4, to the officer arresting him in order to secure his release is not an
asset subject to rateable distribution. Justice Macleod J., said: It appears that the section
was only intended to apply to assets realised by the sale of property attached.

This view of the section, it is submitted, is not correct. If this view were correct, money
paid to stop a sale under O 21, r 69, and money raised by private alienation under O 21, r
83, would not be assets subject to rateable distribution. But even under the old s 39 A it
was assumed by Sir Charles Sargent in Purshotamdas s case that such moneys were available
for rateable distribution. It cannot possibly be said that the present section is more
restricted in its scope than the old section. 2026

CNathmal v. Maniram 2027 A obtained a decree for money against B and in execution of the
decree took out a warrant for attachment of the movable property of B under O 21, r 43.
The bailiff entered B s shop and showed the warrant to B and pointed out that if the
money were not paid he would seize and keep in his custody the movable property in his
shop. B then paid the decretal amount and costs of execution and Sheriffs poundage.
Upon these facts, Pratt, J expressed the opinion that the money having been paid under
stress of the warrant 2028 and the warrant being a process of execution, the money was an
asset available for rateable distribution within the meaning of the present section. The
learned Judge, however, felt bound by the decision of the Appellate Court in Sorabji v. Kala
, and held that the money was not subject to rateable distribution.

DGhisulal v. Todarmull. 2029 In a money-suit by A against B , B s property was attached

before judgment, and then released on C standing security for the amount of the claim.
The suit was ultimately decreed, and a applied for execution, whereupon C deposited the
amount of the decree in court. On that very day, just before the deposit was made, D ,
another decree-holder, applied for execution of his decree. It was held that the moneys
deposited by the surety were assets held by the court within the meaning of this section
and D was entitled to rateable distribution.

EFor other cases see. Order 21, r 52, notes: Priority.

Order 21, r 72, notes: Amount due on the decree.

Order 21, r 83, notes: Rateable distribution.

Order 211, r 89, notes: For payment to the decree-holder rateable distribution.
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Order 38, r 2, note: Rateable distribution.

Compensation under Land Acquisition Act, 1894. Compensation deposited by the collector in
court under s 31 of the Land Acquisition Act, 1894, has been held to be assets held by the
court.2030

12. Decrees for the payment of money. It is only the holders of decrees for the payment
of money that are entitled to rateable distribution. The expression decree for the payment
of money is illustrated by the following cases:

(i) A decree for the payment of mesne profits is a decree for the payment of money within
the meaning of this section, notwithstanding that the amount of mesne-profits has not yet
been ascertained. The holder of such a decree, who has applied for attachment under O
21, r 42 (Code of 1882, s 255 ), is entitled to a rateable distribution with other decree-
holders under this section. 2031

(ii) A decree upon a mortgage, which enables the mortgagee to realise the amount of the
mortgage-debt from the mortgaged properties and from the defendants personally was
held to be a decree for the payment of money within the meaning of the old section by the
High Court of Calcutta in Hart v. Tara Prasanna Mukherji . 2032 In that case the court said:

Every decree, by virtue of which money is payable, is to that extent a decree for money
within the meaning of the section, even though other relief may be granted by the decree
eg, sale of mortgaged property; and the holder of such a decree is entitled to claim rateable
distribution with holders of decree for money only. 2033

Following these observations, the High Court of Madras held that where a decree upon a
mortgage directs the mortgagor to pay the mortgage debt to the mortgagee within the
period fixed by the court, and provides that in default the mortgaged property should be
sold, and the balance (if any) should be recovered from the mortgagor, the decree was one
for the payment of money within the meaning of the old section. 2034 In subsequent cases,
however, which turned upon the meaning of the expression decree for the payment of
money which occurred in s 230 of the Code of Civil Procedure 1882 (now s 481 ), the
High Court of Calcutta dissented from the Madras decision on the ground that the decree
in that case was not similar to the decree in Hart v. Tara Prasanna Mukherji the decree in the
latter case containing a distinct order upon the mortgagor personally, to pay the amount of
the mortgage-debt. 2035 The decree in those cases was similar to the decree in the Madras
case, and it was held that the decree was not a decree for the payment of money within the
meaning of s 230 of the Code of Civil Procedure 1882. The decision, it seems, would have
been the same if the court had been called upon to interpret the same expression in s 295
of the Code of Civil Procedure 1882, and the observations in Hart s case set out above
would have been regarded as mere obiter dicta. The Allahabad decisions, bearing on the
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expression decree for the payment of money in s 230 of the Code of Civil Procedure 1882,
are also to the same effect. 2036 There is little doubt that if these High Courts were called
upon to decide whether a decree of the character in the Madras case was a decree for the
payment of money within the meaning of this section, they would hold that it was not. In
any event, the Madras decision cannot be sustained under the Code of Civil Procedure: see O
21, r 20. The High Court of Lahore had held that a mortgage decree passed under the
provisions of O 34, which directs that the amount due to the decree-holder shall first be
paid out of the sale-proceeds of the mortgaged property, is not a personal decree in the
first instance, even as regards costs which are directed to be recovered in the first instance
from the mortgaged property. 2037

(iii) A decree directing the payment under s 90 of the Transfer of Property Act, 1882 (now
O 34, r 6) of the balance of the mortgage-debt remaining due after payment to the
mortgagee of the net proceeds of the sale of the mortgaged property is a decree for the
payment of money within the meaning of this section.2038

(iv) A decree directing the payment of money by a person does not cease to be a decree for
the payment of money so far as that person is concerned. Merely because it directs, as
against another person, the realisation of the money claim from mortgaged property. Thus,
a decree against A , B and C , which, so far as A and B are concerned, is a decree for the
enforcement of a mortgage by sale of their property, but which does not direct the sale of
any specific property belonging to C , is as regards C , a decree for the payment of money.
2039

(v) A judgment entered up under s 86 of the Insolvent Debtors Act is a money-decree. 2040

(vi) Under s 73 of the Code of Civil Procedure, sharing in the sale proceed is permissible only if
a person seeking such share has obtained a decree or an order of an adjudication from the
tribunal and has also complied with other conditions laid down under s 73. 2041

(vii) The question was whether the auction-purchaser was liable to meet the liability of old
consumer of electricity to the premises which was purchased by him in the auction-sale
from the State Financial Corporation under s 29 (1) of the State Financial Corporation Act,
1951. The Honble Supreme Court held that where premises come to be owned or
occupied by the auction purchaser, when such purchaser seeks supply of electricity energy
he can not be called upon to clear the past arrears as a condition precedent to supply.
There is no charge over the property.2042

13. Same Judgment-debtor. The provisions of this section do not apply unless the
judgment-debtor is the same. Where the holder of a decree against two or more persons
applies for a rateable distribution of the assets realised from property belonging to one of
such persons, the application is one for the execution of the decree against the same
judgment-debtor.
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ILLUSTRATION

X obtains a decree against A , and attaches A s property in execution of the decree. Y ,

who holds a decree against A and B , applies for execution of his decree by attachment and
sale of A s property attached in execution of X s decree. Y is entitled under this section to
share in the proceeds of the sale of A s property; it is immaterial that Y s decree is against
B also and that the decree might have been separately executed against B. 2043

Similarly, where the holder of a decree against one person applies for a rateable
distribution of the assets of that person realised from property belonging to that person
and another, such application is an application for the execution of a decree against the
same judgment-debtor

ILLUSTRATION

X obtains a decree against A , B and C , and attaches in execution of the decree certain
property belonging to A , B and C jointly. Y holds a decree against A alone. Y is entitled
under the provisions of this section to a proportionate distribution of the assets realised by
the sale of the joint property so far as they represent the share of A in that property.
Similarly, if Y held a decree against A and B , he would be entitled to a rateable distribution
of the assets so far as they represented the share of A and B in the property. 2044 These
were decisions under s 295 of the Code of Civil Procedure 1882. They have been followed
under the present Code of Civil Procedure. 2045 In Balmer Lawrie & Co. v. Jadunath , 2046 it was
doubted whether the earlier decisions were affected by the introduction in the present
section of the word passed which did not occur in the Code of Civil Procedure 1882. In Hoti
Lal Chatura Prasad , 2047 there is a discussion as to the result of the use of the word passed.

(a) Decree against a Firm and its Partners Individually. The High Court of Calcutta has held that
a decree passed against a firm, is in effect, a decree against the partners individually. The
decree-holder under such a decree is entitled to apply for rateable distribution in execution
proceedings started by another decree-holder against the partners individually. 2048 The
High Court of Mysore has also taken the same view. 2049 A decree-holder who has
obtained a decree against a partner individually served or had obtained leave under O 21, r
50(2) is entitled to rateable distribution with a decree-holder who had obtained a decree
against him personally. 2050 It has been held by the High Court of Madras that a decree
against the partners of a firm and a decree against the partners in their individual capacity
are not decrees against the same judgment-debtor within this section. 2051 And that is also
the view of the Punjab High Court which has held that for s 73 to apply, there must be not
only identity of judgment-debtors but also identity of capacity or interest. 2052

(b) Decree Against Legal Representatives of Judgment-debtors. The High Courts of Bombay,
Rangoon and Calcutta have held that if a decree is obtained by X against B and by Y after
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B s death against B s legal representative, the judgment-debtor is not the same and the
present section does not apply. 2053 That was also the view of the Madras High Court at
one time. 2054 But a full bench of the same High Court has subsequently taken the
opposite view 2055 and the Allahabad High Court has recently agreed with the Madras Full
Bench. 2056 Following the full bench ruling, the Madras High Court has held that a decree
obtained against two persons [eo nominee as members of the family and as against family
properties and another decree obtained against one of them as manager of the joint family
are against the same judgment-debtor. 2057 It has been held by the Bombay High Court
that the expression same judgment-debtor should be construed liberally and that:
(i) a decree obtained against M ;
(ii) a decree passed against the legal representatives of M in a suit instituted against him;
and
(iii) a decree obtained against the legal representatives of M in a suit instituted against
them after his death were all against the same judgment-debtor. 2058

A Full Bench of Bombay High Court has held that a decree-holder who had obtained a
decree against a Hindu father (governed by the Mitakshara law) alone is entitled to rateable
distribution in the entire assets realised in execution of a decree obtained against the father
and his undivided sons. 2059 There is a dictum in a Calcutta case 2060 that a decree against a
defendant personally and a decree against the same defendant in a representative-character
are not decrees against the same person; but the observation was not intended as a
considered decision. The High Court of Calcutta has subsequently held that if a decree is
obtained against a person as heir of a deceased person and another decree is passed against
him in his personal capacity, the two decrees are against the same judgment-debtor within
the meaning of this section. 2061

In Lakshminarayana Devasthanam v. Khande Rao , 2062 it was held that a decree under which
the judgment-debtor was personally liable and a decree under which properties inherited
and possessed by him as heir and legal representative were liable were not against the same
judgment-debtor as the character of the defendant in both the suits was different and that
what was relevant for the application of the section was the nature of the decree and not
the identity of the property liable under the decrees. It has been held by the Madras High
Court that a decree against a widow as heir and one against her on a personal claim are
both against the same judgment-debtor. 2063 In Ramzan Khan v. Hiralal , 2064 it was
observed that the stress was more on the identity of the properties than the identity of the
judgment-debtor. A obtained a decree against B and in execution thereof attached cattle
belonging to him. The attachment was raised on C executing a surety bond. A then started
proceedings in execution against C. D obtained a decree against B and in execution of his
decree, the cattle were attached and sold. It was held that A was entitled to rateable
distribution as, though his execution was against the surety C , the liability of the latter was
that of the judgment-debtor under the decree and not one independent of it. 2065
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14. Clauses (A), (B) and (C). The first paragraph of this section and cll (a) and (b) have
reference to sales in execution of simple money-decrees. Clause (a) declares the
incompetence of the mortgagee of incumbrancer as such to share in any surplus proceeds
when property is sold subject to his mortgage or charge. But the alternative is afforded to
him by cl (h) of consenting to the property being sold free of his mortgage or charge, in
which case the court may give him the same right against the sale-proceeds as he had
against the property. 2066 Clause (c) has reference to a sale in execution enforcing an
incumbrance; but in distributing the sale-proceeds the discharge of subsequent (and not
prior) incumbrances is alone taken into account; 2067 but no payment can be made to a
subsequent incumbrancer if the mortgagor challenges its existence or validity. 2068 Where
there is a charge over a property in favour of the plaintiff for payment of the decretal
amount which gives him liberty to apply for sale of that property for the discharge of the
incumbrance is sold and its sale-proceeds are held by the court, such sale-proceeds must be
applied in the first instance in discharging the amount due to the plaintiff and the balance
left over distributed to other decree-holders applying for rateable distribution. 2069
Similarly, where a property is sold in execution of a decree in favour of a mortgagee, the
next preference, if there is excess after satisfying that decree, should be in favour of a
second mortgagee and the balance should be used for rateable distribution amongst simple
money-decree-holders. 2070 In cases coming under cl (c), the application for execution
must be, made prior to the sale of the property. 2071

A curious use was sought to be made of cl (b) in the following case:

B mortgaged property to A. A sued to enforce the mortgage, but the court holding that B
had no title to the property granted A simple money-decree. A filed an application to
execute the money-decree. During execution proceedings B became entitled to the
property by succession. A believed that under s 43 of the Transfer of Property Act, 1882 the
mortgage had become effective. He, therefore, withdrew his application and filed another
application for execution by way of realisation of his supposed charge under s 43. This
was, of course, disallowed as the decree was a simple money-decree. He then sought to
treat his application as an application for attachment and sale of the property reserving a
charge in the sale-proceeds under s 73 (1)(b). This, the court disallowed as it was diverting
the execution proceeding into an enforcement, not of a money-decree, but of a mortgage-
decree.2072 The court did not decide whether s 43 was at all applicable, but it may be noted
that s 43 does not apply after the contract of transfer has merged in a decree.

Where properties are sold in execution of a mortgage-decree, the right of the decree-holder
to be paid in full is not affected by the provision in the Madras Indebted Agriculturists
(Repayment of Debts) Act, 1955, that the decree amount might be paid, in instalments. 2073
In Ramgopal v. Dhannalal , 2074 the judgment-debtor in a mortgage suit effected a private
alienation of the hypothecation with the permission of the court and with the consent of
the decree-holder and deposited the decree amount into court. A claim for rateable
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distribution of this amount was made by holders of money-decree against the judgment-
debtor on the ground that the mortgage decree-holder could not claim to be paid in full
under s 73 (1) 2075 as there was no sale in execution of the decree. It was held repelling this
contention, that by consenting to the private alienation, the decree-holder had not
abandoned his rights under the mortgage-decree and that s 73 had no application as the
question did not arise between holders of money-decrees.

15. Claims for rateable distribution of assets. These claims are claims enforceable under
an attachment within the meaning of s 64. 2076 16. Attachment before judgment. A
decree-holder who caused property to be attached before judgment, is not entitled to share
in a rateable distribution of the sale-proceeds of that property, unless he makes, after
judgment, a fresh application for execution under O 21, r 11 (Code of Civil Procedure 1882, s
235 ], O 38, r 11 (Code of Civil Procedure 1882, s 490 ] does not touch the point (c). Where
moneys are deposited in court for cancelling an attachment before judgment, decree-
holders who attached it before decree is passed in the suit are entitled to rateable
distribution. 2077

17. Sub-section (2): Suit for refund. The scheme of this section is to enable the court, as
a matter of administration, to distribute the assets according to what may seem at the time
to be rights of parties without this distribution importing a conclusive adjudication as to
those rights, which may be subsequently readjusted in a suit brought under the penultimate
paragraph of the section. 2078 Such a suit is virtually a suit for money had and received, and
the period of limitation is three years from the date of the receipt of the assets by the
defendant. 2079 The suit being one for money had and received, it would be premature if it
were brought before the moneys were actually paid to the defendant. A mere order for the
payment of money under the section is not sufficient to found the act ion. 2080

Suit by Subsequent Mortgagee to Recover Balance of Money Realised by Sale in a Prior Mortgage.X
mortgages his property to A . He then mortgages the same property to B . Subsequently he
executes a further charge on the property in favour of A. A sues X on the first mortgage,
joining B as a defendant, and obtains a decree on the mortgage. The property is sold in
execution of the decree and a balance of Rs 12,000 which remains after satisfying A s
decree is deposited in court. A then obtains a decree for sale on further charge and in
execution of the decree draws out the balance deposited in court. B is not joined as a party
to this suit, nor is any notice given to him that A was drawing out of court, the balance of
Rs 12,000. B then sues A to recover the amount drawn out by A , that is, Rs 12,000. Such
a suit is not one under sub-s (2), and the period of limitation applicable to the suit is 12
years under Art. 132 of the Limitation Act, 1963. The suit is really one to enforce payment
of money charged upon immovable property within the meaning of that article.2081

18. Declaratory suit. Is a decree-holder claiming under this section entitled to file a suit
for a declaration that another decree-holder is not entitled to rateable distribution, and for
an injunction restraining him from receiving payment, before distribution of the assets by
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the court, or is he bound to wait until act ual distribution is made and then sue for a
refund? In a Madras case, 2082 Sadasiva Ayyar J, expressed the opinion that he is entitled to
sue for a declaration.

19. Inquiry into validity of decree. The judgment of the Privy Council in Shankar Sarup v.
Mejo Mal , 2083 makes it clear that the court distributing the assets is acting in an
administrative rather than a judicial capacity. The court, which is merely a distributive
agency, cannot deal with the question whether any decree has been obtained by fraud or
improper means as in an ordinary case of execution. The Courts of Calcutta, 2084 Madras,
2085 Bombay 2086 and Patna 2087 are agreed on the point, overruling some earlier decisions.

Nor can such court go into the question that the decree was invalid on the ground that the
court passing it had no territorial jurisdiction. 2088

20. Rights of Government not affected. A judgment-debt due to the government is

entitled to precedence in execution. 2089 here is no difference in this respect between
income tax and any other tax like sales tax due to the state 2090 nor does it affect the right
of the state to be paid in full, that it has not obtained a decree, because its claim rests on
the well-established principle recognised in sub-s (3) that Crown Debts are entitled to
priority. 2091 In Builders Supply Corpn v. Union of India , 2092 the Supreme Court held that the
Government of India was entitled to claim priority for arrears of income tax due to it from
a citizen over debts from him to unsecured creditors and that the English Common Law
doctrine of priority of Crown Debts has been given judicial recognition in the territory
then known as British India prior to 1950. Thus, that doctrine having been incorporated in
Indian law, it was a law in force in the territory of India and by virtue of Act 372(1) of the
Constitution it continued to be in force until it was validly altered, repealed or amended. 2093
However, in the absence of proof that it is so incorporated in the law of the erstwhile
Hyderabad State and such priority having been extended only to land revenue under s 104
of the Hyderabad Land Revenue Act, no such priority could be claimed in the case of
arrears of sales tax due to that state prior to its incorporation into the Indian Republic. 2094
But this priority exists only so long as the assets remain the property of the judgment-
debtor. When an order for rateable distribution is made, the title of the judgment-debtor to
the fund in court is extinguished and with that the right of the government to proceed
against it must cease, there being no question thereafter of priority. It was accordingly held
that where an order for rateable distribution had been made, a claim made thereafter by
the Certificate Officer under the Public Debts Recovery Act for payment out of the fund
in court was not maintainable. 2095 An attachment by the collector in independent
proceedings for the recovery of arrears permitted under s 46 of the Income Tax Act, (now Ss
222 of the Income-tax Act, 1961) is not sufficient for the purpose of enforcing the priority
before the executing court. It is necessary that the executing court should be moved by the
government, while the assets are still in the custody of the court as the property of the
judgment-debtor. But the governments claim for priority cannot be enforced against the
amount paid over to the attaching decree-holder before government made its application.
2096 If the state does not make an application for payment before the other attaching
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creditor takes away the amount it cannot later ask for payment, since no amount would be
left with the court for payment. 2097 The undermentioned cases may be referred to in
connection with sub-s (3) of this section. 2098 Two proceedings were going on, one before
the executing court at the instance of a creditor and the other before the insolvency court
at the instance of some creditors. The executing court passed an order for rateable
distribution of the amounts realised in auction sale of some immovable properties of the
judgment-debtor. It was held that the order of the executing court would not, in any way,
affect the proceedings of the insolvency court. All rights over the properties of the debtor
vested in the insolvency court after the admission of the insolvency petition and so the
question of applicability of principle of res judicata did not arise in the present state of facts,
if the application of the judgment-debtor or by the auction receiver as filed before the
executing court is rejected and they do not file any appeal or suit or proceedings against
the order. These applications would not affect the jurisdiction and the powers of the
insolvency court. 2099

Executing courts order for rateable distribution does not affect proceedings in insolvency
court. 2100 Debts due to the state are entitled to priority over all other debts. If a decree-
holder brings a judgment-debtor property to sale and the sale proceeds are lying in deposit
in court, the state may, even without prior attachment, exercise its right to priority by
making an application to the executing court for payment. If, however, the state does not
chose to apply to the court for payment of its dues from the amount lying in deposit in the
court but allows the amount to be taken away by some other attaching decree-holder, the
state cannot, thereafter, make an application for payment of its dues from the sale
proceeds since there is no amount left with the court to be paid to the state. However, if
the state had already effected an attachment of the property which was sold even before its
sale, the state would be entitled to recover the sale proceeds from whomever has received
the amount from the court from filing a suit. The prior attachment effected by the state,
similarly, fastens itself to the sale proceeds taken away by the decree-holder. The state is,
therefore, entitled to recover the amount from the decree-holder who has taken away the
amount. Section 73(3) read with s 73 (2) of the Code of Civil Procedure contemplate such a
relief being granted in a suit. 2101 As soon as the question of rateble distribution between
the decree-holders and the state having statutory priority is determined, and the court
passes an order as to how to appropriate the assets of the judgment-debtor, the rights of
the parties become crystallised and the moneys in question cease to be the property of the
judgment-debtor and become the property of the decree-holder, regardless of whether or
not actual payment pursuant to said order is made. The order partakes of the character of a
judgment and decree passed by the court. 2102

21. Attorneys lien. The section does not apply to a solicitors common law lien for costs.
That lien is not affected by the attachment of the decree. 2103 It has been held in Commercial
& Industrial Bank Ltd v. Mir Zarfaraz Ali Khan that the lien of an attorney or of a barrister
for fees is not entitled to priority outside the Presidency Towns of Bombay, Calcutta and
Madras. 2104
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22. Rights created by this section not affected by insolvency. An order made under
this section for rateable distribution is not affected by the insolvency of the judgment-
debtor subsequent to the making of the order. But the order will be confined in its
operation to the assets of the judgment-debtor realised up to the date of the order of
adjudication; assets realised after the date of the order of adjudication will vest in the
official assignee. 2105 Two proceedings were going on, one before the executing court at
the instance of a creditor and the other, before the insolvency court at the instance of
some other creditors. The executing court passed an order for rateable distribution of the
amounts realised in an auction-sale of some immovable properties of the judgment-debtor.
It was held that the order of the executing court would not, in any way affect the
proceedings of the insolvency court after the admission of the insolvency petition. The
question of applicability of the principle of res judicata did not arise in the present state of
facts, if the application of the judgment-debtor or by the auction receivers (filed before the
execution court) is rejected and if they do not file any appeal or suit or proceeding against
the order. These applications would not affect the jurisdiction and the powers of the
insolvency court. 2106

A Division Bench of the Kerala High Court has held that where the creditor could be
proceeded against under the Insolvency Act, a suit for administration is not maintainable
before the Civil Court. The Insolvency Act provides for Administration of the property of
the debtor. The Court may appoint an interim receiver and/or a receiver. The Insolvency
Act also provides for distribution of the property of the insolvent. The scheme of the
Insolvency Act shows that it is a complete Code in itself. The remedy of the creditor is to
initiate proceedings under the Insolvency Act and not through administration suit before
the Civil Court. 2107

23. Subsequent occupier not liable for previous electricity dues. Where the petitioner
was bona fide purchaser of cold storage in an auction sale under s 29 of State Financial
Corporation Act, and the electric supply to the cold storage was disconnected on account of
arrears outstanding against previous owner, the petitioner was held not liable for the dues
outstanding against previous owner.2108

24. Appeal. Prior to the Amendment Act, 1976, the position as regards orders passed
under this section was as follows:

An order made under this section is not appealable unless all the conditions enumerated in
s 47 are present. 2109 However, an order which decides a matter covered by s 47 (1) may,
although it be passed ostensibly under this section, be the subject of appeal. 2110 One of
those conditions is that the question decided by the court should be one which arose
between the parties to the suit, that is, between the judgment-debtor on the one hand and
the decree-holder on the other. 2111 Hence, an order made under this section determining a
question between two rival decree-holders, in which the judgment-debtor had no interest
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does not fall within s 47 and no second appeal lies from such order. 2112 But if the question
determined by the order arose not only between rival decree-holders, but also between the
judgment-debtor on the one hand and the decree-holder on the other, the order would be
within s 47, and would, therefore, be appealable. 2113 An order allowing or refusing a prayer
for rateable distribution is a judgment within cl 15 of the Letters Patent and is appealable.
2114 An order under s 73 deciding a question between rival decree-holders in which the

judgment-debtor has no interest, does not fall under s 47 and is not appealable. 2115

But in view of the deletion of the words within s 47 in s 2 (2) by the Amendment Act,
1976 and the order under this section being one enumerated in O 43, an order under this
section, even if it satisfies all the conditions of s 47, is not appealable.

25. Revision. As to revision, see the undermentioned cases. 2116

A revision is not possible, provided the conditions laid down in the amended s 115 are
satisfied.

1897 . See notes, Assets held by a court.

1898 . See notes, Before the receipt of the assets.
1899 . See notes, Same judgment-debtor.
1900 . Anakam Srinivasa Rao v. Ganga Venkateswara Rao , AIR 2003 AP 38 [LNIND 2002 AP 1070].
1901 . Boban v. sajith Kumar , AIR 2004 Ker 181 [LNIND 2003 KER 562] (DB).
1902 . Hasoon Arra v. Jawadoonnissa , (1879) 4 Cal 29.
1903 . Mohd Jan v. H. Abdul Satar , AIR 1971 Del 132 [LNIND 1970 DEL 225]: 73 Punj LR 253.
1904 . Kommachi v. Pakker , (1897) 20 Mad 107, 111.
1905 . (1901) 23 All 106, 110; Hoti Lal v. Chattura Prasad , AIR 1941 All 110; Himatmal Devchand v. Abdul , AIR 1945 Bom 76: 46
Bom LR 757.
1906 . Chunni Lal v. Jugal Kishore , (1905) 27 All 132.
1907 . Venkatachellam v. Subrahmaniam , AIR 1941 Mad 795 [LNIND 1940 MAD 198].
1908 . Chokkalingam v. Muthuswami , AIR 1934 Mad 426 [LNIND 1934 MAD 80]: (1934) 58 Mad 59.
1909 . Co-op. Society, Central Bank, Daryapur v. Ganpat , AIR 1935 Nag 214.
1910 . See O 12, r 6.
1911 . Ram Govind Pandey v. Brij Ratan Das , AIR 1937 All 424.
1912 . Gopalan v. Naniamma , AIR 1957 TC 107.
1913 . Ramakrishna Chetty v. Chinna Thangavelu Chetty , AIR 1956 Mad 574 [LNIND 1956 MAD 246]: (1956) 2 Mad LJ 101 : 69 LW 289.
1914 . Commercial and Industrial Bank Ltd. v. Mir Sarfaraz Ali Khan , AIR 1956 Hyd 65(FB) : (1956) ILR Hyd 79.
1915 . Hongkong & Shanghai Banking Corpn v. Paresh Lal Roy , AIR 1939 Cal 485: (1939) 1 Cal 40.
1916 . Damodar Das v. Kasi Prasad , AIR 1956 Cal 112 [LNIND 1956 CAL 11]; Indar Chand v. Ganshyam Missir, 9 Cal LJ 210 ; Khariulla Khan v.
Meeran Khan , AIR 1941 Nag 239; but see Himatmal Dev Chand v. Abdul , AIR 1945 Bom 76: 46 Bom LR 757.
 Page 27 of 32
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1917 . Boban v. Sajith Kumar , AIR 2004 Ker 181 [LNIND 2003 KER 562] (DB).
1918 . Krishna Shankar v. Chandra Shankar , (1881) 5 Bom 198; R.M. Pandey v. Md. Kazim , AIR 1939 Rang 20.
1919 . Jambanna v. Honnappa , AIR 1957 AP 1017 [LNIND 1956 AP 44]: 1956 Andh WR 1047; Peddi Reddi Gangaraju v. Mangamma , AIR 1958
Andh Pra 334; Surajlal v. P.R.K. Sagar Works , AIR 1961 All 371 [LNIND 1960 ALL 167]; Shyam Sundar & Co. v. S Vesaji & Co., AIR
1962 Mys. 12.
1920 . Anakam Srinawasa Rao v. Ganga Venkateswara Rao , AIR 2003 Andh Pra 38.
1921 . K. Suryavati v. T. Suryakantam , AIR 1984 AP 273.
1922 . Abdul Salam v. Veerabadra , AIR 1929 Mad 763 [LNIND 1929 MAD 104]: 57 Mad LJ 97 : (1929) Mad WN 611 : 30 LW 110.
1923 . AIR 1929 Nag 148.
1924 . AIR 1931 All 92.
1925 . AIR 1959 Cal 566 [LNIND 1958 CAL 121]: 63 Cal WN 983; Fulsinh Kesari v. Vallabhdas , AIR 1969 Guj 200 [LNIND 1968
GUJ 138]: 10 Guj LR 148.
1926 . Saraswathi Bai v. Govinda Rao , AIR 1961 MP 145 [LNIND 1960 MP 86]: (1961) Jab LJ 166.
1927 . K. Srinivasa v. Noor Mahomed , AIR 1970 Mad 504 [LNIND 1969 MAD 43].
1928 . Mangi Lal v. Thakurse Bhai , AIR 1954 Hyd 238: (1954) ILR Hyd 411; Manora Bai v. Sultan Bakath , AIR 1968 AP 113
[LNIND 1966 AP 147].
1929 . Chunilal v. Jugal Kishore, 17 All 132; Brij Ballap v. Hazarimal MBLJ , (1954) HCR 142.
1930 . Krishnaji v. Vishnu , AIR 1938 Bom 90.
1931 . Satyendranath v. Bibuthi Bhusan , AIR 1963 Cal 104 [LNIND 1962 CAL 100].
1932 . E. Subba Reddy v. G. Dhananjay , AIR 2007 AP 16 [LNIND 2007 AP 379]: 2006 (6) Andh LT 98 [LNIND 2006 AP 777].
1933 . Lyallpur Bank Ltd. v. Ramji Das , AIR 1945 PC 60: 72 IA 85 : (1945) 20 Luck 152 : 47 Bom LR 640.
1934 . Code of Civil Procedure 1882, s 235.
1935 . Krishnashankar v. Chandrashankar , (1881) 5 Bom 198.
1936 . Dhirendra Rao v. Virbhadrappa , AIR 1935 Bom 176: (1935) 59 Bom 310.
1937 . Gurudial Kaur v. Satindar Singh , AIR 1965 Punj 412: (1964) 2 Punj 233 : 66 Punj LR 1032.
1938 . V.T.V. Chettiar v. P.S.P. Chettiar , AIR 1973 Mad 313 [LNIND 1972 MAD 259]: (1973) 1 Mad LJ 316.
1939 . Kasiwar v. Aswini , AIR 1926 Cal 249.
1940 . Nanjunda v. Nallakaruppan , AIR 1928 Mad 496 [LNIND 1927 MAD 209]: (1928) 55 Mad LJ 120.
1941 . AIR 1933 Mad 627 [LNIND 1933 MAD 81]: (1933) 56 Mad 192.
1942 . Subbayamma v. Banagarraju , AIR 1961 Andh Pra 422, following Srinivasa v. Ramudu , AIR 1943 Mad 262 [LNIND 1942 MAD
332]: (1943) 1 MLJ 57 [LNIND 1942 MAD 332].
1943 . Nimbaji v. Vadia , (1892) 16 Bom 683.
1944 . Dhirendra Rao v. Virbhadrappa , AIR 1935 Bom 176: (1935) 59 Bom 310.
1945 . Clark v. Alexander , (1894) 21 Cal 200; Hari Bhagat v. Anandaram , (1897) 2 Cal WN 126; Bejoy v. Hukum , (1902) 29 Cal 773;
Girindra v. Kedar Nath , AIR 1925 Cal 966: (1924) 29 Cal WN 575.
1946 . Sarju Ram v. Partap Narain , AIR 1933 All 563: (1933) 55 All 622.
1947 . Kwai Tong Kee v. Lim Chaung , AIR 1928 Rang 157: (1928) 6 Rang 131.
1948 . Narasimhachariar v. Krishnamachariar , (1914) 26 Mad LJ 406.
1949 . Gourgopal v. Kamalkillika , AIR 1934 Cal 559: (1934) 61 Cal 240; Balmokand Ram v. Ram Saran , AIR 1936 Lah 519.
1950 . R.M. Pandey v. Mohd Kazim , AIR 1939 Rang 20.
1951 . Vishnubhotla Ramiah v. Sajja Namayya , AIR 1943 Mad 165 [LNIND 1942 MAD 228]: (1943) Mad 175; NML Chettiar Firm v. Official
Assignee , AIR 1935 Rang 135: (1935) 13 Rang 514.
1952 . Rajalakshmi v. Bonomali supra .
1953 . Ramavatar v. Sitaram , AIR 1944 All 245: (1944) All 321.
1954 . Varghese v. Parvathi , AIR 1953 TC 475: (1952) TC 746.
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1955 . Cherain v. Achiamma , (1961) Ker LJ 764 : (1961) Ker LT 531.

1956 . Ramanatha v. Alagan , AIR 1936 Mad 437: 70 MLJ 68 : 43 LW 703 : (1936) MWN 223.
1957 . Krishnaswami Iyengar v. Vedavali , AIR 1959 Mad 218 [LNIND 1958 MAD 17]: 72 LW 19.
1958 . Gulab Chand v. Dargamal , AIR 1936 Nag 277.
1959 . AIR 1956 Cal 373 [LNIND 1955 CAL 138]: 60 Cal WN 624 : 97 CLJ 164.
1960 . Byonkesh Chakravarthi v. Hemanth Kumar , AIR 1915 Cal 16: 18 Cal WN 1311; Bimala v. Direndra , AIR 1937 Pat 92.
1961 . Code of Civil Procedure 1908, O 21, r 46; Code of Civil Procedure 1882, r 268.
1962 . Srinivasa v. Seetharamayyar , (1896) 19 Mad 72.
1963 . Hafez v. Damodar , (1891) 18 Cal 242.
1964 . Vishvanath v. Virchand , (1882) 6 Bom 16.
1965 . Maharaja of Burdwan v. Apurba , (1911) 14 Cal LJ 50; Girindra Nath v. Kedar Nath , AIR 1925 Cal 966: (1924) 29 Cal WN 575.
1966 . Subramanya Iyer v. Sankaran Unni , AIR 1953 Tr & Coch 213 : (1953) Tr & Coch 56 : 1953 Ker LT 149.
1967 . Venilal Rangildas v. Gandha Bai , AIR 1952 Bom 222 [LNIND 1951 BOM 118]: 54 Bom LR 72; Imperial Bank of India v.
Balasubramaniam , AIR 1945 Mad 12 [LNIND 1944 MAD 172]: (1945) 2 Mad LJ 49.
1968 . Ramanthan v. Subramaniam , (1903) 26 Mad 179.
1969 . Barendra Nath v. Martin & Co., AIR 1921 Cal 801: (1921) 33 Cal LJ 7.
1970 . Girindra Nath v. Kedar Nath , AIR 1925 Cal 966: (1924) 29 Cal WN 575.
1971 . Surjan Singh v. Prag Das , (1918) PR No 33, p. 128.
1972 . Venkatasubbama v. Adinarayana , AIR 1954 Andh Pra 44.
1973 . Gulstaun v. Bonnerjee , (1917) 44 Cal 789.
1974 . Melarkodi Bank v. Damodaraswami Naidu , AIR 1950 Mad 34 [LNIND 1949 MAD 67]; Godavaribai v. Deekappa , AIR 1927
Bom 247: (1927) 29 Bom LR 319.
1975 . Dhirendra Rao v. Virbhadrappa , AIR 1935 Bom 176: (1935) 59 Bom 310.
1976 . Narain Ganesh v. Fatima , AIR 1952 Bom 70: (1952) Bom 83 : 53 Bom LR 821.
1977 . Ramanathan v. Chidambaram , AIR 1933 Mad 342 [LNIND 1933 MAD 22]: (1933) 65 Mad LJ 347.
1978 . Ballelal v. Manoharlal Guru , AIR 1944 Nag 295: (1944) ILR Nag 806; Ganga Ram v. Muktiram , AIR 1931 Pat 405: (1932) 11
Pat 250; Navaj v. Totaram , AIR 1931 Bom 252: (1931) 33 Bom LR 503; Shrinivas v. Radhabai , (1882) 6 Bom 570.
1979 . Navaj v. Totaram , AIR 1931 Bom 252: (1931) 33 Bom LR 503; Murgappa v. Ramaswamy , AIR 1935 Mad 893 [LNIND 1935
MAD 205].
1980 . Subramanya v. Sankaran Unni , AIR 1953 TC 213.
1981 . Thirumayee Ammal v. Palaniappa Gounder , AIR 1973 Mad 7 [LNIND 1972 MAD 17]: (1972) MLJ 117.
1982 . Bindeshwari v. Raja Kirtyanand , AIR 1931 Pat 359: (1931) 10 Pat 830.
1983 . E.P. Abdul Latheef v. K. Vinodan , AIR 2007 Ker 171: 2007 (1) Ker LT 960.
1984 . Chokkalingam v. Muthuswami , AIR 1934 Mad 426 [LNIND 1934 MAD 80]: (1934) 58 Mad 59.
1985 . Imperial Bank of India v. Balusubramania , AIR 1945 Mad 412.
1986 . Ananda Rao v. Motilal , AIR 1962 MP 217.
1987 . Dattatraya v. Pundlik , (1920) 22 Bom LR 1001 [LNIND 1920 BOM 33]; Narhar v. Lahanu , AIR 1937 Nag 16.
1988 . Jamnadas v. Bai Soonabai , AIR 1932 Bom 622: (1932) 34 Bom LR 1405.
1989 . Vijay Raj v. Lal Chand , AIR 1966 Raj 194: (1966) 16 Raj 427.
1990 . Mohant Murlidhar v. Baijnath , AIR 1930 Cal 623: (1930) 57 Cal 736.
1991 . Ramanath Panda v. Damodar Sahu , AIR 1950 Ori 230: (1950) ILR Cut 208.
1992 . Kedarwati v. Radhey Lal , AIR 1937 Pat 609.
1993 . Mahalingam v. Ramanathan , AIR 1940 PC 173: (1940) 42 Bom LR 1116 (PC).
1994 . Dinanath v. Mathura Das , AIR 1951 Raj 377: (1951) Raj LW 353.
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1995 . Re Frank Morton Fisk , AIR 1956 Cal 656 [LNIND 1954 CAL 180].
1996 . Sakharam v. Mahadeo , AIR 1940 Nag 79.
1997 . Vijay Raj v. Lal Chand , AIR 1966 Raj 194: (1966) 16 Raj 427.
1998 . Urban Co-opn. Bank Ltd. v. Hanavar Havik, Co-op. Bank Ltd., AIR 1940 Bom 190: 42 Bom LR 218.
1999 . Prosonnomoyi v. Sreenath , (1894) 21 Cal 809.
2000 . Purshotamdas v. Surajbharthi , (1882) 6 Bom 588; Gopal Dai v. Chunni , (1886) 8 All 67; Vibhudhapriya v. Yusuf , (1905) 28 Mad
380.
2001 . Sew Bux v. Shib Chunder , (1886) 13 Cal 225, 229; Prosonnomoyi v. Sreenath , (1894) 21 Cal 809, 817; Vibhudhapriya v. Yusuf ,
(1905) 28 Mad 381.
2002 . Sarabji v. Govind , (1892) 16 Bom 91.
2003 . Fink v. Bahadoor Singh , (1899) 26 Cal 722.
2004 . Manilal v. Nanabhai , (1904) 28 Bom 264; Narsing Das v. Gulab Rai , AIR 1935 Pat 201.
2005 . Amara v. Annamala , (1908) 31 Mad 502.
2006 . Purshotamdas v. Surajbharathi , (1882) 6 Bom 588.
2007 . Purshotamdas v. Surajbharthi supra; Thiraviyam v. Lakshmana , (1918) 41 Mad 616.
2008 . Sree Mahant Prayaga v. Paja of Kalahasti , AIR 1926 Mad 872 [LNIND 1925 MAD 298]: (1926) 49 Mad 570.
2009 . For cases under the Code of 1882, see the previous edition of this book.
2010 . (1911) 36 Bom 156 : 12 IC 911.
2011 . (Code of Civil Procedure 1882, s 275.
2012 . Purshotamdas v. Surajbharthi , (1882) 6 Bom 588; Sew Buse v. Shib Chander , (1886) 13 Cal 225; Prosonnomoji v. Sreenath , (1894) 21
Cal 809; Vibhudhapriya v. Yusuf , (1905) 28 Mad 380.
2013 . Thiravayam v. Lakshmana , (1918) 41 Mad 616; Pratapa v. AEL Mission , AIR 1926 Mad 307 [LNIND 1924 MAD 435]: (1926)
49 Mad 38.
2014 . (1919) 21 Bom LR 975 [LNIND 1919 BOM 37].
2015 . Harai Saha v. Faizlur Rahman , (1913) 40 Cal 619, 622.
2016 . (1920) 47 Cal 515.
2017 . Ghisulal v. Todarmull , AIR 1922 Cal 19: (1921) 26 Cal WN 169; Hari v. Birendra , AIR 1921 Cal 749: (1922) 35 Cal LJ 327,
(money voluntarily paid into court are assets); Chittagone Urban Co-op Bank Ltd. v. Indo-Burmah Traders Bank Ltd., AIR 1938 Cal 521.
2018 . Satnarain v. Mahabir Prasad , AIR 1939 Pat 392: (1939) 18 Pat 404.
2019 . Nur Mahomed v. Rajaram , AIR 1934 Nag 62; Atmaram v. Udey Raj , AIR 1933 Nag 347.
2020 . Indaji v. Cooverji , AIR 1926 Bom 242: (1926) 28 Bom LR 237.
2021 . Lalchand v. Ramdayal , AIR 1939 Bom 112: (1939) Bom 133; Ningappa v. Adiveppa , AIR 1939 Bom 468: (1939) 41 Bom LR
997.
2022 . Thiraviyam v. Lakshmana , (1918) 41 Mad 616.
2023 . Nathmal v. Maniram , (1919) 21 Bom LR 975 [LNIND 1919 BOM 37].
2024 . Noor Mahomed v. Bilasiram , (1920) 47 Cal 515; Sednath v. Tej Bahadur , (1932) 54 All 516 : AIR 1932 All 411; Suikeema v. Hajee
Mahomed , (1913) 38 Mad 221.
2025 . (1917) 19 Bom LR 274 [LNIND 1917 BOM 10] : 39 IC 623.
2026 . See also the observations of Rankin J, in Noor Mahommeds case cited in Sorabjis case above.
2027 . (1919) 21 Bom LR 975 [LNIND 1919 BOM 37].
2028 . Bissicks v. Bath Colliery Co., (1878) 3 Ex D 174; Bidhoo v. Keshub , (1868) 9 WR 642.
2029 . AIR 1922 Cal 19: (1921) 26 Cal WN 169 : 70 IC 539.
2030 . Sait Siva v. AEL Mission , AIR 1926 Mad 307 [LNIND 1924 MAD 435]: (1926) 49 Mad 38.
2031 . Viraragava v. Varada , (1882) 5 Mad 123.
2032 . (1885) 11 Cal 718; Mukhram Agarwalla v. Eshan Ahmad , AIR 1934 Cal 764(a decision under this Code).
 Page 30 of 32
(IN) Mulla : The Code of Civil Procedure, 18th Edition

2033 . Ibid .
2034 . Kommachi Kather v. Pakker , (1897) 20 Mad 107, followed in Abdulla Sahib v. Oosman Sahib , (1905) 28 Mad 224 (a case under s
230 of Code of Civil Procedure 1882, which contained the expression decree for the payment of money, now s 48), and approved in
Vaidinadasamy Ayyar v. Sommasundaram Pillai , (1905) 28 Mad 473 (a case under s 258 of the Code of Civil Procedure 1882, now O 21, r
2).
2035 . Fazil v. Krishna , (1898) 25 Cal 580; Kartick v. Juggernath , (1900) 27 Cal 285.
2036 . Ram Chran v. Sheobarat , (1894) 16 All 418; Pahalvan v. Narain , (1900) 22 All 401.
2037 . Allahabad Bank v. Punjab National Bank , AIR 1939 Lah 303.
2038 . Mallikarjunnadu v. Lingamurti , (1902) 25 Mad 244.
2039 . Delhi and London Bank v. Uncovenanted Service Bank , (1888) 10 All 35.
2040 . Re Bhagwandas , (1884) 8 Bom 511.
2041 . Allahabad Bank v. Canara Bank , (2000) 2 LRI 207.
2042 . Isha Marbels v. BSEB , (1995 ) 2 SCC 648 [LNIND 1995 SC 196].
2043 . Shumbhoo Nath v. Lickynath , (1883) 9 Cal 920; Grant v. Subramanian , (1899) 22 Mad 241; Delhi and London Bank v. Uncovenanted
Service Bank , (1888) 10 All 35.
2044 . Ganesh v. Shiva , (1903) 30 Cal 583; Gatti Lal v. Bir Bahadur , (1905) 27 All 158; Ramanathan v. Subramania , (1903) 26 Mad 179;
Chhotalal v. Nabibhai , (1905) 29 Bom 528.
2045 . Hussein Saheb v. Babaji , AIR 1926 Bom 150: (1926) 28 Bom LR 78 : 93 IC 222; CRMA Chettyar v. KRSV Chettyar , AIR 1928
Rang 96: (1927) 5 Rang 757 : 707 IC 169 and Chaudhari Fateh Din v. Diwan Chand , AIR 1938 Lah 801.
2046 . (1915) 42 Cal 1 : 27 IC 644.
2047 . AIR 1941 All 110(FB) : (1941) All LJ 187.
2048 . Pannaji Devichand Firm v. Lakkaji Dalaji Firm , AIR 1943 Bom 156, Kritanta Kumar Guha v. Pullin Krishna , AIR 1938 Cal 316:
(1938) 42 Cal WN 310.
2049 . Lakkaji Dolaji & Co. v. Md. Gous , AIR 1963 Mys 16.
2050 . Pannaji Devi Chand v. Lakaji , AIR 1943 Bom 156: 45 Bom LR 181.
2051 . Sundara Iyer v. Balusami Iyer , AIR 1956 Mad 192 [LNIND 1954 MAD 268]: (1955) 2 Mad LJ 276 : 1955 Mad WN 788.
2052 . Girdharilal v. Munilal , AIR 1963 Punj 43; Saduram v. Firm Danpat Rai Theruram , AIR 1937 Lah 937: (1937) ILR Lah 637.
2053 . Govind v. Mohoniraj , (1901) 25 Bom 494 : 3 Bom LR 407; Chunilal v. Broach Urban Co-op Bank Ltd., AIR 1937 Bom 461: (1937)
ILR Bom 795; Sarju v. Rangidhar , AIR 1940 Rang 243; Jahar Lal v. Lalita Sundari , AIR 1930 Cal 454: (1930) 34 Cal WN 294; Hemalati
Dasi v. Bengal Coal Co. Ltd., AIR 1935 Cal 738: (1935) 40 Cal WN 26.
2054 . Shrinivas v. Kanthimatri , (1910) 33 Mad 465.
2055 . Ramakrishnan v. Viswanathan , AIR 1936 Mad 40 [LNIND 1935 MAD 228]: (1936) 59 Mad 93; Palaniappa v. Palani , AIR
1936 Mad 948 [LNIND 1936 MAD 168].
2056 . Hoti Lal v. Chatura Prasad , AIR 1941 All 545: (1941) All LJ 137.
2057 . Swaminatha v. Saivu , AIR 1936 Mad 123 [LNIND 1935 MAD 328]; Kandula v. Bangaru , AIR 1937 Mad 504 [LNIND 1936
MAD 388].
2058 . Dundappa v. Annaji Vardaji , AIR 1953 Bom 65 [LNIND 1952 BOM 6]: (1953) ILR Bom 165 : 54 Bom LR 811; Mool Chand
v. Siddappa , AIR 1947 Bom 18: 48 Bom LR 571.
2059 . Mulchand Kesaji v. Shidappa , AIR 1947 Bom 18: (1947) ILR Bom 120 : 48 Bom LR 571 (FB); P.S. Lakshmamma v. A. Rajarao ,
AIR 1972 Andh Pra 201.
2060 . Hart v. Tara Prasanna Mukherji , (1885) 11 Cal 718, 728.
2061 . Hemendra Nath v. East Bengal Commercial Bank , AIR 1936 Cal 210: (1936) 63 Cal 923 ; contra Jamiyatram v. Umiya Shankar ,
AIR 1941 Bom 327: (1941) ILR Bom 544 : 43 Bom LR 699.
2062 . AIR 1954 Bom 446 [LNIND 1953 BOM 123]: (1954) Bom 704 : 56 Bom LR 232.
2063 . Krishnaswami Iyengar v. Vedavalli Ammal , AIR 1959 Mad 218 [LNIND 1958 MAD 17]: 72 LW 19 .
2064 . AIR 1961 Raj 118 [LNIND 1960 RAJ 54]: (1960) ILR Raj 1510.
2065 . Peddi Reddi Ganga Raju v. Kondalla Mangamma , AIR 1958 AP 334; dissenting from Sakharam v. Mahadeo , AIR 1940 Nag 79,
and Kegendranath v. P.C. Roy , AIR 1942 Oudh 791.
 Page 31 of 32
(IN) Mulla : The Code of Civil Procedure, 18th Edition

2066 . See, for instance, Brij Mohan v. The Deputy Commr, Pratabgarh , AIR 1937 Oudh 270.
2067 . Jagat Dhundhey , (1883) 5 All 566; Mithu v. Kishan , (1890) 12 All 546.
2068 . Lachmi v. Mithu , AIR 1927 All 467: (1927) 49 All 936.
2069 . Abdul Jabbar v. Venkata Sastri , AIR 1969 SC 1147 [LNIND 1969 SC 37]: (1969) 1 SCC 573 [LNIND 1969 SC 37].
2070 . S.V. Palaniapa v. V.R. Chettiar , AIR 1970 Mad 401 [LNIND 1969 MAD 130]: (1970) 1 MLJ 458.
2071 . Dattatraya v. Pundlik , (1920) 22 Bom LR 1001 [LNIND 1920 BOM 33] : Compare O 34, r 13.
2072 . Gowari Ambal v. Ramanathan , AIR 1930 Mad 138 [LNIND 1929 MAD 241]: (1930) 53 Mad 670.
2073 . Vaithiam Nanjappa v. Ramanathan Chetti , (1958) 2 Mad LJ 566.
2074 . AIR 1958 MP 201 [LNIND 1958 MP 65]: (1958) Jab LR 351.
2075 . Pallonji v. Jordon , (1888) 12 Bom 400; Arunachellam v. Haji Sheek Meera , (1910) 34 Mad 25; Moidin v. Dakshayani , AIR 1941
Mad 125: (1940) 2 Mad LJ 844; Commercial and Industrial Bank Ltd. v. Mir Sarfaraz Ali Khan , AIR 1956 Hyd 65(FB) : (1956) ILR Hyd 79.
2076 . See notes to s 64, Explanation to the section.
2077 . Parvathi v. Ganapathy , AIR 1954 TC 6.
2078 . Shankar Sarup v. Mejo Mal , (1910) 23 All 313 : 28 IA 203.
2079 . (1910) 23 All 313 supra ; Ram Narain v. Brij Banke Lal , (1917) 39 All 322; Baiznath v. Ramadoss , (1916) 39 Mad 62; Limitation
Act, 1963, Art. 62.
2080 . Hart v. Tara Prasanna Mukherji , (1885) 11 Cal 718.
2081 . Bharandeo v. Tara Chand , (1914) 41 Cal 654 : 41 IA 45.
2082 . Venkatarama v. South Indian Bank Ltd., (1920) 43 Mad 381.
2083 . 28 IA 202 : 23 All 313.
2084 . Biswambar v. Aprana , AIR 1935 Cal 290: (1935) 62 Cal 715.
2085 . Saravana v. Arunachalam , (1917) 40 Mad 841.
2086 . Dattatraya v. Purshotam , AIR 1922 Bom 21(FB) : (1922) 46 Bom 635; Shidappa v. Gurusangaya , (1913) 55 Bom 473 : AIR 1931
Bom 350.
2087 . Bibi Uma v. Rasoodan , (1926) 5 Pat 445 : AIR 1926 Pat 497; Mst Annapurni v. Ashutosh , AIR 1934 Pat 545.
2088 . Abudl Jabbar v. Venkatasastri , AIR 1969 SC 1147 [LNIND 1969 SC 37]: (1969) 1 SCC 573 [LNIND 1969 SC 37].
2089 . Secretary of State v. Bombay Landing Co., (1868) 5 Bom HC 23; Income-tax-Officer v. Chandan Bai , AIR 1957 Bom 91 [LNIND
1956 BOM 13]: (1956) Bom 743 : 58 LR 564; Gulam Mohammad v. Ahmad Gulam Dar , AIR 1960 J&K 45.
2090 . State of Uttar Pradesh v. Santal , AIR 1963 All 495 [LNIND 1963 ALL 14].
2091 . Manickam Chettiar v. Income-tax Officer, Madras , AIR 1938 Mad 360 [LNIND 1937 MAD 404]: (1938) ILR Mad 744 : (1938) 1
Mad LJ 351; State of Kerala v. E.P. Mathew , AIR 1961 Ker 18 [LNIND 1960 KER 160]: (1960) 1 Ker LR 634 : (1960) Ker LJ 76; Excise
and Taxation Officer v. Gaurimal Butail Trust , AIR 1961 Punj 292: (1960) 1 Punj 809. But see Oudh Commercial Bank Ltd. v. Secy of State , AIR
1935 Lah 319; Murli Tahilram v. T. Assomal & Co., AIR 1955 Cal 423 [LNIND 1955 CAL 24]: 59 Cal WN 701, considered in BS Corpn.
v. Union of India , AIR 1956 Cal 26 [LNIND 1955 CAL 112]: 59 CWN 1119.
2092 . AIR 1965 SC 1061 [LNIND 1964 SC 337]: (1956) 2 SCR 289 : (1956) 56 ITR 91.
2093 . Lakkanna v. State , AIR 1970 Mys 198; Somasundaram Mills v. Union of India , AIR 1970 Mad 190 [LNIND 1969 MAD 105]:
74 ITR 668.
2094 . Collector of Aurangabad v. Central Bank of India , AIR 1967 SC 1831 [LNIND 1967 SC 174]: (1967) 3 SCR 855 [LNIND 1967
SC 174] : (1967) 70 Bom LR 146.
2095 . Basantkumar v. Panchu Gopal , AIR 1956 Cal 23 [LNIND 1955 CAL 140]: 59 Cal WN 17.
2096 . Somasundaram Mills v. Union of India , AIR 1970 Mad 190 [LNIND 1969 MAD 105]: 74 ITR 668.
2097 . Union of India v. Somasundaram Mills , AIR 1985 SC 407 [LNIND 1985 SC 38]: (1985) 2 SCC 40 [LNIND 1985 SC 38]; Kotak
& Co. v. State of Uttar Pradesh , (1982) 1 SCC 438 : (1982) 1 SCJ 241 [LNIND 1980 SC 233].
2098 . Oudh Commercial Bank v. Secretary of State , AIR 1935 Lah 319; Varadachari v. Secretary of State , AIR 1936 Mad 602 [LNIND
1935 MAD 390]: (1936) 59 Mad 872; Deputy Commr of Police, Madras v. Vedantam , AIR 1936 Mad 132 [LNIND 1935 MAD 277]: (1936)
59 Mad 428; Secretary of State v. Ma Myien Me , AIR 1937 Rang 380; Soniram Rameshur v. Mary Pinto , (1934) 11 Rang 467 : AIR 1934 Rang
8; Muni Lal v. Diwan Chand , AIR 1939 Lah 488.
2099 . Dharamveer Agarwal v. Kailash Chand , AIR 1989 Raj 17.
 Page 32 of 32
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2100 . Ibid .
2101 . Union of India v. Som Sunderam Mills Pvt. Ltd., (1985) 2 SCC 40 [LNIND 1985 SC 38].
2102 . Kotak & Co. v. State of Uttar Pradesh , (1987) 1 SCC 445.
2103 . Tyabji v. Jetha , AIR 1927 Bom 542: (1927) 51 Bom 855.
2104 . (1956) ILR Hyd 79 : AIR 1956 Hyd 65.
2105 . Howatson v. Durrant , (1900) 27 Cal 351; Official Reciever of Tanjore v. Venkatarama , AIR 1922 Mad 31 [LNIND 1921 MAD
158]: (1922) 42 Mad LJ 361.
2106 . Dharamveer Agarwal v. Kailash Chand , AIR 1989 Raj 179.
2107 . K. Vijayarajan v. D.K. Kalavathy , AIR 2007 Ker 25 [LNIND 2006 KER 388]: 2006 (2) Ker LJ 670 (DB).
2108 . Maa Mamta Cold Storage Pvt. Ltd. v. B.S.E. , AIR 2002 Pat 54(DB).
2109 . Musammat v. Musammat , AIR 1921 Pat 401: (1920) 5 Pat LJ 415.
2110 . Shib Das v. Bulakhi Mal & Sons , AIR 1927 Lah 100; followed in Bishan Das v. Tulsi Shal , (1935) 16 Lah 990 : AIR 1935 Lah 302.
2111 . Jagadish v. Kripa Nath , (1909) 36 Cal 130; Dwarkadas v. Jabab , AIR 1924 Cal 801: (1924) 51 Cal 761.
2112 . Balmer Lawrie & Co. v. Jadunath , (1914) 42 Cal 1; Varada v. Venkataratnam , AIR 1922 Mad 99 [LNIND 1921 MAD 182]: (1922) 42
Mad LJ 473; Navaj v. Totaram , AIR 1931 Bom 252: (1931) 33 Bom LR 503; Shidappa v. Gurusangaya , AIR 1931 Bom 350: (1931) 55 Bom
473; Thanmal v. Income Tax Officer , AIR 1958 All 636 [LNIND 1957 ALL 276].
2113 . Sorabji v. Kala , (1912) 36 Bom 156; Rajah of Karvetnagar v. Venkata Reddi , (1916) 39 Mad 570; Lalchand v. Ramdayal , AIR 1939 Bom 112:
(1939) Bom 133.
2114 . Satyendranath v. Bibuthi Bhushan , AIR 1963 Cal 104 [LNIND 1962 CAL 100].
2115 . Lakshminarayanan Devesthanmam v. Khande Rao , supra .
2116 . (1924) 51 Cal 761 : AIR 1924 Cal 801 allowed; Hari v. Birendra , AIR 1921 Cal 749: (1922) 35 Cal LJ 327 (refused); Karpaga v. Vania ,
AIR 1925 Mad 587 [LNIND 1924 MAD 392]: (1925) 48 Mad LJ 459 (allowed); Musammat v. Musammat , AIR 1921 Pat 401: (1920) 5 Pat
LJ 415 (refused); S.A.S. Chettyar v. SARA Firm , AIR 1928 Rang 163: (1928) 6 Rang 582 (allowed); Har Narain v. Bird & Co., AIR 1936
Oudh 132; Birendra v. Basdeo , AIR 1936 Oudh 185; Lyallpur Bank Ltd. v. Ramji , AIR 1940 Oudh 237; Lalchand v. Ramdayal , AIR 1939
Bom 112.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part III Incidental Proceedings

Part III Incidental Proceedings

Commissions

S. 75. Power of Court to issue Commissions.

Subject to such conditions and limitations as may be prescribed, the Court may issue a
commission

(a) to examine any person;

(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
1[(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which
is in the custody of the court pending the determination of the suit;
(g) to perform any ministerial act .]

1. Scope. The general powers of courts in regard to commissions have been summarised
in this section. The detailed provisions are set forth in O 26. This section having set out
the purposes for which a commission can be issued, there is no question of the court
invoking its inherent jurisdiction to issue a commission for any other purpose. 2 In a title
suit for specific performance of contract, the plaintiff can adduce evidence relating to
claim of delivery of possession of suit land and damages before trial court, deputation of
Survey Knowing Commissioner would amount to collecting evidence on behalf of
plaintiff, therefore, the order rejecting application of the plaintiff for deputing said
Commissioner was found proper.3

2. Appointment of Second Commissioner. Where the report of the commissioner for

local investigation substantially complied with the writ of commission issued to him, court
should not order an appointment of a new commissioner, when there was no possibility
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that the new commissioner could do anything more, and there was nothing on record to
show what the difficulty felt was.4

3. Appointment of Commissionerrevision. Where the order under Revision only directs

the commissioner to propose a scheme for partition of the properties covered by the
preliminary decree, no prejudice can be said to have been caused to the revision petitioner
and the Andhra Pradesh High Court found no grounds to interfere with the order
impugned.5

S. 76. Commission to another Court.

(1) A commission for the examination of any person may be issued to any Court, (not
being a High Court) situate in a 6[State] other than the 6[State] in which the Court of
issue is situate and having jurisdiction in the place in which the person to be
examined resides.
(2) Every Court receiving a commission for the examination of any person under sub-
section (1) shall examine him or cause him to be examined pursuant thereto, and
the commission, when it has been duly executed, shall be returned together with the
evidence taken under it to the Court from which it was issued, unless the order for
issuing the commission has otherwise directed, in which case the commission shall
be returned in terms of such order.

See O 26 r 4.

S. 77. Letter of request..

In lieu of issuing a commission the Court may issue a letter of request to examine a witness
residing at any place not within 7[India].

1. Scope. The section empowers the court to issue a letter of request to any person other
than the court to examine witnesses residing at any place outside India. This power is not
subject to any reciprocal agreement between governments. The power is discretionary and
not to be interfered with in appeal on the mere ground that witnesses examined thus, on
commission, cannot be effectively cross-examined or that their examination would entail
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heavy costs. These are matters which would be taken into account by the court while
exercising its discretion.8

The letter of request must, however, be issued in accordance with the procedure laid down
therefor.9 The provision of O 16, especially O 16, r 19 have no application to witnesses
residing out of India. They are applicable only to witnesses residing within India. Section
77 and O 26, r 5 come into play where the witnesses are residing out of India. The court
may issue, a commission or letter of request for the examination of such witness.
Therefore, the question always is that of the exercise of discretion by the court.10 An
Indian court may issue a letter of request to a person other than a court at Kabul
(Afghanistan) even if the local law of Afghanistan prohibits the examination of witnesses
by consular authorities.11

12[S. 78. Commissions issued by foreign Courts.

Subject to such conditions and limitations as may be prescribed, the provisions as to the
execution and return of commissions for the examination of witnesses shall apply to
commissions issued by or at the instance of

(a) Courts situate in any part of India to which the provisions of this Code do not
extend; or
(b) Courts established or continued by authority of the Central Government outside
India; or
(c) Courts of any State or country outside India.]

Neither the intervener nor the witnesses to whom the commission is sought to
be issued in pursuance to the letter of request issued by the foreign Court are
even proper parties much less necessary parties to the proceedings and so the
intervener has no right to object to the execution of the commission.13

1. Alterations in the section. This section has been substituted for the old section by s11
of the Code of Civil Procedure (Amendment) Act, 1951 (2 of 1951).

The words subject toprescribed and or at the instances of are to avoid any possible conflict
between the section and rr 19 to 22 of O 26.
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1 . Ins. by the CPC (Amendment) Act, 1976 (104 of 1976), s 26 (w.e.f. 1-2-1977).
2 . Jaiswal Coal Co. v. Fatehganj Co-op. M Society, AIR 1975 Cal 303 [LNIND 1974 CAL 194].
3 . Madhu Sudan Pradhan v. Santosh Kumar Das, AIR 2004 Ori 86 [LNIND 2003 ORI 105].
4 . Budhia Dhobia v. Nakhelal Mahto, AIR 1991 NOC 64(Cal).
5 . R. Ramakrishna Reddy v. M.Kamala Devi, AIR 2004 AP 484 [LNIND 2004 AP 469].
6 . Subs. for Province by AO 1950.
6 . Subs. for “Province” by AO 1950.
7 . Subs. by CPC (Amendment) Act 2 of 1951 for the States.
8 . Filmistan Pvt. Ltd. v. Bhagwandas, AIR 1971 SC 61: (1970) 3 SCC 258.
9 . JG Insurance Co. v. Dhandhiya Jewellers, AIR 1973 Raj 156.
10 . IC Corporation v. Daewoo Corporation, AIR 1990 Bom 152 [LNIND 1989 BOM 413].
11 . Filmistan Private Ltd. v. Bhagwandas Sanprakash, (1970) 3 SCC 258 : AIR 1971 SC 61.
12 . Subs. by Act 2 of 1951 s 11.
13 . Wooster Products Inc. v. Magna Tek Inc., AIR 1989 Del 6 [LNIND 1988 DEL 140], 9.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part IV Suits in Particular Cases

Part IV Suits in Particular Cases

Suits by or against the Government or Pubic Officers in their Official Capacity

1 S. 79. Suits by or against Government.

In a suit by or against the Government, the authority to be named as plaintiff or

defendant, as the case may be, shall be

(a) in the case of a suit by or against the Central Government, the Union of India, and
(b) in the case of a suit by or against a State Government, the State.]

1. Changes in the section. The present section is the result of the Indian Independence
(Adaptation of Central Acts and Ordinances) Order 1948, as further adapted by the
Adaptation of Laws Order 1950.

As to procedure in suits by or against the Government or Public Officers in their official

capacity, see O 27.

2. Scope of the section. This section does not enlarge or in any way affect the extent of
the claims or liabilities, enforceable by or against the government which formerly
depended on the provisions of the Government of India Act (s 65 of the Government of
India Act, 1858, s32 of the Government of India Act, 1915 and then s176 (1) of the
Government of India Act, 1935) and now, depends on 300 14 14 of the Constitution of India.
This section gives no cause of action but only declares the mode of procedure when a
cause of act ion has arisen.2 Suit was filed against Government of Assam. Chief Secretary
to the Government of Assam was impleaded as defendant in his capacity as representative
of the State of Assam. It was held that the requirements of s 79 and O 27, r5A were
fulfilled. Section 79 being a procedural section, substantial compliance with the
requirements thereof is sufficient.3

The Secretary of State or any other authority as provided for and now either the Union of
India or a state, as the case may be, were held not to be a proper party to a suit under s42 of
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(IN) Mulla : The Code of Civil Procedure, 18th Edition

the Specific Relief Act 1 of 1877 filed by an owner of land against a member of the public
who claims use of such land as a public road and thereby endangers the title of the owner.4
In case of a dispute as to tenure holder ship under s176 of the UP Zamindari Abolition
and Land Reforms Act, between two rival parties, the state is not a necessary party.5 But
the state is a necessary party in a suit to set aside the sale ordered for realisation of
government dues.6

3. Disputes between Union and State Governments and their departmentsparties to

abide by decision of the committee. Under the scheme of the 131 Constitution of India,
confers original jurisdiction on the Supreme Court in regard to a dispute between two
states of the Union of India or between one or more states and the Union of India. It was
not contemplated by the framers 14 14 of the Constitution of India or the Code of Civil
Procedure 1908 (Code of Civil Procedure) that two departments of a state or the Union of India
will fight a litigation in a court of law. It is neither appropriate nor permissible for two
departments of a state or the Union of India to fight litigation in a court of law. Indeed,
such a course cannot but be detrimental to the public interest as it also entails avoidable
wastage of public money and time. Various departments of the government are its limbs
and, therefore, they must act in co-ordination and not in confrontation. Filing of a writ
petition by one department against the other by invoking the extraordinary jurisdiction of
the High Court is not only against the propriety and polity, as it smacks of indiscipline, but
is also contrary to the basic concept of law which requires that for suing or being sued,
there must be either a natural or a juristic person. The states/Union of India must evolve a
mechanism to set at rest all inter-departmental controversies at the level of the government
and such matters should not be carried to a court of law for resolution of the controversy.
In the case of disputes between public sector undertakings and Union of India, in Oil and
Natural Gas Commission v. Collector of Central Excise 7 Supreme Court called upon the Cabinet
Secretary to handle such matters. Further in Oil and Natural Gas Commission v. Collector of
Central Excise 8 the Supreme Court directed the Central Government to set up a committee
consisting of representatives from the Ministry of Industry, the Bureau of Public
Enterprises and the Ministry of Law, to monitor dispute between ministry, the
Government of India and public sector undertakings in between themselves, to ensure that
no litigation comes to court or to a tribunal without the matter having been first examined
by the committee and its clearance for litigation. The government may include a
representative of the ministry concerned in specific cases and one from the Ministry of
Finance, in the committee. Senior officers only should be nominated so that the committee
would function with status, control and discipline.9

Undoubtedly, the right to enforce a right in a court of law cannot be effaced. However, it
must be remembered that courts are overburdened with a large number of cases. The
majority of such cases pertain to government departments and/or public sector
undertakings. As is stated in Chief Conservator of Forests case10 it was not contemplated by the
framers 14 14 of the Constitution of India or Code of Civil Procedure that two departments of a
state or Union of India and/or a department of the government and a Public Sector
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Undertaking fight a litigation in a Court of law. Such a course is detrimental to public

interest as it entails avoidable wastage of public money and time. These are all limbs of the
Government and must act in co-ordination and not confrontation. The mechanism set up
by Supreme Court is not only to conciliate between the government departments but for
purposes of ensuring that frivolous disputes do not come before courts without clearance
from the High Powered Committee. If it can, the High Powered Committee will resolve
the dispute. If the dispute is not resolved, the Committee would undoubtedly give
clearance. However, there could also be frivolous litigation proposed by a department of
the government or a public sector undertaking. This could be prevented by the High
Powered Committee. In such cases there is no question of resolving the dispute. The
Committee only has to refuse permission to litigate. No right of the Department/Public
Sector Undertaking is affected in such a case. The litigation being of a frivolous nature
must not be brought to court. To be remembered that in almost all cases one or the other
party will not be happy with the decision of the High Powered Committee. The dissatisfied
party will always claim that its rights are affected, when in fact, no right is affected. The
Committee is constituted of highly placed officers of the government, who do not have an
interest in the dispute, it is thus expected that their decision will be fair and honest. Even if
the Department/Public Sector Undertaking finds the decision unpalatable, discipline
requires that they abide by it. Otherwise the whole purpose of this exercise will be lost and
every party against whom the decision is given will claim that they have been wronged and
that their rights are affected. This should not be allowed to be done.11

4. Act of State. It was held in Sarjerao v. Government of the Province of Bombay 12 that an act
done by a state fell under three heads, namely:
i. acts which are capable of being done by a private individual;
ii. acts which only the Supreme Government can perform such as making treaties and
declaring war; and
iii. matters and questions which are solely in the hands of the government, and that the
phrase Act of State would comprise the last two heads but not the first.

The meaning of the phrase Act of State has as already stated,13 undergone a change in
modern times and has come to denote:
(i) an act done by the state in the exercise of its sovereign status in relation to another
state or subjects of another state; and
(ii) governmental acts done in exercise of its executive power against its own subjects
or foreigners resident within its territories.

The former are not justifiable but the latter are, within the limits recognised by the
municipal law. This, and the following section, presuppose that the government is under a
substantive liability capable of enforcement in the civil courts and lays down the procedure
to be adopted with respect to those proceedings. The secretary of state under the old
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sections could only have been sued in respect of those matters for which the East India
Company could have been sued, viz, matters for which private individuals or trading
corporations could have been sued, or in regard to those matters for which there is express
statutory provision. No suit could lie against the East India Company in respect of Acts of
state or Acts of sovereignty, and, therefore, no suit in respect of such Acts would have
been competent.14 The same rule will apply now to suits against the Union of India or a
State.15 A Municipal Council being a body corporate can be sued in its corporate name.
Wrong description cannot defeat the suit if the parties understand who are the real
parties.16

5. Jurisdiction. A suit against the government can only be brought in the court within the
local limits of whose jurisdiction the cause of act ion arises. The words dwell, or reside, or
carry on business, or personally work for gain, which occur in s s 16, 19 and 20 of the Code
of Civil Procedure and cl 12 of the Letters Patent do not apply to the government.17 But it has
been held by the Supreme Court18 that the government can, in relation to the
administration of the railways, be said to carry on business and that it can therefore be
sued where the head office of the railway is located.19

6. Suits against the Railway. It has been held that a suit to enforce a claim against the
Railway Administration can properly be laid against the government or the state without
impleading the railway20 and conversely, a suit for recovery of freight for carrying goods on
railways could be instituted by the Union of India.21

7. Part C State. It has been held by the Supreme Court that a suit on a contract entered
into by the Government of Vindhya Pradesh which was a Pt C state could be filed against
the State of Vindhya Pradesh and that it need not be against the Union of India.22

8. Mis-description in naming the Authority. See Subedar Samundar v. Secretary of State.23

S. 80. Notice.

24[(1)] 25[Save as otherwise provided in sub-section (2)] no suit shall be instituted

26 against the Government, (including the Government of the State of Jammu and

Kashmir)] or against a public officer in respect of any act purporting to be done by

such public officer in his official capacity, until the expiration of two months next
after notice in writing has been 27 [delivered to, or left at the office of
(a) in the case of a suit against the Central Government, 28 [except where it relates
to a railway], a Secretary to that Government;
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29 [30 [(b)] in the case of a suit against the Central Government where it relates to a
railway, the General Manager of the railway;]
31 [(bb) in the case of a suit against the Government of the State of Jammu and
Kashmir, the Chief Secretary to that Government or any other officer
authorised by that Government in their behalf;]
(c) in the case of a suit against 32 [any other State Government], a Secretary to that
Government or the Collector of the District.; 33 [***]
(d) 34[***]

and, in the case if a public officer delivered to him or left at his office, stating
the cause of act ion, the name, description and place of residence of the
plaintiff and the relief which he claims; and the plaint shall contain a
statement that such notice has been so delivered or left.

35 [(2) A suit to obtain an urgent or immediate relief against the Government

(including the Government of the State of Jammu and Kashmir) or any public
officer in respect of any act purporting to be done by such public officer in his
official capacity, may be instituted, with the leave of the Court, without serving any
notice as required by sub-section (1); but the Court shall not grant relief in the suit,
whether interim or otherwise, except after giving to the Government or public
officer, as the case may be a reasonable opportunity of showing cause in respect of
the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no
urgent or immediate relief need be granted in the suit, retain the plaint for
presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of
any act purporting to be done by such public officer in his official capacity shall be
dismissed merely reason of any error or defect in the notice referred to in sub-
section (1), if in such notice
(a) the name, description and the residence of the plaintiff had been so given as to
enable the appropriate authority or the public officer to identify the person
serving the notice and such notice had been delivered or left at the office of the
appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially
indicated.]

STATE AMENDMENT
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Madhya Pradesh. The following amendment were made by Madhya Pradesh Act 29 of
1984, Section 3, dated 14-8-1984.

In its application to the State of Madhya Pradesh,

In s 80 (1), for the words, brackets and figures sub-section (2) substitute sub-section (2) or
sub-section (4).

After sub-section (3) insert as under

(4) Where in a suit or proceeding referred to in rule 3-B of Order 1, the State is joined as a defendant or non-applicant or where the
Court orders joinder of the State as defendant or non-applicant in exercise of the powers under sub-rule (2) or Rule 10 of Order 1 such
suit or proceeding shall not be dismissed by reason of omission of the plaintiff or applicant to issue notice under sub-section (1).

1. Changes in the section. The original words will be seen from the text of the old
section, before its adaptation in 1937 by the Government of India Adaptation of Indian
Laws Order 1937 which ran thus:

80. No suit shall be instituted against the Secretary of State for India in Council, or against
a public officer in respect of any act purporting to be done by such public officer in his
official capacity, until the expiration of two months next after notice in writing has been, in
the case of the Secretary of State in Council, delivered to, or left at the office of, a
Secretary to the Local Government or the Collector of the District, and, in the case of a
public officer, delivered to him or left at his office, stating the cause of act ion, the name,
description and place of residence of the plaintiff and the relief which he claims; and the
plaint shall contain a statement that such notice has been so delivered or left.

By the Civil Procedure (Amending) Act, 1963:

(1) the words including the Government of the State of Jammu and Kashmir;
(2) Clause (bb) were inserted; and
(3) in cl (c) the words any other were substituted for A.

The Amendment Act, 1976 has renumbered the original section as sub-s (1). It has also
inserted two new sub-s (2) and (3) and in consequence has added the words save as
otherwise provided in sub-s (2) in sub-s(1). For the effect of these changes see the note
under the new sub-ss(2) and (3). A recommendation for the repeal of s 80 has been made
more than once by the Law Commission of India.36

2. Application of the section. The applicability of this section must be determined on the
law as it stood on the date of the suit. If the Code of Civil Procedure had no application on
that date, its coming into force during the pendency of the action cannot affect its
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maintainability.37 This section was not incorporated in the rules governing suits filed in the
Federal court and so, a suit instituted in that court under s204 of the Government of India
Act, 1935, is not bad for want of notice.38 On the same principle, no notice is necessary if
the defendants interests devolve on government during the suit, as for example when a
private railway company is taken over by the government; for then, the suit had already
been instituted.39 Likewise, a notice which complies with the requirements of the section as
it stood on the date of the cause of action is not rendered invalid by reason of the
subsequent amendment of the section.40 A notice claiming damages against the Bengal
Assam Railway filed before the partition of India in 1947 and decreed thereafter was held
to be sufficient to sustain a second suit against the Union of India on the same cause of act
ion.41 But if the suit was instituted in a court which had no jurisdiction to try a suit against
government and the devolution occurs after the plaint was returned for presentation to the
proper court, notice is necessary.42

Giving a notice under this section does not preclude the party from taking proceedings,
other than suit, if they are permissible under the law. Thus, an application under art226,
complaining of infringement of right of the petitioner to certain properties as contravening
art19 14 14 of the Constitution of India, is not barred on the ground that he had given a
notice of suit with reference to the claim.43 A statutory bodywhether it be the Electricity
Board or the Food Corporation or Union Development Corporation or any other
categorymay be an instrumentality of the state within the meaning of Art. 12 of the
Constitution of India. Nevertheless, it would not answer the description of government as it is
understood in law and as it is understood in the context of s80 of the Code of Civil
Procedure.44Section 80 does not apply to election petitions under the Bengal Panchayat
Act.45 A notice under s 80 was sent by the plaintiff to the Bangalore Water Supply instead
of notice under s 126 of the Bangalore Act and there was no reply at all from the
defendant for the notice. It was held that the notice under s 80 must be deemed to have
been issued in terms of s 126 of Bangalore Water Supply and Sewerage Act, when all the
details with regard to the claim, the amount due and the facts required to be incorporated
in the suit were clearly given in the notice. And so, the suit for recovery of amount filed by
the plaintiff against the Board after more than two months from the date when such notice
was received by the defendant, was not liable to be dismissed on ground of absence of
notice under s126 of the Act.46

3. Provisions of this section imperative. The section is a matter of civil procedure and
cannot be said to be subject to s65 of the Government of India Act or of the
corresponding section of the other Government of India Acts or the corresponding article
14 of the Constitution of India.47 As it stood before its recent amendment in 1976, it was held
to be explicit and mandatory, admitting no implications or exceptions.48 Its language being
imperative, it was held that it debarred absolutely a court from entertaining a suit instituted
without compliance of its provisions and had in that case to be rejected under O 7,
r11(d).49 The High Court of Bombay has held that the question of compliance of the
requirements of sub-s (1) is a matter relating to the courts jurisdiction and therefore the
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question of waiver of the notice by the government or the public officer cannot arise.50
The fact that the suit would be barred by limitation if the notice had to be given and two
months period had to lapse is no ground for not giving a notice. In fact, that period is
eligible for exclusion while calculating the period of limitation.51 The rigour of sub-s (1) is
sought to be reduced by inserting in the section, sub-s (2) in cases where an urgent or
immediate relief is sought to be obtained and leave of the court has been obtained.

This section applies to all suits against the government or a public officer whether the act
ion relates to past or future acts52 and is not limited to any particular relief which may be
claimed in the plaint.53 When the suit is against the state, it should be in the name of that
state and not the Union of India and the notice must be served in the manner mentioned
in sub-cl (c).54 The burden of proving that the requirements of the section have been
satisfied is on the plaintiff.55

The words two months in sub-s (1) do not necessarily mean 60 days. The period has to be
calculated month wise.56

4. Object of notice. The object of the notice required under the section is to give the
government or the public officer concerned, an opportunity to reconsider the legal
position and to make amends or settle the claim, if so advised, without litigation.57 When a
statutory notice is issued to public authorities, they must take the notice in all seriousness
and they should not sit over it and force the citizen to the vagaries of litigation. They are
expected to let the claimant (who has given notice), know, what stand they take, within the
statutory period, or, in any case before the plaintiff embarks upon litigation.58 The whole
object of serving a notice under s80 is to give the government sufficient warning of the
case proposed to be instituted, so that government (if it so wishes) can settle the claim
without litigation or afford restitution without recourse to court of law.59 The section has
been enacted as a measure of public policy, with the object of ensuring that before a suit is
instituted against the government or a public officer, the government or the officer
concerned is afforded an opportunity to scrutinise the claim and if it be found a just claim,
to take immediate act ion and thereby avoid unnecessary litigation and save public time
and money by settling the claim without driving the person who has issued the notice to
restitute the suit involving considerable expenditure and delay.60 A suit against the
government or a public officer, to which the requirement of a public notice under s80 of the
Code of Civil Procedure is attracted, can not be validly instituted until the expiration of the
period of two months next after the notice in writing has been delivered to the authority
concerned in the manner prescribed for in the section and if filed before the expiry of said
period, the suit has to be dismissed as not maintainable. The public purpose underlying the
provisions of s80, is advancement of justice and securing of public goods by avoidance of
unnecessarily litigation. The language of the section is express, explicit and mandatory and
it admits no implication or exception. Therefore, it is the plain duty of the court to give
effect to it and considerations of hardship will not be a legitimate ground for not faithfully
implementing the mandate of the legislature.61 The whole object of serving a notice under
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s80, is to give the government, sufficient warning of the case which is going to be
instituted against it and that the government, if it so wished, can settle the claim without
litigation or afford restitution without records to a court of law. Though, the terms of s80
have to be strictly complied with, that does not mean that the notice should be scrutinised
in a pedantic manner divorced from common sense. The point to be considered is whether
the notice gives sufficient information as to the nature of the claim such as would enable
the recipient to avert the litigation. If the notice substantially fulfils its work of intimating
the parties concerned generally of the nature of the suit intended to be filed, it would be
sufficient compliance of this section.62

5. Notice: when to be given. A notice given before the cause of action has arisen is
invalid.63

6. Notice Given Prior to the Coming into Force of Government of India

(Adaptation of Indian Laws) Order. Where for the purpose of instituting a suit against
the secretary of state, a notice was served under s80, prior to the coming into force of
Government of India (Adaptation of Indian Laws) Order but the suit was lodged after the
aforesaid order came into force, the suit is saved by virtue of paras 9 and 11 of the
Preamble to the aforesaid Order.64

7. Sufficiency of Notice. In Secretary of State v. Perumal,65 the High Court of Madras took
the view that a notice by two out of three plaintiffs was sufficient. Such a view is not
correct in view of the subsequent Privy Council decision in Bhagchand v. Secretary of State.66
Later, the same High Court changed its former view and held that a notice by one of two
plaintiffs was not valid,67 and this was approved by the Privy Council.68 The principle
deducible from these decisions is that there must be identity between the person who
issues the notice and the person who brings the suit. Accordingly, when a person carries
on business in a particular name and style but issues notice in his own name, the suit
should also be instituted in his name.69 Where the notice was issued in the name of the
concern but the suit was instituted in another name as the proprietor of that concern, the
notice was held to be bad.70 But where notice was issued in the name of the firm before its
dissolution and the suit was filed, after such dissolution, by one of the partners authorised
to collect its outstandings the notice was, held to be valid.71 Where notice was issued in the
name of Koshikode Lime Centre but the suit was in the name of Koshikode Lime Centre,
by proprietor, PP Abubaker, it was held that though there was difference in the names
there was no possibility of any confusion in the mind of the defendant as regards the
identity of the party.72 But where the notice was issued on behalf of Ramjilal Giriraj Prasad
and the suit was filed in the name of Ramjilal, described as the manager of the joint family
business and the notice did not clarify that Ramjilal was the proprietor, it was held that the
identity of the person suing and the person giving the notice was not established.73 Notice
was issued in the name of the plaintiffs mother in respect of a property. On the basis of
that notice suit could not be filed after her death in the sons name when the son had,
during his mothers life-time, assigned all his rights in that property in the name of a third
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party.74 A notice in the name of the concern, by which name and style the plaintiff, its sole
proprietor, is carrying on business is valid in respect of a suit by the plaintiff described as
the sole proprietor of such concern.75 If there is difference in the names of the person
giving the notice and the person who institutes the suit, the fact that no objection is raised
by the defendant in the pleadings as to the validity of the notices indicates that the
defendant did not consider the person suing as being one different from the person who
issued the notice.76 A joint notice by plaintiffs in two different suits complies with the
requirements of the section.77

If notice has been sent to the state, it is not further necessary that the concerned agency of
the state must also be served with notice.78 In a Madras case, the plaintiff undertook
construction work for the defendant. Defendant cancelled the contract. Subsequently, the
plaintiff continued construction work on the basis of revised estimates. Defendant finally
terminated the contract. Plaintiff gave notice to the defendant under s 80 with reference to
the earlier termination of the contract, while the suit, as filed, was based on subsequent
termination of the contract. Notice was held to be invalid.79 The notice must enable its
recipient to identify the claimant. There should be identity between person issuing the
notice and person instituting the suit. Any other view would amount to admitting
implications or exceptions to the section which is not permissible under the section as
interpreted in Vallayan Chettiar v. Government of Province of Madras,80 From the contents of the
notice given to the railway by the plaintiff (for damages for loss of goods carried by
railway), it was clear that the railway had been put on notice of the claim on behalf of
Madras Heavy Chemicals, irrespective of whether it was a proprietary or partnership
business. What is required is, that the circumstances which give rise to the claim be
mentioned in the notice. It is really unnecessary that the respondent be also informed
about the nature and constitution of the business as such. Judgment contains strong
observations as to hyper technical defences by government.81 Plaintiff, who originally
belonged to the Prisons Department was later absorbed in the Labour Department. But
still later, he was reverted to the Prisons Department. He challenged the reversion by
notice under s80. The order of reversion was later replaced by another order which was a
repetition of the earlier order. It was held that fresh notice was not required.82

A single judge of the Allahabad High Court has held that the cause of act ion in s80, means
the reason which impels the plaintiff to seek a remedy or, in other words, that which,
according to the plaintiff, gives him a right to sue the defendant. In the above case, the
plaintiff who was a Rakshak in the Railway Protection Force, had been served with a
chargesheet resulting ultimately in his dismissal from service and his departmental appeal
against it was also dismissed. He then gave a notice to the General Manager of the Railway,
challenging his removal from the Railway Security Force, para 2 of the notice was as under:

That the plaintiff was removed from service by the order dated 30 August 1968 illegally
and without giving reasonable opportunity of showing cause against the principles of article
311 of the Constitution.
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It was held that the notice did not give sufficient facts about the cause of action. The court
expressed itself as under:

It was not clear as to whether the plaintiff wanted to say that he was dismissed by an
authority who was subordinate to that by which he was appointed. It is also not clear as to
whether he was challenging the order of dismissal on the ground that no charge sheet was
served on him or that no enquiry was made against him or that he was not given an
opportunity of adducing his evidence or cross-examining the witnesses produced against
him, or making his submission or that he was not at all heard in person, or that no copies
of the relevant documents were furnished to him, or that the evidence was taken behind
his back. The Plaint no doubt gives the details of those facts-on which the order of
dismissal was impugned. The notice was, however, silent on the point. As pointed out
earlier, the object of s 80 of the Code of Civil Procedure notice is to enable the Government of
India to consider its position and decide for itself as to whether the claim of the plaintiff
should be accepted or resisted; and this the Government could do, only when it was
informed of the nature of the suit proposed to, be filed and the facts on which the claim of
the plaintiff was founded.83

With respect, this seems to be too technical a view of the matter. What the plaintiff has
narrated in the notice, seems to have been fairly sufficient to give an idea of the proposed
suit. The mention of art311, made the notice intelligible enough, at least for the
department for which it was meant.84 The notice under s80, was issued to the Railways for
non-delivery of consignment. The notice was neither signed by the party or his advocate,
however, the identity of the person who gave notice, particulars of his client, value of
consignment of undelivered and its intended legal act ions clearly spelt out a notice. It was
held that notice complied with the requirement of s80 of the Code of Civil Procedure.85

In a suit for possession filed by the landlord against Government, notice under s 80 of the
CPC is necessary. However, notice of termination of tenancy under s 106 of the Transfer of
Property Act, 1882 is no substitute for notice under s 80. Since suit for possession cannot be
filed unless the tenancy is validly terminated and since notice under s 80 should contain the
cause of action, hence a quit notice under s 16 of the Transfer of Property Act cannot be said to
be a composite notice under both the provisions.86

The notice should state the names, descriptions and places of residence of all the plaintiffs.
In a suit by 63 plaintiffs, notice contained the names, descriptions and places of residence
of two of them only. The notice was held to be insufficient.1 The notice must be such as to
enable the addressee to identify the claimant.2 A notice setting out the business address of
a businessman need not give his residential address also.3

8. Substantial Compliance. There are a large number of decisions laying down that a
notice would be sufficient if it substantially fulfils its object in informing the concerned
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parties of the nature of the suit to be filed.4 The Supreme Court, accordingly, has held that
though the terms of the section have to be strictly complied with, that does not mean that
the notice should be scrutinised in a pedantic manner divorced from common sense.5
Nevertheless, the notice must convey to its recipient sufficient information to enable him
to consider the claim.6 A notice which states that the cause of act ion and reliefs are set out
in the copy of the proposed plaint annexed to it as forming part of it is sufficient.7 The
ingredients of the notice are the name, description, place of residence and the relief which
is proposed to he claimed. An incorrect statement of fact inadvertently made in the body
of the notice relating to a matter which makes no difference to the real issue does not
render the notice invalid.8 If the notice substantially sets out the nature of the suit and the
grounds of complaint, splitting up of the claim in different suits does not render the suits
bad only because a joint notice in respect of the claims in the suits subsequently filed was
given.9 The fact that some of the reliefs claimed in the notice were given up in the suit also
does not matter,10 nor the fact that the amount claimed in the suit is less than that claimed
in the notice.11 The omission in the notice of one of the grounds on which relief is sought
in the plaint also does not mean non-compliance of the section,12 nor the fact that the
notice mentioned an incorrect number of the railway receipt,13 nor the fact that in a
representative suit against government a plaintiff, who had joined in the notice had not
joined the other plaintiffs in applying for permission to file such a representative suit,14 nor
the fact that the notice was signed not by the plaintiff but by some other person but under
his authority and on his behalf.15

A notice addressed and delivered to the secretary to the government is not bad on the
ground that it was not addressed to the government.16 Where a notice which ought to have
been addressed to the Secretary, Civil Supplies (Food Department), was addressed to the
Secretary to the Commissioner of Civil Supplies and sent by the latter to the former, it was
held that the section had been substantially complied with.17 When a notice addressed to a
wrong person is forwarded to the right person, the object of the section is achieved and
the notice is valid.18 A notice claiming damages for loss of goods consigned to a railway for
carriage, which was addressed to the Member-in-Charge, Railway Board, and was
forwarded by him to the General Manager of the concerned Railway was held to be
sufficient.19 In respect of such a claim against the railway administration, the section
requires a notice delivered or left at the office of the General Manager of the railway to
which it relates. It is not necessary that it should be addressed to the Union of India,
though the claim made is against it.20 There is substantial compliance if the plaint sets out
the correct number of a railway receipt, though the notice contains an incorrect number.21
Mis-description of the addressee may be condoned if, in fact, the government or the public
officer has not been misled.22 An averment in the plaint that notice had been given instead
of notice has been delivered does not justify a dismissal of the suit.23 No fresh notice is
necessary if the public officer on whom the notice has already been served is succeeded by
another officer though the latter has to be impleaded.24 On the question of substantial
compliance with this section, see the cases noted below.25
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The words cause of action should be construed liberally in favour of the subject. The
section does not preclude the plaintiff from putting forward fresh grounds in respect of
the claim by reason of the fact that they had not been mentioned in the notice.26

If the sued public officer is a receiver appointed by the court, the application for leave to
sue the receiver does not dispense with the necessity for notice.27

It is permissible to give a combined notice under s80 of the Code of Civil Procedure and s106 of
the Transfer of Property Act, 1882.28

9. Relief claimed. The cause of act ion to be stated in the notice is the bundle of facts
which go to make up the right in respect of which the plaintiff proposes to sue. It may be
that before the suit can be brought, that bundle of facts will be added to or subtracted
from. A notice will not be invalidated, therefore, if it refers to a possible additional claim,
consequent upon the cause of action specified therein and states that if such, additional
claim arises, the plaintiff will sue also in respect thereof.29 A landlord served notice upon
the State of Maharashtra on 3 October 1966, terminating the monthly tenancy in its favour
as from 31 October 1966. The state contended that the notice under s80 was not valid as
one of the essential ingredients of the cause of act ion for possession, that is, the
termination of tenancy, was not in existence at the date of notice. It was held that the
contents of the notice were sufficient to enable the state to realise what the consequences
would be if there was no compliance made in terms of the notice. The notice did set out
on payment of rent for more than six months and also that if default was made in payment
of arrears of rent a suit for possession would be instituted.30 Moreover, an alternative and a
lesser claim which is not mentioned in the notice cannot derogate from the plaintiffs right
to have the suit tried on the issue claimed in the notice.31 If in the circumstances of a
particular case it is open to the court to give relief to the plaintiff against an ordinary
defendant on the basis of the pleading of such a defendant without amending the plaint,
the mere fact that the defendant is a government or a public officer does not debar the
court from granting the relief on the ground that such an alternative relief was not claimed
in the notice.32 Where a notice is served and on a subsequent discovery that a certain plot
of land had been omitted from the notice, another notice adding the plot to the subject
matter of the dispute is served, a suit filed more than two months after the first notice but
within two months from the date of the second notice would not be bad so far as it relates
to the plots mentioned in the first notice and relief as to those plots cannot he denied if
the evidence justified that relief.33 Where the railway administration made part payment in
full settlement of a claim after service of notice and the plaintiff accepted the same under
protest, if a new set of facts arises giving rise to a fresh cause of action, a fresh notice
would be necessary in respect of such fresh cause of act ion.34 Where there are several
prayers in a plaint, the suit is good if the notice embodies only those reliefs which are
claimed against the public officer.35
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By the notice given under s80, relief proposed to be claimed was for a declaration that the
employees resignation was invalid, on the ground that it was obtained by coercion and
undue influence. In the suit, relief claimed was for a declaration that the order of
acceptance of resignation was invalid. It was held that the notice was invalid, as relief
claimed in the suit and cause of action of such relief were not specified in the notice. It was
held, that even if the acceptance of the plaintiffs resignation was bad on any such ground,
the suit cannot yet succeed, for want of a valid notice under s 80 of the Code of Civil Procedure.
The reason was, that the order cannot be declared to be illegal unless a declaration was
claimed to that effect, and a declaration to that effect could not be claimed in the suit,
unless it was specified in the notice as one of the reliefs proposed to be claimed in the suit,
and the ground on which the suit was to be filed or the cause of action of the same were
duly specified in the notice.36

10. Reply to noticeduty of government. These provisions cast an implied duty on all
concerned governments and states and statutory authorities to send appropriate reply to
such notices. Having regard to the existing state of affairs, we direct all concerned
governments, central or state or other authorities, whenever any statute requires service of
notice as a condition precedent for filing of suit or other proceedings against it, to
nominate, within a period of three months, an officer who shall be made responsible to
ensure that replies to notices under s80 or similar provisions are sent within the period
stipulated in a particular legislation. The replies shall be sent after due application of mind.
Despite such nomination, if the court finds that either the notice has not been replied or
reply is evasive and vague and has been sent without proper application of mind, the court
shall ordinarily award heavy cost against the government and direct it to take appropriate
act ion against the concerned officer including recovery of costs from him.37

11. Rejection of plaint. Non-compliance with the requisites of this section38 or an

omission of an averment in the plaint that notice required by this section has been served,
will merit rejection of the plaint under O 7, r11.39 But where the suit is against a public
officer and a private individual and no notice is served on the public officer, the plaint is
not to be rejected but the suit would be carried on with the name of the public officer
struck off.40 This would also be the position where the suit is against government and a
private person.41

However, if notice has been served and a statement of service is not averred in the plaint,
an amendment of the plaint in that respect should be allowed.42

12. Government formally joined. It has been held that even in a case in which the
secretary of state was a pro forma defendant (ie, no relief had been asked against him),
notice was necessary and that if no such notice was given, the name of the secretary of
state would be expunged.43 But, such a course cannot be followed where such expunging is
not possible without material change in the nature of the suit.44
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13. Waiver of Notice. There can be no dispute to the preposition that a notice under s80
can be waived. But the question is whether merely because in the amended written
statement such a plea is not taken, it amounts to waiver.45 It is settled proposition of law
that the provision under s80, Code of Civil Procedure is mandatory but the right can be waived
by the party for whose benefit it has been provided; and no suit can be instituted without
service of notice because such service of notice either under s80 Code of Civil Procedure, or
under the provisions of the relevant Act, for instance, the Municipality Act in some cases,
is required statutorily as a condition precedent.46 It is competent for government to waive
notice. The government may also be estopped from objecting to want of notice at a late
stage of the trial on the ground that it must be taken to have been waived.47 The right
under s80, may be waived by the party for whose benefit it is provided.48 Thus, where the
plea of want of notice was raised in the written statement but no issue was raised thereon
in the courts below, the objection was not allowed to be raised for the first time in the
second appeal. Such an objection was held to have been waived.49

It has been held by the Supreme Court that where the plea of want of notice under s 80
was not raised by the Government in the written statement or additional written statement,
such defect will be deemed to have been waived.50 D.K. Jain, J. speaking for the Bench in
the above case observed as follows:

Accordingly, we decline to interfere with the finding recorded by the High Court on this aspect of the matter. The High Court has held
that having participated in the original proceedings, it is not now open to the Sate to raise a fresh issue as to the maintainability of the
suit, in view of waving the defect at the earliest point of time. The High Court has also observed that knowing fully well about non-
issue of notice under s 80, CPC the State had not raised such a plea in the written statement or additional written statement filed in the
suit, and therefore, deemed to have waived the objection. It goes without saying that the question whether in fact, there is waiver or not
necessarily depends on facts of each case and is liable to be tried by the Court, if raised, which, as noted above, is not the case here.51

Where the amended portion of the plaint was not set out in the notice but no issue or
argument was raised about it in the trial court nor was it made a ground of appeal it was
held that there was waiver.52 However, when notice given in respect of original plaint as it
originally stood and amended plaint was filed on the basis of entirely new cause of action,
the fresh notice regarding this new cause of act ion was not given, the suit was not
maintainable for want of notice.53 Likewise, though the state objected to the
maintainability of the suit on the ground of want of notice but that objection was rejected
by the lower appellate court and the state, though a party, did not raise the objection in the
second appeal it was held that the state was deemed to have waived the objection.54 But
the High Court of Bombay has recently held that a waiver is an intentional relinquishment
of a known right and where it is sought to be relied on by a party it is for that party to
establish the circumstances under which he wants an inference of either, express or
implied waiver to be drawn. It has further held that the section contains a bar against filing
suits without notice and to that extent the matter relates clearly to the jurisdiction of the
court and consequently the question of waiver either by the state or by a public officer
cannot arise.55 The High Court of Orissa has also held that if the issue as to want of notice
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has been raised but not pressed in the trial court, the defendant state would not be
estopped from raising it at the appellate stage since there is no estoppel against law.56 It is
submitted that these last two decisions require reconsideration. The majority of the High
Courts have taken a different view. Further, the section lays down only a condition on a
plaintiffs right to maintain the suit. It does not restrict the jurisdiction of the courts, for, it
does not say that no court shall entertain a suit where the notice has not been served. The
notice is for the protection of the state and if, in a particular case it does not require that
protection, it can lawfully waive its right thereto.57 The Madras High Court has held that
where the government waives notice under this section, such waiver is binding on all
persons interested in the subject matter.58 Thus, where the secretary of state took objection
to the sufficiency of the notice in his written statement but raised no issue on the point
and took no objection during the trial, it was held that another defendant could not raise
this issue at a later stage as the secretary of state had waived notice.59 If the defendant
wants to rely on the invalidity of the notice, it is for him to raise a specific issue on the
point.60

In a case relating to claim under the Fatal Accidents Act, 1885, it was held by the Gauhati
High Court that where maintainability of the claim application was challenged by the
opposite party, but no specific ground was taken as to why the application was not
maintainable and at no stage the State took the plea of non-service of notice under s 80 of
the Code, the requirement of notice may be safely held to have been waived.61

In a suit against Government, where notice had been given to the concerned Government
Department which was necessary party, in a proper manner, the requirement of notice
upon other parties like State Government and others may be waived. It was held that on
account of such technical defect, the suit should not be allowed to be defeated.62

14. Notice to Government. Where a suit is to be instituted against government, notice

under this section must be given in all cases, whether the act in respect of which the suit is
to be brought is purported to have been done in official capacity or not. This expression in
respect of any act purporting to be done by such public officer in his official capacity
refers to the public officer and not to government. This was made clear by the substitution
of the words by such public officer for the words by him which occurred in the
corresponding s 424 of the Code of Civil Procedure of 1882.

Where suit is filed for recovery of money from the state government on a matter relating
to the health department, then a summons served on the Chief Secretary is not valid.63 A
state electricity board is not government and its assistant engineer is not a public officer.64

U.P. State Handloom Corporation, Electricity Board or Food Corporation of India or any
other statutory Corporations are instrumentalities of the Government and are State within
the meaning of Article 12 of the Constitution of India. Nevertheless, they would not answer to
the discription of Government as understood in law. Thus, the U.P. State Handloom
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Corporation not being the State Government within the meaning of s 80 of the CPC, notice
for institution of suit against it would not be mandatory.65

15. Notice to public officer: Act purporting to be done in official capacity. According
to the Concise Oxford Dictionary, to purport in this context means to be intended to
seem. Applying this meaning, the words any acts purporting to be done by such public
officer in his official capacity mean any act intended to seem to be done by him in his
official capacity.66 If the act was one such as is ordinarily done by the officer in the course
of his official duties, and he considered himself to be acting as a public officer and desired
other persons to consider that, he was so act ing, the act clearly purports to be done in his
official capacity within the ordinary meaning of the term purport.67 Where in a suit against
government for recovery of a sum of money, the allegation was that a postal clerk was
guilty of negligence in that he paid the amount from the plaintiffs saving account to a
wrong person. The postal clerk was a necessary party and failure to give him notice
rendered the suit liable to dismissal.68 A suit for compensation for medical negligence
against the government hospital and the doctors working therein was filed, wherein a relief
was also claimed against the doctor who attended to the patient. It was held that doctor
was discharging his duty as a public officer and separate notice to him under s80 is
necessary.69 In a case where the official receiver of the Calcutta High Court was sued for
negligence in that he failed to collect rents, Rankin CJ, held that the section applied to non-
feasance as well as to misfeasance and referred to the definition of the word act in the
General Clauses Act as extending to illegal omissions.70 In a suit for refund of excess
payment of royalty under s20, Coal Mines (Nationalisation) Act, 1973 notice was sent to the
district mining officer who was the authorised agent of the state to realise the royalty. State
was not prejudiced. It was held that the notice was not invalid on the ground that it was
not addressed to a secretary to government.71 A government servant sued individual
government servants for damages, for pecuniary loss of position and prestige and mental
agony, caused by the, conduct of the defendants in creating false evidence, to implicate the
plaintiff, resulting in the plaintiffs reversion. The defendants pleaded that the acts were
done in their official capacity and, therefore notice under s80 was necessary. Without
deciding whether the act was connected with the, official duties of the defendants, the trial
court (and, on appeal the first appellate court), dismissed the suit, for want of notice. It
was held by the High Court, that the dismissal was illegal, as the judgments did not show
how the acts alleged were connected with official duty. If the suit is filed against a public
officer, then notice is mandatory only when the suit is in respect of an act purporting to be
done in his official capacity.72 Where a revenue officer is to be impleaded in a suit for an
official act (alleged to be illegal), notice under s 80 is required.73

Where a public officer had not done any act in his official capacity, it was held by the
Supreme Court that the suit could not be discussed for non-service of notice under s 80 of
the Code on the said public officer, if notice has been served on the State.74 In the above
case some lands had been transferred to the plaintiff in lieu of his acquired lands. The
transfer was duly approved by the District Collector and mutation was allowed. Later on
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the said order of approval was revoked and the land in possession of the plaintiff was
delivered to District Education Officer. Explaining the requirement of notice under s 80 of
the Code, Tarun Chatterjee, J., speaking for the Supreme Court Bench observed as follows:

The suit which is not in respect of any act done by the respondent No. 3, as a public officer, and in which no act of respondent No. 3 is
either challenged or sought to be set aside is not a suit to which s 80 of the CPC can very well apply. Therefore, in the facts and
circumstances of the present case, the respondent No. 3 had not acted in his official capacity for which service of notice under s 80 of
the CPC was necessary. That apart, it is not in dispute that the respondent No. 2 was Administrator and overall in-charge including the
Government Middle Schools (Students Institutions) in the District and the notice served on the State Government through District
Collector of the District was sufficient compliance with the requirements of s 80 of the CPC.75

Notice to government, as prescribed in the section, must be given in all cases whatever the
nature of the suit.76 But notice to a public officer is necessary in those cases only where the
suit is in respect of any act purporting to he done by such public officer in his official
capacity. Therefore, if the suit does not relate to any act or omission purporting to be done
by a public officer in his official capacity, this section will not apply.77 It follows that notice
to a public officer is not necessary where the act done by him is not within his sphere of
duties. Thus, where a public officer took possession of property which he had no authority
to seize and was sued for trespass, it was held that the suit was not against him in his
official capacity but as a private individual, and therefore, no notice was necessary and for
that purpose pleadings have to be examined.78 So also, when an investigating police officer
assaulted a witness,79 or a sub-overseer was assaulted by his superior officer and the suit
was for damages, the act complained of was not an act purporting to be done by the
defendant in his official capacity, and, therefore, no notice was necessary.80 No notice is
necessary when the suit is not in respect of an act done by the public officer, although he is
made a defendant, as when a collector is made a party defendant for the protection of the
title of a minor;81 or when the suit is against the official trustees for the determination of
the rights of beneficiaries to trust funds in his hands;82 or when the official assignee, as
representing the estate of an insolvent, is made a party in a suit for declaration of title and
no act of the official assignee is complained of except an objection to the entry of plaintiffs
name on the record of the rights.83 The relief asked for in a suit for a change or
cancellation of an entry made by the registrar under the Madhya Pradesh Public Trusts Act,
1951 is not one against the government or the registrar personally and hence no notice is
necessary for such a suit.84 No notice is necessary in a suit against the common manager
under s95 of the Bengal Tenancy Act to enforce a mortgage executed by a former
manager. Such a suit is not against the manager personally and his omission to pay off the
debt is not an act purporting to be done by him in his official capacity.85 So also, the mere
setting up of a claim to property, for example, the debt due to insolvent on behalf of the
estate which the official receiver represents, cannot be considered to be an act purporting
to be done by a public officer in his official capacity.86 In a suit against an official receiver
of an estate for recovery of arrears of rent, notice is not necessary as the omission of the
receiver to pay rent is not an act purporting to have been done by him in his official
capacity.87 In a suit for royalty of lands in the possession of the receiver, non-payment of
the royalty cannot be said to be an official act done by the receiver. Hence, this section
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does not apply.88 Orders passed by the deputy commissioner and the commissioner under
ss 68 and 61 of the Hindu Religious and Charitable Endowments Act are judicial orders and a
right to sue to set them aside is provided by s62. In such a suit, no notice is required as the
commissioner is not sued in his capacity as a public officer but as a statutory body.89 The
Orissa High Court has, however, held that although s43(3) of the Bihar and Orissa Public
Demands Recovery Act provides for a suit, in a suit against the Director of Industries by a
certificate-debtor against the rejection of his objection, notice is necessary.90

The decisions are conflicting as to whether notice is necessary under this section when a
public officer acts mala fide, that is, maliciously or dishonestly, it being held in some cases
that it is not91 while in others that it is92 necessary. The former proceed on the ground that
an act done mala fide by a public officer cannot be said to be an act purporting to be done
by such public officer in his official capacity. The latter proceed on the ground that the
section makes no distinction between acts done bona fide and acts done mala fide and that
notice is necessary in every case where a public officer purports to act in his official
capacity. Thus, a suit against a police officer, for having searched the house of the plaintiff,
dragged him to the thana, and detained and kept him in confinement for several hours
maliciously and without cause, could be filed according to the former view without notice
because the officer having acted illegally and in bad faith could not be said to have act ed
in his capacity as a public officer.93 Similarly, in a suit against a district magistrate and two
officers of police for conspiracy and malicious arrest and search, it was held that the suit
was one in which the public officer was sued in respect of an act done in bad faith and
therefore no notice under this section was required.94 On the other hand, in Jogendra Nath
Roy v. Price 95 where the plaintiff sued a district magistrate for damages for illegal and
malicious arrest under a warrant, it was held that though the act was said to have been
done maliciously, notice was necessary under this section. The court said:

The section does not seem to us to warrant the drawing of any distinction between acts of this kind done inadvertently or otherwise.

Following the above decision, the High Court of Allahabad, in a suit against a police
officer to recover certain books seized by him in a search, said that if he seized the books,
which was denied, he did so in his capacity of police officer and that notice was necessary
under this section.96 In a case decided by a Full Bench of the Madras High Court,97A sued
B and attached, before judgment, certain wood belonging to B. Thereafter, the village
munsiff sold the wood for arrears of revenue due from B though there was no necessity to
sell the whole and after retaining the amount due for, arrears of revenue handed over the
balance of the sale-proceeds to B, although he had knowledge of the attachment.
Thereupon, A brought a suit against the village munsiff for damages, alleging that the munsiff
had colluded with B and paid the balance to him. The court found that the munsiff was
aware of the attachment and that he dishonestly and fraudulently paid over the balance of
the sale-proceeds to B. On the question of notice under this section, the Full Bench held
that the munsiff was entitled to notice under this section, although he act ed mala fide in the
discharge of his duties. The general trend now is that notice is necessary even if the act is
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mala fide98 or malicious.99 Accordingly, it has been held that this section applies in respect
of a suit for malicious prosecution against a police officer.100

16. Suits on contracts and torts. The High Court of Bombay had held in a series of cases
that the requirement of notice was limited to suits on tort and that no notice was necessary
in suits founded on contract.101 In Prasaddas v. Bannerjee,102 Rankin CJ, said:

It is, no doubt, broadly speaking, true that such a section as this is not intended to apply to
act ions ex contactu and there are other classes of actions no doubt which do not come
within the meaning of the expression in respect of any act purporting to be done by such
public officer in his official capacity. The learned Chief Justice then referred to the case of
Sharpington v. Fulham Guardians.103 In that case, the guardians were under a public duty to
supply a receiving house for poor children and had employed a builder to alter a mansion
house so as to make it a receiving house for the children of paupers. The guardians were
sued by the builder on the contract with him. Farewellj held that the guardians were not
entitled to a special period of limitation provided by the Public Authorities Protection Act,
1893, because it was a breach of a private contract that was complained of and that it was
not a complaint by a number of children or by a member of the public in respect of a
public duty. In Rebati Mohan v. Jatindra Mohan,104 the Privy Council, however, held that the
section applies to suits on contrast. This decision has the effect of overruling a series of
cases in which the requirement of notice was limited to suits on tort.

17. Declaratory suits. The section applies to suits for declaration.105

18. Suits for injunction. There was, at one time, a conflict of decisions as to whether the
section applied to suits for perpetual injunction. This conflict was resolved by the Privy
Council in Bhagchand v. Secretary of State 106 approving Calcutta, Madras and Allahabad
decisions,107 that this section and the corresponding s424 of the previous Codes should be
strictly complied with and that they applied to all forms of act ion and all kinds of relief.
That decision overruled the Bombay decisions that no notice was necessary in a suit for
injunction against a public officer or against the secretary of state even when the act to be
restrained against might occasion serious or irreparable damage.108 In delivering the
judgment of the Board, Viscount Summer said:

To argue as the appellants did, that the plaintiffs had a right urgently calling for a remedy,
while s 80 is a mere procedure, is fallacious, for s 80 imposes a statutory and unqualified
obligation upon the court. So, too, the contention that the act purporting to be done by
the collector in his official capacity, in respect a which the suit was begin, was his
threatened enforcement of payment is fallacious also, since the illegality, if any, is in the
order for recovery of the tax. If that was valid, there was nothing to be restrained. Hence,
though the act to be restrained is something apprehended in the future, the act alone in
respect of which the suit lies, if at all, is the order already completed and issued.
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In a Bombay case, it was left open whether if with notice of a suit the intended defendant
proceeded to act in such a way as to anticipate a hostile order of the court in the intended
suit, the court could restore the status quo ante on an interlocutory application before the
trial.109 The section applies to all suits for injunction perpetual and prohibitory as well as
mandatory.110 The decision in State of Bihar v. Raghunandan Singh 111 that the section has no
application to future acts and that accordingly, no notice is necessary for a suit for
permanent injunction restraining the government from settling the ghat in future is, it is
submitted, not correct. A suit for injunction filed against the government seeking restrain
on encashment of bank guarantee furnished by the plaintiff, the suit was filed without
taking leave of the court and without serving notice to government under s 80. The court,
before granting the injunction, ordered the notice to be issued to the government. The suit
is not bad for want of notice under s 80.112 An application for injunction in a pending
arbitration proceedings under the Arbitration Act, 1940 being not a suit, the provisions of s
80 of the Code of Civil Procedure will not be attracted. Section 41 (a) of the Arbitration Act, 1940
makes procedural rules of the Code of Civil Procedure applicable to the proceedings pending
in the court only and, therefore, there is no necessity of service of notice under s 80.113

In a suit for grant of permanent injunction under the J&K Civil Procedure Code (Smvt. 1977),
where no notice was issued to Government and no leave was obtained from the court to
institute the suit and service of notice had not been waived by the authorities, it was held
that the Court had no jurisdiction to grant interim relief when such interim relief had not
even been prayed for.114

19. Withdrawal of suit. A plaintiff, who gives a notice under this section and institutes a
suit before the expiry of the two months prescribed in the section and is permitted to
withdraw that suit with liberty to institute a fresh suit, is entitled to institute a fresh suit
without a fresh notice.115 The Supreme Court has affirmed this position.116 One of the
grounds under which withdrawal be permitted with liberty to sue afresh is that a suit must
fail by reason of some formal defect. Non-service of notice under s 80 of the Code of Civil
Procedure is a formal defect on the basis of which a suit have failed.117

20. By what name public officer to be sued. The suits referred to in this section are
suits against the public officer personally in respect of acts done in his official capacity.
The public officer cannot be sued by his official name unless he is a corporation sole.118

21. Death of complainant after notice but before suit. In some decisions, a view was
taken that when a claimant gave notice but died before filing a suit, the notice did not
ensure for the benefit of his legal representatives and that a suit by them without a fresh
notice was not maintainable.119 But a different view was taken where one of the plaintiffs,
who alone had served notice, died pending the suit. The suit was continued by his
transferees who were on record as co-plaintiffs. It was held that the suit did not fail.120 The
question as to whether a notice under s 80 is valid or not is a question of judicial
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construction. Section 80 of the Code of Civil Procedure is but a part of the Procedure Code
passed to provide the regulation and machinery, by means of which the courts may do
justice between the parties. It is therefore, merely a part of the adjective law and deals with
procedure alone and must be interpreted in a manner so as to subserve and advance the
cause of justice rather than to defeat it. As far as possible, no proceedings in a court of law
should be allowed to be defeated on mere technicalities. This is the principle on which our
laws of procedure are based.121

22. Amendment of plaint. Where notice of a proposed suit is once given, it is not
necessary to give a fresh notice of two months if the plaint has to be amended owing to
discovery of facts not within the plaintiffs knowledge at the time of the institution of the
suit,122 or for adding further grounds for the cause of action already disclosed,123 or when
new facts have arisen subsequent to the suit.124 No notice is necessary for an amendment
which does not call for any new relief or introduce a new cause of act ion.125 That would
also be so when facts on which the amendment is proposed to be made, are already on
record and therefore do not cause any surprise or prejudice to the other side.126 But no
amendment will be allowed if the effect of the amendment is to convert the suit into
another of a different character, eg, a suit based on negligence into one based on nuisance.
In such a case, a fresh suit must be brought after giving fresh notice as required by this
section.127

There can be no dispute to the proposition that a notice under s80 can be waived. But the
question is whether merely because in the amended written statement such a plea is not
taken it amounts to waiver. Even otherwise when in the suit itself, Issue No4 had been
raised as to whether or not there was a valid and appropriate notice under s80. Such a
point having been taken in the original written statement and an issue having been raised, it
was not necessary that in the amended written statement such a plea be again raised. If the
original notice was only in respect of a claim under the plaint as it originally stood that
claim was on the basis that there was a concluded contract and that the appellants had
already acquired rights in the Mill and the lands. Those reliefs were not maintainable and
were given up before the appellate court. The amended plaint was on an entirely new cause
of action. It was based on facts and events which took place after the filing of the original
plaint. It was a fresh case. Now the claim was for specific performance of the agreement
alleged to have been entered into on 29 December 1978. Admittedly no notice under s80,
Code of Civil Procedure was given for this case. As there was an issue pertaining to notice
under s 80, the trial court should have dealt with this aspect. The trial court failed to do so.
It was then pressed before the appellate court. The finding in the impugned judgment that
the suit based on this claim was not maintainable is correct and requires no interference. If
a new cause of action is being introduced a fresh notice under s 80, Code of Civil Procedure
would be required to be given. The same not having been given, the suit on this cause of
action was not maintainable.128

23. Notice to Collector. A collector is entitled to notice under this section of a suit for
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damages in respect of an act done by him in his official capacity as agent of the court of
wards, but he is not entitled to such notice if he is sued or joined as a party not by reason
of any act purporting to be done by him in his official capacity, but merely for the
protection of a minors title.129 This section does not apply to a suit to contest the legality
of the collectors decision as to levy of assessment of land revenue, brought pursuant to an
undertaking given under s 14 of the Bombay City Land Revenue Act 2 of 1876 within 30
days from the decision. The reason is, first, that there is a conflict between that Act which
is a special Act and the provisions of this section (General Act), and, secondly, that the Act
itself draws a distinction between suits brought on account of land revenue and suits
brought on account of acts done in their official capacity by the collector or any of his
assistants and s 80 refers to the latter class of suits and not to the former.130

24. Notice to Cantonment Committee. Cantonment Committee constituted under the

Indian Cantonments Act, 1889, is a public officer within the meaning of this section.131

25. Notice to Coal Mines Provident Fund Commissioner. The Coal Mines Provident
Fund Commissioner is not a public officer within the meaning of the term in s 2 (17)(h) of
the Code of Civil Procedure.132

26. Municipal Council and Village Panchayat: Notice not necessary. A municipal
council is not a public officer and no notice is necessary when a suit is filed against a
municipality.133 A village Panchayat also is not a public officer.134 The commissioner of a
Municipal Corporation is a public officer135 but not the port commissioners of Calcutta.136
A suit against the Director of Municipal Administration for restraining him from
implementing a motion of non-confidence passed at a meeting alleged to be illegal
necessitates a notice.137

27. Notice to Official Assignee. The official assignee is a public officer, and he is entitled
to notice under this section before a suit is filed against him in respect of any act
purporting to he done by him in his official capacity.138 The same rule applies to a receiver
appointed under the Provincial Insolvency Act, 1920.139 But no notice is necessary when the
official assignee or receiver is made a party to a suit to realise a charge on the property of
the insolvent which has vested in him and no act or omission on the part of the receiver is
alleged.140 The Bombay High Court had held that no notice was necessary in a suit to
restrain an official receiver from selling goods claimed by the plaintiff;141 but as stated
above, this case has been overruled by the Privy Council.142 The Lahore High Court had
accordingly held that in such a case, notice is necessary.143 In a suit to set aside a sale by an
official receiver, the receiver is a necessary party and notice must be served upon him
under this section.144 A suit against the official receiver by the wife of an insolvent, for a
declaration that she is entitled to retain certain property as long as her claim for dower-
debts is not satisfied is liable to be dismissed for want of notice to the official receiver
under this section.145
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28. Notice to Receiver. A receiver appointed in a suit is a public officer and is entitled,
even after his discharge to notice before a suit is filed against him for acts purporting to
have been done in his official capacity.146 But no notice is necessary where the complaint is
in respect of an act not done by him in his official capacity,147 or where no relief is claimed
against the receiver, as for instance where the suit is for a declaration that a mortgage
executed by him is not binding on the estate.148 A manager appointed in an administration
suit with power to collect rent and royalties is a public officer and so notice is necessary
when his official acts are the subject matter of the suit.149 But this section does not apply to
a case where a suit for possession is brought against the owner of the estate in respect of
which a receiver is appointed and which suit the Receiver has to defend.150

29. Notice to Official Liquidator. The official liquidator, under the Indian Companies Act,
is an officer of the court and is a public servant and is entitled to notice under the
section.151 But no notice is necessary if the act complained of, is not an act done by him in
his official capacity.152 Judicial opinion is divided on the question whether a liquidator
appointed by the registrar under s42 of the Co-operative Societies Act is a public officer within
this section. Some decisions hold that he is153 while others that he is not.154

30. Notice to Official Trustee. By s 16 of the Official Trustees Act 2 of 1913, it is enacted
that nothing in s 80 of this Code shall apply to any suit against the, official trustee in which
no relief is claimed against him personally.

31. Notice to Administratorgeneral. By s41 of the Administrator Generals Act 3 of

1913, it is enacted that nothing in s 80 of the Code of Civil Procedure shall apply to any suit
against the Administrator-General in which no relief is claimed against him personally.

32. Notice to common manager appointed under section 95 of the Bengal Tenancy
Act 8 of 1885. Such a manager is a public officer within the meaning of this section, and
he is entitled to notice under this section.155 This proposition was disputed before the Privy
Council. Their Lordships did not decide whether the manager was, or was not, entitled to
notice; but held that the omission of a manager to redeem a mortgage by a former manager
was not an act purporting to be done in his official capacity so as to make notice
necessary.156

33. Limitation. In computing the period of limitation, prescribed for a suit under this
section, the period of the notice should be excluded.157

34. Place of suing. Where a suit was filed by the Chairman of the Marine Products
Export Development Authority, claiming that he was entitled to provident fund and
gratuity, making the Union of India and the said authority as defendants, the suit filed after
the expiry of two months period from the date of issuing notice under s 80 of the Code of
Civil Procedure would not be barred by limitation on the mere ground that s 80 is not
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applicable to the Marine Products Export Development Authority.158 Time spent in service
of notice under s 80 is to be excluded in computation of limitation. If a Sunday intervenes,
that also is to be excluded.159

35. Notice not part of the cause of action. Though a notice under this section is
necessary before a suit can be filed, it is not part of the cause of act ion and consequently, a
court which has otherwise no jurisdiction to entertain a suit does not get jurisdiction to
entertain it on the ground that the notice was issued within its jurisdiction.160

36. Suit under order 21, rule 63. The High Court of Punjab took the view that no notice
is necessary for a suit under O 21, r63 as the government was a party to the claim
proceedings and the suit was only a continuation thereof.161 In consonance with this
proposition, the Allahabad High Court also held that where on dismissal of an objection
by the collector in proceedings for recovery of arrears of Income Tax, the objector files a
suit under O 21, r63, such a suit is in continuation of the claim proceedings under O 21,
r58 and hence no notice is necessary.162 This is no longer good law, for, the Supreme Court
has rejected the proposition that a suit under O 21, r63 is either a continuation of the
objection proceedings under O 21, r58 or is a form of appeal against the order passed in
them and emphasised that these proceedings under O 21, r63 were in the form of a suit
and such a suit being against government required notice.163 Now that r63, of O 21 has
been deleted by the Amendment Act, 1976, these decisions have only academic value.

37. Constitutionality of the Section. The provision as to notice is not repugnant to art14
14 14 of the Constitution of India.164

38. Railways. Before the enactment of the Government of India Act, 1935, it had been
held that if a railway was owned by government, a suit for a claim against the railway
administration must be brought against the secretary of state after notice under this
section.165 Notice of a claim to the railway administration under s77 of the Railway Act,
1890 does not dispense with the necessity for notice under this section, to the secretary of
state.166 Omission by the defendant to reply to a notice under s80 may, along with other
facts, be relevant for assuming that the defendant was not ready and willing to go to
arbitration.167 The notice under s80 was neither signed by the party or his advocate,
however, the identity of the person who gave notice, particulars of his client, value of
consignment of undelivered and its intended legal act ions clearly spelt out a notice. It was
held that notice complied with the requirement of s80 of the Code of Civil Procedure.168 In a
suit against the railways, the notice under s80 was sent to the Union of India as
represented by the Chief Commercial Superintendent (Claims) and not to the General
Manager of Railways, as provided by s80. It was held that such a notice is no notice under
that section, hence, it is to be regarded as there being no compliance with the requirement
of s80. It cannot be contended that a notice under s 78 -B of the Railways Act was properly
given, or that it would be tantamount to a notice under S 80. The scope of s 78 B of the
Railways Act and s 80, are completely different from each other and one is not an
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alternative of the other.169 Suit was filed, against the Central Government relating to
railway. Notice was left at the office of the General Manager. Notice so left at the office,
was held to have duly complied with the statutory requirement under s 80 of the Code of Civil
Procedure. It was held, that personal notice is not a condition precedent to the institution of
the suit.170 But as a result of the amendment of the section in 1948 in its present form, it is
no longer necessary to send two notices, one to the government and another to the railway
authorities. The two notices can be combined and sent to the authority named in the
section.171 A notice under this section would be treated as a combined notice both under
this section as well as s77 of the Railways Act.172 There is a difference of opinion on the
question as to whether when goods are carried by more railways than one, a notice should
be given to all of them. One view is that for the purpose of this section each railway must
be regarded as a distinct legal entity and accordingly a claim must fail if no notice is given
to the particular railway against which relief is claimed.173 A notice to the general manager
of the railway and copies thereof to the general manager of another railway is sufficient.174
The contrary view is that as all the railways are owned by government, a notice as provided
under s80 is a notice to government which would consequently be liable and that it is not
necessary that all the railways should have separate notices.175 The submission is that the
latter view is in consonance with the realities since all railways are now owned by
government. Besides, under the Railways Act each railway has no legal entity and the
railways are divided into different zones only for expediency. On the question of
sufficiency of notice to railways administration, see the cases noted below.176

39. Sub-sections (2). The requirement of notice under this section was condemned on
several occasionsboth in judicial pronouncements and otherwise. The ground for such
condemnation was that it made an unjustified discrimination between suits against citizens
and those against governments and public officers. There was considerable justification in
the condemnation in view of the fact that in recent times governments have ventured in a
big way in ordinary commercial and trading act ivities and do no longer confine themselves
to what are known as sovereign acts. In view of this criticism, it was proposed that the
section should be omitted from the Code of Civil Procedure; but the joint committee of
Parliament, to which the Amendment Bill 1974 was referred, ruled that the proposed
deletion would not be in public interest and might encourage some persons to file suits
against government and obtain ex parte reliefs and thus, hinder the pace of developmental
act ivities. The committee, accordingly, recommended the retention of the section but
sought to reduce the rigour of it by proposing certain relaxations. These relaxations are
subject to two conditions. Sub-Section (2) permits a suit to be filed without notice if:
(i) it is for obtaining an urgent or immediate relief; and
(ii) provided leave of the court is obtained thereof.

The sub-section further provides that the court shall not grant relief, including an interim
relief, without giving an opportunity to the defendant government or public officer of
being heard. The proviso to sub-s (2) further makes it mandatory for the court to return
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the plaint for presentation to it after complying with the necessity of notice if it is satisfied
after hearing the parties that no urgent or immediate relief need be granted. These
restrictions have the effect of retaining the discriminatory character of the provision for
notice which was complained of. The urgency for which an interim relief is intended to be
prayed for might also in some cases lose much of its meaning where during the interval
between the filing of the suit and giving opportunity for being heard, the court is faced
with fait accompli especially in matters where possession of property is threatened. Courts
have the power of vacating ex parte interim reliefs granted by them in suitable cases where
a defendant makes such an application. Such a power is an adequate safeguard against
interim orders unjustifiably obtained.

(a) Two options. A plaintiff intending to institute a suit against the government has two
options before him. He may file a suit after serving two months notice under s80 of the Code
of Civil Procedure or he may file a suit without serving a notice. But in the latter event, he
may satisfy the court that an urgent and immediate relief was required and he must also
obtain previous leave of the court. In the event of the first course being adopted, the suit
cannot be filed before the expiry of two months of giving of the notice. This explains the
reason for using the word shall in sub-s (1) of s80 by Parliament. However, in the second
case, he has the choice to file the suit without giving the requisite notice, but only after
obtaining leave of the court. It is for this purpose, the word may has been used in s80(2).177

(b) Urgent or immediate relief. Sub-s 80(2) of the Code of Civil Procedure, has been introduced in
the amended Code of Civil Procedure with a view to mitigate the rigours of sub-s (1) of s80
and to enable a person to seek urgent and immediate relief. It is in the nature of an
exception to s 80 (1) and enables the plaintiff to file a suit to obtain an urgent and
immediate relief without serving any notice as required by sub-s (1), subject to the
condition that such a suit has to be filed with the leave of the court. The most important
condition envisaged under s 80 (2) is relating to urgency in the matter. Where the court is
satisfied that urgent and immediate relief is required and the plaintiff would not be in a
position to wait 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 s80(1). Even in such
cases where leave is granted, the court is enjoined not to grant relief in the suit, whether
interim or otherwise, without giving the state reasonable opportunity of showing cause in
respect of the relief sought for in this suit. As indicated in the proviso, if upon hearing the
parties, the court is satisfied that no urgent or immediate relief need be granted, the court
is to return the plaint for presentation after complying with the requirement regarding
service of notice contemplated under s80(1). It is thus clear that s80(2) has been
introduced with a view to entertain suits where urgent or immediate relief is required to be
given.178

Sub-section (2) of s 80 of the code mellows down the rigours of the requirement of service
of notice for suits against Government, by providing that the requirement can be
dispensed with the leave of the Court truly when urgent and immediate relief is to be
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granted. However, it has been laid down that before granting relief, opportunity should be
given to the Government to show cause.179 D.K. Jain, J., speaking for the Supreme Court
Bench in the above case, observed as follows:

16. Thus, from a conjoint reading of sub-section (1) and (2) of s 80, the legislative intent is clear, namely, service of notice under sub-
section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the
Government or a public officer may be instituted, but with the leave of the court. Leave of the court is a condition precedent. Such
leave must precede the institution of a suit without serving notice. Even though s 80 (2) does not specify how the leave is to be sought
for or given yet the order granting leave must indicate the ground (s) pleaded and the application of mind thereon.180

Where suit against Government is instituted without notice under s 80 of the Code but
after obtaining leave of the Court, the judgment and decree cannot be interfered with or
the ground that the suit was filed without notice under s 80 of the Code.181

In a suit against a public officer, the court granted ex parte temporary injunction as an
interim relief on the ground of urgency, by invoking its inherent powers. Such an order
could not be justified. Where there are provisions for dealing with certain matters in the
Code of Civil Procedure, resort to the inherent powers of the court overriding those provisions
is prohibited. If an urgent or immediate relief has to be given to the plaintiff, the
provisions of the Code of Civil Procedure can be dispensed with under s80(1). But if, after
hearing both parties, the court comes to the finding that no urgent or immediate relief
need be granted in the suit, the plaint will be returned for compliance with the
requirements of s80(1). Therefore, even in the matter of an urgent or immediate relief
(interim or otherwise), the court cannot dispense with giving to the other party an
opportunity, of showing cause in respect of the relief prayed for in the suit.182 For the
purpose of s80(2) what is material in the grant of leave, is the urgency of the relief sought
and not the merits of the case.183 The Allahabad High Court has held that where the
plaintiff wants a temporary injunction to restrain the government from holding an auction,
service of notice under s80 cannot be dispensed with. If the case is not urgent, this is the
ordinary rule.184 Leave under s 80 (2) would be granted, if the purpose of suit would be
frustrated if notice was required to be served.185

In a suit against Government, the leave to proceed without service of notice, as

contemplated under sub-s. (2) of s 80 was refused by the trial court. The plaint was
returned to the plaintiff and there was no suit before the trial court. The High Court in
revision passed interim order directing the parties to maintain status quo. At the time of
final disposal, the High Court vacated the interim order and remitted the matter to the trial
court on concession that the order of the trial court was a non-reasoned order. It was held
by the Supreme Court that the Trial Court was bound to consider the question of grant of
leave afresh.186

It was further held by the Supreme Court in the above case that in a suit against
Government, where leave to proceed without notice is refused by the trial court, superior
courts can grant such leave as otherwise in an emergent situation litigants may be left
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without remedy once such leave is refused and they may be required to wait out the
statutory period of two months after giving notice under s 80 of the Code.187

However, where suit against Government authorities is instituted without notice under s
80 of the Code and the application for grant of leave is refused by the trial Court, there is
no suit before the Court and the Court has no authority to grant interim relief.188

(c) Service of notice. Giving of anything as ordinarily understood in the English language is not
complete unless it has reached the hands of the person to whom it has to be given. In the
eye of law, however, giving is complete in many matters where it has been offered to a
person but not accepted by him. Tendering of a notice is in law, therefore, giving of a
notice even though the person to whom it is tendered refuses to accept it. We can find
however no authority or principle for the proposition that as soon as the person with a
legal duty to give the notice despatches the notice to the address of the person to whom it
has to be given, the giving is complete. 189

Therefore, mere despatch of notices to the address of the persons is not sufficient, and it
must be actually either delivered or tendered to the person/s to whom they are required to
be given under s 80 (1) of the Code of Civil Procedure. 190

In a suit against the railways, the notice under s 80 was sent to the Union of India as
represented by the Chief Commercial Superintendent (Claims). It was not sent to the
General Manager of Railways. It was held that there had been no compliance with the
requirements of s 80 and the suit was bound to fail on such account. It cannot be argued
that a notice under s 78 B of the Indian Railways Act, 1989 was properly given, and would
tantamount to a notice under s 80 of the Code of Civil Procedure. The scope of s 78 B of the
Indian Railways Act and s 80 of the Code of Civil Procedure are completely different from each
other and one is not an alternative of the other.191

The removal of encroachment by demolition of plaintiffs hotel by defendant, by

Administrator of Municipal Corporation, the act being done in official capacity, the
statutory notice under s 401 (2) of the MP Municipal Corporation Act (23 of 1956) was
necessary prior to filing suit for recovery of damages against defendant. Service of notice
by father of the plaintiff under s 80 Code of Civil Procedure to defendants is not sufficient.
Plaintiff being the aggrieved party himself ought to have served notice, therefore, the suit
is not maintainable.192

(d) Specific Order. Where there is application by the plaintiff for leave, the court must pass a
specific order thereon.193

Application was made by the plaintiff for leave to institute a suit without serving notice
under s 80 (1). It was held that the court must pass specific order on the application,
considering the nature of the case and reaching conclusion as to whether or not immediate
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relief is required to be afforded.194Section 80(2) does not prescribe any form or manner in
which leave of the court for institution of the suit under s 80 (2), without notice under sub-
s(1), has to be granted. Where a suit is instituted without notice, in expectation of leave
under s 80 (2), return of the plaint is permissible only if the court is satisfied that no urgent
or immediate relief is needed.195 Where a plaintiff files an application for leave under s 80
(2), it is incumbent on the trial court to have passed a specific order. This could be done by
taking into account the nature of the case, and also on reaching a conclusion as to whether
or not immediate relief is required to be afforded to him. Trial court must apply its mind.
No doubt, the trial court can return the plaint, but that can be done, only if it is satisfied
that no urgent or immediate relief need be granted in the suit.196

Dismissal of suit for want of notice under s 80 is wrong when application under s 80 (2) is
pending for grant of leave.197

(e) Implied leave. Section 80 does not prescribe any form or manner in which leave of court
for institution of the suit under s 80 (2) without notice under sub-s (1) has to be granted.
What it says is, only with the leave of the court, without serving any notice as required by
sub-s (1). Leave need not be by a formal order. It can be implied also and could be
gathered from what the court does. Proceeding with the suit after the objection, by
considering any relief, could be a visible manifestation of an implied leave being granted.
Section 80(2) does not specify how the leave is to be sought for, or given. In such cases,
the mode or form of request or grant is not material. What is material is only the substance
whether there was a proper request and whether it was considered and granted. Request
with grounds, if any, must be there, and there need only be indications, as to whether the
request is allowed or not. A reasoned order may be good and an application is also
appreciable, but neither of these is mandatory.198

It appears from record that originally the suit was instituted without issuing notice, but on
an objection taken by the office, an application was filed under s 80 (2) of the Code of Civil
Procedure to dispense with the issuance of notice on the ground of urgency, and the
defendants in the suit, had not chosen to file any counter and ultimately the said
application was allowed and in view of the same even framing of issue on this point by the
trial court may not be necessary and equally so even in appeal a point for consideration
need not be framed.199

A perusal of sub-s (2) of s 80 of the Code of Civil Procedure shows that no separate application
and an express order are the essential requisites; such leave could be presumed; the leave
need not be granted by passing a formal order. The leave under sub-s (2) of s 80 could be
implied and could be gathered from what the court does. The prayer for leave could be in
any form. From the reading of the plaint it appears that the plaintiff has expressly prayed
for leave to present the plaint under sub-s (2) of s 80 of the Code of Civil Procedure and gave
reasonable explanation in support of such prayers, the trial court has granted leave to the
plaintiff to present the plaint in exercise of its power under sub-s (2) of s 80 of the Code of
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Civil Procedure. The requirements of s80(2) of the Code of Civil Procedure were substantially
complied with.200

40. Sub-section (3). Sub-section (3) is a relaxation, in that a suit is not to be dismissed for
any technical error or defect, if, in the notice, there is sufficient material to identify the
plaintiff and the cause of act ion and the relief claimed are substantially indicated. The sub-
section is a legislative recognition of what the courts have been all along doing.201

S. 81. Exemption from arrest and personal appearance.

In a suit instituted against a public officer in respect of any act purporting to be done by
him in his official capacity

(a) the defendant shall not be liable to arrest nor his property to attachment otherwise
than in execution of a decree, and
(b) where the Court is satisfied that the defendant cannot absent himself from his duty
without detriment to the public service, it shall exempt him from appearing in
person.

1. Otherwise than in execution of a decree. The object of clause (a) is to exempt a

defendant who is a public officer from mesne arrest and his property from mesne
attachment. (See O 27, r 8.)

S. 82. Execution of decree.

202[(1) Where in a suit by or against the Government, or by or against a public

officer in respect of any act purporting to be done by him in his official capacity, a
decree is passed against the Union of India or a State or, as the case may be, the
public officer, such decree shall not be executed except in accordance with the
provisions of sub-section (2)].
(2) Execution shall not be issued on any such decree unless it remains unsatisfied for
the period of three months computed from the date of 203 [such [decree].
204[(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or
award as they apply in relation to a decree, if the order or award
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(a) is passed or made against 205[the Union of India] or a State or a public officer in
respect of any such act as aforesaid, whether by a Court or by any other
authority, and
(b) is capable of being executed under the provisions of this Code or of any other
law for the time being in force as if it were a decree].

1. Changes in the section. Leaving out the formal alteration made by the Adaptation of
Laws Order 1950, the words where in a suit by or against the Government, or by or
against a public officer in respect of any such act as aforesaid, a decree is passed against the
Dominion of India or a Province or, as the case may be, the public officer were substituted
by the Code of Civil Procedure (Amendment) Act, 1949, for the words Where the decree is
against the Dominion of India, or a Province or against a public officer in respect of any
such act as aforesaid.

By the Amendment Act of 1956, the words or within three months from the date of the
decree where no time is specified were inserted in sub-s (1).206

The Amendment Act, 1976 has modified sub-ss (1) and (2) with the object of simplifying
the execution of decrees passed against, the government or a public officer. As sub-ss (1)
and (2) stood before this amendment, they ran as follows:
(1) Where in a suit by or against the Government, or by or against a public officer in
respect of any such act as aforesaid, a decree is passed against the Union of India or
a State or, as the case may be, the public officer; a time shall be specified in the
decree within which it shall be satisfied, and, if the decree is not satisfied within the
time so specified, or within three months from the date of the decree where no time
is specified, the court shall report the case for the orders of the State Government.
(2) Execution shall not be issued on any such decree unless it remains unsatisfied for
the period of three months computed from the date of such report.

The Amendment Act, 1976 does away with the cumbersomeness and time-consuming
procedure by eliminating:
(i) the requirement of time to be specified for execution,
(ii) the requirement of a report by the court to the state government if the decree has
not been satisfied within the time set out therein; and
(iii) suspension of execution for a further period of three months after the date of the
report.

Under the amended sub-s (2), the execution remains suspended for a period of three
months only from the date of the decree.
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2. Non-compliance with the section. Under the section, as it stood before its recent
amendment, the decree could not be executed unless the three conditions set out above
were complied with,207 though the decree, for want of compliance, was not void.208 In
other words, the decree until such compliance was treated as inchoate and not in an
executable stage, and therefore, the question of limitation which can be raised under s 47
could not arise.209 The position then also was that if the decree did not specify any period
for its satisfaction, the right to execute it could arise only after the expiry of three months
from the date of the report, required to be made and the decree-holder had three years
under Art. 137 of the Limitation Act, 1963, to execute it from the date such decree became
executable.210 As a result of the amendment, the period of suspension of execution is only
three months from the date of the decree. That period is provided for, to enable the
government to move its machinery to satisfy the decree.

Where an order of court directed the defendant to withdraw an order suspending the
plaintiff forthwith, it was held that failure by him to comply with it was not contempt of
court until the period prescribed in the section expired and, as the section then stood, the
procedure laid down therein was exhausted.211

1 . Subs.by IAO 1948.

2 . Jehangir v. Secretary of State,(1903) 27 Bom 189.
3 . Ganesh Chandra Das v. Chief Secretary to the State of Assam, AIR 1990 Gau 74 [LNIND 1989 GAU 50]; Sri Laxmi Paper Depot v. S.D.M.,
Bangaun, AIR 1998 Cal 195 [LNIND 1997 CAL 281].
4 . Chuni Lall v. Ram Kishen, (1888) 15 Cal 460.
5 . Ram Dass v. Board of Revenue, Uttar Pradesh, AIR 1967 All 481 [LNIND 1966 ALL 95].
6 . Kishoresingh v. Tej Singh, AIR 1967 MP 120 [LNIND 1965 MP 189].
7 . (1992) Supp 2 SCC 432.
8 . (1995) Supp 4 SCC 541.
9 . Chief Conservator of Forests, Govt of AP v. Collector, AIR 2003 SC 1805 [LNIND 2003 SC 220]: AIR 2003 SCW 1251.
10 . AIR 2003 SC 1805 [LNIND 2003 SC 220]: AIR 2003 SCW 1251.
11 . Mahanagar Telephone Nigam Ltd. v. Chairman, Central Board, Direct Taxes, AIR 2004 SC 2434 [LNIND 2004 SC 652]: AIR 2004 SCW
2934.
12 . (1943) ILR Bom 534 : AIR 1943 Bom 427: 45 Bom LR 810.
13 . Note on Act of State under s, (9).
14 . Secretary of State Rustom Khan, AIR 1941 PC 64: 68 IA 109; P&O S.N. Co. v. Secretary of State, (1861) 5 Bom HC App 1, approved in 40 IA
48, p. 51; Jehangir v. Secretary of State, (1903) 27 Bom 189 (damages for defamation); Shivabhajan v. Secretary of State, (1904) 28 Bom 314; Ross
v. Secretary of State, (1916) 39 Mad 781; McInerny v. Secretary of State, (1911) 38 Cal 797; Secretary of State v. Cockcraft, (1916) 39 Mad 351,
(damages of injury of person); Dhakjee v. East India Co., (1843) 2 Morleys Digest 307; Secretary of State v. Hari, (1882) 5 Mad 473; Vijaya v.
Secretary of State, (1884) 7 Mad 466; Muhammad v. Secretary of State, AIR 1938 All 158: (1938) All 114.
15 . Sew Kishendas v. Dominion of India, AIR 1957 Cal 617 [LNIND 1956 CAL 143].
16 . Oscar v. Barbil Municipality, AIR 1990 Ori 207 [LNIND 1989 ORI 53].
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17 . Dominion of India v. R.V.K. Nath & Co., AIR 1950 Cal 207; Doya Narain v. Secretary of State, (1887) 14 Cal 256; Rodricks v. Secretary of State,
(1913) 40 Cal 308; Govindarajulu v. Secretary of State, AIR 1927 Mad 689 [LNIND 1926 MAD 388]: (1927) 50 Mad 449; Anant Rai v.
Governor General in Council, AIR 1955 Cal 331 [LNIND 1954 CAL 152]; Azizuddin Co. v. Union of India, AIR 1955 Mad 346: (1955) Mad
912 : (1955) 1 Mad LJ 316.
18 . Union of India v. Ladulal Jain, AIR 1963 SC 1681 [LNIND 1963 SC 98]: (1964) SCJ 101.
19 . See notes to s 20.
20 . Chandra Mohan v. Union of India, AIR 1953 Ass 193: (1953) 5 Ass 326; Natwarlal Gowardhan Das v. Union of India, AIR 1957 MP 157
[LNIND 1956 MP 41]: (1957) Jab LJ 331; State of Kerala v. G.H.S. Rly Madras, AIR 1965 Ker 277 [LNIND 1965 KER 75]: (1965) 2 Ker
112 : (1965) 1 Ker LR 449.
21 . Union of India v. R.C. Jall, AIR 1958 MP 425 [LNIND 1957 MP 52]: (1958) Jab LR 611.
22 . State of Vindhya Pradesh v. Moula Bux, AIR 1962 SC 145 [LNIND 1961 SC 242]: (1962) 2 SCR 794 [LNIND 1961 SC 242] : (1961) 2
SCJ 549 [LNIND 1961 SC 242]; on appeal from Moula Bux v. State of Vindhya Pradesh, AIR 1956 VP 1.
23 . AIR 1939 Lah 298.
24 . S 80 re-numbered as sub-s (1) thereof by the CPC (Amendment) Act, 1976 (104 of 1976), s 27 (w.e.f. 1-2-1977).
25 . Subs by the CPC (Amendment) Act, 1976 (104 of 1976), s 27, for No suit shall be instituted (w.e.f. 1-2-977).
26 . Subs. by Act 26 of 1963, s 3 (w.e.f. 5-6-1964).
27 . Subs. by A.O. 1937.
28 . Ins. by CPC (Amemdment) Act 6 of 1948 s 2.
29 . Ins. as cl (aa) by Act 6 of 1948, s 2.
30 . Cl. (aa) re-lettered as cl (b) and former cl (b) omitted by IAO 1948.
31 . Ins. by Act 26 of 1963 s 3 (w.e.f. 5-6-1964).
32 . Subs. for a State Government by ibid.
33 . The word and omitted by IAO 1948.
34 . Cl. (d) omitted by IAO 1948.
35 . Ins. by Act 104 of 1976 (w.e.f. 1-2-1977).
36 . Law Commission of India, 14th Report, Vol 1, p. 475; 27th Report pp. 2122, 54.
37 . Manganiram v. Government of India, AIR 1953 Hyd 139: (1952) ILR Hyd 983; R.L. Singh v. A.A. Singh, AIR 1958 Mani 7.
38 . State of Seraikalla v. Union of India, AIR 1951 SC 253 [LNIND 1951 SC 25]: (1951) SCR 474 [LNIND 1951 SC 25] : (1951) SCJ 425
[LNIND 1951 SC 25].
39 . G.I.P. Rly v. Mahadev, AIR 1926 All 585: 24 All LJ 726; Velayudam v. Governor General in Council, AIR 1952 Mad 783 [LNIND 1951
MAD 252]: (1952) ILR Mad 446; Union of India v. Tej Narayan, AIR 1957 MB 108; Khirodimal v. Haji Suleman, AIR 1960 MP 136 [LNIND
1959 MP 173] (where the properties, were after the suit, declared evacuee property); Commissioner of Hindu Religious Endowments v. K.N.N.
Chatram, AIR 1960 AP 535 [LNIND 1959 AP 166] (in which the previous Endowment Board had been dissolved, and a new Board
constituted under a fresh legislation).
40 . Union of India v. Kedarnath, AIR 1954 Ass 147: (1953) ILR Ass 305.
41 . P.C. Mahanti v. Union of India, AIR 1960 Cal 403 [LNIND 1960 CAL 8]: 64 Cal WN 381.
42 . Hirachand v. G.I.P. Railway, AIR 1928 Bom 421: ILR 52 Bom 548.
43 . Shiv Dutt v. State of Himachal Pradesh, AIR 1953 HP 95 [LNIND 1952 SC 95].
44 . V. Padmanathan Nair v. Kerala State Electricity Board, AIR 1989 Ker 86 [LNIND 1987 KER 14]; Minakshi Patra v. Secy, Irrigation and Power,
Court of Orissa, AIR 1999 Ori 137 [LNIND 1999 ORI 102].
45 . Anil Pahar v. Subhas Mahato, AIR 1985 Cal 169 [LNIND 1984 CAL 125] (DB).
46 . Bangalore Water Supply and Sewerage Board v. Sugesan & Co. Pvt. Ltd., AIR 1999 Mad 49 [LNIND 1998 MAD 633] (DB).
47 . See note scope of section under s 79.
48 . Bhagchand v. Secretary of State, AIR 1927 PC 176: (1972) 54 IA 338 : 51 Bom 725; Ramabrahma Chabri v. Dominion of India, AIR 1958 Cal
183 [LNIND 1957 CAL 170].
49 . Government of the Province of Bombay v. Pestonji Ardeshir Wadia, AIR 1949 PC 143: 76 IA 85 : (1949) 53 Cal WN 489; Bachchu v. Secretary of
State, (1902) 25 All 187; Jagdishchandra v. Debendraprasad, AIR 1931 Cal 503: (1931) 58 Cal 850.
 Page 35 of 41
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50 . Ebrahimbhai v. State 76 Bom LR 769 : (1974) Mah LJ 663 [LNIND 1974 BOM 18] : AIR 1975 Bom 13 [LNIND 1974 BOM 17]. But
see below under the heading Waiver of Notice.
51 . Union of India v. Devangere Cotton Mills, AIR 1976 Mad 20.
52 . State of Madras v. Chittor Venkata Durga Prasada Rao, AIR 1957 AP 675 [LNIND 1955 AP 112].
53 . Mohd Hasham v. Hyderabad Municipal Corpn, AIR 1958 AP 102: (1957) 2 Andh WR20.
54 . Madho Prasad v. Vindhya Prasad State, AIR 1955 VP 1.
55 . Kishan Prasad v. Union of India, AIR 1960 Cal 264 [LNIND 1958 CAL 230]: 64 Cal WN 272.
56 . Lakshmi Narain v. State, AIR 1977 Pat 73: (1976) 55 Pat 151.
57 . Raghunath Das v. Union of India, AIR 1969 SC 674 [LNIND 1968 SC 178]; State of Punjab v. Geeta Iron and Brass Works, AIR 1978 SC
1608 [LNIND 1977 SC 297]; Province of Bihar v. Kamakshya Narain Singh, AIR 1950 Pat 366; Secretary of State v. Perumal, (1901) 24 Mad
279; Shahebzadee v. Ferguson, (1881) 7 Cal 499; Munndra v. Secretary of State v. Perumal, (1901) 24 Mad 279; Shahebzadee v. Ferguson, (1881) 7
Cal 499; Manindra v. Secretary of State, (1970) 5 Cal LJ 148; Secretary of State v. Gulam Rasul, (1916) 40 Bom 392, p. 396; Secretary of State v.
Nagarao, AIR 1938 Nag 415; Bhuban Mohini v. Biraj, AIR 1940 Cal 1; Kashi Nath v. Nawab Alam, AIR 1935 Bom 229: (1935) 37 Bom LR
341; Uttar Pradesh Government v. Nanhoomal, AIR 1960 All 420: (1959) 2 All 561.
58 . New India Assurance Co. Ltd. v. DDA, AIR 1991 Del 298 [LNIND 1991 DEL 8].
59 . Ghanshyam Das v. Dominion of India, (1984) 3 SCC 46 [LNIND 1984 SC 82].
60 . Bihari Choudhary v. State of Bihar, AIR 1984 SC 1043 [LNIND 1984 SC 92]: (1984) 1 SCC627.
61 . Bihari Choudhary v. State of Bihar, AIR 1984 SC 1043 [LNIND 1984 SC 92]: (1984) 1 SCC627.
62 . Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46 [LNIND 1984 SC 82].
63 . Kessoram v. Secretary of State, AIR 1927 Cal 74: (1928) 54 Cal 969; Bhairabendra Narain Bhup v. State of Assam, AIR 1953 Ass 162; Braham
Dutt v. East Punjab Province, AIR 1958 Punj 351: (1958) Punj 244; Chunilal v. State of Madras, AIR 1958 AP 670 [LNIND 1957 AP 15].
64 . Thakur Das v. Tulsi Ram, AIR 1940 Lah 455.
65 . (1901) 24 Mad 279.
66 . 54 IA 338 : 51 Bom 725.
67 . Appa Rao v. Secretary of State, AIR 1931 Mad 175: 54 Mad 416 : 59 Mad LJ 923 : 32 LW 810; on appeal, AIR 1935 Mad 389 [LNIND
1935 MAD 12]: 41 LW 59.
68 . Vellayan Chettiar v. Province of Madras 74 IA 223 : (1947) 2 Mad LJ 209.
69 . S.N. Dutt v. Union of India, AIR 1961 SC 1449 [LNIND 1961 SC 135]; Dominion of India v. Purshottam Das, AIR 1961 All 176 [LNIND
1959 ALL 158]; Vellayan Chettiar v. Province of Madras 74 IA 223 : (1947) 2 Mad LJ 209.
70 . Naseema Textiles v. Union of India, AIR 1971 Ker 192 [LNIND 1970 KER 39]: (1970) Ker LR 463.
71 . Union of India v. Mohd J.H. Ibrahim, AIR 1971 Ori 221 [LNIND 1970 ORI 72].
72 . P.P. Abubaker v. Union of India, AIR 1972 Ker 103 [LNIND 1971 KER 163].
73 . Ramjilal v. Union of India, AIR 1974 Raj 18.
74 . B.T. Pillai v. S. Iyer, AIR 1974 Mad 282 [LNIND 1973 MAD 229].
75 . Union of India v. Kuthari Trading Co., AIR 1969 Ass&Nag84 : (1969) ILR Ass 81.
76 . Raghunath Das v. Union of India, AIR 1969 SC 674 [LNIND 1968 SC 178].
77 . Dhondoji Rao v. Dominion of India, AIR 1957 Mys 94: (1954) ILR Mys 465.
78 . Gulam Rasool v. State of Jammu & Kashmir, (1983) 4 SCC 623.
79 . R. Kamalam v. State of T.N,. AIR 1980 Mad 86 [LNIND 1979 MAD 46].
80 . Ghanshyam Das v. Dominion of India, AIR 1984 SC 1004 [LNIND 1984 SC 82]: (1984) 3 SCC 46 [LNIND 1984 SC 82] : AIR 1941 PC
197.
81 . Jaswant Chand S. Mehta v. Union of India, AIR 1989 NOC 79(Mad).
82 . Pratap Narain Sinha v. State of Bihar, AIR 1984 Pat 212.
83 . Qamaruddin v. Union of India, AIR 1982 All 169.
84 . Ibid.
85 . Sha Jetmal v. General Manager, Southern Railway, AIR 1995 Kant 219 [LNIND 1994 KANT 80].
 Page 36 of 41
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86 . Ajare Urban Co-operative Bank Ltd. v. State of Maharashtra, 2009 (4) AIR Bom R 75 : 2009 (2) Mah LJ 814.
1 . Government of the Province of Bombay v. Pestonji Ardeshir Wadia, AIR 1949 PC 143: 76 IA 85 : (1949) 53 Cal WN 489; Bhola Nath v. Secretary of
State, (1913) 40 Cal 503; Secretary of State v. Hargovandas, AIR 1935 Bom 229: (1935) 37 Bom LR 341.
2 . Bhattacharjee v. Union of India, AIR 1957 Assam 159.
3 . Bhupal v. Governor-General in Council 52 Cal WN 808.
4 . Secretary of State v. Chimanlal, AIR 1942 Bom 161: (1942) ILR Bom 357 : 44 BLR 295; Haji Mohamed v. Province of Bengal, AIR 1942 Cal
343: (1942) 1 Cal 211 : (1941) 46 Cal WN 59; Lady Dinbai Dinshaw Petit v. Dominion of India, AIR 1951 Bom 732; Jehangir v. Secretary of State,
(1903) 72 Bom 189; Sankunni Menon v. S.I. Railway, (1951) 1 Mad LJ 463 : 64 LW 323; State of Bombay v. Advani, AIR 1963 Bom13
[LNIND 1962 BOM 5]: (1962) ILR Bom 552.
5 . Dhian Singh Shoba Singh v. Union of India, AIR 1958 SC 274 [LNIND 1957 SC 11]: (1958) SCR 781 [LNIND 1957 SC 11] : (1958) SCJ
303 : (1958) SCA 307 [LNIND 1957 SC 11]; Union of India v. Jeewan Ram, AIR 1958 SC 905 [LNIND 1958 SC 240]; State of Madras v.
C.P. Agencies, AIR 1960 SC 1309; Amarnath v. Union of India, AIR 1963 SC 424 [LNIND 1962 SC 155]: (1964) 1 SCR 657; State v. Ajit
Kumar, AIR 1977 Cal 273 [LNIND 1976 CAL 162]: 81 Cal WN 168; Ghanshyam Dass v. Domimai of India, (1984) 3 SCC 46 [LNIND
1984 SC 82].
6 . Surjit Singh v. Union of India, AIR 1965 Cal 191 [LNIND 1964 CAL 107]; Braham Dutt v. East Punjab, AIR 1958 Punj 351: (1958) ILR
Punj 244; Union of India v. Sankar Stores, AIR 1974 Ori 85 [LNIND 1973 ORI 94].
7 . Province of Bihar v. Kamakshya Narain Singh, AIR 1950 Pat 366; Secretary of State v. Dhirendra Nath, AIR 1934 Cal 187.
8 . Union of India v. Panipat Woolen and General Mills Co., AIR 1967 P&H 469; State of Andhra Pradesh v. Suryanarayana, AIR 1965 SC 11
[LNIND 1963 SC 216]; B.R. Sinha v. State of Madhya Pradesh, AIR 1969 SC 1256 [LNIND 1969 SC 112]: (1969) 1 SCC 798; B.C.
Narsimharao v. State, AIR 1972 AP 130 [LNIND 1971 AP 34].
9 . Kashi Nath v. Nawab Alam, AIR 1934 Pat 346.
10 . Sheik Mohamed Zia v. United Provinces, AIR 1943 All 345: (1943) ILR All 845.
11 . Braham Dutt v. East Punjab Province, AIR 1958 Punj 351: (1958) Punj 244.
12 . B. Poornaish v. Union of India, AIR 1967 AP 338 [LNIND 1966 AP 115].
13 . Firm, Deokishan v. Union of India, AIR 1966 All 16.
14 . State of Andhra Pradesh v. Suryanarayanana, AIR 1965 SC 11 [LNIND 1963 SC 216].
15 . Sahdul Mian v. Union of India, AIR 1968 Pat 188.
16 . State of Bombay v. Advani, AIR 1963 Bom13 [LNIND 1962 BOM 5]: (1962) ILR Bom 552.
17 . State of Madras v. CP Agencies, AIR 1954 Nag 342; confirmed on appeal in, AIR 1960 SC 1309.
18 . Governor-General in Council v. Srimathi Bhanwari Devi, AIR 1961 All 14 [LNIND 1960 SC 182]; Union of India v. Chaman Singh, AIR 1955
Pepsu 51: (1954) ILR Patiala 563.
19 . Governor-General in Council v. Sankarappa, AIR 1953 Mad 838 [LNIND 1953 MAD 296].
20 . Harbansingh Ajitsingh v. Union of India, AIR 1973 Bom363 [LNIND 1972 BOM 74]: (1973) 75 Bom LR 559.
21 . Bishwanath v. N.E. Railway, AIR 1978 Pat 223.
22 . Ramabrahma Chabri v. Dominion of India, AIR 1958 Cal 183 [LNIND 1957 CAL 170].
23 . Rekhchand v. G.G. in Council, AIR 1954 All 495 [LNIND 1954 ALL 13].
24 . Metro General Traders v. Calcutta Corpn., AIR 1965 Cal 442 [LNIND 1964 CAL 189].
25 . Dominion of India v. Eversharp Agency, 50 Bom LR 532; Madhav Prasad v. Vindhya Pradesh State, AIR 1955 VP 1; Chunilal v. State of Madras,
AIR 1958 AP 670 [LNIND 1957 AP 15]; Firm Sundarlal v. Union of India, AIR 1958 Punj 149: (1958) ILR Punj 467; Walluram v. Union of
India, AIR 1961 Punj 329; Salig Ram v. Dominion of India, AIR 1953 Punj 43.
26 . D.D. Petit v. Dominion of India, AIR 1951 Bom 72 [LNIND 1950 BOM 73]; State of Madras v. CP Agencies, AIR 1954 Nag 342.
27 . Jagadischandra v. Debendraprasad, AIR 1931 Cal 503: (1931) 58 Cal 850.
28 . Rawat Hardeo Singh v. State of Rajasthan, AIR 1981 Raj 280 [LNIND 1981 RAJ 10].
29 . Chandulal v. Province, AIR 1943 Bom 138: (1943) Bom 188 : 45 Bom LR 497.
30 . Rayabai D. Kabve v. State of Maharashtra, AIR 1973 Bom 59 [LNIND 1971 BOM 108]: (1972) Mah LJ 706 [LNIND 1971 BOM 108] :
(1971) 74 Bom LR 501; State v. Rajkumar Jain, AIR 1972 All 444.
31 . Chandulal Vadilal v. Province of Bombay, AIR 1943 Bom 138: (1943) Bom 188 : 45 Bom LR 197; Secretary of State v. Nagorao, AIR 1938 Nag
145.
32 . State of ASI Kota Ltd., AIR 1971 Raj 128.
 Page 37 of 41
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33 . Secretary of State v. District Board, Rangpur, AIR 1939 Cal 758.

34 . Kothari Trading and Investment Co. Ltd. v. Union of India, AIR 1972 Cal 466 [LNIND 1972 CAL 135].
35 . Charu Chandra v. Snigdhendu, AIR 1948 Cal 150: (1947) 52 Cal WN 212.
36 . Janaradan Misra v. State of Uttar Pradesh, AIR 1981 All 213.
37 . Salem Advocates Bar Association v. Union of India, AIR 2005 SC 3353 [LNIND 2005 SC 573].
38 . RT Officer v. NY Motor Service, AIR 1973 Ker 219 [LNIND 1973 KER 258]: (1973) Ker LJ 608.
39 . Baldeo v. Sukhi Singh, AIR 1938 Pat 127; Bakshi Ghulam v. G.N. Sadiq, AIR 1968 J&K 98; Sawkat Ali v. Supdt of Police, Sibsagar, AIR 1972
Ass & Nag 29 : (1971) Ass 319; Gangappa Gurupadappa Gugwad v. Rachawwa, AIR 1971 SC 442 [LNIND 1970 SC 443]: (1970) 3 SCC 716
[LNIND 1970 SC 443]; Muktarei Devi v. State, AIR 1978 Gau 17.
40 . Boyini Kanganna v. Pedini Ramlingam, AIR 1948 Pat 117.
41 . N.G. Tipnis v. Union of India, AIR 1970 MP 5 [LNIND 1969 MP 42].
42 . Tipan Prasad v. Secretary of State, AIR 1935 Pat 86.
43 . Secretary of State v. Amarnath, AIR 1936 Pat 339: (1936) 15 Pat 353.
44 . Baldeo v. Sukhi Singh, AIR 1938 Pat 127.
45 . Bishandayal & Sons v. State of Orissa, AIR 2001 SC 544 [LNIND 2000 SC 1799]: AIR 2001 SCW 155.
46 . Dayanand v. State, AIR 2001 Raj 257.
47 . Union of India v. Tej Narain, AIR 1957 MB 108.
48 . State of Bihar v. Panchratna Devi, AIR 1980 Pat 212.
49 . State v. Bamadeb, AIR 1971 Ori 227 [LNIND 1970 ORI 73]; Munuswamy Chatty v. Commissioner of HR&CE, AIR 1993 Mad 144
[LNIND 1992 MAD 159].
50 . State of A.P. v. Pioneer Builders, AIR 2007 SC 113 [LNIND 2006 SC 768]: (2006) 12 SCC 119 [LNIND 2006 SC 768].
51 . Ibid, para 18, at p. 118.
52 . Union of India v. Joytirmoyee, AIR 1967 Cal 461 [LNIND 1966 CAL 130].
53 . Bishandayal & Sons v. State of Orissa, AIR 2001 SC 544 [LNIND 2000 SC 1799]: AIR 2001 SCW 155.
54 . K. Karthiyani v. Neelacanta, AIR 1969 Ker 280 [LNIND 1968 KER 154]: (1969) Ker 440.
55 . Ebrahimbhai v. State, AIR 1975 Bom 13 [LNIND 1974 BOM 17].
56 . Union of India v. Shankar Store, AIR 1974 Ori 85 [LNIND 1973 ORI 94]: 39 Cut LT 1043.
57 . State v. Jiwan Das, AIR 1971 Pat 141; Paleti Sivarama Krishnaiah v. Executive Engineer, AIR 1978 AP 389 [LNIND 1978 AP 59]; J. Mandal
v. Union of India, AIR 1978 Pat 42.
58 . State of Madras v. Sulaika Beevi, AIR 1960 Mad 81 [LNIND 1958 MAD 165]; Raj Kumar v. Vijiyakumar, AIR 1960 All 161.
59 . Vellayan Chettiar v. Prince of Madras, AIR 1947 PC 197 [LNIND 1947 PC 41]: 75 IA 223 : (1948) ILR Mad 214; Province of Bihar v.
Kamaksha Narain Singh, AIR 1950 Pat 366; Manindra v. Secretary of State, (1907) 5 CLJ 148; Bholanath v. Secretary of State, (1912) 40 Cal 503;
Muralilal v. E.V. David, AIR 1925 All 241: (1925) 47 All 291; (see however, observations at p. 128 in Baldeo v. Sukhi Singh, AIR 1938 Pat
127 and in Gaekwar Baroda State Rly. v. Hafiz, AIR 1938 PC 165: (1938) 65 IA 182 : (1938) All 601; District Board, Benares v. Churhu Rai,
AIR 1956 All 680 [LNIND 1956 ALL 46]; Lakshmi Narain Gauri v. Union of India, AIR 1958 Pat 489: ILR 37 Pat 442; Kishore v. Municipal
Committee, Piparia, AIR 1958 MP 393 [LNIND 1957 MP 81].
60 . Lalchand v. Union of India, AIR 1960 Cal 270 [LNIND 1959 CAL 192].
61 . Maya Rani Ghosh v. State of Tripura, AIR 2007 Gau 76: 2007 AIHC 2169 (DB).
62 . Manindra Ch. Paul v. State of Tripura, (Agartala Bench).
63 . State of Punjab v. Tripta Rani, AIR 1990 P&H 252.
64 . Padmanabhan Nair v. Kerala State Electricity Board, AIR 1989 Ker 86 [LNIND 1987 KER 14].
65 . U.P. State Handloom Corporation Ltd. v. Prem Sagar Jaiswal, 2008 (6) ALJ 150 : 2008 (4) All WC 3523.
66 . Nand Kumar Sinha v. Pasupati Ghosh, AIR 1941 Pat 385: (1940) Pat 417; Koti Reddi v. Subbiah, (1918) 41 Mad 792.
67 . Nand Kumar Sinha v. Pasupati Ghose, AIR 1941 Pat 385: (1940) Pat 417; Abdul Rahim v. Abdul Rahman, AIR 1924 All 851: (1924) 46 All
884.
68 . Union of India v. Chhattar Singh, AIR 1973 P&H 339.
 Page 38 of 41
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69 . A. Sarangadharn v. Dr. Vijayan, AIR 1999 Ker 310 [LNIND 1999 KER 32].
70 . Prasaddas v. Bonnerjee, AIR 1931 Cal 61: (1939) 57 Cal 1127; Amalgamated Electricity Co. v. Ajmer Municipality, AIR 1969 SC 227 [LNIND
1968 SC 175]; State of Maharashtra v. Chandrakant, AIR 1977 SC 148 [LNIND 1976 SC 405]; S.V. Sreekanthayya v. Lakshmi Hardware Stores,
AIR 1978 Kant 100 [LNIND 1978 KANT 20].
71 . State of Bihar v. Bera Colliery Co. Pvt. Ltd., AIR 1991 Pat 178.
72 . Bidhu Bhusan v. S.A. Aziz, AIR 1985 Pat 165.
73 . Shina Sundari Lekri v. Palu Hemram, AIR 1982 Cal 5 [LNIND 1981 CAL 246].
74 . Ram Kumar v. State of Rajasthan, AIR 2009 SC 4 [LNIND 2008 SC 1941]: (2008) 10 SCC 73 [LNIND 2008 SC 1941].
75 . Ibid, para 10 at p. 8.
76 . Secretary of State v. Kalekhan, (1914) 37 Mad 113.
77 . Amalgamated Electricity Co. v. Ajmer Municipality, AIR 1969 SC 227 [LNIND 1968 SC 175].
78 . Rameshwar Prasad Singh v. Md. Ayub, AIR 1950 Pat 527; Ganoda v. Nalini, (1909) 36 Cal 28.
79 . Dattatraya v. Annappa, AIR 1938 Bom 352(FB) : (1928) 52 Bom 832.
80 . Mumtaz Hussain v. Lewis, (1910) 7 All LJ 301.
81 . Anantharaman v. Ramasami, (1888) 11 Mad 317.
82 . Shahebzadee v. Fergussion, (1881) 7 Cal 499.
83 . Damodar Govindji, AIR 1923 Bom 392: (1923) 25 Bom LR 378 [LNIND 1923 BOM 30].
84 . Chandrakant G. Deshmukh v. State, AIR 1970 Bom 301 [LNIND 1966 BOM 21] (FB).
85 . Rebati Mohan v. Jatindra Mohan, AIR 1934 PC 96: (1934) 61 IA 171 : 61 Cal 470; reversing 59 Cal 961.
86 . Narayanchandra v. Surendranath, AIR 1938 Nag 499.
87 . Debendra Nath v. Official Receiver, AIR 1938 Cal 191: (1938) 65 Cal LJ 561.
88 . Raja v. Samuel, AIR 1940 Pat 516.
89 . Chenchuramaiah v. Dy. Commissioner, AIR 1966 AP 123 [LNIND 1964 AP 207].
90 . Director of Industries v. Janardan, AIR 1969 Ori 58 [LNIND 1968 ORI 49]: (1968) Cut 432.
91 . Shahebzadee v. Fergussion, (1881) 7 Cal 499 per Cunningham J; Muhammad v. Panna Lal, (1904) 26 All 220 per Banerji J.; Raghubans Sahai v.
Phool Kumari, (1905) 32 Cal 1130 per Mukerjee J; Peary Mohun Das v. Weston, (1906) 16 Cal WN 145 per Fletcher J. (reversed on merits on
appeal); Ranchhod v. Municipality of Dakor, (1884) 8 Bom 421.
92 . Jogendra Nath Roy v. Price, (1897) 24 Cal 584; Koti Reddi v. Subbiah, (1918) 41 Mad 792 (FB); Wilson v. Nathmull, AIR 1930 Mad 458
[LNIND 1929 MAD 312]: (1930) 59 Mad LJ 501; Collector of Bihar v. Munuwar, (1880) 3 All 20; Bakhtwar Mall v. Abdul Latif, (1907) 29 All
567; Bachchu Singh v. Jafar Beg, (1915) 13 All LJ 788; Jugal Kishore v. Jugal Kishore, (1911) 33 All 540; Abdul Rahim v. Abdul Rahman, AIR 1924
All 851: (1924) 46 All 884; Cecil Gray v. Cantonment Committee of Poona, (1910) 34 Bom 583; Chahaganlal v. The Collector of Kaira, (1911) 35
Bom 42 per Chandavarkar J.; Dakshina v. Omar Chand, AIR 1924 Cal 145: (1923) 50 Cal 992.
93 . Muhammad v. Panna Lal, (1904) 26 All 220.
94 . Peary Mohan Das v. Weston, (1906) 16 Cal WN 145.
95 . (1987) 24 Cal 584.
96 . Bakhtwar Mal v. Abdul Latif, (1907) 29 All 567.
97 . Koti Reddi v. Subbiah, (1918) 41 Mad 792.
98 . Bakshi Gulam v. G.M. Sadiq, AIR 1968 J&K 98; State of Maharashta v. Chander Kant, AIR 1977 SC 148 [LNIND 1976 SC 405].
99 . B.L. Shukla v. Fatmabai, AIR 1976 Guj 29.
100 . Muhammad Sharif v. Nasir Ali, AIR 1933 All 742: (1931) 53 All 44.
101 . Rajmal v. Hanmant, (1896) 20 Bom 679; Cecil Gray v. Cantonment Committee of Poona, (1910) 34 Bom 583; Bhau v. Nana, (1889) 13 Bom
343; Sardar Sangji v. Ganpat, (1890) 14 Bom 395.
102 . AIR 1931 Cal 61: (1930) 57 Cal 1127.
103 . (1904) 2 Ch 449.
104 . AIR 1934 PC 96: (1934) 61 IA 171 : 61 Cal 470.
105 . Chhaganlal v. Collector of Kaira, (1911) 35 Bom 42; Bhagchand v. Secretary of State, AIR 1927 PC 176: (1927) 54 IA 338 : ILR 51 Bom 725.
 Page 39 of 41
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106 . AIR 1927 PC 176: (1927) 54 IA 338 : ILR 51 Bom 725; Gobindachandra v. Sub-Divisional Officer, Chandpur, AIR 1932 Cal 163: (1931) 58
Cal 1288.
107 . Secretary of State v. Rajlucki, (1898) 25 Cal 239Dakshina Ranjan v. Omkar Chand, AIR 1924 Cal 145: (1924) 50 Cal 992; Secretary of State v.
Kalekhan, (1914) 37 Mad 113, Koti Reddi v. Subbiah, (1918) 41 Mad 792; Abdul Rahim v. Abdul Rahman, AIR 1924 All 851: (1924) 46 All
884; N.W. Railway Administration v. N.W. Railway Union, AIR 1933 Lah 302: (1933) 14 Lah 330; Arunachelam v. David, AIR 1937 Mad 166:
(1927) 50 Mad 239, must be taken to have been overruled by the Privy Council in Bhagchand’s case.
108 . Secretary of State v. Gajanan, (1911) 35 Bom 362; Naginlal v. Official Assignee, (1912) 37 Bom 243; Secretary of State v. Gulam Rasul, (1916) 40
Bom 392.
109 . Narayan v. Secretary of State, AIR 1927 Bom 649: (1927) 29 Bom LR 1427.
110 . Babulal v. State, AIR 1955 MB 75; Abida Begum v. Rent Control and Eviction Officer, AIR 1959 All 675 [LNIND 1959 ALL 73]; Certificate
Officier v. Kasturi Chand, AIR 1970 Ori 239 [LNIND 1969 ORI 23]; Union of India v. Brij Nath, AIR 1971 All 209: (1970) All LJ 1114;
Union of India v. Baij Nath, AIR 1970 Cal 56; State of Bihar v. Jiwan Das Arya, AIR 1971 Pat 141, Chandrama Singh v. Y. Singh, AIR 1972 Pat
128, p. 134.
111 . AIR 1960 Pat 530; Arunachalam Chettiar v. Official Assignee, Ramnad, AIR 1927 Mad 166 [LNIND 1926 MAD 303]: 50 Mad 239;
Rameswara Prasad v. Mohd. Ayub, AIR 1950 Pat 527.
112 . Basic Tele Services Ltd. v. Union of India, AIR 2000 Del 1 [LNIND 1999 DEL 876].
113 . Sita Ram v. District Abhiyanta Durasanchar, Raipur, AIR 1994 MP 71 [LNIND 1993 MP 58].
114 . Three Star Enterprises v. State of J&K, AIR 2009 J&K 45 : (2009) 2 JKJ 257.
115 . Vallabhram v. Secretary of State, AIR 1935 Bom 21: (1934) 59 Bom 149.
116 . Amarnath Dogra v. Union of India, AIR 1963 SC 424 [LNIND 1962 SC 155]: (1963) 1 SCR 657 [LNIND 1962 SC 155].
117 . Umesh Chandra Saxena v. Administrator General Uttar Pradesh, AIR 1999 All 109 [LNIND 1999 CAL 27] (DB.
118 . Sheriff of Bombay v. Hakmaji, AIR 1927 Bom 521: (1927) 51 Bom 749; N.W. Railway Administration v. N.W. Railway Union, AIR 1933 Lah
203: (1933) 14 Lah 330.
119 . Mahadev v. Secretary of State, AIR 1930 Bom 367: 32 Bom LR 604; Harihar Mohappa v. Hari Otha, AIR 1959 Ori 257; Buchan v. Secretary of
State, (1902) 25 All 187.
120 . Parma Sah v. Union Provinces, AIR 1939 Oudh 196.
121 . Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46 [LNIND 1984 SC 82].
122 . Ezra v. Secretary of State, (1903) 30 Cal 36, p. 72.
123 . Lady Dinbai Dinshaw Petit v. Dominion of India, AIR 1951 Bom 72 [LNIND 1950 BOM 73].
124 . Lalchand Choudhy v. Union of India, AIR 1960 Cal 270 [LNIND 1959 CAL 192].
125 . Gulam Mohiuddin v. State of Jammu and Kahsmir, AIR 1961 J&K 6.
126 . Madanlal v. Union of India, AIR 1968 Ori 234 [LNIND 1968 ORI 38].
127 . Province of Madras v. RB Poddar Firm, AIR 1949 Mad 214 [LNIND 1947 MAD 271]; Mc Inerny v. Secretary of State, (1911) 38 Cal 797.
128 . Bishandayal & Sons v. State of Orissa, AIR 2001 SC 544 [LNIND 2000 SC 1799]: AIR 2001 SCW 155.
129 . Anantharaman v. Ramasami, (1888) 11 Mad 317; Bhau v. Nana, (1889) 13 Bom 343.
130 . Collector of Bombay v. Kamalavahooji, AIR 1934 Bom 162: (1934) 36 Bom LR 297.
131 . Cecil Gray v. Cantonment Committee of Poona, (1910) 34 Bom 583.
132 . Coal Mines Provident Fund Commissioner v. Ramesh Chandra Jha, (1990) 1 SCC 589 [LNIND 1990 SC 52].
133 . Municipal Council, Anantapur v. Vasudeva, AIR 1931 Mad 808 [LNIND 1931 MAD 129]: (1932) 55 Mad 207.
134 . Makundarao v. Durgaprosad, AIR 1944 Nag 130: (1944) ILR Nag 687.
135 . Siva Dhan v. Corpn. of Calcutta, 64 Cal WN 60.
136 . Moolji Doshi v. Governor-General in Council, AIR 1951 Cal 443.
137 . J.R. Sirsat v. B.N. Karekar, AIR 1973 Goa 1.
138 . Joosub v. Kemp, (1902) 26 Bom 809; Wilson v. Nathmull, AIR 1930 Mad 458 [LNIND 1929 MAD 312]: (1930) 59 Mad LJ 501.
139 . De Silva v. Govind, (1920) 44 Bom 895; Murari Lal v. David, AIR 1925 All 241: (1924) 47 All 291; Bishambarnath v. Janaki Ballabh, AIR
1952 All 402 [LNIND 1950 ALL 298].
140 . Skipper & Co. v. David, AIR 1927 All 132: (1927) 48 All 821.
 Page 40 of 41
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141 . Naginlal v. Official Assignee, (1912) 37 Bom 243.

142 . Bhagchand v. Secretary of State, AIR 1927 PC 176: (1927) 54 IA 338 : 51 Bom 725.
143 . Duli Chand v. Kalyan Singh, AIR 1931 Lah 703: (1931) 12 Lah 260.
144 . Haveli Ram v. Jagan Nath, AIR 1937 Lah 386.
145 . Asia Khatun v. Amarendra, AIR 1940 Cal 578.
146 . Jagadish Chandra Deo Dhabal v. Debendra Prosad Bagchi, (1930) 59 Cal 850; Radharani v. Purnachandra, AIR 1930 Cal 737: (1930) 34 Cal WN
671.
147 . Palanibala Debi v. Katlipada, (1950) 54 Cal WN 960.
148 . Annapurna Dasi v. Sarat Chandra, AIR 1942 Cal 394: (1941) 46 Cal WN 355.
149 . Hira Lal Murarka v. Mangtulal Bagaria, AIR 1947 Cal 221: (1944) 2 Cal 513 : 48 Cal WN421.
150 . Bhuban Mohini v. Biraj, AIR 1940 Cal 1: 44 Cal WN 74.
151 . Kathiawar and Ahmedabad Banking Corpn v. Ram Charam Lal, AIR 1934 Oudh 458: (1934) 9 Luck 577.
152 . Union Bank v. Tatanagar Foundry, AIR 1974 Cal 213 [LNIND 1973 CAL 220].
153 . SK Kalan Co-operative Bank v. Ayodhya Prasad Shamlal, AIR 1939 All 232; Abdul Ghouse v. Anjuman Dehi Imdad, AIR 1942 Lah 487; Vasant
v. Khaddathar, AIR 1949 Nag 25.
154 . Kuppu Govindan Chetty v. Uthukottai Co-op Society, AIR 1940 Mad 831 [LNIND 1940 MAD 123]: (1940) ILR Mad 929; Jhansi Co-op Mills
v. Lala Makanlal, AIR 1957 All 492 [LNIND 1957 ALL 24].
155 . Sukumari Gupta v. Dhrendara Nath Roy Chowdhury, AIR 1941 Cal 643: 73 CLJ 356; Beni Madhab v. Deb Narayan, AIR 1932 Cal 275: (1919)
59 Cal 961.
156 . Rebatimohan v. Jatindramohan, AIR 1934 PC 96: (1934) 61 IA 171 : 61 Cal 470.
157 . Limitation Act, 1963 s 15(2);Jai Chand Sawhney v. Union of India, (1969) 3 SCC 642 [LNIND 1969 SC 448]; State v. R.D. Singh, AIR 1972
Raj 241; North-Western Rly v. Ram Dhanshib Lal, (1917) PR No 52 p. 187; Mohd. Quaranuddin v. State of Andhra Pradesh, (1994) 5 SCC 118.
158 . T.P.K. Nair v. The Union of India, AIR 1991 Ker 80 [LNIND 1990 KER 195] (S. Padmanabhan J.).
159 . See s 15(2) of the Limitation Act 1963. Also, see notes to s 79 above, jurisdiction.
160 . Bata Shoe Co. v. Union of India 55 Bom LR 746; Azizuddin v. Union of India, AIR 1959 Cal 273 [LNIND 1958 CAL 142]; Naranjan v.
Union of India, AIR 1960 Cal 391 [LNIND 1960 CAL 21]: 64 CWN 503; contra P.C. Biswas v. Union of India, AIR 1956 Assam 85; Union
of India v. Kedar Prasad, AIR 1970 Pat212. See notes under s 20.
161 . Ramasundari v. Collector of Ludhianan, (1959) ILR Punj 413.
162 . Union of India v. Parvati, AIR 1965 All 154.
163 . Sawai Singhal v. Union of India, AIR 1966 SC 1068 [LNIND 1965 SC 235].
164 . State of Madras v. Chittor Venkata Durgg Prasad, AIR 1957 AP 675 [LNIND 1955 AP 112].
165 . Shaik Elahi Baksh v. East India Railway Administration, AIR 1931 Pat 326: (1931) 10 Pat 466.
166 . Ali Asmat v. G.I.P. Railway, AIR 1931 All 476: (1930) 52 All 837; Hiraachand v. G.I.P. Railway, (1928) 52 Bom : 1928 Bom 421; Secretary of
State v. Firm Fazaluddin, AIR 1933 All 54: (1933) 55 All 121.
167 . State v. Harsh Singh, AIR 1986 All 169 [LNIND 1985 ALL 46].
168 . Sha Jetmal v. General Manager, Southern Railway, AIR 1995 Kant 219 [LNIND 1994 KANT 80].
169 . Union of India v. B.D. Jhunjhunwala, AIR 1988 Ori 267 [LNIND 1987 ORI 141].
170 . Union of India v. TN Small Industries Corpn., AIR 1981 Mad 316 [LNIND 1981 MAD 127].
171 . Moolji Bhai v. Dominion of India, AIR 1952 Nag 22; Union of India v. Lakshmi Narain, AIR 1954 Pat 424: (1954) ILR Pat 214.
172 . D.K. Lakshmiah v. Union of India, AIR 1969 AP 366.
173 . Dominion of India v. Firm Kishan Prasad, AIR 1950 Nag 85: (1950) ILR Nag 212; Union of India v. Durga Dutt, AIR 1957 Cal 202 [LNIND
1955 CAL 125]: 59 Cal WN 1064; Sundarlala v. Union of India, AIR 1959 Punj 149: (1957) Punj 46; Union of India v. Shamsuddin, AIR 1958
Pat 575; K.P. Cloth Stores v. Union of India, AIR 1960 Ori 154 [LNIND 1959 ORI 71]: (1960) ILR Cut 110; Jagannath Chetram v. Union of
India, AIR 1956 Cal 540.
174 . D.K. Lakshmiah v. Union of India, AIR 1969 AP 366.
175 . Narayanaswamy v. Union of India, AIR 1960 Mad 58 [LNIND 1959 MAD 48]: (1959) Mad 939 : (1959) 2 Mad LJ 479; Dominion of India v.
Jagadish Prasad, AIR 1949 Cal 622: 87 Cal LJ 175; Ramco Textiles v. Union of India, AIR 1960 Ker 257 [LNIND 1959 KER 340]: (1960)
ILR Ker 435; Chandra Mohan v. Union of India, AIR 1953 Assam 193: (1953) ILR Ass 326; Natwarlal Gowardhan Das v. Union of India, AIR
 Page 41 of 41
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1957 MP 157 [LNIND 1956 MP 41]; Union of India v. Kalinga Textiles Pvt. Ltd., AIR 1969 Bom 401 [LNIND 1968 BOM 30]: 71 Bom LR
214 : (1969) Bom 864.
176 . Dominion of India v. Ram Kumar, AIR 1959 All 168 [LNIND 1957 ALL 162]; Khudomal Madan Mohun v. Dominion of India, AIR 1963 All
276 [LNIND 1962 ALL 150]; Sha Jetmal v. General Manager, Southern Rly., AIR 1995 Kant 219 [LNIND 1994 KANT 80].
177 . Himachal Steel Rerollers and Fabrication v. Union of India, AIR 1988 All 191 [LNIND 1987 ALL 149].
178 . Prakash Industries Ltd. v. Maitri Shukla, AIR 1998 Ori 45 [LNIND 1997 ORI 130].
179 . State of AP v. Pioneer Builders, AIR 2007 SC 113 [LNIND 2006 SC 768]: (2006) 12 SCC 119 [LNIND 2006 SC 768].
180 . Ibid, para 16, at p. 117.
181 . State of U.P. v. Jaman Singh, AIR 2007 Uttr 10 [LNIND 2006 UTTAR 69]: 2007 UC 558.
182 . State of Tripura v. Sajal Kanti Sengupta, AIR 1982 Gau 76.
183 . N.V. Ashar v. State of Gujarat, (1984) 2 GLR 333.
184 . Islamia Junior High School v. State, AIR 1986 All 92 [LNIND 1985 ALL 37].
185 . Harish Chandra (India) Ltd. v. Corpn Bank, AIR 1992 Del 279 [LNIND 1991 DEL 266].
186 . Bajaj Hindustan Sugar & Industries Ltd. v. Balrampur Chini Mills Ltd., AIR 2007 SC 1906 [LNIND 2007 SC 339]: (2007) 9 SCC 43
[LNIND 2007 SC 339].
187 . Ibid, at p. 1911.
188 . Gyanajeet Moharana v. Binodini Pattanaik, 2009 (107) Cut LT 132 : 2008 (2) Ori LR 926.
189 . K. Narasimhiah v. H.C. Singri Gowda, AIR 1966 SC 330 [LNIND 1964 SC 117].
190 . State of Karnataka v. M. Muniraju, AIR 2002 Kant 287 [LNIND 2002 KANT 135].
191 . Union of India v. B.D. Jhunjhunwala, AIR 1988 Ori 267 [LNIND 1987 ORI 141].
192 . Manoj Kumar Shrivastava v. Arvind Kumar Choubey, AIR 2002 MP 152 [LNIND 2000 MP 129].
193 . K.K. Sharma v. State of Punjab, AIR 1989 P&H 7.
194 . Ibid.
195 . Ibid.
196 . K.K. Sharma v. State of Punjab, AIR 1989 P&H 7; Inder Singh v. State of HP, AIR 2002 HP 23 [LNIND 2001 HP 61].
197 . Yashod Kumari v. MCD, AIR 2004 Del 225 [LNIND 2003 DEL 90] (DB).
198 . T.V. Parangodan v. District Collector Trichur, AIR 1989 Ker 276 [LNIND 1989 KER 220].
199 . State of A.P. v. Singam Selty Yallananda, AIR 2003 Andh Pra 182.
200 . Janak Raji Devi v. Chandrabati Devi, AIR 2002 Cal 11 [LNIND 2001 CAL 271].
201 . See notes under the heading substantive compliance.
202 . Subs. by CPC (Amendment) Act 104 of 1976, s 28 (w.e.f. 1-2-1977).
203 . Subs. by ibid for such report (w.e.f. 1-2-1977).
204 . Ins. by Act 32 of 1949.
205 . Subs. by the A.O. 1950 for the Dominion of India.
206 . Prasada Singh v. State of Bihar, AIR 1961 Pat 271.
207 . Dominion of India v. Gortha Behary Kundu, AIR 1950 Cal 247; Governor General v. Piramul Marwari, AIR 1948 Pat 179; State of Andhra Pradesh
v. Somaraju, AIR 1959 AP 165 [LNIND 1958 AP 76]: (1958) 2 Andh WR 513.
208 . Uttar Pradesh Government v. Brij Mohan Lal, AIR 1953 All 96 [LNIND 1952 ALL 205].
209 . Union of India v. K. Khandelwal, AIR 1970 Ori 137 [LNIND 1969 ORI 4].
210 . State of Kerala v. Kesavan, AIR 1966 Ker 104 [LNIND 1965 KER 265].
211 . Dasarathi v. Kirpal Singh, AIR 1960 Cal 454.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part IV Suits in Particular Cases

212 [Suits by Aliens and by or against Foreign Rulers, Ambassadors and Envoys]

42 S. 83. . When aliens may sue.

Alien enemies residing in India with the permission of the Central Government, and alien
friends, may sue in any Court otherwise competent to try the suit, as if they were citizens
of India, but alien enemies residing in India without such permission, or residing in a
foreign country, shall not sue in any such court.

Explanation. Every person residing in a foreign country, the Government of which is at war
with India and carrying on business in that country without a licence in that behalf granted
by the Central Government, shall for the purpose of this section, be deemed to be an alien
enemy residing in a foreign country.

1. Changes in the section. Section 12 of the Code of Civil Procedure (Amendment) Act, 1951
(2 of 1951), except for certain minor changes necessitated by the independence, practically
reproduces the old section. So the cases on different topics under the old section are
retained and given below as providing helpful guidance on principles.

2. Alien Enemy. As to who are alien enemies, see the undermentioned cases.213 A person
residing or carrying on business in a friendly country indefinitely occupied by the enemy is
not hit by this section.214 A resident of Pakistan who has come to this country on a casual
visit is not an alien enemy and is entitled to file a suit for restitution of conjugal rights in
the courts of this country.215 Where suit is instituted after the close of the Indo-Pak
conflict (1965) and after the Proclamation of Emergency has been revoked on 10 January
1968, there is no enemy alien and the suit is not barred by s 83 of the Code.216 Where a suit
is brought by a person residing in a foreign country, which was not an enemy country at
that time, the maintainability of the suit is not affected by the fact that subsequently, that
country became an enemy country.217

3. Alien enemy residing in India with permission of the Central Government. A filed
a petition in the Allahabad High Court for judicial separation against her husband. The
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parties were Germans, and the petition was filed while England was at war with Germany.
At the time of filing the petition, A was residing in Lucknow apparently with the
permission of the Government of India, while her husband was in Germany. After filing
the petition, A applied for an order directing the summons together with a copy of the
petition to be sent to the Probate, Divorce and Admiralty Division of the High Court in
England for transmission to the Foreign Office for service upon the respondent. The
court granted the application.218 In a recent decision, the Calcutta High Court held that
where there was no bar to the institution of the suit against the plaintiff at its
commencement, but during its pendency, the plaintiff became disqualified to prosecute it
as a result of the declaration of emergency by India, the proper order by the court is to
suspend the trial during the period of the plaintiffs disqualification and not to dismiss it.219

The words may sue are to be understood with reference to the point of time when the suit
is instituted and not to any subsequent stage in the suit.220

4. Limitation. Where the right of alien enemies to sue is suspended by an order of the
Government, the period during which the right is suspended will not be excluded from the
time prescribed by the Limitation Act for the suit.221

S. 84. When foreign States may sue.

A foreign State may sue in any competent court:

Provided that the object of the suit is to enforce a private right vested in the Ruler of such
State or in any officer of such State in his public capacity.

Private right vested in the head of a State. This section refers to those private rights of
a State that must be enforced through a court of justice as distinguished from its political
rights.222 The expression a private right in the proviso means a private right vested in the
head of the State or some public officer of such state and not the private right of its
subject.223

S. 85. Persons specially appointed by Government to prosecute or defend on behalf of

foreign Rulers.
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(1) The Central Government may at the request of the Ruler of a foreign State, or at
the request of any person competent in the opinion of the Central Government to
act on behalf of such Ruler, by order, appoint any persons to prosecute or defend
any suit on behalf of such Ruler, and any persons so appointed shall be deemed to
be the recognised agents by whom appearances, acts and applications under this
Code may be made or done on behalf of such Ruler.
(2) An appointment under this section may be made for the purpose of a specified suit
or of several specified suits or for the purpose of all such suits as it may from time
to time be necessary to prosecute or defend on behalf of such Ruler.
(3) A person appointed under this section may authorise or appoint any other persons
to make appearances and applications and do acts in any such suit or suits as if he
were himself a party thereto.

1. Recognised agents specially appointed under this section. This section is an

enabling section. It enables a sovereign prince or a ruling chief to prosecute or defend suits
through recognised agents specially appointed in that behalf, it does not prevent the
institution of a suit by a sovereign prince in his own name or through a recognised agent
appointed under O 3, r 2 [Code of 1882, s 371 ].224

A plaint in a suit instituted on behalf of a ruling chief is signed by AB. At the time of
signing the plaint AB was not specially appointed to sue on behalf of the chief under this
section. The plaint is nevertheless good, if AB is subsequently appointed to sue on, behalf
of the chief, and if the appointment is made before the expiration of the period of
limitation prescribed for the suit.225 In the under mentioned case, however, it was held that
the provisions corresponding to this section, which are enacted for a privileged class of
persons, must be strictly construed and that a subsequent authority obtained under this
section for the first time after the presentation of the appeal against the dismissal of the
suit cannot cure the defect.226

The section does not require that notice should be given to the opposite party before a
certificate is granted. When the consent of the government is sought to sue a ruler, the
latter can ask the government for permission to be represented by an agent in the action.227
A certificate granted under this section is conclusive and not liable to be questioned in a
court.228

The abovementioned cases though decided under the old section, express the principles
underlying the present section.

2. Discovery. In England, a foreign state is not considered exempt from having to give
discovery.229
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[S. 86. Suits against foreign Rulers, Ambassadors and Envoys.

(1) No 230 [* * *] foreign State may be sued in any court otherwise competent to try the
suit except with the consent of the Central Government certified in writing by a
Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without such
consent as aforesaid 231 [a foreign State] from whom he holds or claims to hold
the property.

(2) Such consent may be given with respect to a specified suit or to several specified
suits or with respect to all suits of any specified class or classes, and may specify, in
the case of any suits or class of suits, the Court in which the 232 [the foreign State]
may be sued, but it shall not be given, unless it appears to the Central Government
that 233 [the foreign State]
(a) has instituted a suit in the Court against the person desiring to sue 234 [it], or
(b) by 235 [itself] or another, trades within the local limits of the jurisdiction of the
Court, or
(c) is in possession of immovable property situate within those limits and is to be
sued with reference to such property or for money charged thereon, or
(d) has expressly or impliedly waived the privilege accorded to 236 [it] by this section.
237[(3) Except with the consent of the Central Government, certified in writing by a
Secretary to that Government, no decree shall be executed against the property of
any foreign State.]
(4) The preceding provisions of this section shall apply in relation to
238[(a) any Ruler of a foreign State;]
239[(aa)] any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country; and
(c) any such member of the staff 240 [of the foreign State or the staff or retinue of
the Ambassador] or Envoy of a foreign State or of the High Commissioner of a
Commonwealth country as the Central Government may, by general or special
order, specify in this behalf,

[as they apply in relation to a foreign State].

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241[(5) The following persons shall not be arrested under this Code, namely:
(a) any Ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country;
(d) any such member of the staff of the foreign State or the Staff or retinue of the
Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of
a Commonwealth country, as the Central Government may, by general or
special order, specify in this behalf.
(6) Where a request is made to the Central Government for the grant of any consent
referred to in sub-section (1), the Central Government shall, before refusing to
accede to the request in whole or in part, give to the person making the request a
reasonable opportunity of being heard].

1. Changes in the Section. The first changes in the section were carried out by s 12 of the
Code of Civil Procedure (Amendment) Act, 1951 (II of 1951). It replaced the words such
Prince or Chief by the words Ruler of a foreign State. In all other respects otherwise, it
reproduced the old section except two changes:
(i) it added a new clause, cl (d) to sub-s (2); and
(ii) it extended the provisions of the section to High Commissioners of the
Commonwealth countries and specified members of the staff of diplomatic
missions [vide sub-s 4, cll (b) and (c)].

By s 29 of the Amendment Act, 1976, several changes have been effected in the section. In
sub-s (1) the words Ruler of a have been deleted. In the proviso to sub-s (1) the words a
Ruler have been substituted by the words a foreign State. Following upon these changes,
the words the Ruler wherever they occurred in sub-s (2) were substituted by the words the
foreign State, and the words him and himself by the words it and itself.

Sub-s (3) which barred the arrest of a ruler of a foreign state in execution of a decree and
also execution of such decree except with the consent of the Central Government has
been substituted by the present sub-s (3). In sub-cl 4, the original cl (a) has been
renumbered as cl (aa) and a new cl (a), viz, any Ruler of a foreign State has been inserted.
In cl (c) the words of the foreign State or the staff or retinue of the Ambassador have been
substituted for the words of the Ruler, etc. In the same clause, the words as they apply in
relation to a foreign state have been substituted for the words as they apply in relation to
the Ruler of a foreign State.

Sub-ss 5 and 6 are new. For definition of the terms Foreign State and Ruler see s 87 A.
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2. Immunity of a foreign State. Sub-s (1) contains statutory provisions covering a field
which otherwise would be covered by the doctrine of immunity of a foreign state under
the Public International Law. This sub-section is contrary to what prevails in England
where the jurisdiction of the courts to entertain an action against a foreign state is barred.
But as our Supreme Court has observed, every sovereign state is competent to make its
own laws in relation to the rights and liabilities of foreign states to be sued within its own
municipal courts. Just as an independent sovereign state may statutorily provide for its own
rights and liabilities to sue and be sued, so can it provide for the rights and liabilities of
foreign states to sue and be sued in its municipal courts. The effect of sub-s (1) thus, is to
modify to this extent the doctrine of immunity recognised by the International law. When,
therefore, a suit is filed with the consent of the Central Government, it would not be open
to the foreign state to rely on the doctrine of immunity as the municipal courts are bound
by the statutory provisions such as sub-s (1) of this section. The sub-section is not merely
procedural, but is in a sense a counterpart of s 84 which confers on a foreign state, the
right to sue.242

Immunity under s 86 cannot be claimed by a company owned by the, Government of Sri

Lanka and incorporated under Sri Lanka Statute. It cannot be equated with the
Government of Sri Lanka.243 Kenya Airways was considered to be a Foreign state within
the meaning of s 86, as the entire shares of the company was held by the Government of
Kenya and the transfer of company shares to public, though, was permissible, but no such
transfer was effected.244 Suit against an organ of a foreign state, DSR Lines of the erstwhile
German Democratic Republic, is not barred by s 86. But, if the plea is taken that the
defendant would be entitled to sovereign immunity in International Law, the plea would be
decided as a preliminary issue.245 In a Delhi case, it was pointed out that certain
developments had taken place in regard to sovereign immunity and the following
observations of the court are of considerable interest.246

It is interesting to note that there have been instances where repairs have been done to the property of sovereign states which have not
been paid for by the sovereign states, which led to the filings of proceedings for recovery of such monies. One such instance is reported
in,247Planmount Ltd. v. Republic of Zaire, in which the plaintiff sought to recover money on account of repairs done to the property
belonging to the Republic of Zaire. Plea was there taken, that being a sovereign state, Republic of Zaire could not be sued. The single
judge dealing with the matter noted several judgments on similar issues which had arisen in various jurisdictions in different countries
including England and Germany. The judge noted that there has been a change in the International Law regarding such liabilities of
foreign states, and that distinction has been made in the International Law regarding liability arising out of commercial act ivity of
sovereign states. The single judge, in that case, held that contract for repairs of a building has to be regarded as an act of transaction of
private or commercial nature and not as a governmental act done by a sovereign government. The single judge has relied upon
judgment of the court of appeal in the case Trendtex Trading Corpn Ltd. v. Central Bank of Nigeria.248 In that case, the applicable
International Law was reviewed, and the change in the International Law which has come into being in America and England noted.

In another case, refusal to give permission to sue the Government of Algeria for charges
were claimed by the applicant for permission. In respect of building, maintenance etc work
done at the Embassy premises in New Delhi was found to be unjustified. In reply to the
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application, the Ministry had stated that permission could not be given on political
grounds. But, later the government shifted its stand by observing that

the Ministry was of the opinion that no prima facie case was made out and the facts of the
case were not squarely covered under s 86 of the Code of Civil Procedure. It is submitted that
under s 86, paras(1) and (2), the Central Government has discretion to refuse consent as
required under that section.

The court found apparent contradiction in what was stated in the refusal to give
permission to sue and what was stated in the affidavit of the government. The court held
that it was not for the government to decide whether there was a prima facie case or not;
that was for the judiciary to adjudicate.

In the above judgment, certain other important observations were made which are of great
relevance as under:

In this case, the petitioner had a right to carry on the work of maintenance and repairs in
this country. This right is granted to him under the Constitution and he trades within the
local limits of the courts in India and the foreign State which he wants to sue his
immovable property in India within the limits of this country. There is a dispute about the
petitioners claim. That dispute has not been judicially determined. It has not been held that
the claim of the petitioner is frivolous. In that view of the matter, it appears to us that a
foreign State in this country if it fulfils the conditions stipulated in sub-s (2) of s 86 of the
Code would be liable to be sued in this country. That would be in conformity with the
principles of international law as recognised as part of our domestic law and in accordance
with our Constitution and human rights.

3. Scope of the section. The words sue, be sued and suits used in sub-ss (1) and (2)
indicate that the section applies only to suits. A proceeding which does not commence
with a plaint is not a suit. It has been held that since an insolvency proceeding is started
not with the presentation of a plaint but with the presentation of a petition it does not
attract this section even if read with s 141 merely by reason of the fact that a ruler is one of
the creditor.249 For the same reason, the section cannot apply to probate proceedings,250
nor to proceedings taken under the Industrial Disputes Act, 1947.251 The observation in Mirza
Akbar Kasini’s case that the section contemplates a suit against a natural and not an
artificial person is no longer applicable in view of the omission of the word Ruler in sub-ss
(1) and (2) and the substitution of the words foreign state in its place. Principles underlying
the earlier decisions in cases where the rulers and chiefs of the former Indian states were
sued are, except to the limited extent set out in s 87 B, also no longer relevant in view of
the deletion of Art. 362 of the Constitution and their ceasing to he recognised as rulers under
Art. 363A by the Constitution (Twenty-Sixth Amendment) Act, 1971, which came into force
with effect from 28 December 1971.
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4. Foreign State. The by-laws show that the Deputy Prime Minister and the Minister of
Defence and Aviation have to implement the decree of the Council of Minister. The Saudi
Arabian Airlines Corporation is a public and independent organisation. It is attached to the
Ministry of Defence and Aviation. It is managed by a board which is presided by the
Minister of Defence and Aviation and comprises of nine members appointed by the
resolution of Council of Ministers on nomination by Minister of Defence and Aviation. It
clearly shows that the control over the defendant airlines corporation is with the state.
Merely because it is carrying on an independent work will not take it away from the
purview of sub-s (1) to s 86. It will still be a foreign state because of the nature of the by-
laws and the control which is almost complete with the state and its functionaries.
Consequently before the suit could be filed, the consent of the Central Government
certified in writing by the secretary to the government was necessary.252

5. Consent shall not be given unless it appears, etc. The words it appears to the
Central Government which is the consenting authority make it clear that the decision
granting the consent is final and not open to question by the court.253 The earlier decisions
which assumed to the contrary are not sustainable.254 It is also not open to the court to
question the propriety of an order granting or refusing the consent.255

Suit was proposed to be filed against foreign consulate generalconsent of the Central
Government was refused. The refusal was on political grounds. The order did not state
what political considerations necessitated the refusal. It was held that the refusal was liable
to be quashed. The matter was remitted to the Central Government, for decision
according to law.256

6. Consent must be obtained before institution of suit. Provisions of s 86 (1) are not
impliedly superseded by provisions of Carriage by Air Act.257

The consent by the Central Government must be obtained before the institution of the
suit. Consent obtained after the institution of the suit is not sufficient. If the consent has
not been obtained before the institution of the suit, the proper course is to dismiss the suit
or perhaps allow the plaintiff to withdraw it with liberty to bring a fresh suit under O 23, r
1 (Code of 1882, s 373 ).258 Once consent has been obtained for the institution of the suit,
it is consent also for the continuation of that suit.259

For seeking permission under s 86, a letter in the following form was held to be sufficient:

Kindly permit me to hand over this matter to my legal adviser for taking legal course for
ejectment. I would like to take this course only upon your permission.260

7. Proceedings under the Companies Act. The Allahabad High Court held that this
section did not apply to proceedings under s 184 of the Companies Act as the latter section
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imposes a statutory obligation upon the court to settle the list of contributories but that
this section applied to all proceedings under ss 186 and 187 of the Companies Act. Hence,
no order could be made to make calls on or order payment by a shareholder who was a
ruling chief (now after the amendment, a ruler of a foreign state).261 The position would be
the same under the Companies Act, 1956 and therefore this section will not apply to
proceedings under s 467, but will govern proceedings under ss 469 and 470.

8. Waiver of want of consent. The short question which can be considered is as to

whether if such a defence of bar under s 80 (1), is not taken it would tantamount to waiver
the plea that was available to the defendant. It must be stated at the outset that waiver is a
conscious abandonment of a right. It has to be seen in the facts and circumstances of each
case as to whether that right has been waiver or not.262

It is well-settled that where a court has no jurisdiction at all to entertain a suit, objection to
its jurisdiction can be taken at any stage of the suit even though the defendant might have,
at one stage, waived the objection, for a defect in jurisdiction cannot be cured by waiver.
But if the case is one of irregular exercise of jurisdiction, the defect may be cured by waiver
on the part of the defendant (see notes under s 21 ). The High Court of Bombay, after an
exhaustive review of authorities held under the old section that if a suit was entertained
against a sovereign prince without the consent of the Governor-General in Council having
been obtained, the case would be one of irregular exercise of jurisdiction and if the
defendant had not objected until the suit was ripe for hearing, he would be deemed to have
waived the objection to jurisdiction.263 This view was dissented from, by the High Court of
Madras on the ground that the recognition of cases of waiver, as excepted from the
ordinary provisions of International Law as understood in England, cannot be imported
into the clear language of the Indian Code.264 The Patna High Court went to the length of
holding that even applications for adjournment made on behalf of a ruling chief amounted
to a waiver of his privilege and debarred him from objecting to the courts jurisdiction.265
The Privy Council, however, in a later case, held that this and the next section related to an
important matter of public policy in India, that the provisions contained therein were
imperative and had to be observed and that having regard to the public purposes which
they served, they could not be waived.266 The effect of the Privy Councils decision was to
overrule the decisions of the Bombay and Patna High Courts. In a later case, the Bombay
High Court following Gaekwar Rly case, held that there could be no waiver of want of
notice under this section.267 It has also been held that the rule as to consent in this section
is not merely a rule of procedure.268 The plea of bar of s 86 was pleaded for the first time
after almost 16 years of the filing of the suit after submitting themselves to the jurisdiction
of the court. Foreign Airline has filed their appearances and appeared in the proceedings.
Foreign Airline had given undertaking and made statements thereby avoiding appointment
of court receiver. Foreign Airline has filed their respective statement wherein this plea has
not been raised. Having submitted to the jurisdiction of the court Foreign Airline would be
deemed to has waived their rights, if any, under s 86 of the Code. Foreign Airline can not
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therefore, be permitted to raise the plea in respect of maintainability of this suit under s 86
of the Code.269

But suit filed against Saudi Arabian Airlines Corporation, which was attached to Ministry
of Defence and Aviation of Saudi Arabia, control over same being with the state, would be
termed as foreign state. Consequently before suit could be filed, consent of Central
Government certified in writing by Secretary to Government would be necessary.270

9. Sub-section (4). Though the recent amendment omitted the words Ruler of a from
sub-s 1, it has provided the protection of the section to rulers of foreign states, by adding
to sub-s 4 a new cl (a). The protection of the section is extended to four categories of
persons enumerated in cll (a), (aa), (b) and (c). The privilege of notice under this section
enjoyed by the ex-rulers of Indian states no longer exists, since as a result of the deletion of
art 362 of the Constitution and the new art 363A, they have ceased to be recognised as such
rulers. The old cases pertaining to them have therefore ceased to have any relevance. The
principle laid down in the earlier cases relating to the ex-rulers of the Indian states that the
provisions of this section applied to them even when they were sued in their private
capacity,271 it is submitted, holds good when a suit is filed against a ruler of a foreign state.

10. Immunity against arrest in execution of a decree. Sub-section 5 is new. It furnishes

immunity against arrest in execution of a decree to the categories of persons there set out
including rulers of foreign states.

11. Limitation. In computing the period of limitation, a plaintiff in a suit to which this
section applies, is not entitled to deduct the time spent in obtaining the consent.272Section
15(5) of the Limitation Act, 1963 provides that in computing the period of limitation for any
suit the time during which the defendant has been absent from India shall be excluded.
The Calcutta view was that the time must be excluded even if the defendant was carrying
on business in what then was called British India through an authorised agent during his
absence.273 The Bombay High Court, on the other hand, held that s 13 of the Limitation Act,
1908 (s 15 of the Limitation Act, 1963) must be read with ss 85, 86 and 87 (as they then
stood) of the Code so far as a sovereign prince or a ruling chief was concerned; and that
such a Prince or Chief must be treated as residing in British India for purposes of the
Limitation Act in so far as he carried on business through his representatives.274 It is
submitted that the Bombay view is correct. Before refusing sanction, natural justice must
be observed. Besides this, the decision must be expressed in such a manner that reasons
can be spelt out from such a decision.275

276[S. 87. Style of foreign Rulers as parties to suits.

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The Ruler of a foreign State may sue, and shall be sued, in the name of his State:

Provided that in giving the consent referred to in Section 86, the Central Government may
direct that the Ruler may be sued in the name of an agent or in any other name].

HIGH COURT AMENDMENT

Calcutta. Omit the words and shall be sued, after the words Ruling Chief may sue and
before the words in the name of ; omit the proviso. Cal. Gaz. Pt. I, dated April 20, 1967.

This Section does not apply to rulers of former Indian states.277

278[S. 87A. Definitions of foreign State and Ruler.

(1) In this Part.

(a) foreign State means any State outside India which has been recognised by the
Central Government; and
(b) Ruler, in relation to a foreign State, means the person who is for the time being
recognised by the Central Government to be the head of that State.
(2) Every court shall take judicial notice of the fact
(a) that a State has or has not been recognised by the Central Government;
(b) that a person has or has not been recognised by the Central Government to be
the head of the State].

The word Ruler in cl (b) takes in rulers of all foreign states, whatever their forms of
government, for the time being, and is recognised by the Central Government to be the
head of the state.279

212 . Subs. for former heading and ss 83 to 87 by Act 2 of 1951, s 12.

42 . Dasarathi v. Kirpal Singh, AIR 1960 Cal 454.
213 . Janson v. Driefontein Consolidated Mines, Ltd., AIR 1902 Cal 484, p. 505; Daimler Company, Ltd. v. Continental Tyre and Rubber Co. Ltd., (1916)
2 Cal 388; Haji Ali v. Abdul Jalil, (1920) ILR All 188 : AIR 1944 All 97.
214 . Chem Abbheong v. M.A. Packiri Mahomed Rowther, (1946) Mad 786 : AIR 1946 Mad 328 [LNIND 1945 MAD 284].
215 . Nizamuddin v. Huseni, AIR 1960 MP 212 [LNIND 1960 MP 109].
216 . Gyasuddin v. Allah Tala Waqf Mansuma, AIR 1986 All 39 [LNIND 1984 ALL 316].
217 . S.N. Banerjee v. Bhupati Charan, AIR 1976 Cal 267 [LNIND 1976 CAL 60].
218 . Anjelina v. Joseph, (1917) 39 All 377 : 39 IC 862.
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219 . S.N. Banerjee v. B.C. Chakraborty, AIR 1976 Cal 267 [LNIND 1976 CAL 60].
220 . Feroza Begam v. Dewan Daulat Rai, AIR 1975 Del 1 [LNIND 1973 DEL 275].
221 . Deutsch Asiatiche Bank v. Hira Lall, (1919) 46 Cal 526.
222 . Hojon v. Bur Singh, (1885) 11 Cal 17.
223 . Mirza Ali Akbar Kashani v. United Arab Republic, AIR 1966 SC230 [LNIND 1965 SC 180]: (1966) 1 SCR 319 [LNIND 1965 SC 180].
224 . Maharaja of Bharatpur v. Kacheru, (1897) 19 All 510; Beer Chunder v. Ishan Chunder, (1884) 10 Cal 136; Rameshchandra v. Maharaja Birendra,
AIR 1925 Cal 513: (1924) 29 CWN 287.
225 . Maharaja of Rewah v. Swami Saran, (1903) 25 All 635 distinguished in Abdul Latif v. Jawahar State, AIR 1940 Bom 172: (1940) 42 Bom LR
262.
226 . Abdul Latif v. Jawhar State, AIR 1940 Bom 172.
227 . N. Ibohal Singh v. Budh Chandra Singh, AIR 1961 Mani 40.
228 . Mirza Akbar Kasini v. United Arab Republic, AIR 1960 Cal 768 [LNIND 1960 CAL 87].
229 . United States of America v. Wagner, (1867) 2 Ch App 590; Republic of Peru v. Wagueline, (1875) LR 20 Eq 140.
230 . The words Ruler of a omitted by Act 104 of 1976, s 29 (w.e.f. 1-2-1977).
231 . Subs. by Act 104 of 1976, s 29, for a Ruler (w.e.f. 1-2-1977).
232 . Subs. for the Ruler by Act 104 of 1976, s 29 (w.e.f. 1-2-1977).
233 . Subs. for the Ruler by Act 104 of 1976, s 29 (w.e.f. 1-2-1977).
234 . Subs. for him by Act 104 of 1976, s 29 (w.e.f. 1-2-1977).
235 . Subs. for himself by Act 14 of 1976, s 29 (w.e.f. 1-2-1977).
236 . Subs. by Act 104 of 1976, s 29, for himself (w.e.f. 1-2-1977).
237 . Subs. by CPC (Amendment) Act 104 of 1976, s 29, for sub-s 3, (w.e.f. 1-2-1977).
238 . Ins. by ibid. (w.e.f. 1-2-1977).
239 . Cl. (a) re-lettered as cl. (aa) by Act 104 of 1976, s 29 (w.e.f. 1-2-1977).
240 . Subs. by Act 104 of 1976, s 29 for certain words (w.e.f. 1-2-1977).
241 . Ins. by ibid, (w.e.f. 1-2-1977).
242 . Mirza Ali Akbar Kashani v. United Arab Republic, AIR 1966 SC 230 [LNIND 1965 SC 180]: (1966) 1 SCR 319 [LNIND 1965 SC 180];
Chandulal Kushalji v. Awad, (1897) 21 Bom 351; GDR v. Dynamic Industrial Undertakng, AIR 1972 Bom 27 [LNIND 1970 BOM 76]: (1972)
ILR Bom 731 : 73 Bom LR 183.
243 . Capstan Shipping Enterprises v. Ceylone Shipping Lines, AIR 1989 NOC 175(Cal).
244 . Kenya Airways v. Jinibai B. Kheshwala, AIR 1998 Bom 287 [LNIND 1998 BOM 464] (DB).
245 . New Central Jute Mills v. VEB Deutr-Frachit Seerederai Rostock, AIR 1983 Cal 225 [LNIND 1983 CAL 8] (DB).
246 . Century Twenty-One Pvt. Ltd. v. Union of India, AIR 1987 Del 124 [LNIND 1986 DEL 331]; Harbhajan Singh v. Union of India, AIR 1987
SC 9 [LNIND 1986 SC 420], commented upon in (1987) Vol 27, No 4 Indian Journal of International Law, pp. 483-86.
247 . (1981) 1 All ER 1110.
248 . (1977) 1 All ER 881 : [1977] 1 QB 529.
249 . Madan Lal v. HH The Nawab Saiyed Raza Ali Khan, AIR 1940 Cal 244.
250 . Indrajit Singh v. Rajendra Singhji, AIR 1956 Bom 45 [LNIND 1955 BOM 32]: (1955) Bom 912.
251 . Bhagwat Singh v. Rajasthan, AIR 1963 Raj 22 [LNIND 1962 RAJ 196]: (1962) ILR Raj 571.
252 . Mansoor Mumtaz v. Saudi Arabian Airlines Corpn, AIR 2002 Del 103 [LNIND 2001 MP 220].
253 . Govindram v. State of Gondal, AIR 1950 PC 99: 77 IA 156 : (1950) 54 CWN 419 (PC).
254 . Beer Chunder v. Raj Coomer Nobadeep Chunder, (1883) 9 Cal 535; Maharaja of Jaipur v. Lalji Sahai, (1907) 29 All 379.
255 . Govindram v. State of Gondal, AIR 1950 PC 99; Mohommad Raza v. Kapurthala Estate, AIR 1935 Oudh 164.
256 . Shanti Prasad Agarwalla v. Union of India, AIR 1991 SC 814 [LNIND 1962 SC 6]; Harbhan Singh Bhalla v. Union of India, (1986) 4 SCC 678
[LNIND 1986 SC 420].
257 . Mansoor Mumtaz v. Saudi Arabian Airlines Corpn, AIR 2002 Del 103 [LNIND 2001 MP 220].
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258 . Mirza Ali Akbar v. UAR, AIR 1966 SC230 [LNIND 1965 SC 180]; Chandulal v. Awad Bin Umar,(1897) 21 Bom 351, 355358; Maharana
Sir Nripendra v. Maharaja Manindra, (1912) 17 CWN 1942.
259 . B.M. Ghorpade v. S.B. Padaki, AIR 1976 Kant 164 [LNIND 1976 KANT 50].
260 . Century Twenty One Pvt. Ltd. v. Union of India, AIR 1987 Del 124 [LNIND 1986 DEL 331].
261 . Official Liquadidators, DDM Electric Tramways Co. v. President Council of Rajgency, Nabha State, AIR 1936 All 826(FB) : (1936) 58 All 742.
262 . Mansoor Mumtaz v. Saudi Arabian, Airlines Corpn, AIR 2002 Del 103 [LNIND 2001 MP 220].
263 . Chandulal v. Awad Bin Umar,(1897) 21 Bom 351.
264 . Narayappa v. The Cochin Sircar,(1918) 39 Mad 881.
265 . Maharaj Bahadur v. Siva Saran, AIR 1921 Pat 23: (1921) 6 Pat LJ 185.
266 . Gaekwar Baroda State Rly v. Hafiz, AIR 1938 PC 165: (1938) 65 IA 182; reversing the decision, the High Court of Allahabad reported in
AIR 1934 All 749; Madanalal v. HH The Nawab Sayed Reza Ali Khan, AIR 1940 Cal 244.
267 . Thakore Sahib Kanji Keshari v. Gulam Rasul, 57 Bom LR 824 : AIR 1955 Bom 449.
268 . Madan Lal v. HH The Nawab Sayad Reza Ali Khab, AIR 1940 Cal 244.
269 . Kenya Airways v. Jinibai B Kheshwala, AIR 1998 Bom 287 [LNIND 1998 BOM 464] (DB).
270 . Mansoor Mumtaz v. Saudi Arabian Airlines Corpn, AIR 2002 Del 103 [LNIND 2001 MP 220].
271 . Narayanan v. The Cochin Sircar, ILR 38 Mad 635, affirmed in (1966) 39 Mad 681; Rewa Shankar v. Narasinghji, AIR 1957 HP 16.
272 . Shrimant Sayaji Maharaj v. Madhavrao,(1929) 53 Bom 12 : AIR 1929 Bom 14.
273 . Pooma Chunder v. Sasson, (1998) 25 Cal 496 (FB).
274 . Shrimant Sayaji Maharaj v. Madhavrao,(1929) 53 Bom 12 : AIR 1929 Bom 14.
275 . Hari Bhajan Singh v. Union of India, AIR 1978 SC 9: (1986) JT 765 : (1987) 1 SCJ 318.
276 . Subs. for former ss 83 to 87 by CPC (Amendment) Act 2 of 1951, s 12.
277 . N. Ihobal Singh v. Budh Chandra Singh, AIR 1961 Mani 40.
278 . Subs. for former ss 83 to 87 by CPC (Amendment) Act 2 of 1951, s 12.
279 . Mirza Ali Akbar Kashani v. Union Arab Republic, AIR 1966 SC230 [LNIND 1965 SC 180]: (1966) 1 SCR 319 [LNIND 1965 SC 180].

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Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part IV Suits in Particular Cases

Suits against Rulers of Former Indian States

S. 87B. Application of ss 85 and 86 to Rulers of Former Indian States

280[(1) In the case of any suit by or against the Ruler of any former Indian State
which is based wholly or in part upon a cause of act ion which arose before the
commencement of the Constitution or any proceeding arising out of such suit, the
provisions of section 85 and sub-section (1) and (3) of section 86 shall apply in
relation to such Ruler as they apply in relation to the Ruler of a foreign State.]
(2) In this section
(a) former Indian State means any such Indian State as the, Central Government
may, by notification in the Official Gazette, specify for the purposes of this
section; 281 [* * *]
282 (b) [(b) commencement of the Constitution means the 26th day of January,
1950; and
(c) Ruler in relation to a former Indian State has the same meaning as in article 363 of
the Constitution.]

1. Scope. This section was substituted for, the one which stood prior to the enactment of
the rulers of Indian States (Abolition of Privileges) Act, 1972 (54 of 1972). As the section
stood till then the word Ruler in relation to a former Indian State was defined by cl (b) of
sub-s (2) to mean the person who, for the time being, was recognised by the President as
the ruler of the state for the purposes of the Constitution. Act 54 of 1972 was the sequel of
the Constitution (Twenty Sixth Amendment) Act, 1971 which came into force with effect
from 28 December 1971 and which inserted a new article, Art. 363A, which provided that:

notwithstanding anything in this Constitution or any law for the time being in force, the
Prince, Chief or other person who, at any time before the commencement of the
Constitution (Twenty Sixth Amendment) Act, 1971 was recognised by the President as a
Ruler of an Indian state or any person who, at the time of such commencement, was
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recognised by the President, as the successor of such ruler, shall on and from such
commencement, cease to be recognised as such Ruler or the successor of such Ruler.

The result of this Constitution Amendment Act is that the former rulers who were entitled
to claim protection under this section, can no longer do so by reason of the fact that with
effect from 28 December 1971 they ceased to be recognised as such rulersthus nullifying s
87 B as it then stood. Act 54 of 1972 saves protection earlier enjoyed by such rulers in a
very limited way which is for all practical purposes academic, in that it is confined only to
suits based wholly or in part on a cause of action which arose before the commencement
of the Constitution, ie, 26 January 1950 and proceedings arising out of such suits.

The immunity under the section is personal to the rulers.283

As the section formerly stood, it was held that it had no application to suits filed by ex-
rulers and that consequently any claim by them for exemption from personal appearance
would have to be dealt with under the ordinary law.284 This is no longer correct, as the
section to the extent, it affords immunity applies to suits by and against the ex-rulers.

2. Constitutionality. A conjoint reading of the provisions contained in s 87 -B of the

Code of Civil Procedure, arts 366(22) and 363-A of the Constitution of India demonstrates
that the rulers of Indian states form a class by themselves and the special treatment given
to them by s 87 -B Code of Civil Procedure cannot be said to be based on unconstitutional
discrimination. There is, of course, discrimination between the ex-rulers and the rest of the
citizens of India, but that discrimination is justified having regard to the historical and
legislative background.285

The section has been held not to be repugnant to Art. 14 of the Constitution as it is based on
a valid classification.286

280 . Subs. by Act 54 of 1972, s 3 for sub-section (1).

281 . The word and omitted by Act 54 of 1972, s 3.
282 . Subs. by Act 54 of 1972, s 3, for cl. (b).
283 . Bhagwan Pandia v. Nayan Kunvarba, AIR 1953 Sau 53.
284 . Darbar Saheb v. New India Assurance Co. Ltd., (1955) Bom LR 236.
285 . Narendra Singh Rajawat v. Thakur Mohan Singh Kanota, AIR 2002 Raj 218.
286 . Mohan Lal v. Sawai Mansinghji, (1962) 1 SCR 702 [LNIND 1961 SC 84] : AIR 1962 SC 73.

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Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part IV Suits in Particular Cases

Interpleader

S. 88. Where interpleader suit may be instituted.

Where two or more persons claim adversely to one another the same debt, sum of money
or other property, movable or immovable, from another person, who claims no interest
therein other than for charges or costs and who is ready to pay or deliver it to the rightful
claimant, such other person may institute a suit of inter pleader against all the claimants for
the purpose of obtaining a decision as to the person to whom the payment or delivery shall
be made and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be
decided, no such suit of interpleader shall be instituted.

See O 35.

1. Changes in the section. This section corresponds with s 470 of the Code of 1882
except in the following particulars:
(i) The words, the same debt, sum of money or other property, movable or
immovable, have been substituted for the words, the same payment or property.
(ii) The words, who claims no interest therein other than for charges or costs, have
been borrowed from RSC, O 57, r 2, and have been substituted for the words,
whose only interest therein is that of a mere stakeholder.

2. What is an interpleader suit. An interpleader suit is one in which the real dispute is
between the defendants only and the defendants interplead, that is to say plead against
each other instead of pleading against the plaintiff as in an ordinary suit. In every
interpleader suit, there must be some debt or sum of money or other property in dispute
between the defendants only, and the plaintiff must be a person who claims no interest
therein other than for charges or costs and who is ready to pay or deliver it to such of the
defendants as may be declared by the court to be entitled to it. Thus, suppose certain
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property is claimed by A as well as by B, and X is in possession of that property and claims

no interest in the property himself and is ready and willing to deliver it to such party as
may be declared by the court to be the rightful owner of it, X as plaintiff may institute an
interpleader suit against A and B as defendants. In such a case, X will, as a rule, be
dismissed from the suit at the first hearing after his costs are provided for, and A and B
will be left to interplead and to fight the matter out between themselves as if one of them
was plaintiff and the other was defendant (O 35, r 4). But before the plaintiff is dismissed
from the suit, he must deposit the property in dispute in court (O 35, r 2). X can even
move the court for an order to get his name removed from the suit.287 It would appear that
in such a suit it is not necessary that the plaintiff must admit the claim against him in its
entirety. To the extent he admits his liability he may ask the rival claimants to interplead.
Thus where the plaintiffs mortgagors claimed that they were agriculturists and as such were
entitled to have the mortgage debt scaled down under Madras Act 4 of 1938 and when so
scaled down the debt would only be Rs 30,000 and the defendants asserted their rival
claims to the debt and while doing so denied that the plaintiffs were agriculturists or that
the debt was liable to be scaled down it was held that to the extent of the admitted liability
for Rs 30,000 the suit was maintainable as an interpleader suit.288

3. Who claims no interest other than for charges or costs. These words indicate that
the plaintiff in an interpleader suit must be in a real position of impartiality.289 A railway
company which claims no interest in goods in its possession other than a lien on the goods
for wharfage, demurrage and freight, may institute an interpleader suit where the goods are
claimed by two persons adversely to each other.290

A holds in his hands a sum of Rs 5,000 which is claimed by B and C adversely to each
other. A institutes an interpleader suit against B and C. It is found at the hearing that A
had entered into an agreement with B before the institution of the suit that if B succeeded
in the suit he should accept from A Rs 4,000 only in full satisfaction of his claim. Here A
has, by virtue of the agreement, an interest in the subject matter of the suit, and he is not,
therefore, entitled to institute an interpleader suit. The suit must be dismissed.291

A party who has taken an indemnity from one of the claimants is not entitled to file an
interpleader suit.292

A suit is not necessarily an interpleader suit and subject to the provisions of this section,
merely because one of the reliefs claimed by the plaintiff requires the defendants to
interplead together concerning certain claims. The court must have regard to all the prayers
of the plaint to determine the exact nature of the suit.293

4. Amendment of plaint in an interpleader suit. A plaint in an interpleader suit can be

amended by inclusion of new properties and joinder of new parties.294
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287 . National Insurance Co. Ltd. v. Dhirendra Nath, AIR 1938 Cal 287: (1939) 1 Cal 53.
288 . Inuganti Sobhanadrirao v. M. Jaggayya, AIR 1966 AP 92 [LNIND 1965 AP 57].
289 . Sambiah v. Subba Reddiar, (1951) 1 MLJ 353 [LNIND 1950 MAD 232].
290 . Bombay Baroda Rly. Co. v. Sasoon, (1894) 18 Bom 231; Allenborough v. St. Katharines Docks, (1878) 3 CPD 450.
291 . Murrietta v. South American Co., (1893) 62 LJQB 396.
292 . Hari Karmakar v. Robin, AIR 1927 Rang 91: (1927) 4 Rang 465.
293 . Juggannath v. Tulka Kera, (1908) 32 Bom 592.
294 . Raja Bhagwati Baksh Singh v. Civil Judge, AIR 1961 All 599 [LNIND 1960 ALL 112].

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Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part V SPECIAL PROCEEDINGS

Part V SPECIAL PROCEEDINGS

ARBITRATION

1[S. 89. Settlement of disputes outside the Court.

(1) Where it appears to the court that there exist elements of a settlement which may
be acceptable to the parties, the court shall formulate the terms of settlement and
give them to the parties for their observations and after receiving the observations
of the parties, the court may reformulate the terms of a possible settlement and
refer the same for
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute has been referred
(a) for arbitration or conciliation, the provisions of the Arbitration an Conciliation
Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration of
conciliation were referred for settlement under the provisions of that Act;
(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance
with the provisions of sub-section (1) of Section 20 of the Legal Services
Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply
in respect of the dispute to referred to the Lok Adalat;
(c) for judicial settlement, the court shall refer the same to a suitable institution or
person and such institution or person shall be deemed to be a Lok Adalat and all
the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply
as if the dispute were referred to a Lok Adalat under the provisions of that Act;
(d) for mediation, the court shall effect a compromise between the parties and shall
follow such procedure as may be prescribed.]
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1. Alterations in the section. The earlier s 89 given below as regards Arbitration as also s
104, cll (a)(f) and the Second Schedule to this Code of Civil Procedure have been annulled by
the Arbitration Act X of 1940 (now replaced by Arbitration and Conciliation Act, 1996).

The Amending Act of 1999 has inserted s 89 in the Code. The amended Act comes into
effect from 1 July 2002. The provisions of s 89 of the Code shall not effect any suit in
which an issue has been settled before the commencement of the present section; and
every such suit shall be dealt with as if the present s 89 had not come into force.
Corresponding amendments have also been made in rr 1A, 1B and 1C of O 10 of the
Code.

Section 89 of the Code was earlier repealed by the Act of 1940 after coming into force of
Indian Arbitration Act, 1940. Section 89 has again been substituted by the Amending Act of
1999.

The amended s 89 provides that where it appears to the court that there exists elements of
settlement which may be acceptable to the parties, the court shall formulate the terms of
settlement and give them to the parties for their observations and after receiving the
observations of the parties, the court may reformulate the terms of possible settlement and
refer the same for:
(i) arbitration;
(ii) conciliation;
(iii) judicial settlement including settlement through Lok Adalat;
(iv) mediation.

Where a dispute has been referred for Arbitration or Conciliation the provisions of the
Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the provisions of the Act.

Where the court has referred the dispute for judicial settlement, it shall refer the same to a
suitable institution or person and such institution and such person or institution shall be
deemed to be a Lok Adalat and all the provisions of Legal Services Authorities Act, 1987 shall
apply.

Further, where the dispute is referred for mediation, the court shall effect a compromise
between the parties and shall follow such procedure as may be prescribed.

Section 20 of the Legal Services Authorities Act, 1987 provides that a matter can be referred to
Lok Adalat: (i) with the consent of the parties (ii) on an application of one of the parties
(iii) where the court is satisfied that the matter is an appropriate one to be taken cognisance
of by the Lok Adalat. However, no case shall be referred to the Lok Adalat, on an
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application of one of the parties, by the court, without giving a reasonable opportunity of
being heard to the parties. The Legal Services Authorities Act, 1987 is amended by the Act 37
of 2002 which comes into effect from 1 June 2002, consequent to which ss 22A22E have
been inserted. The inserted sections deal with pre-litigation conciliation and settlement. It
would be interesting to see how the amendments in this Act, affect s 89 of the Code of Civil
Procedure.

Alongwith the insertion of s 89, the legislature has also amended O 10 of the Code, by
inserting rr 1A, 1B and 1C. The said rules provide that after recording the admissions and
denials, the courts shall direct the parties to the suit to opt for either mode of settlements
outside the court as specified in sub-s (1) of s 89. On the option of the parties, the court
shall fix the date of appearance before such forum or authorities as may be opted by the
parties. It is mandatory for the parties to appear before the designated forum or authority,
for conciliation of the suit. Further, where the presiding officer of the forum or the
authority is satisfied that it will not be proper in the interest of justice to proceed with the
matter further, then, it shall refer the matter once again to the court and direct the parties
to appear before the court on the date fixed by it.

Reading the amended s 89, and the insertions in O 10, it appears the following conditions
should be satisfied before matter could be referred to an Alternate Dispute Redressal:
(i) existence of elements of settlement in the opinion of the court;
(ii) the parties must share the opinion of the court;
(iii) formulation of the terms of settlement by the court;
(iv) the court should invite the observation of the parties on the terms of settlement;
(v) observations of the parties must be received by the court;
(vi) if need be, reformulate the terms of settlement and refer the same for Alternate
Dispute Redressal contemplated under s 89.

In the opinion of the authors, the court should not be asked to entertain the exercise
contemplated to formulating and reformulating the terms of settlement by sub-s (1) of s
89. It is possible that while formulating the terms of settlement or while reformulating the
terms of the settlement after receiving the observations of the parties, that the court may
be obliged to express some opinion on a particular aspect of the dispute which may not be
liked by one of the parties. Besides, doing so would invite comments and suspicion upon
the neutrality of the court as an impartial arbiter.

The judicial settlement contemplated in cl (c) of sub-s (2) may be effectively implemented
in cities and big towns where a number of senior lawyers, institutions and retired judges are
available. There may be difficulties in implementing the same in smaller towns where there
is only one court and there are not enough senior lawyers or retired judicial offices of high
integrity. Any amendment to be effective should be such which can be implemented
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through out the length and breadth of the entire country with equal ease as it can be
implemented in some parts of the country.

The Law Commission in its 163rd report was of the opinion that the proposed s 89 (as it
then was) may be suitably modified to provide as under:
(i) After the settlement of issues in every suit (when both the parties would have also
filed their basic documents as required by the proposed provisions relating to the
filing of documents alongwith the pleadings), the suit shall be referred to a board of
conciliators to explore whether there existed elements of settlement which were
acceptable to the parties and if it appeared to the board that such elements of
settlement did exist, they shall refer the suit for arbitration, judicial settlement or
settlement through Lok Adalat. The method of conciliation could be tried by the
board itself if found feasible. Such reference could be made either after
reformulating the terms of possible settlement, if the board found the same feasible
and advisable or without such reformulation, as the case may be.
(ii) The presiding officer of the principal civil court in every city and town shall
constitute, in consultation with his senior colleagues, a board of conciliators
consisting of retired judicial officers and senior lawyers of known integrity and
competence.
(iii) A time-limit should be prescribed within which the board of conciliators shall
complete its work that is either refer the suit to arbitration/judicial settlement or
settlement through Lok Adalat or bring about a settlement through conciliationif it
finds that such a course was advisable or report to the court that it could not find
any elements of settlement which might be acceptable to the parties and that,
therefore, any reference of the suit to arbitration/ conciliation/judicial settlement or
settlement through Lok Adalat was not warranted or advisable. This period could
range between four months to one year, as may be specified by each court.
(iv) To delete the alternative mode of mediation mentioned under cl (2) of sub-s 1 of
the proposed s 89. Mediation by a court could be resorted to at any stage of the
proceedings and it should not be stipulated as a matter of law either at the stage of
the issues or at any subsequent stage. Such a course is always open to the court and
there is no reason to define or codify it. Accordingly, cl (d) in sub-s 2 of s 89 might
be deleted.

It would have been appropriate if the recommendations of the Law Commission were
adhered to and Act was amended accordingly.

2. shall formulate the terms of settlement. As can be seen from s 89, its first part uses
the word shall when it stipulates that the court shall formulate terms of settlement. The use
of the word may in later part of s 89 only relates to the aspect of re-formulating the terms
of a possible settlement. The intention of the legislature behind enacting s 89 is that where
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it appears to the court that there exists element of a settlement which may be acceptable to
the parties, they, at the instance of the court, shall be made to apply their mind so as to opt
for one or the other of the four alternative dispute resolution methods mentioned in the
section and if the parties do not agree, the court shall refer them to one or other of the
said modes. Section 89 uses both the word shall and may whereas O 10, r 1A uses the
word shall but on harmonious reading of these provisions it becomes clear that the use of
the word may in s 89 only governs the aspect of re-formulation of the terms of a possible
settlement and its reference to one of the alternative dispute resolution methods. There is
no conflict. It is evident that what is referred to one of the alternative dispute resolution
modes is the dispute which is summarized in the terms of settlement formulated or re-
formulated in terms of s 89.2

3. Element of compromisediscretion of the Court. If a defendant appears in a suit and

offers to compromise the claim raised by the plaintiff, one can say that an element of
compromise exists; but if the plaintiff, reacting to such offer, right away rejects the offer of
compromise and if he wants a decision in the suit on merit, the element of compromise
can no longer be said to exist/survive. In such a situation, if the court makes no further
efforts to make the parties reach an amicable settlement of their dispute, the court cannot
be said to have failed to exercise its jurisdiction under s 89. In a situation of this kind, the
court, which is in seisin of the matter, is the best judge of the matter and even if the
revisional Court happens to think that the trial court should have pursued the offer of
compromise, notwithstanding the resistance offered, the revisional court will be slow to
interfere, for, it is trite that if two equally reasonable views are possible, the revisional court
will be slow to substitute its views in place of the views of the trial court.3

However, no Court can compel any unwilling party to submit to the jurisdiction of the
arbitration and to get their dispute settled through arbitration as per section 89 of the
Code. It is only when all the parties agree to get their dispute settled and express their
intention in this regard before the Civil Court, the Civil Court can formulate the terms of
settlement and refer the dispute to arbitration.4

A Division Bench of the Kerala High Court in a suit for partition of properties within
family, held that for settlement of dispute ourside court, it is open for court to identify and
segregate issues which can be settled in Alternative Dispute Resolution Mechanisms
(ADRs) and which are to be adjudicated by the court. Those segregated issues can be
referred for settlement in one of the ADR mechanisms. Even if there is no agreement
among defendants on all the issues referred for ADR by settlement, some of the
defendants may satisfy the plaintiff and thus enter a compromise.5

4. Can parties by agreement appoint Court as arbitrator. The government or for that
matter any party cannot compel or obligate a civil court to arbitrate the matters between
the parties on the strength of an agreement entered into between the parties. The fact that
government is one of the parties to the arbitration agreement makes no difference. Courts
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are created or established by law in this country and function in accordance with the
jurisdiction conferred on them by the enactments which confer a jurisdiction and function
in accordance with the procedural law that regulates the proceedings of the court. Even s
89 of the Code of Civil Procedure does not obligate the court to conduct arbitration, but
enables the court wherever it is satisfied with reference to the dispute in a pending suit that
there is a possibility of settlement either by way of arbitration or conciliation to refer the
same to arbitration or conciliation.6

5. Reference to Arbitration or Conciliation. One of the modes to which the dispute can
be referred is arbitration. Section 89(2) provides that where a dispute has been referred for
arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall
apply as if the proceedings for arbitration or conciliation were referred for settlement
under the provisions of 1996 Act. Section 8 of the Arbitration and Conciliation Act, 1996 deals
with the power to refer parties to arbitration where there is arbitration agreement. As held
in P. Anand Gajapathi Raju v. P.V.G. Raju,7 the Arbitration and Conciliation Act, 1996 governs
a case where arbitration is agreed upon before or pending a suit by all the parties. The
Arbitration and Conciliation Act, 1996, however, does not contemplate a situation as in s 89 of
the Code of Civil Procedure where the court asks the parties to choose one or other alternative
dispute resolution methods including arbitration and the parties choose arbitration as their
option. Of course, the parties have to agree for arbitration. Section 82 of the Arbitration and
Conciliation Act, 1996 enables the High Court to make rules consistent with this Act as to all
proceedings before the court under the Arbitration and Conciliation Act, 1996. Section 84
enables the Central Government to make rules for carrying out the provisions of the Act.
The procedure for option to arbitration among four alternative dispute resolution methods
is not contemplated by the Arbitration and Conciliation Act, 1996, and, therefore, s 82 or 84
has no applicability where parties, agree to go for arbitration under s 89 of the Code of Civil
Procedure. As already noticed, for the purposes of s 89 and O 10, rr 1A, 1B and 1C, the
relevant sections in Pt X of the Code of Civil Procedure enable the High Court to frame rules.
If reference is made to arbitration under s 89 of the Code of Civil Procedure, the Arbitration and
Conciliation Act, 1996 would apply only from the stage after reference and not before the
stage of reference when options under s 89 are given by the court and chosen by the
parties. On the same analogy, the Arbitration and Conciliation Act, 1996 in relation to
conciliation would apply only after the stage of reference to conciliation. The Arbitration
and Conciliation Act, 1996 does not deal with a situation where after suit is filed, the court
requires a party to choose one or other alternative dispute resolution methods including
conciliation. Thus, for conciliation as well rules can be made under Pt X of the Code of Civil
Procedure for purposes of procedure for opting for conciliation and upto the stage of
reference to conciliation. Thus, there is no impediment in the alternative dispute resolution
rules being framed in relation to civil court as contemplated in s 89 upto the stage of
reference to alternative dispute resolution. The Arbitration and Conciliation Act, 1996 comes
into play only after the stage of reference upto the award. Applying the same analogy, the
Legal Services Authority Act, 1987 or the rules framed thereunder by the state
governments cannot act as impediment in the High Court making rules under Pt X of the
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Code of Civil Procedure covering the manner in which option to lok adalat can be made being
one of the modes provided in s 89. The Legal Services Authority Act, 1987 also does not
deal with the aspect of exercising option to one of the four alternative dispute resolution
methods mentioned in s 89. Section 89 makes applicable the Arbitration and Conciliation Act,
1996 and the Legal Services Authority Act, 1987 from the stage after exercise of options
and making of reference.8

The language of s 89 unmistakably conveys that the Legislature has reckoned arbitration
also as one of the four methods of alternative dispute resolution available to the Courts.
The language of s 89 also disabuse any confusion as to whether it is a method of
settlement. Taking note of the language on s 89, it can be seen to convey that all the four
methods are alternative dispute resolution methods contemplated by the provision and
they are methods of settlement.9

Depending on the nature of the case, its facts, the contentions and the possible resolution,
it is open to the Court to come to the conclusion that even if the parties do not agree they
can be referred to one or the other modes of the said modes of dispute resolution. One of
the modes undoubtedly is arbitration. What applies to the goose must apply to the gander
also. If s 89 can be read to conclude that compulsory reference for mediation, conciliation
and judicial settlement is possible without the consent of the parties, nothing can stand in
the way of the court adopting an interpretation that arbitration is not beyond the ken of s
89.10

Where there was no clause with regard to appointment of arbitrator in the agreement
between parties to a dispute, it was held by the Uttrakhand High Court that resort can be
taken to alternative dispute resolution mechanism as contemplated by s 89 of the Code.
Consequently the matter was referred to a retired Judge for deciding the dispute.11

In a case from Madhy Pradesh, a decree for restitution of suit properties in terms of the
arbitral award was passed. During the pendency of a writ petition challenging the decree of
restitution, the parties agreed to settle their dispute and the Court appointed a Conciliator.
It was held by the Division Bench of the High Court that since the parties have entered
into a settlement in terms of the provision as contained in O. 23 of the CPC, while
invoking the provisions contained in s 89 of CPC, providing for Special Proceedings and
have finally resolved their dispute amicably, it would be in the interest of justice to affirm
the terms of the Settlement arrived at amongst the parties.12

6. Reference to mediation. The question of cl (d) of s 89 (2) of the Code of Civil Procedure is
whether the terms of compromise are to be finalised by or before the mediator or by or
before the court. It is evident that all the four alternatives, namely, arbitration, conciliation,
judicial settlement including settlement through lok adalat and mediation are meant to be
the actions of persons or institutions outside the court and not before the court. Order 10,
r 1C speaks of the conciliation forum referring back the dispute to the court. In fact, the
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court is now involved in the actual mediation/ conciliation. Clause (d) of s 89 (2) only
means that when mediation succeeds and parties agree to the terms of settlement, the
mediator will report to the court and the court, after giving notice and hearing the parties,
effect the compromise and pass a decree in accordance with the terms of settlement
accepted by the parties. Further, in this view, there is no question of the court which refers
the matter to mediation/conciliation being debarred from hearing the matter where
settlement is not arrived at. The judge who makes the reference only considers the limited
question as to whether there are reasonable grounds to expect that there will be settlement
and on that ground he cannot be treated to be disqualified to try the suit afterwards if no
settlement is arrived at between the parties.13

7. Expenses. The question also is about the payment made and expenses to be incurred
where the court compulsorily refers a matter for conciliation/mediation. Considering large
number of responses received by the committee to the draft rules it has suggested that in
the event of such compulsory reference to conciliation/mediation procedures if
expenditure on conciliation/mediation is borne by the government, it may encourage
parties to come forward and make attempts at conciliation/mediation. On the other hand,
if the parties feel that they have to incur extra expenditure for resorting to such alternative
dispute resolution modes, it is likely to act as a deterrent for adopting these methods. The
suggestion was found laudable. The Central Government was directed by Supreme Court
to examine it and it agreed, it shall request the Planning Commission and Finance
Commission to make specific financial allocation for the judiciary for including the
expenses involved for mediation/conciliation under s 89 of the Code of Civil Procedure. In case
the Central Government has any reservations, the same were directed to be placed before
the court within four months. In such event, the Government was directed to consider
provisionally releasing adequate funds for these purposes also having regard to what
Supreme Court have earlier noticed about many statutes that are being administered and
litigations pending in the courts in various states are central legislations concerning the
subjects in List I and List III of such VII to the Constitution of India.14

8. Panel. With a view to enable the court to refer the parties to conciliation/ mediation,
where parties are unable to reach a consensus on an agreed name, there should be a panel
of well trained conciliation/mediation to which it may be possible for the court to make a
reference. It would be necessary for the High Courts and District Courts to take
appropriate steps in the direction of preparing the requisite panels.15

9. Family Court. A doubt was expressed about the applicability of alternative dispute
resolution rules for dispute arising under the Family Courts Act since that Act also
contemplates rules to be made. It is, however, to be borne in mind that the Family Courts
Act, 1984 applies to the Code of Civil Procedure for all proceedings before it. In this view,
alternative dispute resolution rules made under the Code of Civil Procedure can be applied to
supplement the rules made under the Family Courts Act, 1984 and provide for alternative
dispute resolution insofar as conciliation/ mediation is concerned.16
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A matrimonial dispute in Kerala generated eleven litigations within a period of one year
before various fora. It was held by the Kerala High Court that attempt for alternative
redressal is not only statutory obligation of Court but it is their duty to public also. Being
judicial officers they have expertise in peace making. It was observed that one case settled
is ten cases avoided because in settlement, peace is purchased and both parties part as
friends.17

10. Model Case Flow Management Rules. Model case flow management rules have
been separately dealt with for trial courts and first appellate subordinate courts and for
High Courts. These draft rules extensively deal with the various stages of the litigation. The
High Courts can examine these rules, discuss the matter and consider the question of
adopting or making case law management and model rules with or without modification,
so that a step forward is taken to provide to the litigating public a fair, speedy and
inexpensive justice.18

11. This section and section 8, Arbitration and Conciliation Act (26 of 1996). Section
89 of the Code of Civil Procedure cannot be resorted to for interpreting s 8 of the Arbitration and
Conciliation Act (26 of 1996) as it stands on a different footing and it would be applicable
even in cases where there is no arbitration agreement for referring the dispute for
arbitration. Further, for that purpose, the court has to apply its mind to the condition
contemplated under s 89 of the Code of Civil Procedure and even if application under s 8 of the
Act is rejected, the court is required to follow the procedure prescribed under the said
section.19

In relation to alternative dispute resolution method, arbitration contemplated under s 89

(1) and 89 (2) is not a reference under s 8 of the Arbitration and Conciliation Act, 1996 and
hence the words as if has been used in s 89 (2)(a).20

Sections 89 (1)(a) and 89 (2)(a) do refer to reference of a dispute for arbitration and does
not specifically refer to any reference to Arbitrator. Going strictly by the language of ss 89
(1)(a) and 89 (2)(a) of the Code a doubt arises whether this means and implies that
reference can be made for arbitration as indicated in s 8 of the Arbitration Act. But an
interpretation cannot be resorted to divorced of the context and the purpose which has to
be served under s 89. If the High Court were to make a reference only for arbitration
without specifying any Arbitrator, it would necessarily involve a dispute obliging the parties
to go before the Chief Justice under s 11 of the Act to get the Arbitrator appointed. Such a
procedure instead of contributing to expedition in the disposal of case and settlement of
dispute would contribute to further unnecessary delay and protraction. Therefore, the
power for reference for arbitration and conciliation which appears in s 89 (1)(a) and (b)
and 89 (2)(a) must certainly be interpreted to inhere in it the power and the jurisdiction of
the Court to refer to a specified Arbitrator.21
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12. Lok Adalatrefund of Court fee. On a careful reading of the provisions it can be seen
that when a matter is referred to lok adalat by a civil court, the provisions contained in the
Legal Services Authorities Act, 1987 shall govern the parties in the matter of resolving the
dispute and also in the matter of refund of the court fees. There is a specific provision in
the Legal Services Authorities Act, 1987 which provides for refund of the court fee when the
matter is settled by the lok adalat and as per s 16 of the Court-fees Act, 1870 the entire court
fee paid on the plaint is liable to be refunded and the court which has referred the matter
shall issue a certificate to the plaintiff to receive the amount from the collector.22

In the Code of Civil Procedure (Amendment) Act, 2002, there is no such provision directing
refund of court-fee. Even in the Code of Civil Procedure (Amendment) Act, 1999, s 34
inserted a new s 16 in the Court Fees Act, 1870, in which the refund of court-fee is provided
only in a case where the court refers the parties to the suit to any one of the mode of
settlement of disputes referred to in s 89 of the Code of Civil Procedure 1908 the plaintiff shall
be entitled to a certificate from the court authorising him to receive back from the
collector, the full amount of the fee paid in respect of such plaint, but no such provision
has been made when the appeal is held to be not maintainable. In the circumstances, the
provision of the Court-fees Act, 1870 can be seen. The refund of court-fee is envisaged in ss
13, 14 and 15 of the Court-fees Act, 1870. Under s 13 of the Court-fees Act, 1870, the refund of
court fees of Memorandum of Appeal can be ordered in the circumstances when an appeal
or plaint, which has been rejected by the lower court on any of the grounds mentioned in
the Code of Civil Procedure, is ordered to be received or if a suit is remanded in appeal, on any
of the grounds mentioned in s 35 (now O 41, r 23 of the Code) of the same Code of Civil
Procedure, for a second decision by the lower court, the Appellate Court is authorised to
grant the appellant a certificate for refund. Section 14 provides refund of court-fee on
application for review of judgment and s 15 provides for refund of court-fee where the
court reverses or modifies its former decision on the ground of mistake. But, in the
present case, the right of appeal which was available prior to 1 July 2002 has been taken
away by the Code of Civil Procedure (Amendment) Act, 2002 without making any such
provision of refund of court-fee.23

13. This Section and O.10, rr 1A, 1B and 1C. Order 10, rr 1-A to 1-C do not specifically
refer to the manner in which the powers of the Court under s 89 to refer any of the four
methods of alternative dispute resolution is to be exercised. But it cannot detract against
the power of the Court to invoke the jurisdiction under s 89 of the Code. If the
substantive provision in the Code confers a power in the Courts to make a reference, it
would be improper and impermissible to argue against such provision in the statute with
the help of the rules framed or not framed.24

A careful reading of rr 1-A to 1-C of order 10 must leave one with the unmistakable
impression that the rule making authority had not considered the possibility of parties not
agreeing for any one of the four methods available under s 89. The rules do not
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contemplate the procedure that is to be followed by the Courts in the event of

disagreement between parties. Order 10, rr 1-A to 1-C do not cover the entire gamut of
possibilities, which may arise under s 89. It would, therefore, be myopie to come to any
conclusion on the basis of O. 10, rr 1-A to 1-C about the power of the Court to make a
reference in the latter eventuality where the parties do not agree for any of the four
courses.25

1 . Ins. by the CPC (Amendment) Act, 1999, s 7 (46 of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002; earlier s 89 repealed
by the Arbitration Act, 1940 (10 of 1940) which had reference to arbitration, the procedure relating to which was embodied in the second
Schedule to the C P Code. There being now an independent enactment relating to arbitration, the law has been consolidated in that Act.
2 . Salem Advocate Bar Assn. v. UOI, AIR 2005 SC 3353 [LNIND 2005 SC 573].
3 . WBSE Board v. Shanti Conductors Pvt. Ltd., AIR 2004 Gau 70 [LNIND 2003 GAU 404].
4 .BOC India Ltd. v. Instant Sales Pvt. Ltd., AIR 2007 Cal 275 [LNIND 2007 CAL 469]: 2007 (2) Cal LJ 385 [LNIND 2007 CAL 469].
5 . Ararammal Parkum A.B. Ammaloo v. Panangadan Vachali Subhadra, 2008 (3) Ker LT. 233 : 2008 (2) Ker LJ 508 (DB).
6 . K Venkulu v. State of AP, AIR 2004 AP 85(DB)
7 . AIR 2000 SC 1886 [LNIND 2000 SC 530]: AIR 2000 SCW 1489: (2000) 4 SCC 539 [LNIND 2000 SC 530].
8 . Salem Advocate Bar Assn v. UOI, AIR 2005 SC 3353 [LNIND 2005 SC 573].
9 . Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., Kochi, 2007 (1) Ker LT. 196 : 2007 (1) Ker LJ 333.
10 . Ibid.
11 . Ramola Construction Co. v. Executive Officer, Nagar Panchayat, Muni-ki-Reti, 2007 (1) UC 345 : 2006 (64) All LR 341.
12 . Ashok Kumar Bansal v. Smt. Sushila Devi Bansal, AIR 2010 MP 145: 2010 (1) MPLJ 612 (DB) (Gwalior Bench)
13 . Salem Advocate Bar Assn. v. UOI, AIR 2005 SC 3353 [LNIND 2005 SC 573].
14 . Ibid.
15 . Salem Advocate Bar Assn. v. UOI, AIR 2005 SC 3353 [LNIND 2005 SC 573].
16 . Ibid.
17 .T. Vineed v. Manju S. Nair, 2008 (1) Ker LJ 525 : 2008 (65) All Ind Cas 327 (DB).
18 . Ibid.
19 . Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya, AIR 2003 SC 2252 [LNIND 2003 SC 430].
20 . Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., Kochi, 2007 (1) Ker LT. 196 : 2007 (1) Ker LJ 333.
21 . Ibid.
22 . Vasudevan VA v. State of Kerela, AIR 2004 Ker 43.
23 . F.C.I. v. Munnilal Singh, AIR 2003 MP 66 [LNIND 2002 MP 340].
24 . Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., Kochi, 2007 (1) Ker LT 196 : 2007 (1) Ker LJ 333.
25 . Ibid.

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 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part V SPECIAL PROCEEDINGS

SPECIAL CASE

S. 90. Power to state case for opinion of Court.

Where any persons agree in writing to state a case for the opinion of the Court, then the
Court shall try and determine the same in the manner prescribed.

See O 36.

1. Reopening of a case. Where a special case is stated by consent, it can be re-opened

only by mutual consent.26

2. Separate agreement for Courts opinionshould be registered as separate suit. In

the lower court record as many as 13 written agreements are available executed by 13
individuals separately and each agreement contains the land of different descriptions with
different quantums belonging to the 13 individual persons and as such it cannot be held
that there was one written agreement seeking reference of the dispute for the opinion of
the court as contemplated under s 90 of the Code of Civil Procedure. Every agreement should
have been treated as individual case seeking reference and the learned trial court should have
registered individual agreement as a separate reference case, notwithstanding for
convenience sake, trial could have been held analogously. Since the agreements appear to
be separate with reference to separate land belonging to the individuals, the revision
petition filed by present petitioner without having arrayed the other 12 individuals is
maintainable. The petitioner is interested and concerned with his own land described in the
agreement seeking reference and he has no way been concerned with the other land
described in the other agreements relating to other 12 persons.27

3. Jurisdiction. On perusal of the agreement entered into in writing by the petitioner and
the respondent it appears that no estimated value of the property described in the
agreement and thus the requirement O 36, r 2 appears to be lacking. In that view of the
legal position, the learned trial court should not have assumed jurisdiction.

The object of putting the estimated value as has been required under r 2 is very much
purposeful as it is manifestly revealed from r 3, because r 3 says that estimated value put in
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the agreement would decide the pecuniary jurisdiction of the court, so judgment and
decree of the trial court are without jurisdiction.28

26 . Monie v. Scott, (1919) 43 Bom 281, p. 298.

27 . Ramadhan Sinha v. Notified Area Authority, AIR 2001 Gau 149 [LNIND 2001 GAU 116].
28 . Ibid.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part V SPECIAL PROCEEDINGS

29[Public Nuisances and other Wrongful Acts Affecting the Public]

S. 91. Public nuisances.

30[(1) In the case of a public nuisance or other wrongful act affecting, or likely to
affect, the public, a suit for a declaration and injunction or for such other relief as
may be appropriate in the circumstances of the case, may be instituted,
(a) by the Advocate General, or
(b) with the leave of the court, by two or more persons, even though no special
damage has been caused to such persons by reason of such public nuisance or
other wrongful act .]
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit
which may exist independently of its provisions.

1. Changes in the section. The Amendment Act, 1976 has altered the marginal note and
sub-s (1) whereas sub-s (2) remains as before. Before the Amendment Act, the marginal
note to the section was public nuisances. Sub-s (1) before its amendment authorised suits
in respect of a public nuisance either by the Advocate-General or by two or more persons
who had obtained his consent in writing. Before its amendment, sub-s (1) was as follows:

(1) In the case of a public nuisance the Advocate-General, or two or more persons having
obtained the consent in writing of the Advocate-General, may institute a suit though no
special damage has been caused, for a declaration and injunction or for such other relief as
may be appropriate to the circumstances of the case.

Under the amended sub-s (1), a suit under this section is permissible both in the case of a
public nuisance and of other wrongful acts affecting or likely to affect the public. Where a
suit is filed not by the Advocate-General but by two or more persons, they have to obtain
leave of the court and not the written consent of the Advocate General.

2. Application of the section. The section creates a right of act ion where there was none
before. But it does not take away a pre-existing right.31 It applies to public nuisances which
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affect public rights, such as a public highway. To attract the section there must be
obstruction to a public highway and that obstruction must amount to a public nuisance.32
There is a distinction between a highway which is dedicated to the public at large, and one
which is intended to be used by particular classes or limited sections of the public.33 The
section does not apply where the right of way is not in respect of a highway but is a right
of way claimed by only certain classes of persons.34 A blind pathway not used by the public
generally, but only by the residents of a few houses only, is not a public road. In an action
for removing a nuisance therefrom by such residents, the consent of the Advocate-General
(now leave of the court) is not necessary.35 The section, as amended, also applies to other
wrongful acts affecting or likely to affect the public. Setting of an oil expeller cannot be
stopped by interim order on the ground that it makes noise. But it can certainly be
restrained after 9.00 pm and on weekly holidays.36 Private nuisance, involving special
damage is neither alleged nor proved in this case, therefore, the provisions postulated
under sub-s (2) of s 91 of the Code of Civil Procedure are not attracted.37

3. Remedies for a public nuisance. Nuisances are of two kindspublic and private.

A public nuisance is an act or illegal omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy property in the
vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right [Indian Penal Code 1860, s 268 ].

Where a person commits a public nuisance

(i) he is liable to criminal prosecution under the Indian Penal Code 1860;
(ii) he may be proceeded against under this section;
(iii) he is liable to damages in a suit at the instance of a private individual who suffers
special damage by reason of the nuisance, that is, damage beyond what is suffered
by him in common with other persons affected by the nuisance.38 Where a number
of persons have suffered special damage, a representative suit under O 1, r 8 can be
brought, and the consent of the Advocate-General is not necessary.39

These remedies, it is conceived, are concurrent. The institution of a criminal prosecution

does not bar a suit under this section,40 nor does the institution of a suit under this section
bar a criminal prosecution, though cases may occur where the court may, in its discretion,
refuse leave where a criminal prosecution is pending in respect of the same act or
omission.

Illustrations

A keeps his horses and wagons standing for an unreasonable time in the highway.
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(a) This is a public nuisance for which a criminal prosecution may be instituted against
A.
(b) Further, a suit may be instituted against A under this section by the Advocate-
General or by two or more persons with the leave of the court, though no special
damage has been caused, for an order requiring A to abate the nuisance and for an
injunction restraining him from continuing the nuisance. If the nuisance is repeated
or continued, notwithstanding the injunction, he is liable for contempt where the
decree granting the injunction is passed by a High Court,41 or, he may be proceeded
against under O 21, r32, below, or he may be prosecuted and punished with
imprisonment or fine or both, under s 291 of the Indian Penal Code.
(c) If the horses and wagons are kept standing opposite a mans house, so that the
access of customers is obstructed, the house is darkened, and the people in it are
annoyed by bad smells, a suit may be brought against A by the occupiers for
damages, the damage so caused being sufficiently special to entitle them to maintain
the action.42 The mere fact that a suit has been instituted under this section against
A by the Advocate-General at the relation of the occupiers, or by the occupiers
themselves as plaintiffs, with the consent of the Advocate-General, will not
preclude the occupiers from maintaining a private action against A for the special
damage caused to them. Quaere whether they can claim damages for the special
damage in a suit brought under this section? It is conceived they cannot. It is
submitted that the words such other relief as may be appropriate do not include
such damages. In England, however, persons who have suffered special damage
from a public nuisance, may join the Attorney-General as co-plaintiffs in a suit
brought by the Attorney-General at their relation and the Attorney-General may
claim an injunction, and the persons specially damnified by the nuisance, may claim
damages.43 It is debatable whether such a procedure is permissible under the
present section. But it is submitted that the mere fact that the section finds its place
in Pt V. headed Special Proceedings under the division public nuisances and other
wrongful acts affecting the public ought not to be a reason for driving the relators
to another suit and thus causing avoidable multiplicity of suits. It is allowed in
England, even though the action in the name of the Attorney-General is one which
relates to public matters. Even when the relators are allowed to be joined as co-
plaintiffs and seek special damages, the act ion, in substance, remains one relating to
public matters. Is there, in such a case, misjoinder of parties or causes of action? It
is not so considered by the courts in England.44

The Madhya Pradesh High Court has rendered a Full Bench Judgment which goes a long
way in clarifying several question relating to remedies against public nuisance. It has been
held that besides the provisions contained in s 91 of the Code for taking act ion against
public nuisance, there are other remedies which stand independently.45 Explaining the
point of law, A.K. Patnaik, C.J., (as he then was), speaking for the Full Bench observed as
follows:
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Sub-section (1) of Section 91, C.P.C. provides that in case a public nuisance or other wrongful act affecting or likely to affect the public, a
suit for declaration and injunction or for such other relief as may be appropriated in the circumstances may be instituted and sub-
section (2) of Section 91 of C.P.C. states that nothing in the section shall be deemed to limit or otherwise affect any right of suit which
may exist independently of its provisions. Thus, it is clear that Section 91(1) of the C.P.C. is not exhaustive of the remedies that are
available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. The remedy of the
Corporation and any other person under sub-section (5) of Section 307 of the Act of 1956 is independent of the provisions of Section 91
of C.P.C. and not only the Corporation but any other person can apply to the District Court for injunction for removal or alteration of a
building on the ground that the provisions of the Act of 1956 or the bye-laws made thereunder have been contravened.46

Explaining the locus standi of a person other than Municipal Corporation for taking action
under s 307 (5) of the Madhya Pradesh Municipal Corporation Act, 1956 for removal or
alteration of any building, the Full Bench further observed that the right under s 307 (5) of
the Act is not restricted to a person affected by violation complained of but encompassed
all persons resident within the area to which the Act applies.47

4. Nature of proceeding under this section. Proceedings for a public nuisance in

England were formerly commenced by an information filed by the Attorney-General in the
High Court of Chancery. They are now instituted by action in the High Court of Justice
(see RSC, O 1, r 1). The act ion may be brought like the Information
(i) by the Attorney-General acting ex-officio; or
(ii) by the Attorney-General at the relation of a private individual.

Under the present section, a suit for a public nuisance may be instituted
(i) by the Advocate-General act ing ex-officio; or
(ii) by the Advocate-General at the instance of relators; or
(iii) by two or more persons having obtained leave of the court.

(a) Difference Between Suit by Advocate-General Acting Ex-officio and Suit by him as the Relation of a
Private Individual. Except for the purposes of costs, there is no difference between an ex-
officio suit and a suit at the relation of private individuals. In both cases the sovereign, as
parens patriae, sues by the Advocate-General.48

When the Attorney-General proceeds at the relation of a private person or a corporation,

he takes the proceeding as representing the Crown, and the Crown, through the Attorney
General, is really a party to the litigation. It is quite true that when the proceeding is taken
at the relation of a subject, the practice is to insert his name in the proceedings as the
relator, and to make him responsible for the costs, but I do not think that this practice, in
any sense, makes the relator a party to the proceedings, although he is responsible for the
costs, any more than (to take a converse case) an infant who brings an act ion is
responsible for the costs of it. If I am right, it would seem that the practice of making the
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relator directly responsible for the costs of the action had its origin not in the protection of
the defendant but of the Crown.49

When once the matter is in the hands of the Attorney-General, it becomes substantially a
public proceeding, in which the Attorney-General, if there be no relator, becomes as
prosecutor responsible for the costs, while if a relator is introduced, the responsibility for
costs is upon the latter.50

(b) Relators Interest in the Suit. A relator need not have any personal interest in the matter,
except as one of the public; he need not, in fact, be himself damaged at all.51

(c) Interest of Persons Suing with Leave of the Court. Persons suing in respect of a public nuisance
with leave of the court under this section need not have any personal interest in the matter
of the suit, except as members of the public. They are entitled to sue, though no special
damage has been caused to them. In other words they need not have a cause of act ion in
themselves. Obstruction to village pathways falls within the definition of public nuisance
under s 268 of the Indian Penal Code and therefore a suit for removal of such obstruction
with the courts leave would be permissible in the absence of any special damage.52 This
principle would equally apply to cases of other wrongful acts affecting or likely to affect
the public.

5. Injunction. The following are some of the leading principles by which the courts are
guided in granting injunctions:
(i) The injury, complained of, must be either irreparable or continuous.53 The remedy
by way of injunction is, therefore, not appropriate for damage which is, in its
nature, temporary and intermittent54 or is accidental and occasional,55 or for an
interference with legal rights which is trifling in amount and effect.56
(ii) Apprehension of future mischief from something in itself lawful and capable of
being done without creating a nuisance is no ground for an injunction.57 There
must, if no act ual damage is proved, be proof of imminent danger, and there must
also he proof that the apprehended damage will, if it comes, be very substantial.58
(iii) Though no substantial damage is proved, the court may grant an injunction if the
defendants claim the right to continue doing that which the court has held they are
not entitled to do.59
(iv) Where an illegal act is committed which in its nature tends to the injury of the
public, an injunction will be granted to restrain the act without proof of actual
injury to the public.60
(iv) Where the plaintiff has proved his right to an injunction against a nuisance, it is no
part of the duty of the court to enquire, in what way, the defendant can best remove
it; the plaintiff is entitled to an injunction at once, and it is the duty of the defendant
to find his own way out of the difficulty whatever inconvenience or expense it may
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put him to. But where the difficulty of removing the nuisance is considerable, the
court may suspend the operation of the injunction for a time.61
(vi) No length of time can legalise a public nuisance. Though twelve-years-user may
bind the right of an individual, yet the public have a right to demand the
suppression of a nuisance apart from the length of time for which it may have
continued.62
(vi) A public nuisance is not excused on the ground that it causes some convenience or
advantage (Indian Penal Code, s 268 ).

6. Declaration. A suit may be instituted under this section by two or more Mohammedans
for a declaration that they are entitled to carry tabuts in procession along a public road for
immersion in the sea against persons who obstruct them in doing so and for an injunction
restraining interference in the exercise of this right.63

7. Other relief. The removal of a public nuisance, eg encroachment on a public street,

may be directed by the court under this part of the section.64

8. Sub-section (2) of Section 91. Section 91, cl (2) of the Code of Civil Procedure makes it
clear that this section would not limit or otherwise affect any right of suit which may exist
independently of its provisions, thereby meaning, that if any individual gets affected by
such public nuisance being caused, he or she, would have the same right to file a suit for
declaration and injunction and for mandatory injunction. section 91 of the Code of Civil
Procedure does not create a bar on any individual from resorting to the court for relief in
such matters.65

The Code of Criminal Procedure 1973 contains provisions for the removal of a public nuisance
by summary proceedings before a magistrate.66 The High Court of Calcutta has held that
where special damage is caused to a private individual by a public nuisance, he has a right
of suit against the person causing the nuisance for a removal of the nuisance, and a civil
court may pass a decree to that effect, notwithstanding that an order for the like purpose
might be made by a magistrate.67 This right is saved by sub-s (2). There is a difference of
opinion as to whether a member of the public can maintain a suit for removal of
obstruction of a public highway, if his right of passage through it is obstructed, without
proof of special damage. The preponderance of authority is in favour of the view that such
a suit is maintainable; and that the rule of England Law contra has no application to this
country.68 But there are also decisions which has taken a different view.69

9. Instances of public nuisance. A nuisance which inflicts damage, injury or

inconvenience on the public or a class of the public which comes within its sphere of
operation, constitutes an indictable misdemeanour known as common or public nuisance
which may also, in many cases, be dealt with summarily; but if a private individual can
show that he has suffered some particular direct and substantial damage to person or
property over and above that sustained by the community at large, he has a right of act ion
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in tort for that nuisance.70 Building over any part of a public street or closing a
thoroughfare existing from time immemorial71 or the keeping of a regular, though
temporary, heap of rubbish on a thoroughfare at a busy and frequented part of the town,72
is a public nuisance, for, such act must necessarily cause obstruction to persons who may
have occasion to use their public right over the part encroached upon. The public is
entitled to the full width of the public street, however wide it may be, and whoever
appropriates any part of the street by building over it, infringes the right of the public road
and the part built over.73 An obstruction is not the less a nuisance, because it is on a part of
the street not commonly used, or otherwise leaves room enough for the ordinary amount
of traffic.74 On the other hand, the High Court of Calcutta has held that as regards tidal
navigable rivers, a slight encroachment does not necessarily constitute a public nuisance. It
seems to us rather, the court said, that there must be some evidence that such
encroachment causes one of the results specified in s 268 of the Indian Penal Code.75

A finding regarding public nuisance should be based on evidence. An interim order of

injunction to stop the working of commercial establishment, would result in its closure.
Such an order should not be passed on a mere allegation that it creates noise etc. Full
evidence should be required.76

Where sale deed was executed by member of a Co-operative Society and the property
purchased was enclosed with a plan to provide amenities to members of the Society, it was
held by the Madras High Court that mere conversion of certain areas earmarked for
amenities by Co-operative Society cannot be termed as public nuisance.77

Acts which merely offend the sentiments of a class do not amount to a public nuisance. In
India, it must often happen that acts are done by the followers of one creed which must be
offensive to the sentiments of those who follow other creeds. Upon this principle, it has
been held that the placing of a Mahommedan symbol in the neighborhood of a Hindu
temple is not a public nuisance, though likely to cause annoyance to Hindus.78 Similarly, it
is not a public nuisance, to expose on the verandah of a house, meat cut up for a dinner,
though it may annoy the feelings of Jains, frequenting a temple close by the house.79 But
willfully slaughtering cattle in a public street so that the groans and blood of the animals
could be heard and seen by the passers-by is a public nuisance, for, it must necessarily
cause annoyance to every one of the passers-by-Hindu, European, Mahommedan or other,
who was not utterly devoid, not merely of refinement, but also of all proper feelings.80

10. Representative suit by limited class of villagers. As a general rule, the consent of
the Advocate-General, now, the leave of the court, would be necessary for a suit with
regard to a public right. But an action brought by a particular section is an exception to the
general rule. Hence a representative suit brought by a limited class of villagers for right of
passage regarding a rasta is maintainable without such consent or leave and without proof
of special damage.81 Order 1, r 8, is only an enabling provision. It does not compel one to
represent many if his act ion is maintainable without the joinder of other persons.82
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If special damage is proved or presumed, then, in spite of the fact that it is a case falling
under public nuisance, a suit by one who suffers or is presumed to have suffered such
damage, is maintainable and no consent of the Advocate-General (now leave of the court)
would be necessary.83 For instance, a person whose right to pass along a highway is
obstructed or interfered with can sue in respect of a public nuisance without having to
prove special damage.84 In such a case, he is deemed to have suffered loss without proof
either of the mode or quantum of such loss.85 Accordingly, where a plaintiff, who, as a
member of a class vitally affected by a public nuisance, sues on his own behalf, alleging
special damage to himself need not follow the procedure laid down either in this section or
O 1, r 8.86

87 S. 92. Public charities.

(1) In the case of any alleged breach of any express or constructive trust created for
public purposes of a charitable or religious nature, or where the direction of the
Court is deemed necessary for the administration of any such trust, the Advocate-
General, or two or more persons having an interest in the trust and having obtained
the 88[leave of the Court] may institute a suit, whether contentious or not, in the
principal Civil Court of original jurisdiction or in any other Court empowered in
that behalf by the 89[State Government] within the local limits of whose jurisdiction
the whole or any part of the subject-matter of the trust is situate, to obtain a decree
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
90[(cc) directing a trustee who has been removed or a person who has ceased to
be a trustee, to deliver possession of any trust property in his possession to the
person entitled to the possession of such property;]
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust-property or of the interest therein shall be
allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust-property to be let, sold, mortgaged
or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
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(2) Save as provided by the Religious Endowments Act, 1863,91[or by any corresponding
law in force in 92[the territories which, immediately before the 1st November, 1956,
were comprised in Part B States]], no suit claiming any of the reliefs specified in
sub-section (1) shall be instituted in respect of any such trust as is therein referred
to except in conformity with the provisions of that sub-section.
93[(3)The Court may alter the original purposes of an express or constructive trust
created for public purposes of a charitable or religious nature and allow the
property or income of such trust or any portion thereof to be applied cypres in one
or more of the following circumstances, namely:
(a) where the original purposes of the trust, in whole or in part,
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the
directions given in the instrument creating the trust or, where there is no
such instrument, according to the spirit of the trust; or
(b) where the original purposes of the trust provide a use for a part only of the
property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property applicable
for similar purposes can be more effectively used in conjunction with, and to
that end can suitably be made applicable to any other purpose, regard being had
to the spirit of the trust and its applicability to common purposes; or
(d) where the original purposes in whole or in part, were laid down by reference to
an area which then was, but has since ceased to be, a suit for such purposes; or
(e) where the original purposes, in whole or in part, have, since they were laid down,
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or

STATE AMENDMENT

Uttar Pradesh. The following amendment were made by Uttar Pradesh Act 24 of 1954, S.
2 and Schedule, Item 5, entry 5, dated 30-11-1954.

In S. 92, in sub-section (1), after clause (b), the following shall be added as a new clause
(bb):

(bb) for delivery of possession of any trust property against a person, who has ceased to be trustee or has been removed.

1. Changes in the section. The section corresponds with s 539 of the Code of 1883. It
was changed in 1908 in the following particulars:
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(i) The words public purposes of a charitable or religious purposes were substituted
for the words public, charitable or religious purposes to remove the misconception
that the word public was merely to coordinate with charitable or religious.
(ii) The words whether contentious or not were added to give effect to a Calcutta
decision. See note whether contentious or not below.
(iii) The words in the principal Civil court of original jurisdiction were substituted for
the words in the High Court or the District court.
(iv) The words or any other court empowered in that behalf by the Local Government
(now State Government) were added in order to invest courts subordinate to the
District Courts with power to try cases under this section.
(v) Clause (a) was added to supersede a Madras decision and to give effect to the
decisions of Calcutta, Bombay and Allahabad High Courts cited in the note:
clause (a): removing any trustee below.
(vi) Clause (d) was added to give legislative recognition to a Bombay decision cited in
the note cl (d): directing accounts and inquiries below.
(vii) Sub-section (2) was added to give effect to the view taken by the Bombay High
Court that the section is mandatory and to supersede the decisions of the other
High Courts to the contrary. See note sub-s (2): this section is mandatory below.
(viii) By s 13 of the Code of Civil Procedure (Amendment) Act, 1951, the words or by any
corresponding law in force in a Pt B State were inserted after the figures 1863.
(xi) The words the territories which, immediately before the lst November, 1956 were
comprised in Pt B States were substituted for the words a Pt B State by the
Adaptation of Laws (No 2) Order 1956.
(x) The words leave of the court have been substituted for the words the consent in
writing of the Advocate-General by the Amendment Act, 1976.
(xi) Sub-s (3) is new and has been added by the Amendment Act, 1976.

2. Romillys Act. The present section has been borrowed in part from 52 Geo 3 c 101,
called Romillys Act. As to the applicability of decisions under that statute, to case under
the present section, see the undermentioned case.94

3. Object of the section. The real object of the special provisions of s 539 [this section]
seems to us to be clear. Persons interested in any trust were, if they could all join, always
competent to maintain a suit against any trustee for his removal for breach of trust; but
where the joining of all of them was inconvenient or impracticable, it was considered
desirable that some of them might sue without joining the others, provided they obtained
the consent of the Advocate-General or of the collector of the district; and this condition
was imposed to prevent an indefinite number of reckless and harassing suits being brought
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against trustees by different persons interested in the trust.95 The main purpose of the
section is, thus, to give protection to public trusts of a charitable or religious nature from
being subjected to harassment by suits being filed against them. That is why it provides
that suits can either be filed by the Advocate-General or by two persons having an interest
in the trust with the written consent of the Advocate-General (now with leave of the
court). Before the Advocate General files the suit or gives his consent, he has to satisfy
himself that there is a prima facie case of either a breach of trust or of the necessity of
obtaining directions from the court.96 One of the objects which led to the enactment of s
92 was to enable two or more persons interested in any trust created for a public purpose
of a charitable or religious nature should be enabled to file a suit for the release set out in
that section without having to join all the beneficiary since it would be highly inconvenient
and impracticable for all the beneficiaries to join in the suit; hence any two or more of
them were given the right to institute a suit for the relief mentioned in the said s 92 of the
Code. However, it was considered desirable to prevent a public trust from being harassed
or put to legal expenses by reckless or frivolous suits being brought against the trustees
and hence, a provision was made for leave of the court having to be obtained before the
suit is instituted.97

4. Essential Conditions. A bare perusal of the said section would show that a suit can be
instituted in respect of a public trust by the Advocate-General or two or more persons
having an interest in the trust after obtaining leave of the court in the principal civil court
of original jurisdiction. An analysis of these provisions will show that the provisions of s 92
of the Code of Civil Procedure can be invoked only when the following conditions are satisfied:
(a) It should be with regard to a public trust to obtain a decree for the purposes
mentioned in the said provision.
(b) Suit should be on behalf of the Advocate-General or two or more persons having
an interest in the trust.

Leave of the court has to be obtained for instituting the suit.

From the above, it is clear that before granting leave to institute the suit, proceedings for
granting leave have to be held in court. In these proceedings the court has to be satisfied
that the trust is a public trust and the persons who want to institute the suit are interested
in the trust. It is only on the satisfaction of the aforesaid conditions that the permission to
institute the suit can be granted by the court for the relief mentioned in the said s 92 of the
Code of Civil Procedure1

Where the memorandum of association of the institution showed the properties in the
name of President and Secretary with power to sell them, it was held that it clearly
indicated that the institution was not a trust and as such suit under s 92 was not
maintained.2
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5. Application of the section and legislative intervention. This section has no

application unless three conditions are fulfilled: the suit relates to a public, charitable or
religious trust; it is founded on an allegation of breach of trust or the direction of the court
is required for administration of the trust and the reliefs claimed are those which are
mentioned in the section.3 Such a suit is one of a special nature and therefore, if the
allegation of breach of trust is not substantial, or if the plaintiff fails to make out a case for
a direction for proper administration, the very foundation of the suit would fail.4 Where
there is no scheme in existence, the court cannot be approached merely on the ground that
the trustees had become old in age. The plaint must show why under the existing
arrangement, steps cannot be taken to secure proper management. Such a suit does not
disclose any necessity to issue directions regarding scheme.5 A suit for obtaining an
injunction to restrain a person from unauthorised use of the property of the deity by
calling himself Pujari, is not covered by s 92.6 Where the trustees power to sell property is
at issue, the suit should be under s 34 Indian Trusts Act, 1882 and not under s 92 of the Code
of Civil Procedure.7 Where the relief claimed does not fall under s 92, a suit filed without
complying with the requirements of the section is maintainable.8 It being a special remedy,
where resort could be had to it, the general remedy of an ordinary suit is impliedly barred.9
And whether the suit falls within the section, must be decided on the allegations in the
plaint as on the date of its institution.10 The fact that the defendant does not admit that the
trust is a public charitable or religious trust, will not take out the case from the ambit of
this section.11

Once a competent court has exercised a jurisdiction, the decision cannot be interfered with
or nullified by the legislature. The legal proposition forming the basis of judicial-decision
can be modified (even retrospectively). But the rights flowing from the decision cannot be
interfered with by legislation.12 In a Madras case, it was held that the legislature, in deciding
that:
(i) the Board of Trustees of Pachiappas Trust had committed irregularities in the
management of the charities and institutions and properties under its control; and
(ii) that the members of the Board of Trustees had also committed irregularities in the
management of the charities, had certainly usurped a judicial function, which could
properly be exercised only by a court of law. Equally, in modifying a scheme decree
passed by the court in the manner provided by the Act, and in directing the
government (or committee appointed by the government) to discharge certain
functions the legislature had clearly purported to exercise a judicial power of
amending the decree of the court, which power is not vested in it. Thus, the Act
suffered from want of legislative competence and was therefore ultra vires and
void.13

Suit under s 92 was filed, alleging mismanagement of the trust property by the members of
the trust committee. The trust was situated in the State of Uttar Pradesh. The Civil court in
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State of Madhya Pradesh would have no territorial jurisdiction under s 92 merely on the
ground that there was an allegation against the trustees about mismanagement of a
property situated in the State of Madhya Pradesh which was purchased by the founder
from income derived from trust property situated in the State of Uttar Pradesh. Meaning
of subject matter of the trust occurring in s 92 is that matter, thing or person, which is the
foundation of the trust and was the object of creating a trust, dedication or endowment.
The situation or situs of properties or the trust are relevant for the purpose of determining
jurisdiction of the court under s 92 of the Code, only if such property or properties
constitute foundation of the trust; but mere properties of the trust are not necessarily its
subject matter. The existence of an item of the trust property, subsequently acquired from
the trust income, should not be deemed to be the subject matter of the trust, so as to
confer jurisdiction on the court in the State of Madhya Pradesh.14 A suit by the deity for
declaration of title to land, against a person claiming an interest adverse to the deity, does
not fall within s 92.15 An objection of non-application of s 92 was not raised in the written
statement or in the reply to injunction application. It can not be permitted to be raised to
the first time during the hearing of the appeal.16

6. Representative suit and res judicata . The suit contemplated by this section is a
representative suit, that is, a suit which is prosecuted by individuals not for their own
interest, but as representatives of the general public,17 in order to secure a proper
administration of a public trust.18 A suit under s 92 is for the vindication of public rights.
The named plaintiff really represents the public at large. The suit is a representative one
and the decree binds all persons interested in the trust, as provided in Explanation VI to s
11.19 A decree in a suit under this section will, therefore, operate as res judicata under
explanation 6 to s 11 of the Code of Civil Procedure.20 In Sunni Central Board of Wakf, UP v.
Sirajul Haq,21 the Allahabad High Court held that a decision in a suit under this section that
a particular endowment was public with a scheme framed therefor, was a judgment in rem
and not a judgment in personam. This observation, though expressed in general terms, was
made with reference to the facts of the case and in the light of the contention of the
managing committee that the wakf in dispute did not come within the purview of the
Muslim Wakfs Act, 1936 although in earlier suits including as suit filed with the consent of
the Advocate-General, it was held that the property in dispute was wakf and a scheme was
framed. The scope of the rule that such a judgment is a judgment in rem can be properly
understood from the Supreme Court judgment in Ahmed Adam Sait v. ME Makhri. 22 There
a suit had been filed on behalf of the Cutchi Memons of Bangalore for framing a scheme
for a mosque on the allegation that it belonged to them and that they had exclusive right to
manage it and a scheme was framed on that basis. Subsequently, Sunni Muslims of the
locality filed another suit claiming that they were also beneficiaries of the mosque and that
a fresh scheme should be framed. The suit was resisted on the ground that the prior
decision operated as res judicata. In repelling this contention, the Supreme Court observed
that a decree in a suit under s 92 would operate as res judicata on all persons who have the
same interest as the plaintiffs but that when the plaintiffs claimed right in a limited class to
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the exclusion of others, they cannot be held to represent those others and the decision in
the suit would not operate as res judicata on the rights of those others.

7. Issue Estoppel. In a case23 Supreme Court held that in terms of the requirement of s
16 (2), the onus to prove that the institution is a Sikh gurdwara lies on the person who
asserts the same. That being the position, the committee which asserted that the Institution
was a Sikh gurdwara has to prove the same. The High Court has therefore rightly held that
the tribunal wrongly placed the burden of proof on the respondents herein. Judgments to
the contrary rendered and relied upon by the appellants are no longer good law in view of
the last noted decision. Similarly, Supreme Court in a case24 came to the conclusion that
Nirmalas are Sadhus who cannot be regarded as Sikhs and consequently in the mere capacity
of followers of Sikh religion residing in the concerned village cannot be held to have an
interest as to entitle them to institute a suit under s 92 of the Code of Civil Procedure. In other
words, there was a categorical finding that Nirmalas are not Sikhs. It was held that the Dera
was maintained for an entirely distinct sect known as Nirmalas Sadhus who cannot be
regarded as Sikhs. It was also held that mere fact that at some stage there was a Guru
Granth Sahib in the Dera cannot lead to any conclusion that the institution was meant for or
belonged to the followers of Sikh religion. These findings were rendered in a suit filed
under s 92 of the Code of Civil Procedure. Decisions taking the contrary view that Nirmalas are
Sikhs per se lose significance. The factual findings relating to the nature and character of
the institutions, specifically found on an elaborate review of the governing legal principles
as well, and which have reached finality cannot be re-agitated and the same is precluded on
the principle of Issue estoppel also.25

8. Jurisdiction. The words within the local limits of whose jurisdiction the whole or any
part of the subject matter of the trust is situated apply both to the principal civil court of
original jurisdiction and to the court empowered in that behalf. The section, therefore,
overrides cl 12 of the Letters Patent.26 But if the trust fund is deposited with a firm at
Madras and has a place of business at Calcutta, the Calcutta High Court has jurisdiction as
the trustees could require payment at Calcutta.27 Where the trustees and the trust fund are
within the jurisdiction of a court, but the charity is to be founded in a territory outside the
jurisdiction, the court has jurisdiction to pass a decree, declaring the trusts upon which the
fund is to be held, but it cannot go further in the way of settling a scheme, and it will leave
it to the court of the place in which the charity is to be carried out to settle the scheme.28
Nor can a court apply the cypres doctrine extra territorium. 29 Likewise, where the trust is in a
foreign country and is administered there and the trustees are also residing there but
properties belonging to the trust are situated within jurisdiction, the court can act under
this section for protecting the properties within its jurisdiction, though it may not be
competent to grant reliefs which interfere with the administration of the trust in the
foreign country, such as framing of a scheme, removing the trustees and appointing new
trustees.30 Empowerment of a judicial officer for the purpose of s 92, can be by entry in
the gradation list and notification is not necessary.31
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In a case from Tamil Nadu, the Supreme Court has held that for suits relating to Public
Trust, the jurisdiction of the District Court or other Court notified by the State
Government under the Tamil Nadu Civil Courts Act, 1873 does not oust the jurisdiction
of the District Court. It has been observed that the use of the word or in s 92 denotes an
alternative, giving a choice to the plaintiff. Even if the State Government notifies any other
Court, the jurisdiction of the District Court does not stand substituted.32

While overruling the judgment of the Madras High Court, Raveendran, J., speaking for the
Supreme Court Bench explained the law in these words:

8. Assuming that there was any need for applying the principles of interpretation, let us next consider whether the word or was used in
section 92 of the Code in a substitutive sense. It is clear from section 92 of the Code that the legislature did not want to go by the
general rule contained in section 15 of the Code that every suit shall be instituted in the court of the lowest grade competent to try it, in
regard to suits relating to public trusts. The intention of the law makers was that such suits should be tried by the District Court. At the
same time, the law makers contemplated that if there was heavy work load on the District Court, the State Government should be
enabled to empower any other court (within the local limits of whose jurisdiction, the whole or any part of the subject-matter is situate),
also to entertain such suits. Therefore, the word or is used in the ordinary and normal sense, that is to denote an alternative, giving a
choice. The provisions of section 92 do not give room for interpreting the word or as a substitutive, so as to lead to an interpretation
that when the Government notified any other court, such notified court alone will have jurisdiction and not the District Court.33

In para 9 of the above judgment the Supreme Court Bench further went on to explain as
follows:

9. The provisions of section 12 of the Civil Courts Act specifying the pecuniary limits of District Courts and Subordinate Courts, is
subject to the provisions of the Code of Civil Procedure. In view of the express provisions of section 92 specifying the courts which will
have jurisdiction to entertain suits under that section, neither the provisions of section 15 to 20 of the Code nor the provisions of
section 12 of the Civil Courts Act will apply to such suits. Section 92 is a self-contained provision, and conferment of jurisdiction in
regard to suits under that section does not depend upon the value of the subject matter of the suit. Therefore, insofar as the suits under
section 92 are concerned, the District Courts and Subordinate Courts will have concurrent jurisdiction without reference to any
pecuniary limits. We find that the learned District Judge had held that he had jurisdiction because the value of the subject-matter was
Rs. 10 lakhs, apparently keeping in view, section 12 of the Civil Courts Act. We make it clear that the pecuniary limits mentioned in
section 12 of the Civil Courts Act, do not apply to suits under section 92 of the Code.34

9. Who may sue under this section. A suit under this section may be brought
(i) by the Advocate-General, and outside the presidency-towns by the collector or by
such officer as the state government may appoint in that behalf (s 93); or
(ii) by two or more persons having an interest in the trust and having obtained the
leave of the court.

All persons to whom leave has been granted must sue. It has been held that a suit by only
some of the persons to whom consent of the Advocate-General (now leave of the court)
was given would not lie.35 Such an authority is joint and must be act ed upon by all
jointly.36 But where sanction under the section has been obtained by several persons and
one of them dies before the institution of the suit, the suit instituted by the rest was held to
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be valid.37 This view has been dissented from by the Supreme Court in Narain v. Sunderlal
Tholia,38 and therefore, is not correct. A suit relating to administration of a temple can be
filed by the idol, represented by the next friend. Further, the registration of a trust under
the Societies Registration Act, 1860, does not render s 92 inapplicable.39

As for appeal, one of several plaintiffs can appeal on the same terms and conditions as are
applicable to suits in general.40 An heir of the original creator of a trust has an interest in
the trust and can sue under s 92. So, can a person who, under the instrument of trust, has
the right to reside in the premises of the endowed property.41

10. Interest in the trust. When a suit under this section is not instituted by the Advocate-
General, it must be brought by at least two persons, and such persons must have an
interest in the trust. Section 539 of the Code of Civil Procedure 1877 contained the words
a direct interest. Those words seem to have been taken from the judgment of Lord Eldon
in Re the Bedford Charity. 42 Those words also occurred in s 539 of the Code of Civil
Procedure 1882. That section was amended by s 44 of Act 7 of 1888, and the words an
interest were substituted for the words a direct interest. It must have appeared to the
legislature that the limitation of a direct interest was not expedient in India, and hence the
section must have been amended.43 The effect of the amendment has been to widen the
class of persons who are entitled to institute a suit under this section.44 However, the
interest must not be purely hypothetical or in the nature of a bare possibility, but must be
subsisting, though it may not be direct or substantial.45

Where the plaintiff sues under s 92 for framing a scheme in respect of a choultry, the
interest should be real, substantial and existing though it need not be direct. The following
types of interest are not enough:
(i) that the plaintiff is residing in the place where the choultry is situated; or
(ii) that the plaintiff might have belonged to the family entitled to hereditary
trusteeship.46

Thus, a Mahommedan zamindar creating a wakf for the upkeep of a Hindu temple and a
Dharmashala for the benefit of his tenants has an interest in the trust.47 Persons entitled to
worship in a temple have such an interest in the trust as to enable them to institute a suit
under this section against the trustees of the temple.48 Successors of the executant of a
trust and all members of the Hindu public and other relatives of the estate were given right
of stay in the temple (the trust property). It was held that persons having any concern with
the dedicated property had right to seek remedy in the proper manner, if difficulty arose in
its management and if the maintenance thereof was not being done according to the
wishes of the executant.49 Persons who not only made contributions or offerings but
devoted their time and energy for the preservation of the trust property are persons
interested in such trust.50 So also persons who are not only interested in the preservation
of trust property but are act ual users thereof.51 In an Allahabad case, a suit was filed
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against a religious trust. Allegation was that the defendant was Sarbarakar of the temple, i.e.
person managing the temple, but was posing himself as the owner and was selling away the
trust property. It was held that the pujari of the temple and other devotees can file a suit
under s 92, for saving the said trust property. Purchasers of the property can also be made
defendants for getting relief under s 92 of the Code.52 Similarly, persons residing in a
village, whose business it was to conduct pilgrims to a shrine and perform the worship of
the idol on their behalf, were held to have a sufficient interest to entitle them to sue the
shevaks or ministers of the idol under this section.53 Likewise, worshippers at a mosque
have an interest within the meaning of this section in the trusts of the mosque.54 A
worshipper of a deity in a temple can sue as next friend without prior approval of court for
appointment of next friend.55 Individual rights cannot be litigated in a suit under s 92. If
plaintiff challenges the rights of persons acting as trustees to function in that office but
make no allegations of misconduct etc then the suit does not lie under s 92.56 A Shia
resident of the locality where the wakf properties are situated who takes part in its
functions is a person interested within this section.57

In a case, where leave was sought to institute a suit against Public Trust, by persons whose
act ivities were not for protection of the interest of the trust, it was held by the Madras
High Court that leave cannot be granted.58

It is not necessary for sustaining a suit under this section that the plaintiffs should be
interested in all the items of properties comprised in the trust.59 A lessee of trust property
who has averted its sale in court auction is a person interested in the trust.60 If the persons
suing have an interest in the trust, it is not necessary that they should have been personally
affected by any act done by the person sued.61 It is, clear that simply because the plaintiffs
are respectable persons of the locality and they have taken part in social act ivities, they are
not sufficient to come within the category of persons interested in the trust as
contemplated under s 92 of the Code of Civil Procedure.62 But the interest must be an existing
interest and not a mere contingency; the mere possibility of succession to the managership
of trust properties in respect of which the suit is brought is not sufficient to give a right to
sue.63 The interest contemplated by the section must be a present and substantial interest
and not remote or sentimental. Thus, public Hindu temples are prima facie taken to be
dedicated for the use of all Hindus resorting to them. But the bare possibility, however
remote, that a Hindu of another place might desire to visit a temple does not give him an
interest sufficient to entitle him to sue under this section. Hence, where a suit was brought
under this section by a Hindu residing in Madras and another residing in Tellicherry in
respect of a temple situated in Tellicherry, and it appeared that the former had gone to
worship in the temple on one or two occasions in the past and might go there to worship
in the future if business took him to Tellicherry, it was held that though he had a right, as a
Hindu, to worship in the temple, he had not such an interest in the trust, as to entitle him
to sue under this section.64 Where the only interest which the plaintiffs claimed to have in
the trust property was that they were members of the community to which the author of
the trust belonged and were residents of the town in which a small part of his property was
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situated and the property was excluded from the trust, the interest of the plaintiffs (if any
at all) was held to be merely sentimental and too remote.65 The Lahore High Court has
held that a right of worship constitutes an interest under the section,66 but that a bare
possibility of resort for worship does not give the plaintiffs a locus standi. 67 It has been held
by the judicial committee that descendants of the founder of a public Hindu chattiram,
although only in the female line, are persons having an interest in the trust, and
consequently they are entitled to maintain a suit under this section, even though they might
never themselves make use of the chattiram.68 A resident of the locality, who has some
nexus or connection with the trust i.e. he has interest in the well-being or prosperity of the
trust, or resident, of the locality where a temple is situated and who visits and participates
in its rituals and religious functions or an old student of a public school, residing in the
locality is presumed to have interest within the meaning of sub-s (1).69

A suit against a public trust under s 92 of the Code is not like an ordinary suit where there
is a lis between two parties and objection could be raised by either of the parties to suit
with regard to impleadment of third party in the proceedings. Suit under s 92 being
representative in character, all those interested in the trust could be considered as parties to
the suit and can be impleaded.70

In the undermentioned Supreme Court case, the question whether a Muslim could claim to
be interested in a particular trust was raised but not decided. However, it was pointed out
that the trust in question, besides having religious objects, had also certain charitable
objects such as provision of drinking water.71

11. Leave of the court. It may be noted that by Code of Civil Procedure (Amendment) Act
(104 of 1976) the consent of Advocate General is no longer required. The following text
pertaining to the consent of Advocate General is retained to indicate the judicial opinions
prevalent prior to said amendments and the same may be useful and relevant to the leave
of the court which is now required to be taken after the said amendment.

Before the subsequent amendment of the section when sub-s (1), as it then stood, required
the consent in writing of the Advocate-General, it was held that such consent had to be a
specific permission given to one applicant by name and another was not a sufficient
compliance with the terms of the sub-section.72 Accordingly, the Bombay High Court held
that a suit brought under this section by only one plaintiff, with the consent of the
Advocate-General, was bad at its institution and that such a plaint could not be amended
so as to add a second plaintiff, even if the Advocate-General were to consent to such
amendment since the section nowhere spoke of the Advocate-Generals consent to such an
amendment. Such a suit, bad at its inception, could not be bettered by an amendment.73
The Madras view, on the other hand, was that persons interested in the trust could be
added as parties to the suit with the consent of the Advocate-General under O 1, r 10.
Therefore, if a suit was brought by A alone74 or by A and B, of whom B had no interest in
the trust,75 the plaint could be amended by adding C, a person interested, as the party
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plaintiff in either case with the Advocate-Generals consent. The Madras High Court also
took the view that if a suit had been brought by A and B, neither of whom had an interest,
the plaint could be amended by adding the Advocate-General as a plaintiff on his
application.76 The Calcutta High Court also has held that once the consent of the
Advocate-General or the collector had been obtained and the suit filed, any other party
interested, may come in and carry on the suit without any further consent.77 This
difference of opinion would no longer be of any relevance since the authority granting the
leave and the amendment is the court itself, and the courts power to grant amendment is
wide, whenever the interest of justice requires it.

Another principle laid down was that the consent required by the section was a condition
precedent to the institution of the suit to which such consent relates. No special form for
such consent was necessary and such consent need not specify the reliefs for which it was
granted.78 Therefore, if no valid consent was obtained before the institution of the suit, the
suit was liable to be dismissed or the plaintiff had to withdraw the suit with liberty to file a
fresh suit. But the defect could not be rectified after the institution of the suit.79 The
Supreme Court held that where consent given by the Advocate-General was to several
persons, such consent was a joint authority and had to be act ed upon by all of them
jointly. Therefore, a suit by some of them was not in compliance with the provisions of the
section and a fresh consent would be necessary where it was granted to four persons and
one of them died before the suit was filed.80 Even when consent had been obtained, the
suit had to be confined to the matters included in such consent and it was not competent
to the court to grant reliefs other than those included in the terms of the consent.81
Further, the suit could not be amended without the Advocate-Generals sanction.
Accordingly, the court must dismiss the suit where a new party was added as a defendant
without the Advocate-Generals sanction and possession of trust property is claimed from
him.82 The previous sanction of the Advocate-General was held to be necessary for adding
such a new defendant.83 The reason given was that the suit under this section was of a
special nature and while deciding to give his consent, the Advocate-General had to have a
host of considerations to take into account including the reliefs for which a decree would
be prayed for.84 But the High Court of Madras has held that where a suit is filed against the
secretary of a charitable trust registered under the Societies Registration Act, 1860 and, an
amendment is sought to join the society, the application is valid and no sanction of the
Advocate-General is necessary, as the society sought to be added is a necessary party.85 It is
submitted that the better reason for so holding is that the society, through its secretary,
was already represented and joining the society was merely formal.

In a later case, the Bombay High Court held that where amendments do not substantially
change the character of the suit or enlarge the scope of the suit they can be made by the
court itself without the sanction of the Advocate-General or the collector. Amendments
which enlarge the scope of the suit, for instance, by allowing further reliefs without
substantially changing its character may be made with the sanction of the Advocate-
General or the collector. But amendments which substantially change the character of the
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suit would not be permissible even with the sanction of the Advocate-General or the
collector.86 However, where an amendment was formal and did not alter the nature of the
suit, it was ordered.87 Now that the court is the authority which would grant the leave as
also the amendment, many of the difficulties which arose while considering applications
for amendments would not arise, unless the amendment in question is such as to
substantially change the character of the suit or enlarge its scope.

It was well-recognised that while giving his consent, the Advocate-General had to exercise
his judgment in the matter and see not only whether the persons suing were persons who
had an interest in the trust, but also, whether the trust was a public trust of the character
defined in the section and whether there were prima facie grounds for thinking that there
had been a breach of trust.88 However, even if the consent given by the Advocate-General
showed ex facie that he had not exercised his judgment, it was held not to be a fatal defect
but a mere irregularity falling within the scope of s 99 and the decree passed in such suit
was not liable to be interfered within appeal, unless the irregularity was such as affected the
decision on merits.89 These principles would, it is submitted, apply to the court while it is
called upon to grant leave.

The Allahabad High Court has held that when an order has been made against the trustee
of a charity under s 5 (5) of the Charitable and Religious Trusts Acts 1920, and the trustee,
without reasonable cause, fails to comply with it, he is deemed to have committed breach
of trust affording ground for a suit under this section. Such a suit, so far as it is based on
such failure, does not require the previous sanction of the Advocate-General and in such a
suit, the court may pass a decree removing such trustee.90 It is not necessary that such a
suit should be filed by the party who secured the order under the Charitable and Religious
Trusts Act, 1920, but the reliefs claimed must be such as arise from the failure to produce
accounts.91

Even though the consent of the Advocate-General has been obtained for filing the suit
under this section his consent has been held not to be necessary for compromising the
suit.92 But the court would scrutinise the terms of the compromise and reject them if they
are such as to jeopardise the interest of the trust.93 This would also be the position under
the amended section where the court has granted the leave.

Suit after Leave.A suit for the removal of trustees, seeking accounts and settlement of a
scheme etc was filed, and months thereafter, an application for the above was filed and
granted. It was held that institution of the suit prior to the grant of leave was without
justification and therefore non est. As a suit can be instituted immediately after the grant of
leave, there was nothing wrong in treating the suit to have been instituted on the date on
which leave was obtained. The real test for the applicability of s 92 is to see whether the
suit is fundamentally on behalf of the public for the vindication of a public right.1
Permission under s 92 can be a tacit one.2 Under s 92, leave of the court is a pre-condition
or a condition precedent for the institution of a suit against a public trust. Having in mind
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the objective underlining s 92 and the language thereof, as a rule of caution, the court
should normally, unless it is impracticable or inconvenient to do so, give a notice to the
proposed defendant before granting leave under s 92, to institute a suit. The defendants
could bring to the notice of the court, for instances, that the allegations made in the plaint
are frivolous or reckless. They could also, in a given case, point out that the persons who
were applying for leave under s 92 are doing so merely with a view to harass the trust or
have such antecedents that it would be undesirable to grant leave to such persons. The
desirability of such notice being given to the defendants however, can not be regarded as a
statutory requirement to be complied with before leave under s 92 can be granted as that
would leave to unnecessary delay, and in a given case, cause considerable loss to the public
trust. If a suit is instituted on the basis of such leave, granted without notice to the
defendants, the suit would not, thereby, be rendered bad in law or not maintainable. The
grant of leave can not be regarded defeating or even seriously prejudicing any right of the
proposed defendant, because it is always open to them to file an application for revocation
of the leave which can be considered on merits and according to law.3

12. Nature of the order granting leave by the court. Under the section, as it stood
before its amendment4 and when what was required was the consent of the Advocate-
General, there was some divergence of opinion on the question whether the proceedings
for consent before the Advocate-General were quasi-judicial in character, and if they were
open to challenge in writ proceedings under Art. 226 of the Constitution of India. In Abu
Backer v. Advocate-General5 the High Court of Travancore-Cochin held that such
proceedings were quasi-judicial and that view was shared by the Pepsu High Court.6 But a
contrary view was taken by the High Courts of Rajasthan,7 Allahabad,8 Madras9 and
Jammu and Kashmir.10 A full bench of the Kerala High Court later on reconsidered the
position and held reversing Abu Backer’s case supra that the proceedings before the
Advocate-General were only administrative.11 Further, it has also been held that the
function of the Advocate General not being a judicial one, notice by him to the trust or its
trustees was not obligatory and that the absence of such notice did not invalidate the
consent given by him. All that was required of him at that stage, was to satisfy himself that
it was worthwhile to institute the suit.12 Notice to the defendants before granting leave is
not mandatory. The Supreme Court has now so held. Although as a rule of caution, such
notice should be given, leave granted without notice is not bad in law. The proposed
defendants can always apply for revocation of leave already granted.13 The mere fact that
the amended section now requires leave of the court in place of consent by the Advocate-
General, does not seem to change the nature of the order of leave made by the court. In
making such an order, the court, like the Advocate-General earlier, would no doubt have
to apply its mind but that is only to satisfy itself whether the persons asking leave have
interest in the trust, whether the trust is a public trust specified in the section and whether
there are prima facie grounds for thinking that there has been a breach of the trust. At that
stage the court would not have, before it, all the parties to the proposed suit nor the
evidence from which it would be called upon to adjudicate any issue. All that it would have
to see is whether it is in the interest of the trust to file the suit for which leave is sought.
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An order passed under s 92 of the Code either granting or refusing leave to institute a suit
in respect of Pubic Trust, is administrative in nature and no notice is required to be issued
to the other party. But it is incumbent upon the Court to give reasons for its decision
either granting or refusing leave. There can be no implied permission and the Court has to
pass a formal order though without notice to the defendant.14

On the question whether revision against an order granting leave to institute a suit against
a public trust would be maintainable or not, the Madras High Court has held that granting
leave by Court under s 92 of the Code is neither judicial nor quasi-judicial function, rather
it is an administrative function. Therefore, neither s 151 of the Code nor Article 227 of the
Constitution could be invoked against such order. However, the aggrieved person may
approach the same Court to revoke the leave granted. But a revision against the said order
is not maintainable.15

13. Rejection of plaint after grant of leavevalidity. Once leave was granted after hearing
of the parties the question of rejecting the plaint under O 7, r 11 did not arise. An
application for rejection of the plaint should have been made prior to the leave having
been granted or at the time when the appellants opposed grant of leave. Having lost in
their opposition to grant of leave it was not open to the appellants to then apply for
rejection of the plaint under O 7, r 11 of the Code of Civil Procedure.16

14. Interlocutory Orders pending application for leavevalidity. Even though leave to
sue under s 92 of the Code of Civil Procedure can be granted by the court on the prima facie
satisfaction regarding the allegations made against the respondents either without giving
notice to the respondents or after giving notice to the respondents and hearing them, there
will be no properly instituted suit under law before formal leave is granted by the court
under s 92 of the Code of Civil Procedure and no interlocutory order in the proceedings can be
passed by the court before granting permission to institute the suit under s 92 (1) of the Code
of Civil Procedure.

Therefore, it the order passed by the lower court in the interlocutory application filed
under Order 11, r 14 and ss 141, and 151 of the Code of Civil Procedure before granting leave
to sue and proper institution of the suit is absolutely illegal and unsustainable.17

However, it has been held by Allahabad High Court that pending application seeking
permission to file suit against public trust, the inherent powers of the High Court can be
invoked for passing suitable orders appointing receiver to prevent trust property from
being wasted or destroyed.18

15. Public purposes. This section relates to those charities only in which the public are
interested. The endowment must be for a public purpose of a charitable nature and the
beneficial interest must be vested in the public in general or considerable sections
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thereof.19Section 92 does not apply to private trusts.20 As to what are public and private
endowments, see the undermentioned case.21

The distinction between a private and a public trust is, observed the Supreme Court in
Deoki Nandan v. Murlidhar: 22

...that whereas in the former, the beneficiaries as specific individuals, in the latter, they are the general public or a class thereof. While in
the former, the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter, they constitute a body which
is incapable of ascertainment.

Where there is a deed of endowment, the decision whether the trust is public or private
must turn on the construction of the deed, aided by such considerations, as are admissible
in law. But where there is no deed23 or where the origin of the trust cannot be determined,
regard must be had to repute, the user of the trust property and the mode of its
management and other circumstances.24

Existence of a public trust is essential for invoking s 92. The mere use of a Dharmashala by
the public does not establish the creation of a public trust, in the absence of evidence of
dedication of the property for public or charitable purpose. Hence, a suit in respect of the
Dharmashala under s 92 is incompetent, if there is no evidence that the owners divested
themselves or dedicated the property to a public or religious trust at any time. Thus,
keeping in view the various circumstances, and the treatment of the property by the
owners, the owners never dedicated the disputed property for a public or a charitable
purpose and no public trust was created.25 Where a school is established under a local Act
(St Thomas School Act, Bengal Act 12 of 1923) which does not make the school a
charitable trust, a suit regarding the school cannot be filed under s 92.26

The word trust is used in this section, not in any technical sense and would include Hindu
or Mahommedan religious endowments.27 A trust for a public Hindu temple is a trust for a
public purpose of a religious nature within the meaning of this section.28 Even where the
property is dedicated to an idol and such idol being a juristic person is capable of holding
such property, if the major portion of its income is used for doing pooja and services of the
idol and towards management of melas wherein Hindus of the locality in general
participate, the true beneficiaries of the trust are not the idols but the worshippers.29 A
permanent bequest by a Parsi for the purpose of muktad ceremonies is a trust for public
purposes of a religious nature for such ceremonies include prayers for the spiritual welfare
of all Zoroastrians and tend to the advancement of the Zoroastrian religion.30 A
Mahommedan wakf is a trust for public purposes of a charitable and religious nature,31 and
the trust may be for the sale of a property in India to provide funds for the establishment
of a boarding house for Hajis at Mecca.32 If the reliefs specified in the section are claimed
with reference to a wakf, the section applies.33 A muth, that is otherwise private, does not
become public simply because some persons are fed when gurupuja is performed and a
water pandal is maintained in the mutt during the hot season.34 The real test is whether the
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user by the public is as of right.35 An institution for imparting education is a trust and
when it is established, with funds subscribed by public, it is a public trust.36 But where a
member of the public had always used a temple to which a dharmashala was attached and
the surplus funds not required for the service of the temple were to be applied to feeding
travellers and maintaining a sadavart, it was held that the intention of the founder was to
devote the property to public purposes of a religious and charitable nature.37 It was
observed by the Supreme Court in Deokinandan v. Murlidhar, that in the case of a temple,
the beneficiaries are the worshippers and that therefore, whether the temple is public or
private, must depend on whether the right to worship therein has been given to individuals
or to the public at large. A trust is not the less a trust for a public purpose because the
main object of the trust is the support of fakirs of a particular sect and the propagation of
the tenets of that sect.38 A scheme for loans for education to the poor and deserving
persons of a specified community is one of a charitable nature though interest may be
charged on the loans.39 When the fund is intended to be used by the villagers for the
purpose connected with the village community as a whole, or a substantial part of it, it is a
public charity falling within the section whatever the nature of the purpose.40 Where by the
will of a person, considerable property is dedicated to public charitable purposes, a
provision made therein for the right of private residence, in the property, of a near relative
of the testator and the heirs of the relative, who are his descendants, will not render the
dedication illusory.41 But where a testators intention is to benefit only the members of his
family who are poor, there is no trust for a public purpose of a charitable character.
However, where charity for public purposes is the expressed object of the settler, the
purposes are not in any way defeated by an expression of the testators wish that members
of his family, as members of the general public, are eligible to benefit with other members
of the public.42

A trust for political purposes is not one for a charitable purpose.43 Where there is a public
trust, s 92 does not become inapplicable by reason of some of the provisions in the
endowment being private in character.44 If there is a trust created by the public for a public
charitable purpose, namely, for establishing and maintaining a school, the fact that a
society therefore is registered would not change the character of the properties, which had
already been impressed with the trust. Any addition to such properties would also have the
same character.45 A settlement in favour of a Samadhi, i.e., a tomb of the ancestors of the
settlers is not one for a public purpose.46

16. Any alleged breach of trust. These words are not equivalent to any alleged breach of
any admitted trust. It is not, therefore, a condition precedent to the applicability of the
section that the trust alleged by the plaintiffs is admitted by the defendants.47 As this
section is not confined to the case of admitted trusts, in a suit under this section, the court
can determine whether the suit property is a wakf. 48 Public user of a temple for a long
period without objection is strong evidence of the temple being a public temple.49 The fact
that income of certain properties of an institution has all along been applied to religious
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and charitable purposes is strong evidence for holding that those purposes are purposes
for which the institution exists.50

In suit filed under s 92 claiming relief of removal of trustee and for framing of scheme of
administration of the Trust, it was held that the relief claimed in the suit is covered under s
92 (1) of the Code and as such the suit was maintainable.51

17. Where the direction of the court is deemed necessary for the administration of
any such trust. To bring a suit within this section, there must either be a breach of trust
or the directions of the court must be necessary for the administration of the trust. The
directions, which we referred to in this section, are such as are necessary for the carrying
out of the trust and as are given to a trustee, either the existing trustee where there is one,
or the new trustee, where one is to be appointed. The nature of the reliefs expressly
mentioned shows what is meant by the words deemed necessary for administration of any
such trust.52 The mere appointment of a Mutawalli is not a direction within the meaning of
this section.53

18. Whether contentious or not. These words were introduced to give effect to the
decisions of the Calcutta54 and Madras55 High Courts that the section was not confined to
non-contentious proceedings and that it applied to contentious proceedings also.

19. Court should consider evidence. The district judge, in exercise of power under s 92
of the Code of Civil Procedure must act judiciously. If objections are filed before or after the
Order under s 92 of the Code of Civil Procedure is passed, granting or refusing the leave to file a
suit, he is bound to take into consideration the documentary or oral evidence on record
and examine the same critically and thereafter pass the Order.56

20. Who may be sued under this section. It is not necessary that the defendant should
be either a de jure or de facto trustee, otherwise no suit can be brought under this section in a
case in which all trustees are dead or refuse to act.57 It is not necessary to maintain a suit
under this section that there should be a trustee. When there is a public trust, a suit can be
filed against a person in possession of trust properties for framing a scheme.58 A suit may
be brought under this section against persons in possession of the trust property who
claim adversely to the trust, that is, claim to be the owners of the property,59 or against
persons who deny the validity of the trust.60 But a suit against one who is merely a servant
for misappropriation of the trust property does not fall under this section.61

21. Order for security for costs against defendant trustee. Section 10 of the Charitable and
Religious Trusts Act, 1920, provides that in any suit instituted under the present section, the
court trying such suit may, if, on the application for the plaintiff and after hearing the
defendant and making such inquiry as it thinks fit, is satisfied that such an order is
necessary in the public interest, direct the defendant, either to furnish security for any
expenditure incurred, or likely to be incurred, by the plaintiff in instituting and maintaining
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such suit, or to deposit from any money in his hands as trustee of the trust to which the
suit relates, such sum as such court considers sufficient to meet such expenditure in whole
or in part, and that when any money has been so deposited, the court may make over to
the plaintiff, the whole or any part of such sum for the conduct of the suit, but that before
making over any sum to the plaintiff, the court shall take security from the plaintiff for the
refund of the same in the event of such refund being subsequently ordered by the court.

22. Clause (a): Removing any trustee. Though this clause did not occur in the
corresponding s 539 of the Code of 1882, it was held by the High Courts of Calcutta,
Bombay and Allahabad,62 following an earlier decision of the Madras High Court,63 that a
suit for the removal of a trustee of a public trust and for the appointment of a new trustee,
came under that section, though the removal of a trustee was not one of the reliefs
specified in that section. Such a relief, it was said, was either covered by the words such
further or other relief as the nature of the case may require, or it was implied in the clause
providing for the appointment of new trustees. On the other hand, the Madras High Court
held, in a later case, that such a suit did not come under that section.64 Sub-section (1), cl
(a), of the present section gives effect to the Calcutta, Bombay and Allahabad decisions. A
suit for the removal of a trustee must, therefore, be instituted in conformity with the
provisions of this section. The High Court of Madras has held that a suit by the trustees of
a temple for a declaration that the appointment by the devasthanam committee of the
defendant as a trustee in place of a deceased trustee is invalid and for an injunction to
restrain him from interfering with the management of the temple, is in effect, a suit for the
removal of the defendant from the office of trustee, and that it cannot be instituted
without the sanction required by this or the next section.65 A similar view has been taken
by the Patna High Court.66 This view has been dissented from by the High Court of
Bombay on the ground that to bring a suit within this section, there must either be an
alleged breach of trust or the direction of the court must be deemed necessary for the
administration of the trust and that neither of these conditions was present in the Madras
case. The Bombay case was similar to the Madras case, and it was held that the case did not
fall within this section.67 The Madras case, though not overruled, was dissented from, in a
later Full Bench case68 and the Madras High Court has since held that a suit by a trustee to
establish his right as hereditary trustee and for consequential relief, as the Temple
Committee had appointed another person as sole trustee, did not fall within the section.69
The section applies even when the plaintiffs prayer is for removal of a trustee de son tort or
of a person wrongly appointed as trustee but even so, the suit is maintainable only if there
is a breach of trust alleged or the direction of the court is sought.70 Thus, a trustee making
a gift in favour of his wife acts in breach of the trust.

Where leave to file a suit for removal of a trustee on ground alleged breach of trust is
sought, the Court is not required to embark upon a detailed examination of the material
before it as if it is examining the evidence. The Court has merely to see the existence of a
prima facie case. The maintainability of the suit depends upon the allegations in the plaint.
Thus, where there is specific allegation that a trustee created mortgage by subjecting the
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entire trust property into mortgage without taking necessary permission of the Court, it
was held that prima facie case was made out and as such leave can be granted.71

If after the death of such a trustee during the pendency of the suit, for his removal, his
legal representatives are found to have been supporting the gift, they cannot be allowed to
continue as trustees.72

In a suit under this section by two trustees of a temple, against a co-trustee, for his
removal, the court has the power to investigate charges of misconduct made by the
defendant against the plaintiffs and even to remove them.73

In framing a scheme of management under this section [see cl (g)], it is desirable to include
a provision for the removal of trustees for breach of trust, for, where such a provision is
included, the removal of a defaulting trustee may be obtained by an application in
execution of the decree and the costs and trouble of a regular suit which would otherwise
be probably necessary, may thus be avoided.74 The procedure is necessary to avoid
multiplicity of suits.75 But where the scheme contains no such provision, it has been held
that the trustees can be removed only in a suit, and not on an application under this
section.76

As regards the removal of a trustee, the High Court of Bombay held that a mere lax and
improvident management on the part of a manager of a shrine, fostered by the belief that
he was entitled to manage the trust property free from control and very much as if he was
its absolute owner, is not a sufficient ground for his removal.77 The High Court of
Allahabad also held that want of strict compliance with the objects of a wakf coupled with
the absence of complaint from the beneficiaries, is not a good ground for removal of a
mutawali.78 The High Court of Bombay, in a later case, also said that there is no hard and
fast rule that because the manager of a shrine has abrogated to himself the position of an
owner, he should be removed from the office of a trustee and that each case must be
decided with reference to its circumstances.79 The Calcutta High Court has doubted this
case and held that it applies only if there has been merely a misunderstanding and not a
wilful default.80 Accordingly, the Lahore High Court held that the Mujawar of a Khankah is
an unfit person to continue in office if he denies the wakf character of the property and
sets up an adverse claim to it.81 A dictum of the Privy Council would suggest that the
Bombay decisions are too indulgent. Lord Blanesburgh said that the standard of rectitude
and accuracy expected from every trustee of charitable funds is of the highest, and that the
standard must, in all circumstances, be maintained by the courts if the safety of property
held upon such trust is not to be imperilled throughout British India.82 In another case, the
Privy Council held that the true rule is that if it be found by the court that the Mahant of a
public religious and charitable endowment, in the exercise of his duties, has put himself in
a position in which the court thinks that the obligations of his office in connection with
the endowment, can no longer be faithfully discharged without danger to the endowment,
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that is a sufficient ground for his removal, if need be, from both the secular and religious
offices held by him.83

The Patna High Court removed a Sajjadanashin from the management of a wakf for gross
mismanagement, but allowed him to retain the spiritual office of Sajjadanashin.84

Where the secular and religious duties of a Mahant were interdependent and inseparably
blended and have always been performed by the Mahants, the jurisdiction of the civil court
under this section is not limited to the dealing with the Mahant in his capacity as Trustee
and Manager of the properties and temporal affairs of the temple and deity but extends
also to passing orders affecting his spiritual position as Shebait of the deity or his control
over the spiritual affairs of the deity or endowment. The civil court, thus, has the power to
remove him from his duties as well as to deprive him of the trusteeship and management
of the temporal affairs of the endowment.85 The Nagpur High Court has gone further and
has held that the court can remove him from his secular and spiritual office.86

23. Trustee. A person appointed trustee by the court, though his appointment may be
impeached as being illegal, is a trustee within the meaning of cl (b), and not a trespasser so
long as his appointment is not set aside.87 A de facto trustee is also a trustee for the purpose
of this section.88 So is a trustee de son tort, that is, a person who has not been appointed
trustee, but who takes charge of the trust property and purports to manage it as trust
property.89 A mahant or a shebait, who has accepted the office, or acknowledged himself as
such, is incapable of asserting any hostile title against a trustee, such disability being
implicit in any person who holds a fiduciary position in relation to another.90 However, a
suit against a mere trespasser does not fall within the ambit of this section. A trespasser is
different from a trustee de son tort in that a trespasser claims adversely to the trust and so
cannot be deemed to be trustee while a trustee de son tort does not claim adversely though
his title to act as a trustee is defective.91 The Acharya of a temple is a constructive trustee
within the meaning of this section and he may be sued as such.92

And so is the head of a mutt.1 When there is a public trust or charity, the jurisdiction of the
court to take act ion with respect to it under s 92 is not ousted by reason of the
management being vested in a committee registered under s 25 of the Companies Act, 1956. It
makes no difference in the application of the section whether the trustee is an individual or
a company.2 A mutawalli empowered by the scheme to appoint his own successor, cannot
appoint his successors successor and so on.3

24. Clause (b): Appointing new trustee. A suit for the appointment of new trustees of a
temple on the ground that the defendants are not lawful trustees and that the office of
trustees is therefore vacant, is a suit under cl (b) of this section.4

Under this section, the court, in sanctioning a scheme, may provide for the appointment of
additional or new trustees though such appointment may not be in conformity with the
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original Constitution of the trust or with the rules in force in respect to it.5 New trustees,
appointed under a scheme, have the right to execute the decree.6

A suit for an injunction against the defendants, permanently restraining them from
obstructing the plaintiff in the enjoyment of the property attached to a temple according to
the turn of the plaintiff, falls under this section.7 In a suit for the removal of trustees and
appointment of new trustees, the court can, in a proper case, appoint an interim receiver.8

In a suit for appointment of trustee, there was nothing to show that anybody either from
the plaintiffs or from the general public contributed for renovation, reconstruction of the
suit property and the conduct of the plaintiff and general public also indicated that the suit
property was never dedicated or meant for public charitable purposes, rather it continued
to be the exclusive property of the successors of an individual. It was held by the Himachal
Pradesh High Court that suit for appointment of trustee was not maintainable, more so
when successors at no point of time divested their ownership of the suit property.9

25. Application for appointment of new trustees. Section 92 mandates that where any
direction is sought from the court for administration of any trust, two or more persons
having an interest in the trust may institute a suit with the leave of the court. Even for
appointing a new trustee, the preconditions mentioned in s 92 have to be complied. The
application of the petitioner dated was made solely by the petitioner and it was not moved
by two or more persons and neither was the application made by leave of the court. The
power in the aforesaid application was for appointing a new trustee. The application of the
petitioner under s 151 of the Code of Civil Procedure was referable to s 92 of the Code of Civil
Procedure and since the preconditions of s 92 of the Code of Civil Procedure had not been
complied with the application was not maintainable.10

Where certain persons apply for being appointed trustees of a certain wakf without
specifically praying for the removal of the existing trustees, the purpose of the application
is nothing but the removal of the trustees and the relief sought for, falls within the purview
of s 92 (1). In such a case, though this section does not expressly bar such an application, it
does so by necessary implication and the court has no jurisdiction to entertain such an
application.11

26. Clause (cc): Direction to deliver possession. This clause was inserted by the Civil
Procedure Code Amendment Act s 1956. Before the enactment of this clause, there was some
controversy whether a decree under this section directing the removal of a trustee could
also provide for delivery of possession of the trust properties by him, to the persons
entitled to it. The object of the clause is not to enlarge the existing powers of the court. It
was added as and by way of abundant caution and to dispel any doubt that the court had
the power to give such a direction.12

27. Clause (d): Directing accounts and inquiries. Under the corresponding s 539 of
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the Code of 1882, the High Court of Bombay held that a suit to remove the trustees of a
public charity, and to compel them to account, and to make good the losses sustained by
the charity, by reason of default on the part of the trustees, and for the appointment of
new trustees, was a suit within that section, though a relief for accounts was not one of the
reliefs specifically mentioned in that section. Such a relief, it was said, was covered by the
words further or other relief.13 The present clause gives legislative recognition to the above
decision.14 A relief against a defendant trustee for such amount, as may be found due on
accounts being taken, cannot be claimed under this section.15 Likewise, back accounting
cannot be ordered in the absence of diversion of funds such as would amount to
misappropriation, malversation or breach of trust.16

28. Clause (e): Apportionment of income. A suit for a declaration as to what proportion
of the trust property (eg, offerings placed by devotees before an idol) should be allocated
to the pujaris (officiating priests) and what to the guravs (temple servants), relates to a relief
covered by cl (e) of the section.17

29. Clause (f): Authorising trust property to be let. This clause enables a trustee to
obtain the sanction of the court for letting, selling, mortgaging or exchanging the whole or
any part of the trust property. The clause is an enabling provision and should not be
understood as circumscribing the powers of trustees of ordinary administration of trust
property, which would include letting, selling, etc for the benefit of the trust. The clause
was put in the section inter alia to authorise the court to permit alienation of trust property
where, for example, there is a prohibition in this regard in the trust deed.18 An application
for this purpose is not a suit under this section.19

30. Clause (g): Settling a scheme. This section vests a very wide discretion in the court,
as regards directions to be given for the administration of public trusts. In giving effect to
the provisions of the section and in appointing new trustees and settling a scheme, the
court is entitled to take into consideration not merely the wishes of the founder, so far as
they can be ascertained, but also the past history of the institution and the way in which
the management is carried on in conjunction with other existing conditions that may have
grown up since its foundation.20 While framing a scheme, the District Court or the High
Court in appeal may provide that powers with regard to certain matters which may arise in
course of administration, may be reserved to the District Court. Such a provision does not
mean enlargement of jurisdiction. It only means that the District Court, which has framed
the scheme, is empowered to implement or work out the scheme.21 The court can also
consider the claims, moral if not legal, of the archakas and make provision for protecting
them.22 When a Mahant was appointed as manager of a temple by the appropriate
authorities, the fact that after him the office of trustee was held by his heirs in succession
would not confer on them a right to hereditary trusteeship.23 The court may refuse to
frame a scheme where no mismanagement is proved.24 But when trust property had been
diverted and the object of the trust had not been carried out and the trustee had not
accounted for income received, the court can frame a scheme. The Madras High Court has
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said that a scheme decree, if general, is, by its very nature, a declaratory decree; but that if
particular provisions provide for enforcement of parts of the scheme, such portions of the
scheme decree are executable;25 and in one case the same High Court enforced a scheme
by the appointment in execution of a receiver of properties which the scheme had placed
under the control of a temple trustee.26 But when there is no trustpublic or privateas for
example, when co-owners appoint a manager for management of their common
properties, there can be no question of the court framing a scheme. The remedy of the co-
owner who is aggrieved, is to file a suit for partition.27

A scheme framed by the court may be varied, if good cause is shown.28 Such a variation
can be prayed for by an application under s 151.29 A decision on such an application made
under s 57 (9) of the Madras Hindu Religious Endowments Act, 1926 amounts to a decree
within the meaning of s 2 (2) of the Code.30 But where a scheme is once settled, it
precludes a suit to establish a private right to manage the property [eg, hereditary
trusteeship] which, if established, would interfere with the scheme settled by court.31

The court has power under this section to frame a scheme in respect of a public temple,
though it be under the control of a Temple Committee constituted under the Religious
Endowments Act 20 of 1863.32 But where a trust is a private trust, eg, for a family idol, the
settlement of a scheme under this section is inappropriate.33 However, in the case of a
debutter, where the deity is the legal owner of the property, the assistance of the court may
be invoked for the settlement of a scheme of management where all the parties interested
are impleaded and the deity is represented by a disinterested third party.34 The court has
jurisdiction even apart from this section to frame a scheme for a private trust in
appropriate cases.35

In decrees passed under this section, liberty is generally reserved to the parties to apply to
the court as occasion arises; (as to the effect, of such a clause, see the undermentioned
case.)36 The Madras High Court has held that liberty may be reserved to parties to apply to
the court to fill any vacancy in the office of a trustee appointed under a scheme;37 but the
same High Court has also held that liberty to apply for a modification of the scheme or for
a relief coming under s 92 is ultra vires,38 and that a clause in a scheme settled by court
which has the effect of investing the court with wide and general powers and duties of
superintendence is ultra vires,39 and the Rangoon High Court has followed these decisions.40
But such clauses have appeared in schemes approved by the Privy Council;41 and the
Bombay High Court holds that the original consent of the Advocate-General is sufficient
to give the court seizing of the case and the court is competent to entertain applications,
for liberty to apply is reserved in order to avoid multiplicity of act ions.42 But if the court in
the exercise of powers reserved in a scheme of management of a wakf appoints a mutawalli,
a disappointed candidate for the office of Mutawalli has no locus standi to appeal.43 The
Allahabad and the Calcutta High Courts have held that a court settling a scheme has
jurisdiction to include a provision in the scheme reserving to itself, the power to modify
the scheme in future suo motu or otherwise, and that the power of the court to settle a
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scheme for the administration of a trust is sufficiently comprehensive to include a

provision which makes the scheme alterable by the court, if it is found necessary in
future.44 The question is now concluded by the decision of the Supreme Court in Raje
Ananda Rao v. Sham Rao45 in which it has been held overruling the decision in
Viraraghavachari v. Advocate-General of Madras46 that a suit under this section is analogous to
an administrative action and that a provision in the scheme giving opportunity to the
parties to move for modification thereof by application in the suit is intra vires but while
such a clause is valid, the power reserved should not be used so as to substitute a new
scheme47 and should be exercised only for substantial reasons and for the benefit of the
trust.48 But where the court has settled a scheme reserving the right to the existing trustees
to make an application for filling in a vacancy of a trustee, a beneficiary under the trust
cannot apply to the court for that purpose. His remedy is by way of a suit.49

Where it is quite clear that a public trust has been properly constituted by will, it is not
necessary that a suit for the administration of the estate of the testator should precede a
suit under this section. But, it is otherwise, where it is doubtful whether there would be
funds sufficient for the charitable bequest. In the latter case, an administration suit may
become necessary before any scheme can he framed under this section.50 Where the trust
funds are not ascertained and the defendants are accountable for the management of the
trust property, the proper course is to take the accounts before a scheme is framed.51

In a suit brought under this section in respect of a public religious trust, the court has
jurisdiction to frame a scheme regulative of the conduct of the institution as the owner of
moneys and property which it possesses, even in cases where the acharya, as the head of its
spiritual and temporal affairs, is worshipped by the members of the sect as the
representative of the God. In drawing up the scheme, however, the court must not
encroach upon the rights and prerogatives of the acharya as a religious preceptor of the
community, but while the institutional trust must be respected, the sect and body of
worshippers for whose benefit it was set up have the protection of the court against their
property being the subject of abuse, speculation and waste.52

There has been a divergence of opinion on the question whether a provision in a scheme
decree is executable. There is a large body of decisions which hold that it is not
executablewhether directory or mandatory.53 But the contrary view has also been taken in
some decisions.54 If it is purely declaratory, it cannot be executed.55 A direction made in
accordance with the new cl (cc) is clearly executable.

Where provision is made in a scheme for an application being made to the court for the
purposes mentioned in it, and an order is made on the application, the order is not one in
execution, and no appeal lies from it.56 The appeal can, however, be treated as an
application for revision, if the applicant has challenged the jurisdiction of the court to
make an amendment in the scheme.57
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31. Clause (h): Further or other relief. The words granting such further or other relief as
the nature of the case may require, must be read with what has preceded as referring to
further relief to which the party may be entitled which arises out of the existence of the
trust in respect of which the suit has been brought. Therefore, where the only relief
claimed in a suit is for a declaration that certain property is wakf property, the suit does not
come within the purview of this section. Such a relief does not come within the words
further or other relief.58 The general clause dealing with further or other relief...ought to be
read with the five preceding specific clauses, and nature of the reliefs, which may be
properly granted under it, is of the same character as the reliefs which may be granted
under the preceding clauses. The five specific clauses are not merely illustrative, but furnish
an indication of the nature of the relief, which may be granted in a suit under this section.59
In s 92 (1)(h), the words further or other relief do not authorise change of character of the
original trust onto a different one or alteration of its objects. A suit cannot be filed to
convert a trust for providing food into a trust for educational purposes.60

The question as to the precise scope of cl (h) is of great importance, for, if the words such
further or other relief as the nature of the case may require mean relief of the same nature
as cll (a)(g), a relief in a suit against strangers to a trust, for a declaration that property in
their possession is trust property, would be outside the scope of this section as it would
not be of the same nature as cll (a)(g) and the suit could be maintained without the consent
of the Advocate-General. This question arose in Abdul Rahim v. Abu Mahomed Barkat Ali,61
where the Privy Council held that a suit for a declaration that property belongs to a wakf
can be maintained by Mahommedan interested in the wakf without the consent of the
Advocate-General. It was argued in that case on behalf of the defendants that the words
further or other relief must be taken, not in connection with the previous cll (a)(g), but in
connection with the nature of the suit namely, any relief other than (a)(g), that the case of
an alleged breach of an express or constructive trust may require in the circumstances of
any particular case, and that a breach of trust having been alleged the suit came under this
section and it could not be maintained without the consent of the Advocate-General. But
this argument was not accepted and it was held that the words further or other relief in cl
(h) must, on general principles, be taken to mean relief of the same nature as cll (a)(g), and
that, as the relief for a declaration that the property belonged to the wakf was not of that
nature, the suit was outside the scope of the section. Their Lordships said that the
construction suggested on behalf of the defendants would cut down substantive rights
which existed before the enactment of the Code of 1908, and a Code regulating procedure
should not be construed as having that effect in the absence of express words. Before the
enactment of that Code, a person interested in a public trust had the right to maintain a
suit for such a declaration as the above without the consent of the Advocate-General, and
this is the substantive right referred to above. It follows that when a suit is brought for
some of the reliefs mentioned in this section with the consent of the Advocate-General,
and a prayer for a declaration is afterwards added and strangers to the trust are joined as
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defendants, the suit ceases to that extent to be one under s 92 or of a representative

character.

The Nagpur court has held that possession can be taken by a decree under this section
from the manager of the property, if he has taken possession wrongfully and has been
mismanaging the property and that such a relief in the decree will fall under this clause.62

There is a conflict of opinion as to whether a prayer that a deed of trust may be construed
by the court and that the true scope and object of the trust fund may be determined by the
court comes within the words further or other relief.63

32. Suits outside the scope of the section.This section does not apply unless
(i) there is a trust created for public purposes of a charitable or religious nature;
(ii) there is a breach alleged of such trust, or the direction of the court is deemed
necessary for the administration of such trust; and
(iii) the relief claimed is one or other of the reliefs mentioned in the section.64

If all the three conditions mentioned above are fulfilled, the suit must be instituted in
conformity with the provisions of this section, that is to say, it must be instituted either by
the Advocate-General or by two or more persons interested in the trust with the consent
of the Advocate-General65 now with the leave of the court; if it is not so instituted, if must
be dismissed. The applicability of the section is to be determined on the allegations made
in the plaint and irrespective of the written statement.66 But if any one of the three
conditions is absent, the suit is outside the scope of this section, and it may be instituted in
the ordinary manner.67 The bar enacted by this section would apply even if some of the
reliefs claimed fall within the section.68 The mere fact that a suit relates to a public
charitable or religious trust, or that it relates to property held on such trust is not sufficient
to bring it within the scope of this section.69 At the same time a suit which is clearly within
the scope of this section cannot be treated as one outside its scope, because in addition to
reliefs under this section, it claims reliefs not allowed by the section.70 The Punjab &
Haryana High Court, relying upon Saraswati v. Ramji Tripathi,71 held that every suit claiming
the relief specified in s 92 can not be brought under s 92 because s 92 envisages suits of a
special nature which pre-supposes the existence of a public trust of religious or charitable
character. Such a suit can proceed only on the allegation that there is a breach of such trust
or that the directions of the court is necessary for the administration of the trust.
Furthermore, the plaintiff must pray for anyone or more of the relief that are mentioned in
the section. If the allegation of breach of trust is not substantiated or if the plaintiff has not
made out a case for any direction by the court for proper administration of the trust, the
very foundation of the suit under s 92 would fall.72 The Court under s 92 is not competent
to appoint a Special Officer for framing schemes for management of Math property.73 In
the absence of any material placed before the court to show that there had been a creation
of endowmenteither religious or charitable, it can not be assumed that the property did not
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cease to be a property of creator, irrespective of the fact that the people at large do come
to the temple to offer prayers and to sing bhajans and come to stay in Dharmashala.74Section
52(1) of Bombay Public Trusts Act, 1950 makes s 92 and s 93 of the Code of Civil Procedure
inapplicable to public trust registered under the Act.75

33. Suits to enforce private rights. The suit contemplated by this section is a
representative suit.76 Suits brought, not to vindicate or establish the right of the public in
respect of a public trust, but to remedy an infringement of an individual right or to
vindicate a private right, do not fall within this section.77 The mere fact that a suit claims
relief specified in the section does not bring the suit under it. It must be brought by
individuals as representatives of the public for vindication of public rights. In deciding
whether a suit falls within this section, the court must have regard to the capacity in which
the plaintiffs are suing and the purpose for which it is brought. Where the right to the
office of a trustee is asserted or denied the suit is outside the section.78 Such suits are
instituted in the ordinary manner and not under this section. The following are instances of
suits of this character:
(i) A suit by a person claiming to be a co-trustee of a certain tiara and entitled as such
to a share with the defendant trustee in the management and profits thereof: Miya
Vali Ulla v. Sayad Bava.79 A suit by a person claiming to be a trustee against a rival
claimant for management of the institution as such trustee: Jamiat Dawat v. Mohamad
Sharif.80
(ii) A suit by the trustees of a fire temple for the vindication of the right of
management which was vested in and act ually being exercised by them at the date
of the obstruction by the defendants: Navroji v. Dastur Kharshedji.81
(iii) A suit between two individuals, each claiming certain rights as Mutawali over wakf
property: Manijan v. Khadem Hossein.82
(iv) A suit between two persons as to which of them is the lawful trustee of a charity:
Budree Das v. Chooni Lal.83 The High Court of Bombay has held that where the
defendant is in management of the trust property and the plaint also contains a
relief for accounts against him, the suit is one under this section; Narayan v.
Vasudeo.84 But this view conflicts with the Madras view.
(v) It has been held by the High Court of Allahabad that the right of a Mahommedan
to use a mosque is not a public but a private right. It is like the right to use a private
road; any one who has the right may maintain a suit in respect of it.85 To such a suit,
the provisions of this section do not apply. Thus, it has been held that any
Mahommedan entitled to frequent a mosque may, if property belonging to the
mosque is sold by the manager of the mosque for his private debts, maintain a suit
for a declaration that the property is, wakf property, and to set aside the sale and
evict the purchaser; Zafaryag Ali v. Baktawar Singh.86 Similarly, if land attached to a
mosque is encroached upon, any Mahommedan entitled to use the mosque may sue
to evict the trespasser. And if the mosque be in a dilapidated condition and a
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Mahommedan frequenting the mosque, or one looking after it, is desirous of

repairing it, but is obstructed by a third person, he may maintain a suit to establish
his right to repair the mosque (Jawahar v. Akbar Hussain).87 The contrary, however,
has been held by the High Court of Calcutta in Jan Ali v. Ram Nath.88 According to
these decisions, the right sought to be established in suits, such as the above, is not
a private but a public right, and it can only be enforced by a suit brought in
conformity with the provisions of this section. But in a later Calcutta case
(Mohiuddin v. Saviduddin),89 it was pointed out that the reasoning of the Allahabad
cases, showing that the right of worship of each worshipper in a Mahommedan
mosque or religious endowment was an independent right wholly irrespective of the
rights of the other worshippers, was correct. The view taken in the earlier Calcutta
decisions is, it is submitted, not correct,90 and it cannot be sustained since the
decision of the Privy Council in Abdur Rahim v. Mahomed Barkat Ali.91
(vi) A suit by a trustee against a co-trustee for accounts: Appanna v. Narasinga,1 a suit for
account against the trustee de son tort. Dharam Narain v. Suraj Narain.2 But a suit for
account against a trustee will fall within this section, even though the plaintiff also
claims to be a trustee and that is disputed, and he does not ask for a declaration of
his status as trustee: Madhavan Pillai Vanniaperumal v. Muthiah Pillai Sivasubramaniam.3
(vii) A suit by an idol as a juristic person against persons who interfere unlawfully
with the property of the idol or the income thereof. This was held in Darshan Lal v.
Shibji.4 When an alienation is made by the Shebait acting adversely to the interest of
the idol, a worshipper can file a suit, the reason being that the idol is in the position
of a minor and when the person managing its property puts it in jeopardy a
worshipper of such an idol is clothed with an ad hoc power of representation. This
was held in Bishwanath v. Radha Ballabhji .5
(viii) A suit for a declaration that the plaintiff is entitled to appoint Mutawallis: Rugghan
Prasad v. Dhanno.6
(ix) A suit to establish a right of hereditary management of a mosque: Kunji Meethyan v.
Kunjan Marackor.7
(x) A suit by a de facto trustee in the usual course of management for the protection of
the interest of a public trust: Vikrama Das v. Daulat Ram.8 But no declaration can be
granted in such a suit that he has the right to continue in management as de facto
trustee: Gopal v. Muhammad Jaffar.9

A person who has made substantial contributions for the upkeep of a temple has sufficient
interest to maintain, on behalf of the deity, a suit for possession of the temple and its
properties against the pujari or manager to save the temple properties from
mismanagement or misappropriation: Ramchand v. Janki Ballabhji.10

In a suit filed against a Public Trust, where it was projected as one for vindicating public
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rights, the Supreme Court held that the emphasis in the suit was on certain purely private
and personal disputes and as such the leave granted to file the suit was not legal.11

Dr. PASAYAT, J., speaking for the Bench in the above case observed as follows:

To put it differently, it is not every suit claiming reliefs specified in section 92 that can be brought under the section; but only the suits
which besides claiming any of the reliefs are brought by individuals as representatives of the public for vindication of public rights. As a
decisive factor the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for
which the suit was brought. The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under
section 92 by persons whose activities were not for protection of the interests of the public trusts.12

In a case from Tamil Nadu, where the trustees proposed modification in the original trust,
it was held by the High Court that consultation with the beneficiaries of the original deed
was necessary. Exclusion of the beneficiaries of the original trust by creating new trust
deed was not valid. But since the trust was a private one, it was held that s 92 was not
applicable.13

34. Suits for a declaration and for possession of trust property against third persons,
that is, strangers to the trust. Suits against strangers to the trust, that is, against
trespassers and against transferees from trustees, for a declaration that property in their
hands is trust property and for possession, are outside the scope of this section. The
reason is that the relief claimed is not one of those mentioned in cll (a)(h). Such suit must
be instituted in the ordinary manner and not under this section.14 This has been definitely
held by the Privy Council in Abdur Rahim v. Mahomed Barkat Ali15. The following are
instances of suits of this character:
(i) A suit for a declaration that property belongs to a wakf can be maintained by
Mahommedan interested in the wakf without the sanction of the Advocate- General:
Abdur Rahim v. Mahomed Barkat Ali.16 A suit by certain persons on behalf of all the
villagers for a declaration that the suit property belongs to a temple in that village,
that certain alienations thereof by the pujaris are void and not binding on the
institution, is maintainable apart from the provisions of this section: Subramania
Ayyar v. Maya Kone.17 Where the plaintiff filed a suit under s 92 on the allegations
that the defendant was a trustee of a public charity and had committed breach of
trust and both these allegations were denied and there was no case in the plaint that
the direction of court was necessary for the administration of trust, it was held by
the Supreme Court that when the charge of breach of trust failed, it was not open
to the plaintiffs to claim a mere declaration that the properties are trust properties
as that is not a relief falling within any of the clauses in the section. Mahant Prasad v.
Ishwarlal.18 Where, on the allegations in the plaint and the reliefs claimed therein, the
suit falls within s 92 the inclusion of a prayer for a declaration that certain funds are
trust property and that the defendants held them as trustees would not take it out of
the section: Abdul Razack Saheb v. Abdul Hameed Said.19 A suit for a declaration that
certain properties belong to the trust and for possession thereof from the alienee is
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outside this section and it does not make any difference that the trustee is a party to
the act ion, when no relief is sought against him, the prayer being only that the
properties be put in his possession: Ranchhoddas v. Mahalaxmi Vahuji.20
(ii) A suit by the disciples of a mutt for a declaration that the defendant was not the duly
appointed successor to the late head of the mutt, and that he was in possession
under a false claim of title, and for evicting the defendant from the mutt properties:
Strinivasa v. Strinivasa21 [here, the claim against the defendant is as against a
trespasser]. A suit for a declaration that the assumption of the office of trustee by
the defendant was invalid, and that he was not entitled to be a trustee, is outside this
section: Sundaralingam v. Nagalingam.22
(iii) A suit for a declaration that a certain piece of land of which it was alleged that the
defendants had taken wrongful possession was a public graveyard, and for the
eviction of the defendants from the land: Mudammad v. Kallu23 (here also the claim
against the defendants is as against trespassers.) Compare Latifunissa Bibi v. Nazirun
Bibi,24 where the suit was for a declaration that certain property was wakf property
and for recovery of possession thereof from a third party, and where the court held
that the suit ought to have been instituted in conformity with the provisions of this
section. This decision would appear to be no longer law.25
(iv) A suit to set aside an alienation of trust property alleged to have been wrongfully
made by the trustees, and for the recovery of property from the alienee: Kazi Hassan
v. Sagun.26 There, the defendants are transferees from trustees.
(v) A suit by the trustees of a temple against the manager and treasurer of the temple
for accounts and for a decree for what may be found due on taking such accounts:
Malhar v. Narasinha.27
(vi) A suit by two of the worshippers of a temple with the leave of court under O 1, r 8,
against the committee of management (not being trustees) and Archakas of the
temple for a declaration that a transfer made by the committee to the Archakas of
the right to collect and receive offerings made by the pilgrims is invalid:
Venkataramana v. Kasturiranga.28
(vii) A suit by the newly appointed trustees of an imambara for possession of the
Imambara against a former trustee who has been dismissed: Inayat v. Faiz
Muhammad.29

But in a case where the plaintiff not only asked for a declaration as against the defendant
that a temple was a public trust of a religious nature, but also alleged that the defendant
was under a contractual obligation to hold the profits of a shop in the temple premises for
the use of the temple and prayed for an account of the profitthe suit was one for directing
accounts against a constructive trustee Abdur Rahmans case did not apply and the sanction
of the Advocate-General was necessary.30 It has been held that though a stranger to a trust
is not a necessary nor a proper party to a suit under s 92, where the stranger receives
money or property from the trustee, knowing that it is a part of trust property and has
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been handed over to him in breach of the trust, he is a constructive trustee of the trust
property and a relief against him can be claimed under this section.31 But it has been held
that though no relief against third parties could be granted in a suit under this section,
there is no bar to their being impleaded as parties when that is allowed by the general law.32

35. Suits for removal of trustees for unlawful alienation of trust property and against
transferees from those trustees. A common type of suits under this section is a suit
against the trustee of a charity for his removal on the ground that he has unlawfully
alienated the trust property treating it as his private property, and for the appointment of a
new trustee in his place. It is clear that such a suit is within this section for the relief
claimed is one under cl (a) of this section, and the ground on which the relief is claimed is
a breach of trust in alienating the property. It is also clear that the court cannot remove the
trustee unless it finds that the property is trust property and that it has been wrongfully
alienated by the trustee. The question to be considered is whether the court has power, in
the absence of the alienee, to declare that the property is trust property and that the
alienation is unlawful. It has been held by the High Court of Madras that an alienee is not a
proper party to a suit under this section, and that if he is joined as a party, the suit against
him should be dismissed. But this, it has been held, does not preclude the court from
determining, in a suit against the trustee alone, whether the property is trust property, and
declaring, if it is so found, that it is trust property. But the transferee, not being a party to
the suit, is not bound by the declaration, and if a suit is subsequently brought against him
for possession of the property, it is open to him to contend that the property is not trust
property.33 A similar view has been taken by the High Court of Calcutta.34 On the other
hand, it has been held by the High Court of Allahabad that the alienee, though not a
necessary party to the suit35 is a proper party,36 and that if he is joined as a party, and the
court declares that the property is trust property, he will be bound by such declaration in a
subsequent suit for possession against him.37 In a later decision, the Madras High Court
has held that persons who deny that title of the trust and on that footing claim to be in
possession of property which is necessary to the proper discharging of that trust, are
proper parties to the suit.38 The High Court of Bombay has gone further and held that the
transferee is not only a proper but a necessary party,39 and that no such declaration can be
such as the above, a decree cannot be passed against the alienee directing him to deliver
possession of the property to the plaintiffs, though he is a party to the suit, as such relief is
neither specifically mentioned in the section nor implied in cl (h), and that the remedy of
the newly appointed trustee is to institute a separate suit for possession against him.40 The
proposition that the court has no power under this section to pass a decree against an
alienee directing him to deliver possession to the plaintiffs is in accordance with a ruling of
the Privy Council where it was held that a relief or a remedy against third persons, that is,
strangers to the trust, was not within the scope of this section.41 It is submitted that the
court also has no power under this section to make a declaration that the property in suit is
not trust property so as to bind the alienee, such a relief also being outside the scope of the
section. The Rangoon High Court, however, has gone further and holds that if in a suit
under s 92, a claim to relief against alienees who are strangers to the trust is added, there is
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a misjoinder both of parties and causes of action, and that unless the plaint is amended, the
suit cannot be entertained. This view was approved by the Calcutta High Court in Abdul
Majid v. Akthar.42 In such a suit, praying:
(i) for the removal of a trustee;
(ii) for the vesting of property in new trustees; and
(iii) for a declaration that a mortgage of the property by the trustee was invalid. The first
two reliefs were granted but the suit as against the mortgagee was dismissed.43
Where a property included in the schedule to the plaint, in a suit under this section,
had been alienated by the defendant, and he pleaded that it was not trust property,
and the alliance was not a party to the suit, it was held that the questionwhether that
property belonged to the trustcould not be gone into in the suit.44

36. Suits only for a declaration of trust. This section presupposes the existence of a trust
for the administration of which it is necessary to make provision. Hence, it does not apply
to a suit brought solely for the purpose of having a declaration of the court that certain
property is wakf, the fact of endowment being denied on the other side.45 Nor does this
section apply to a suit brought merely for a declaration that the plaintiffs are trustees of an
endowment.46 Even if the trust is proved to be a public trust, if facts are not established in
support of the reliefs set out in the section, no declaration can be given, for the very
foundation of the cause of act ion under this action does not arise.47 Where in
consequence of a bequest for education of Hindu boys and girls, a representative suit is
instituted on behalf of Hindu boys and girls for a declaration of trust in their favour, the
suit does not fall within this section.48

37. Suits for a declaration that the defendant is not properly appointed trustee and
for an injunction against him. See note above: cl (a): Removing any Trustee.

38. Courts competent to try suits under this section. A suit under this section must be
instituted either in the principal civil court of original jurisdiction or in any other court
empowered in that behalf by the state government. But this does not empower the state
government to direct the transfer of a particular suit pending in a District Court to a
particular judge. The authority must be a general one to try suits under this section.49

The expression principal civil court of original jurisdiction in this section does not include
the court of an additional District Judge appointed under s 8 of the Civil Courts Act XII of
188750 unless the District Judge has under sub-s (2) of that section, assigned to him the
functions of a District Judge relating to all suits cognisable by the District Judge.51 If the
suit falls under this section but is filed in the munsifs court, the plaint must be returned for
presentation to the District Court.52

Where a suit is brought against an executor in the court of a subordinate judge for the
administration of the testators estate, the mere fact, that the will contains directions for
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applying portions of the estate to charitable purposes, does not bring the suit within this
section. The subordinate judge has jurisdiction to entertain such a suit, but if any questions
relating to charitable bequests arise before him and a scheme has to be framed under this
section, he should hold the amount appropriated for charities in the possession of a
receiver until the Advocate-General or the collector obtains the directions of the District
Court.53

Where a suit under this section was instituted in the subordinate court, Alleppey, which
was not competent to entertain it, and the District Judge, who had jurisdiction to hear it,
passed an Order under S. 24 of the Code withdrawing it to his own file, it was held that the
order of withdrawal and the subsequent proceedings consequent thereon were all null and
void.54 Likewise it is not competent to a District Judge to transfer a suit under this section
to a subordinate court.55

39. Where some of the reliefs are outside the scope of the section. When some of the
reliefs claimed are outside the scope of the section, the court is not justified in returning
the plaint. It should require the plaintiff to amend his plaint by confining himself to reliefs
within this section, or it might wait till it came to pronounce judgment and dismiss the suit
as to reliefs without the section.56 So in a suit by worshippers for the appointment of
trustees and for the eviction of trespassers, the court may appoint trustees without passing
a decree in eviction.57 Conversely, when a suit is filed for obtaining reliefs to which the
plaintiff is entitled under the general law, he does not become disentitled to them by
claiming in addition reliefs which fall within this section.58 But worshippers cannot sue
under O 1, r 8, to recover the property unless they are supported by the trustees. They
should sue to remove the trustees first and then let the new trustees sue in eviction.59
When a trustee dies, the party entitled to succeed to the management may sue to establish
his right. The section does not apply to such a suit and if objection is raised to his
appointment on the ground of misconduct, the objector should be referred to a suit under
s 92.60

40. Sub-section (2): This section is mandatory. The legislature has, by enacting this
section, constituted a special tribunal for the trial of a class of suits which it has removed
from the cognizance of the ordinary courts. Those are suits for any of the reliefs specified
in sub-s (1) in cases where there is an alleged breach of any express or constructive trust
created for public purposes of a charitable or religious nature, or where the direction of the
court is deemed necessary for the administration of any such trust. This class of suits can
only be instituted in the special courts mentioned in this section, and they can only be
brought either by the Advocate-General or by two or more persons having an interest in
the trust and having obtained the leave of the court. This is enacted by sub-s (2) of the
present section. Under the corresponding s 539 of the Codes of 1877 and 1882, it was
doubtful whether every suit of the character described above was to be instituted in the
manner aforesaid. Sub-section (2) makes it clear that every such suit must be so instituted;
it enacts that no suit claiming any of the reliefs specified in sub-s (1) shall be instituted
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without the consent of the Advocate-General,61 now leave of the court. But sub-s (2) must
be read with sub-s (1). Reading sub-s (2) with sub-s (1) it follows that it is not every suit
claiming any of the reliefs specified in sub-s (1) that should be brought with the leave of
the court, but those suits only which besides claiming any of those reliefs are brought by
individuals as representatives of the general public. Accordingly, a Full Bench of the
Madras High Court has held that a suit by a trustee of a public religious trust against a co-
trustee, for accounts, does not fall within this section, though the relief claimed is the one
specified in sub-s (1), cl (d). Such a suit is not a representative suit.The relief is sought not
in the larger interest of the public but merely for the purpose of vindicating the private
rights of one of the trustees and of enabling him to discharge the duties and liabilities
which are imposed upon him by the trust.62 Another full bench of the same court has held,
that the nature of the relief claimed in the suit itself would not bring the suit within s 92.
The capacity in which the plaintiff was suing and the purpose for which the suit has been
brought are material factors. Thus the section does not apply where the general trustees of
a public temple sue the trustees of certain offerings given to the deity for accounts,63 for, in
the suit, the right of the public is not sought to be enforced but only the personal rights of
the trustees qua trustees. When a trustee sued his two co-trustees for the settlement of the
scheme of management by rotation, the court said that if the suit was brought on the basis
of an agreement between the trustees or on the terms of the will of the founder of the
trust, it would be a suit to assert a private right and s 92 would not apply; but as there was
no such agreement or will, the learned judge held that the suit was a representative suit and
that s 92 did apply.64

The doubt referred to in the preceeding paragraph arose in the following way. The Code of
1859 did not contain any special provisions for the institution of suits relating to public
charities. Such provisions were introduced for the first time by s 539 of the Code of 1877.
They were reproduced in s 539 of the Code of 1882, and they now find a place in sub-s (1)
of the present section. But neither the Code of 1877 nor the Code of 1882 contained any
provision corresponding to sub-s (2). Before the enactment of the Code of 1877 suits
relating to public charitable or religious trusts could be instituted in the ordinary courts by
certain persons as plaintiffs. Thus
(i) persons appointed supervisors over trustees could sue in any ordinary court
competent to hear the suit for the removal of the trustees for malversation and to
obtain the appointment in their place of other fit and proper persons;65 similarly
(ii) one or more of the members of a defined class of the general public (such as the
Satchasi community of Chatral) could sue on behalf of the whole class, with the leave
of the court under s 30 (now O 1, r 81), in any ordinary court competent to hear the
suit, to obtain a declaration of their right to take part in the management of the
worship of a goddess.66

It is obvious that the above suits fall within the purview of the present section. They also
came within the terms of s 539 of the earlier Codes. In the absence of any provision in s
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539 similar to that contained in sub-s (2), the question arose whether these suits were to be
instituted in the special courts mentioned in s 539 and by the Advocate-General as
plaintiff, or whether they could be instituted as before in ordinary courts and by persons
who could have sued if s 539 had not been enacted. The High Court of Bombay held that
s 539 was mandatory, in other words that every suit of the character mentioned in that
section must be brought in accordance with its provisions, and not otherwise. Therefore,
the suits referred to above could not be brought by the supervisors as plaintiffs in one case
and by the members of the community in the other, but they had to be instituted either by
the Advocate-General or by two or more persons interested in the trust after obtaining the
sanction of the Advocate-General; and further, these suits could only be brought in the
special courts indicated in that section, namely the High Court or the District Court, as the
case might be.67 On the other hand, the other High Courts held that s 539 was permissive,
and that it did not take away the right of suit which existed prior to and independently of
it. According to the latter view, suits of the character mentioned above could,
notwithstanding the enactment of s 539, be brought as before by the above-named parties
as plaintiffs in any court competent to entertain those suits, and it was not obligatory to
institute them in accordance with the provisions of s 539.68 Sub-s (2) gives effect to the
Bombay decisions and supersedes the decisions of the other High Courts. It provides, in
distinct terms, that no suit claiming any of the reliefs specified in sub-s (1) shall be
instituted except in conformity with the provisions of that sub-section. At the same time, it
declares that the special provisions of the Religious Endowments Act 20 of 1863 for the
institution of suits governed by that Act are not affected by the provisions of this section.
The provisions of that Act and their bearing on the present section are discussed in the
next paragraph.

41. Trust and Endowmentdistinction. The trust and endowment are different concepts
altogether. Trust is an obligation annexed to ownership. The word trust is defined in
Underhills Law of Trust and Trustees to mean equitable obligation binding a person to
deal with property for which he has control for the benefit of persons for whom he may
himself be one. In order to understand the meaning of the expression private religious or
charitable endowment used in the saving clause of s 1 of the Indian Trusts Act, 1882, we may
examine the categories excluded from the provisions of Indian Trusts Act, 1882 through the
saving clause. First category is Mohammedan Law as to wakf. The word trust as such is not
used when legislature used the expression Mohammedan law as to wakf. Wakf means the
permanent dedication by a person professing the Muslim faith of any property for any
purpose recognised by the Mussalman law as religious, pious or charitable. Wakf is a trust
for the purpose of s 92 of the Code of Civil Procedure. Though the expression trust as such is
not used, while dealing with Mohammedan law as to wakf the concept of trust is inbuilt
therein. Second category of cases excluded by the saving clause is mutual relations of an
undivided family as determined by customary or personal law. The word trust is not
employed by the legislature but the element of trust is embedded in the relationship
between the members of an undivided family. Joint and undivided family is normal
condition of Indian society. Senior member of the joint undivided family is entitled to
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manage the family properties including even charitable properties and is presumed to be
the manager. Manager as the head of the joint family has control over the income and
expenditure and the decision is that of a trustee. Though the word trust or trustee as such
is not used in the saving clause when the expression mutual relations of undivided family
as determined by customary or personal law is used the element of trust is inbuilt in that
category of cases. Next category of cases excluded from the Indian Trusts Act, 1882 is
public or private religious or charitable endowments. When the legislature used the
expression public or private religious charitable endowment, the word trust as such is not
used. But the words religious or charitable are to be noted. The expression charity has not
been defined in the Indian Trusts Act, 1882. Charity in its legal sense comprises four
principal divisions; trusts for relief or poverty; trusts for the advancement of education,
trusts for the advancement of religion and trusts for other purposes beneficial to the
community. The element of trust is embedded in the word charity and various enactments
like the Charitable Endowment Act, 1890, the Charitable and Religious Trust Act, 1920, the
Religious Endowment Act, 1863, Travancore Cochin Literary, Scientific and Charitable
Societies Registration Act, 1955 and the like. Besides the above legislations, s 18 of the Transfer
of Property Act, 1882 says that restrictions in ss 14, 16 and 17 thereof shall not apply in the
case of transfer of property for the benefit of public in the advancement of religion.
Therefore the words private religious endowment used in the saving clause of the Indian
Trusts Act, 1882 have the imprint of a trust without which private religious endowment
would not fall in the categories of cases excluded through the saving clause.

The word endowment defined in the Legal Thesaurus to mean aid, allotment, allowance,
protection, assistance, award, benefit, bestowment, contribution, presentation and the like.
Endowment is also defined in Aiyars Judicial Dictionary to mean any property kept or money
invested with the intention of any particular service or particular charity connected
therewith and includes temples and any offerings made to the idols therein. Endowment is
defined in Blacks Law Dictionary, seventh edition, to mean A gift of money or property to
an institution (such as a University) for a specific purpose, especially one in which the
principal is kept intact indefinitely and only the interest income from that principal is used.
It is only a dedication of properties to a public or private religious trust. The reasoning that
endowment is the genus and trust is specie, is unsound. The Supreme Court in a case69
held that endowment is dedication of property for purpose of religion or charity having
both the subject and object certain and capable of assessment. Therefore, the expression
private religious endowment used in the saving clause has got the imprint of a trust, and
hence, a private religious trust and the properties endowed, are dedicated to Private
Religious Trust. If it is a private religious trust, then it falls outside the purview of the
Indian Trusts Act.70

42. Save as provided by the Religious Endowments Act, 1863 etc. After the downfall
of the Moghul Empire in India, it was discovered that the income of many endowments
granted in land by the presiding governments of this country and by individuals for the
support of mosques, temples, colleges and for other pious and beneficial purposes was
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misappropriated by persons managing the endowments. It was, therefore, deemed

expedient that the British government should take charge of the endowments, and for that
purpose and the purpose also of providing for the maintenances of bridges, serais, uttaras
and other buildings erected for the use of the public Regulation 19 of 1810 was passed,
whereby the general superintendence of all the religious and charitable endowments
referred to above was vested in the board of revenue. That regulation applied to
endowments in Bengal. A similar regulation, Regulation 7 of 1817, was subsequently
passed to provide for endowments in the Madras Presidency.71 Several years after the
passing of these regulations, it was thought that the connection of a Christian government
with the religious establishment of Hindus and Mahommedan was inexpedient, and a
report was, therefore, called for by the Government of India in the year 1841 from the
collectors of all districts with a view to divest themselves of the management of religious
endowments, and transfer the management to properly qualified individuals. As a result,
Act 20 of 1863 was passed, whereby such of the provisions of the abovementioned
regulations as related to religious endowments were repealed, and provision was made for
the transfer of all such endowments, in certain cases to trustees, and in others to
committees (ss 38). But the duty of superintending charitable endowments imposed on the
board of revenue by the old regulations is still retained, and, in fact, express care is taken in
the Act to declare that this duty as to charitable endowments is not intended to be affected
or interfered with (ss 21, 23).

The Religious Endowments Act applies only to public religious endowments, as did the old
Regulations. It does not apply to private religious endowments. Section 14 of the Act
provides that any person interested in any mosque, temple or religious establishment may
sue the trustees or members of a committee for any misfeasance, breach of trust, or
neglect of duty committed by them in respect of the trust vested in them, and the court
may, in such suit, direct the specific performance of any act by them, and may decree
damages and costs against them, and may also direct the removal of any of the trustees or
any members of a committee. A suit which does not charge the trustees or members of a
committee with misfeasance, breach of trust, or neglect of duty, does not fall under that
section.72Section 18 provides that no suit under the Act shall be instituted without the
leave of the court.

The Act is in force in all states except the State of Bombay where it is in force in North
Canara only. But it does not apply to presidency-towns; so that a suit instituted in a High
Court in the exercise of its ordinary original jurisdiction inherited from the Supreme Court
charging neglect of duty on the part of a temple trustee does not require the leave of the
court under s 18 of the Act.73

After the passing of the regulations above referred to, the board of revenue took over the
management of some endowments, but in the large majority of cases, they did not take
charge of endowments created by private individuals. The operation of the Act, however,
is not confined in such endowments as had actually been taken under the management of
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the board of revenue under the old regulations. The Act applies to every public religious
endowment to which the provisions of the old regulations applied, that is to say, to every
public religious endowment created by the preceding governments of this country and by
individuals, whether the management of the endowments was taken over by the Board of
Revenue or not.74

Reading s 92 of the Code and the Religious Endowments Act together, we have the following
result:
(i) No suit in respect of charitable endowments of a public nature, claiming any of the
reliefs specified in sub-s (1) of s 92, can be brought except in conformity with the
provisions of that sub-section.
(ii) In the case of religious endowments of a public nature to which the Religious
Endowments Act applies, a suit charging the trustee, manager, superintendent, or a
member of a committee of a mosque, temple, or religious establishment, with
misfeasance, breach of trust or neglect of duty, may be brought under the
provisions of that Act with the leave of the principal civil court of original civil
jurisdiction in the district in which the mosque, temple, or religious establishment is
situated as provided by S. 18 of the said Act, or it may be brought under the
provisions of the Code with the consent of the collector as provided by s 92 of the
Code.75
(iii) No suit in respect of religious endowments of a public nature to which the Religious
Endowments Act does not apply, claiming any of the reliefs specified in sub-s (1) of s
92, can be brought except in conformity with the provisions of that section.

43. The Madras Hindu Religious and Charitable Endowments Act, (Act 22 of 1959).
There has been successive legislation by the Madras Legislature on the topic of
administration of religious endowments, whereby the jurisdiction of civil courts under this
section has been taken away and vested in authorities constituted under the respective Act
s. Firstly, there was the Hindu Religious Endowment Act 1 of 1925. Its validity was
questioned on the ground that there was a fundamental defect in the legislative process,
which rendered it a nullity. To remove all doubts, a new law, the Madras Hindu Religious
Endowment Act 2 of 1927 was enacted. This Act repeated the Religious Endowments Act,
1863, and Madras Regulation 1 of 1817 so far as they applied to the more important Hindu
public religious endowments in the State of Madras except the presidency-town. It made
provisions for the better administration of such endowments by temple committee and by
a board of commissioners. Section 73 of the Act provides that ss 92 and 93 and O 1, r 8 of
the Civil Procedure Code shall not apply to any suit claiming relief in respect of the
administration or management of such a religious endowment. Such suits can only be
brought by the board or temple committee or by an interested person with the consent of
the board or committee. If an endowment is partly secular and partly religious the board is
empowered to make an allocation and declare what part is secular and what part is
religious. After such allocation, the religious portion is subject to the provisions of the Act.
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But if such allocation has not been made, a suit for removing a trustee of an endowment
partly secular and partly religious is within s 92.76 Proceedings under s 142 of the Sikh
Gurdwaras Act are analogous to those under this section.77 (Reference may be made to
Balbir Singh v. Sikh Gurdwaras, Judicial Commission).78

This Act was repealed by the Hindu Religious and Charitable Endowments Act 19 of 1951,
which made substantial changes in the previous enactment. Section 3 extended the
operation of the Act to charitable endowments which might be notified. The supervision
and administration of religious endowments were vested in a department of the
government and a hierarchy of officers was constituted for the purpose, with a
commissioner at its head. The validity of this law was questioned, and the Supreme Court
held that some of its provisions infringed the fundamental rights guaranteed by the
Constitution and were bad.79 With a view to remove these defects, the Madras Legislature
introduced certain amendments in 1954, but the Madras High Court held that the
amended ss 30 and 31 suffered from the same defects as the original enactment.80 In 1959,
the Legislature repealed the Act of 1951 and enacted the Madras Hindu Religious and
Charitable Endowments Act 22 of 1959, which is the law, in force now. Its scope is similar to
that of the repealed Act. It applies to charitable as well as religious endowments. Their
supervision and administration are vested in a hierarchy of government officials, consisting
of a commissioner, deputy commissioner, assistant commissioners and area committees.
Sections 92 and 93 of the Code have no application to endowments failing within the Act.
In Ramanasramam v. Hindu Religious and Charitable Endowments Commr,81 the question was
whether the Matribhuteswar shrine, which was an adjunct of the Ramanasramam was a temple
falling within the purview of Act 19 of 1951. It was held that it was a Samadhi, not a
temple, and that further Ramanasramam was a public religious trust of cosmopolitan
character and not a Hindu temple as defined in the Act and that consequently, a scheme
could be framed for its administration under s 92 of the Code.

If a corresponding legislative provision is made in a special law in respect of the reliefs

prayed for in suit filed under s 92 of the Code of Civil Procedure in case of alleged breach of
trust created for public purposes of a charitable or religious nature, the civil suit would be
barred and the remedy provided in the special law has to be resorted. Therefore, where to
secure such relief, viz for removal of trustee and appointment of new trustees, provisions
were made in the Hyderabad Endowment Regulations, civil suit under s 92 of the Code of
Civil Procedure would not be maintainable in view of bar contained in s 92 (2) of the Code of
Civil Procedure.82 A suit for framing a scheme for a composite endowment, that is, an
endowment which is secular as well as religious, can be filed under s 92 of the Code and is
not barred by ss 5 and 180 of Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959.83

In view of the provisions of s 5 of Tamil Nadu Hindu Religious and Charitable Endowments
Act, 1959, s s 92 and 93 of the Code of Civil Procedure have ceased to apply to Hindu
Religious and Charitable Endowments in the concerned state.84 The court having framed a
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scheme under s92 of the Code of Civil Procedure could not exercise jurisdiction and authority
for modification or cancellation of the scheme after the Act, 1951 came into force as s 92
of the Code of Civil Procedure ceased to apply to such schemes from the date of
commencement of the Act. This order was confirmed by the Honble Supreme Court in
(1998 ) 6 SCC 643 [LNIND 1998 SC 837].85

Where, the application for leave to file suit under s 92 of the Code of Civil Procedure was filed
and the trustees obtained declaration that the trust is a religious denomination, an
injunction restraining interference with its management under TN Hindu Religious and
Charitable Endowments Act (22 of 1959) was passed. Subsequently leave under s 92 of the Code
of Civil Procedure was sought by appellants to file suit for modification of scheme of
administration. It was held that trustees cannot oppose grant of leave on ground that
appellant has remedy under T N Religious and Charitable Endowments Act (22 of 1959), they
are bound by judgment earlier passed and which has become final. They cannot be allowed
to approbate and reprobate in two suits in which subject-matters and issue of jurisdiction
of civil court involved are same.86

44. This section and Bombay Public Trusts Act (29 of 1950). After reading the object
of the Bombay Public Trusts Act, 1950 it can be appropriately said the Act seeks to regulate
and make better provision for administration of public religious and charitable trusts. Such
trusts cater to things of public interest, ie, things which concern large sections of public.
Unless such trusts are properly administered public interest will suffer. Therefore, matters
affecting administration of such trusts are covered under s 50 of the Bombay Public Trusts
Act, 1950. This situation is somewhat similar to suits under s 92 of the Code of Civil Procedure.
These suits in representative capacity pertain to matters of public interest. In contrast the
suit which has given rise to the present appeal is a suit to establish an individual right. The
plaintiffs claim that they are hereditary archaks of the temple since time immemorial and
are entitled to exercise this right which cannot be taken away from them. No public
interest is involved. Public is not concerned whether A acts as an archak or B acts. Such a
suit therefore, cannot be covered by s 50 of the Act. Law is settled on this aspect as per
various judgments of Supreme Court.87

45. This section and HP Hindu Religious Institutions and Charitable Endowments
Act (18 of 1984). A premises constructed by an ex-ruler and used for 125 years as
dharmashala was claimed to be a public trust. Admittedly no instrument of trust was
created. The material adduced by the parties showed that the shops situated in the
premises were let out to the other people. People could come and stay in the dharmashala
but for stay of more than three days, permission of owner was necessary. Rent received
from the shops were being used by the owners for their own purpose. Dharmashala was
being managed/maintained from the personal funds of the owner. The management and
control of the dharmashala was all along with the owners. A school was opened in the
dharmashala. A chowkidar was appointed by the owner to look after the dharmashala and his
salary used to be paid by the owner from his own pocket. Dharmashala could be used for
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marriage purpose but only with the permission of the owners. The first floor rooms could
be used only by the officers or by others with the permission of the owner. The
dharmashala was ordinarily being used by the pilgrims only during the fair. The public never
contributed anything for maintenance of the dharmashala. No member of public had any
say as regards management of the dharmashala and had no legal right to use the same. No
member of the public ever participated in the management of the dharmashala. No manager
had ever been appointed to look after and manage the property. The dharmashala was not
registered under the Sarais Act, 1867. There was no evidence to show that the owners acted
as shabaits or trustees. In the revenue records the ownership of the property stands in the
name of the owner. The right of the general public is not mentioned therein. On these
facts it was held, mere long use of a property as dharmashala by itself would not lead to an
inference that dedication of the property by the owners in favour of the public was
complete and absolute. Had such dedication been made, the same was expected to be
recorded in the revenue records. Complete control is retained by the owner, be it by
appointment of a chowkidar, appropriation of rents, or maintenance thereof from his
personal funds. Dedication cannot be said to be complete. Premises is not public trust.88

46.Sections 92,93 and Wakf Act (43 of 1995). Where scheme was framed by court in
regard to appointment of Mutawalli in a suit under s s 92, 93 of the Code of Civil Procedure, as
the founder of mosque had not framed any scheme, the scheme would continue to be
operative in respect of the mosque even after coming into force of 1954 Act. In such a
case, even if the Explanation added to sub-s (1) of s 15 and s 69 of 1984 is to be ignored, it
is evident from the proviso to sub-s (1) of s 15 that exercise of the power by the board was
to be in conformity with the directions of the wakf and usage and custom of the concerned
wakf. Since the wakf did not provide for any mode of administration or appointment of
trustees, the devotees approached the court and got a scheme framed. There is nothing in
that section which excluded the application of the scheme. Further, the scheme, which was
framed in the year 1915 and which was strictly followed by the devotees can be said to
have given rise to usage and established the custom. Further, the power of the board to
appoint Mutawalli is only where there is no one to be appointed under the terms of the
deed of the wakf or where the right of any person to act as Mutawalli is disputed. When the
method is prescribed under a scheme, the same can be equated to the terms of a deed. At
any rate, as long as it is in operation, and proceedings are initiated thereunder, the right of
any one to act as Mutawalli, till appointed by the court, has to be treated as disputed.
Moreover, even after the 1954 Act came to be enacted, s s 92 and 93 of the Code of Civil
Procedure continued to be available for the aggrieved persons to get schemes framed in
relation to religious institutions including wakfs. Similarly, though separate machinery is
provided for adjudication of disputes, s s 92 and 93 of the Code of Civil Procedure, for the
repeal of which an abortive attempt was made in 1954 Act, are not repealed under this
Act.89

47. This section and the Wakf Act 29 of 1954. It has been held that s 55 (1) of the Wakf
Act, 1954, dispenses with the necessity for sanction under this section only when the board
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constituted under the Act institutes the suit, and that accordingly a person or authority
other than the board can apply for sanction of the District Court under this section.90 The
provision of ss 55, 57 (1) and (3) and 59 of Muslim Wakfs Act, 1954 make it clear that a
suit under s 92 of the Code of Civil Procedure instituted prior to the coming into force of the
Wakf Act does not abate on the coming into force of the Act. On the other hand, the
court is required to issue notice of such a suit to the board and in the absence of a notice it
would be open to the board to have the decree declared void within one month of boards
knowledge of the decree.91

The civil suit was not proved to have been filed with the sanction of the Advocate-
General, it therefore, follows that by no stretch of imagination the said civil suit can be
considered as a scheme suit or a suit providing for any of the reliefs mentioned in s 92 of the
Code of Civil Procedure.1

48. Death of a plaintiff pending suit. It has been held by the High Court of Allahabad
that where a suit is brought by two persons under this section, and one of them dies
pending the suit, the suit abates unless some other person is brought on the record in place
of the deceased. Such person must be one who has an interest in the trust, and he must
have obtained the consent of the Advocate-General as required by this section.2 On the
other hand, the High Court of Madras has held that a suit brought under this section being
a representative suit, no question of abatement can arise, and the court has power under O
1, r 10 (2), to add other persons interested in the trust as parties not because they are the
legal representatives of the deceased plaintiff, but because they had become parties to the
representatives suit by the very fact of its having been instituted on behalf of all persons
interested in the trust, and that the consent of the Advocate-General to such addition is
not necessary.3 The Madras decisions have been followed in Lahore4 and Rangoon.5 That
is also the view taken by the High Court of Travancore Cochin.6 The Allahabad decision is
in effect overruled, for the judicial committee have held that when one of two plaintiffs
dies the suit does not abate as the suit under this section is a representative suit,7 and has
been in fact held overruled in a later decision.8 The Bombay High Court has held that if
the previous parties are dead or colluding with the defendant, other persons interested may
apply to the court to be brought on the record under O 1, r 10, in order to apply for an
amendment of the scheme.9

49. Death of defendant-trustee pending suit. Where a suit is brought under this section
against a trustee not only for his removal but for framing a scheme, and the scheme is one
of the main reliefs sought, the suit does not abate on the death of the trustee, and his
successor in office may be brought on the record as a party defendant.10 If a suit is
properly instituted by several plaintiffs under s 92, there is no illegality in permitting one of
the plaintiffs to withdraw, where the plaintiff is to be transposed as defendant.11 Consent
cannot be granted unless a public trust exists. Plaintiff cannot claim reliefs not mentioned
in the Advocate Generals consent (now, leave of the court).12 A consent under s 92 cannot
be granted unless a public trust exists. Section 50 of Bombay Public Trusts Act, 1950 is not
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in pari materia with s 92 of the Code of Civil Procedure.13 The suit, of course, would abate, if it
was solely for the removal of the trustee.

50. Specific Relief Act, 1963, Section 34. Section 34 of the Specific Relief Act 47 of 1963,
corresponding to s 42 of the Specific Relief Act, 1877, which it repeals, provides in effect that
where a suit is brought for a declaratory decree and the plaintiff is able to seek further
relief than a mere declaration but omits to do so, the suit should be dismissed. Where a
suit falls within s 92, the plaintiffs cannot evade the requirements of the Code by framing
the suit as one under s 42 of the Specific Relief Act, 1877,14 or s 34 of the Specific Relief Act, 1963.
At the same time where the suit is one maintainable under s 92, and the plaintiff seeks any
of the reliefs specified in the section, neither s 42 of the Specific Relief Act, 1877, nor s 34 of the
Specific Relief Act, 1963, would apply. Thus, if a suit is brought under this section, for a
declaration that the defendants are not the lawful trustees and for the appointment of new
trustees, the suit will not be dismissed because consequential relief such as delivery of the
trust property to the new trustee is not claimed.15

51. Dismissal of suit by trustees no bar to suit by Advocate-General. The fact that de
jure managers and trustees of a public charity have been held in a previous suit to have lost
their right by limitation to oust de facto trustees, does not confer on the latter immunity
from suit on the part of the Advocate-General under this section.16

52. Arbitration. Where the suit under this section is for the removal of the trustee and for
consequential reliefs the court is not relieved of its duty to come to a finding regarding
removal of the trustee. Only after coming to a finding on that point can the judge take the
help of arbitrators in the matter of the scheme or appointment of trustees.17 But an
application to refer the matters in suit to arbitration or to file an award is not maintainable
as the object of the section is to safeguard the rights of the public, who are the
beneficiaries and that is entrusted to the decision of the court.18

53. Limitation: Accounts against trustee de son tort. A suit for accounts under this
section against a trustee de son tort is governed not by s 10 of the Limitation Act, 1963 but by
Art. 113 equivalent to Art. 120 of the Limitation Act, 1908.19

54. Relators cannot appeal in their own right. Where a suit instituted under this section
by the Advocate-General at the instance of relators is dismissed, and the Advocate-General
does not think fit to appeal, the relators are not competent to file an appeal on their own
account against the decree dismissing the suit.20 The reason is that relators are not parties
to the suit.21

However, where an application filed by a Trust under Section 92(1) (f) of the Code for
selling property of the Math was allowed by the District Judge, it was held by the Supreme
Court that a person in charge of another Math cannot be said to have no locus standi to file
appeal against the said order granting permission to sell.22
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Sinha, J., speaking for the Bench of the Supreme Court, observed as follows:

In a case of this nature judiciary exercise the jurisdiction of parens patriae and, thus, when an objection is filed for grant of sanction in
terms of section 92(1) (f) of the Code, the same should receive serious consideration. The High Court thus may not be entirely correct
in opining that the appellant had no locus standi to maintain an appeal. It is true that the appellant is said to be incharge of a Math situated
at Varanasi. However, it is contended that he really stays at Mirzapur. According to the respondents, he has nothing to do with the
Math in question. But, that is to say, no person being a third party to the application, would not be a person aggrieved, in case of this
nature cannot be sustained, if the appellant establishes that he is otherwise interested in the welfare of the Trust.23

55. Sub-section (3): doctrine of Cy-pres . Sub-section (3) is new and has been inserted
by the Amendment Act, 1976. But even before its insertion when the section did not
expressly empower the courts to apply the Cy-pres doctrine the courts did have under the
law as to public trusts the power to apply it.24Section 92(3) of the Code of Civil Procedure which
underwent an amendment in the year 1976, empowers the court to alter the original
purpose of an express or constructive trust created for public purposes of a charitable or
religious nature and allow the property or income of such trust or any portion thereof to
be applied Cy-pres in one or more of the circumstances laid down therein. It cannot be said
that any of the original purposes of the trust, either in whole or in part had been fulfilled
or remains partly fulfilled or cannot be carried out at all or cannot be carried out according
to the directions given in the instruments creating the trust. Section 92(3) of the Code of Civil
Procedure only empowers the use of the property of the trust for religious object in Cy-pres
when the property is otherwise not capable of being used for purposes for which the trust
has been created. The Doctrine of Cy-pres would only apply where a charitable bequest fails
or is incapable of being fulfilled in accordance with the spirit or when directions of the
founder cannot be carried out for the purpose and the spirit for which the trust was
created. The doctrine applies in India only to Wills and not to deeds or settlement or
transfers inter-vivos. The principle upon which the doctrine is founded, namely, the giving
effect to the intention of the testator as far as possible, cannot apply to deeds. Literally,
expression Cy-pres means approximation. The courts have acted on the principle that where
a gift is made to charity and that charity failed for any reason, the object of the donor or
testator should not be defeated, but the property endowed should be applied to another
object approximating as clearly as possible to the objects which the testator had in view.
This was the fundamental basis of the Cy-pres rule.25 This was done where the donor or the
testator had expressed a general charitable intention and there was surplus after the fund
had been applied for the particular purpose expressed by him. In the absence of such a
general intention the doctrine of Cy-pres was, however, held not to apply and such surplus
was treated as having been undisposed of. The court, of course, declined to apply the
doctrine where the testator had expressed a contrary intention.26 Certain land, along with a
dharmashala thereon, was dedicated for the benefit of the public. The subsequent
mutation entry in the revenue record showed that the land belonged to the dharmashala. On
compulsory acquisition of land along with the dharmashala, the amount of compensation
was to be applied for another purpose of the charity. It could be done by applying the
doctrine of Cy-pres and by framing a scheme.27
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Without waiting for a revision of the law relating to public trusts of a religious or charitable
nature, the legislature has provided, by the new sub-section, wide powers to alter the
original purposes of such trusts in the circumstances set out in cll (a)(c). But using such
vague terms as the spirit of the trust the legislature has possibly given scope for fresh
disputes and consequent litigations. Sub-cll (i), (ii) and (iv) of cl (e) in particular are likely
also to bring about the same result.

The court has no jurisdiction to apply the Cy-pres doctrine extra territorium.28

56. Appeal. An order refusing to join persons as defendants in a suit under this section
has been held to be a judgment within the meaning of cl 15 of the Letters Patent and
therefore appealable.29 But where orders are passed merely for carrying out a scheme, they
are orders in execution. Decisions that such orders were appealable under s 4730 are no
longer good law in view of the change made in the definition of decree in s 2 (2). The
Bombay High Court even earlier had held that such orders are not open to appeal.31
Although cl (ffa) of s 104 (1) of the Code provides that an appeal shall lie against the
refusal of grant of leave, that can not lead to the conclusion that it is obligatory on the part
of court to give notice to the proposed defendants before granting leave because an appeal
lies only against the refusal of leave and not against the grant of leave.32 An order of the
court granting permission to file suit against trust under s 92 is an administrative order and
not a judicial one. Such an order is not revisable under s 115 of the Code of Civil Procedure.33

57. Suit in forma pauperis. It has been held that a suit under this section can be
instituted in forma pauperis.34

58. Constitutionality of the Section. The section is not repugnant to Art. 14 of the
Constitution.35

36 S. 93. Exercise of powers of Advocate-General outside Presidency-towns.

The powers conferred by Sections 91 and 92 on the Advocate-General may, outside the
Presidency-towns, be, with the previous sanction of the 37[State Government], exercised
also by the Collector or by such officer as the 37[State Government] may appoint in this
behalf.

1. Previous sanction of the State Government. The Privy Council have held, under the
section as it then stood, that the previous sanction of the local government would be
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necessary whether the suit is instituted by the collector, or by an officer appointed by the
local government or whether the suit is instituted by two or more persons with the consent
in writing of such collector or officer.38 The effect of this decision is that the collector or
other officer appointed must, in every case, obtain the sanction of the local government
(now State Government) before instituting a suit or giving his consent to the institution of
a suit.39 The previous practice of local governments had been to give previous sanction
generally and not in respect of each particular case and, therefore, the Public Suits
Validation Act, 1932 (11 of 1932) was passed to validate pending suits filed under the
previous practice. The Act also provides for the restoration of suits and appeals dismissed
after 30 November 1931 (the date of the Privy Council decision) for want of sanction of
the local government, on application made within six months of the commencement of the
Act, ie, 8 April 1932. In the case of suits already filed under the previous practice, it is not
necessary to obtain the sanction of the local government.40 A judgment in a suit, decided
previous to the aforesaid decision of the Privy Council, in which the permission of the
collector had been obtained according to the previous practices, will be res judicata in any
subsequent suit between the parties to the judgment on the same cause of action.41 This
section does not require that the State Government should appoint when there is an
Advocate-General, another person to perform the functions assigned to him under s 92.42

2.Sections 92,93 and Wakf Act (43 of 1995). See under the same heading under s 92
above.

3. Collector. The fact that the legal remembrancer is in a particular state invested as a rule
with the duties elsewhere discharged by the Advocate-General is no reason why in a
particular case the local government may not appoint the collector or any other officer to
prosecute it.43 Before the Privy Council decision requiring sanction of the local
government in each case, it was held that an assistant collector had no power to give his
consent to the institution of a suit and that if a suit was filed with his consent but not that
of the collector, the plaint must be rejected.44

4. Visitatorial power of Collector. Formerly the collector had a visitatorial power

enabling him to enforce an honest and proper administration of religious endowments.
The connection of the government in its executive capacity with Hindu and Mahommedan
foundations was brought to an end for Bombay by Bombay Act 7 of 1863 and for Bengal
and Madras by Act 20 of 1863.45

5. Collectors refusal to sanction proceeding. The Advocate-General, it seems, may give

his consent to a suit to be instituted outside the presidency-towns though the collector has
refused to give his consent under this section.46

6. Exception. Section 52(1) of Bombay Public Trusts Act, 1950 makes s 92 and s 93 of the
Code of Civil Procedure inapplicable to public trust registered under the Act.47 In view of the
provisions of s 5 of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, s s
 Page 55 of 68
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92 and 93 of the Code of Civil Procedure have ceased to apply to Hindu Religious and
Charitable Endowments in the concerned state.48

29 . Subs. by CPC (Amendment) Act 104 of 1976, s 30 (w.e.f. 1-2-1977) for the former heading (w.e.f. 1-2-1977).
30 . Subs. by CPC (Amendment) Act 104 of 1976, s 30 (w.e.f. 1-2-1977) for sub-sec. (1) (w.e.f. 1-2-1977).
31 . Hakim Mohmud Hasan v. L. Amba Prasad, AIR 1934 All 941; Choudhury v. Maharaja, AIR 1940 Pat 449.
32 . Parameshwarappa v. Krishnachari, (1958) Andh LT 814.
33 . Ramabrahma Sastry v. Lakshminarasimham, AIR 1957 AP 44 [LNIND 1956 AP 13]: (1956) Andh WR 578.
34 . Dalgobinda Mohata v. Khatu Mahata, AIR 1948 Pat 183; Governor-General v. Awadhoot Balwant Rao, (1946) ILR Nag 246 : AIR 1946 Nag
228; Mt. Ram Kali v. Munnalal, AIR 1939 All 486: (1939) ILR All 754; Venkayya v. Narasayya, AIR 1957 AP 975 [LNIND 1956 AP 6].
35 . Brajabandhu v. Gopal Chandra, AIR 1973 Ori 189 [LNIND 1972 ORI 98]: (1972) ILR Cut 1407.
36 . Sunil Kumar v. Raghubir Singh, AIR 1991 All 209 [LNIND 1991 ALL 138].
37 . Kanti v. UIT Bikaner, AIR 1998 Raj 108.
38 . Surendra Kumar v. District Board, Nadia, AIR 1942 Cal 360: (1942) ILR 1 Cal 533 : (1941) 46 Cal WN 261 : (1942) 75 CLJ 157; Hubert v.
Groves, (1794) 1 Esp 148; Winterbottom v. Lord Derby, (1867) LR 2 Ex 316; Satku v. Ibrahim, (1878) ILR 2 Bom 457; Bhawan Singh v.
Narottam Singh, (1909) ILR 31 All 444; Muhammad Raza a Muhammad Askari, AIR 1924 All 599: (1924) ILR 46 All 470; Manilal v.
Ishwarbhai, AIR 1925 Bom 367: (1925) 27 Bom LR 421; Ardeshir v. Aimai, AIR 1929 Bom 94: (1929) ILR 53 Bom 187.
39 . Murugesa v. Basuda, AIR 1951 Mad 498.
40 . Compare Attorney-General v. Proprietor of the Bradford Canal, (1866) LR Eq 71.
41 . Kochappa v. Sachi Devi, (1903) ILR 26 Mad 494.
42 . Benjamin v. Storr, (1874) LR 9 CP 400; Poorobashi Pal v. Bhoobun Chunder Dev, (1874) 21 WR 408.
43 . For instance, Attorney-General v. Logan, [1891] 2 QB 100.
44 . Ibid.
45 . Dilip Kaushal v. State of MP, AIR 2008 MP 324 [LNIND 2008 MP 564] (FB) (Indore Bench).
46 . Ibid, Para 9 at p. 327.
47 . Ibid, Para 7 at p. 326-327.
48 . Attorney-General v. Cockermouth Local Board, (1874) LR 18 Eq 172 per Jessel MR.
49 . Attorney-General v. Logan, [1891] 2 QB 100.
50 . Ibid.
51 . Ibid.
52 . Chandramati v. Rameshwar, AIR 1968 Pat 422: (1968) ILR 47 Pat 326.
53 . Attorney-General v. Cambridge Gas Consumers Co., (1868) LR 4 Ch 71, p. 81.
54 . Attorney-General v. Sheffield Gas Consumers Co., (1853) 3 DMG 304; Attorney-General v. Cambridge Gas Consumers Co., (1868) LR 4 Ch 71.
55 . Cooke v. Forbes, (1867) LR 5 Eq 166.
56 . Gaunt v. Fynney, (1872) LR 8 Ch App 8; Llanduano Urban District Council v. Woods, [1899] 2 Ch 705.
57 . Attorney-General v. Corpn. of Manchester, [1893] 2 Ch 87.
58 . Fletcher v. Bealey, [1884] 28 Ch 688.
59 . Attorney-General v. Action Local Board, [1882] 22 Ch D 221.
60 . Attorney-General v. Shrewsbury Bridge Co., (1882) 21 CD 752.
61 . Attorney-General v. Colney Lunatic Asylum, (1868) LR 4 Ch 146.
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62 . Municipal Commr of the Suburbs of Calcutta v. Mahomed Ali, (1871) 7 BLR 499; Weld v. Hornby, (1806) 7 East 195.
63 . Satku v. Ibrahim, (1878) ILR 2 Bom 457; Kandasami v. Subroya, (1909) 32 Mad 478. See s 9, note headed Religious processions.
64 . Manilal v. Ishvarbhai, AIR 1925 Bom 367: (1925) 27 Bom LR 421.
65 . Perumal Naicker v. Rathina Naicker, AIR 2004 Mad 492 [LNIND 2004 MAD 680].
66 . As to conditional orders by magistrates for the removal of nuisances, see ss 133-143 of the Code of Criminal Procedure; as to power of a
magistrate to issue orders in urgent cases where a speedy remedy is desirable, see s 144 of the same Code.
67 . Raj Koomar Singh v. Sahebzada, (1878) ILR 3 Cal 20; Jina Ranchod v. Jodha Ghella, (1863) 1 BHC 1 (AC), which appears to be imperfectly
reported.
68 . Mandakini v. Basant Kumari, AIR 1933 Cal 884: (1933) ILR 60 Cal 1003; Municipal Committee, Delhi v. Ibrahim, AIR 1935 Lah 196: (1935)
ILR 16 Lah 517; Munusami v. Kuppusami, AIR 1939 Mad 691 [LNIND 1938 MAD 440]: (1939) ILR Mad 870 : (1939) 1 Mad LJ 392;
Subbamma v. Narayanamurti, AIR 1949 Mad; Reddi v. Linga Reddi, AIR 1956 AP 235 [LNIND 1956 AP 102]; Thangavelu Nadar v.
Sudalaimuthu Nadar, AIR 1962 Mad 431 [LNIND 1961 MAD 125]: (1962) 2 Mad LJ 201; Moolchand v. Chhoga, AIR 1963 Raj 25
[LNIND 1960 RAJ 156]: (1961) ILR Raj 836; Sri Ram Singh v. Patti, AIR 1968 All 18 [LNIND 1967 ALL 28]; Perumal Naicker v. Rathina
Naicker, AIR 2004 Mad 492 [LNIND 2004 MAD 680].
69 . Appayya v. Narasimhulu, AIR 1938 Mad 338 [LNIND 1937 MAD 251]; Surendra Kumar v. District Board, Nadia, AIR 1942 Cal 360; Bibhuti
Narayan v. Mahadev Asram, AIR 1940 Pat 449: (1940) ILR 19 Pat 208; Bhulokanathan Pillai v. Rajagopal Pillai, AIR 1941 Mad 669 [LNIND
1941 MAD 125]; Kanti v. UIT, Bikaner, AIR 1998 Raj 108.
70 . Halsburys Laws of England, third edn, Vol 37, p. 122, para 210; Bibhuti Narayan v. Mahadev Asram, AIR 1940 Pat 449.
71 . Mehr Mohammad Khan v. Jamadar Adalat Khan, AIR 1937 Lah 425: (1937) ILR 18 Lah 629.
72 . Municipal Board, Lucknow v. Ram Devi, AIR 1941 Oudh 52 at p. 54 col 2.
73 . Queen-Empress v. Virappa Chetti, (1897) ILR 20 Mad 433.
74 . Turner v. Ringwood Highway Board, (1870) LR 9 Eq 418.
75 . Jugal Das v. Queen-Empress, (1893) ILR 20 Cal 665; dissenting from dicta to the contrary in re Umesh Chandra Kar, (1887) ILR 14 Cal 656.
76 . Sunil Kumar Verma v. Sri Raghubir Singh, AIR 1991 All 209 [LNIND 1991 ALL 138].
77 . A. Sarangan v. S. Vidivelu Mudaliar, 2009 (3) Mad LJ 463 : 2009 (2) Mad LW 532.
78 . Muttumira v. Queen-Empress, (1884) ILR 7 Mad 590; Surendra Kumar v. District Board, Nadia, AIR 1942 Cal 360: (1942) 1 ILR Cal 533 :
(1941) 46 CWN 261 : (1942) 75 CLJ 157.
79 . Queen-Empress v. Byramji, (1888) ILR12 Bom 437.
80 . Queen-Empress v. Zakhiruddin, (1888) ILR 10 All 44.
81 . Faqirchand v. Sooraj Singh, AIR 1949 All 467; Governor General v. Awadhoot Balwant Rao, AIR 1946 Nag 228: (1946) ILR Nag 246; Ramdahin
Pande v. Parmeshwar Singh, AIR 1940 Pat 160; Pakkle v. Aiyasami, AIR 1969 Mad 351 [LNIND 1968 MAD 2]: (1969) ILR 1 Mad 603 :
(1969) 1 Mad LJ 638.
82 . Surendra Kumar v. District Board, Nadia, AIR 1942 Cal 360; Ramghulam v. Ramkhelawan, AIR 1937 Pat 481: (1937) ILR 16 Pat 190.
83 . Sankar Dayal v. State, AIR 1973 All 310.
84 . Pyarelal v. Santlal, AIR 1972 Raj 103.
85 . Brajabandhu v. Gopal Chandra, AIR 1973 Ori 189 [LNIND 1972 ORI 98]: (1972) ILR Cut 1407.
86 . Kadarbhai v. Haribhai, AIR 1974 Guj 120 [LNIND 1972 GUJ 123]: (1973)14 Guj LR 245.
87 . S. 92 does not apply to :
(i) any religious trust in Bihar, see Bihar Act 1 of 1951.
(ii) public trusts in Maharashtra and Gujarat, see Bombay Act 29 of 1950.
(iii) public trusts in Rajasthan, see Rajasthan Act 42 of 1959.
Ss. 92 and 93 do not apply to
(i) Hindu Religious Institutions and Endowments in Madras, see Madras Act 22 of 1959.
(ii) Charitable institutions and Hindu religious institutions and endowments in Andhra Pradesh, see AP Act 17 of 1966.
For institution of suits under s 92 without obtaining prior consent of by the Wakf Board in UP, see UP Muslim Wakfs Act, 1960, s 64 and
UP Gaz Extraordinary date 3-9-1960.
88 . Subs. by CPC (Amendment) Act 104 of 1976, s 31 (w.e.f. 1-2-1977) for consent in writing of the Advocate-General.
89 . Subs. for Provincial Government by ALO 1950.
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90 . Ins. by CPC (Amendment) Act 66 of 1956 s 9.

91 . Ins. by Act 2 of 1951, s 13.
92 . Subs. for a part B State by AL (No. 2) Order 1956.
93 . Ins. by CPC (Amendment) Act 104 of 1976, s 31 (w.e.f. 1-2-1977).
94 . Rangasami Naicken v. Varadappa Naicken, (1894) ILR 17 Mad 462.
95 . Narendrasingji v. Udesinghji, AIR 1947 Bom 451: (1947) 49 Bom LR 318; Managing Committee of Syed Salard Endowment v. Hakim Mohamud
Asan, AIR 1947 Oudh 22: (1947) ILR 21 Luck 222; Sajedur Raja v. Gour Mohun Das, (1897) ILR 24 Cal 418, 425; Budree Das v. Chooni Lal,
(1906) ILR 33 Cal 789; DCruz v. DSILVA, (1909) ILR 32 Mad 131.
96 . Maddappa v. MN Mahanthadevaru, AIR 1966 SC 878 [LNIND 1965 SC 255].
97 . R.K. Narayana Chettiar v. N. Lakshmanan Chettiar, (1991) 1 SCC 48.
1 . Baba Bhoot Nath Dharmart Nyas v. Tajender Singh, AIR 2003 All 160.
2 . K. Rajaranickam (D) v. Periyar Self Respect Propaganda Institution, Tiruchirapalli, AIR 2007 Mad 25 [LNIND 2006 MAD 929].
3 . Ranchhoddas v. Sri Mahaluxmi Vahuji, AIR 1963 Bom 153: (1953) ILR Bom 271; Sarat Kumar Mitra v. Hem Chandra Dey, AIR 1960 Cal 558
[LNIND 1960 CAL 126]; Ghee Varghese Koshy v. Chacko Thomas, AIR 1963 Ker 191 [LNIND 1962 KER 125]: (1962) ILR2 Ker 343 :
(1962) Ker LT 662 [LNIND 1962 KER 125]; Bishwanath v. Radha Ballabhji, AIR 1967 SC 1044 [LNIND 1967 SC 34]: (1967) 69 Punj LR
761; Asson of RDB Bagga Singh v. Gurnam Singh, AIR 1972 Raj 263 [LNIND 1972 RAJ 2]: (1972) Raj LW 182; Harendra Nath v. Kaliram
Das, AIR 1972 SC 246 [LNIND 1971 SC 584].
4 . Parmatmanand Saraswati v. R. Tripathi, AIR 1947 SC 246: (1947) 3 SCC 695.
5 . S.Guhan v. Rukhmini Devi, AIR 1988 Mad 1 [LNIND 1986 MAD 357].
6 . Shivanand v. Shri Shankar Maharaj Birajman Mandir, AIR 1984 All 55.
7 . Nilima Ghosh v. Prakriti Bhushan Mitter, AIR 1982 Cal 14 [LNIND 1981 CAL 183] (DB).
8 . Vidya Sagar Sharma v. Anand Swarup Dublish, AIR 1981 All 106 [LNIND 1980 ALL 2].
9 . J.S. Singh v. Charan Singh, AIR 1972 P&H 347.
10 . Annappa Ramachandra v. Krishna Narayana, AIR 1936 Bom 412: (1936) 38 Bom LR 808; Ghee Verghgese v. Chacko Thomas, AIR 1963 Ker
191 [LNIND 1962 KER 125].
11 . Assn of R.D.B. Bagga Singh v. Gurnam Singh, AIR 1972 Raj 263 [LNIND 1972 RAJ 2].
12 . Arcot N Veeraswami v. MG Ramachandran, AIR 1988 Mad 192 [LNIND 1987 MAD 291].
13 . Ibid.
14 . Shri Venkatesh Mandir Trust Committee of Ayodhya, Faizabad v. Janki Prasad Choudha, AIR 1990 MP 287 [LNIND 1990 MP 236].
15 . Manaharmayam Tabu Sharma v. Shakti Gopal Deb, AIR 1980 Gau 16.
16 . Gurunanak Education Trust v. Shri Balbir Singh, AIR 1995 P&H 290.
17 . Anjuman Islamia v. Latafat Ali, AIR 1950 All 109 [LNIND 1949 ALL 129]; Anand Rao v. Ramdas, AIR 1921 PC 123: (1921) ILR48 Cal
493 : 48 IA 12, p. 16; Gopu v. Rajammal, AIR 1922 Mad 394 [LNIND 1922 MAD 34]: (1922) 43 Mad LJ 488; Sugra Bibi v. Haji Kummu,
AIR 1969 SC 884 [LNIND 1968 SC 383]: (1969) SCJ 365.
18 . Mst Shah Jahan Begum v. Ibn Ali, AIR 1945 All 69: (1944) ILR All 561; Bapugonda v. Vinayak Sadasiv, AIR 1941 Bom 317: (1941) ILR
Bom 556 (1941) 43 Bom LR 706; Indu Bhusan v. Kiron Chandra, AIR 1940 Cal 376.
19 . R. Venugopala Naidu v. Venkatarayula Naidu, AIR 1990 SC 444 [LNIND 1989 SC 531]: 1989 Supp (2) SCC 356; Shiromani Gurdwara
Prabhandhak Committee v. Mahant Harnam Singh, AIR 2003 SC 3349 [LNIND 2003 SC 792].
20 . Abdur Rahim v. Mahomed Barkat Ali, AIR 1928 PC 16: (1928) ILR 55 Cal 519 : 55 IA 96; Dinsha v. Jamsetji (1909) ILR 33 Bom 509;
Chiranji Lal v. Life Insurance Corpn., AIR 1959 Bom 396 [LNIND 1958 BOM 60]: (1959) ILR Bom 140.
21 . AIR 1954 All 88 [LNIND 1953 ALL 101]: (1953) All LJ 587.
22 . AIR 1964 SC 107 [LNIND 1963 SC 88].
23 . SGP Committee v. M.P. Dass Chela, AIR 1998 SC 1978 [LNIND 1998 SC 517]: AIR 1998 SCW 1826: (1998) 5 SCC 157 [LNIND 1998
SC 517].
24 . Mahant Harnam Singh v. Gurdial Singh, AIR 1967 SC 1415 [LNIND 1967 SC 46].
25 . Shiromani Gurdwara Prabhandhak Committee v. Mahant Harnam Singh, AIR 2003 SC 3349 [LNIND 2003 SC 792].
26 . Padampat v. Narayandas, AIR 1932 Cal 444: (1932) ILR 59 Cal 357.
27 . Ibid.
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28 . Advocate-General v. Punjabai, (1894) ILR 8 Bom 551, p. 561; Ramlal v. Kishanchand, AIR 1924 PC 95: (1924) ILR 51 Cal 361 : 51 IA 72, p.
8182.
29 . Kanji v. Advocate-General, (1916) 18 Bom LR 60; Fazle Husain v. Yusuf Ali, AIR 1955 Bom 55 [LNIND 1950 BOM 47]: (1954) 56 Bom
LR 955.
30 . Fazle Husain v. Yusuf Ali, AIR 1955 Bom 55 [LNIND 1950 BOM 47].
31 . Prithipal Singh v. Magh Singh, AIR 1982 P&H 133.
32 . Sri Jayaram Educational Trust v. A.G. Syed Mohideen, AIR 2010 SC 671 [LNIND 2010 SC 95]: (2010) 2 SCC 513.
33 . Ibid, at page 674675.
34 . Ibid, at page 675.
35 . Pitchayya v. Venkatakrishnamacharlu, AIR 1930 Mad 123 [LNIND 1929 MAD 262]: (1930) ILR 53 Mad 223; Venkatesa v. Ramyya (1915)
ILR 38 Mad 1192; Ali Begam v. Badrul, AIR 1938 PC 184.
36 . Narain Lal v. Seth Sunder Lal, AIR 1967 SC 1540 [LNIND 1967 SC 189]; Prag Narain v. Brahmadatt, AIR 1976 All 25.
37 . Sheo Ram v. Ramchand, AIR 1940 Lah 356.
38 . AIR 1967 SC 1540 [LNIND 1967 SC 189].
39 . Sukumaran v. Akalnala Sree Dharma Sanstha Idol, AIR 1992 Ker 406 [LNIND 1992 KER 17].
40 . Ali Begum v. Badrul, AIR 1938 PC 184: (1938) ILR Lah 383 : 65 IA 198.
41 . Ambrish Kumar Singh v. Raja Abhushan Bran Brahmshah, AIR 1989 All 194 [LNIND 1988 ALL 56].
42 . (1819) 2 Swans 518.
43 . Vaidyanatha v. Swaminatha, AIR 1924 PC 221: (1924) ILR 47 Mad 884 : 51 IA 282, p. 288.
44 . Shailainananda v. Umeshanunda, (1905) 2 Cal LJ 460.
45 . Shavax v. Masood Hosain, AIR 1965 AP 143 [LNIND 1964 AP 5].
46 . P. Sivagurunatha Pillai v. P. Mani Pillai, AIR 1984 Mad 328 [LNIND 1984 MAD 165] (DB).
47 . Ratan Sen v. Suraj Bhan, AIR 1944 All 1: (1944) ILR All 20.
48 . Sajedur v. Gour Mohun, (1897) ILR 24 Cal 418; Jugalkishore v. Lakshmandas, (1899) ILR 23 Bom 659; Chintaman v. Dhondo, (1888) ILR 15
Bom 612; Ram Churn v. Protab, (1905) Cal LJ 448.
49 . Ambrish Kumar Singh v. Raja Abhushan Bran Brahmshah, AIR 1989 All 194 [LNIND 1988 ALL 56].
50 . Mangilal v. Durga Devi, AIR 1968 Raj 314.
51 . Suraj Narain v. Mangilal, AIR 1972 Raj 172.
52 . Gyan Prakash Chaurasia v. Bans Narain Rai, AIR 1991 All 266 [LNIND 1991 ALL 312].
53 . Manohar v. Lakhmiram, (1888) ILR 12 Bom 247.
54 . Jawahar v. Akbar Hussain, (1885) ILR 7 All 178; Vaidyanatha v. Swaminatha, AIR 1924 PC 221: (1924) ILR 47 Mad 884, p. 891 : 51 IA
282.
55 . Sushma Roy v. Atul Krishna Roy, AIR 1955 Cal 624 [LNIND 1955 CAL 29], dissented from Bhagwati Prasad Khelan v. Laxminathji
Maharaj, AIR 1985 All 228 [LNIND 1985 KANT 56].
56 . Kabul Singh v. Ram Singh, AIR 1986 ILRALL 75.
57 . Farman Ali Khan v. Mohd Raza Khan, (1950) ILR All 985.
58 . Anikadavu Madamanai Lathekarar v. K. Thandapani, 2009 (4) Mad LJ 251 : 2009 (1) Mad LW 564.
59 . Ananda Theetha v. Kumaraswami, AIR 1952 TC 134: (1952) ILR TC 83.
60 . Ramaswami Chettiar v. Karumuthu Sivalingam, AIR 1957 Mad 597 [LNIND 1957 MAD 30].
61 . Siniaram v. Srinivasa, AIR 1927 Mad 462 [LNIND 1926 MAD 467]: (1927) ILR 50 Mad 726.
62 . L.M. Menezes v. Arul Das Jamas, AIR 2003 Mad 241 [LNIND 2003 MAD 21].
63 . Mohiuddin v. Sayiduddin, (1893) ILR 20 Cal 810.
64 . Shadi Ram v. Ram Kissan, AIR 1948 EP 49; Forman Ali Khan v. Mohd Raza Khan, AIR 1950 All 62 [LNIND 1949 ALL 120]; Ramachandra
v. Parameshwaran, (1919) ILR 42 Mad 360; referred to, it seems, with approval in Vaidyanatha v. Swaminatha, AIR 1924 PC 241: (1947) ILR
47 Mad 884 : 51 IA 282.
65 . Mitchla v. Mitchla, AIR 1938 Rang 339.
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66 . Narinjan v. Kirpal, AIR 1925 Lah 189: (1924) ILR 5 Lah 455.
67 . Kirpa Singh v. Ajaipal Singh, AIR 1930 Lah 1: (1930) ILR 11 Lah 142.
68 . Vaidyanatha v. Swaminatha, AIR 1924 PC 221: (1924) ILR 47 Mad 884 : 51 IA 282; affirming, AIR 1921 Mad 563: (1921) 41 Mad LJ 20.
69 . Kumudavalli v. Purshotham, AIR 1978 Mad 205 [LNIND 1977 MAD 172].
70 . Vir Digambar Jain Dharmashala & Sri Mahabir Jain Dharmarth Aushadhalai v. Pramod Kumar Jain, 2009 (6) ALJ 152 : 2009 AIHC 339.
71 . R. Venugopal Naidu v. Venkatarayulu Naidu, AIR 1990 SC 444 [LNIND 1989 SC 531].
72 . Amardas v. Harmanbhai, AIR 1942 Bom 291: (1942) 44 Bom LR 643; Gopal Devi v. Kanno Dei, (1903) ILR 26 All 162.
73 . Darves Jainudin, (1906) ILR 30 Bom 603.
74 . Ramayyanagar v. Krishnayyangar, (1887) ILR 10 Mad 185.
75 . Jekkam v. Sir S. Subramania, (1920) ILR 43 Mad 720.
76 . Jessingbhai v. Jivatlal Pratapsi, AIR 1947 Bom 487: (1947) 49 Bom LR 428; Ambalavana v. The Advocate-General, (1920) 43 Mad 707.
77 . Faizunnessa Bibi v. Gholam, (1935) ILR 62 Cal 1132 : (1935) 39 Cal WN 951.
78 . Managing Committee of Syed Salar Endowment v. HM Ashan, AIR 1947 Oudh 22: (1946) ILR 21 Luck 222.
79 . Tricumdass v. Khimji, (1892) ILR 16 Bom 626; Gopal Dei v. Kanno Dei, (1904) ILR 26 All 162.
80 . Narain Lal v. Sunder Lal Tholia, AIR 1967 SC 1540 [LNIND 1967 SC 189].
81 . Sayad Hussein v. Collector of Kaira, (1897) ILR 21 Bom 257; Nizam-ul-Haq v. Muhammad, (1919) PR No 144 p. 370; Srinivasa v. Venkata,
(1888) ILR 11 Mad 148; Pitchayya v. Venkatakrishnamacharlu, AIR 1930 Mad 129: (1930) ILR 53 Mad 223.
82 . Govind Chandra Ghosh v. Abdul Majid, AIR 1944 Cal 163: (1944) ILR 1 Cal 329; Abdul Rehman v. Cassam, (1912) ILR 36 Bom 168; Bara
Hanuman Temple v. G.L. Malhotra, AIR 1978 P&H 192.
83 . Kidarnath Dutt v. Krishna Das Bhargava, AIR 1957 Punj 106: (1957) ILR Punj 1019.
84 . Uma Shankar v. Salig Ram, AIR 1975 All 36.
85 . Neelkantan v. Bhaktavasalam, AIR 1967 Mad 303 [LNIND 1966 MAD 74]: (1967) 1 Mad LJ 29.
86 . Bapugouda v. Vinayak, AIR 1941 Bom 317: (1941) ILR Bom 556 : (1914) 43 Bom LR 707.
87 . Selvam Mudaliar v. Raju Mudaliar, AIR 1953 Mad 816: (1952) 2 Mad LJ 653 : (1952) Mad WN 808.
88 . Sajedur Raja v. Gour Mohun Das, (1897) ILR 24 Cal 418, p. 428.
89 . (1897) ILR 24 Cal 418.
90 . Umrao Singh v. Har Prasad, AIR 1930 All 582: (1930) ILR 52 All 863.
91 . Bapiraji v. Ramchandra Das, AIR 1933 Mad 854 [LNIND 1933 MAD 51]: (1933) 65 Mad LJ 690.
92 . Mohamed Idris Halder v. Mohamed Habiber Rahman, AIR 1948 Pat 97: (1946) ILR 26 Pat 83.
93 . Meenakshi Ammal v. Commr, Hindu Religious and Charitable Endowments Act, AIR 1966 Mad 475 [LNIND 1965 MAD 184].
1 . Kintali China Jaganath v. K. Laxmi Naidu, AIR 1988 Ori 100.
2 . Prithipal Singh v. Magh Singh, AIR 1982 P&H 133; R.M. Narayana Chetiar v. N. Lakshman Chettiar, (1991) 43 Del LT 1 (SC).
3 . R.K. Narayana Chettiar v. N. Lakshmanan Chettiar, (1991) 1 SCC 48.
4 . By Code of Civil Procedure (Amendment) Act (104 of 1976).
5 . AIR 1954 TC 331: (1954) ILR TC 369.
6 . Sadhu Singh v. Mangal Gir Mohatmim, AIR 1956 Pepsu 65.
7 . Srimali v. Advocate-General, AIR 1955 Raj 166: (1955) ILR Raj 324.
8 . Shantanand v. Advocate-General, AIR 1955 All 372 [LNIND 1955 ALL 5].
9 . Raju v. Advocate-General, AIR 1962 Mad 320 [LNIND 1961 MAD 178]: (1962) ILR Mad 722; Abdul Kasim v. Mohd. Dawood, AIR 1961
Mad 244 [LNIND 1960 MAD 96]: (1961) ILR Mad 493.
10 . Desraj v. Deputy Commr., Jammu and Kashmir, AIR 1962 J&K 86.
11 . A.K. Bhaskar v. Advocate-General, AIR 1962 Ker 90 [LNIND 1961 KER 191]: (1961) ILR 2 Ker 500(FB).
12 . Shavax v. Masood Hasain, AIR 1965 AP 143 [LNIND 1964 AP 5]; SS Bhagat v. NS Ahluwalia, AIR 1978 Del 14 [LNIND 1977 DEL
36].
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13 . RM Narayan Chettiar v. Lakshmanan Chettiar, AIR 1991 SC 221; BS Adityan v. B Ramachandran Adityan, AIR 2004 SC 3448 [LNIND 2004
SC 507]; Govindan v. Koovalasseri Sree Mahadevar Kshethram Trust, AIR 2002 Ker 47 [LNIND 2001 KER 253].
14 . Sushil Kumar Bansal v. Surinder Pal Sharma, 2007 (2) Civil Court C 244 : 2007 (1) Rec Civ R 167.
15 . Anikadavu Madamanai Lathekarar v. K. Thandapani, 2009 (4) Mad LJ 251 : 2009 (1) Mad LW 564.
16 . Sudhir G. Angur v. M. Sanjeev, AIR 2006 SC 351 [LNIND 2005 SC 862].
17 . Govindan v. Koovalasseri Sree Mahadevar Kshethram Trust, AIR 2002 Ker 47 [LNIND 2001 KER 253].
18 . Vir Digambar Jain Dharmashala & Sri Mahabir Jain Dharmarth Aushadhalai v. Pramod Kumar Jain, 2009 (6) ALJ 152 : 2009 AIHC 339.
19 . M. Vannia Perumal v. M. Sivasubramania Pillai, AIR 1952 TC 323: (1951) ILRTC 543.
20 . Dhirendra Singh v. Dhanai, AIR 1983 All 216.
21 . Deoki Nandan v. Murlidhar, AIR 1957 SC 33.
22 . AIR 1957 SC 133 [LNIND 1956 SC 74]: [1956] SCR 756 [LNIND 1956 SC 74] : (1956) SCJ 75 [LNIND 1955 SC 79].
23 . Sivaramabrahman v. Satyanarayana, AIR 1967 AP 181 [LNIND 1965 AP 200].
24 . Mangilal v. Durga Devi, AIR 1968 Raj 314.
25 . Advocate General v. Leela Devi, AIR 1984 NOC 273(HP).
26 . Board of Governors St Thomas School v. AK George, AIR 1984 Cal 208 [LNIND 1984 CAL 91].

27 . Saratchandra v. Rabindranath (1857) AC 11 ; Sivaramabrahman v. Satyanarayan, AIR 1967 AP 181 [LNIND 1965 AP 200].
28 . Manohar v. Lakhmiram, (1888) ILR 12 Bom 247.
29 . Radha Krishnaji v. Ram Prasad, AIR 1975 All 268.
30 . Dinshna Petit v. Jamsetji, (1909) ILR 33 Bom 509.
31 . Muhammad Kazim v. Ali Saghir, AIR 1933 Pat 33: (1932) ILR 11 Pat 288.
32 . Muhammad Yusuf v. Muhammad Sadiq, AIR 1933 Lah 501: (1932) ILR 14 Lah 431.
33 . Abdul Rahim v. Mohamed Bankat Ali, AIR 1926 PC 16: (1928) ILR 55 Cal 519 : 55 IA 96.
34 . Sathappayyar v. Perisami, (1891) ILR 14 Mad 1.
35 . Radha Krishna v. Lakshmi Narain, AIR 1948 Cal 203; Khub Narain Missir v. Ramchander Narain Dass, AIR 1951 Pat 340: (1950) ILR 28 Pat
890.
36 . Raghavendra Rao Memorial High School v. P Atchayya, AIR 1957 AP 10 [LNIND 1955 AP 174]: (1956) Andh WR 354.
37 . Jugalkishore v. Lakshmandas, (1889) ILR 23 Bom 659; Laxmanrao v. Govindrao, AIR 1950 Nag 215.
38 . Mahant v. Darshan, (1912) ILR 34 All 468.
39 . Bower v. Hesterlow, (1940) ILR Mad 300.
40 . Kasi Viswanathan v. Rudra Viranna, AIR 1953 Mad 220: (1952) 2 Mad LJ 443.
41 . Syed Mohammad Raza v. Badrul Islam Ali Khan, (1938) 40 Bom LR 835; Sugra Bibi v. Haji Kummu, AIR 1969 SC 884 [LNIND 1968 SC
383].
42 . Loke Nath v. Abani Nath, AIR 1941 Cal 68: (1940) 72 Cal LJ 362; Forman Alikhan v. Md Raza Khan, AIR 1950 All 62 [LNIND 1949
ALL 120]; Taw Chew Kean v. Taw Kock Tyon, (1939) Rang 520 : AIR 1939 Rang 203. For discussion as to what are public and what are
private trusts, see the following decisions: Pannalal v. Puj Harsh Rishi, AIR 1952 Punj 361; Balakrishna v. Ganesh Prasad, AIR 1952 Ori 203
[LNIND 1952 ORI 36]: (1952) ILR Cut 81; Anand Tirtha v. Kumaraswami, AIR 1952 TC 134; Motilal Baldeo Dass, AIR 1952 VP 36; Imdad
Ali Khan v. Sardar Ali Khan, AIR 1954 Ori 15 [LNIND 1953 ORI 41]; Padmavathi v. Narsilal, AIR 1956 Bom 81 [LNIND 1954 BOM 75];
Jawahar Beg v. Abdul Aziz, AIR 1956 Nag 257; Bhagavan v. Namdeo, AIR 1957 Bom 168 [LNIND 1956 BOM 154]; Wazir Shah v. Santh
Shah, AIR 1961 J&K 42.
43 . Laxman Balwant v. Charity Commrs, Bombay, AIR 1962 SC 1589 [LNIND 1962 SC 205]: (1963) SCA 170; Ghee Varghese Koshi v. Chacko
Thomas, AIR 1963 Ker 191 [LNIND 1962 KER 125].
44 . Sarat Kumar Misra v. Hem Chandra Dey, AIR 1960 Cal 558 [LNIND 1960 CAL 126].
45 . K. Panicker v. Damodara, AIR 1976 Ker 86 [LNIND 1974 KER 152].
46 . Nagu Reddiar v. Banu Reddia, AIR 1978 SC 1174 [LNIND 1978 SC 141].
47 . Jafar Khan v. Daud Shah, (1911) 13 Bom LR 49 [LNIND 1910 BOM 133], 53.
48 . Saiyad Maher v. Haji Alimahomed, AIR 1934 Bom 257: (1934) 36 Bom LR 526.
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49 . Dharibhai v. Pragdasji, AIR 1938 Bom 471: (1938) 40 Bom LR 1041.

50 . Keshao Das v. Amar Dasji, AIR 1935 Pat 111: (1934) ILR Pat 379.
51 . Triloki Nath (deceased by LRS) v. Umesh Chandra (deceased by LRS), 2007 (4) ALJ 759.
52 . Per Woodroffe J, in Budree Das v. Chooni Lal, (1906) ILR 33 Cal 789; but see Amritram v. Ramji, (1908) 10 Bom LR 87 [LNIND 1907
BOM 166].
53 . Abdul Alim Abed v. Abir Jan Bibi, AIR 1928 Cal 368: (1928) ILR 55 Cal 1284.
54 . Mohiudin v. Sayidudin, (1893) ILR 20 Cal 810.
55 . Subbayya v. Krishna, (1891) ILR 14 Mad 186.
56 . Prabhu Dayal Tiwari v. Lakhan Singh, AIR 2001 All 60 [LNIND 2000 ALL 1367].
57 . Venkatanarasimha v. Subba Rao, AIR 1923 Mad 376: (1923) ILR 46 Mad 300, 318, p. 321.
58 . Perla Annapuornamma Gara v. Collector of Vizag, AIR 1953 Mad 908.
59 . Raghvendra Pratap Singh v. Ramlal Das, AIR 1948 Oudh 31: (1946) ILR 22 Luck 151; Raghubar v. Kesho, (1889) ILR 11 All 18 (FB);
Budhsingh v. Niradbaran, (1905) 2 Cal LJ 431; Chintaman v. Dhondo, (1891) ILR 15 Bom 612; Jafarkhan v. Daudshah, (1911) 13 Bom LR 49
[LNIND 1910 BOM 133]; Deo Saran v. Doeki, AIR 1924 Pat 657: (1924) ILR 3 Pat 842; Alimiya v. Sayed Mohomed, AIR 1968 Guj 257
[LNIND 1967 GUJ 130]: (1968) 9 Guj LR 1002.
60 . AIR 1923 Mad 376: (1923) ILR 46 Mad 300 (trust created by a willheir in possession and denying validity of the trust).
61 . Baldeo v. Gopalji, AIR 1923 All 247: (1923) 21 All LJ 310. See notes, below, Trustee and Suits for possession of trust property, etc.
62 . Sajedur Raja v. Gour Mohun Das, (1897) ILR 24 Cal 418; Sayed v. Collector of Kaira, (1897) ILR 21 Bom 48; Huseni Begam v. Collector of
Moradabad, (1898) ILR 20 All 46; Girdhari Lal v. Ram Lal, (1899) ILR 21 All 200.
63 . Subbayya v. Krishna, (1891) ILR 14 Mad 186.
64 . Rangasami v. Vardappa, (1894) ILR 17 Mad 462; Narayana v. Kumarsami, (1900) ILR 23 Mad 537.
65 . Subramania v. Krishnaswamy, (1919) ILR 42 Mad 668.
66 . Syed v. Bibi, AIR 1935 Pat 544: (1925) ILR 4 Pat 741.
67 . Nilkanth v. Ramkrishna, AIR 1923 Bom 67: (1922) ILR 46 Bom 101.
68 . Appanna v. Narasinga, AIR 1922 Mad 17 [LNIND 1921 MAD 124]: (1922) ILR 45 Mad 113(FB).
69 . Vythilinga v. Temple Committee, AIR 1931 Mad 801 [LNIND 1931 MAD 56]: (1931) ILR 54 Mad 1011.
70 . Sarat Kumar Mitra v. Hem Chandra Dey, AIR 1960 Cal 558 [LNIND 1960 CAL 126].
71 . Prof. M.S. Padmarajaiah v. Commissioner, Bangalore Mahanagara Palike, 2007 (6) AIR Kar R1 : 2008 AIHC 236.
72 . Suroj Narain v. Mangilal, AIR 1972 Raj 172.
73 . Balkrishna v. Jagannada, AIR 1925 Mad 820 [LNIND 1924 MAD 347]: (1925) 48 Mad LJ 534.
74 . Damodarbhat v. Bhogilal (1900) ILR 24 Bom 45.
75 . Chandraprasad v. Jinabharthi, AIR 1931 Bom 391: (1931) ILR 55 Bom 414; Lal Mukund v. Raza Ali Khan (1959) ILR Raj 1191.
76 . Aswini Kumar v. Gaya Prasad, AIR 1952 Assam 176.
77 . Annaji v. Narayan (1897) ILR 21 Bom 556.
78 . Forman Ali Khan v. Mohd Raza Khan, AIR 1950 All 62 [LNIND 1949 ALL 120].
79 . Damodar Bhatji v. Bhat Bhogilal (1898) ILR 22 Bom 493; Jawahar Beg v. Abdul Aziz, AIR 1956 Nag 257: (1956) ILR Nag 659.
80 . Shilajananda v. Umeshanunda (1905) 2 Cal LJ 460.
81 . Fazla v. Zainulab, AIR 1932 Lah 359: (1932) ILR 13 Lah 162.
82 . Gulzari Lal v. Collector of Etah, AIR 1931 PC 121: (1931) ILR 53 All 910 : 58 IA 460.
83 . Satish Chandra v. Dharanidhar, AIR 1940 PC 24: (1940) ILR 1 Cal 266 : 67 IA 32.
84 . Syed Shah Mahomed Kazim v. Syed Ali Saghir, AIR 1932 Pat 33: (1932) ILR 11 Pat 288.
85 . Satishchandra Giri v. Dharanidhar, (1940) ILR 1 Cal 266 : 67 IA 32 : (1940) 44 Cal WN 177.
86 . Laxmanrao v. Govindrao, AIR 1950 Nag 215: (1950) ILR Nag 1.
87 . Anjuman Ismalia v. Latapat Ali, AIR 1950 All 109 [LNIND 1949 ALL 129]; Saiyid Ali v. Ali Jan, (1913) ILR 35 All 98.
88 . Satya Charan Sarkar v. Rudrananda, AIR 1953 Cal 716 [LNIND 1952 CAL 132].
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89 . Munshi Abdur Rahim Khan v. Fakir Md. Shah, AIR 1946 Nag 401: (1946) ILR Nag 518; Jugal Kishore v. Lakshmandass, (1899) ILR 23 Bom
659; Budree Das v. Chooni Lal, (1906) ILR 33 Cal 789, p. 80506; Ram Bilas v. Nityanand, AIR 1922 All 542: (1922) ILR 44 All 652; Bihari Lal
v. Shiva, AIR 1924 All 884: (1925) ILR 47 All 17; Ramdas v. Krishna Prasad, AIR 1940 Pat 425.
90 . Bhagwan Dass v. Jairam Dass, AIR 1965 Punj 260: (1964) 66 Punj LR 1050.
91 . Asson. of RDB Baga Singh v. Gurnam Singh, AIR 1972 Raj 263 [LNIND 1972 RAJ 2].
92 . Shripatiprasad v. Lakshmidas, AIR 1924 Bom 193: (1923) 25 Bom LR 747 [LNIND 1922 BOM 198].
1 . Nelliappa v. Punnaivanam, AIR 1927 Mad 614 [LNIND 1926 MAD 426]: (1927) ILR 50 Mad 567; Keshao Das v. Amar, AIR 1935 Pat
111: (1934) ILR14 Pat 379; Sudindhra Tirtha v. Commr. of Hindu Religious and Charitable Endowments, AIR 1956 Mad 491 [LNIND 1955
MAD 210]: (1956) 1 Mad LJ 532.
2 . Gomathinayagan Pillai v. Sri Manthramurthi High School, (1963) 2 Mad LJ 56.
3 . Amjadulla Siddique v. Mirza Nizamuddin Baig, AIR 1982 AP 342 [LNIND 1982 AP 32] (DB).
4 . Neti Rama v. Venkatacharulu, (1903) ILR 26 Mad 450; Mitchla v. Mitchla, AIR 1938 Rang 339: (1938) ILR Rang 276.
5 . Gumnatharudhaswami v. Bhimappa, AIR 1948 PC 214; Prayag Doss v. Tirumala, (1905) ILR 28 Mad 319.
6 . Varadaiah v. Narasimhulu, AIR 1932 Mad 41 [LNIND 1930 MAD 194]: (1931) ILR 54 Mad 345.
7 . Chhaganlal v. Sobhram, AIR 1934 Bom 26: (1933) 35 Bom LR 1119.
8 . Institute of Indo Portuguese v. Dr. Borges, AIR 1959 Bom 275 [LNIND 1958 BOM 2]: (1958) ILR Bom 1055 : (1958) 60 Bom LR 660.
9 . Kamla Devi v. Surindra, 200(1) Shim LC 218.
10 . Jagannath Singh v. District Judge, Varanasi, AIR 2003 All 226 [LNIND 2003 ALL 313].
11 . Saadat Husain v. Maziz Husain, AIR 1942 Oudh 135: (1941) ILR 17 Luck 391; Nawab Mirza v. Hakim Mirza Jafar, AIR 1937 Oudh 381.
12 . Rustam Khan v. Ahmad Bux, AIR 1966 All 163: (1966) All LJ 588.
13 . Syad v. Collector of Kaira, (1897) ILR 21 Bom 48; Amritram v. Ramji, (1908) 10 Bom LR 87 [LNIND 1907 BOM 166].
14 . Balakrishna Chettiar v. Krishnamurthi Aiyar, AIR 1927 Mad 416: (1927) 52 Mad LJ 182.
15 . P. Gayaprasad v. S.S. Bhargao, AIR 1934 Nag 48; M.M.J. Kermani v. Kirmani, AIR 1978 Mad 121 [LNIND 1977 MAD 366].
16 . Collector of Tiruchirapalli v. Velan Chettiar, (1960) 1 Mad LJ 364.
17 . Sakharam v. Ganu, AIR 1921 Bom 297: (1921) ILR 45 Bom 683; Chhaganlal v. Sobharam, AIR 1934 Bom 26: (1933) 35 Bom LR 1119.
18 . Madappa v. Mahathadevaru, AIR 1966 SC 878 [LNIND 1965 SC 255].
19 . Fakrunnessa v. District Judge, (1920) 47 Cal 529; Re Dhanalal, AIR 1975 Cal 67 [LNIND 1973 CAL 269].
20 . Mahomed Ismail v. Ahmed, (1916) 43 IA 127, p. 135 : (1916) ILR 43 Cal 1085, pp. 110-102.
21 . Jagmohandas v. Jamnadas, AIR 1965 Guj 181 [LNIND 1962 GUJ 72].
22 . Periaswamy v. Sundaresa Ayyar, AIR 1965 SC 516 [LNIND 1964 SC 190]: (1965) 1 Mad LJ 119.
23 . Mahant Narayan v. State of Andhra Pradesh, AIR 1959 AP 471 [LNIND 1958 AP 156].
24 . Advocate-General v. Yusufalli, AIR 1921 Bom 338: (1922) 24 Bom LR 1060 [LNIND 1921 BOM 51].
25 . Thiagarajaswami v. Belayee, AIR 1928 Mad 61 [LNIND 1927 MAD 249]; Narayan Krishnaji v. Anjuman E Islamia, AIR 1952 Mys. 14.
26 . Vythilinga v. Temple Committee, AIR 1931 Mad 801 [LNIND 1931 MAD 56]: (1931) ILR 54 Mad 1101.
27 . Ramakrishna Pillai v. Varadarajaswami, AIR 1957 Mad 735 [LNIND 1956 MAD 222].
28 . Prayag Doss v. Tirumala, (1905) ILR 28 Mad 319; Ramados v. Hanumantha, (1913) ILR 36 Mad 364.
29 . Kailash Chandra v. Addl-District Judge, AIR 1966 All 509.
30 . Rama Rao v. Board of Commr, AIR 1965 SC 231 [LNIND 1963 SC 245]: (1964) 5 SCR 270 [LNIND 1963 SC 245].
31 . Suraj Giri v. Bramh Narain, AIR 1946 All 148: (1946) ILR All 107; Ramados v. Hanumantha, (1913) ILR 36 Mad 364; Sakharam v. Ganu,
AIR 1921 Bom 297: (1921) ILR 45 Bom 683.
32 . Sitharama v. Subramania Iyer, (1916) ILR 39 Mad 700.
33 . Gopal Lal v. Purna Chandra, AIR 1922 PC 253: (1922) ILR 49 Cal 459 : 49 IA 100.
34 . Doongarsee Syamji Joshi v. Tribhubandas, AIR 1947 All 375: (1947) ILR All 263; Bimal Krishna v. Sree Iswar Radha, AIR 1937 Cal 338;
Manohar Moorkerjee v. Pearey Mohan, (1920) 24 Cal WN 478.
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35 . Sri Mahadeo Jew v. Balakrishna, AIR 1952 Cal 763 [LNIND 1951 CAL 226]; Narayanan v. Balasundara, AIR 1953 Mad 750 [LNIND
1951 MAD 242]: (1952) 1 Mad LJ 437; Chellam Pillai v. Chatham Pillai, AIR 1953 TC 198: (1953) ILR TC 610; Asha Bibi v. Nabissa Sahib,
AIR 1957 Mad 583 [LNIND 1956 MAD 5]; Ramasami v. Ayyasami, AIR 1960 Mad 467 [LNIND 1959 MAD 183]; Thenappa Chettiar v.
Karuppan Chettiar, AIR 1968 SC 915 [LNIND 1968 SC 21]; Ramchand v. Janki Ballabhji, AIR 1970 SC 532 [LNIND 1969 SC 222]: (1970)
1 SCR 634 [LNIND 1969 SC 222]; Brindaban v. Ram Lakhan, AIR 1975 All 255: (1974) ILR 2 All 7.
36 . Manadananda v. Taraknanda, AIR 1924 Cal 330: (1923) 37 Cal LJ 281; Narayanamurthi v. Achayya, AIR 1925 Mad 411 [LNIND 1924
MAD 175]: (1924) 47 Mad LJ 714.
37 . Sivram v. Rajagopala, AIR 1930 Mad 918 [LNIND 1930 MAD 112]: (1930) ILR 54 Mad 315.
38 . Abdul Hakim v. Mahomed Burrammudin, AIR 1926 Mad 559 [LNIND 1925 MAD 379]: (1926) ILR 49 Mad 580; Brahamayya v.
Venkatasuryanarayanamurthy, AIR 1926 Mad 557 [LNIND 1925 MAD 346]: (1926) 50 Mad LJ 409; Veeraraghavachariar v. Advocate-General,
AIR 1927 Mad 1073 [LNIND 1927 MAD 291]: (1927) ILR 51 Mad 31(FB).
39 . Narsinha Pai v. Chanda, AIR 1935 Mad 474 [LNIND 1935 MAD 71].
40 . U. Po Maung v. U. Jun Pe, AIR 1929 Rang 20: (1928) ILR 6 Rang 594.
41 . Prayagdossjivaru v. T. Srirangacharla Varu, (1907) ILR 30 Mad 138 (PC); Jeranchod v. Dakore Temple Committee, AIR 1925 PC 155: (1925) 27
Bom LR 872.
42 . Chandraparasad v. Jinabharthi, AIR 1931 Bom 391: (1931) ILR 55 Bom 414.
43 . Shah Zahirul v. Syed Rashid, AIR 1935 Pat 261: (1935) ILR 14 Pat 236.
44 . Ram Nath v. Goverdhan, AIR 1936 All 97: (1936) ILR 58 All 538; Srijib Najayathirtha v. Dandy Swami Jagannath Asram, AIR 1941 Cal 618:
(1941) 73 Cal LJ 532.
45 . AIR 1961 SC 1206 [LNIND 1961 SC 75]: (1961) 3 SCR 930 [LNIND 1961 SC 75] : (1962) 1 SCJ 584 [LNIND 1961 SC 75]; Sree
Kalimata Thakurani v. R.C. Chatterjee, AIR 1970 Cal 373 [LNIND 1969 CAL 189]: (1971) 75 Cal WN 1.
46 . AIR 1927 Mad 1073 [LNIND 1927 MAD 291]: (1928) ILR 51 Mad 31 (FB).
47 . Abdul Khan v. Nazir Hoossain, AIR 1960 Cal 631; Rangaswami Raju v. Rajapalayan Municipality, AIR 1977 Mad 287 [LNIND 1976 MAD
149]: (1976) ILR 3 Mad 341.
48 . Srinivas v. Purshotham, AIR 1953 Bom 393 [LNIND 1952 BOM 126].
49 . Chameli Bibi v. Kanhaiya Lal, AIR 1973 Cal 328 [LNIND 1972 CAL 200].
50 . Venkatanarasimha v. Subba Rao, AIR 1923 Mad 376: (1923) ILR 46 Mad 300.
51 . Chotalal v. Manohar, (1900) ILR 24 Bom 50 : 26 IA 199.
52 . Sripatiprasadji v. Laxmidas, AIR 1929 PC 27: (1929) 31 Bom LR 243.
53 . Vaidyalinga v. Board of Control, Thyagarajaswami Devasthanam, AIR 1927 Mad 1073 [LNIND 1927 MAD 291]; Ramanathan Chettiar v.
Mathurai Meenakshisundareswarar Devasthanam, (1937) 2 Mad LJ 887 : 46 LW 701; Achyutha Rama Rao v. Salasa Bapayya, (1943) 1 Mad LJ 504
: 55 LW 627; Atul Krishna Roy v. Manmatha Nath, AIR 1949 Cal 215: (1949) 83 Cal LJ 48; Subba Rao v. Venkatanarasimha, AIR 1951 Mad
736 [LNIND 1950 MAD 204].
54 . Damodar Bhat v. Bhogilal Karsandas, (1900) ILR 24 Bom 45; Thyagarajaswami Devasthanam v. Balayya, AIR 1928 Mad 61 [LNIND 1927
MAD 249]; BS Mahadev Singh v. Nandgopal Das, AIR 1960 AP 423 [LNIND 1959 AP 249].
55 . Ishwar Sridhar Jew v. Gnanendra, AIR 1960 Cal 718 [LNIND 1958 CAL 27]: (1959) Cal LJ 237 [LNIND 1958 CAL 27].
56 . Jeranchod v. Dakore Temple Committee, AIR 1925 PC 155: 87 IC 313 : (1925) 27 Bom LR 872; Abdul Hakim Baig v. Burrammudin, AIR 1926
Mad 559 [LNIND 1925 MAD 379]: (1926) ILR 49 Mad 580 : 95 IC 720; Sivram v. Rajagopala, (1930) 54 Mad 315 : 128 IC 515 : AIR
1930 Mad 918 [LNIND 1930 MAD 112].
57 . M. Faiyaz Ali v. Mian Saifullah, AIR 1940 Oudh 421. See note below under the heading Appeal.
58 . Lokenath v. Abani Nath, AIR 1941 Cal 68: 194 IC 874 : (1940) 72 Cal LJ 362; Jamaluddin v. Mujtaba Husain, (1903) ILR 25 All 631; Salig
Ram v. Bassao Mal, (1919) 1 Lah LJ 150 : 67 IC 320.
59 . Budree Das v. Chooni Lal, (1906) ILR 33 Cal 789.
60 . Melur Panchayat Union v. I Sundararajan, AIR 1982 Mad 278 [LNIND 1981 MAD 94].
61 . AIR 1928 PC 16: (1928) ILR 55 Cal 519 : 108 IC 361 : 55 IA 96; Gafuralli v. Mohiddin, AIR 1932 Bom 65: 135 IC 806 : (1931) 33 Bom
LR 1575; Bachint Singh v. Ganpat Rai, AIR 1937 Lah 660: 172 IC 319; Shadi Ram v. Ram Kishen, AIR 1948 EP 49; Lingam Ramaseshayya v.
Myneni Ramayya, AIR 1957 AP 964 [LNIND 1956 AP 8].
62 . Gayyaprasad v. SS Bhargao, AIR 1934 Nag 48: 144 IC 506.
63 . Dinsha Petti v. Jamsetji, (1909) ILR 33 Bom 509. See note below suits only for a declaration of trust.
64 . The judgment of Woodroffe J, in Budree Das v. Chooni Lal, (1906) ILR 33 Cal 789; Ramdas v. Krishna Prasad, AIR 1940 Pat 425. See note
below sub-s (2)
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65 . Janaki Bai v. Triruchitrambala, AIR 1935 Mad 825 [LNIND 1935 MAD 166]: (1935) ILR 58 Mad 988(FB). See notes above Leave of the
court.
66 . Abdul Razak Sahib v. Abdul Hamid Said, AIR 1951 Mad 406 [LNIND 1950 MAD 261].
67 . Madhavrao v. Shri Omkareshwar Ghat, AIR 1929 Bom 153: (1929) 31 Bom LR 192.
68 . Ranchhoddas v. Shree Mahalaxmi Vahuji, (1953) ILR Bom 271 : AIR 1953 Bom 153 [LNIND 1952 BOM 26].
69 . See notes below Suits to enforce private rights and Suits for a declaration and possession of trust property against third persons, etc
70 . See notes below, Suits for removal of trustees, etc and Where some of the reliefs are outside the scope of this section
71 . AIR 1974 SC 2141 [LNIND 1974 SC 242].
72 . Gurunanak Education Trust v. Shri Balbir Singh, AIR 1995 P&H 290.
73 . Samit Pani Brahmachary v. Mayapur Chaitanya Math, AIR 1999 Cal 132 [LNIND 1998 CAL 291] (DB).
74 . Shri Satyanaranji Maharaj Virajman Mandir v. Rajendra Prasad Aggarwal, AIR 1997 All 413 [LNIND 1997 ALL 534].
75 . Shree Gollaleshwar Dev v. Gangawwa kom Shantayya Math, (1985) 4 SCC 393 [LNIND 1985 SC 332].
76 . See note above Representative suit and res judicata
77 . Tirumalai Devasthanams v. Krishnayya Shanbhaga, (1943) Mad 619 : AIR 1943 Mad 466 [LNIND 1943 MAD 103] (FB); Radha Krishna v.
Lachmi Narain, AIR 1948 Oudh 203; per Davar J, in Dinsha Petit v. Jamsetji, (1909) ILR 33 Bom 509; Parmatmanand Saraswati v. VR
Tripathi, AIR 1974 SC 2141 [LNIND 1974 SC 242]: (1974) 2 SCC 695 [LNIND 1974 SC 242].
78 . Parmatmanand Saraswati v. V.R. Tripathi, AIR 1947 SC 246.
79 . (1898) ILR 22 Bom 496; Visalakshi v. Veerayya, AIR 1965 Mad 531 [LNIND 1965 MAD 60]: (1965) 2 Mad LJ 231.
80 . AIR 1938 Lah 869; Balakishendas v. Parameshwar Das, AIR 1952 Punj 31; Sri Ramulu Naidu v. Sathi Naidu, (1954) 2 Mad LJ 552 : 67 LW
571; see also MMB Catholicos v. M.P. Athanasius, AIR 1954 SC 526 [LNIND 1954 SC 100]: (1955) SCR 520 : (1955) SCJ 736 : (1955)
SCA 1354.
81 . (1904) ILR 28 Bom 20, p. 54.
82 . (1905) ILR 32 Cal 273.
83 . (1906) ILR 33 Cal 789, p. 808; Muhammad v. Ahmed, (1913) ILR 35 All 459 : 20 IC 37; Niamat Ali v. Ali Reza (1914) ILR 37 All 86: 26
IC 778; Puttu Lal v. Dayanand, AIR 1922 All 499: (1922) ILR 44 All 721 : 68 IC 786; Ayatunnessa v. Kulfu, (1914) ILR 41 Cal 749 : 22 IC
677; Giyana v. Kandusami, (1887) ILR 10 Mad 375; Kashinath v. Gangubai, AIR 1929 Bom 193: 117 IC 523 : (1929) 31 Bom LR 349; Khalifa
Ganny v. Mohamed Ebrahim, AIR 1931 Rang 322: (1931) ILR 9 Rang 459 : 135 IC 332.
84 . (1924) 26 Bom LR 950 [LNIND 1924 BOM 130] : 86 IC 490 : AIR 1924 Bom 518; Chhaganlal v. Sobharam, (1933) 35 Bom LR 1119 :
AIR 1934 Bom 26. See, AIR 22 Mad 17 : (1922) 45 Mad 113 : 69 IC 304, cited in ill (6) below.
85 . Jawahar v. Akbar Hussain, (1885) 7 All 178.
86 . (1883) 5 All 497. Periaguruswamy v. Mahalingam, AIR 1971 Mad 278 [LNIND 1969 MAD 366]; Amin Bi v. Management, Nilsandra Mosque,
AIR 1969 Mys 193: (1968) 2 Mys LJ 410.
87 . (1885) 7 All 178.
88 . (1882) ILR 8 Cal 32, and Lutifunnissa Bibi v. Nazirun Bibi, (1885) 11 Cal 33.
89 . (1893) ILR 20 Cal 810.
90 . Vaidyanatha v. Swaminatha, AIR 1924 PC 221: (1924) ILR 47 Mad 884, 891 : 51 IA 282, 288.
91 . AIR 1928 PC 16: (1928) ILR 55 Cal 519 : 55 IA 96; Biswanath v. Radha Ballabhji, AIR 1967 SC 1044 [LNIND 1967 SC 34]: (1958) 60
Punj LR 761.
1 . AIR 1922 Mad 17 [LNIND 1921 MAD 124]: (1922) ILR 45 Mad 113 : 69 IC 304(FB); Bapuji v. Govindlal, (1916) ILR 40 Bom 439 : 34
IC 167; Shanmukham v. Govinda, AIR 1938 Mad 92 [LNIND 1937 MAD 171]: (1938) ILR Mad 39 : 176 IC 26; Shri Ram Pershad v. Chhano
Devi, AIR 1969 Del 75 [LNIND 1967 DEL 133].
2 . AIR 1941 All 1: (1940) All LJ 705; Balkishendas v. Parameshwari Dass, AIR 1952 Punj 386; Thirugnana Sambhandam v. Ramchandran, (1953)
1 Mad LJ 486.
3 . AIR 1952 TC 323: (1951) ILR TC 543.
4 . AIR 1923 All 120: (1923) ILR 45 All 215 : 71 IC 420; Madhavrao v. Shri Omkareshvar Ghat, AIR 1929 Bom 153: 119 IC 775 : (1929) 31
Bom LR 192.
5 . AIR 1967 SC 1044 [LNIND 1967 SC 34]. Murti Chaturbhujji v. Govindlal, 1965 MP 3; Virbasavaradhya v. Devotees of Lingadagudi, AIR 1973
Mys 280.
6 . AIR 1927 All 257: (1927) ILR 49 All 435 : 99 IC 1045.
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7 . AIR 1954 TC 51; Sher Ali v. Nasirkhan, AIR 1974 Raj 150.
8 . AIR 1956 SC 382 [LNIND 1956 SC 196].
9 . AIR 1954 SC 5.
10 . AIR 1970 SC 532 [LNIND 1969 SC 222]: [1970] 1 SCR 634 [LNIND 1969 SC 222].
11 . Vidyodaya Trust v. Mohan Prasad, AIR 2008 SC 1633 [LNIND 2008 SC 503]: (2008) 4 SCC 115 [LNIND 2008 SC 503].
12 . Ibid, para 25 at p. 1640.
13 . Perumalammal v. R. Guruvammal, 2008 (69) All Ind Cas 427 : 2008 (3) CTC 476 (Madurai Bench)
14 . Budree Das v. Chooni Lal (1906) ILR 33 Cal 789, p. 805; Gayaprasad v. Bhargao, AIR 1934 Nag 144; Bachin Singh v. Ganpat Rai, AIR 1937
Lah 660; Gobind Chandra Ghosh v. Abdul Majid, AIR 1944 Cal 163: (1944) ILR 1 Cal 329; Mukarem Das Mannudas v. Chhagan Kishan, AIR
1959 Bom 491 [LNIND 1957 BOM 80]: (1957) ILR Bom 809 : (1957) 59 Bom LR 1144; A. Gunamani v. W.R. Stephen (1962) 1 Mad LJ
278.
15 . AIR 1928 PC 16: (1928) ILR 55 Cal 519 : (1928) 55 IA 96; O Rm OM Firm v. Nagappa, AIR 1941 PC 1: (1941) ILR Mad 175 : 67 IA 448
: (1940) 42 Bom LR 444 : (1941) 45 CWN 385 : (1941) 73 Cal LJ 166 (PC). See case (i) below
16 . AIR 1928 PC 16: (1928) ILR 55 Cal 519,108 IC 361 : 55 IA 96.
17 . AIR 1940 Mad 81 [LNIND 1939 MAD 215]: 189 IC 749 : (1939) 2 Mad LJ 920.
18 . AIR 1952 SC 143 [LNIND 1952 SC 17]: [1952] SCR 513 : (1952) SCJ 125 : 1952 SCA 281.
19 . AIR 1951 Mad 406 [LNIND 1950 MAD 261]: (1951) ILR Mad 228 : (1950) 2 Mad LJ 282.
20 . AIR 1963 Bom 153; Kakaram Das Mannudas v. Chhagan Kishen.
21 . (1893) ILR 16 Mad 31; Ganga Charan v. Ramchandra, AIR 1928 All 33: (1928) ILR 50 All 165 : 106 IC 389.
22 . AIR 1958 Mad 307 [LNIND 1957 MAD 191]: (1957) 2 MLJ 634 [LNIND 1957 MAD 191] : 70 LW 940.
23 . (1899) ILR 21 All 187; Ghazaffar v. Yawar Husain, (1906) ILR28 All 112, 117, 120, 121; Dasondhay v. Muhammad, (1911) ILR 33 All 660 :
11 IC 36; Muhammad Baksh v. Musammat Piari, AIR 1921 All 116: 62 IC 744 : (1921) 19 All LJ 236.
24 . (1885) ILR 11 Cal 33.
25 . See Mohiuddin v. Sayiduddin, (1893) ILR 20 Cal 810.
26 . (1900) ILR 24 Bom 170; Lakshmandas v. Ganpatrav, (1884) ILR 8 Bom 365; Vishvanath v. Rambhat, (1891) ILR 15 Bom 148; Ghelabhai v.
Uderam, 12 IC 577.
27 . (1912) 37 Bom 95 : 17 IC 665.
28 . (1917) ILR 40 Mad 212 : 38 IC 73 (FB); Alekha Gadi Brahma v. Sudarsan Mohapatra, AIR 1954 Ori 11: (1953) ILR Cut 578,.
29 . AIR 1923 All 319: (1923) ILR 45 All 335 : 71 IC 767(the defendant in such a case is a tresspasser); Ganga Puri v. Mohan Lal, AIR 1924
Lah 131: (1923) ILR 4 Lah 295 : 73 IC 645.
30 . Narsidas v. Ravishankar, AIR 1931 Bom 33: (1930) 32 Bom LR 1435.
31 . Gobind Chandra Ghosh v. Abdul Majid, AIR 1944 Cal 163; Abdul Majid v. Aktar Nabi, AIR 1935 Cal 805: (1935) 39 Cal WN 1103.
32 . Janki Prasad v. Kuber Singh, AIR 1963 All 187 [LNIND 1962 ALL 89]. See note Trustee above.
33 . Raghavalu v. Pellati, (1914) 27 Mad LJ 266; Rangasamy v. Chinnasamy, (1915) 28 Mad LJ 326; Evalappa Mudaliar v. Balakrishnamma, AIR
1927 Mad 710 [LNIND 1927 MAD 121]: (1927) 53 MLJ 183 [LNIND 1927 MAD 105].
34 . Budhsingh v. Niradbaran, (1905) 2 Cal LJ 431; dissenting from Sajedur v. Gour Mohun Das, (1897) ILR 24 Cal 418; Budree Das v. Chooni Lal,
(1906) ILR 33 Cal 789, 805; Gholam Mowlah v. Ali Hafiz, (1918) 28 Cal LJ 4.
35 . Husenio Begam v. Collector of Moradabad, (1898) ILR 20 All 46.
36 . Ratan Sen v. Suraj Bhan, AIR 1944 All 1: (1944) ILR All 20; Ghazaffar v. Yawar Husain, (1906) ILR 28 All 112, 116; Dadda Narayana Sa v.
Hanumanthappa, AIR 1953 Mys 25: (1953) ILR Mys 107 : 32 Mys LJ 61.
37 . Manohari v. Muhammad, (1911) 33 All 752; Janki Prasad v. Kuber Singh, AIR 1963 All 187 [LNIND 1962 ALL 89].
38 . Anjaneya v. Kothandapani, AIR 1936 Mad 449 [LNIND 1935 MAD 317].
39 . Collector of Poona v. Basi Chanchalbal, (1911) ILR 35 Bom 470.
40 . Budhsingh v. Naradbaran, (1905) 2 Cal LJ 431; Gholam Mowlah v. Ali Hafiz, (1918) 28 Cal LJ 4; reversing (1915) ILR 42 Cal 1135; Budree
Das v. Chooni Lal, (1906) ILR 33 Cal 789, 805; Raghavalu v. Pellati, (1914) 27 Mad LJ 266; Collector of Poona v. Bai Chanchalbai, (1911) ILR 35
Bom 470.
41 . Abdur Rahim v. Abu Mahomed, AIR 1928 PC 16: (1928) ILR 55 Cal 519 : 55 IA 96.
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42 . (1935) 39 Cal WN 1103.

43 . Johnson D Po Min v. U Ogh, AIR 1932 Rang 132: (1932) ILR 10 Rang 342.
44 . Kalimata Thakurani v. Jibandhan Mukherjee, AIR 1962 SC 1239 [LNIND 1961 SC 329].
45 . Jamal-uddin v. Mujaba Husain, (1903) ILR 25 All 631; Nihal Shah v. Mst Malan, (1920) 2 Lah LJ 457; Khursaidi Begum v. Secretary of State,
AIR 1926 Pat 321: (1926) ILR 5 Pat 539; Miran Baksh v. Allah Baksh, AIR 1927 Lah 350: (1927) ILR 8 Lah 111 : 99 IC 756; Shihan Abdul
v. Abdul Alim, AIR 1930 Cal 787: (1930) ILR 58 Cal 474.
46 . Budree Das v. Chooni Lal, (1906) 33 Cal 789; Ramados v. Hanumantha, (1913) 36 Mad 364.
47 . Alimiya v. Sayad Mohamed, AIR 1968 Guj257 [LNIND 1967 GUJ 130].
48 . Pannalal v. Hansraj, AIR 1940 Cal 236: (1940) ILR 1 Cal 14. See note above: Suits for a declaration and for possession of trust property
against third persons, ie, strangers to the trust.
49 . Abdul Karim v. Abdus Sobhan, (1911) ILR 39 Cal 146.
50 . Mohomed v. Abdul Hassan, (1941) ILR 41 Cal 886.
51 . Mohabor v. Hazi, AIR 1921 Cal 210: (1921) ILR 48 Cal 53; Gangagir Chela v. Rasal Singh, AIR 1965 Punj 472: (1965) ILR 2 Punj 81 :
(1965) 67 Punj LR 592.
52 . Arjun Nath v. Kailash, AIR 1966 J&K 31.
53 . Bapuji v. Gobindlal, (1916) ILR 40 Bom 439.
54 . Mohammed Haji v. Saithu Muhammed, AIR 1962 Ker 28 [LNIND 1960 KER 352]: (1960) 1 Ker LR 47 : (1961) Ker LT 13 [LNIND 1960
KER 299].
55 . Dhoribhai v. Pragdasi, AIR 1935 Bom 172: (1935) ILR 59 Bom 412 : (1935) 37 Bom LR 120.
56 . Amardas v. Harmanbhai, AIR 1942 Cal 1: (1941) 73 Cal LJ 475; Ramrup v. Ramdhari, AIR 1925 All 683: (1925) ILR 47 All 770; Sarat
Kumar Mitra v. Hem Chandra Dey, AIR 1960 Cal 558 [LNIND 1960 CAL 126].
57 . Lachman v. Munia, AIR 1925 All 759: (1925) ILR 47 All 867; Johnson D Po Min v. U Ogh, AIR 1932 Rang 132: (1932) ILR 10 Rang 342.
58 . Akbar Ali Barlaskar v. Ataur Rahman Barlaskar, AIR 1954 Assam 361; Sarat Kumar Mitra v. Hem Chandra Dey, AIR 1960 Cal 558
[LNIND 1960 CAL 126].
59 . Vadlamudi v. Venkataseshayya, AIR 1928 Mad 614 [LNIND 1927 MAD 437].
60 . Kashinath v. Gangabai, AIR 1931 Bom 170: (1930) 32 Bom LR 1687; Bishambar v. Mst Phulgari, AIR 1930 Lah 715: (1930) ILR 11 Lah
673.
61 . Syed v. Bibi, AIR 1925 Pat 544: (1925) ILR 4 Pat 741; Saw v. Baggah, AIR 1925 Rang 294: (1925) ILR 3 Rang 213(suit for the possession
of a church and for accounts from the defendants).
62 . Appanna v. Narasinga, AIR 1922 Mad 17 [LNIND 1921 MAD 124]: (1922) ILR 45 Mad 113(FB); Narayan v. Mootha, (1930) ILR 53 Mad
214.
63 . Tirumalai Tirupati Devasthan Committee v. Udairav Krishnayya Shambhaga, AIR 1943 Mad 466 [LNIND 1943 MAD 103]: (1943) ILR Mad
619(FB).
64 . Krishna v. Alwarappa, AIR 1933 Mad 70 [LNIND 1932 MAD 176]: (1932) 63 Mad LR 703; Jankibai v. Kothandpani, AIR 1935 Mad 825
[LNIND 1935 MAD 166]: (1935) ILR 58 Mad 988.
65 . Nellaiyapa v. Thangamma, (1898) ILR 21 Mad 406; Ram Das v. Badri Narain, (1907) ILR 29 All 27.
66 . Monmotho Harish Chandra, (1906) ILR 33 Cal 905.
67 . Tricumdass v. Khimji, (1892) ILR 16 Bom 626; Syad Hussain v. Collectore of Kaira, (1897) ILR 21 Bom 48.
68 . Nellaiyappa v. Thangama, (1898) ILR 21 Mad 406; Budree Das v. Chooni Lal, (1906) ILR 33 Cal 789; Monmotho v. Harish Chandra, (1906) ILR
33 Cal 905; Ram Das v. Badri Narain, (1907) ILR 29 All 27.
69 . Pratapsinghji N Desai v. Deputy Charity Commissioner, AIR 1987 SC 2064 [LNIND 1987 SC 574].
70 . Shanmughan v. Vishnu Bharatheeyan, AIR 2004 Ker 143 [LNIND 2003 KER 544] (DB).
71 . Sitharama v. Subramania Iyer, (1916) 39 Mad 700.
72 . Subramania v. Krishnaswamy, (1919) 42 Mad 668.
73 . Panch Cowrie Mull v. Chumroo Lall, (1878) 3 Cal 563; Annasami Pillai v. Ram Krishna Mudaliar, (1901) 24 Mad 219.
74 . Jan Ali v. Ram Nath, (1882) ILR 8 Cal 32; Sheoratan v. Ram Pargash, (1886) ILR 18 All 227; Muthu v. Gangathara, (1894) ILR17 Mad 95.
75 . Venkataranga v. Krishnama, (1914) ILR 37 Mad 184; Harsraj v. Anant, (1918) ILR 42 Bom 742.
76 . Ranganayaki v. Shivarama, AIR 1930 Mad 216 [LNIND 1929 MAD 246]: (1930) 58 Mad LJ 104.
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77 . Balbir Singh v. Sikh Gurdwaras Judicial Commission, AIR 1967 Punj 272: (1967) ILR 2 Punj 494.
78 . AIR 1967 Punj 272: (1967) ILR 2 Punj 494.
79 . Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar, AIR 1954 SC 282 [LNIND 1954 SC 69]: (1954) SCR 1005
[LNIND 1954 SC 69] : (1954) SCJ 335 [LNIND 1954 SC 69] : (1954) SCA 415 [LNIND 1954 SC 69].
80 . Sudhindra Thirtha Swamiar v. Hindu Religious and Charitable Endowment Commissioner, AIR 1956 Mad 491 [LNIND 1955 MAD 210]: (1956)
ILR Mad 229 : (1956) 1 Mad LJ 53269 LW 337.
81 . AIR 1961 Mad 265 [LNIND 1959 MAD 205]: (1960) ILR Mad 992 : (1960) 2 Mad LJ 12173 LW 774.
82 . Emlea Tripamma v. Nagappa, AIR 1991 Kant 413 [LNIND 1991 KANT 79] (DB) (case under the Hyderabad Endowment Regulation
1941).
83 . Rajeevlochanchar v. D. Ramachar, AIR 1988 Mad 227 [LNIND 1986 MAD 333]; See also Srisaila Kshetra All India Arya Vysya Anna Satra
Sangam v. P Satyanarayana, AIR 2006 (NOC) 1471(AP).
84 . B.K.C. Muruga Konar v. Setha Kone, (1989) Supp 2 SCC 612.
85 . T. Lakshmi Kumara Thatha Chariar v. The Commr, Hindu Religious and Charitable Endowments (Administration) Department, AIR 1997 Mad 346
[LNIND 1997 MAD 504] (DB).
86 . R. Murali v. Kanyake P. Deuasthanam and Charities, AIR 2005 SC 3096 [LNIND 2005 SC 552]: (2005) 6 SCC 166 [LNIND 2005 SC 552].
87 . Vinayak Dev Idagunji v. Shivaram, AIR 2005 SC 3081 [LNIND 2005 SC 563]: (2005) 6 SCC 641 [LNIND 2005 SC 563].
88 . Kuldip Chand v. Advocate General to Government of HP, AIR 2003 SC 1685 [LNIND 2003 SC 196].
89 . Radhakrishne Rice Mill v. Jumma Maseed, AIR 2003 Andh Pra 70 (DB).
90 . Mohammad Jacco Sait v. District Collector, Trichur, AIR 1962 Ker 343: (1962) ILR 2 Ker 187 : (1962) Ker LJ 902 : (1962) Ker LT 544.
91 . Mohammad Ghouse Sahib v. Mohammad Kuthubudin Sahib, (1985) 1 SCC 628 [LNIND 1985 SC 39].
1 . Syed Moinuddin v. Tamil Nadu Wakf Board, Madras, AIR 1998 Mad 129 [LNIND 1997 MAD 763] (DB).
2 . Chhabile Ram v. Durga, (1915) ILR37 All 296.
3 . Parameswaran v. Narayanana, (1917) ILR40 Mad 110; Sayyed v. Dost, AIR 1925 Mad 244: (1924) 47 Mad LJ 745; Bapiraji v. Ramchandra,
AIR 1933 Mad 854 [LNIND 1933 MAD 51]: (1933) 65 Mad LJ 690.
4 . Gopi Das v. Lal Das, (1918) PR No 97 p. 321.
5 . CE Dooply v. ME Moolla, AIR 1927 Rang 180: (1927) ILR 5 Rang 263.
6 . Abdul Satar v. Kunhu Moidu, AIR 1953 TC 390: (1952) ILR TC 871.
7 . Anand Rao v. Ramdas, AIR 1921 PC 123: (1921) ILR 48 Cal 493, p. 49798 : 48 IA 12, p. 16; Ali Begum v. Badnil, AIR 1938 PC 184:
(1938) ILR Lah 383 : 65 IA 198; Narain Lal v. Sunderlal Tholia, AIR 1967 SC 1540 [LNIND 1967 SC 189].
8 . Ram Ghulam v. Shyam Sarup, AIR 1934 All 1: (1934) ILR 55 All 687.
9 . Kadri v. Khubmiya, AIR 1931 Bom 388: (1931) 33 Bom LR 546.
10 . Sivagnana v. Advocate-General, (1915) 28 Mad LJ 174; Mongilal v. Durga Devi, AIR 1968 Raj 314.
11 . Anand Prakash Sharma v. Sunil Kumar, AIR 1987 All 296 [LNIND 1987 ALL 46].
12 . Dhirendra Singh v. Dhanai, AIR 1983 All 216.
13 . Shre Goleswar Dev v. Gungawwa Kom Shantayya Nath, AIR 1986 SC 231 [LNIND 1985 SC 332]: (1985) 4 SCC 393 [LNIND 1985 SC 332]
: (1985) Supp 3 SCR 646.
14 . Mufti v. Fazal, AIR 1922 All 349: (1922) ILR 44 All 622.
15 . Neti Rama v. Venkatacharulu, (1903) ILR 23 Mad 450; Srinivasa v. Srinivasa, (1893) ILR 16 Mad 31.
16 . Lakshmandas v. Jugalkishore, (1898) ILR 22 Bom 216; Gopu v. Rajammal, AIR 1922 Mad 394 [LNIND 1922 MAD 34]: (1922) 43 Mad LJ
448, pp. 452-53.
17 . Mahant Banabhary Puri v. Naga Anand Puri, AIR 1944 Pat 115.
18 . Mohd Ibrahim Khan v. Ahmad Said Khan, (1910) ILR 32 All 503.
19 . Bihari Lal v. Shiva Narain, AIR 1924 All 884: (1925) ILR 47 All 17.
20 . Jan Mahomed v. Syed Nurudin, (1908) ILR 32 Bom 155.
21 . Attorney-General v. Wright, (1841) 3 Beav 447; Attorney-General v. Logan, [1891] 2 QB 100, p. 106.
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22 . Swami Shankaranand (D) by LR v. Mahant Sri Sadguru Sarnanand, AIR 2008 SC 2763 [LNIND 2008 SC 1281]: (2008) 14 SCC 642
[LNIND 2008 SC 1281].
23 . Ibid, para 9 at p. 2765.
24 . Mayor of Lyons v. Advocate-General of Bengal, (1876) ILR 1 Cal 303 : 3 IA 32.
25 . TKVTSS Medical, Educational and Charitable Trust v. State of TN, AIR 2002 Mad 42 [LNIND 2001 MAD 725] (DB); B.K. Kamppannan v.
P. Thirumalai, AIR 1962 Mad 500 [LNIND 1961 MAD 168].
26 . Vadivelu v. Rajabada, AIR 1967 Mad 175 [LNIND 1964 MAD 28].
27 . Ram Sarup v. Union of India, AIR 1985 Del 318 [LNIND 1984 DEL 314] (DB).
28 . Kanji v. Advocate-General (1916) 18 Bom LR 60.
29 . C.E. Dooply v. M.E. Moola, AIR 1927 Rang 180: (1927) ILR 5 Rang 263.
30 . U. Po Sein v. U. Pu, AIR 1938 Rang 363.
31 . Chandraprasad v. Jinabharthi, AIR 1931 Bom 391: (1930) ILR 55 Bom 414; Mahadev v. Govindrao, AIR 1937 Bom 421: (1936) 38 Bom LR
1137.
32 . R.K. Narayana Chettiar v. N. Lakshmanan Chettiar, (1991) 1 SCC 48.
33 . Raju Pillai v. VP Paramasivan, AIR 1995 Mad 253 [LNIND 1995 MAD 7].
34 . Hemaram v. Mansukhram, AIR 1961 Raj 15 [LNIND 1960 RAJ 187]: (1960) ILR Raj 903 where the observation contra in Sarabjit Bharti
v. Lagan Dei, ILR 15 Oudh 202 case are discussed.
35 . Shrimali Lal v. Advocate-General, AIR 1955 Raj 166: (1955) ILR Raj 324.
36 . S. 92 does not apply to :
(i) any religious trust in Bihar, see Bihar Act 1 of 1951.
(ii) public trusts in Maharashtra and Gujarat, see Bombay Act 29 of 1950.
(iii) public trusts in Rajasthan, see Rajasthan Act 42 of 1959.
Ss. 92 and 93 do not apply to
(i) Hindu Religious Institutions and Endowments in Madras, see Madras Act 22 of 1959.
(ii) Charitable institutions and Hindu religious institutions and endowments in Andhra Pradesh, see AP Act 17 of 1966.
For institution of suits under s 92 without obtaining prior consent of by the Wakf Board in UP, see UP Muslim Wakfs Act, 1960, s 64 and
UP Gaz Extraordinary date 3-9-1960.
37 . Subs. for Provincial Government by AO 1950.
38 . Prem Narain v. Ram Charan, AIR 1932 PC 51: (1931) 53 All 990 : 59 IA 121; Lachmandas Gobardhandas v. Narayandas Amrutlal, AIR 1948
Nag 357: (1948) ILR Nag 281.
39 . Satyananda v. Phani Lal Mukherjee, AIR 1955 Cal 155 [LNIND 1954 CAL 89]: (1954) 58 Cal WN 861.
40 . Premo Mst v. Sheo Nath, AIR 33 Oudh 22 : (1933) ILR 8 Luck 266.
41 . Rasulkhan v. Jamma Masjid Sabugarpura, AIR 1935 Nag 28.
42 . Shrimali Lal v. Advocate-General, AIR 1955 Raj 166.
43 . Gulzari Lal v. Collector of Etah, AIR 1931 PC 121: (1931) ILR 53 All 910 : 58 IA 460.
44 . Purammal Fateh Chand v. Jagganath Hansraj, AIR 1949 Nag 183: (1948) ILR Nag 846; Somchand v. Chhaganlal, (1911) ILR 35 Bom 243.
45 . Manohar v. Lakhmiram, (1882) ILR 12 Bom 247.
46 . Aromalla v. Arimanda, AIR 1928 Mad 401.
47 . Shree Gollaleshwar Dev v. Gangawwa kom Shantayya Math, (1985) 4 SCC 393 [LNIND 1985 SC 332].
48 . B.K.C. Muruga Konar v. Setha Kone, (1989) Supp 2 SCC 612.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1

Part VI Supplemental Proceedings

S. 94. Supplemental proceedings.

In order to prevent the ends of justice from being defeated the Court may; if it is so
prescribed,

(a) issue a warrant to arrest the defendant and bring him before the Court to show
cause why he should not give security for his appearance, and if he fails to comply
with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him
and to place the same at the disposal of the Court or order the attachment of any
property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty
thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by
attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and
convenient.

HIGH COURT AMENDMENT

Calcutta. Add Proviso

Provided that the Court of Small Causes of Calcutta shall have no power to order
attachment of immovable property or to appoint a receiver of such property.Cal. Gaz., Pt. I., dated
April 20, 1967.

1. Scope. This section summarises the general powers of the court in regard to
interlocutory proceedings. The details of procedure have been relegated to Sch I.
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2. Power of Court. The source of power of the court to grant interim relief is under s 94.
However exercise of that power can only be done if the circumstances of the case fall
under the rules. Therefore, when a matter comes before the court, the court has to
examine the facts of each case and ascertain whether the ingredients of s 94, read with the
rules in an order, are satisfied and accordingly grant an appropriate relief. It is only in cases
where circumstances do not fall under any of the rules prescribed that the court can invoke
its inherent power under s 151, Code of Civil Procedure 1908. Accordingly, the courts have to
grant relief of attachment before judgment, if the circumstances fall under O 38, Code of
Civil Procedure. Similarly, courts will grant temporary injunction if the case satisfies O 39. So,
depending on the circumstances falling in the prescribed rules, the power of the court to
grant specified reliefs would vary. Therefore, each set of rules prescribed are distinct and
different from the other and therefore, one cannot equate rules of temporary injunction
with rules of attachment before judgment although all are broadly termed as interlocutory
orders.1

3. Clauses (a) and (b): Arrest and attachment before judgment.See O 38.

4. Clauses (c) and (e): Temporary injunctions and interlocutory orders.( See O 39).
The combined effect of this section and O 39, rr 1 and 2 is that the penalty provided by
r2(3) applies to an injunction issued under this section and O 39.2Section 94 (c) shows that
a court may grant a temporary injunction thereunder, only if it is so prescribed. The
expression prescribed in s 94 (c) would, as defined in s 2 (16), mean prescribed by the
rules. The rules relating to the grant of temporary injunctions are rr 1 and 2 of O 39.
Therefore, a temporary injunction may be granted under s 94 (c), only if a case satisfying
the requirements of O 39, rr 1 and 2 is made out. It is not correct to say that the court has
two sources of power to grant temporary injunctionone under s 94 (c) and the other under
O 39, rr 1 and 2 or that the court may resort to one or the other. A temporary injunction
may be granted, only under one set of provisions, namely, s 94 (c) read with O 39, rr 1 and
2. The court can grant a temporary injunction in the exercise of its inherent powers under s
151 also. But, there, it does not grant it under any power conferred by the Code of Civil
Procedure, but under inherent powers.3 An application was made for temporary injunction.
Prayer was for ad interim injunction, which was refused. It was held that ad interim
injunction may be granted subsequently, if further developments and altered circumstances
warrant it.4 Clauses 3 and 4 of r 2 have now been deleted by the Amendment Act, 1976.5

In a case of disobedience of its interim order the Supreme Court held that wilful and
deliberate disobedience of interim orders passed by the Supreme Court can never be said
to be bona fide, honest and in good faith and held the contemner guilty under s 12 of the
Contempt of Courts Act, 1971, read with s 94 (c) and O 39, r 2-A of the Code and Art. 129 of
the Constitution.6 Rejecting the apology tendered by the contemner, C.K. Thakker, J.,
speaking for the Bench observed as follows:

We are also satisfied that the so called apology is not an act of penitence, contrition or regret. It has been tendered as a tactful move
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when the contemners are in the tight corner and with a view to ward off the Court. Acceptance of such apology in the case on hand
would be allowing to contemners to go away with impunity after committing gross contempt of Court. In our considered opinion, on
the facts and in the circumstances of the case, imposition of fine in lieu of imprisonment will not meet the ends of justice.7

5. Clause (d): Appointment of receiver.( See O 40. See also notes to s 51, Receiver in
execution proceedings). In suitable cases, the court is not powerless to pass appropriate
orders for appointment of receiver without any application by any of the parties while
rejecting the application of temporary injunction. Such power, of course, has to be
exercised sparingly and in exceptional cases where dismissal of an application for grant of
temporary injunction may lead the party to take the law in to their own hands and use their
own devices either for protection of unlawful possession of recent origin or for gaining
possession on such like circumstances. There is no impediment put by the Code of Civil
Procedure in passing such order to prevent the ends of justice being defeated. Such order
may be immediately required to be passed also, so that possession may be made over to
that party who is prima facie entitled to possession, but is deprived by unlawful conduct or
illegal act of the other party. An appointment of receiver can be made on the application of
either parties to the litigation as well as suo motu and therefore, absence of application shall
not preclude the court from passing such order if it is just and convenient.8

An interim order is as much an order as a final order and is capable of being enforced.9

6. Clause (e): Other Interlocutory Orders. An application under O 6, r 17 for

amendment of written statement can be made in an application under O 6, r 17 read with s
s 94 and 151 of the Code of Civil Procedure.10

S. 95. Compensation for obtaining arrest, attachment or injunction on insufficient

grounds.

(1) Where, in any suit in which an arrest or attachment has been effected or a
temporary injunction granted under the last preceding section,
(a) it appears to the Court that such arrest, attachment or injunction was applied for
on insufficient grounds, or
(b) the suit of the plaintiff fails and it appears to the Court that there was no
reasonable or probable grounds for instituting the same,

the defendant may apply to the Court, and the Court may, upon such
application, award against the plaintiff by its order such amount, 11[not
exceeding fifty thousand rupees], as it deems a reasonable compensation to
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the defendant for the 12 expense or injury (including injury to reputation)

caused to him]:

Provided that a Court shall not award, under this section, an amount exceeding
the limits of its pecuniary jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in
respect of such arrest, attachment or injunction.

1. Changes introduced in the section. This section corresponds with s s 491 and 497 of
the Code of Civil Procedure 1882 except that the words by its order were substituted for the
words in its decree. The words by its order signified that the award should not form part
of the decree, but should be a separate order. Such an order is appealable under s 104.
Section 32 of the Amendment Act, 1976, has inserted, after the words expense or injury in
sub-s (1) the words into brackets, viz, (including injury to reputation).

Words not exceeding fifty thousand rupees in place of not exceeding one thousand rupees
have been substituted by the Code of Civil Procedure (Amendment) Act (46 of 1999) vide s 8,
wef 1 July 2002. Section 95 prior to amendment, provided for award of compensation not
exceeding Rs 1000 where in any suit in which an arrest or attachment has been effected or
a temporary injunction granted under s 94 of the Code on insufficient grounds or where
the suit of the plaintiff fails and it appears to the court that there was no reasonable or
probable grounds for instituting the same. The right of the plaintiff under this section was
independent of the right of the plaintiff to institute separate suit for compensation.

Where the plaintiff desired to insist on damages exceeding Rs 1000, the remedy of suit for
damage was the only available remedy. This amendment raises the amount of
compensation that could be awarded without instituting separate suit for damages. The
limit now prescribed under s 95 is Rs 50,000. This amendment shall desist the litigants to
institute frivolous litigation. Only serious and deserving litigants, it is expected shall now
approach the court to press for arrest, attachment or injunction. The amendment is a good
step to reduce the burden of the courts as a clear signal is sent to non-serious litigants to
avoid approaching the court, unless a prima facie case is made out.

2. Scope of the section. This section provides for compensation to the defendant in the
two following cases:

(i)
(a) Where an arrest or attachment before judgment has been effected or a temporary
injunction has been granted (see Orders 38 and 39); and
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(b) such arrest, attachment or injunction was applied for on insufficient grounds.

(ii)
(a) Where an arrest or attachment before judgment has been effected or a temporary
injunction has been granted;
(b) the plaintiff fails in the suit; and
(c) there was no reasonable or probable ground for instituting the suit.

In case (i), a conditional attachment under O 38, r 5(3), even if withdrawn on security
being furnished, is still within the section.13 The right to apply for compensation when an
injunction is obtained wrongfully, arises not when the order is made but when it is vacated
or dissolved either by the court granting it or by a court on appeal or revision.14 A claim
for compensation does not arise unless the writ is set aside on the defendants application
on the ground that it was issued on insufficient grounds. If the order of attachment before
judgment terminates automatically on the defendant depositing the requisite amount in
court, an application for compensation would not be entertained.15 But in order to
maintain such an application, it is not necessary that the order of arrest or attachment need
be set aside. Where the order is made after hearing the parties, it must mean that there
were sufficient grounds therefore. A subsequent application for compensation in such a
case would be barred by res judicata.16 Application styled as under s 94 may really be under
O 21, r 29. Where the plaintiff is not making out a case for relief under O 21, r 29 on the
merits, he cannot get relief under s 151. Suit was for declaration that the decree passed in
earlier title suit filed by plaintiffs father was not binding on the plaintiff, on the ground that
the father had wantonly omitted to implead the plaintiff. The plaintiffs application for stay
of execution of the decree in the title suit, though styled as made under s 94 was in fact,
one covered by O 21, r 29 of the Code of Civil Procedure.17

In case (ii), it is not necessary to show that the arrest, attachment or injunction was applied
for, on insufficient grounds. It is enough if the plaintiff fails in the suit, and there was no
reason able or probable ground for instituting the suit. The principle is that a plaintiff who
has obtained an arrest, attachment or injunction by instituting a suit without any probable
ground, should be punished as much as a plaintiff who has obtained the process on
insufficient grounds.

3. Section no bar to a regular suit. This section provides a summary remedy for an
injured defendant and enables him to seek compensation for the injury done to him by the
plaintiff by an application to the court instead of by a suit. But the remedy under this
section is optional, and an injured defendant may, if he so chooses, institute a regular suit
against the plaintiff for compensation for wrongful arrest, attachment or injunction.18
Thus, this section is an alternative remedy in cases of wrongful obtainment of an
injunction and it does not in any way interfere the no principle regulating suits for damages
for tort or malicious legal process.19 This clearly appears from sub-s (2), which impliedly
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recognises the right of a defendant to institute a regular suit for compensation.20 In a suit
for compensation, however, the plaintiff must prove malice in fact, in addition to the facts
required to be proved by this section.21 But whether the proceeding is by way of suit or by
an application under this section, the defendant is not entitled to any compensation unless
the attachment has been effected. Merely procuring an order for attachment before
judgment, however, maliciously is not sufficient to entitle the defendant to
compensation.22(As to the period of limitation for a suit, see Limitation Act, 1963, Sch 1,
Arts 73, 80 and 90 and the undermentioned cases).23 (As to suits for damages for
temporary injunction, see the undermentioned cases).24 On determination of lease by
efflux of time, plaintiff was granted decree for possession. Defendant had obtained ad
interim injunction under O 21, r 101 restraining the decree-holder from dealing with the
goods stored in the premises (oil seeds). It appeared that the defendants had wrongfully
stored oil seeds in the plaintiffs godown. It was held that the plaintiff could claim damages
from the defendant. Apart from s 95 (1), an aggrieved party can sue for damages for
wrongful occupation. The scope of such a suit was much wider than s 95. Malice also need
not be proved. Where malice is the gist of the action, neither section 95 nor the ingredients
of an action for malicious prosecution stand in the way. Damage, with all the legal
implications pleaded and proved, should govern the fate of such a suit.25

4. On insufficient grounds. These words are equivalent to without reasonable and

probably cause.26 The question to be decided under s 95 is, whether there are no sufficient
grounds for applying for attachment and not whether there are no reasonable grounds
stated in the creditors application.27 If the only ground put forward is that unless the
attachment is made, the plaintiff in the event of success will have difficulty in realising the
decretal amount, the application is made on altogether insufficient grounds.28

5. May apply. An order for compensation under this section cannot be made as part of
the suit, and incorporated in the decree, but on an independent application. Such an order
is one, passed in a collateral proceeding and is open to appeal as an order under s 104.29

6. Compensation for injury. There was a conflict of opinion amongst the High Courts
on the question whether in the absence of injury to person or property compensation
could be awarded30 for loss of reputation which must result from an order of arrest or
attachment. This conflict is now resolved by the insertion in sub-s (1) of the words
(including injury to reputation) which clarifies that compensation can be awarded for loss
of, or injury to reputation.

7. An award under this section is a bar to a regular suit. Once an application is made
by a defendant under this section for compensation for wrongful arrest, attachment or
injunction and an order is made under this section, the defendant cannot institute a regular
suit for compensation for the same wrong whether any compensation is awarded to him or
not. In other words, the disposal of an application under this section has the effect of res
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judicata so as to bar any subsequent suit in respect of the same cause of act ion. It is the
disposal of the application and not its mere presentation which is a bar to a regular suit.

Where the suit for damages caused for having obtained interim injunction wrongfully was
filed, application for compensation filed under s 95 was dismissed, no appeal or revision
was preferred against the said order. Separate regular suit for damages is debarred by virtue
of s 95 (b), Code of Civil Procedure.31

8. Amount of compensation. The amount of compensation that may be awarded under

this section cannot exceed Rs 50,000. Where a defendant claims a larger amount of
compensation, he must institute a regular suit.

9. Realistic Cost. Judicial notice can be taken of the fact that many unscrupulous parties
take advantage of the fact that either the costs are not awarded or nominal costs are
awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties
to bear their own costs. In large number of cases, such an order is passed despite s 35 (2) of
the Code of Civil Procedure. Such a practice also encourages filing of frivolous suits. It also
leads to taking up of frivolous defences. Further, wherever costs are awarded, ordinarily
the same are not realistic and are nominal. When s 35 (2) provides for cost to follow the
event, it is implicit that the costs have to be those which are reasonably incurred by a
successful party except in those cases where the court in its discretion may direct otherwise
by recording reasons thereof. The costs have to be actual reasonable costs including the
cost of the time spent by the successful party, the transportation and lodging, if any, or any
other incidental cost besides the payment of the court-fee, lawyers fee, typing and other
cost in relation to the litigation. It is for the High Courts to examine these aspects and
wherever necessary, make requisite rules, regulations or practice direction so as to provide
appropriate guidelines for the subordinate courts to follow.32

10. Right of defendant not served with summons to apply for compensation under
this section. If a defendant is arrested before judgment, he is entitled to apply for
compensation under this section, though he has not been served with the writ of summons
in the suit.33

11. Counter-claim for compensation in a summary suit. If a defendant, who is arrested

before judgment in a summary suit brought against him on a negotiable instrument under
O 37, claims compensation for arrest under this section, he is entitled on that ground to
apply for leave to defend the suit under O 37, r 3, and if a prima facie case is made out, leave
to defend should be given.34

12. Provincial Small Cause Courts. A Provincial Small Cause Court has no jurisdiction
to make an order for the attachment before judgment of immovable property. But it may
order an attachment before judgment of movable property, and if the attachment was
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obtained on insufficient grounds, it may award compensation to the defendant under this
section.35

13. Minor plaintiff. This section applies to cases in which the plaintiff is a minor,36 but the
next friend cannot be made liable under the section.37

14. Appeal. An appeal lies from an order under this section: see s 104, sub-s (1), cl (g).
Section 491 of the Code of Civil Procedure 1882 provided for compensation for wrongful
arrest and attachment. Section 497 provided for compensation for wrongful injunction. An
order under s 497 was appealable under the Code,38 but orders under s 491 were held to be
not appealable.39 The present section combines the provisions of ss 491 and 497, and s 104
gives a right of appeal from all orders under this section, whether they are orders made on
an application for compensation for wrongful injunction, or for wrongful arrest or
attachment.

15. Undertaking. Where a temporary injunction has been granted on an undertaking by

the plaintiff to compensate the defendant for any loss that may arise by reason of the
injunction, the undertaking is enforced by an application under this section to the court
which granted the injunction. A attaches a house in execution of a decree against B. C sues
for a declaration that the house belongs to him, and obtains a temporary injunction staying
the sale on his undertaking to pay interest to A at 6 per cent on the value of the house if
his suit be dismissed. C's suit is dismissed. In such a case, the procedure to be adopted by
A to recover the interest from C is to apply not to the court executing the decree, but to
the court which granted the injunction.40

16. Injunctions and Compensation. The High Court of Rajasthan, in a judgment, has
held that if a person obtains a temporary injunction and the circumstances are such that
the court finds it just to make the injunction conditional on the petitioner giving an
undertaking to pay compensation, if the injunction is later found to be unjustified, the
court has got the power to give such a direction and to impose such a condition. In the
Rajasthan case mentioned above, the trial court had granted a temporary injunction in
favour of the petitioner, staying the eviction of the petitioner from the disputed premises.
The temporary injunction was vacated (on appeal) by the District Judge of Tonk.
Aggrieved with the appellate order against him, the petitioner approached the High Court
in revision.41 The High Court noted that the other party had a decree in its favour to evict
the petitioner. A dispute arose as to the exact premises in respect of which such party was
in possession. The High Court passed a limited order to the effect, that the status quo, as it
existed, shall be maintained by both the parties and no one will try to evict the other by use
of force. The trial court shall determine the act ual possession as existing on the date of the
High Courts judgment, by sending a commissioner to the spot. But more important is the
condition imposed by the High Court, which gave a direction that the petitioner will pay
Rs 500 per month as damages to the opposite party, in case the petitioner fails finally in the
suit. For this purpose, within six weeks, the petitioner shall give an undertaking to the trial
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court, failing which the opposite party would have a right to execute the decree and the
conditional stay order granted by the High Court shall come to an end. It may be
mentioned that in this case the court itself has imposed a condition. Of course, under s 95,
the court may award against the plaintiff, by its order, an amount not exceeding one
thousand rupees as reasonable compensation to the defendant for the expense or injury
(including injury to reputation) caused to the defendant. But this is after the proceedings
are over.

17. High Court. Where a temporary injunction was granted by the High Court of Bombay
in its original jurisdiction on an undertaking by the plaintiff under r 347 (present r 351) of
that court, to pay such sum by way of damages as the court may award as compensation in
the event of a party affected, sustaining prejudice by such order, it was held that the court
has power under that rule to award compensation to the defendant, exceeding Rs 1,000 on
an application by the defendant in that behalf.42

1 . Vareed Jacob v. Sosamma Geevarghese, AIR 2004 SC 3992 [LNIND 2004 SC 539].
2 . Hiralal v. Popatlal, AIR 1969 Guj 28 [LNIND 1967 GUJ 44].
3 . Jagjit Singh v. Rakhal Das, AIR 1988 Cal 95 [LNIND 1987 CAL 111].
4 . Jagjit Singh v. Rakhal Das, AIR 1988 Cal 95 [LNIND 1987 CAL 111].
5 . But see the new r. 2A.
6 . Patel Rajnikant Dhulabhai v. Patel Chandrakant Dhulabhai, AIR 2008 SC 3016 [LNIND 2008 SC 1478]: (2008) 14 SCC 561 [LNIND 2008
SC 1478].
7 .Ibid, para 68 at p. 3027.
8 . Mulji Umershi Shah v. Paradisia Builders Pvt. Ltd., AIR 1998 Bom 87 [LNIND 1997 BOM 192].
9 . R.B. Thakur v. Shreeram Durgaprasad, AIR 1968 Bom 35 [LNIND 1966 BOM 34]: (1968) 69 Bom LR 250 : (1967) ILR Bom 925.
10 . Pothineni Venkateswarlu v. Bodempudi Kotamma, AIR 1994 Andh Pra 40.
11 . Subs. for not exceeding one thousand rupees by the CPC (Amendment) Act, 1999, (46 of 1999), s. 8 (w.e.f. 1-7-2002) vide Notfn. S.O.
603(E), dt. 6-6-2002.
12 . Subs. by Act 104 of 1976, s 32, for the words expense or injury caused to him (w.e.f. 1-7-2002).
13 . Ananda v. Shariatulla, AIR 1932 Cal 92: (1932) 35 Cal WN 546.
14 . Garagiah v. Manche Gowda, AIR 1971 Mys 178: (1971) Mys LJ 53.
15 . Gyan Prakash Mital v. Kishorilal, AIR 1942 All 261: (1942) ILR All 360.
16 . Khalilur Rahman v. Syed Hussain, AIR 1961 Mad 220 [LNIND 1960 MAD 251]: (1961) ILR Mad 178 : (1960) 2 MLJ 479 [LNIND 1960
MAD 251]; Subrayan v. Kochuvarkey, AIR 1959 Ker 18 [LNIND 1958 KER 73]: (1958) ILR Ker 819 : (1958) Ker LJ 606 : (1958) Ker LJ
565.
17 . Parmananda Panda v. Krishna Chandra Panda, AIR 1990 Ori 188 [LNIND 1989 ORI 41].
18 . Har Kumar v. Jagat Bandhu, AIR 1927 Cal 247: (1927) 53 Cal 1008.
19 . Bank of India v. Lakshmi Das, [2000] LRI 18.
20 . Palani v. Udayar, (1909) 32 Mad 170.
21 . Nanjappa v. Ganapathi, (1912) 35 Mad 598; Imperial Tobacco Co. v. Bonnan, AIR 1928 Cal 1: (1927) 47 Cal LJ 455.
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22 . Rama v. Govinda, (1916) 39 Mad 952; Mohammed v. SM Ashar, AIR 1939 Rang 260; Lakshmichand v. Abdul Gaffoor, AIR 1952 Bho 14;
Jagad v. Misrilal, (1958) Raj LW367.
23 . Ram Narain v. Umrao Singh, (1907) 29 All 615; Surajmal v. Maneckchand, (1904) 6 Bom LR 704; Manavikraman v. Avisilan, (1896) 19 Mad
80; Murugesa v. Jattaram, (1900) 23 Mad 621; Sokkalingam v. Krishneswami, (1920) 38 MLJ 324 [LNIND 1919 MAD 149]; Kanthammal v.
Rajalakshmi, (1960) 2 MLJ 484 [LNIND 1960 MAD 42].
24 . Nand Coomar v. Gour Sunkar, (1870) 13 WR 305; Mohini v. Surendra, (1915) 42 Cal 550, 55657.
25 . Bank of India v. Sital Chandra, AIR 1986 Cal 313 [LNIND 1985 CAL 351] (DB).
26 . Roulet v. Fetterle, (1894) 18 Bom 717, 720; Parikh Jivanlal v. Shah Chhitalal, AIR 1960 Bom 326 [LNIND 1959 BOM 25]: (1959) ILR Bom
1680; Jeewanlal v. Central Bank of India, AIR 1953 MB 90: (1953) ILR MB 29.
27 . Rajaram v. Balkrishna, AIR 1937 Nag 126: (1938) ILR Nag 361.
28 . Har Dayal v. Raghubir Dayal, AIR 1934 Oudh 429: (1935) 10 Luck 199.
29 . Abraham v. Varampattan Asirbatham, (1961) 2 MLJ 454 : 74 LW 810.
30 . Palanisami v. Kaliappa, AIR 1940 Mad 77 [LNIND 1939 MAD 210]; Srinivasaraghan v. Sundararajan, AIR 1955 Mad 552 [LNIND 1954
MAD 103]; Choudhary v. P.V. Bhagwat, AIR 1954 Mad 62 [LNIND 1951 MAD 294]: AIR 1953 MB 247; contra Chandulal v. Siraoji, 39
Cal WN 915; Johermal Chimanlal & Co. v. Iswardas, AIR 1932 Cal 695: ILR 59 Cal 1082; Seenappa Setty v. Suryanarayana Rao, AIR 1958 Mys
136: (1957) ILR Mys 339.
31 . Yerragorla Narayana v. Gavvala Nellesu, AIR 2006 Andh Pra 305.
32 . Salem Advocate Bar Assn v. Union of India, AIR 2005 SC 3353 [LNIND 2005 SC 573].
33 . Syed Ali v. Abid,(1891) 15 Bom 160.
34 . Roulet v. Fetterle, (1894) 18 Bom 717.
35 . Ibrahim v. Sangaram, (1903) 26 Mad 504. See s 7(b) (i), and O 38, r 13.
36 . Ramachari v. Govind, AIR 1935 Mad 886 [LNIND 1935 MAD 249].
37 . Satyanarayana v. Anjareddi, AIR 1941 Mad 719 [LNIND 1941 MAD 112]: (1941) ILR Mad 985.
38 . Code of 1882 s. 588 cl (24).
39 . Narasinga v. Govinda, (1901) 24 Mad 62; Lok Nath v. Amir Singh, (1906) 28 All 81.
40 . Varajlal v. Kastur, (1898) 22 Bom 42.
41 . Jhanku v. Leed Mohamed, judgment dated 6 March, 1990 in SB Civil Division petition No. 518/89 (RajHC).
42 . Haji Abdul v. Munjibhai, AIR 1926 Bom 523: (1926) 28 Bom LR 1077.

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part VII Appeals

Part VII Appeals

Appeals from Original Decrees

S. 96. Appeal from original decree.

(1) Save where otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie from every decree passed by any
Court exercising original jurisdiction to the Court authorized to hear appeals from
the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
1[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Courts of Small Causes, when the amount or value of the
subject-matter of the original suit does not exceed 2[ten thousand rupees].

1. Changes in the section. Except for sub-s (3) which was inserted in 1908, the section
corresponds with s 540 of the Code of Civil Procedure 1882.3 Sub-section (4) has been
added by the Amendment Act, 1976.

Compare the Judicature Act, 1873 s 49, which provides that no order made by the High
Court of Justice or any judge thereof, by the consent of parties, shall be subject to any
appeal except by leave of the court or judge making such order.

By Code of Civil Procedure (Amendment) Act, 1999, vide its s 9, effective from 1 July, 2002,
the words three thousand rupees were replaced by ten thousand rupees. The provision of
s96 shall not apply to or affect any appeal from original decree which had been admitted
before the commencement of amended s96; and every admitted appeal shall be dealt with
as if the amended section had not come into force.

2. Letters Patent appeals. The right of appeal from a decree of a single judge of a High
Court to the High Court is governed not by this section, but cl 15 of the Letters Patent.
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The Code makes no provision for an appeal within the High Court, that is to say, from a
single judge of the High Court. This right of appeal depends on cl 15 of the Charter.4 As
regards procedure, the code and the rules therein contained, especially those in O 41, apply
to proceedings in such a High Court under the Letters Patent, save so far as the code
expressly provides to the contrary.5 A judgment, however, for the purposes of cl 15 of the
Letters Patent has no limitation of the order being a decree.6

3. Scope of the section. Although it is desirable that an Appellate Court should not
appraise oral evidence for itself, this section enjoins it to hear the appeal and arrive at its
own conclusion about the controversy in the suit. It is not bound by the findings recorded
by the trial court in the sense that the second Appellate Court is bound by the findings of
fact arrived at by the first Appellate Court. It is, therefore, not correct to say that the
Appellate Court commits any error of law if it reappraises the oral evidence and comes to
its own conclusion, different from that of the trial court.7 It is, however, well-settled that a
finding of fact arrived at by the trial court on oral testimony should not be lightly disturbed
except in rare cases where some error susceptible of being dealt with wholly by argument is
disclosed, such as an omission to take account of circumstances or probabilities material to
an estimate of the evidence or giving credence to testimony which turns out, on more
careful analysis, to be substantially inconsistent with itself or with some indisputable fact.8
Though there is power under O 41, r 11(1) of the Code of Civil Procedure 1908 (Code of Civil
Procedure ) to summarily dismiss the first appeal without issuance of notice to the
respondent, yet, the court must be chary in exercising the power and if it chooses to do so,
must express is own reasons as the appellate forum for summarily rejecting the first appeal.
First appeal is a valuable right and the parties have a right to be heard, both on questions
of law and fact and decided by giving reasons in support of the findings.9 Therefore, where
the Appellate Court had not chosen to assess the merits of the case in the first appeal by
the reasons of its own, the dismissal of the first appeal on the reasons mentioned in the
judgment of the first court would not be proper.10 The maxim actio personalis cum moritur
persona have been applied not only to those cases where a plaintiff dies during the pendency
of a suit filed by him, for damages for personal injuries sustained by him but also to cases
where a plaintiff dies during the pendency of an appeal to the Appellate Court, be it the
first Appellate Court or the second Appellate Court against the dismissal of the suit by the
trial court and/or the first Appellate Court, as the case may be. This is on the footing that
by reason of the dismissal of the suit by the trial court or the first Appellate Court as the
case may be, the plaintiff stands relegated to his original position before the trial court.11
The jurisdiction of the courts in the first appeals, second appeals or revisions are all, to that
extent conferred by the legislature. No litigant possesses any natural or inherent right to
appeal against any order, unless a statute confers it and it is to the extent it is conferred.12
To enforce the preferential right conferred under sub-s (1) of s 22 of Hindu Succession Act,
1956, the only remedy is by way of a civil suit. Therefore, the trial court has necessarily to
pass a decree if it finds that the plaintiff is entitled to enforce the preferential right under
sub-s (1) of s 22. Against such a decree, an appeal will certainly lie under s 96 of the Code of
Civil Procedure.13 A pure question of law, unless waived by the parties can, in the discretion
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of the Appellate Court, be allowed to be taken even if raised for the first time, provided
notice of it is given to the other side and does not involve a fresh investigation of delving
into facts.14 Thus the question as to the commencement of a tenancy is not a pure question
of law and cannot be allowed to be raised for the first time in appeal.15 It is incumbent
upon the final court of fact, i.e., the first Appellate Court; and particularly when the
judgment and decree of the trial court is reversed, to meet the reasoning of the trial court
while decreeing the suit and to indicate its own reasons for arriving at a contrary
conclusions. It is the duty of the lower Appellate Court to discuss the entire evidence
afresh, take notice of the ground taken and the reasons advanced by the trial court to reach
its decisions.16 When no plea of novation of contract is raised in the trial court the
appellant cannot be allowed to raise such a plea at the stage of appeal.17 The plea regarding
maintainability of the suit on account of mis-joinder of necessary parties was neither taken
in the written statement nor an issue in that respect was framed by the trial court. The
objections of non-joinder can not be raised for the first time at the stage of first appeal.18
The demand promissory note and the bond of guarantee were allowed by the defendants
to be admitted in evidence without objection, and even they did not examine themselves in
court to deny their genuineness. The defendants were precluded from contending before
the Appellate Court that the documents have not been duly proved.19 A party can carry a
matter and appeal on a limited question of non-awarding of costs.20 The plea regarding
factual points on inadequacy in evidence of the plaintiff cannot be allowed to be raised for
first time in appeal.21 It is the duty of the first Appellate Court to write a self-contained
judgment, giving reasons, after considering all the evidence adduced by the parties. Order
41, r 31 requires the first Appellate Court to write a self-contained judgment, to give
reasons for its decision on the points for determination and while doing so, the first
Appellate Court being the final court of facts has to consider all the evidence on record.22
No issue on the point of limitation framed by the trial court and the findings were
recorded straight by the court, without giving an opportunity to the parties to lead
evidence on any such specific issue, such findings cannot be sustained.23 A party who
abandons a particular plea, at a particular state, cannot be allowed to re-agitate in appeal.24
Where the first Appellate Court has duly discussed important and material evidence
adduced by both the parties, its judgment is not vitiated, merely because it had failed to
consider one circumstance or evidence relied upon by the trial court.25 The MP High Court
relying upon State of Maharastra v. Ram Das Sriniwas Naiyak,26 held that the correctness of
the court proceedings cannot be challenged before the appellate or revisional court unless
such a challenge was made before the said court because the conduct of the judge in
recording the proceedings can not be put in issue.27 The High Court, instead of
considering whether the trial court was justified in taking a view, instead, wrongly declined
to go into the question on the footing that there was no pleading to enable the court to go
into that question. It was held that the High Court erred in not considering the judgment
of the trial court.28 The Jammu & Kashmir court observed that there is a growing tendency
of the litigants to bypass the trial courts in matters where ex parte orders are subject to
objection of other side and are valid only till next date and vacation whereof can be sought
under O 39, r 4 of the Code of Civil Procedure before the trial court, it has been consistent
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policy and practice of the court not to entertain such appeals and not to interfere in such
orders. This practice has almost hardened into a rule and it is in very rare cases that a
departure is made where impugned orders appear manifestly perverse or where these
suffer any manifest lack of jurisdiction or where the bias of the trial court is apparent on
the face of the record. There may be some other circumstances also which may warrant
interference, but by and large, this policy is adhered to discourage litigating parties from
rushing to this court.29 The judgment and decree of the court of appeal either under s 54 of
Land Acquisition Act, 1894 or s 96 of the Code of Civil Procedure or under Arts. 132, 133 or 136
of the Constitution does not furnish fresh cause of action nor provides fresh5y limitation to
make application under s 28 A(1) of the Land Acquisition Act.30 While dealing with the
meaning and ambit of the expression substantial question of law occuring in s 30 of the
Workmens Compensation Act, 1923, the Supreme Court observed that the expression will
carry the same meaning as is commonly understood. No distinction can be made between
a substantial question of law for the purpose of first appeal and one for the second
appeal.31

A Division Bench of the Karnataka High Court has held that where an application for
grant of probate or letter of administration is contested, the said application automatically
converted into a regular suit. Once the application under the Succession Act is converted
into an original suit, all stages of suit have to be proceeded with. The final decision in the
said suit ultimately results in the form of a decree under s 2 (2) of the code. Therefore, in
view of s 2 (2) and 96 and O 41, r 1 of the Code, a regular first appeal would lie against
such decree.32

4. Rejection of plaintremedy is appeal and not application under Section 151. The
question is whether the court could exercise the so called inherent power available to it
when the plaintiff invokes its jurisdiction under s 151 of the Code of Civil Procedure. It is now
well settled that the court can exercise its inherent power, which is saved by s 151 of the
Code of Civil Procedure, in situation where there is no specific provision in the Code for grant
of relief to a party in appropriate cases. When a rejection of the plaint under O 7, r 11(c) of
the Code of Civil Procedure is a decree and the party has a substantive right to appeal under s
96 and, in cases where he is able to make out a case for a review under O 47, the question
of exercise of the inherent jurisdiction of the court normally does not arise. In a case where
there is another remedy provided to the party by the Code of Civil Procedure, the court cannot
ordinarily resort to its inherent power in substitution of that remedy. A remedy by way of
appeal has necessarily to be understood as a substantive remedy available to a party. When
an appeal is provided, the party aggrieved gets an opportunity to have his whole case
reconsidered by the Appellate Court. It is therefore clear that there is no occasion for the
court to exercise its inherent power in such a situation. The Supreme Court, in Manohar Lal
Chopra v. Rai Bahadur Rao Raja Seth Hiralal,33 has laid down that the inherent power of the
court can be exercised only in the absence of a specific provision in the Code of Civil
Procedure and if a matter is covered by any of the specific provisions of the Code, no
question of the court exercising its inherent jurisdiction would arise. It is therefore clear
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that the plaintiff is not entitled to invoke the jurisdiction of the court under s 151 of the Code
of Civil Procedure when a plaint gets rejected in terms of O 7, r 11. In Varghese v. Devi
Academy,34 the learned single judge followed a decision of this court in Gopalakrishna Pillai v.
Narayan.35 That decision, in turn, was rendered following a decision of the Travancore
High Court in John v. Kuriyan.36 It has to be noted that both these decisions were rendered
before the Supreme Court clarified the scope of s 151 of the Code of Civil Procedure or the
entitlement of the court to exercise its inherent power in the face of other specific
provisions in the Code of Civil Procedure in Manohar Lal Chopra v. Rai Bahadur Rao Raja
Hiralal.37 This principle is reiterated also in Arjun Singh v. Mohindra Kumar 38 and in Ram
Chand and Sons Sugar Mills v. Kanhayalal.39 The power under s 151 of the Code of Civil Procedure
cannot be invoked to restore the suit in a case where a plaint has been rejected under O 7,
r 11 (b) or (c) of the Code of Civil Procedure.40

The Andhra Pradesh High Court has held that an order rejecting a plaint is a decree and is
appealable under s 96 of the Code. A revision under s 115 or an appeal under O 43 of the
Code would not be maintainable.41

5. Right of appeal must be expressly given. It is not to be assumed that there is a right
of appeal in every matter which comes under the consideration of a court; such right must
be given by statute, or by some authority equivalent to a statute such as rules framed under
a statute.42 The right to appeal is a creature of statute and an appeal can be presented, only:
(i) by a party in the suit if he is aggrieved by the judgment; or
(ii) by a person who is not a party but who is aggrieved by the judgment if he seeks and
gets leave of the court to prefer an appeal against the judgment.

It is also not correct to say that any person can file a suit. The right to file suit is also
limited to a person referred to in s 9, provided he has got a cause of action and a remedy
to be sought.43 Unless a right of appeal is clearly given by statute, it does not exist, whereas
a litigant has independently of any statute a right to institute any suit of a civil nature in
some court or another.44 No right of appeal can be given except by express words.45 In
another words, a right of appeal infers in no one and therefore an appeal for its
maintainability must have the clear authority of law.46 The right of appeal, which is a
statutory right, can be conditional or qualified. It cannot be said that such a law would be
violative of Art. 14 of the Constitution. If the statute does not create any right of appeal, no
appeal can be filed. The right to appeal inheres in no one and, therefore, for maintainability
for an appeal there must be the authority of law. Where such a law authorises filing an
appeal, it can impose conditions as well.47 The right of appeal is a substantive right
conferred on a party by the statute. The conferring of right of appeal is not circumscribed
by the right being available at the time of the institution of the cause in the court of first
instance. The right of appeal in a given situation may already be available at the institution
of the cause in the court of the first instance or may even be subsequently conferred. In
either situations, without any distinction, such right is conferred by statute.48 The right to
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notice in a proceedings in court of law or quasi-judicial proceedings is different from the

right of appeal. The former may arise either under the statutory provision or the principle
of natural justice may require it or it may be necessary on principle of legitimate
expectation. But right of appeal is always statutory. The courts cannot confer or infer it.49
Any person who moves the machinery of the court for contempt only, brings to the notice
of the court certain facts constituting contempt of court. After furnishing such information
he may still assist the court, but it may always be borne in mind that in contempt
proceedings, there are only two parties, namely, the court and the contemnor.50 Dealing
with the Travancore Cochin Act of 1925, the Supreme Court observed that Acts did not
purport to confer a right of appeal and that it dealt only with procedural matters.
Accordingly, the court rejected the appellants contention that he had, under that Act, a
vested right to have his appeal heard by a division bench under that Act which was in
force, not only when the suit was filed, but also when the appeal therefrom was filed and
that right was not taken away expressly by Kerala Act 5 of 1959, and could not be taken
away by implication.51 The right of appeal being a creature of the statute, its scope must be
determined by reference to the provisions of the statute conferring it,52 and an Appellate
Court can exercise only such powers as are confided to it.53 If the legislature in its wisdom
thinks in a particular case that no appeal should be provided for, it cannot be held that the
legislation is bad.54 No appeal lies against an award passed by an arbitrator appointed under
s 19 (1)(b) of the Defence of India Act, 1939, rejecting a claim for compensation, as an
appeal is provided under r 19 only when compensation is awarded and that exceeds Rs
5000.55 But an order varying a scheme under s 92 (1) is a decree and is appealable.56 The
unilateral act of a decree-holder of getting satisfaction of the decree recorded without
notice to the judgment-debtor does not take away the latters right of appeal.57 This section
in express words, gives a right of appeal from every decree passed by any court exercising
original jurisdiction to the court authorised to hear appeals from the decision of such
court. Where, by a special statute, matters are referred to the ordinary courts of the
country, the implication is that the court will determine those matters as court. Its
jurisdiction is only enlarged and all the incidents of that jurisdiction including the right to
appeal from its decision remain,58 provided the decision is open to appeal under the law
applicable to the court.59Section 28 of the Hindu Marriage Act, 1955 read with its ss 3(b), 19
and 21 makes it clear that the court in which proceedings are held on petitions under that
Act is the established court and appeals from its decrees and orders lie to the court to
which appeals from its decrees and orders passed in civil cases will lie.60 The rule is that
when a question is referred to an established court, it imparts that court with the ordinary
incidents of the procedure of that court including the right of appeal. But this rule would
not apply where a special jurisdiction is by the statute conferred on the civil court.61Section
202(1) of the Companies Act, 1913 (now replaced by Companies Act, 1956) conferred a right of
appeal against orders passed by a district judge or by a single judge of the High Court in
the matter of winding-up of a company and this right was a right independent of the
provisions of this section.62 But the court of a special judicial officer appointed under s 3
(d) of the Land Acquisition Act, 1894, is a court of special jurisdiction and the High Court is
not authorised to hear appeals from it.63 But a decision on a reference under s 202 of that
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Act is a decree since it determines the right of parties in respect of their disputes. Such a
decree is appealable under this section.64 Rights of appeal again are substantive rights. They
are not merely matters of procedure. Hence, an Act which takes away an existing right of
appeal must not be applied retrospectively in the absence of express enactment or
necessary intendment.65 In other words, as stated by the Supreme Court, as soon as a lis
commences, all rights get crystallised and no clog upon a likely appeal can be put, unless
the law was made retrospective either expressly or by clear implication.66 However, it is
open to the appropriate legislature to take away such a vested right.67 A notification issued
under s 22 A of the Bombay Civil Courts Act transferring certain areas to another revenue
division does not affect the right of appeal to a superior court situated in the original place,
arising from either pending cases or cases decided before the data of notification.68 The
Bengal, Agra and Assam Civil courts (Amendment) Act which raised the jurisdiction of the
district judge from Rs 10,000 to Rs 15,000 does not contain any provision which, in any
way, takes away the vested right of appeal. Hence, the forum of appeal arising out of a suit
filed before the Amendment Act and valued at Rs 12,000 would still be the High Court
and not the district judge.69 It has been held by the Supreme Court that a new legislation
cannot operate to impart an existing right of appeal and that accordingly a law enhancing
court fees payable on appeals can have no application to appeals arising out of proceedings
commenced before its enactment.70 So also a statute creating a new right of appeal is
prospective in the absence of a provision to the contrary,71 and cannot be availed of by
parties to proceedings commenced prior thereto.72

6. Right of Appealsuits instituted before the Constitution of India. There was

considerable difference of judicial opinion whether an appeal against a decree passed in a
suit instituted before the Constitution was governed by s 110 of the Civil Procedure Code as it
stood prior to its adaptation in 1950 or by Art. 133 of the Constitution and s 110 of the Code of
Civil Procedure as adapted in 1950. Under s 110, as it stood before adaptation, the party had,
subject to other conditions, a right of appeal to the Privy Council and then to the federal
court if the value of the subject matter is Rs 10,000 or upwards but under Art. 133 and s
110 as adapted, the requisite valuation was Rs 20,000 or upwards. Where the value of the
suit instituted prior to the Constitution was Rs 10,000 or more but less than Rs 20,000,
would an appeal lie to the Supreme Court? There was no dispute that if the decree had
been passed before the Constitution, an appeal would lie against it. The controversy related
to decrees passed after the Constitution came into force in cases where the subject-matter
was less than Rs 20,000 in value. On this question, the decision were numerous and
conflicting, but there is no need to refer to or discuss them as the point is now concluded
by the decision of the Supreme Court in Garikapati Veerayya v. Subbiah Choudhury,73 where it
was held that the right of appeal which vests in a litigant, carries with it, the right to prefer
appeals to the superior courts, as constituted on the date of suit and that therefore where
an appeal could have been preferred to the federal court before the Constitution, it would lie
to the Supreme Court thereafter. But where the court to which the appeal lies, is abolished
without any forum being substituted therefore, the right of appeal to that court must
perish with it.74 While the litigant has a vested right of appeal, he has no vested right in the
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Constitution of the forum that is to hear the appeal.75 A plea which was neither raised before
the trial court after the plaint was amended, nor formed part of any issue framed after its
amendment, is not maintainable in appeal.76

7. Admission of Appeal by Registrar, High Courtvalidity. From a perusal of r 205 of

the High Court of Jharkhand Rules, 2001, it is manifestly clear that the Registrar General
of the High Court has been conferred power to admit the appeal by passing formal order
of admission and direct issuance of notices to the respondents if the memorandum of
appeal is not barred by limitation and is sufficiently and properly stamped, irrespective of
the fact whether such appeal has merit or not. Now the question that falls for
consideration is to whether procedure provided under r 205 conflicts with the Code of Civil
Procedure.77

Comparing the two provisions, i.e., s s 99 and 100 of Code of Civil Procedure, it is manifestly
clear that an appeal shall lie from every decree passed by any court exercising original
jurisdiction unless the Code of Civil Procedure or any other law expressly bars it, for the time
being in force. On the other hand, a second appeal, i.e., appeal from appellate decree shall
be entertained by the High Court only after it is satisfied that the case involves substantial
question of law. Section 100 of the Code of Civil Procedure further provides that in a second
appeal the memorandum of appeal shall precisely state the substantial question of law
involved in the appeal. It further provides that the High Court, if satisfied that substantial
questions of law are involved, then it shall formulate such questions.

Section 101 of the Code of Civil Procedure further clarifies that no second appeal shall lie, except
on the ground mentioned in s 100.78

Sub-rule (4) of r 11 has been inserted in the year 1976 by Code of Civil Procedure Amendment
Act of 1976. Sub-rule (4) now made obligatory for the Appellate Court not being a High
Court to deliver judgment recording in brief the grounds for dismissing the appeal under
sub-r (1). By now the legal proposition has been set at rest by the Supreme Court that
notwithstanding the provision of sub-r (4) of r 11 of O 41, Code of Civil Procedure, the High
Court is expected to pass a reasoned order even in dismissing appeal on the first day of
hearing at the admission stage in absence of the respondents to ensure that justice not only
done but appears to be done. Provisions of O 41, r 11(4) does not do away with its basic
obligation of doing justice in deciding rights and liabilities of the contesting parties.

In this connection, reference may be made to the report of Justice Malimath Committees,
Ch III, p. 30, which reads as under:

Indeed, the provisions of Order XLI Rule s 11, 11A and 12 of the Code of Civil Procedure
read together make it obligatory for the Appellate Court to fix a day for the preliminary
hearing of appeal as expeditiously as possible and to make endeavour to conclude such
hearing within sixty days from the date of which the memorandum of appeal is filed and,
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unless the appeal is summarily dismissed at preliminary hearing, to fix a day for final
hearing. In other words, the question of fixing a day for the final hearing of appeal arises
only if the appeal is not summarily dismissed at the preliminary hearing which has to be
fixed as expeditiously as possible after the memorandum of appeal is filed. These
provisions should be strictly followed. However, care should be taken that an appeal which
raises triable issue is not dismissed in limine. We would also like to emphasis that when an
appeal is dismissed in limine, a brief order giving reasons for dismissal at the preliminary
stage should invariably be recorded. A similar recommendation has been made by the Law
Commission of India in its 79th report.79

Reading the entire provisions from O 41, r 11, it can safely be held that it is the Appellate
Court and the Appellate Court alone before whom the appeal shall be listed for admission.
If the Appellate Court finds no merit in the appeal then it shall dismiss the appeal without
even issuing notices to the respondents. On the first day of hearing, at the admission stage,
if the Appellate Court finds arguable points in appeal, then notices shall be issued to the
respondents, fixing a date for hearing of the appeal.80

Section 29 of the Bihar Reorganisation Act, 2000 under which the High Court of
Jharkhand Rules, 2001 are framed, enables the High Court of Jharkhand either to adopt
the rules of the High Court of Patna or to make rules for itself. This power to make rules
relates to the procedure to be followed in the matter of a proceeding filed in the High
Court. This power to regulate the procedure has to be understood consistently with the
requirement of the Code of Civil Procedure, which governs the filing of an appeal in this court.
So understood, r 205 of the High Court of Jharkhand Rules, 2001 cannot prevail over the
requirement of O 41, r 11 of the Code of Civil Procedure. Appeals, whether under the Code of
Civil Procedure or any special enactment have to be sent up for admission before the bench
in terms of O 41, r 11 of the Code of Civil Procedure and notwithstanding the power
conferred on the Registrar by r 205 of the High Court of Jharkhand Rules 2001.81

8. Appeal and revisionrespective Scope. It is fairly a well settled position in law that the
right of appeal is a substantive right. But there is no such substantive right in making an
application under s 115.

Section 115 is essentially a source of power for the High Court to supervise the
subordinate courts. It does not in any way confer a right on a litigant aggrieved by any
order of the subordinate court to approach the High Court for relief. The scope for
making a revision under s 115 is not linked with a substantive right.

The language of s s 96 and 100 of the Code of Civil Procedure, which deal with appeals can be
compared with s 115. While in the former, two provisions specifically provide for right of
appeal, the same is not the position vis-a-vis s 115. It does not speak of an application
being made by a person aggrieved by an order of subordinate court. As noted above, it is a
source of power of the High Court to have effective control on the functioning of the
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subordinate courts by exercising supervisory power.82 In Shankar Ram Chandra Abhyankar v.

Krishnaji Dattatreya Bapat,83 it has been held by the Supreme Court that the revisional
jurisdiction partakes the appellate jurisdiction of a superior Court. In a subsequent
decision84, the Supreme Court affirmed the above view thus:

The right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below.
Two things which are required to constitute appellate jurisdiction are : the existence of the relation of superior and inferior Court and
the power on the part of the former to review decisions of the latter. When the aid of the High Court is invoked on the revisional side it
is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Subject to
limitations placed on the exercise of revisional jurisdiction, it remains a part of the general appellate jurisdiction of a superior Court in a
wider and larger sense.

In a recent decision the Supreme Court has reaffirmed the above view by stating that
revisional jurisdiction, in effect and substance is an appellate jurisdiction85.

The Allahabad High Court has held that a revision is maintainable against an order passed
on the objection filed by a third party in the execution proceeding of an ejectment decree:
filing of appeal under s 96 read with O 21, r 103 of the Code is not proper.86

When a plaint is returned by the Court, the plaintiff is entitled to present it again either by
complying with the deficiency pointed out or by explaining that the objections raised by
the Court are inconsequential. But once the plaint is returned by Court or not being
satisfied by the explanation given by the plaintiff, the said order is revisable and not
appealable.87 The Patna High Court has held that an order rejecting a plaint is a decree and
such decree is not revisable under s 115 but appealable under s 96 of the Code.88

In a partition suit, directions were given for issuance of final decree after production of
stamp papers. On objections being raised in relation to process of engrossment, the matter
was adjudicated upon. It was held by the Rajasthan High Court that such adjudication
cannot be said to be determination of rights of parties leading to a decree. Therefore, no
appeal under s 96 of the Code would lie.89

An order passed under s 28 of the Specific Relief Act, 1963 rescinding an agreement would
amount to an decree against which appeal would lie and not a revision.90

9. Simultaneous Relief of Appeal and Review Permissibility. The right of review is a

statutory right. Such right can be invoked if the conditions therefor are fulfilled. So is a
right of appeal. A right of review and right to appeal stand on different footings although
some grounds may be overlapping. If a review is granted, the decree stands modified but
such modification of a decree is not an ancillary or a supplemental proceeding so as to be
revived upon setting aside the decree granting review.91

An appeal preferred in terms of s 96, Code of Civil Procedure must conform to the
requirements contained in O 41 thereof. An appeal at the time of its filing would either be
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maintainable or would not be.92 Order 47, r 1, Code of Civil Procedure postulates filing of an
application by a person considering himself aggrieved, by a decree or order from which an
appeal is allowed but from which no appeal has been preferred, to file an application if he
desires to obtain a review from a decree passed against him. An appeal during the
pendency of the review petition was, therefore, not maintainable. In terms of O 47, the
court may either reject or grant an application for review. In case a review is rejected, the
order would not be appealable whereas an order granting an application may be objected at
once by an appeal from the order granting the application or in an appeal from the decree
or order finally passed or made in the suit. Rule 8 of O 47 of Code of Civil Procedure
postulates that when an application for review is granted, a note thereof shall be made in
the register and the court may at once re-hear the case, or make such order in regard to the
re-hearing as it thinks fit.93

10. Conditional admission of appealimplication of. The jurisdiction of the court in first
appeal extends to examine the questions of facts as well as that of law. Although it is true
that under O 41, r 11, Code of Civil Procedure it would be open for the court to dismiss the
appeal in limine at the time of admission but even examining the matter from that point of
view, the court, while considering the question of admission of appeal filed under s 96,
Code of Civil Procedure, may admit the appeal if it is considered for full hearing, having prima
facie merit. Otherwise, if it finds that the appeal lacks merit it may be dismissed at the initial
stage itself. But admission of the appeal, subject to condition of deposit of some given
amount, is not envisaged in the provision as contained under s 96 read with O 41, r 11 of
Code of Civil Procedure. The deposit of money would obviously have no connection with the
merits of the case, which alone would be basis for admitting or not admitting an appeal
filed under s 96, Code of Civil Procedure. Further, imposition

of condition that failure to deposit the amount, would result in dismissal of the appeal,
compounds the infirmity in the order of conditional admission.

It is a different matter in case the appellant prays for stay of the execution of the decree or
for any order by way of an interim relief during the pendency of the appeal, and it is open
for the court to impose any condition as it may think fit and proper in the facts and
circumstances of the case. Otherwise, imposing a condition of deposit of money subject to
which an appeal may be admitted for hearing on merits, is not legally justified and such
order cannot be sustained.1

11. Proceedings under the Motor Vehicles Act, 1988. The basic distinction between an
appeal under s 96 of the Code of Civil Procedure and appeal under s 173 of the Motor Vehicles Act,
1988 is that under the provisions of the rules framed under the Act only a summary of
testimony of witness is to be kept on record by the claims tribunal for the purpose of
giving the award. The logical conclusion is that the provisions of the Act for awarding
compensation in the motor accident claim can not be equated with a regular suit tried
under the provisions of the Code of Civil Procedure. The two provisions, one under s 96 of the
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Code of Civil Procedure providing appeal and the other under s 173 of the Motor Vehicles Act,
1988, both providing appeal before the High Court, cannot be equated. Under s 96 of the
Code of Civil Procedure, the appeal will lie against a judgment and decree of the court. Under
the Civil Procedure Code, a civil court is to decide a suit after following the detailed procedure
prescribed under the Code, recording evidence in detail as per statement of the witnesses.2

12. Appeal against order in Execution. There is no gainsaying the fact that an appeal
preferred an against an order on a application under r 97, Code of Civil Procedure is an appeal,
whether it is termed a regular appeal or by any other name, and is governed by the
provisions of r 103 of O 21, Code of Civil Procedure. On adjudicating an application under r
97, the resultant order is given the status of a decree and as against every decree, appeal is
provided for under the Code of Civil Procedure. It is under such circumstances that the
provisions of r 103, Code of Civil Procedure have been incorporated by the Amending Act 104
of 1976, indicating the manner in which such appeals are to be dealt with. Every if the
appeal is styled as a regular appeal, the scope is again to be looked into from the provisions
of O 21 Code of Civil Procedure. However, describing that as an execution appeal which was
an expression in vogue earlier, is not an accurate description of an appeal of this nature.
The same has to be treated as appeal as contemplated under O 21, r 103.3

An execution petition filed within 12 years from date of order of Appellate Court is not
barred by limitation.413. No Right of Appeal by consent, waiver or estoppel. The right
of appeal must be conferred by a statute or by rules framed thereunder. It cannot be
claimed on the basis of agreement of parties or waiver or estoppel.5

14. Judgment of Trial Court and Appeal by Same Judge not proper. Same presiding
officer disposing of the matter at the trial stage and subsequently in his capacity as
Appellate Court, is opposed to judicial probity, propriety and fairness.6

15. Findings not based on pleadings. In the absence of any pleading whatsoever on the
question as to who gave child in adoption, the father or brother, the courts could not have
gone into the same even if some evidence was adduced.7

16. Agreement not to appeal. An agreement, whereby the parties agree not to appeal
from a decree, is binding upon the parties thereto, if it is for a lawful consideration and is
otherwise valid.8 But an agreement by the next friend of a minor not to appeal is not
binding on the minor.9

17. Decree. All decrees are appealable unless the appeal is barred under the Code of Civil
Procedure, e.g., as has now been done under sub-s (4) of this section or any other law. Before
s 2 (2) defining the word decree was amended, a determination of any question under s 47,
was included in that definition and hence such determination was subject to an appeal.10
An order determining the apportionment of compensation awarded under the Land
Acquisition Act, 1894 has been held to be a decree and is appealable therefore.11 A dismissal
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of a suit, as withdrawn, is not a decree.12 But an order dismissing a suit for default in
payment of costs, is a decree and is appealable.13 A judgment or order of the family court is
appealable under s 19 (4) of the Family Court Act, 1984, except where it is passed with
consent or is interlocutory.14 Dismissal of proceeding in a higher forum at the stage of
admission does not have the effect of merger of the decision of subordinate forum with
that of the higher forum. Where the revision against order of an executing court has been
dismissed at admission stage by the High Court, the order of dismissal does not have the
effect of merger of order of executing court. When appeal against the order of executing
court is pending, jurisdiction of appellate forum is not affected by such order of dismissal
of revision.15 A decree passed by a sub-judge against a Muslim husband for divorce is
appealable even if the sub-judge is also a Kazi.16

A decree passed in a summary suit under O 37 of the code where leave to defend has been
refused is almost automatic and the consequence of passing a decree cannot be avoided.
Against the decree an appeal would lie under s 96. When an appeal would lie, an
application under Article 227 of the Constitution would not be entertained.17

Explaining the principle, Sinha J., speaking for the Supreme Court Bench in the above
case, observed as follows:

A decree passed subsequent to the refusal of leave to defend could either be under Order XXXVII, Rule 3(6) of the code or it could be
based on the affidavit evidence on the side of the plaintiff and the documents produced or even based on oral evidence formally
proving, say, the execution of a promissory note by the defendant. It may not be proper or necessary to apply the theory of dependent
order in such circumstances. For one, the theory may nor apply. Even if this Court were to set aside the order of the Court below and
given the defendant leave to defend the suit, the decree that is passed may not go automatically. It may have to be set aside. Secondly,
the defendant can always go to the Court which passed the decree and move under Rule 4 of Order XXXVII of the Code to reopen the
decree.18

Where in a Probate application, the maintainability was challenged on the ground of

territorial jurisdiction, it was held by the High Court that the order discussing application
challenging maintainability and holding that the Court has jurisdiction, cannot be said to be
a substantive order governing rights of parties under the Succession Act. The order being
interlocutory, appeal against it is not maintainable.19

An order under O 21 r 58 is appealable as a decree, even though s 2 (2) excludes

adjudications, in general, under s 47, from the definition of decree. This is because of the
specific provision in O 21, r 58(4).20 Order made under r 58 (2) of O 21 of the amended
Code adjudicating the claim made against attachment of property in execution, therefore,
has only the status of deemed decree and not a decree by itself. Such orders are not
covered by the definition under s 2 (2) so as to attract the provisions of s 96 of the Code of
Civil Procedure:21(i) when an Appellate Court decides an appeal by affirming, reversing or
modifying the decree of the trial court, the decree of the trial court merges in the Appellate
Court.
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(ii) The Appellate Court has also to take into account any subsequent change in the legal
relationship occurring between the parties by virtue of the subsequent operation of a
previous law.22 The words any court exercising original jurisdiction under s 96 of the Code of
Civil Procedure has to be read to mean that if the original jurisdiction has been exercised by
any court, the decree passed shall be deemed to be a decree by a court exercising original
jurisdiction. Therefore, where the revisional court exercised the original jurisdiction by
rejecting the plaint, the order is appealable under s 96 of the Code of Civil Procedure.23

18. Where decree not drawn up. No appeal can be entertained from a decree unless has
been drawn-up.24 In a suit for partition, even when the report of the commissioner is
confirmed and it is ordered that a decree in terms of such report is directed to be drawn
up, the suit remains pending until the court signs the final decree.25 But in a subsequent
case, the Mysore High Court has observed that the omission to have the decree drawn up,
does not render the decree non-appealable since it is the substance and not the form which
determines the appealability.26 An order dismissing an appeal for failure to file judgment is
not a decree and so not appealable.27 A judgment of the Appellate Court should be self-
contained. It should be a speaking judgment. It should contain decision on each and every
point arising for consideration before the court, with reasons therefor. The requirement of
giving reasons for the decision on each point is a statutory requirement. It is like the
principle of audi alteram partem. It has to be observed in proper spirit. A mere pretence of
compliance will not suffice. An appellate judgment, which does not comply with these
requirements, would be vitiated.28 Order 41, r 3A provides for the filing of the application
for condonation of delay, along with the appeal. Sub-rule (3) even prohibits the court from
granting any ad interim stay of execution of decree unless after hearing the parties, it admits
the appeal. This rule is not mandatoryits requirements are directory. Besides, this rule is
not in derogation of the Limitation Act, 1963; it is in addition to that. It has, therefore, to be
read along with the said provision. It is clear that despite its provision, application for
condonation of delay may be filed even after the filing of the appeal.29 It is well-established
that parties cannot suffer on account of mistake of court. Where the trial court rejected the
plaint under O 7, r 11 of the Code of Civil Procedure and failed to frame a decree, and the
appellants attempts to get the decree framed also proved to be futile, dismissal of his
appeal for want of certified copy of decree was not proper as the Appellate Court could
have directed the trial court to frame the decree.30

19. Appeal from ex parte decree. Section 540 of the Code of 1882, as it originally stood,
did not contain any clause allowing appeals from ex parte decrees. The clause allowing such
appeals was added by s 45 of the Code of Civil Procedure Amending Act 7 of 1888. Prior to that
Act it, was doubted in some cases whether an appeal lay from an ex parte decree. An
appellant in an appeal against ex parte decree can question the propriety of a refusal to
adjourn and proceeding with the suit ex parte since the corrective jurisdiction of the
Appellate Court includes consideration of procedural errors.31 When an ex parte decree is
passed, the defendant (apart from filing a review petition and a suit for setting aside the ex
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parte decree on the ground of fraud) has two clear options, one, to file an appeal and
another to file an application for setting aside the order in terms of O 9, r 13 of the Code of
Civil Procedure. He can take recourse to both the proceedings simultaneously but in the
event the appeal is dismissed, as a result whereof the ex parte decree passed by the trial
court merges with the order passed by the Appellate Court, having regard to the
explanation appended to O 9, r 13 of the Code of Civil Procedure, a petition under O 9, r 13
would not be maintainable. However, the Expln 1 appended to the said provision does not
suggest that the converse is also true.32 When an application under O 9, r 13 is dismissed,
the defendant can only avail a remedy available there against, viz., to prefer an appeal in
terms of O 43, r 1 of the Code of Civil Procedure. Once such an appeal is dismissed, the
appellant cannot raise the same contention in the first appeal. If it be held that such a
contention can be raised both in the first appeal as also in the proceedings arising from an
application under O 9, r 13, it may lead to conflict of decisions which is not contemplated
in law.33

The dichotomy can be resolved by holding that whereas the defendant would not be
permitted to raise a contention as regards the correctness or otherwise of the order posting
the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-
appearance of the defendant before it, it would be open to him to argue in the first appeal
filed by him against s 96 (2) of the Code of Civil Procedure on the merit of the suit so as to
enable him to contend that the materials brought on record by the plaintiffs were not
sufficient for passing a decree in his favour, or the suit was otherwise not maintainable.
Lack of jurisdiction of the court can also be a possible plea in such an appeal. The
explanation appended to O 9, r 13 of the Code of Civil Procedure shall receive a strict
construction.34

It is open to defendant who had a filed an appeal against an ex parte decree under Section
96(2) of the Code to show from record that there is in the order proceeding ex parte against
him, any error, defect or irregularity which has affected the decision of the case. But in
such an appeal, the defendant cannot be allowed to show that he was prevented by
sufficient cause from appearing at the hearing. For that purpose he must have recourse to
provisions under O 9, r 13 of the CPC because for that purpose evidence on factual aspect
have to be led. Therefore, an appeal under s 96 against an ex parte decree the Appellate
Court is not permitted to examine the sufficiency of the cause for non-appearance.35

As to the power, of an Appellate Court in the matter of ex parte decrees, see notes to O 9, r
13, Whether remedies concurrent. Where no application under O 9, r 13 was moved for
setting aside ex parte decree in an appeal against such decree under s 96 (2), an error, defect
or irregularity which has affected the decision of the case, can be challenged. Such an
appeal cannot he converted into proceedings for setting aside the ex parte decree. The Code
of Civil Procedure prescribes the remedy for setting aside of the ex parte decree under O 9, r
13 and when a plea under the said provision fails, an appeal is specifically provided under
cl (d) of r 1 of O 43 of the Code of Civil Procedure against an order of the trial court refusing
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to set aside ex parte decree. When particular remedy is provided for setting aside an ex parte
decree and there is, by way of appeal, another special remedy against an order refusing to
set aside such a decree, these remedies alone, and none other, can be taken resort to.
Therefore, when these remedies have not been availed of in an appeal under s 96 (2) or in
the second appeal under s 100 of the Code of Civil Procedure, no ground can be entertained
that the ex parte proceedings were wrongly taken against the appellant which resulted in
passing of the ex parte decree.36 The application under O 9, r 13 is a statutory remedy which
is available to the defendant. In pursuance to this remedy, it could not be said that other
remedy available under s 96 of the Code of Civil Procedure was suspended, or that the same
could be exercised at some later point of time, in case the proceedings under O 9, r 13
failed.37 In a proceeding under s 47 -A of the Stamp Act, 1899, two orders were passed,
one an ex parte order directing recovery of deficient stamp duty and the second order by
which application to set aside the ex parte order was rejected. The appeal against both
orders was rejected directing the appellant to file separate appeals. It was held by the
Allahabad High Court that the rejection of appeal was improper. The proper course was to
give option to the appellant to confine his appeal against either of the orders.38

The Andhra Pradesh High Court has held that appeal against au ex parte decree can be
performed by third party to suit with the leave of the Court.39

It is relevant to note that legislature has advisedly not made an analogous provision as has
been made in the form of explanation to r 13, so as to bar remedy of appeal if the
application under O 9, r 13 for setting aside the decree was to be rejected. It is well settled
that defendants can take recourse to three different remedies, viz. (i) by way of application
under O 9, r 13 for setting aside the ex parte decree, (ii) by way of appeal against the ex parte
decree under s 96 (2) of Code of Civil Procedure and, (iii) also by way of review before the same
court against the ex parte decree. In any case, it is well settled that concurrent remedy in the
form of application under O 9, r 13 as well as appeal under s 96 (2) of the Code of Civil
Procedure against the ex parte decree is available to the defendant. However, the remedy
under O 9, r 13 is subject to the limitation that it cannot be perused once the appeal
preferred by the defendant against the same decree is dismissed, except when it is
withdrawn. But, no such limitation would apply to an appeal under s 96 (2) of Code of Civil
Procedure, even if the application under O 9, r 13 was rejected. In the latter case, the remedy
is a substantive remedy provided against the ex parte decree under s 96 (2) of the Code of Civil
Procedure, which can be pursued regardless of whether application for setting aside the ex
parte decree under O 9, r 13 is filed, or for that matter, rejected. However, it is only when
the application under O 9, r 13 is allowed that the appeal would become infructuous as the
ex parte decree would be non est. Therefore, having regard to the scheme of the provisions
of the Code of Civil Procedure, the rejection of the application under O 9, r 13 cannot bar the
substantive remedy of appeal under s 96 (2) of the Code of Civil Procedure.40

20. Forum of appeal. The value of a suit, that is, the amount or value of the subject-
matter thereof, determines the forum of suit, that is, the court in which the suit is to be
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filed. It also determines the forum of appeal, that is, the court to which the appeal lies.
What then is the value of a suit for the purpose of appeal? Now, a plaintiff may, in his
plaint, fix a sum definitely as the amount of his claim as in a suit for debt, or he may fix it
approximately or tentatively as in a suit for accounts or for mesne profits (O 7, r 2). Where
the plaintiff fixes a sum definitely, it is that sum which determines the forum of appeal, and
not the amount awarded by the decree and involved in the appeal. Where the plaintiff fixes
a sum approximately, there is a difference of opinion as to the forum of appeal. According
to the Calcutta High Court, it is the amount decreed by the first court as the amount due
to the plaintiff which determines the forum of appeal.41

According to the Bombay42 and Allahabad43 High Courts, it is the amount determined by
the first court as the amount due to the plaintiff and accepted by the plaintiff by payment
of additional court fee which determines the forum of appeal. According to the Madras
High Court, it is the amount or value of the subject matter as fixed in the plaint, though
approximately, which determines the court to which the appeal lies and not the amount
decreed. It has accordingly been held by that court that where in a suit for accounts filed in
the court of a district munsif whose jurisdiction is limited to suits of which the value does
not exceed Rs 2,500 the plaintiff fixes his claim approximately at Rs2,000 and the munsif
passes a decree for more than Rs 5,000, the appeal from the munsifs decree lies not to the
High Court, but to the district court.44 In a subsequent case,45 the Allahabad and Patna
High Courts adopted the same rule as Madras. Where a suit is dismissed by the first
courtin which case the mesne profits remain undeterminedthe sum stated in the plaint
determines the forum of appeal.46 It has been held by the Supreme Court that raising of
objections as to jurisdiction of Court is permissible when objection is with regard to
subject-matter of the suit and not with regard to pecuniary or territorial jurisdiction.47 It
has been observed in the above case as follows:

A distinction, however, must be made between a jurisdiction with regard to subject-matter of the suit and that of territorial and
pecuniary jurisdiction. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not
be.48

A full Bench of the High Court of Calcutta has held that where a suit is properly brought
in the court of a munsiff for recovery of possession of land and mesne profits pendente
lite are claimed or assessed at a sum beyond the pecuniary jurisdiction of the munsif, the
munsif has jurisdiction to fix such mesne profits and pass a decree for a sum beyond his
pecuniary jurisdiction. The value of such a suit for purposes of jurisdiction is the value of
the immovable property, plus mesne profits up to the date of the suit where such profits
are claimed. If a suit is rightly entertained as within the jurisdiction of the munsif and a
decree passed, his power to grant the proper and adequate relief is not affected by any
event which increases the value of the relief during the pendency of the suit. The forum of
appeal is determined by the value of the suit and not by the amount decreed.49 The
undermentioned decisions50 of the same High Court must be taken to have been overruled
by the full bench case. Where on the valuation given in the plaint in a suit instituted in the
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sub-court an appeal would lie to the district court, it is not open to the defendant to prefer
an appeal against the decree passed therein to the High Court on the allegation that the suit
had been undervalued and that on its proper valuation, the appeal would lie to the High
Court.51 Nor can the defendant, in such a case, give his own valuation in the memorandum
of appeal and on the basis of that valuation prefer an appeal to the High Court, when, on
the valuation in the plaint, the proper forum for appeal was the district court.52 A decree is
passed by court M in respect of a cause of action which arose at Kadiri. Appeals from
decree of court M lie to court C. Subsequently Kadiri is transferred to the territorial
jurisdiction of court P from which appeals lie to court B. To which court does the appeal
from the decree lieto court C or to court B? The answer is, the court B, because a transfer
of territorial jurisdiction ipso facto effects a transfer of venue.53 Disposal of appeal by
presiding officer of Appellate Court who himself had disposed of the same matter in his
capacity as presiding officer of trial court, is opposed to established norms and canons of
judicial procedure. This unawareness that he had earlier dealt with the matter, indicates
total lack of application of mind. Such act ion is bound to undermine confidence reposed
by litigants in the justice delivery system.54

On the question of forum of appeal the Orissa High Court has held that appeal against an
order on an application under O 21, r 97 is to be filed like a regular appeal under s 96 of
the Code. The valuation of the suit shall determine the jurisdiction of court where the
appeal is to be filed. The Court-fee has to be paid in terms of cl. 11(i) of Sch. II of the
Court Fees Act, 1870.55 In the above judgement the Orissa High Court followed a Full
Bench decision of the Andhra Pradesh High Court. The Full Bench decision was in respect
of an order passed under r 58 of O 21 of the Code, wherein it has been observed in para
32 as follows:

Once it emerges that an order passed under r 58 of O 21 is conferred the status of a decree, in the particular context of appeal, Section
96 gets attracted. Section 96 does not enumerate the types of decrees that can fall into its fold. Once the outcome of adjudication
partakes the character of a decree, it gains an entry into the realm of Section 96. The contention of the learned counsel for the
petitioner that the appeal provided for under s 96 are against original decrees and not other kinds of decrees is unacceptable. The word
original in the heading of s 96 signifies the jurisdication, i.e. original jurisdication in contradiction to appellate jurisdiction.56

Paragraph 7 of the plaint clearly showed that for the purpose of jurisdiction and advocate
fees, the value of the property was fixed at Rs one lakh, being its market value. In the very
first line of para 7, it was stated that for the purpose of the court fees and jurisdiction, the
suit was valued at Rs 1,08,000. Since it was a suit for declaration, the relief in that regard
was valued at Rs 300. For the purpose of deciding whether the appeal lies to the High
Court or not, the value for the purpose of jurisdiction would be material which was Rs one
lakh being the market value of the property, as mentioned in para 7. Obviously therefore,
against the judgment and decree of the learned civil judge (senior division), an appeal
would lie to the High Court in view of s 26 of the Bombay Civil Courts Act, 1869, which
provided that in all suits, decided by a civil judge, of which amount or value of the subject-
matter exceeds Rs 10,000 (which later on was substituted by Rs 20,000), the appeal from
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his decision shall be direct to the High Court. Therefore, the appeal lies to the High Court
and not the district court.57

22. Who may appeal. As a general principle, no one can appeal unless he was a party to
the proceedings or was treated as such, or the legal representative of the party or unless his
privity in estate, title or interest is apparent on the face of the record. However, any person
having a legal grievance which might have deprived him of the benefit or bound by the
order passed is certainly entitled to the leave. Even in case of doubt as to the existence of
the right of appeal, the appellant should get the benefit of doubt.64

An appeal under this section may be preferred by any of the following persons:
(i) Any party to the suit adversely affected by the decree,65 or, if such party is dead, by
his legal representative.66
(ii) Any transferee of the interest of such party, who, so far as such interest is
concerned, is bound by the decree, provided his name is entered on the record of
the suit.67

No person, unless he is party to the suit, is entitled to appeal under this section.68 But a
person who is not a party to the suit, may prefer an appeal with the leave of the Appellate
Court and such leave should be granted if he would be prejudicially affected by the
judgment and if it would be binding on him as res judicata, under Expln 6 to s 11.69 A
person who is not a party to a proceeding, can still appeal against the order passed in the
proceeding with leave of Appellate Court, provided he would have been a proper party to
the proceeding.70 Even a party to the suit or a proceeding will have no right of appeal
against a decision, unless he is, in fact, affected by it. Thus, a person who is impleaded as a
respondent in a writ petition on his own application, is not entitled to appeal against the
order therein when there is nothing in it prejudicial. to him.71 If a suit is filed against a
government officer in his official capacity and against the state and is decreed only against
the officer, the state has no locus standi to file an appeal even though the decreed amount
against the officer will have to be paid by the government.72 This is because it is only a
party who has been adversely affected by a decree or order that can appeal from such a
decree or order.73 When in proceedings under the Companies Act, 1956, the contention was
urged on behalf of the Central Government that certain rules framed under the Act were
ultra vires and that was accepted by the court and an order passed accordingly, it was held
that it was not open to the government to prefer an appeal against that order and contend
that the rules are intra vires as the order was one passed at the instance of the government
and in its favour.74 A successful party in whose favour a decree has been passed, cannot
challenge the decree by filing an appeal on the ground that an adverse finding against that
party has been recorded in the judgment. According to the Bombay High Court the
remedy available to such party to challenge an adverse finding is to file cross-objection
when the opposite party files appeal challenging the decree. Where, however, no appeal is
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filed by the opposite party challenging the decree, the adverse finding cannot be challenged
by the party in whose favour the decree was passed.75

The question whether a party is adversely affected by a decree is a question of fact to be

determined in each case according to its particular circumstances. It is clear that if a
plaintiffs claim is decreed in its entirety and all the issues are found in his favour, the
plaintiff cannot appeal from the decree. In case the plaintiffs claim is decreed in its
entirety, but one of the issues is found against him, can the plaintiff appeal from the
adverse finding? It has been held that he cannot.76 The reason is that the very fact that the
decree is entirely in the plaintiffs favour, notwithstanding a finding adverse to him on one
of the issues shows that such finding was unnecessary to the determination of the plaintiffs
suit. It has been stated in the notes to s 11, that when a finding on an issue is not necessary
to the determination of a suit, such finding does not operate as res judicata; and it is an
elementary principle that an appeal is not admissible on any point that does not operate as
res judicata. Where, however the plaintiff had sued for alternative reliefs and has been
granted relief in respect of one such relief, a question arises as to whether he can appeal
against the decree which has refused the other relief. The trend of decisions is that he
cannot appeal, but the point was left open in a Patna case.77

In a later decision, however, the same High Court has held that in such a situation the
question has to be determined on the averments in the plaint. If the plaint read as whole
discloses that the plaintiff will be satisfied with either of the reliefs claimed by him, he
cannot appeal if one of the reliefs is granted. One who gets what he wants is not a person
aggrieved. But if the plaint read as whole gives an impression that of the alternative reliefs
one is the main relief and the other one is claimed only if it is found that the main relief
cannot be granted and is refused, the plaintiff can appeal and urge that he is entitled on the
facts of the case to the main relief.78 Where the order of the Appellate Court remanding a
case becomes final, no appeal can lie against the decision of the trial court which
implements the directions of the Appellate Court.79 Similarly, if a suit is brought by A and
B, and the suit is dismissed in its entirety, B cannot appeal from the decree. And even if
one of the issues is found against B, B cannot appeal from the finding, for such finding
does not operate as res judicata for the reason stated above.80 It sometimes happens, where
there are two or more defendants, that although a suit is dismissed as against one of them,
in other words, the decree on the face of it is entirely in his favour, the decree impliedly
negatives the right claimed by such defendant as against the plaintiff and the other
defendants. In such a case, it has been held that an appeal lies at the instance of such
defendant on the ground that he is adversely affected by the decree. X owes Rs 2,000 to A.
A assigns the debt first to B and then to C. C sues A and B to recover the debt, alleging
that the assignment to B had become void through non-fulfilment of the conditions upon
which it was made. A decree is passed against A, but the suit is dismissed as against B.
Here, the decree necessarily implies the finding that the assignment to B had become void,
in as much as but for such a finding the decree could not have been passed in favour of C
who admittedly was the second assignee of the debt. B may, therefore, appeal from the
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decree, though as against him the suit was dismissed.81 In a suit by X against A and B with
respect to immovable property, A pleaded the title of B. Then B died and A was recorded
as his legal representative. The suit was decreed in favour of X. A is entitled to file an
appeal against the decree.82 But where a suit is filed against two defendants and a decree is
passed which effects the rights of only one of them and the defendant so affected allows
the decree to become final by omitting to appeal, the other defendant cannot, by appeal,
challenge the decree, first, because he did not represent the co-defendant and secondly,
because the decree did not adversely affect his interests and therefore he cannot be said to
be an aggrieved person.83

In some cases, an appeal may be preferred by a defendant against his co-defendants. A

sues two Hindu brothers B and C, on a promissory note passed by B for money borrowed
by him (B) as manager of the family, alleging that B and C were joint, and that the loan was
obtained by B for family purposes. B does not appear at the hearing. C appears and admits
that he and B are joint, but denies that the loan was obtained for family purposes. An issue
is raised as to whether the debt contracted by B was for family purposes. It is found by the
court that the loan was obtained by B for family purposes, and a decree is passed against B
and C. Here C can appeal the decree as between himself and B. The rule is that when a
court deals with a case as raising not only a question between the plaintiff and the
defendants, but also as between the defendants, one of the defendants can appeal from the
decree as between himself and the other defendants.84 An appeal will lie even against a
finding if it is necessary and operates as res judicata.85 23. Consideration before first
Appellate Court.Raising a ground in the form of substantial question of law is not enough
unless that question of law in fact arises in the case. To find out whether the first Appellate
Court considered the reasons given by the trial court, a mere mechanical reading of the
two judgments is not enough, nor it is enough to find out whether all of the reasons have
been re-written in the Appellate Courts judgment or not. What is binding is the finding.
Reasons may be same for upholding the finding of fact, reasons may be supplemented by
the first Appellate Court in addition to the already recorded reasons, the reasons given by
the trial court in totality may be considered by the first Appellate Court and sometimes
each individual reason may be considered by the first Appellate Court. The questions are,
whether, in the process of arriving at a conclusion, the first Appellate Court applied its
mind to the facts of the case; whether the first Appellate Courts judgment discloses that
the reasons given by the trial court were considered, which can be gathered from the
reading of the judgment of the Appellate Court, though the Appellate Court has not
quoted or specifically mentioned all the reasons given by the lower court; and whether the
first Appellate Court appreciated the evidence in lawful manner and found reasons for
interference in ultimate decision of the trial court.86

Where the suit was decided by the judge of the trial court who has not recorded the
evidence of the parties, and therefore, had no advantage of observing the manner in which
the witnesses deposed in court, nor could he pass the finding on the basis of demeanour of
the witnesses, it is the duty of the Appellate Court to see whether the evidence taken as a
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whole can reasonably justify the conclusion which the trial court arrived at or whether
there is an element of improbability arising from proved circumstances which, in the
opinion of the court, outweighs such finding recorded by the trial court. Therefore, it is
relevant to consider the evidence of the parties in detail.87

In a case of reversal of findings of the trial Court by the first Appellate Court, it was held
by the Madras High Court that the first Appellate Court must give its own reasoning by
applying its mind independently on evidence adduced by parties before the trial Court.88

In an appeal preferred against the judgement of the trial Court by the intervenor-
defendant, the Patna High Court held that the first Appellate Court was authorised to to
consider all points decided by the trial court in the suit including the issue of title as well as
correctness or incorrectness of the record of rights. Being the last court of facts, the first
Appellate Court is bound to give its own findings and reasoning on all points discussed in
the judgment of the trial court. It was further observed that the first Appellate Court is
entitled to reverse the findings of the trial Court after scrutinising the entire materials
available on record, although the party against whom the findings has been given by the
trial Court did not prefer appeal.89 Where in a suit for declaration of right and title, the
Appellate Court never considered the admission made by the defendant in the written
statement and surrounding evidence and passed orders holding that the plaintiff has title
over suit land, the appellate order was held to be improper.90

In a suit for specific performance of contract of sale of immovable property which was
mortgaged with bank, the evidence on record showed that the plaintiff was willing to
purchase the property subject to encumbrance. It was held that the grant of the relief of
refund of earnest money instead of the relief of specific performance by the trial court was
improper and the reversal of the order of trial court by the first Appellate Court was
justified.91

In exercise of appellate jurisdiction, the manner of disposal is equally important. Thus,

where the High Court dismissed appeal against decree is a suit for specific performance
and the High Court gave a finding regarding adverse possession in a suit for specific
performance, it was held by the Supreme Court that there was total non-application of
mind and no serious effort to analyse the various points raised.92

The Supreme Court in the above judgment quoted with approval from an earlier decision
in Rajeshwari v. Puran Indoria,93 wherein it has been observed as follows:

5 Normally, a suit for specific performance of an agreement for sale on immovable property involves the question whether the plaintiff
was ready and willing to perform his part of the contract in terms of section 16 of the Specific Relief Act, whether it was a case for exercise of
discretion by the court to decree specific performance in terms of section 20 of the Specific Relief Act and whether there were laches on the
part of the plaintiff in approaching the court to enforce specific performance of the contract.1
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Since the above factors and other surrounding circumstances were not considered, the
Supreme Court, is BHELS case (supra) remitted the matter to High Court for fresh
consideration.

In other case, where the High Court quoted the depositions of witnesses as findings and
quoted findings of the lower Court which had been set aside by High Court is an earlier
round of litigation and did not consider important aspects relating to adverse possession,
the Supreme Court remitted the matter to High Court for consideration de novo.

Kapadia, J., (as he then was), speaking for the Division Bench in the above case, observed
as follows:

In the matter of adverse possession, the courts have to find out the plea taken by the plaintiff in the plaint. In the plaint, the plaintiff
who claims to be owner by adverse possession has to plead act ual possession. He has to plead the period and the date from which he
claims to be in possession. The plaintiff has to plead and prove that his possession was continuous, exclusive and undisturbed to the
knowledge of the real owner of the land. He has to show hostile title. He has to communicate his hostility to the real owner. None of
these aspects have been considered by the High Court in its impugned judgment. As stated above, the impugned judgment is under s 96
CPC, it is not a judgment under s 100, CPC. As stated above, adverse possession or ouster is an inference to be drawn from the facts
proved that work is of the first Appellate Court2

The Andhra Pradesh High Court has held that where the Appellate Court which dealing
with the actual controversy discussed the matter elaborately, it committed no irregularity
even if it has taken the task of examining the validity of a particular document in respect of
which there was neither any issue nor any relief claimed.3

The claim of a plaintiff in a suit for partition was based on a Will executed by his
grandfather. The plaintiff produced only a certified copy of the Will and defendant also
referred to the same in his written statement. However, neither party brought the original
Will on the record. The trial Court and the High Court without giving any specific finding
on the Will decreed the suit. The Supreme Court remitted the matter to High Court for
reconsideration.4

Where the High Court set aside the finding of fact recorded by the trial court without a
reasoned order, it was held by the Supreme Court that the conclusions reached by the
High Court cannot be endorsed.5

C.K. Thakker, J., speaking for the Division Bench in the above case observed as follows:

33. Three requisites should normally be present before an Appellate Court reverses a finding of the trial court:
(i) it applies its mind to reasons given by the trial court;

(ii) it has no advantage of seeing and hearing the witnesses; and

(iii) it records cogent and convincing reasons for disagreeing with the trial court.
34. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would
allow the first Appellate Court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has
virtually reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has
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considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the Appellate
Court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court.
Thereafter, it is certainly open to the Appellate Court to come to its own conclusion if it finds that the reasons which weighed with the
trial court or conclusions arrived at were not in consonance with law.6

Where, in a suit for permanent injunction, the plea as to non-joinder of necessary parties
viz. non-implement of legal representatives of the deceased defendant was not taken up
during trial and no evidence was lead on that point and the matter proceeded with the
consent of the defendant who invited finding without any objection, it was held by the
Himachal Pradesh High Court that it amounts to abandonment and the plea non-
implement cannot be raised by defendant for the first time in appeal.7

In another case, the Himachal Pradesh High Court has held that the duty of the Appellate
Court is to discuss the entire evidence, points of law and submissions urged by parties in
support of their contentions. Where the judgment is not showing the grounds factual or
legal on the basis of which the Appellate Court came to a different conclusion than that
arrived at by the trial court, such judgment cannot be termed as proper. The summary
dismissal or mere expression of concurrence with the conclusions of the trial court is not
contemplated by the Code.8

In a first appeal, the judgment of the trial court showed that on the question of identity of
the disputed land, the parties adduced evidence, Court Commissioner was appointed, who
submitted his report and was examined and only cross-examined. Under these
circumstances it was held by the Supreme Court that the remand of the matter by High
Court with direction to give opportunities to parties to adduce further evidence on the
question of identity of disputed land was not proper.9

In a case relating to fire insurance policy, where the Appellate Court upheld the reasons
given by trial Court but reduced the amount of damage without giving any reasons, it was
held by the Supreme Court that the Appellate Courts order was liable to be set aside.10

24. Decree-holder may accept what the decree awards him, and appeal for what the
decree refuses him. If the decree awards the decree-holder a sum smaller than what he
claims, he may accept the smaller sum and appeal for the balance. He may approbate the
decree as to what it awards him, and reprobate the decree as to what it refuses him.11

The Code of Civil Procedure confers a right upon a plaintiff to pray for one or more reliefs,
categorised as main and alternative reliefs. A decree may grant or decline all the reliefs. It
may also grant some of the reliefs claimed and decline others. The Code does not place any
bar upon the right of an aggrieved plaintiff to file an appeal against that part of the decree
which declines relief. Even otherwise, where law permits the claim of an alternative relief,
like grant thereof would not disentitle an aggrieved plaintiff from filing appeal against that
part of the decree which adversely affects his right. Thus, in a suit for specific
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performance, where the Court granted the alternative relief of damages, the plaintiff is not
debarred from filing appeal against denial of the main relief.12

25. Appeal by Defendant, When Suit is Dismissed. A decree challenged in appeal is

reopened and the appellant hearing is a rehearing of the whole subject matter and when
the decree is passed in appeal, the first decree merges in the appellant decree.13 An appeal
does not lie against mere findings recorded by a court unless the findings amount to a
decree or order. Where a suit is dismissed, the defendant against whom an adverse finding
might have come to be recorded on some issue has no right of appeal and he cannot
question those findings before the Appellate Court.1426. Merger of Decrees. When a trial
court decrees a suit and the decree is challenged by a competent appeal, the appeal is
considered as a continuation of this suit and when the appellate decree affirms, modifies or
reverses the decree on merits, the trial court decrees said in law to merge in the appellate
decree, and it is the appellate decree which rules.15 But when the decree is passed without
notice to party that decree will not, in law, be a decree to which he is a party. Equally so in
the case of an appellate decree.1627. Joinder of appellants. It is irregular for defendants
with different defences to a suit and with different grounds for appeal to join in a single
appeal,17aliter where the defence is the same.18 Plaintiff himself had said in the plaint, that
he was in doubt as to which two sets of defendants was liable and sued them in the
alternative. In the circumstances, as one set of defendants was held liable, an appeal against
the other set would not be maintainable.19

21. Person aggrievedappeal by third party. Sections 96 and 100 of the Code of Civil
Procedure make provision for an appeal being preferred from every original decree or from
every decree passed in appeal respectively; none of the provisions enumerates the person
who can file an appeal. However, it is settled by a long catena of decisions that to be
entitled to file an appeal, the person must be one aggrieved by the decree. Unless a person
is prejudicially or adversely affected by the decree, he is not entitled to file an appeal.58

Locus of a person to prefer an appeal in a matter of matrimonial nature is vital as the right
of privacy of two spouses would be interfered with thereby. The court cannot enlarge the
scope of locus in a case of this nature where the parties are fighting litigations. Allegations
made by the first respondent in his revision application does not disclose any cause of
action for maintaining the said application nor does it state as to how and in what manner
he would be prejudiced if the impugned judgment is allowed to stand. In the
aforementioned premise, bona fide of the first respondent was also required to be
determined by the court.59

When the status of the parties in a matrimonial case is not in question, such judgments
ordinarily cannot be said to be judgments in rem. Even if the said judgment is a judgment
in rem, the third party herein could not have questioned the same as he could not be said
to be aggrieved thereby. In that view of the matter, the question as to whether in the
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instant case, the civil court had any jurisdiction to pass the decree in question, takes a back
seat.60

In a suit for specific performance of agreement of sale by vendee, it was held by the
Andhra Pradesh High Court that third parties claiming title to property agreed to be sold
are neither necessary nor proper parties to file appeal against decree for specific
performance. They can resist delivery of possession and it cannot be said that they have no
other remedy except an appeal.61

It may be true that a decree obtained by fraud is a nullity. But the question as to whether a
decree has been obtained by fraud or not, is again a question which must be raised by a
person who is interested in the subject matter thereof and not at the instance of a person
who is a third party. The spouses have a right of privacy. Such a right of privacy not only
extends to the matrimonial home but also to the matter of dissolution of a marriage. A
third party who has nothing to do with the relationship of a husband and wife, cannot be
permitted to intrude into their privacy by preferring an appeal only on one or more of the
grounds, which do not confer locus on the third party to prefer an appeal against the decree
passed by the learned civil judge.62 The third party in relation to his disputes with the
appellant herein has been pursuing his remedies in appropriate proceedings. What would
be the effect of the said judgment and decree in a departmental proceeding is required to
be determined by the appropriate authorities. Only because a departmental proceeding was
initiated against the appellant on the complaint of third party, he, only thereby, cannot be
said to have any locus to prefer an appeal.63

28. Cross Suitsappeal against one of two decreesmaintainability. Two cross-suits

were filed between the very same parties; the subject matter of dispute was the very same
property, and the reliefs sought by each plaintiff in their respective suits were similar; the
trial court, by consent of parties, consolidated the two suits and directed that they be tried
together. The two suits were decided by a common judgment. As a result of the said
common judgment, the suit filed by one party was dismissed, whereas the suit filed by
another party was allowed. Thus although the judgment was common, it dealt with two
separate suits and consequently the common judgment resulted in two separate and
distinct decrees. The party whose suit was dismissed filed only one appeal against the
decree whereunder the suit of another party was allowed, but did not file any appeal
against the decree, wherefore his suit was dismissed. It was held in the circumstances that,
when two decree were passed, appeal against only one of them was not maintainable.20

Admittedly, two suits were filed by the parties against each other. For the sake of
convenience the trial court passed a common judgment. The trial of the suits was separate
and the judgment and decree in the two suits are different. The first Appellate Court has
reversed the result in both the suits in a single appeal. That was not permissible in law.
Even though the judgment is common, for all practical purposes it shall be treated as two
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judgments and decrees. Hence the lower Appellate Court was not justified in passing the
judgment and decree under appeal in a single appeal filed before it.21

29. Appeal to be from each decree. The language of the section makes it clear that each
decree should be the subject matter of an independent appeal and that one appeal against
two decrees passed in two different suits based on different causes of act ion is not
contemplated.22 Even in a single suit such as a suit for partition, there can be more than
one preliminary decree. An order of the court directing sale of a certain property, after the
passing of the preliminary decree, which cannot be conveniently divided among the
sharers, amounts to a final adjudication of the rights of the parties regarding the manner in
which that property has to be divided. Such an order amounts to a preliminary decree and
can be appealed against.23 The principles of merger of original decree with appellate decree
can not be invoked to claim protection under the general provisions of Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947.24

30. First appealrequest for issuewise findingnot proper. First appeal is a valuable right
and the parties have a right to be heard both on questions of law and on facts and the
judgment in the first appeal must address itself to all the issues of law and fact and decide
it by giving reasons in support of the findings.25

In the regular first appeal, the request to examine conclusions arrived at, and to the district
judge to give finding on each issue as first Appellate Court, is not proper.26

31. Finding of factlimited scope of interference. The general rule is that the Appellate
Court should permit the finding of fact rendered by the trial court to prevail, unless it
clearly appears that some special feature about the evidence of a particular witness has
escaped the notice of the trial court or there is sufficient balance of improbability to
displace its opinion as to whether the credibility lies.27 The trial court has the advantage of
recording the evidence and noticing the demeanour of the witness. In such a situation, the
view is that the first Appellate Court should be slow to interfere with the findings recorded
by the trial court.28

In a case relating to work contract, the plaintiff challenged the assessment of the work
made by the defendant. However, the trial court found that the plaintiff did not sign the
measurement book or give any endorsement thereon. He did not lead any evidence to
establish taken he get the work measured by any independent agency. On the contrary the
trial court also found that evidence of the defendant was credible and cogent and work
upto only 65% and not 95% had been done. Under these circumstances the High Court
declined to interfere in the findings of fact.29 Where no exceptional circumstances was
pointed out by the Appellate Court for dislodging the finding of fact recorded by the trial
court on the basis of appraisal of oral testimony, it was held by the Allahabad High Court
that the Appellate Court erred in upsetting the findings of the trial court on all issues.30
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32. Relief. A money suit was filed by the bank against manufacturer of handloom sarees.
The suit was decreed by the trial court granting 12 equal quarterly instalments. Considering
the loss suffered in business owing to drought condition, the Appellate Court granted six
more quarterly equal instalments to the defendants.31

33. Sub-section (3): Consent decrees not appealable. Sub-section (3) declares that no
decree passed by consent of parties shall be appealable. Under the 1882 Code, consent
decrees were passed under s 375. Under the present Code of Civil Procedure,32 a consent
decree may be passed under O 23, r 3.Right of appeal has been given under O 23, r 1(A)(2)
to a party who challenges the recording of the compromise to question the validity thereof
while preferring an appeal against the decree. Section 96(3) of the Code of Civil Procedure is not
barred to such an appeal, because s 96 (3) is applicable to cases where the factor of
compromise or agreement is not in dispute.33 Nothing in O 23 describes that the order
passed under rr 1 and 3 thereof, has force of decree and none of the provisions contain in
the Code of Civil Procedure renders an order under O 23, r 1, refusing or to allow such an
application or the order under O 23, r 3 refusing to record compromise, has force or is
deemed decree. Though, however an order passed under O 23, r 3 may be treated to be a
decree, but then again, s 66 (3) prohibits appeal against the decree passed by the court with
the consent of the parties.34 An appeal against a consent decree passed in presence of
counsel of both the parties in not maintainable.35 No appeal lies against a consent order
appointing an arbitrator.36 The rule contained in this sub-section is one of estoppel.
Therefore, once a decree is passed with the consent of parties and the decree ex facie
indicates that the parties thereto had given their consent, the decree cannot be challenged
in an appeal on grounds such as fraud, misrepresentation, coercion etc.37 On the other
hand, it has been held that where in an appeal against a consent decree the ground taken is
that there was in fact no agreement between the parties, though such an appeal is barred by
this section, there could be an appeal by the party aggrieved by such consent decree under
cl (m) of r 1 of O 43. It is submitted that the distinction made between the two classes of
cases, namely, those where the factum of compromise is in dispute and those in which its
legality is in question cannot be sustained on principle. Such a distinction is no longer
tenable in view of the deletion of cl (m) of r 1 of O 43 by the Amendment Act, 1976 and
which renders the decisions cited below38 inapplicable.

In a case relating to lease of property for residential purposes, where the suit is said to have
been compromised and a compromise decree was passed, the Supreme Court held that no
appeal is maintainable against a consent decree in view of the specific bar contained in sub-
s (3) of s 96 of the Code.39

Raveendran, J., speaking for the Bench in the above case laid down the law in the
following words:

The position that emerges from the amended provisions of O 23, can be summed up thus:
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(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in s 96 (3) CPC.

(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in
view of the deletion of clause (m) r 1, O 43.

(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in
view of the bar contained in Rule 3A.

(iv) A consent decree operates as an setoppel and is valid and binding unless it is set aside by the court which passed the consent
decree, by an order on an application under the proviso to r 3 of O 23.
Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which
recorded the compromise and made a decree interms of it, and establish that there was no compromise. In that event, the court which
recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is
because a consent decree is nothing but contract between parties super-imposed with the seal of approval of the court. Validity of a
consent decree depends wholly on the validity of the agreement or compromise on which it is made.40

It has, however, been held by the Jharkhand High Court that in a matrimonial suit for
passing a decree for dissolution of marriage by mutual consent as contemplated under s 13
B of the Hindu Marriage Act, the provisions of O 23, r 3 of the Code will not apply and as
such an appeal is maintainable against a decree passed under s 13 B of the Act.41

When a preliminary decree is passed in disregard of the provisions of O 32, r 7 it has been
held by the Supreme Court in Kausalya Devi v. Baij Nath, 42 that it could not be questioned
in an appeal against the final decree. By parity of reasoning an order recording compromise
without complying with O 32, r 7, should not be liable to be attacked in an appeal against a
decree following therefrom. The Code of Civil Procedure does not allow an appeal from a
consent decree in any case. The deletion of cl (m) of r (1) of O 43 shows that it is no
longer competent to appeal from an order recording the compromise where such
compromise is not lawful on the ground that where the compromise is not a lawful one,
the court has no power under O 23, r 3 to record such a compromise.

This section applies to consent decrees passed in appeal also.43 Plaintiff sued upon an
account stated. The court found that the account stated was a deliberate fabrication and
fraud and the plaintiff had to fall back on items in the general account. Each of these was
found to be barred by limitation but defendants consented to a decree for such items as
plaintiff could prove. A decree was passed on this footing. The Privy Council held that it
was a consent decree and not appealable and that if it were not a consent decree the
plaintiffs claim would have to be dismissed.44 In a suit for partition, all the parties are
plaintiffs and defendants, and, without even one party, the suit cannot proceed, nor can
the matter be settled. Where all parties to a suit agree to the appointment of a referee and
agree to be bound by his decision, the decree passed on the, basis of the decision of the
referee may amount to a consent decree. But, r 8 of the Code of Civil Procedure provides for
the issuance of notice to all interested persons, in case the suit was to be decided by a
referee and the parties were to be bound by his decision. If this is not done, then there is
no agreed appointment of referee and no agreement by all the interested persons to be
bound by the decision of the referee.45
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It has been held by the Rajasthan High Court that a party to a suit whose rights are
affected by a compormise decree for which he had not consented, is not precluded from
assailing the validity of the decree by way of an appeal under s 96 of the Code.46

34. Consent decree when appealable.

In the following circumstances, an appeal lies against a consent decree

(a) Extraneous Matter. This omission has been supplied by sub-s (3) of the present section.
The said words barred an appeal from a consent decree only so far as such decree related
to so much of the subject matter of the suit as was dealt with by the agreement,
compromise or satisfaction on which the decree was based. If a consent decree dealt with
any matter extraneous to the suit, that is, matters that did not relate to the subject matter
of the suit, it was held that the decree, though passed with the consent of parties, was
appealable, and that it should be modified by omitting such terms as did not relate to the
subject matter of the suit.47 As regards the terms so excluded, it was held that they might
be enforced in a separate suit as a contract.48 It would also be so under the present Code of
Civil Procedure. 49

(b) When Compromise is Unlawful. Both under O 23, r 3 and the corresponding s 375 of the
Code of Civil Procedure 1882, the agreement or compromise in terms of which the court
is invited to pass a consent decree must be lawful. It was accordingly observed by the High
Court of Bombay in Goculdas v. James Scott,50 a case under s 375, that notwithstanding the
declared finality of the decree, an appeal against it would be maintainable, where the party
against whom the decree was passed alleged that there had been in fact no lawful
agreement arrived at, in which case the condition precedent to the making of the decree
would not be fulfilled. These observations were mere obiter dicta, but they were adopted
by the High Court of Madras in Sridharan v. Puramathan,51 where it was held that an appeal
would lie from a consent decree if the agreement in terms of which the decree was passed
was not lawful. The High Court of Allahabad has held that an appeal lies against a consent
decree when the compromise on which it is based is attacked as unlawful, as, for example,
when a compromise is entered into on behalf of a minor without the leave of court under
O 32, r 7,52 or without the sanction of the Central Board which is required under s 51 of
the UP Muslim Wakf Act, 1936,53 or when a compromise is entered into by counsel
without authority.54 That is also the view taken by the High Court of Rajasthan.55

The Patna High Court has held that filing of title suit for setting aside compromise decree
on the ground that compromise was not lawful is specially barred under O 23, r 3A of the
Code. The remedy open to plaintiff is to challenge the said decree by preferring an appeal
under s 96 of the Code.56 The Patna High Court placed reliance on a decision of the
Supreme Court in the case of Banwari Lal v. Smt. Chando Devi,57 wherein it has been
observed as follows :
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Section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent of the parties. Rule 1A(2) has
been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest
the decree on the ground that the compromise should not have been recorded. When s 96 (3) bars an appeal against decree passed with
the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or
available to the parties. One such remedy available was by filing the appeal under O 43, r 1(m). If the order recording the compromise
was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly, a suit used to be filed for setting aside
such decree on the ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit.
But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by
way of filing a suit is available in cases covered by r 3-A of O 23. As such a right has been given under r 1A(2) of O 43 to a Party, who
challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96(3)
of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or
agreement was not in dispute.

(c) Compromise not Showing Ground Relief. The High Court of Allahabad has held that if a
compromise decree for dissolution of marriage does not show that any of the grounds
specified in s s 10 and 13 of the Hindu Marriage Act, 1955 is made out, the decree would be
without jurisdiction and that this sub-section would not apply to such a decree.58

(d) Dispute on the Question of Compromise. When there is a contest on the question whether
there was a compromise or not, a decree accepting the compromise on resolution of that
controversy, cannot be said to be a decree passed with the consent of the parties.
Therefore, the bar under s 93 (3) of the Code of Civil Procedure could not have application. An
appeal, and a second appeal, with its limitations would be available to the party feeling
aggrieved by the decree passed on such a disputed compromise or on a rejection of the
compromise set up.59

Balasubra manyan, J., speaking for the three-Judge Bench in the above case, observed as
follows:

When on a dispute in that behalf being raised, an enquiry is made (now it has to be done in view of the proviso to O XXIII, r 3 of the
Code added by Act 104 of 1976) and the suit is decreed on the basis of a compromise based on that enquiry, it could not be held to be a
decree passed on consent within the meaning of s 96 (3) of the Code. Section 96(3) contemplates non-appellability of a decree passed
by the court with the consent of parties. Obviously, when one of the parties sets up a compromise and the other disputes it and the
court is forced to adjudicate on whether there was a compromise or not and to pass a decree, it could not be understood as a decree
passed by the court with the consent of parties.60

In a compromise of a suit, one party raised dispute with respect to the terms of the
compromise and the objecting party requested the Court not to pass a decree on the basis
of the consent. But dispute objections the Court passed decree in terms of the consent.
The Gujarat High Court held that in the face of the controversy regarding terms of
consent it cannot be said that the decree was passed with the consent of parties and as
such appeal under s 96 would be maintainable.61

35. Practices. The Privy Council has said that when a decree or any part of a decree is by
consent of parties, it should always so appear on the face of the decree when drawn up.62
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The terms of a decree agreed to between the parties need not be in writing. It is enough if
the judgment discloses that the decree or order which came to be passed was on the basis
of consent of the parties.63 There was a question whether the appeal itself is not
maintainable. A preliminary contention and prolonged arguments about the entertainment
of the appeal had been urged. For the purpose of this interlocutory matter, it can be
assumed that the appeal was maintainable. There are compulsive situations, however,
where the exercise of the appellate jurisdiction is mandated to avert a possible deflection of
the course of justice, when the affected party is relegated to the routine process of fighting
the inte locutory matter under the normal procedure of O 39, r 4.64 The rule of practice,
which has almost the force of law, is that the Appellate Court does not reverse a finding of
fact rested on proper appreciation of the oral evidence.65

36. Award of Lok Adalat Not appealable. The Lok Adalat will pass the award with the
consent of the parties, therefore there is no need either to reconsider or review the matter
repeatedly, as the award passed by the Lok Adalat shall be final, even as under s 96 (3) of
Code of Civil Procedure it is stated that no appeal shall lie from a decree passed by the Court
with the consent of the parties. The award of the Lok Adalat is an order by the Lok Adalat
under the consent of the parties, and it shall be deemed to be a decree of the civil court,
therefore an appeal shall not lie from the award of the Lok Adalat as under s 96 (3) Code of
Civil Procedure.66

However, where parties who entered into compromise has no power to enter into
compromise and the compromise had been effected by playing fraud, it was held that the
award passed by Lok Adalat on the basis of such compromise is not settlement and is void.
Therefore, appeal against such an award would be maintainable under s 96 of the Code.67

37. Procedure for setting aside consent decrees. Sub-section (3), in so far as it bars an
appeal from consent decrees, gives effect to the principle that, a judgment by consent, acts
as an estoppel.68 In the case of a consent decree, the Privy Council refused to entertain an
appeal or to consider the sufficiency or otherwise of the consent as the decree could only
be set aside by substantive proceedings appropriate to that particular remedy.69 A consent
decree can be set aside on any ground which would invalidate an agreement, such as
misrepresentation, fraud or mistake.70 This can only be done by a suit, and a consent
decree cannot be set aside by an appeal,71 of a review,72 or by a rule obtained on a
motion.73 But the court in its inherent jurisdiction, may set aside an interlocutory consent
order which is not a final order or judgment.74 Where in the facts and circumstances of the
case, the plaintiffs amendment did not change the nature and character of the suit, the
amendment could be allowed at the appellate stage as that did not cause any prejudice to
the defendants.75

But an appeal from an order recording a compromise under O 23, r 3, is not incompetent
if the decree is passed before the appeal.76 This is no longer the position in view of the fact
that cl (m) of of O 43, r 1 which provided that an order under O 23, r 3 recording or
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refusing to record an agreement, compromise or satisfaction was an appealable order has

been deleted by the Amendment Act, 1976. In some cases, it may be done by an
application for a review.77 But it cannot be done by a rule.78

It is no doubt true that the appellants-plaintiffs could have approached the trial court
under the proviso to r 3, O 23, Code of Civil Procedure, but they can also challenge the decree
in appeal under s 96 (1), Code of Civil Procedure before the High Court. However, when High
Court has already entertained the appeal against the consent decree passed by the trial
court, then, merely because they have alternative remedy of approaching the trial court by
way of application under the provision to r 3 of O 23, it would not be a ground for the
High Court not to entertain this appeal on merits.79

38. Subsequent events. A court (including a court of appeal) should take into account
developments subsequent to the commencement of the litigation. When the relief,
otherwise awardable at the date of commencement of the suit, would become
inappropriate in view of the changed circumstances, the court should mould the relief in
accordance with the changed circumstances, whenever it is necessary to do so, for
shortening the litigation or doing complete justice. This is particularly so in the case of
matrimonial proceedings, proceedings relating to guardianship, etc, where the interests
involved are not merely those of the immediate parties to the litigation, but also those of
society and of the future generation. In the instant case, custody of a girl was awarded
under s 25 of the Guardians and Wards Act, 1890, to her mother, at a time when the girl was
under five years of age. During the pendency of the litigation, the girl attained the age of
five years. The High Court proceeded to dispose of the appeal on the merits, taking note
of the fact that as the girl had completed the age of five years, the mother could not claim
the custody as a matter of right.80

An Appellate Court can take note of events that have taken place since the judgment of
the trial court. In a suit by landlord for eviction, the High Court in second appeal, can take
note of the fact that:(i) landlords children have since grown up and so his family has
increased;(ii) tenants sons have shifted to another house, one son has gone to foreign
country, daughter has got married and wife has expired.81 The case of Pasupaleti v. Motor and
General Traders,82 was followed.

39. Decisions of the court extra cursum curiae. Sometimes it happens that parties to a
suit or proceeding refer the matter for the decision of the court. The question is whether
such a decision when given is open to appeal. When the parties invite the court to adopt a
procedure extra cursum curiae and give a decision agreeing to be bound by it, such a
reference is not one under the Arbitration Act. Such a decision amounts to a decree but is
not open to appeal.83 Hence, the language used in decisions for such a decree is that such a
decision is in the nature of an award or as if it is an award.84 Where the dispute related to
the value of improvements made by a mortgagee in possession and the parties filed a joint
statement asking the court to make a local inspection, peruse the documentary evidence in
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the case and give its decision and agreed that they would abide by that decision, it was held
that the procedure agreed to was extra cursum curiae and no appeal lay against the decision.85
But where the procedure adopted is one prescribed and followed in courts, the fact that
the parties agreed to dispense with oral evidence and take the decision of the court on the
materials on record would not make it a consent decree so as to bar an appeal.86 Likewise,
an agreement between the parties that they would not adduce oral evidence and that the
court might give a decision against the party on whom the onus of proving the case lay,
would not make the decree passed a consent decree and it would be open to the party
aggrieved to appeal against it on the ground that the onus had been wrongly thrown.87
Where counsel for the parties agreed that a decree might be passed on the basis of the
decision of the court on issue (1) without reference to other issues and the court acting on
this agreement decreed the suit, it was held that the defendant was entitled to file an appeal
against it and challenge the correctness of the decree on issue (1).88 Where the parties
agreed that the court should authorise a commissioner to take additional evidence and that
that order should not be appealable, that does not render the ultimate decree passed in the
suit, a consent decree.89 Mere acceptance by a party of an order offered by the court has
been held not to amount to consent.90 Where the terms of the decree were not agreed to
by the parties but imposed upon them by the court, there is no consent decree and an
appeal against it is not barred.91 A decree passed on the strength of a special oath
administered in pursuance of an agreement thereto between the parties is a consent decree
and is not appealable.92 Where, in a suit, the plaintiff agrees to be bound by the statement
of the defendant on oath, the decree passed on the basis of such a statement is not a
consent decree. 93

40. Appeal is a continuation of the suit. In theory, the appeal is only a continuation of
the hearing of the suit.94 Accordingly, the word suit in s 15 of the UP Temporary Control
of Rent and Eviction Act, 1947 has to be understood to include an appeal. The result is
that although at the time of the institution of the suit for eviction, s 15 was not in force in
the area where the rented premises are situated, if at the time of appeal it was brought in
force in that area, the tenant in appeal becomes entitled to its protection.95

41. Dismissal of application for condonation of delay and appeal is decision of

appeal. An appeal presented out of time was nevertheless an appeal in the eye of law for
all purposes and an order dismissing the appeal was a decree that could be the subject of a
second appeal. It was also held that r 3A of O 41 introduced by Amendment Act 104 of
1976 to the Code of Civil Procedure, did not in any way affect that principle. An appeal
registered under r 9 of O 41 of the Code of Civil Procedure had to be disposed of according to
law and a dismissal of an appeal for the reason of delay in its presentation, after the
dismissal of an application for condoning the delay, is in substance and effect a
confirmation of the decree appealed against.96

Thus, the position that emerges on a survey of the authorities is that an appeal filed along
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with an application for condoning the delay in filing that appeal when dismissed on the r
fusal to condone the delay is nevertheless a decision in the appeal.97

The order passed by Appellate Court allowing appellant to file copy of decree at the time
of final hearing amounts to condonation of delay in filing appeal.98

42. Amendment of pleadings. Plaintiff failed in his plea of invalidity of will. He wanted
to amend the plaint to include pleas based on certain partition and s 14 (1) of the Hindu
Succession Act, 1956. Amendment was held to be setting up a different cause of act ion and
cannot be allowed in appeal.99 Where in the facts and circumstances of the case, the
plaintiffs amendment did not change the nature and character of the suit, the

amendment could be allowed at the appellate stage as that did not cause any prejudice to
the defendants.1

43. Appeal disposed ofno further orders can be passed by Court on application of
parties. After the dismissal of first appeal by the High Court, property stood vested with
both sisters and they became absolute owners and property no more remain custodia legis.
The appointment of joint receiver came to an end and they stood discharged. As such,
there was no need for the division bench to consider the application filed by the applicant.2

Thus, the High Court had no jurisdiction to pass any order on subsequent application filed
by parties in that matter.3

When an appeal is dismissed and finally disposed of, he becomes functus officio and all
applications pending adjudication before the Appellate Court become infructuous. Thus,
after dismissal of the appeal where the Appellate Court further passes order to dismiss a
pending application under O 6, r 17 of the Code, the order is improper.4 Where in a first
appeal before the High Court, an application an application under O 41, r 27 of the Code
was filed for acceptance of additional evidence and the High Court dismissed the appeal
without considering the said application, it was held that the order was liable to be set aside
and the matter remitted for consideration of the application for additional evidence in
accordance with law.5

44. Sub-section (4)Restriction on right of appeal from decrees of courts of Small

Causes. This sub-section is new, having been inserted by the Amendment Act, 1976.
Though the section provides for appeals against every decree, the new sub-section restricts
that right and bars appeal from facts against decrees passed in suits cognizable by the
courts of small causes and where the amount or value of the subject matter of the suit does
not exceed three thousand rupees. The sub-section has been enacted to bring the section
in line with the Presidency Small Cause Courts Act, 1882 and the Provincial Small Cause
Courts Act, 1887 which contain similar restriction.
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It should not be forgotten that right of appeal is not an inherent right, but it is essentially a
creature of statute. Unless the statute gives the right of appeal, the same does not exist. At
the same time, it cannot be disputed that once such right is conferred by a statute, it
becomes a vested right; however, the same can always be subjected to conditions which
may be imposed by the legislature, in which case a party would not be entitled to exercise
such right without fulfilment of those conditions. Bearing in mind this well settled
principle of law, if one peruses sub-s (4) of s 96, it is apparent that the same comprises two
conditions relating to the exercise of right of appeal against a decree passed by the civil
court. The first condition is that, for the purpose of regular appeal against a decree, the
valuation of the suit has to exceed Rs 10,000. Otherwise, the second condition is that the
interference by the Appellate Court can only be on the point of law and not otherwise.
Therefore, the contention that the petitioner has no right of appeal, cannot be accepted.6

In respect of appeal from decrees passed by Courts of Small Causes, a very unusual
question arose before a Division Bench of the Calcutta High Court. In a suit the plaint was
not returned by the Court Small Causes and the suit was decided by that Court. An appeal
was filed against the decree on the ground that sub-s (4) of s 96 permitted filing of an
appeal against a decree of a Court of Small Causes where the value of the subject-matter
does not exceed Rs 10.000/-. Repelling the plea, the Division Bench held that s 96 (4) has
no application in such cases.7 The legal aspect involved in the matter has been explained by
the Division Bench in the following way :

8. According to the Presidency Small Causes Courts Act, all money decree of the nature cognizable by the Presidency Small Causes
Court and decided by such Court is final and no appeal lies against such decree. There is a similar provision also in the Provincial Small
Causes Court Act. However, sub-s (4) of Section 96 of the Act (sic) has been introduced for the purpose of giving right of appeal
against decree passed by an ordinary Civil Court in respect of a suit which is of the nature cognizable by Court of Small Causes, but the
plaint of which has been returned by the Court of Small Causes as the question of title is involved in such suit.Therefore, if a suit of the
nature cognizable by Courts of Small Causes is not decided by such Court in view of involvement of question of title and consequently,
is returned to an ordinary civil court for disposal, a decree passed by such ordinary civil court in this type of suit is appealable in terms
of s 96 (4) of the Act.(sic).
9.In the case before us, the plaint was not returned by the Court of Small Causes and the suit was decided by such Court. Therefore,
Section 96(4) of the Code of Civil Procedure has no application.
10.The use of the phrase from a decree in any suit of the nature cognizable by Courts of Small Causes itself signifies that if a decree is
passed by the Court of Small causes without returning the plaint, there is no scope of appeal and for that reason the legislature has not
used the phrase from a decree of any suit passed by Courts of Small Causes.8

45. Death of one of appellants. Laws of procedure are meant to regulate effectively,
assist and aid the object of doing substantial and real justice and not to foreclose even an
adjudication on merits of substantial rights of citizen under personal, property and other
laws. Procedure has always been viewed as the handmaid of justice and not meant to
hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the
provisions contained in O 22 of the Code of Civil Procedure as well as the subsequent
amendments thereto, would lend credit and support to the view that they were devised to
ensure their continuation and culmination into an effective adjudication and not to retard
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the further progress of the proceedings and thereby non-suit the others similarly placed as
long as their distinct and independent rights to property or any claim remain intact and are
not lost forever due to the death of one or the other in the proceedings. The provisions
contained in O 22 are not to be construed as a rigid matter of principle but must ever be
viewed as a flexible tool of convenience in the administrating of justice.9

Where, in the appeal, there was death of one or the other appellant, an application for
setting aside abatement, condonation of delay and bringing legal representatives on record
was made and the main appeal was on file before the High Court, and in such
circumstances, an order by the High Court rejecting application of legal representations
would result in grave injustice to remaining appellants by denying them of their right to
have an adjudication of their claims on merits and such order was found liable to be set
aside by the Supreme Court.10

46. Bar of Limitation Effect. As soon a court decides that a particular suit or appeal or
application is barred by limitation, then, the only course left to the court is to dismiss that
suit or appeal or application. This is for the simple reason that being time barred, if such
suit, appeal or application is not maintainable, the court cannot proceed to decide the
issues involved therein on merits.11

47. Power of Court. See notes under the same heading under s 47.

The Supreme Court has held that a suit is ordinarily tried on the issues raised by the
parties. Additional issues which do not arise for consideration in suit or appeal cannot be
framed by court on its own.12

S.B. Sinha, J., speaking for the Division Bench in the above case observed as follows:

We, therefore, are of the opinion that the High Court was not correct in framing the additional issues which did not arise for
consideration in the suit or in the appeal. Even otherwise, the High Court should have formulated the points for its consideration in
terms of Order XLI, Rule 31 of the Code. On the pleadings of the parties and in view of the submissions made, no such question arose
for its consideration.13

The Supreme Court further went on to observe in the above case, as follows :

Scope and ambit of jurisdiction of the High Court in determining an issue in an appeal filed in terms of Section 96 of the Code of Civil
Procedure (which would be in continuation of the original suit) and exercising power of judicial review under Articles 226 and 227 of the
Constitution of India would be different. While in the former, the court, subject to the procedural flexibility has laid down under the
statute is bound to act within the four corners thereof, in adjudicating a lis in exercise of its power of judicial review, the High Court
exercises a wider jurisdiction. No doubt, the court in an appropriate case, even in a civil suit may would a relief but its jurisdiction in this
behalf would be confined to Order VII, Rule 7 of the Code of Civil Procedure.14

Where criminal proceedings are initiated on the basis of observations made in civil suit, the
Appellate Court in appeal against decree can go into the correctness of the observations
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made by the lower Court. But filing of an independent criminal proceeding is not barred
by any statute. Therefore, stay granted to criminal proceedings is improper.15

S. 97. Appeal from final decree where no appeal from preliminary decree.

Where any party aggrieved by a preliminary decree passed after the commencement of this
Code does not appeal from such decree, he shall be precluded from disputing its
correctness in any appeal which may be preferred from the final decree.

1. Object. The object of the section is that questions which have been urged by the parties
and decided by the court at the stage of the preliminary decree will not be open for re-
agitation at the stage of the preparation of the final decree, and would be taken as finally
decided if no appeal has been preferred against the preliminary decree.16

2. Preliminary decree

(a) Definition. For definition of preliminary decree, see s 2 (2).

(b) Scope. Section 97 provides that where any party aggrieved by a preliminary decree,
passed after commencement of this court does not appeal from such decree, he shall be
precluded from disputing its correctness in any appeal which will be preferred from the
final decree. Thus, in view of s 97 of the Code of Civil Procedure 1908 (Code of Civil Procedure)
finality is attached to the preliminary decree. If no appeal is filed against the preliminary
decree, its correctness cannot be disputed in any appeal which may be preferred from the
final decree. If this is so and this has been the intention of the legislature, then it would be
going against the wisdom of the legislature to permit appellant to raise the same question
going to the root of the preliminary decree in an appeal from final decree, which was
already raised and decided during the appeal against preliminary decree. Likewise, those
questions cannot be permitted to be raised in the second appeal.17

The Supreme Court held that property can be added in the list of properties in the decree
after a preliminary decree is passed in a partition suit. It was observed that a decree,
whether preliminary or final is the formal expression of an adjudication, which, so far as
regards the Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit. The Court, therefore, may not
have a suo motu power to amend a decree but the same would not mean that the Court
cannot rectify a mistake. Hence, Section 97 would not be a bar to file an application for
amendment of a decree to rectify a mistake of Court.18
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3. Appeal from preliminary decree. A perusal of the provision of s 97 of Code of Civil

Procedure will go to show that any party aggrieved by a preliminary decree is under an
obligation to file an appeal from such decree, but if he declines to avail of this opportunity,
he cannot thereafter dispute the correctness of the preliminary decree when preferring an
appeal against the final decree. In other words, in the event of failure to prefer an appeal
against a preliminary decree, the preliminary decree is deemed to have attained finality.19

The section expressly excepts preliminary decrees from the position assigned to
interlocutory orders, precluding an appellant from impeaching them in the course of an
attack upon the final decree. This is because a preliminary decree, unless it is appealed
against, finally adjudicates the rights and titles of the parties.20 The final decree in its
nature, is dependant and subordinate as it is a decree which has been passed as a result of
proceedings directed and controlled by the preliminary decree and based thereon.21 Matters
decided by a preliminary decree cannot therefore be re-agitated at the time of the final
decree.22 In a suit for partition where a preliminary decree is passed, at the time of passing
of the final decree it was not open to the respondent to raise the contention that he was a
tenant of the suit premises. Section 97 of the Code of Civil Procedure specifically provides that
where any party aggrieved by the preliminary decree does not appeal from the said decree,
he is precluded from disputing its correctness in any appeal which may be preferred from
the final decree.23

The finality of a decree or judgment does not depend on the executability of a decree. The
court may pass a decree declaring the rights of parties. In such decrees, there may be no
executable mandate. Nevertheless, issues raised and decided in those cases are binding on
the parties and conclusive between the parties in later suits. Section 97 is certainly an
indication that matters decided by the court in a preliminary decree should be regarded as
embodying the final decision on those matters, as far as the parties are concerned. The
points decided in a preliminary judgment in a partition suit will estop the parties on the
principle of res judicata from contending the same point in a later suit.24

The Calcutta decisions under the Code of Civil Procedure 1882 are now obsolete. The general
trend of these decisions was in the opposite direction. According to these decisions, a party
aggrieved by an order in the nature of preliminary decree was not bound to appeal from
the order; though the order was appealable as a decree, he was at liberty to wait until the
final decree was passed, and then to dispute the correctness of the order in an appeal from
the final decree, though the period of limitation for an appeal from the order had then
expired. Thus, it was held that when an order was passed in a suit for dissolution of
partnership and accounts, declaring the shares of the parties and referring the case to a
commissioner for taking accounts, it was open to the party aggrieved by the order to
dispute its correctness in an appeal from the final decree, though no appeal was preferred
from the order, and the period prescribed by the law of limitation for appealing from the
order had then expired.25 In subsequent case, it was held by a full bench of that court in
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Khadem Hossein v. Emdad Hossein,26 that where an order was passed in a suit for partition,
declaring the rights of the parties,27 it was open to the party aggrieved by the order to
dispute its correctness in an appeal from the final decree, though no appeal was preferred
from the order within the time allowed by law. The contrary had been laid down in an
earlier case decided by the same High Court,28 but that decision was dissented from by a
majority of the full bench in Khadem Hossein’s case. Under this section omission to prefer
an appeal from a preliminary decree precludes objections to it in an appeal from the final
decree.29 Thus, it has been held that when a preliminary decree in a partition suit was
passed by consent without complying with the provisions of O 32, r 7(1), and no appeal
was preferred against it, its validity cannot be questioned in an appeal against the final
decree.30 Where the preliminary decree declared the liability of the defendant to pay
compensation, and there was no appeal against it, its correctness could not be attacked in
an appeal against the final decree.31 A contention that the defendant is a man of unsound
mind, cannot be urged in an appeal against the final decree, as it could have been put
forward at the trial of the suit, nor a contention that the award of mesne profits in the
preliminary decree was not legal.32 A claim by the manager of a tarwad to a fourth share in
certain properties alleged to be self-acquired cannot be put forward for the first time in an
appeal against the final decree.33 It is to be noted that the present section applies only to
preliminary decrees passed after the commencement of the Code of Civil Procedure.344.
Where preliminary decree not drawn up. A right of appeal under this section arises only
when a preliminary decree is passed, that is, drawn up. It is the duty of the court, and not
of the parties, to see that a decree is drawn up. Unless a decree is drawn up, there is no
appeal. Therefore, the provisions of this section do not apply unless the preliminary decree
is drawn up.355. Two preliminary decrees. According to a decision of the Bombay High
Court, the Code of Civil Procedure contemplates only one preliminary decree.36 But this
observation requires modification. In the view of the Calcutta High Court, there can be, in
exceptional cases, more than one preliminary decree.37 So far as partition suits are
concerned, if an event transpires after a preliminary decree has been passed which
necessitates an alteration in the shares already determined, the court can and should do so
and if there is dispute in that regard, the order of the court deciding such a dispute and
altering the shares is a decree which is appealable.38

6. Final decree passed prior to or during pendency of appeal from preliminary

decree. A Full Bench of the Calcutta High Court, after an exhaustive review of the case
law, has held that an appeal from a preliminary decree is not incompetent if the final
decree is passed before it is presented, and that in such a case, it is not necessary for the
party aggrieved by the preliminary decree to appeal against the final decree, if the final
decree, apart from being based on the preliminary decree, is otherwise correct.39 Chief
Justice Rankin said that the function of the final decree is merely to restate and apply with
precision what the preliminary decree has ordained; that the decrees being in the same suit,
the court in appeal from the preliminary decree, as it has power to reverse or vary the
preliminary decree, has also the power to affect the final decree; that as the right of appeal
from the preliminary decree is given without any qualification, the passing of a final decree
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is no bar to the institution or hearing of any appeal against the preliminary decree; that if
the preliminary decree is set aside the final decree is superseded whether the appeal was
brought before or after the passing of the final decree; and that the court when setting
aside or varying the preliminary decree can and should give directions for setting aside or
varying the final decree if the existence of the final decree is brought to its notice as in all
cases it should be. The Bombay High Court has taken a similar view.40 Even apart from
special directions, the principle is well-settled that orders and decrees which are
subordinate and dependent on earlier orders and decrees could remain in force so long as
the order or decrees on which they are dependent are not reversed or superseded.41 Where
an appeal has been preferred against a preliminary decree, and during its pendency a final
decree is passed, that is no bar to the hearing of the appeal against the preliminary decree,
as the final decree will be governed by it.42

The abovementioned judgment has the effect of overruling previous Calcutta decisions
which had held that after the final decree, an appeal from the preliminary decree was
incompetent,43 or infructuous as the final decree cannot be contingent on the result of the
appeal from the preliminary decree,44 and that if the final decree is passed after institution
of the appeal from the preliminary decree, the latter should be amended to include an
appeal from the final decree.45

The Madras and Allahabad High Courts had held that an appeal from the preliminary
decree is competent although no appeal has been filed against the final decree, and that
after the preliminary decree is set aside, the final decree fails with it.46 The same view had
been taken by the Lahore High Court.47 If after the passing of the final decree, an appeal
from the preliminary decree is dismissed, the decree-holder has a right to apply for a
second final decree in conformity with the appellate decree. He may exercise this right
within three years of the date of the appellate decree.48

S. 98. Decision where appeal heard by two or more judges.

(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be
decided in accordance with the opinion of such Judges or of the majority (if any) of
such Judges.
(2) Where there is no such majority which concurs in a judgment varying or reversing
the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the appeal, is 49[composed of two or other
even number of Judges belonging to a Court consisting of more Judges than
those constituting the Bench], and the Judges composing the Bench differ in
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opinion on a point of law, they may state the point of law upon which they
differ and the appeal shall then be heard upon that point only by one or more of
the other Judges, and such point shall be decided according to the opinion of
the majority (if any) of the Judges who have heard the appeal, including those
who first heard it.

50[(3)Nothing in this section be deemed to alter or otherwise affect any provision of

the Letters Patent of any High Court].

1. Changes in the section. This section corresponds with s 575 of the Code of Civil
Procedure 1882 except that the proviso to sub-s (2) of the present section differs in several
material respects from the proviso to the second paragraph of s 575. That proviso ran as
follows:

Provided that if the Bench hearing the appeal is composed of two Judges belonging to a
court consisting of more than two Judges, and the Judges composing the Bench differ in
opinion on a point of law, the appeal may be referred to one or more of the other Judges
of the same court, and shall be decided according to the opinion of the majority (if any) of
all the judges who have heard the appeal including those who first heardit.

The proviso to sub-s (2) before its amendment in 1976 used the words: where the Bench
hearing the appeal is composed of two Judges belonging to a court consisting of more than
two Judges.The amendment substitutes for these words the following:

where the Bench hearing the appeal is composed of two or other even number of Judges
belonging to a court consisting or more Judges than those constituting the Bench.The
amendment has been carried out to include cases where a bench of more than two even
number of judges is equally divided and a reference is made to one or more of the other
judges of that High Court.

Sub-section (3) was inserted in the section by the Repealing and Amending Act 18 of 1928.

2. Scope. There can be only one judgment in a case. Two contradictory judgments or
judgments in variance with each other will not have the effect of deciding any question or
issue in the case or of deciding any of the rights of the parties. It is also plain that such
judgments can neither be enforced nor be given effect to. Therefore, if two judges
constituting a division bench give contradictory decisions or decisions in variance with
each other, in law, such decisions cannot be called as judgments as they do not decide any
question or issue in the case or proceeding nor do they decide any of the rights of the
partiesthe real test being what is the effect of the two decisions on the case or proceedings
in which it is made, the language or phraseology used being wholly immaterial, having no
bearing. In such a situation, the decisions so rendered will only amount to opinions of the
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respective judges. This principal will, however, not apply where on account of some
statutory provisions like s 98 of the Code of Civil Procedure 1908 (Code of Civil Procedure),
contradictory decisions by their own force lead to decision of any question or issue in the
case or any of the rights of the parties.

There can be no doubt that the proper course for the judges who have dissented in their
respective opinions while hearing a writ petition is not to pass final order, either allowing
or dismissing the same, but to state their point of difference after expressing their
opinions. However, it will still be open to them to state the point upon which they have
differed even if they have passed final orders. If the point of difference is not stated, it will
be for the third judge (or judges) to whom the case is referred to ascertain the same and to
give his (or their) opinion thereon.51 For the applicability of the s 98 (2) of the Code of Civil
Procedure, the basic requirement is that the division bench of the High Court consisting of
two or more judges must be dealing with the case, where there is a decision of the lower
court which is placed for consideration of the Division Bench of the High Court. By its
very language, S. 98(2), of the Code of Civil Procedure cannot be applied to the decisions
rendered by a division bench of a High Court in exercise of its original civil jurisdiction.52

In a very recent judgment from the Supreme Court, a peculiar situation arose in the High
Court of Sikkim, wherein a matter was heard by the division bench at a time when the total
strength of the High Court was of two judges. There was a difference of opinion between
both the judges, as such the matter was agreed to be placed before the Honble Chief
Justice/judge as soon as he assumes charge. Thereafter, one of the judges of the division
bench was transfered to another High Court and another judge assumed office in his place.
One of the parties thereafter moved an application under s 98 (2) read with s 151 of Code of
Civil Procedure, praying that appeal be not heard by a third judge. Due to inadvertence, the
matter was not listed before the successor court but was listed before the court of the
Chief Justice. The learned Chief Justice was of the view that the order of reference made
on the judicial side by the division bench cannot be upset either on the administrative side
or on the judicial side. The Chief Justice, hearing the appeal as a third judge, dismissed the
application under s 98.

The Supreme Court held that taking into account the fact that for the time being there
were only two judges in position and that the learned judges, who constituted the division
bench, expressed different views and at the same time thought fit to refer the matter to the
opinion of a third judge, the matter should await till the arrival of a third judge.53

3. Consisting of. The words consisting of shall mean and also considered to have
relevance only to the sanctioned strengh. Therefore, taking into account the fact that for
the time being, there were only two judges in position and that the learned judges, who
constituted the division bench, expressed different views and at the same time thought fit
to refer the matter to the opinion of a third judge, the matter should await till the arrival of
a third judge.544. Difference of opinion as to part of decree. When a bench of two
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judges agree in reversing part of a decree but differ as to the rest, the portion of which they
agree will be reversed and the rest confirmed.55

5. Difference of opinion on a point of law. No reference can be made under this section
if the judges differ on a question of fact. The power to refer can only be exercised if there
is a difference of opinion on a point of law.56

6. Difference of opinion on a question of fact. No reference can be made under this

section if the judges differ on question of fact.

The issues of facts arising between the parties in the suit and appeal were sufficient to
decide the cases for or against the plaintiff; the cleavage of opinion between the two judges
of the division benches on the other mixed issues of law and fact is inconsequential. Their
difference of opinion on mixed issues of law and fact, even if it would have been referred
for obtaining majority opinion of the judges of the court, would not have changed the
ultimate result of the appeals because the judges had also differed on issues of fact and the
decision of one of them was sufficient for decision of the cases in appeals. Thus, as the
opinion of one of the judges on issues of fact was decisive of the appeal, it would not be in
accordance with the established practice of the Supreme Court to interfere by grant of
special leave to appeal. Grant of special leave to appeal against judgments raising issues of
fact which were determinative would be against the legislative intent contained in
provisions of sub-s (2) of s 98 of the Code of Civil Procedure.57

7. The appeal shall then be heard upon that point only. Under the old section, it was
the appeal that was referred to a third judge when the judges hearing the appeal differed in
opinion on a point of law and it was held that on such reference the whole appeal was
open for argument, and not only the point of law on which the judges had differed.58
Under the present section, the judges have to state the point of law upon which they differ,
and the appeal is to be heard upon that point only. The third judge has no jurisdiction to
adjudicate on points on which the two judges were in agreement.59

When a reference is made to the third judge on the difference of opinion on the question
of law, it is not open to the third judge to go behind the question of fact arrived at by both
the judges. Under s 98, only the question of law on the admitted fact can be referred to the
third judge for the disposal.60

8. By whom appeal to be heard upon point of law stated. Where a point of law on
which the judges hearing the appeal differ has been stated, the appeal is to be heard upon
that point by one or more of the other judges of the court. This was, in fact, the practice
followed in Bombay under the Code of Civil Procedure 1882.61 In Allahabad, the appeal was
heard by a bench including the judges who first heard it.62 It is to be noted that while the
appeal upon the point of law under this section is to be heard by a judge or judges other
than those who first heard it, the point is to be decided according to the opinion of the
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majority (if any) of the judges who have heard the appeal including those who first heard
it.

9. Where judges differ on a point of law, but do not state the point. A obtains a
decree against B in the court of a subordinate judge. B appeals from the decree to the
district judge and the decree is confirmed in appeal. B appeals to the High Court. The
appeal is heard by a bench of two judges. The judges differ in opinion on a point of law,
but they do not state the point of law, and deliver judgments as judgments of the court
without any reservation, one judge holding that the appeal should be allowed and the other
that it should be dismissed. In such a case, the dissenting judgments operate as confirming
the decree of the district court under para 1 of sub-s (2).63 The question still remains
whether an appeal lies to the High Court under the Letters Patent from the confirming
judgment. Under the Letters Patent, before they were amended in 1928, it was held that an
appeal did lie from such judgment.64 Under the amended Letters Patent no appeal lies to
the High Court.65 It may here be noted that where the judges differ in opinion on a point
of law, but do not state the point of law and deliver judgments as judgments of the court
without any reservation, they cannot afterwards state the point of law.66 Judges hearing an
appeal were equally divided. Hearing of appeal by third judge was proposed. But there was
no joint order, specifying the difference. It was held that this did not vitiate the hearing by
the third judge.67

10. Appeal to High Court from award under Land Acquisition Act, 1894. This section
applies to land acquisition appeals by virtue of the provisions of s 54 of the Land Acquisition
Act, 1894.68

11. This section and clause 36 of the Letters Patent. Sub-section (3) was inserted by the
Repealing and Amending Act 18 of 1928. It provides that nothing in the section shall be
deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.
Before the Act of 1928, the trend of decisions was that where an appeal was heard by a
bench of two judges of a chartered High Court and the judges differed, then if the appeal
was one from the original side of the High Court the procedure was governed by cl 36 of
the Letters Patent,69 but if the appeal was from the decree of a subordinate judge, the
procedure was governed by the present section.70 At the same time, it was held by the
High Court of Allahabad71 that cl 27 of the Letters Patent of that High Court
(corresponding to cl 36 of the Letters Patent of the High Courts of Calcutta, Madras and
Bombay) applied even to appeals from the decree of a subordinate judge. All the cases
were reviewed by a Full Bench of the Madras High Court72 and it was held that the effect
of sub-s (3) was that cl 36 applied not only to appeals from the original side of a chartered
High Court but also to appeals to the High Court from decrees of subordinate courts. The
Supreme Court considered the Madras judgment and held that the view of Madras High
Court and various other High Courts is right that the provisions of s 98 are not applicable
to High Courts which are governed by Letters Patent and a matter can be referred to a
third judge on a difference of opinion between two judges even on a point of fact.73 Thus,
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the effect of sub-s (3) is that s 98 applies only to courts other than chartered High Courts.
The difference of procedure between cl 36 and s 98 is:
(i) that while a reference on the point of difference is obligatory under cl 36, it is
optional under s 98 ; and
(ii) while a reference under cl 36 may be on a question of fact and law, it can be on a
question of law only under s 98.74

12. This section and Section 8 of the Hyderabad High Courts Act.When in an appeal
arising out of a suit instituted when the Hyderabad High Court Act was in force, the judges
differ, the case should be disposed of in accordance with s 8 of the Hyderabad High Court
Act, and not s 98 of the Civil Procedure Code, which was extended to Hyderabad after the
commencement of the list.75

13. Income-tax Act, 1961. It is cl 36 of the Letters Patent that applies to a reference to the
High Court under s 66 of the Income-tax Act, 1922 (see 256 of the Income-tax Act, 1961) and
not s 98 of the Code of Civil Procedure.76

S. 99. No decree to be reversed or modified for error or irregularity not affecting merits
or jurisdiction.

No decree shall be reversed or substantially varied, nor shall any case be remanded, in
appeal on account of any misjoinder 77[or non-joinder] of parties or causes of action or any
error, defect or irregularity in any proceedings in the suit, not affecting the merits of the
case or the jurisdiction of the Court:

77[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

1. Changes in the section. This section corresponds with s 578 of the Code of Civil
Procedure 1882, except in the following respects:
(i) The words any misjoinder of parties or causes of act ion are new.78
(ii) The words, in any proceedings in the suit, have been substituted for the words,
whether in the decision or in any order passed in the suit or otherwise.79
(iii) The proviso is new and has been inserted by the Amendment Act,1976.
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2. Scope of the section. The mere circumstance of there being an error, defect or
irregularity in any proceeding in a suit, is no ground for reversing or varying a decree in
appeal. But if it appears that the error, defect or irregularity affected the merits of the case
or jurisdiction of the court, it would be a ground for reversing or varying the decree.
Where an irregularity is one which affects the merits of a case or the jurisdiction of a court,
it is said to be a material irregularity. Where it does not, it is usually spoken as a mere
irregularity. This section cures a mere irregularity, error of defect. It does not cure a
material irregularity, error or defect. In a case of alleged misjoinder of causes of act ion, the
Privy Council applied the principle of this section and observed:

The provisions contained in the Civil Procedure Code do not regulate the procedure of their
Lordships in bearing appeals from India, but there can be no doubt that the rule embodied
in Section 99 proceeds upon a sound principle, and is calculated to promote justice.80

The Appellate Court should interfere with the judgment under appeal not because it is not
right, but when it is shown to be wrong.81 In Kiran Singh v. Chaman Paswan,82 the policy
behind this section was thus stated by the Supreme Court:

When a case had been tried by a court on the merits and judgment rendered, it should not
be liable to be reversed purely on technical grounds, unless it had resulted in failure of
justice.An objection as to territorial jurisdiction of a court which has passed the decree on
merits and where no prejudice has been caused, is held to be of a technical nature to which
this section would apply. Thus, where judicial separation in an application by the husband
was decreed, such a decree would not be treated as a nullity in subsequent divorce
proceedings under s 13 of the Hindu Marriage Act, 1955 on the ground that the marriage was
neither solemnised nor had the parties the required residence within the territorial
jurisdiction of the court.83 But this section would not protect a decree where there is defect
of pecuniary jurisdiction.84 The eviction of the same tenant or the same tenants jointly
from two or more tenements in one suit by the landlord is legally permissible; and that
such a suit cannot be dismissed for mis-joinder of causes of act ion.85 The question before
the Honble Supreme Court was whether every violation of regulations renders the inquiry
and the punishment void under the provisions of State Bank of Patiala (Officers) Service
Regulation, containing provisions corresponding to s 99 of the Code of Civil Procedure and s
465 of the Code of Criminal Procedure 1973 or whether the principle underlining s 99 of the Code
of Civil Procedure and s 465 of the Code of Criminal Procedure 1973 is applicable in the case of
disciplinary proceedings as well. The Honble Supreme Court held that the test in such a
case should be one of prejudice, as would be later explained in this judgment. But this
statement is subject to a rider. The regulation may contain substantive provisions and
example regarding the authority competent to impose a particular punishment on a
particular employee/officer. Such provisions must be strictly complied with. But there may
be any number of procedural provisions which stand on a different footing. Even among
procedural provisions, there may be some provisions which are of fundamental provision
in the case of which the theory of substantial compliance may not be applicable.86
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3. Misjoinder of parties or causes of action. This expression may be analysed and the
rule contained in this part of the section may be stated as follows:

No decree shall be reversed or substantially varied, nor shall any case be remanded in
appeal, on account of:
(i) misjoinder of plaintiffs (O 1, r 1);
(ii) misjoinder of defendants (O 1, r 3);
(iii) misjoinder of plaintiffs and causes of act ion (O 2, r 3).The practice was different
under the Code of Civil Procedure 1882;87
(iv) misjoinder of defendants and causes of action.88 The practice was different under
the Code of 1882.89
(v) misjoinder of causes of act ion.90(See notes to O 2, r 4, Leave of court.)

The words, on account of any misjoinder of parties or causes of action, have been inserted
in the section to make it clear that such a misjoinder is to be treated as a mere irregularity.
Hence, the court will not interfere if the merits of the case have been satisfactorily
disposed of in spite of the complication of the proceedings due to multifariousness.91

4. Non-joinder. The Madras High Court has held that the expression misjoinder in this
section includes non-joinder.92 But this was doubted in a later Madras case.93 The non-
joinder of a necessary party is a defect which affects jurisdiction and is not within this
section.94 This is now confirmed legislatively by the new proviso to the section. The

decision to the contrary in Shanmuga v. Subbayya, 1 is no longer good law; and where the
statute requires the joinder of certain parties, omission to do so cannot be cured by this
section.2 (See O 1, r 9, and notes thereto.)

Exercise of power under O 1, r 10(2) and O 6, r 17 is not impaired by the addition of

provisos to s 99 and O 1, r 9 by 1976 Amendment to the Code. Where there is non-joinder
of a necessary party, the court should not dismiss the suit, but should invoke power under
O 1, r 10(2) and O 6, r 17. In such cases, the power of the court under O 1, r 10(2) and O
6, r 17 (which remain unamended), can be invoked. This power is not impaired or
indented in any manner by the aforesaid provisos, the real purport of which is not penal,
but remedial.3

5. Error, defect or irregularity not affecting the merits of the case. A decree will not
be reversed or substantially varied in appeal for admitting a document not properly
stamped,4 or for non-compliance with O 13, r 4, in admitting a document in evidence,5 or
for admitting a document declared invalid where the judgment is not based on that
document,6 or because the wrong side was allowed to begin,7 or because the suit was
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decided on a Sunday,8 or because the suit was instituted by an agent under a defective
power of attorney9 (O 3, r 2), or failure to obtain leave under O 2, r 4,10 or because the
plaint was signed on behalf of the plaintiff by his wife, and no power of attorney was on
record,11 or because an order allowing execution against the legal representative of a
deceased judgment-debtor was made by the transferee court instead of by the court which
passed the decree.12 The expression any error, defect or irregularity in any proceedings in
this suit will also include signing and verification of the plaint as laid down in rr 14 and 15
of O 6 of the Code of Civil Procedure. It would be unfair and unjust to reject the plaint merely
on the ground that the plaint was not properly signed and/or verified as plaintiff himself
came to the witness box and made out the case (I) the plaint.13 All these are irregularities
not affecting the merits of the case or the jurisdiction of the court and they are cured by
this section. It has similarly been held that this section applies when there is a
misdescription of a party,14 or when the summons issued is defective15 or when a guardian
ad bite is appointed without notice to the natural guardian as provided in O 32, r 3,16 or
when notice is served without a direction from the court.17 Where the court, having no
jurisdiction, entertained the suit and no prejudice was caused to either side,18 or where
there is an improper verification of the plaint as regards the promissory note in the suit by
the plaintiffs mukhtar-i-am especially when execution of the promissory note is admitted,19
or when agreement to sell immovable property is executed by constituted attorney on
behalf of the owner of the property and the suit for specific performance is filed against
owner represented by his attorney holding irrevocable power of attorney,20 the exclusion
of evidence by the lower court is an irregularity which may or may not affect the merits of
the case; if it does not, the irregularity is condoned under this section.21 An omission to
draw up a final decree under O 34, r 6, has been condoned under this section;22 so also
when it is not drawn in accordance with the form prescribed.23 Similarly, substitution of
the legal representatives of a deceased judgment-debtor in execution proceedings by the
transferee court instead of the court which passed the decree, is a procedural defect.24 So
also, failure to transpose the defendant as plaintiff.25 But it would not be a defect within
these sections where an ex parte decree has been passed without the defendant having been
duly served.26 For other cases, see
(i) notes to s 15, Where a suit which ought to have been instituted in a court of lower
grade is instituted in a court of higher grade;
(ii) notes to s 92. Consent of Advocate-General;
(iii) notes to O 6, r 14, Omission to sign plaint;
(iv) notes to O 16, r 1, Remedy of party when witness-summons refused;
(v) notes to O 26, r 4, May issue;
(vi) notes to O 32, r 1, Objection of authority of next friend;
(vii) notes to O 32, r 3, Substantial representation;
(viii) notes to O 41, r 26, Sending back case for a revised finding.
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In a suit for restoration of possession, the Court framed issue regarding title to property
which was not required. The Court also gave findings on the issue of title which was
unnecessary. However, it was held that the decree which is otherwise correct need not be
interfered on that ground. Such unnecessary issues and findings thereon can be struck
off.27

6. In any proceedings in the suit. These words have been substituted for the words,
whether in the decision or in any other passed in the suit or otherwise, which occurred in s
578 of the Code of Civil Procedure 1882. The latter words were held to apply only to
irregularities in proceedings subsequent to the institution of the suit, and not to
irregularities in the frame or institution of the suit.28 The rules of the Chief Court of Oudh
require money deposited in court to be paid to the person entitled through the treasury;
but when the munsif paid the money directly, this was held to be an irregularity cured by
this section.29 An order for a second commission on the same subject matter without
setting aside the report of the first commissioner amounts to an irregularity in the
proceedings.30 The present section applies to irregularities in any proceedings in the suit.
But it has no application to awards.31

7. Irregularity affecting jurisdiction of court. When a suit has been decided after going
into merits and judgment delivered, the Appellate Court would not entertain an objection
as to jurisdiction unless it has resulted in failure of justice. Thus, in a suit for accounts if
the trial court has tried the issues on merits and passed a preliminary decree, the Appellate
Court, in an appeal against that decree, would refuse to go into the question of territorial
jurisdiction.32

Defendants claimed for themselves title to a temple constructed a hundred years ago and
adjoining land in, and joined issues on the points with the plaintiffs. Oral evidence alone
was led by the parties in the suit. It was held that the defendant cannot ask for reversing
the finding given by the court in favour of the plaintiff, on the mere ground that the same
was given on oral evidence.33 Suit on basis of sale deed which was registered was filed.
Certified copy of the sale deed was admitted by the trial court, as the original was lost. It
was held that admissibility of the document could not be assailed in appeal.34

8. Sale of property of minor. Where there was alienation of minor sons property by
father and on attaining majority, the son filed a suit for declaration of title and ejectment of
vendee without asking for relief of setting aside alienation covered by sale deed, it was held
that the suit was not maintainable and was liable to be dismissed, as omission to ask for
such relief cannot be considered as an error or defect or irregularity within the meaning of
s 99.35

9. Omission to sign exhibiteffect. Where the exhibit which was accepted by both sides
as a piece of document and which was marked in presence of both the parties, the failure
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to sign it by the presiding officer should not vitiate a judgment and a judgment cannot be
deemed to be a nullity.36

10. Suits Valuation Act, 1887, Section 11. Section 11 of the Suits Valuation Act, 1887
modifies the provisions of the present section in cases where an objection is taken in
appeal that by reason of the over-valuation or under-valuation of a suit a court which had
no jurisdiction with respect to the suit exercised jurisdiction with respect thereto.

After the amendment of s 2 (2) by the deletion of the words s 47 or (in 1976), an order
under s 47 is no longer a decree and is not appealable either under s 99 A or under s 104.37

In a suit for possession, the reversal of the decree was sought on the ground that counter-
claims was not properly valued. The plaintiffs could not establish their rights by means of
an cota of evidence. It was held by the Allahabad High Court that even if the valuation was
not is accordance with the Suits Valuation Act, the judgment and decree cannot be
interfered with in second appeal.38

39[S.99A. No order under section 47 to be reversed or modified unless decision of the

case is prejudicially affected.

Without prejudice to the generality of the provisions of Section 99, no order under Section
47 shall be reversed or substantially varied, on account of any error, defect or irregularity in
any proceeding relating to such order, unless such error, defect or irregularity has
prejudicially affected the decision of the case.]

The section follows the policy of the last section. Its object is to prevent interference with
an order passed under s 47 by the executing court only on the ground of some error,
defect or irregularity in the proceeding wherein it has been passed. But the section does
not save from interference by the Appellate Court a material error, defect or irregularity
which has prejudicially affected the decision of the case.

1 . Ins. by Act 104 of 1976, s 33 (w.e.f. 1-2-1977).

2 . Subs. for three thousand rupees by the (Amendment) Act, 1999 (46 of 1999), s. 9 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-
2002.
3 . As to the effect of sub-s (3), see notes below under the head sub-s (3): Consent decrees are not appealable.
4 .Debendra Nath v. Bibudhendra, (1916) 43 Cal 90, 9394; Sabhapathi v. Narayanasami, (1902) 25 Mad 555, 558; Nawab Behram Jung v. Haji
Sultanali, (1913) 37 Bom 572; Surajmal v. Horniman, (1918) 20 Bom LR 185 [LNIND 1917 BOM 113], 21718; Ratanlal v. Gajadhar, AIR
1948 Nag 188: (1948) ILR Nag 690; Chandra Kant Sinha v. Oriental Insurance Co. Ltd., [2000] 2 LRI 1251.
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5 .Savitri Thukarain v. Savi, AIR 1921 PC 80: 48 IA 76.

6 .Y. Venkana Chouwdry v. G. Lakshmidevamma, AIR 1994 Mad 140 [LNIND 1993 MAD 152] (DB).
7 .Vijai Nath v. Damodar Das, AIR 1971 All 109: (1970) All LJ 1260; Har Bhaj v. Barfi, AIR 1969 Del 197 [LNIND 1968 DEL 96]: 71 Punj
LR 59.
8 .Sumanbai v. Anandrao, AIR 1976 Bom 212 [LNIND 1975 BOM 212].
9 .Madhukar v. Sangram, [2000] 2 LRI 1126.
10 .Harijan Vanabhai Deva Bhai v. Khoda Gram Panchayat, AIR 1994 Guj 1 [LNIND 1993 GUJ 181] (DB).
11 .M. Veerappan v. Evelyn Sequeria, (1988 ) 1 SCC 556 [LNIND 1988 SC 22].
12 .Hari Singh v. Kanhiya Lal, (1999) 4 LRI 1040.
13 .Kamal Goel v. Purshotam Dass, AIR 1999 P&H 254.
14 .M.K. Gounder v. D.C. Rajan, AIR 1976 Mad 102 [LNIND 1974 MAD 226].
15 .Biva Banerjee v. Manmatha Nath, AIR 1977 Cal 82 [LNIND 1976 CAL 251].
16 .Joginder Singh v. Nidhan Singh, AIR 1996 P&H 120; Ram Bhajan v. Abdul Rahman, AIR 1997 All 17 [LNIND 1996 ALL 289]; Haquik
Mayan v. Rajinder Prasad, AIR 1997 Pat 59.
17 .K.M. Madhav Krishnan v. S.R. Swami, AIR 1995 Mad 318 [LNIND 1995 MAD 291] (DB).
18 .Prithavi Raj Singh v. Dilip Kulkarni, AIR 1999 Raj 201; Addepalli Venkata Laxmi v. Ayinampudi Narsimha Rao, AIR 1994 Andh Pra 72 (DB).
19 .State Bank of India v. Ramayanapu Krishnarao, AIR 1995 Ori 244 [LNIND 1995 ORI 184]; ONGC v. EM & EM Associates, AIR 1996 All
318 [LNIND 1996 ALL 68] (DB); Baban Girju Bangar v. Namdeo Girju Bangar, AIR 1999 Bom 46 [LNIND 1998 BOM 757]; MD
University v. Dr. Jitendra Singh, AIR 1999 P&H 95.
20 . AIR 1994 AP 16 [LNIND 1993 AP 324] (DB).
21 .Food Corpn. of India v. Williamson Magor & Co., AIR 1999 Cal 219 [LNIND 1998 CAL 362] (DB) : AIR 1997 Cal 80 [LNIND 1996
CAL 214] (DB); AIR 1997 J&K 70.
22 .Rukmanand Ajitsaria v. Usha Sales Pvt. Ltd., AIR 1991 NOC 108(Gua).
23 .Bindu Sharma v. Ram Prakash Sharma, AIR 1997 All 429 [LNIND 1997 ALL 222].
24 .Mahesh Chand Sharma v. Raj Kumari Sharma, AIR 1996 SC 869 [LNIND 1995 SC 1223].
25 .Budhu Dusadh v. Mangani Devi, AIR 1984 Pat 123.
26 . AIR 1982 SC 1249.
27 .Benibai v. Champabai, AIR 1996 MP 243 [LNIND 1995 MP 397].
28 .Narayanan Prabhu v. Janardhana Mallan, AIR 1996 SC 3276 [LNIND 1996 SC 989]
29 .K.K. Puri v. A.K. Puri, AIR 1994 J&K 25.
30 .Babuaram v. State of Uttar Pradesh, (1995) 2 SCC 689.
31 .Om Prakash Batish v. Ranjit Ranbir Kaur, AIR 2008 SC 2143 [LNIND 2008 SC 967]: (2008) 12 SCC 212 [LNIND 2008 SC 967].
32 .Miss Pressy Pinto v. Rony Maxim Pinto, AIR 2009 Kar 157: (2009) 5 Kar Lj 601 (DB).
33 . AIR 1962 SC 527 [LNIND 1961 SC 355].
34 . AIR 1999 Ker 185 [LNIND 1999 KER 4]: (1999) 1 Ker LT 440 [LNIND 1999 KER 4].
35 . AIR 1959 Ker 406 [LNIND 1958 KER 120].
36 .(1936) 26 Travancore LJ 932.
37 . AIR 1962 SC 527 [LNIND 1961 SC 355].
38 . AIR 1964 SC 993 [LNIND 1963 SC 296].
39 . AIR 1966 SC 1899 [LNIND 1966 SC 79].
40 .Mable v. Dolores, AIR 2001 Ker 353 [LNIND 2000 KER 509] (DB).
41 .Amir Ali Lord Shoes Pvt. Ltd. v. Maneck H. Ghadiali, 2008(2) Andh LT 205 [LNIND 2007 AP 1027] : (2008) 2 ALD 261.
42 .Minakshi v. Subramanya, (1888) 11 Mad 26, 33 : 14 IA 160; Parasurama v. Seshier, (1904) 27 Mad 504; Rangoon Botatoung Co. Ltd. v. Collector,
Rangoon, (1913) 40 Cal 21, 27 : 39 IA 197, 200; Raja Himamshu Dhar Singh v. Additional Registrar, Co-op. Societies, Uttar Pradesh, AIR 1962 All
439 [LNIND 1961 ALL 130].
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43 .Champak Vashram v. Dharamsi Pola of Rajkot, AIR 1984 Guj 18 [LNIND 1983 GUJ 79] (DB); DN Taneja v. Bhajan Lal, (1998) 3 SCC 26.
44 .Zair Hussain Khan v. Khurshed Jan, (1906) 28 All 545.
45 .Narayan v. Secretary of State, (1896) 20 Bom 803; Sainiks Motors v. State Transport Authority, AIR 1956 Raj 65 [LNIND 1955 RAJ 156]:
(1956) ILR Raj 110.
46 .Gansa Bai v. Vijay Kumar, AIR 1974 SC 1126 [LNIND 1974 SC 142]: (1974) 2 SCC 393 [LNIND 1974 SC 142].
47 .The Gujarat Agro Industries Co. Ltd. v. The Municipal Corpn. of City of Ahmedabad, [1999] 3 LRI 14.
48 .Special Military Estates Officer v. Muni Venkataramiah, (1992) SCC 168.
49 .Uttar Pradesh Awas Evam Vikas Parishad v. Gyan Devi, (1995) 2 SCC 326 [LNIND 1994 SC 978] (five judges).
50 .D.N. Taneja v. Bhajan Lal, (1998) 3 SCC 26.
51 .Mohd Meera v. Thirumalaya, AIR 1966 SC 430 [LNIND 1965 SC 200]: [1966] 1 SCR 574 [LNIND 1965 SC 200] : (1966) Ker LJ 456.
52 .Kishenlal v. Sohanlal, AIR 1954 Raj 138 [LNIND 1954 RAJ 68] (1954) ILR Raj 597; M.R. Veerayya v. State of Andhra Pradesh, AIR 1967
Andh Pra 265.
53 .Prem Narain v. Divisional Traffic Manager, AIR 1954 Bom 55 [LNIND 1953 BOM 38]: (1953) ILR Bom 1025 : 55 Bom LR 735.
54 .Ishar Das v. State of Haryana, AIR 1975 P&H 29.
55 .Soorajmull Nagarmul v. State of West Bengal, AIR 1963 SC 393 [LNIND 1962 SC 171].
56 .Sree Kalimata Thakurani v. R.C. Chatterjee, AIR 1970 Cal 373 [LNIND 1969 CAL 189].
57 .N.V.K. Rao v. M.G. Rao, AIR 1971 AP 246 [LNIND 1970 AP 119].
58 .National Telephone Co. Ltd. v. Post Master General, AIR 1913 Cal 548; Secretary of State v. Chelli Kani Rama Rao, 43 IA 192 : 20 Cal WN 1311;
Rangoon Botatoung Co. Ltd. v. Collector, Rangoon, 39 IA 197 : (1912) 40 Cal 21; Shiromani Sikh Gurudwara v. Ram Prasad, 61 IA 180 : 40 Cal
WN 610; Adaikappa v. Chandrasakhara, 74 IA 264 : AIR 1948 PC 12 [LNIND 1947 PC 52]: (1948) ILR Mad 505 : 50 Bom LR 18 : 52
Cal WN 275; Maung Ba Thaw v. Ma Pin, 61 IA 158 : (1934) PC 81; National Sewing Thread Co. Ltd. v. James Chadwick & Bros Ltd., AIR 1953
SC 357 [LNIND 1953 SC 57]: (1953) SCR 1028 [LNIND 1953 SC 57] : 1953 SCJ 509 [LNIND 1953 SC 57]; Arunachala v. Gulam
Mohamed, AIR 1959 Mad 191 [LNIND 1958 MAD 85]: (1959) Mad 336 : (1959) 1 MLJ 181 [LNIND 1958 MAD 85] : 72 LW 59.
59 .Sankaran v. Kochukutty, AIR 1954 TR 259.
60 .Dassi v. Dhani Ram Tiku, AIR 1969 Punj 25: (1969) 2 Punj 365; Kussum Lata v. Kamta Prasad, AIR 1965 All 280.
61 .Nur Muhammad v. S.M. Solaiman, (1944) 49 Cal WN 10.
62 .Shankar Lal v. Shankarlal, AIR 1965 SC 507 [LNIND 1963 SC 19]: [1964] 1 SCR 717 [LNIND 1963 SC 19].
63 .Bagavathi v. Sarangaraja, AIR 1931 Mad 586 [LNIND 1931 MAD 13]: (1931) 54 Mad 722.
64 .Bai Lalita v. Shardaben, AIR 1970 Guj 37 [LNIND 1968 GUJ 25].
65 .Colonial Sugar Refining Co. v. Irving, AIR 1905 Cal 369; Delhi Cloth and General Mills Co. v. Income-tax Commr., Delhi AIR 1927 PC 242
[LNIND 1927 BOM 129]: 54 IA 421; Nana v. Sheku, (1908) 32 Bom 337; Sardar Ali v. Dalimuddin, AIR 1928 Cal 640: (1929) 56 Cal 512;
Sarsothamma v. Amrithamma, AIR 1953 Hyd 258: (1953) ILR Hyd 423; Small Town Committee v. Firm Bhuriamal, AIR 1953 Punj 94; Chinna
Kunju v. K. Neelkantan, AIR 1958 Ker 251 [LNIND 1957 KER 232]: (1957) ILR Ker 1004.
66 .Vithalbai v. Commr. of Sales-tax, AIR 1967 SC 344 [LNIND 1960 SC 492]; Vasava Narottam v. Ambalal, AIR 1969 Guj 94; Pratap Narain v.
Ragho Prasad, AIR 1970 All 15 [LNIND 1968 ALL 96].
67 .Behari Lal v. Keshri Nandan, AIR 1970 All 201 [LNIND 1969 ALL 35]: (1969) All LJ 537.
68 .Vasava Narottam v. Ambalal, AIR 1969 Guj 94 .
69 .Taramoni v. Kalidasi Majhi, AIR 1977 Cal 43 [LNIND 1976 CAL 283]: 81 Cal WN 661.
70 .State of Bombay v. Supreme General Films Exchange, AIR 1960 SC 980 [LNIND 1960 SC 136]: (1960) 3 SCR 640 [LNIND 1960 SC 136] :
(1961) 1 SCJ 119; affirming Sawaldas Madhavdas v. Arati Cotton Mills Ltd., AIR 1955 Bom 332 [LNIND 1954 BOM 109]: 57 Bom LR 394.
71 .Delhi Cloth and General Mills v. Income-Tax Commr., AIR 1927 PC 242 [LNIND 1927 BOM 129]: 54 IA 421 : (1927) 9 Lah 284.
72 .Ratansi Agariya v. Jaysingh Dinkar Rao, AIR 1954 Nag 348.
73 . AIR 1957 SC 540 [LNIND 1957 SC 10]: [1957] SCR 488 [LNIND 1957 SC 10] : (1857) SCJ 439 : (1957) SCA 495 [LNIND 1957 SC
10].
74 .Daji Saheb v. Shankar Rao, AIR 1956 SC 29 [LNIND 1955 SC 76]: [1955] 2 SCR 872 [LNIND 1955 SC 76] : (1956) SCJ 70 [LNIND
1955 SC 76].
75 .Narayanan v. Sankaranarayana, AIR 1953 TC 53; Re Sridhara Rao, AIR 1958 AP 60; Chana Basappa v. Narasing Rao, AIR 1959 Mys 253:
(1959) ILR Mys 257; Firm Muralidhar v. Firm Kishorilal, AIR 1959 Raj 246 [LNIND 1959 RAJ 196]: (1959) ILR Raj 734; Kochikka v.
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Kunjipennu, AIR 1961 Ker 226 [LNIND 1960 KER 148]: (1960) ILR Ker 734; Susai Anthony v. Francis Roche Anthony, AIR 1962 Mad 304
[LNIND 1961 MAD 156]: (1962) 1 MLJ 376 [LNIND 1961 MAD 156] : 75 LW 244.
76 .Bank of Baroda v. Nandkishore Kachhwalia, AIR 1991 Raj 151.
77 .Bishnu Bhagat v. Pushpa Devi, AIR 2006 Jhar 117 [LNIND 2006 JHAR 20].
78 .Ibid.
79 .Sarkar on Code of Civil Procedure, Tenth Edn; Bishnu Bhagat v. Pushpa Devi, AIR 2006 Jhar 117 [LNIND 2006 JHAR 20].
80 .Sarkar on Code of Civil Procedure, Tenth Edn., Bishnu Bhagat v. Pushpa Devi, AIR 2006 Jhar 117 [LNIND 2006 JHAR 20].
81 .Ibid.
82 .Shiv Shakti Co-op. Housing Society v. Swaraj Developers, AIR 2003 SC 2434 [LNIND 2003 SC 454]. See also notes under the same heading
under s 100.
83 . AIR 1970 SC 1 [LNIND 1969 SC 170]: 1969 (2) SCC 74 [LNIND 1969 SC 170].
84 . Nalakath Sainuddin v. Koorikadan Sulaiman, AIR 2002 SC 2562 [LNIND 2002 SC 410]: 2002 (6) SCC 1 [LNIND 2002 SC 410]; R.C.
Lahoti (as he then was), speaking for the Bench.
85 .G.L. Vijain v. K. Shankar, AIR 2007 SC 1103: (2006) 13 SCC 136.
86 . Wahid v. Mohd. Anwar, 2009 (4) ALJ 225 : 2009 (3) All WC 2121.
87 . Kotapati Ramalakshmi v. Doneparthi Hymavathi, 2009 (4) Andh LD 655.
88 .Meera Sinha v. Girja Sinha, AIR 2009 Pat 19 [LNIND 2008 PAT 371]: 2009 (2) Civ LJ 494 (DB).
89 .Arun Kumar Singh v. Col. Hari Singh, AIR 2009 Raj 18 [LNIND 2008 RAJ 294]: 2009 (1) Raj LW 18.
90 .N.V.S.M. Anandvalue v. K.T. Santhana Krishnan, AIR 2010 Mad 204 [LNIND 2010 MAD 3273].
91 .Rekha Mukherjee v. Ashish Kumar, Das AIR 2005 SC 1944 [LNIND 2005 SC 220].
92 .Ibid.
93 .Ibid.
1 .MGMT of Devi Theatre v. Vishwanath Raju, AIR 2004 SC 3325 [LNIND 2004 SC 457].
2 .New India Assurance India Co. Ltd. v. Shakuntala Devi, AIR 1996 All 188 [LNIND 1995 ALL 700] (DB); Shivraj Vasant Bhagwat v. Shevanta
Dattaram Indulkar, AIR 1997 Bom 242 [LNIND 1996 BOM 882] (DB).
3 .M.S. Khalid v. K.R. Rangaswamy, AIR 2003 Kant 174 [LNIND 2003 KANT 337].
4 .Hari Singh v. Harbhajan Singh, AIR 2001 P&H 108.
5 .Prayag v. Suka Deo, 17 CLJ 605; Peeru v. Pobna Development Co., 44 Cal WN 958; Union of India v. Manmul Jain, AIR 1962 Cal 635 [LNIND
1962 CAL 58]: 62 Cal WN 970; Manilal v. Kasamali, AIR 1953 Kutch 28.
6 .Kappuswamy Naicker v. Lakshmana Gounder, AIR 1989 Mad 270 [LNIND 1988 MAD 401].
7 .Rajgopal v. Kishan Gopal, AIR 2003 SC 4319 [LNIND 2003 SC 787].
8 .Ameer Ali v. Inderjeet, (1871) 14 MIA 203; Protap Chunder v. Arathoon, (1882) 8 Cal 455; Hakim Bashir v. Saiyed Saliq, AIR 1929 Oudh 451:
(1930) 5 Luck 391; Mohamed Mia v. Usman Ali, AIR 1935 Cal 239: (1935) 62 Cal 229.
9 .Rhodes v. Swithenbank, (1889) 22 QBD 577.
10 .Rangaswami v. Ramana, AIR 1966 Mad 308 [LNIND 1965 MAD 123]: (1965) 2 MLJ 548 [LNIND 1965 MAD 61].
11 .Raghunathdas v. District Supdt. of Police, AIR 1933 Bom 187: (1937) 57 Bom 314; Venkatareddi v. Adinarayana, (1929) 52 Mad 142 : AIR
1929 Mad 351 [LNIND 1929 MAD 188]; Hanumanthappa v, Sivalingappa, AIR 1960 Mys 139; Dy. Director of Agriculature v. S. Ramanadhan,
AIR 1978 AP 412 [LNIND 1977 AP 268].
12 .Devassi v. Anthoni, AIR 1969 Ker 78 [LNIND 1968 KER 34].
13 .Budhu Lal v. Chotelal, AIR 1977 MP 1 [LNIND 1976 MP 43].
14 .Anil Bahal v. Manju, AIR 1989 All 9 [LNIND 1988 ALL 216].
15 .Padmalya v. Shyam Sunder Sahu, AIR 1980 Ori 1 [LNIND 1979 ORI 34].
16 .Gul Mohammad v. Samar Jahan, AIR 1983 Del 90 [LNIND 1982 DEL 162]: (1982) 3 DRJ 326 [LNIND 1982 DEL 162].
17 .Ajay Bansal v. Anup Mehta, AIR 2007 SC 909 [LNIND 2007 SC 49]: (2007) 2 SCC 275 [LNIND 2007 SC 49].
18 .Ibid, para 14 at p. 911.
19 .Kanubhai Hargovinddas Dave v. Jaydevsinh Kalyansinh Chauhan, AIR 2007 Guj 3 [LNIND 2006 GUJ 16459]: 2007 (1) Guj LR 667.
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20 .Avinash Chander v. Mohan Lal, AIR 1984 P&H 391.

21 .B. Mukaraju v. M.S.N. Charities, AIR 1994 AP 334 [LNIND 1994 AP 68] (DB); Jose Thengumpillil v. Secretary, Peruvanthanam Service Co-op.
Bank Ltd., AIR 1997 Ker 261(DB).
22 .Kerala Transport Co. v. Anil Kumar, AIR 1986 AP 306 [LNIND 1985 AP 183] (DB).
23 .Namdeo Devangan v. Seeta Ram, AIR 1998 MP 148 [LNIND 1997 MP 328].
24 .Baliram Ganpatrao v. Manohar Damodar, AIR 1943 Nag 204(FB) : (1943) ILR Nag 241; Bai Divali v. Shah Vishnu, (1910) 34 Bom 182; Irani
v. Naimuddin, AIR 1924 Cal 1006: (1924) 39 Cal LJ 251 : 81 IC 527 (limitation); Vendata Reddi v. Adinarayana, AIR 1929 Mad 351
[LNIND 1929 MAD 188]; Paghunath Das v. District Supdt. of Police, AIR 1933 Bom 187: ILR 57 Bom 314; Jothi Prasad v. Ganesh, AIR 1916
Punj 120; Loli Kaikho v. Peli Sibo, AIR 1959 Mani 13; Mangalballav v. Nihar Prava, AIR 1959 Tri 6; Rakmini Kumari v. Ram Shankar, AIR
1973 Pat 434.
25 .Surjeo v. Kripanarayan, AIR 1969 Pat 284.
26 .UCG & P Factory v. Rama Rao, AIR 1971 Mys 347: 1971 Mys LJ 397. See notes to s 97, Where preliminary decree not drawn up.
27 .Rajbullan Singh v. Madhusudan Prasad Singh, AIR 1950 Pat 443.
28 .Bagamal Gohain v. Lakhinath Kalila, AIR 1991 Gau 100 [LNIND 1991 GAU 26].
29 .State of Assam v. Gobinda Chandra Pant, AIR 1991 Gau 104 [LNIND 1991 GAU 10].
30 .Jai Narain Charitable Registered Society v. Kumud Verma, AIR 1997 MP 37 [LNIND 1996 MP 167].
31 .M. Ranga Nayakamma v. V.V.K.V. Mahalakhmi, AIR 1972 AP 117 [LNIND 1970 AP 198].
32 .Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626 [LNIND 2004 SC 1265].
33 .Ibid.
34 .Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626 [LNIND 2004 SC 1265]; Rani Choudhary v. Suraj Jit Choudhary, AIR 1982 SC 1397
[LNIND 1982 SC 121]: (1982) 2 SCC 596 [LNIND 1982 SC 121]; P. Kiran Kumar v. A.S. Khadar, AIR 2002 SC 2286 [LNIND 2002 SC
371]; Shyam Sundar Sarma v. Pannalal Jaiswal, (2004) 9 Scale 270 [LNIND 2004 SC 1128].
35 .Amir Mohammad v. Saliman Bibi, AIR 2008 Orissa 46: 2008 (105) Cut LT 304.
36 .Maya Devi v. Mehria Gram Dal Mill, Hissar, AIR 1988 P&H 176.
37 .Harishbhai Chunilal Shah v. Nalinkumar Champaklal Shah, AIR 1995 Guj 197 [LNIND 1995 GUJ 196].
38 .Vijay Kumar Gupta v. State of Uttar Pradesh, AIR 2008 All 119: 2008 (4) ALJ 127.
39 .Sadula Narasimha v. Sadula Tulsi Das, 2009 (1) Andh LD 616 : 2009 (2) Civil Court C 715.
40 .Khurshed Banoo v. Vasant Mallikarjun Manthalkar, AIR 2003 Bom 52 [LNIND 2002 BOM 681].
41 .Mohini v. Satish Chandra, (1890) 17 Cal 704; Gulab Khan v. Abdul Wahab Khan, (1904) 31 Cal 365; Ijjatulla Bhuyan v. Chandra Mohan, (1907)
34 Cal 954 (FB).
42 .Ibrahimji v. Bejani, (1896) 20 Bom 265 ; but see Hirjibhai v. Jamshedi, (1913) 15 Bom LR 1021 : 21 IC 783.
43 .Goswami Sir Raman Lalji v. Bohra Desraj, (1910) 32 All 222 : 5 IC 875.
44 .Kannayya v. Venkata, (1917) 40 Mad 1 : 39 IC 439 (FB).
45 .Muhammad Abdul v. Ala Baksh, AIR 1925 All 376: (1925) 47 All 534 : 86 IC 1055; Sumitra Devi v. Jahnvi Prasad Sah, AIR 1995 Pat
202(DB).
46 .Satya Kinkar v. Raja Prasad Singh, (1919) 4 Pat LJ 447 : 52 IC 452.
47 .Mantoo Sarkar v. Oriental Insurance Co. Ltd., AIR 2009 SC 1022 [LNIND 2008 SC 2443]: (2009) 2 SCC 244.
48 .Ibid, para 19 at p. 1026.
49 .Binhyadhar v. Manindra Nath, (1925) 53 Cal 14 : 89 IC 726 : AIR 1925 Cal 1076(FB); Sumitra Devi v. Jahnvi Prasad Sah, AIR 1995 Pat
202(DB).
50 .Bhupendra v. Purna, (1910) 43 Cal 650 : 8 IC 34; Baikuntha v. Mohananda,(1919) 24 Cal WN 342 : 58 IC 170.
51 .Deonath Missir v. Chandraman Missir, AIR 1958 Pat 430: ILR 36 Pat 1223.
52 .Srinathi Pyara v. Shiv Shankar, AIR 1963 All 476 [LNIND 1962 AP 113]. See notes to s 6, above, also notes to s 15, Over-valuation and
under valuation, above.
53 .Subbayya v. Rachayya, (1914) 37 Mad 477.
54 .Kuppusamy Naicker v. Lakshmana Gounder, AIR 1989 Mad 270 [LNIND 1988 MAD 401].
55 .Pravat Kumar Ghos v. Jharna Ghosh, AIR 2 0008 Orissa 9 : 2007 (2) Orissa LR 429.
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56 . Gurram Seetharam Reddy v. Gunti Yashoda, AIR 2005 AP 95 [LNIND 2004 AP 925]: 2004 (6) Andh LT 111 [LNIND 2004 AP 925]
(FB); Devinder Gupta, C.J. speaking for the Full Bench.
57 .Manubhai Khandubai Naik v. Sumenkai Ranchhodji Naik, AIR 2004 Guj 73 [LNIND 2003 GUJ 402] (DB).
64 .Petromarine Products Ltd. v. Ocean Marine Services Co. Ltd.
65 .Hafiz Mohamud v. Swarup Chand, (1942) 2 Cal 434 : AIR 1942 Cal 1: 73 CLJ 475; Subbaramiach v. Balarami Reddy, AIR 1949 Mad 91;
Krishna v. Mehesh Chandra, (1905) 9 CWN 548.
66 .Gajadhar v. Ganesh, (1871) 7 Bom LR 149. See s 146.
67 .Moreshwar v. Kushaba, (1878) 2 Bom 248. See notes to s 47, Representatives above.
68 .Rustomji v. Official Liquidator, (1919) PR No. 79 p. 196; Indian Bank v. Bansiram, AIR 1934 Mad 360 [LNIND 1933 MAD 268]: (1934) 57
Mad 670 ; however Province of Bombay v. Western India Automobile Association, AIR 1949 Bom 141: 51 Bom LR 58.
69 .Province of Bombay v. Western India Automobile Assn, AIR 1949 Bom 141; Ponnalagu Ammal v. State of Madras, AIR 1953 Mad 808: (1953) 1
MLJ 410 : 66 LW 136 : AIR 1953 Mad 485 [LNIND 1952 MAD 264]; Heer Singh v. Veer Ka, AIR 1958 Raj 181: (1958) ILR Raj 380;
Executive Officer v. Raghavan Pillai, AIR 1960 AP 127: (1961) ILR Ker 77 : AIR 1961 Ker 114 [LNIND 1960 KER 167]: (1961) 2 Andh
WR 204 : 1961 Andh LT 736 [LNIND 1961 AP 92] : AIR 1962 All 140(FB); Sivaramiah v. Siddhamma, AIR 1963 Mys 127: 40 Mys LJ
990.
70 .UCO Bank v. Hanuman Synthetics, AIR 1985 Cal 96 [LNIND 1984 CAL 98].
71 .Rajaram v. Moolraj Singh, (1961) All LJ 473.
72 .State v. Chander Singh, AIR 1971 Raj 299 [LNIND 1971 RAJ 1].
73 .SL Sethiya v. Ivan E. John, AIR 1975 All 113; F. Mohd., Abdul Razak v. Charity Commissioner, AIR 1976 Bom 304 [LNIND 1975 BOM
152].
74 .Union of India v. Official Liquidator, AIR 1963 Cal 214 [LNIND 1962 CAL 33].
75 .Dr. Mangla Shellar v. Dr. Laxman Ganpat Jadhav, 2008 (1) Mah LJ 244 : 2008(1) All MR 769 (DB).
76 .Secretary of State v. Saminatha, (1914) 37 Mad 25; Ali Ahmed v. Amar Nath, AIR 1951 Punj 444; Gangabai v. Vijay Kumar, AIR 1974 SC 1126
[LNIND 1974 SC 142]; Banarsi Sah v. Bhagwanlal Sah, AIR 1977 Pat 206; Corpn of Madras v. Ramchandriah, AIR 1977 Mad 25 [LNIND
1975 MAD 140].
77 .Amir v. Sheopujan, AIR 1946 Pat 231: (1945) 25 Pat 1.
78 .Union of India v. Garbhu Sao, AIR 1972 Pat 341.
79 .Sakharchand v. Punju, 74 Bom LR 709 : AIR 1973 Bom 148 [LNIND 1972 BOM 8].
80 .Ghulam Kadir Sahib v. Vishwanathayyar, AIR 1943 Mad 497: (1943) ILR Mad 357; Run Bahadur v. Lucho Koer, (1885) 11 Cal 301; Nando v.
Bindhu, (1886) 13 Cal 17; Mindanpore Zamindari Co v. Naresh, AIR 1922 PC 241: (1921) 48 Cal 460 : 48 IA 49; Tansukh Ram v.Gopal, AIR
1929 Pat 586: (1929) 8 Pat 617; Latchaya v. Kotamma, AIR 1925 Mad 264: (1924) 47 MLJ 743 [LNIND 1924 MAD 216]; Shazadi Begum v.
Vinod Kumar, AIR 1978 MP 20 [LNIND 1977 MP 7]. See notes to s 11, Decision in the former suit must have been necessary to the
determination of that suit, and the cases cited there.
81 .Bhubindra Narayan Bhattacharjya v. Mst. Tarupriya Debya, AIR 1950 Assam 119: (1950) ILR Assam 225; Jamna Das v. Udey Ram, (1899) 21
All 117; Krishna Chandra v. Moohesh Chandra, (1905) 9 Cal WN 584; Yusuf Sahib v. Durgi, (1907) 30 Mad 447; Venkateswarlu v.Lingayya, AIR
1924 Mad 689 [LNIND 1924 MAD 45]: (1924) 47 Mad 633; Venkatacharlu v. Radhabayamma, AIR 1924 Mad 858 [LNIND 1924 MAD
161]: (1924) 47 MLJ 612 [LNIND 1924 MAD 161].
82 .Tulsiram v. Shyamlal, AIR 1960 MP 73 [LNIND 1959 MP 83].
83 .Nirmala Bale v. Balai Chand, AIR 1965 SC 1874 [LNIND 1965 SC 108]: (1965) 3 SCR 550 [LNIND 1965 SC 108].
84 .Sliru v. Narayanarao, (1894) 18 Bom 520.
85 .Jammu and Kashmir Bank v. Lal Mohomed, AIR 1969 J&K 25. See notes to s 11,Res judicata between co-defendants, above.
86 .S.S. Khurana v. Mahaveer Prasad, AIR 2004 Raj 107.
87 .Ameer Mohammed v. Barkat Ali, AIR 2002 Raj 406 [LNIND 2001 MP 3].
88 .V. Subramaniam v. T. Krishnan, 207 (3) Mad LJ 583 : 2007 (3) Mad LW 541.
89 .Deodhari Singh v. Mulchand Hazam, 2007 (2) AIR Jhar R 360 : 2006 (48) All Ind Cas 825.
90 .Tarinikanta Giri v. Bhajanananda Giri, 2006 (2) Ori LR 458.
91 .Ram Kumar v. Virendra Singh, AIR 2007 Uttr 6: 2007 (2) UC 774.
92 .B.K. Sri Harsha v. M/s. Bharath Heavy Electricals Ltd., AIR 2008 SC 1267 [LNIND 2008 SC 282]: (2008) 4 SCC 48 [LNIND 2008 SC
282].
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93 . 2005 (7) SCC 60 [LNIND 2005 SC 645].

1 .Krishnamurthy S. Setlur v. O.V. Narasimha Setty, AIR 2007 SC 1788 [LNIND 2007 SC 232]: (2007) 3 SCC 569 [LNIND 2007 SC 232].
2 .Ibid, para 13 at p.1794.
3 .Chand Bee v. Smt. Hamidunnissa, AIR 2007 AP 150 [LNIND 2006 AP 1137]: 2007 (2) Andh LT 112 [LNIND 2006 AP 1137].
4 .N. Srihari v. N. Prakash, AIR 2008 SC 1548 [LNIND 2008 SC 399]: (2008) 4 SCC 683 [LNIND 2008 SC 399].
5 .Jagdish Singh v. Madhuri Devi, AIR 2008 SC 2296 [LNIND 2008 SC 981]: (2008) 10 SCC 497 [LNIND 2008 SC 981].
6 .Ibid, para 33, 34 at p. 2302.
7 .Ravi Kant v. Bhupender Kumar, AIR 2008 HP 31 [LNIND 2007 HP 75].
8 .Ramji v. State of HP, 2008 (2) Shim LC 60.
9 .Gowrammanni v. V.V. Patil, AIR 2009 SC 1998 [LNIND 2008 SC 1883].
10 .Malnad Traders v. M/s. New India Assurance Co. Ltd., AIR 2009 SC 2084 [LNIND 2009 SC 133]: (2009) 2 SCC 663 [LNIND 2009 SC
133].
11 .Hurrbux v. Johurmall, (1930) 57 Cal 386 : AIR 1929 Cal 796.
12 .Banwari Lal v. Sundra, AIR 2007 P&H 133 : (2008) 149 PLR 134 [LNIND 2007 PNH 304].
13 .Sadhu Singh v. Dharm Dev, (1981) 1 SCC 510.
14 .Deva Ram v. Ishwar Chand, (1995) 6 SCC 733 [LNIND 1995 SC 992].
15 .Lakshmi Narain Guin v. Niranjan Modak, (1985 ) 1 SCC 270 [LNIND 1984 SC 328]; Sharda Amma v. Bangalore Development Authority, AIR
1998 Kant 265 [LNIND 1997 KANT 461].
16 .Kewal Ram v. Ram Lubhai, (1987) 2 SCC 344.
17 .Hodges v. Delhi and London Bank, (1900) 5 Cal WN 1.
18 .Karunapejjalage v. Wellawa, AIR 1946 PC 48.
19 .Bank of India v. Mehta Bros, AIR 1991 Del 194 [LNIND 2008 SC 1900].
58 .Banarsi v. Ram Phal, AIR 2003 SC 1989 [LNIND 2003 SC 207]; See also Phoolchand v. Gopal Lal, (1967) 3 SCR 153 [LNIND 1967 SC
69]; Jatan Kanwar Golcha v. Golcha Pvt. Ltd., (1970) 3 SCC 573; Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393 [LNIND 1974 SC 142].
59 .Baldev Singh v. Surinder Mohan Sharma, AIR 2003 SC 225 [LNIND 2002 SC 685].
60 .Ibid.
61 .S. Vajra Manemma v. Ileni Laxman Reddy, AIR 2007 AP 2003: 2007 (55) All Ind cas 937.
62 .Baldev Singh v. Surinder Mohan Sharma, AIR 2003 SC 225 [LNIND 2002 SC 685].
63 .Ibid.
20 .Darayas Bamanshah Medhora v. Nariman Bamansha Medhora, AIR 2002 Guj 166 [LNIND 2001 GUJ 677] (DB).
21 .Mallanna v. Muninanjanma, AIR 2001 Kant 205 [LNIND 2001 KANT 94].
22 . Re Gundu Rao, AIR 1960 Mad 57; Sultan Singh v. Rachhpal, (1952) ILR Patiala 197 : AIR 1953 Pepsu 129; Sarvan Nath v. Ram Kishen, AIR
1963 Punj 131.
23 .Mayimu v. Maliyammal, AIR 1968 Ker 282: (1968) 1 Ker 129.
24 .Moti Ram Ghelabhai v. Jagan Nagar, (1985) 2 SCC 279 [LNIND 1985 SC 70].
25 .Madhukar v. Sangram, AIR 2001 SC 2171 [LNIND 2001 SC 1019].
26 .Om Prakash v. State of Himachalpradesh, AIR 2001 HP 18 [LNIND 2000 HP 3].
27 .Harvansh Singh v. Bhagwan Das, AIR 2006 (NOL) 1364(MP) : (2006) 1 MP LJ 604.
28 .Shripat Rao v. Raghuvirsingh, AIR 1995 MP 113 [LNIND 1994 MP 107].
29 .State of Uttaranchal v. Hukum Singh, AIR 2007 Uttr 20: 2007 (3) ALJ 618.
30 .Smt. Chhangura v. Mata Prasad, 2008 (1) ALJ 524 : 2008 AIHC 1096.
31 .R.N. Bannad v. State Bank of India, AIR 1989 Kant 28 [LNIND 1987 KANT 296] (DB).
32 .Gurcharan v. Shibdev, AIR 1922 Lah 309: (1922) 3 Lah 175.
33 .Pradip Kumar Dass v. Abanti Dass, AIR 1998 Ori 26 [LNIND 1997 ORI 147] (DB).
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34 .Rajeet Ram Singh v. Fifth ADJ, Kanpur Dehat, AIR 1999 All 189 [LNIND 1998 ALL 409].
35 .Desi Kedari v. Huzurabad Co-op. Mktg Society Ltd., AIR 1994 AP 301 [LNIND 1994 AP 119] (DB).
36 .Union of India v. Beant Singh & Sons, AIR 1998 J&K 24.
37 .Kewal Krishan v. Shiv Kumar, AIR 1970 P&H 176 : (1970) 2 Punj 758.
38 .Chinnasami Pillai v. Thyagaraja, AIR 1961 Mad 303 [LNIND 1960 MAD 283]: (1961) 1 MLJ 154 [LNIND 1961 SC 14]; Huddersfield
Banking Co. v. Lister, (1895) 2 Cal 273; Ainsworth v. Wilding, [1896] 1 Ch 678 ; Wilding v.Sandeson, (1897) 15 Bom 694.
39 .Pushpa Devi Bhagat v. Rajinder Singh, AIR 2006 SC 2628 [LNIND 2006 SC 491]: (2006) 5 SCC 566 [LNIND 2006 SC 491] ; Lord Radha
Krishna Ji Maharaj v. Acharya Gopal Krishna Goswami, 2009 (1) UC 374.
40 .Ibid, para 12 at p. 2633.
41 .Hina Singh v. Satya Kumar Singh, AIR 2007 Jhar 34 [LNIND 2006 JHAR 119]: 2007 (1) JLJR 615 (DB)
42 . AIR 1961 SC 790 [LNIND 1961 SC 50]: (1961) 3 SCR 769 [LNIND 1961 SC 50].
43 .Baqridam v. Ahmed Khan, AIR 1956 All 94 [LNIND 1955 ALL 198]: (1956) 1 All 856 : (1955) All LJ 850; overruling Oudh Behari v. Faqir
Rai, AIR 1951 All 236 [LNIND 1950 ALL 347].
44 .Ramachandra v. Chaitana, (1920) 39 MLJ 68 : 47 IA 200 (PC).
45 .Ram Mehar v. Surat Singh, AIR 1989 P&H 307.
46 .Mohar Singh v. Hermale Singh, 2008 (3) Raj LW 1989.
47 .Venkatappa v. Thimma, (1895) 18 Mad 410; Pragdas v. Girdhardas, (1903) 26 Bom 76; Manager of Sri Meenakshi Devastanam v. Abdul Kasim,
(1907) 30 Mad 421.
48 .Jasimuddin v. Bhuban, (1907) 34 Cal 456.
49 . See in this connection the observations of the judicial committee in Hemanta Kumari Devi v. Midnapur Zamindari Co 46 IA 240, 246.
50 .(1882) 16 Bom 202, 212; Pragdas v. Girdhardas, (1902) 26 Bom 76.
51 .(1900) 23 Mad 101.
52 .Sagwa v. Dalwa, AIR 1952 All 97 [LNIND 1951 ALL 111]: (1953) 2 All 807 : (1951) All LR 633; Mathura Singh v. Deodhari Singh, AIR
1972 Pat 17.
53 .Baqridam v. Ahmed Khan, AIR 1956 All 94 [LNIND 1955 ALL 198]: (1956) 1 All 856 : (1955) All LJ 850.
54 .Jagdish Narain v. Rasul Ahmad, AIR 1955 All 29: (1953) 2 All 544.
55 .A.K. Singh v. Durjan Singh, AIR 1953 Raj 1541.
56 .Serendra Ojha v. Mostt. Panpati Kaur, AIR 2008 Pat 128.
57 . AIR 1993 SC 1139: (1993) 1 SCC : 1993 (1) PLJR 21.
58 .Kamla Devi v. R.P. Singh, AIR 1972 All 339: (1972) All LJ 465.
59 .Kishun v. Bihari, AIR 2005 SC 3799 [LNIND 2005 SC 586]: 2005 All LJ 2877.
60 .Ibid, para 6 at p. 3801 (of AIR).
61 .Kankuben Parshottamdas Jorda v. Badriprasad Punnamchand Agarwal, AIR 2009 Guj 16: 2009(1) Guj LR 270.
62 .Zahir-ul-Said v. Lachmi Narayan, AIR 1931 PC 107: (1931) 35 Cal WN 612.
63 .Isac Osman v. v.ali Mohamad, AIR 1968 Guj 301 [LNIND 1967 GUJ 132].
64 .V.T. Thomas v. Malayala Manorama Co. Ltd., AIR 1989 Ker 49 [LNIND 1987 KER 584].
65 .Jagdambal v. Southern India Education Trust, (1988) Supp SCC 144.
66 .P.T. Thomas v. Thomas Job, AIR 2005 3575.
67 .Mahila Bhanwari Bai v. Kashmir Singh, AIR 2009 MP 232 [LNIND 2009 MP 340]: 2009 (3) MPLJ 183 (Gwalior Bench).
68 . Re S American Co., [1895] 1 Ch 37.
69 .Zahir-ul-Said v. Lachmi Narayan, AIR 1913 PC 107: (1931) 35 Cal WN 612.
70 .Hudderfield Banking Co. v. Lister, [1895] 2 Ch 273 (mistake common to both parties); Wilding v. Sunderson v. Abdool Azeez, (1881) 6 Cal 687,
706; Kandarpa v. Banking Co. v. Banwari, 33 CLJ 244.
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71 .Huddersfield Banking Co. v. Lister, (1895) 2 Ch 273; Ainsworth v. Wilding, [1986] 1 Ch 673 ; Wilding v. Sanderson, [1897] 2 Ch 534; Mirali v.
Rehmoobhoy, (1891) 15 Bom 594; Audh Behari Lal v. Faqir Rai, AIR 1951 All 236 [LNIND 1950 ALL 347] (case of an appellate decree
passed by consent).
72 .Galstaun v. Promatha Nath, AIR 1929 Cal 470: (1929) 57 Cal 154; Mst Gulab Kuer v. Badshah, (1911) 13 Cal WN 119; Nathu Lal v. Raghubir
Singh, AIR 1926 All 50: (1926) 48 All 160.
73 .Fatmabai v. Sonbai, (1912) 36 Bom 77; Yusuf v. Abdullabhai, AIR 1932 Bom 615: (1932) 56 Bom 231.
74 .Yusuf v. Abdullabhoy (No. 2), AIR 1930 Bom 362: (1931) 55 Bom 372.
75 .Nigamanda Patra v. Sarat Chandra Patra, AIR 1998 Ori 19 [LNIND 1996 ORI 110].
76 .Haridas v. Iswar, AIR 1933 Cal 94: (1931) 36 Cal WN 1013.
77 .Aushootosh v. Tata, (1884) 10 Cal 612, 615.
78 .Fatmabai v. Sonbai, (1912) 36 Bom 77.
79 .Kantaben T. Shah v. Devendra Kumar C. Shah, AIR 2002 Guj 160 [LNIND 2001 GUJ 664].
80 .Raj Kumar Gupta v. Barbara Gupta, AIR 1989 Cal 165 [LNIND 1988 CAL 232] (DB).
81 .Basti Chand v. Dharamvir, AIR 1989 Raj 135.
82 . AIR 1975 SC 1409 [LNIND 1975 SC 120].
83 . Re Joghee Gowder, (1956) 1 Mad LJ 234.
84 .Arti v. Registrar, HCOS AIR 1965 Cal 3 [LNIND 1964 CAL 169].
85 .Guddappa Roy v. Ramanna Banta, AIR 1957 Mad 95 [LNIND 1956 MAD 93]: (1956) 2 MLJ 504 [LNIND 1956 MAD 93] : 69 LW 163;
Rohtas Insustries Ltd. v. P.N. Gour, AIR 1957 Pat 700.
86 .Kotamma v. Mangamma, (1956) Andh WR 517 : 1956 Andh LT 639 [LNIND 1955 AP 104]; AIR 1957 Pat 700.
87 .Dulhin Mahabati Kuer v. Raghunandan Prasad Singh, AIR 1958 Pat 249.
88 .Sat Narain Pandey v. Dhruva Narain, AIR 1959 All 22 [LNIND 1958 ALL 53]: (1958) All LJ 526.
89 .Shantilal v. Madanalal, AIR 1954 All 789 [LNIND 1954 ALL 112].
90 .Aldam v. Brown, (1890) WN 116; Hadida v. Fordham, (1893) 10 LTR 139.
91 .Kotamma v. Mangamma,(1956) Andh WR 517 : 1956 Andh LT 639 [LNIND 1955 AP 104].
92 .Kedar Nath v. Badri Prasad, AIR 1972 All 453.
93 . See note to O 23, r 3, under the heading Agreement adjusting a suit. Mohamed Hashim v. Mohamed Jam, AIR 1934 Lah 67: (1934) 15 Lah
305; Laxmibai v. Bajirao, AIR 1938 Nag 64: (1940) ILR Nag 310.
94 .Krishnan Chettiar v. Mangammal, ILR 26 Mad 91; Atchayya v. Venkatasitaramachandra, ILR 39 Mad 195; Dinanth Ghosh v. Shama Bibi, ILR 28
Cal 23; Samad Sheikh v. Naba Nepal Ghosh, AIR 1914 Cal 614: 19 Cal WN 359; Ramchand v. Ram Sarup, AIR 1952 All 654 [LNIND 1950
ALL 219]; Umayamma v. Muthukaruppa, AIR 1954 Tr & Coch 353; Damodar v. Bonwarilal, AIR 1960 Cal 469 [LNIND 1959 CAL 175];
Umedmal v. NK Chopda & Co., AIR 1967 Bom 514 [LNIND 1966 BOM 6]: 69 Bom LR 153; Kakhanqai Kabui v. Apanbi, AIR 1968 Mani
42.
95 .Shyam Sunder Lal v. Shagun Chand, AIR 1967 All 214.
96 .Thambi v. Mathew, (1987) 2 KLT 848 [LNIND 1987 KER 491].
97 .Shyam Sundar Sarma v. Pannalal Jaiswal, AIR 2005 SC 226 [LNIND 2004 SC 1128].
98 .Prakash v. State of Madhya Pradesh, AIR 2002 MP 3 [LNIND 2001 MP 109].
99 .Chinanammal v. Kannagi, AIR 1989 Mad 185 [LNIND 1988 MAD 359].
1 .Nigamanda Patra v. Sarat Chandra Patra, AIR 1998 Ori 19 [LNIND 1996 ORI 110].
2 .Subhadra Rani Pal Choudhary v. Sheirly Weigal Nain, AIR 2005 SC 3011 [LNIND 2005 SC 343].
3 .Ibid.
4 .Nirma Ram v. Sita Ram, AIR 2007 HP 2 [LNIND 2006 HP 44].
5 .Hakam Singh v. State of Haryana, AIR 2008 SC 2990 [LNIND 2008 SC 867]: (2008) 12 SCC 762 [LNIND 2008 SC 867].
6 .Motiram Yeswant Gaikwad v. Akkatai Uttam Trimukhe, AIR 2003 Bom 325 [LNIND 2003 BOM 226].
7 .Bankim Chandra Lohar v. Sitangshu Kumar Bhanja, AIR 2009 Cal 285 [LNIND 2009 CAL 399] (DB).
8 .Ibid, at page 285.
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9 .S. Amarjit Singh Kalra v. Pramod Gupta, AIR 2003 SC 2588 [LNIND 2002 SC 821].
10 .S. Amarjit Singh Kalra v. Pramod Gupta, AIR 2003 SC 2588 [LNIND 2002 SC 821].
11 .Auto & Hardware Stores v. State of Bihar, AIR 2004 Pat 13.
12 .Shiv Kumar Sharma v. Santosh Kumari, AIR 2008 SC 171 [LNIND 2007 SC 1088]: (2007) 8 SCC 600 [LNIND 2007 SC 1088].
13 .Ibid, para 23 at p. 175.
14 .Ibid, para 18 at p. 174.
15 .P. Swaroopa Rani v. M. Hari Narayana, AIR 2008 SC 1884 [LNIND 2008 SC 563]: (2008) 5 SCC 765 [LNIND 2008 SC 563].
16 .Subbanna v. Subbanna, AIR 1965 SC 1325 [LNIND 1964 SC 359]; Kewal Ram v. Ram Lubhai, (1987) 2 SCC 344.
17 .Patel Ranhhodbhai Bhaichanddas v. Rabari Jiva Java, AIR 1998 Guj 207 [LNIND 1998 GUJ 228].
18 .S. Satnam Singh v. Surender Kaur, AIR 2009 SC 1089 [LNIND 2008 SC 2345]: (2009) 2 SCC 562 [LNIND 2008 SC 2345].
19 .Tapan Kumar Bhattacharjee v. Ratan Kr Bhattacharjee, AIR 2004 Gau 27 [LNIND 2003 GAU 291].
20 .Rudra Pal v. Ram Pal, AIR 1972 All 67.
21 . The judgment of Rankin CJ, in Taleb Ali v. Abdul Aziz, AIR 1929 Cal 689: (1929) 57 Cal 1013.
22 .N. Bhaironbux & Co. v. Kashi Ram, (1973) Raj 271; Tapan Kumar Bhattacharjee v. Ratan Kr Bhattacharjee, AIR 2004 Gau 27 [LNIND 2003
GAU 291].
23 .Venkatrao Anantdeo Joshi v. Malatibai, AIR 2003 SC 267 [LNIND 2013 JHAR 23]: 2002 AIR SCW 4729.
24 .Laxmi v. Sankappa Alwa, AIR 1989 Ker 289 [LNIND 1988 KER 236].
25 .Biswa Nath v. Bani Kanta, (1896) 23 Cal 406.
26 . (1902) 29 Cal 758.
27 . Code of Civil Procedure 1908, O 20, r 18 below.
28 .Baloram Dey v. Ram Chandra Dey, (1896) 23 Cal 279.
29 .Ahmed v. Hashim, IA 91 : ILR 42 Cal 914; Kanai Lal v. Shyam Kishore, AIR 1959 Cal 76 [LNIND 1958 CAL 113]: 63 Cal WN 334.
30 .Kaushalya Devi v. Baijnath, AIR 1961 SC 790 [LNIND 1961 SC 50]: (1961) 3 SCR 769 [LNIND 1961 SC 50] : (1962) 1 SCC 684.
31 .Arshad Ali v. Tahir Ali, AIR 1954 Assam 33(FB).
32 .Kesavana v. Padmanabhan, AIR 1958 Ker 158 [LNIND 1957 KER 315]: (1957) Ker LJ 1206 : (1958) Ker LJ 211.
33 .Narayanan v. Narayanan, AIR 1959 Ker 116 [LNIND 1958 KER 60]: (1958) ILR Ker 889 : (1958) Ker LJ 530 : (1958) Ker LT 782
[LNIND 1958 KER 60].
34 . For preliminary decrees, see O 20 below.
35 .Vamanacharya v. Govind, AIR 1924 Bom 33: (1923) 25 Bom LR 826 [LNIND 1923 BOM 95]; Sakharam v. Sadashiv, (1913) 37 Bom 480;
Kaluram v. Gangaram, (1914) 16 Bom LR 67 [LNIND 1913 BOM 131]. See notes to s 33 and notes to s 96 Where decree not drawn up,
above.
36 .Vamanacharya v. Govind, AIR 1924 Cal 160: (1923) 25 Bom LR 826 [LNIND 1923 BOM 95].
37 .Raja Peary Mohan v. Manohar, AIR 1924 Cal 160: (1923) 27 Cal WN 989.
38 .Phoolchand v. Gopal Lal, AIR 1967 SC 1470 [LNIND 1967 SC 69]; Mayimu v. Maliyammal, AIR 1968 Ker 282: (1968) 1 Ker 129.
39 .Taleb Ali v. Abdul Aziz, AIR 1929 Cal 689: (1929) 57 Cal 1013.
40 .Baswant v. Kallappa, AIR 1938 Bom 222: (1938) 40 Bom LR 164.
41 .Rangaiah v. Kunela Peddireddi, AIR 1957 AP 330; Kanakiah v. Laksshmayya, AIR 1950 Mad 218 [LNIND 1949 MAD 343]: (1950) 2 MLJ
379 [LNIND 1949 MAD 343]; Varadarajan v. Venkatapathi Reddi, AIR 1953 Mad 587 [LNIND 1952 MAD 238]: (1953) 1 Mad LJ 148.
42 .Uppala Subbaiah v. Chitrala Narasimhaloo, AIR 1956 Hyd 161: (1956) ILR Hyd 45.
43 .Mackenzie v. Narsingh Shai, (1909) 36 Cal 762.
44 .Gopal Chandra v. Abdur Rahim, AIR 1927 Cal 492: (1927) 54 Cal 328; Jogendra Narayan v. Satyendra, AIR 1925 Cal 790: (1925) 29 Cal WN
640.
45 .Khirodomoyi v. Adhar, (1913) 18 CLJ 321; Chandumal v. Motilal, AIR 1926 Bom 43: (1925) 27 Bom LR 1942; Nanibala v. Ichhamoyee, AIR
1925 Cal 218: (1925) 40 CLJ 29.
46 .Lakshmi v. Maru, (1914) 37 Mad 29; Ramuvien v. Veerappudayan, (1912) 37 Mad 455; Kanhaiya Lal v. Tribeni, (1914) 36 All 532 (FB).
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47 .Gurmukh Singh v. Shiv Ram, AIR 1935 Lah 482: (1935) 17 Lah 53.
48 .Ramaswami v. Pakkiri, AIR 1924 Mad 65: (1934) 66 MLJ 24 [LNIND 1933 MAD 154].
49 . Subs. by CPC (Amendment) Act 104 of 1976, s. 34, for certain words (w.e.f. 1-2-1977).
50 . Ins. by Act 18 of 1928, s. 2 and Sch. I.
51 .Shriram Industrial Enterprise Limited v. Union of India, AIR 1996 All 135 [LNIND 1995 ALL 926] (FB).
52 .Reliance Industries Ltd. v. Praveen Bhai Jas Bhai Patel, (1997) 7 SCC 300 [LNIND 1997 SC 1138].
53 .Sikkim Subba Associates v. State of Sikkim, [2001] 2 LRI 1072.
54 .Sikkim Subba Associates v. State of Sikkim, AIR 2001 SC 2062 [LNIND 2001 SC 1122].
55 .Rajagopala v. Subbamal, AIR 1928 Mad 180 [LNIND 1927 MAD 386]: (1938) 51 Mad 291; Harakh Narain v. Babban, AIR 1933 All 473:
(1933) 55 All 672; dissenting from Punjab Akhbarat and Land Press Cok v. Ogilvie, AIR 1926 Lah 65: (1926) 7 Lah 179.
56 .Gossami v. Romanlalji (1890) 17 Cal 3; Har Prasad v. Fazal Ahmad, AIR 1933 PC 83: (1932) 60 IA 116 : 55 All LJ 83; Baboo Ram v. Ishrat Ali
AIR 1975 All 180.
57 .P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda, AIR 2002 SC 2445 [LNIND 2002 SC 403]; see also Tejkam v. Kirpal Singh, AIR
1995 SC 1681 [LNIND 1995 SC 656].
58 .Seshadri v. Nataraja, (1898) 21 Mad 189.
59 .Zainuddin Hussein v. Sohan Lal, AIR 1958 Pat 290.
60 .Pulin Behari Pal Mahadeb Dutta, AIR 1981 Cal 61 [LNIND 1980 CAL 205].
61 .Nagu v. Salu, (1891) 15 Bom 424; Jahangir v. Secretary of State, (1904) 6 Bom LR 131.
62 .Rohilkhand Bank v. Raw, (1884) 6 All 468.
63 .Lal Singh v. Ghansham, (1887) 9 All 625; Devchand v. Hirachand, (1889) 13 Bom 449; Keshav v. Vinayak, (1894) 18 Bom 355; Narayanaswami
v. Osuru, (1902) 25 Mad 548 (revision petition against decree of the district musif under the Provincial Small Cause Court Act );
Ashtabhuja Singh v. Board of Revenue Allahabad, AIR 1954 All 521 [LNIND 1954 ALL 53]: 1154 ALJ 230.
64 . (1887) 9 All 625, 64445; (1889) 13 Bom 449 ; (1894) 18 Bom 355.
65 . See amended cl 15 of the Letters Patent for the High Courts of Calcutta, Madras and Bombay, amended cl 10 of the Letters Patent for
the High Courts of Allahabad, Lahore and Patna, and amended cl 13 of the Letters Patent for the High Courts of Rangoon.
66 .Lal Singh v. Ghansham, (1889) 9 All 625.
67 .Jayanti Devi v. Sri Chand Mal, AIR 1984 Pat 296.
68 .Manavikraman v. Collector of the Nilgiris, (1918) 41 Mad 943.
69 .Bhaidas v. Bai Gulab, AIR 1921 PC 6: 48 IA 181; Roop Laul v. Lakshmi Dass, (1906) 29 Mad 1; Nundeeput v. Alenexander Shaw, (1870) 13
WR 209; Surajman v. Horniman, (1918) 20 Bom LR 185 [LNIND 1917 BOM 113], 218; Justin Hull v. Arthur Francis, (1919) 24 Cal WN
352.
70 .Bhuta v. Lakadu, (1919) 43 Bom 433; Tin Tin v. Maung Ba, AIR 1924 Rang 148: (1923) 1 Rang 584, 596; Prafulla v. Bhabani, AIR 1926 Cal
121: (1925) 52 Cal 1018; Punjab Akhbarat and Press Co v. Ogilvie, AIR 1926 Lah 65: (1926) 7 Lah 179; Venkatasubbiah v. Venkatasubbamma,
AIR 1925 Mad 1032 [LNIND 1924 MAD 326].
71 .Lachman Singh v. Ram Lagan (1904) 26 All 10.
72 .Dhanaraju v. Balkissendas, AIR 1929 Mad 641 [LNIND 1929 MAD 37]: (1929) 52 Mad 563; Debi Prasad v. Gaudham, AIR 1933 Pat 67:
(1932) 11 Pat 772; Sardar Bibi v. Nawaz Khan, AIR 1934 Lah 371(FB) : (1934) 15 Lah 425.
73 .SGP Committee v. MP Dass Chela, (1998) 5 SCC 157 [LNIND 1998 SC 517].
74 .Bakaro & Ramgur Ltd. v. State of Bihar, AIR 1966 Pat 154. See notes under cl 36 of the Letters Patent.
75 .Gurappa v. Renukdadas, AIR 1962 Mys 10.
76 .Emperor v. Probhat, AIR 1924 Cal 668: (1924) 51 Cal 504.
77 . Ins. by CPC (Amendment) Act, 1976 (104 of 1976), s 35 (w.e.f. 1-2-1977).
78 . As to the effect of these words see notes to O 2, r 3; Procedure in case of misjoinder of plaintiffs and causes of action, and Procedure
in case of multifariousness, and notes to O 2, r 4, Leave of the court.
79 . (As to the effect of this alteration, see notes below, In any proceedings in the suit.)
80 .Muhammad Hussain Khan v. Kishva Nandan, AIR 1937 PC 233: 64 IA 250 : 1937 All 655 : (1937) Bom LR 979.
81 .Bibi Riajan Khatun v. Sadrul Alam, AIR 1996 Pat 156.
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82 . AIR 1954 SC 340 [LNIND 1954 SC 67]: (1955) 1 SCR 117 [LNIND 1954 SC 67] : 1954 SCJ 514 [LNIND 1954 SC 67] : 1954 SCA
725 [LNIND 1954 SC 67].
83 .Omprakash Dhavan v. Santosh Kumari, AIR 1965 Mys 110.
84 .Suresh Kumar v. State, AIR 1975 MP 30 [LNIND 1974 MP 99]: (1974) MP LR 552.
85 .Jamiluddin v. Shamsuddin, AIR 1999 All 150 [LNIND 1998 ALL 1171] (DB).
86 .State Bank of Patiala v. S.K. Sharma, AIR 1996 SC 1669 [LNIND 1996 SC 2680].
87 . See notes O 2, r 3 Procedure in case of misjoinder of plaintiffs and causes of action.
88 .Gauri Shankar v. Keshab Deo, AIR 1929 All 148: (1929) 27 All LJ 204; P.G. Venkataswamy v. Hussain, AIR 1973 Mys 145. See O 2, r 3.
89 . See notes to O 2, r 3 Procedure in case of multifariousness.
90 .Midnapore Zemindary Co. Ltd. v. Naresh Narain, AIR 1921 Cal 368: (1921) 33 Cal LR 317; Khub Lal v. Jhapsi, AIR 1924 Pat 613: (1924) 3
Pat 244. See O 2, rr 3, 4 and 5.
91 .Ramddhan Puri v. Lachmi Narain, AIR 1937 PC 42: (1937) 16 Pat 149 : 39 Bom LR 363; Jai Gobind v. Nageshwar Prasad, AIR 1953 Pat 326;
Jamiluddin v. Shamsuddin, AIR 1999 All 150 [LNIND 1998 ALL 1171].
92 .Yakkanath v. Manakkat, (1910) 33 Mad 436.
93 .Shanmuga v. Subbayya, AIR 1922 Mad 317 [LNIND 1921 MAD 178]: (1922) 42 Mad LJ 133, 138.
94 .Amirchand v. Raoji, AIR 1930 Mad 714 [LNIND 1929 MAD 362]: (1930) 58 Mad LJ 613.
1 .(1922) 42 Mad LJ 133, 138 : AIR 1922 Mad 317 [LNIND 1921 MAD 178].
2 .K. Mangaraju v. Sri Venugopalswami Varu, (1963) 2 Andh WR 1.
3 .Motoi Mis v. Abdul Haque, AIR 1984 Gau 77.
4 .Devachand v. Hirachand, (1889) 13 Bom 49.
5 .Hulas v. Mohan Lal, AIR 1960 Raj 94.
6 .Womes Chunder v. Chundee Churn, (1881) 7 Cal 293; Girdhar v. Ganpat, (1874) 11 Bomhc129.
7 .Makund v. Bahori Lal, (1881) 3 All 824.
8 .Sheoram v. Thakur, (1908) 30 All 136, in appeal from (1907) 29 All 562.
9 .Hirabai Gendalal v. Bhagirath Ramchandra, AIR 1946 Bom 174: (1945) ILR Bom 819 : 47 BLR 808; Ganpati v. Jivanbai, AIR 1923 Bom 44:
(1923) 47 Bom 227; Manilal & Sons v. Purushotham Umedhbhai, AIR 1960 Cal 15; Wali Muhammad Khan v. Ishaq Ali Khan, AIR 1931 All
507: ILR 54 All 57.
10 .New Mofussil Co. v. Shankerlal, AIR 1941 Bom 247: (1941) ILR Bom 361 : 43 Bom LR 293.
11 .Hudi Goshaon v. Sudi Goshaon, AIR 1962 Punj 467.
12 .Jang Bahadur v. Bank of Upper India Ltd., AIR 1928 PC 162: 55 IA 227 : ILR 3 Luck 314; Nillawwa v. Virupakshappa, AIR 1959 Mys 99:
(1958) Mys 874.
13 .Kailash Singh v. Hira Lal Day, AIR 1994 Gau 12 [LNIND 1993 GAU 21]; Mukhtiar Kaur v. Gulab Kaur, AIR 1977 P&H 257.
14 .Harsukh v. Moshulal, AIR 1957 Assam 22: (1957) ILR Assam 25.
15 .Narendranath v. Aaiya, AIR 1959 Cal 231 [LNIND 1958 CAL 281]: 63 Cal WN 216 : (1959) CLJ 249.
16 .Inder Pal Singh, AIR 1956 All 218 [LNIND 1955 ALL 197].
17 .Mohammed Ali v. Abraham George, AIR 1953 TC 209.
18 .Shanmughan v. Vishnu Bharatheeyan, AIR 2004 Ker 143 [LNIND 2003 KER 544].
19 .B.R. Sharma v. Nanak Chand, AIR 1967 All 487.
20 .Sushila v. Nihal Chand Nahata, AIR 2004 Mad 18.
21 .De Souza v. Pestonji, (1884) 8 Bom 408; Suriyamoni v. Kali Kanta, (1901) 28 Cal 37; Indian Evidence Act 1872, s 167.
22 .Chhaganlal v. Jayaram, AIR 1927 Bom 131: (1927) 51 Bom 125.
23 .Mahadev Pershand v. Mungi, AIR 1959 Punj 565: (1959) ILR Punj 2266.
24 .J.P. Bhagat v. Sharda Devi, AIR 1965 Pat 52.
25 .Maddanappa v. Chandramma, AIR 1965 SC 1812 [LNIND 1965 SC 71]: [1965] 3 SCR 83.
26 .Charan Singh v. Dewan Singh, AIR 1972 P&H 288.
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27 .Radhikabai M. Sunwani v. Tanu Isram Bishen, 2007 (3) All MR 697 : 2007 AIHC 1923.
28 .Varajlal v. Ramdat, (1902) 26 Bom 259.
29 .Lakhpat Singh v. Sat Narain, AIR 1931 Oudh 22: (1930) 5 Luck 116.
30 .Narayana Guptan v. Madhava Menon, AIR 1965 Ker 95 [LNIND 1964 KER 38].
31 .Jaidev v. Kanhaiyalal, AIR 1953 Ajm 49.
32 .Yogeshwar Raj v. Yog Raj, AIR 1967 Punj 163: (1966) 68 Punj LR 214.
33 .Vidya Sagar Sharma v. Anand Swarup Dublish, AIR 1981 All 106 [LNIND 1980 ALL 2].
34 .Rama Chandra Majhi v. Hambai Majhi, AIR 1989 Ori 27 [LNIND 1988 ORI 92]. See also s 21 and notes thereon.
35 .Sannidhi Ratnavathi v. Arava Narasimha Murthy, AIR 2004 AP 29 [LNIND 2003 AP 116].
36 .Matiur Rahman v. Ramjan Ali, AIR 2001 Gau 148 [LNIND 2001 GAU 411].
37 .Tapan Chandra Deb Burma v. Dulal Chandra Deb Burma, AIR 1980 Gau 3.
38 .Dan Singh v. Khaleel Higher Secondary School, Bareilly, 2007 (4) A4J 606 : 2007 AIHC 2605.
39 . Ins. by CPC (Amendment), 1976 (104 of 1976), s 36 (w.e.f. 1-2-1977).

End of Document
 (IN) Mulla : The Code of Civil Procedure, 18th Edition
Mulla : The Code of Civil Procedure, 18th Edition
Mulla

Mulla : The Code of Civil Procedure, 18th Edition > Mulla : The Code of Civil Procedure, 18th Edition >
Volume 1 > Part VII Appeals

Appeals from Appellate Decrees

40[S. 100. Second appeal.

(1) Save as otherwise expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie to the High Court from every decree
passed in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in
any case, it shall formulate that question.
(5) The appeal shall be heard only on the question so formulated, and the respondent
shall, at the hearing of the appeal, be allowed to argue that the case does not involve
such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge
the power of the Court to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if it is satisfied that the
case involves such question.]

STATE AMENDMENT

Kerala. In sub-section (1) of Section 100, after clause (c), the following new clause (d) shall
be added, namely:

(d) the finding of the lower Appellate Court on any question of fact material to the right
decision of the case on the merits being in conflict with the finding of the court of first
instance on such questioncpc (Kerala Amendment) Act (13 of 1957) (1-10-1958).
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1. Scope of the section. The amended section has drastically cut down the scope of this
section by providing in sub-s (1), that a second appeal is henceforth competent only if the
case involves, at the stage of admission, a substantial question of law. Further, such a
question has to be precisely stated in the memorandum of appeal. Where the substantial
question of law is not stated in the memorandum of appeal, the court shall formulate the
same. The respondent however, have the right to challenge that no substantial question of
law is involved.Under s 100 of Code of Civil Procedure 1908 (as amended in 1976) (Code of Civil
Procedure) the jurisdiction of the High Court to interfere with the judgment of the court
below is confined to hearing on substantial questions of law. Interference with a finding of
a fact by the High Court is not warranted if it involves re-appreciation of the evidence.41
Where on the basis of evidence on record the trial court and the first Appellate Court had
concurrently arrived at a finding of fact. The High Court, in second appeal, can not reverse
the said concurrent findings under ordinary circumstances,42 especially when the High
Court has not been able to find out any material that the findings of the trial court as well
as the first Appellate Court were palpably erroneous.43 The Supreme Court, time without
number, pointed out that interference with the concurrent findings of the court below by
the High Court under s 100, must be avoided unless warranted by compelling reasons. In
any case, the High Court is not expected to re-appreciate the evidence just to replace the
findings of the lower courts.44 Where a court comes to a finding that the matter involved
virtually the appreciation of oral and documentary evidence, it will not be proper in
exercise of jurisdiction, under s 100 of the Code of Civil Procedure to consider evidence afresh
at the second appeal stage and in view of the fact that the parties are litigating for last 24
years. The interest of justice would be met if judgment and decree passed by lower
Appellate Court is set aside and the matter is remanded back to the lower Appellate Court
with a direction to decide afresh the appeal on merits in view of the observations of the
High Court in the judgment.45 If, however, that court has patently gone wrong in casting
the burden of proof and has misread the evidence and has also not considered the basic
requirements to substantiate the case, it can not be said that the High Court is not
competent to re-appreciate the evidence, to correct the mistake by the lower Appellate
Court.46 Thus, the position of law is that the High Court can only entertain a second
appeal on a substantial question of law and it has absolutely no jurisdiction to entertain a
second appeal on the ground of erroneous finding of law, however gross the error may
seem to be.47 A combined reading of s s 100 and 101 of Code of Civil Procedure providing the
grounds for second appeal and providing further that no second appeal can be entertained
on any other ground, will make it clear that facts are almost a no entry zone for the second
Appellate Court.48 Though, this is a basic principle of law, there is or can not be any rigid
rule in this respect. In deciding a second appeal in proper perspective, the second
Appellate Court may have to enter into the question of facts.49 Where the High Court did
not examine the facts of the case in the light of the laws prevailing at the time of the sales,
the finding of the court is amenable to correction by way of an appeal.50 In a suit for
declaration of title and possession, which had been discussed by the trial court, the first
Appellate Court granted partial relief to the plaintiff. The plaintiff filed second appeal
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questioning the rejection of his claim over part of the suit land. It was held by the Supreme
Court that the reversal of the second Appellate Court of the partial relief granted by the
lower court, without there being any appeal filed by the defendant, was improper.51

In P. Chandrasekharan v. S. Kanakrajan, 52 it has been stated by the Supreme Court that there
cannot be any doubt whatsoever that a substantial question of law is different from a
question of law. Interpretation of a document which goes to the root of the title of a party
to the lis would indisputably give rise to a question of law. It has been further observed
that what is prohibited for the High Court while exercising this jurisdiction under s 100 of
CPC is to interfere with a finding of fact. This limited jurisdiction, inter alia, would become
exercisable when the findings are based on misreading of evidence or so perverse that no
reasonable person of ordinary prudeuce could take the said view.53

Explaining the scope of s 100 of the Code, a Full Bench of the Bombay High Court held
that the prohibition against second appeal contained in sub-section (3) oRL5---- of the
Arbitration and Conciliation Act, 1996, refers to second appeal from an order passed in appeal
under s 37 of the said Act and not to second appeal contemplated under s 100 of the
Code.54

BHONSLE, J., speaking for the full bench, observed as follows:

It is true that s 37 (3) expressly prohibits a second appeal from an order passed in appeal
under s 37 (1) and 38(2) except an appeal to the Supreme Court. However, there is clear
indication inherent in sub-section (3) that the expression second appeal does not mean an
appeal under s 100 of the Code of Civil Procedure.55 The Full Bench further went on to observe
that second appeal contemplated under s 37 (3) of the Act means an appeal under the
letters patent for which there is express prohibition.56 In between the domains occupied
respectively by questions of fact and of law, there is a large area in which both these
questions run into each other, forming so to say, enclaves within each other. The question
that arises for determination in that area are known as mixed questions of law and fact.
These questions involve first the ascertainment of facts on the evidence adduced and then
determination of the rights of the parties on an application of the appropriate principles of
law to the facts ascertained.57

A cross objection can be maintained in an appeal against an appellate decree but only if a
substantial question of law is raised therein. The stringent conditions embodied in s 100
shall be applicable to a cross objection filed in a second appeal. In other words, the cross
objection shall precisely state the substantial questions of law involved in the cross
objection and the cross objection will be admitted only if the High Court is satisfied that
the case involves a substantial question of law.58

The High Court, it is well settled, while exercising jurisdiction under s 100 of the Code of Civil
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Procedure, cannot reverse the finding of the lower Appellate Court on facts merely on the
ground that on the facts found by the lower Appellate Court, another view was possible.59

The jurisdiction of the courts in first appeals, second appeals or revisions are all, to the
extent, conferred by the legislature. No litigant possesses any natural or inherent right to
appeal against any order, unless a statue confers it and it is to the extent it is conferred.60
The right of appeal which is statutory right, can be conditional or qualified. It can not be
said that such a law would be violative of Art. 14 of the Constitution. If the statue does not
create any right of appeal, no appeal can be filed. The right of appeal inheres in no one,
and therefore, for maintainability of an appeal, there must be the authority of law. When
such a law authorises filing of an appeal, it can impose conditions as well.61 Right to notice
in proceedings in court of law or quasi-judicial proceedings is different from the right of
appeal. The former may arise, either under the statutory provisions or the principal of
natural justice may require it or it may be necessary on principal of legitimate expectation;
but right of appeal is always statutory. The courts cannot confer or infer it. What is
legislatively not permitted cannot be read by implication, not in respect of right of appeal,
as it is a creature of statue. Granting right to appeal to local authorities against order of
reference court would be legislating and not interpretation.62 An appeal does not lie against
mere findings recorded by a court unless the finding amount to a decree or order. Where a
suit is dismissed, the defendant against whom an adverse finding might have come to be
recorded on some issue, has no right of appeal and he cannot question those findings
before the Appellate Court.63 A second appeal is not maintainable against an order
dismissing an appeal as time barred, after rejecting condonotion application under s 5 of
Limitation Act, 1963.64

The issue before the Supreme Court was whether the High Court was right in interfering
with the findings of facts arrived at by the lower Appellate Court on the ground that the
Appellate Court had not adverted to the various reasons given by the trial court and
whether the burden of proving the heirship was on the defendant. It was held that even
assuming burden of proof is relevant in the context of the amended provisions of s 100 of
Code of Civil Procedure, the same would not be relevant when both sides had adduced
evidence. It would be relevant, only if a person on whom the burden of proof lay failed to
adduce any evidence altogether.65

In the undernoted case,66 the Supreme Court has a word of caution for the High Courts in
respect of second appeals:

9.3. it is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by
the High Courts. Some of the off-repeated errors are:
(a) Admitting a second appeal when it does not give rise to a substantial question of law.

(b) Admitting second appeals without formulating substantial question of law.

(c) Admitting second appeals by formulating a standard or mechanical question such as whether on the facts and circumstances
the judgment of the first Appellate Court calls for interference as the substantial question of law.

(d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal.
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(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact
involves substantial questions of law.

(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby
denying an opportunity to the parties to make submissions on the reformulated substantial question of law.

Deciding second appeals by re-appreciating evidence and interfering with findings of fact,
ignoring the questions of law.These lapses or technical errors lead to injustice and also give
rise to avoidable further appeals to this court and remands by this court, thereby
prolonging the period of litigation. Care should be taken to ensure that the cases not
involving substantial questions of law are not entertained, and at the same time ensure that
cases involving substantial questions of law are not rejected, as not involving substantial
questions of law.The High Court, in second appeal, should remand the case to the first
Appellate Court which is the final court of fact and not directly to the trial court for
recording a finding of fact. Where, however, the High Court directly calls for a finding
from trial court, depriving right of appeal to the first Appellate Court, it should scrutinise
that finding.67

Once second appeal has been dismissed, this special civil application under Art. 227 of the
Constitution of India is not maintainable. The petitioners cannot be permitted to avail of the
remedy under Art. 227 of the Constitution of India when regular remedy under Code of Civil
Procedure has been availed of, in which they failed.68

An order under O 22, r 9, appealable as an order, would not be a decree and therefore, no
second appeal would lie against that order. Such an appeal is liable to be rejected as
incompetent.69 Finding of the Appellate Court with the possession was not adversed and
cannot normally be interfered within second appeal under s 100.70

While it is true that events and changes in the law occurring during the pendency of an
appeal required to be taken into consideration in order to do complete justice between
parties so that a futile decree may not be passed, it is also right and necessary that the
decree should be so moulded as to accord with the changed statutory situation. The right
obtained by a party under a decree can not be allowed to be defeated by delay in the
disposal of appeal against the decree, if it is possible to save the decree by moulding it to
confer to the statute subsequently coming into force.71

An error in the lower court judgment can be rectified by the High Court, even though the
plaintiff has not preferred any appeal.72

Where the lower Appellate Court after taking all aspects into consideration directed CBSE
to declare the final result of the candidate who did not possess the requisite attendance, the
High Court, in second appeal, shall not interfere in the findings of the lower Appellate
Court, particularly, because question was regarding academic career of the students.73
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An order of court decreeing suit can not be set aside in second appeal on grounds of non-
service of application for substitution as provided by r 21 of Civil Rules and Orders when
no such grievance was made before passing of decree.74

If under a wrong impression the Appellate Court has drawn up a decree, if does not confer
a right on the appellant to prefer an appeal.75

A party who abandons a particular plea at a particular stage can not be allowed to re-agitate
an appeal.76

The defendants could suffer a decree before the trial court, by their omission to file any
appeal before the first Appellate Court must be considered to have abandoned their right
to file an appeal against the decree in so far as it went against them before the trial court,
and cannot, therefore, be allowed to file an appeal in the High Court by way of second
appeal under the pretext of challenging the judgment and decree of the first Appellate
Court. Permitting such an appeal will amount to permitting appeal directly to be allowed to
file against the judgment and decree of the trial court by a person who has not chosen to
challenge the judgment of the trial court before the first Appellate Court.77

Section 100 does not effect the provision of second appeal as contained in special or local
laws like the Punjab Courts Act, 1877.78

The question before the Supreme Court was whether the Letters Patent Appeal (Patna
High Court) filed against the order of the single judge was maintainable. It was held that a
judgment passed by one judge in second appeal, under s 100 of the Code of Civil Procedure or
any other provision of an special Act no letters patent appeal will lie to the High Court
provided the second appeal was against a decree or order of a district judge or a
subordinate judge or any other judge subject to the superintendence of the High Court
passed in a first appeal under s 96 of the Code of Civil Procedure or any other provision of a
special Act.79

2. Changes in the section. The first sub-section is largely retained, except for two
changes. The first change is that the word where in the commencement of the sub-section
is replaced by the word as. The substitution is only nominal and makes no significant
difference. The second change is vital and restricts the scope of the second appeal
drastically in that cll (a), (b) and (c) of the unamended sub-section are limited and are
replaced by the words if the High Court is satisfied that the case involves a substantial
question of law. The substitution means that even if the decision of the court of first
appeal is contrary to law, or some usage, or custom having the force of law or even if the
decision has failed to determine a material issue of law or suffers from a substantial error
or defect in the procedure, no second appeal would lie unless there is a substantial,
question of law involved. There is, thus, a possibility of injustice being perpetuated. Sub-
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section (2) remains the same. Sub-sections (3), (4) and (5) and the proviso to sub-s (5) are
new. One wonders why the High Court is required to formulate the substantial question of
law under sub-s (4) even though such question is required to be precisely formulated in the
memorandum of appeal under sub-s (3) and the High Court is required to be satisfied
presumably at the time of admission that such a question is involved in the appeal. The
section, as framed, is unnecessarily involved, for, if the object was to limit the second
appeal where a substantial question of law is involved, sub-ss (1), (2) and (3) were enough.
Even where the High Court is satisfied that the appeal involves a substantial question of
law and formulates it, the respondent is still given the right to argue that the case does not
involve such a question Luckily, the proviso retains the power of the High Court to hear
the appeal on a substantial point of law even though it has not been formulated by it, thus,
ensuring that no injustice is done to appellant where such a question is not formulated
through mistake or inadvertence.

3. Section as it stood before the amendment. In order to understand the scope of the
second appeal as now restricted, the section as it stood before the amendment is set out
below:

100(1). Save where otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie to the High Court from every decree
passed in appeal by any court subordinate to a High Court on any of the following
grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having
the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other
law for the time being in force, which may possibly have produced error or defect
in the decision of the case upon the merits.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

4. Grounds of appeal under the unamended section. The section even as it stood
before its recent amendment allowed a second appeal only on the grounds set out in
clauses (a), (b) or (c). Therefore, whereas a Court of first appeal is competent to enter into
questions of fact and decide for itself whether the findings of fact by the lower court are or
are not erroneous, a Court of Second appeal was not and is not competent to entertain the
question as to the soundness of a finding of fact by the Court below.80 A second appeal,
accordingly, could lie only on one or the other grounds specified in the section.81 A judge
to whom a memorandum of appeal was presented for admission could consider whether
any of the grounds specified in the section existed, and if they did not could reject the
appeal summarily.82 The limitations to the power of the Court imposed by ss 100 and 101
in a second appeal had to be attended to and an appellant was not allowed to question the
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finding of fact of the first Appellate Court upon a matter of fact83. Nothing can be clearer
that the declaration in the Civil Procedure Code that no second appeal will lie except on the
grounds specified in the section. No Court in India or elsewhere has power to add to or
enlarge those grounds.84

As held in Durga Chowdhrani v. Jawahar Singh, 85 by the Privy Council, there is no jurisdiction
to entertain a second appeal on the ground of erroneous finding of facts, however gross in
error they may seem to be. The same view has been expressed also by the Supreme
Court.86 No doubt, a second appeal lay where there was a substantial error or defect in
procedure under clause (c), but an erroneous finding of fact is distinct from an error or
defect in procedure. Accordingly, where there was no error or defect in procedure, the
finding of the first Appellate Court upon a question of fact had to be regarded as final, if
that Court had before it evidence proper for its consideration in support of the finding,87
even though the finding was material or the determination of a question not raised in thc
Court below but raised in the second appeal.88 The finding of tact to be final has, ofcourse,
to be clear, specific and unambiguous.89 In Ramratan Sukul v. Mussamat Nandu,90 the Judicial
Committee said: It has now been conclusively settled that the third Court, which in this
case was the Court of Judicial Commissioner, cannot entertain an appeal upon any
question as to the soundness of findings of fact by the second Court; if there is evidence to
be considered the decision of the second Court, however unsatisfactory it might be if
examined, must stand final.The mere fact that the High Court would have upon
documents and evidence placed before the Court of first appeal come to a different
conclusion is no ground for a second appeal.91 The section was enacted for the express
purpose of securing some measure of finality in cases where the balance of evidence,
verbal and documentary, arose for decision.92 In Nafar Chandra Pal v. Sukar, 93 their
Lordships said:

Questions of law and of fact are sometimes difficult to disentangle. The proper legal effect
of a proved fact is necessarily a question of law, so also is the question of admissibility of
evidence and the question whether any evidence has been offered on one side or the other;
but the question whether the fact has been proved, when evidence for and against has
been properly admitted, is necessarily a pure question of fact.In the question to be decided
is one of fact it does not involve an issue of law merely because documents which are not
instruments of title or otherwise the direct foundation of rights but are merely historical
documents have to be construed.94 A second appeal did not lie on the ground that some of
the evidence was contained in a document or documents and the first Appellate Court had
made a mistake as to its meaning.95 Misconstruction of documents which merely formed
part of the evidence has

been held not to be a ground of appeal.1 Mere inferences from or the evidentiary value of a
document generally raise only a question of fact.2 However, it was held that a second
appeal would lie if the documents erroneously construed themselves constituted the
foundation of rights claimed.3 The question whether a statutory presumption was rebutted
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has been held to be always a question of fact.4 Accordingly, no appeal could lie from a
finding that an oral sale in Punjab was not proved and that entries in the Record of Rights
were erroneous.5 Again, if there was evidence to support the finding of the Appellate
Court that the appellants were not tenure-holders and that an entry to that effect in the
Record of Rights was erroneous no second appeal lay.6 A finding as to the valuation of
property has been held to be one of fact.7 A finding on appeal that an estate had not been
privately partitioned previously to its partition under the Estates Partition Act, 1897, was
held to be a finding of fact binding on the High Court in a second appeal.8 So also a
finding on the question whether there had been division or severance of interest in a joint
family,9 It might, however, be a mixed question of fact and law and therefore open to
reconsideration in a second appeal.10 Questions such as partition among co-owners,11 or
waiver of notice to quit12 or waiver of the benefit of an instalment of decree by the decree-
holder13 have been held to be questions of fact. Whether the status of the plaintiffs was
that of members of a particular tarwad has been held to be a question of fact.14 So too, the
question whether an instrument was obtained under undue influence and
misrepresentation.15 On the other hand, a second appeal was held to be competent where
it was shown that the Appellate Court had misdirected itself on a question of law in dealing
with evidence,16 or where it had refused to consider material evidence on the erroneous
ground that it was immaterial,17 or where there was no evidence to support the finding or
the finding was based on inadmissible evidence,18 or where the first Appellate Court had
not considered the evidence, or where its finding is wholly conjectural and not based on
evidence.19 It has been held that where the Appellate Court has based its finding on the
failure of a party to discharge the onus of proof which had been wrongly held to be
incumbent on him, the finding, though one of fact, was not based on positive evidence.20
In general the High Court cannot in a second appeal take upon itself to reappreciate the
evidence or enter into a consideration of sufficiency or adequacy of evidence.21

It has sometimes been held on the strength of observations in Rani Hemanta Kumari v.
Jagadendra Nath 22 that a finding of fact by the lower Appellate Court which reverses that of
the trial Court is liable to be set aside in a second appeal if it did not come to close quarters
with its reasoning.23 But as the Supreme Court has pointed out those observations of the
Privy Council were made in an appeal against the High Courts judgment which had
reversed that of the trial Court and had no application to a second appeal under this
section and under this section a clear finding of fact was not liable to attack on the ground
that the judgment of the lower Appellate Court was not as elaborate as that of the trial
judge or because some of the reasons given by the trial judge had not been expressly
reversed by the lower Appellate Court.24 It must follow that when there are concurrent
findings by two lower Courts on what is a question of fact, the High Court would not
interfere in second appeal.25 A concurrent finding to be binding in second appeal must
have been arrived at after legal adjudication. Thus, where a finding has been given by the
trial Court without deciding the question whether an impugned public register should be
accepted or rejected, though confirmed by the first Appellate Court is not binding as a
concurrent finding on the High Court in a second appeal.26
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The Supreme Court will not, except in unusual circumstances, interfere with concurrent
findings of fact by the Courts below.27 This is in consonance with the practice followed
both by the Privy Council28 and the Federal Court.29

There have been a number of decisions on the question as to what are questions of fact.
Thus, a question of benami.30 or bona fides.31 or negligence,32 or a document being fictitious
or not,33 or certain proceedings being collusive,34 or whether the suit properties were not
family properties,35 or whether there was reasonable or probable cause for prosecution in a
case for damages for malicious prosecution,36 or the question of status of the defendant as
a tenant or not37 is a question of fact. An order which is in the discretion of the Court also
was not disturbed in a second appeal, for instance, where the Court had refused on
consideration of all the circumstances to grant relief to a tenant against forfeiture.38 See
also cases noted below.39

Vendor was an illiterate lady. Sale deed was alleged to be the outcome of fraud and undue
influence. Material document, i.e. acknowledgement in token of having received
consideration, was not produced by vendor. Burden to prove execution of sale deed and
passing of consideration was not discharged by vendee. Plea by vendee, that sale was
necessitated to discharge debts was found not convincing. Findings of facts that fraud and
undue influence was perpetrated on vendor and that no consideration was paid to her,
were not liable to interference by High Court in second appeal. Appeal was dismissed.40
Question whether a particular person is a transferee with notice of agreement of sale is a
question part. The fact that the fending of the lower Appellate Court is based upon a
document does not make it any the less a finding of fact.41 First Appellate Court found that
the plaintiffs (and not defendants) were in possession. Finding was one of fact. It cannot
be disturbed, unless it is shown that the finding was based on a misconception of evidence
or on an overlooking of material evidence. Certificates of sale are documents of title,
which ought not be lightly regarded, or loosely construed.42 High Court cannot interfere
with a finding about bona fide need of the landlord.43 Second appeal in suit under O 21, r 63
was filed against orders passed in execution proceedings. It was held that a question not
constituting the subject-matter of dispute cannot be raised for the first time in second
appeal.

The further question as to whether the appellants are only liable to pay the decretal
amount, was not the subject-matter of the dispute in the present suit. That is a question
which the appellants if at all should have raised before the executing court.44 Finding
whether respondents were tenants or sub-tenants is a question of fact.45 Courts below
reached finding of cruelty fully aware of established principles pertaining to nature of
proof necessary to establish a charge of cruelty so as to justify decree of divorce. It was
held thatconcurrent finding cannot be set aside on mere reappraisal of evidence.46 A pure
question of law arising on the admitted facts can be raised in second appeal. But a
reasonable assessment of evidence cannot be set aside.47 High Court cannot entertain
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second appeal on the ground of an erroneous finding of fact, however gross or inexcusable
the error may seem to be. That the finding of the first Appellate Court is based upon some
documentary evidence, does not make it any the less a finding of fact.48

The High Court acts erroneously if it disturbs concurrent findings of fact:

(a) overlooking clear admissions of the plaintiff and
(b) erroneously interpreting the rent note.49

Where both the lower courts have held the will to be proved the court of second appeal
cannot enter into the evidence.50 The question of whether, in respect of a lease of trust
property, notice of termination had been given by the Mukhtar (attorney) of his own or
whether the Mukhtar had given the notice in pursuance of the resolution of trustees, is a
question of fact, which cannot be allowed to be raised in second appeal.51 Question
whether an agreement of sale was in fact executed and whether it was genuine are
questions of fact. Findings on these cannot be interfered with in second appeal.52 A
concurrent finding of the lower courts, to the effect that the tenant was in possession since
1962, cannot be disturbed in second appeal merely because a different view of the
evidence is possible.53 Concurrent finding of fact (based on appreciation of evidence) that
the licensees shop did not remain closed on account of the authoritys failure to supply
liquor as per demand of licensee, cannot be interfered with, where no infirmity is pointed
out.54 A finding that the income earned from the business by a person (natural guardian)
was necessary to maintain his minor son and that the guardian invested the sale proceeds
of the property of the minor in the business, is a finding of a fact, which cannot be
questioned in second appeal.55 A finding that the demands for pre-emption (required to be
made under Muslim law) were not made, based on an appraisal of the evidence on record,
cannot be questioned in second appeal.56 Finding as to relationship of husband and wife
between two persons is one on a question of fact. Court in second appeal cannot interfere
with the finding in the lower courts.57

The High Court in second appeal cannot interfere with a finding of the trial court that the
sale deed was executed by the plaintiff when he was in an unsound state of mind where the
finding is supported by reasons and evidence.58 In an appeal against a decree in a suit by
the plaintiff for a declaration that the suit property was joint family property and claiming a
share therein, the first Appellate Court gave a finding of fact that the suit property was self
acquired property of the father of the plaintiff, as he was a well known goldsmith and the
suit property was purchased from his income from the business after the death of his
father, i.e. the plaintiffs grandfather, who did not carry on any business. This finding was
reasonable and legal and based on evidence. It was held that the High Court would not be
justified in interfering with it and holding that the goldsmithery was ancestral business of
the plaintiffs father, from the income of which the suit property was purchased. It was not
even the case as pleaded by the plaintiff in the plaint that goldsmithery was their ancestral
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business. Nor was evidence produced to that effect.59 A finding that the accommodation
already in the landlords possession is sufficient for his needs is one of fact.60

A deed was executed by an illiterate old man who sued to set it aside on the ground hat it
had been obtained by fraud and misrepresentation. The courts below negatived the Plea,
after considering the evidence. It was held that the finding, being just and proper, did not
warrant interference in second appeal.61 New point requiring determination of material
facts cannot be raised for the first time in the second appeal.62 Concurrent finding by lower
courts that plaintiffs had established their right of pre-emption claimed on the basis of
Shafi-a-Khalit cannot be challenged in second appeal in the High Court.63 The Appellate
Court would be wrong in thinking that it would detract from the value to be attached to a
trial judges finding of fact if the judge does not expressly base his conclusion upon the
impressions he gathers from the demeanour of witnesses. The duty of the Appellate Court
in such cases is to see whether the evidence, taken as a whole, can reasonably justify the
conclusion which the trial court arrived at, or whether there is an element of improbability
arising from the proved circumstances which, in the opinion of the court, outweighs such
finding.64

Concurrent finding that the disputed will was genuine, cannot be disturbed in second
appeal.65 To determine whether the relationship between the parties is one of licensee or
lessee, neither documentary evidence nor even the recitals in the document in question will
be so relevant, as the real intention of the parties in entering into that relationship. When
lower Appellate Court re-appreciates the evidence and differing from the trial court comes
to the conclusion that the relationship is that of lessee, so long as nothing not before the
court has been taken into account, such conclusion does not suffer from any error of law
and does not call for interference.66 The question whether a person is Khatedar within the
meaning of s 42, proviso, Rajasthan Tenancy Act, 1955 (which prohibited transfer of
interest as Khatedar by a member of Scheduled Caste etc. to one who is not such a
member), cannot be gone into in second appeal, as it is a question of fact67. A plea that the
Rent Control Act was not made applicable to the city in question and that such non-
applicability was discriminatory, cannot be invoked for the first time in second appeal.
Such a plea might involve controversial facts.68

5. Amended Section and pending matters. The principle as to the applicability of a

subsequent statutory provision doing away with or abridging the right of appeal arising
from a matter pending at the date of enactment of such subsequent provision is well
established. As early as in 1905, the Privy Council declared the principle in the following
terms:

As regards the general principles applicable to the case there was no controversy. On the
one hand, it was not disputed that if the matter in question be a matter of procedure only,
the petition is well founded. On the other hand, if it is more than a matter of procedure, if
it touches a right in existence at the passing of the Act, it was conceded that, in accordance
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with a long line of authorities extending from the time of Lord Coke to the present day,
the appellants would be entitled to succeed. The Judiciary Act is not retrospective by
express provision, or by necessary implication. And therefore the only question is, was the
appeal to His Majesty in Council a right vested in the appellants at the date of the passing
of the Act, or was it a mere matter of procedure? It seems to their Lordships that the
question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a
superior tribunal which belonged to him as of right is a very different thing from regulating
procedure. In principle, their Lordships see no difference between abolishing an appeal
altogether and transferring the appeal to a new tribunal. In either case there is an
interference with existing rights contrary to the well-known general principle that statutes
are not to be held to act retrospectively unless a clear intention to that effect is
manifested.69

This principle has been approvingly cited not only by the Supreme Court,70 but has been
followed in several High Courts, decision.71 In Daivanayaga Reddiyar’s case the Madras High
Court held that the right to appeal to a particular superior court (there the district court)
was governed by the law prevailing at the date of the institution of the suit and not by the
law prevailing at the date of the decision or at the date of the filing of the appeal. To the
same effect is the Lahore decision in Kirpa Singh v. Ajaipal Singh.72 In Kasibai v. Mahadu,73 the
suit was filed in 1944 in respect of property situated in the then Nizam territory. It was held
that such a suit would be governed by the relevant provisions of the Hyderabad Civil
Procedure Code then in force and that the restrictions set out in s 100 would not apply to a
second appeal arising from such a suit. They would apply to second appeals arising from
suits filed after 1 April 1951 when the Code of Civil Procedure was applied. Hence the High
Courts jurisdiction in respect of suits filed before that date would be governed by s 602 of
the Hyderabad Code which permitted interference with findings of fact in second appeals.
The principle is thus well-established that the right to appeal is not a matter of procedure
only and that that right to enter a Superior Court is deemed to arise to a litigant before any
decision has been given by the inferior court. In other words, that right accrues to him at
the date of the institution of the suit by him. The right of a second appeal being thus a
substantive right, the new s 100 would not have restricted that right in appeals arising from
suits already filed before the date when the Amendment Act, 1976 was brought into force
and to such appeals the section, as it stood before it was replaced by the new s 100 would
have applied. But to avoid such a result s 97 of the Amendment Act, 1976 which is a
repeal and saving section, provides by its cl (m) that the provisions of the new s 100 shall
not apply or affect any appeal from an appellate decree or order which had been admitted
before the date of its enforcement after hearing under O 41, r 11 and that every such
admitted appeal shall be dealt with as if the new s 100 had not come into force. It is clear
from the language of cl (m) that the legislature intended to save from the applicability of
the new s 100, only those second appeals, which had already been filed and admitted under
O 41, r 11 before it was brought into operation. Consequently, the restrictive provisions of
the new s 100 would apply to all appeals even though they arise from suits or first appeals
filed before the date of enforcement of the new section except as aforesaid those second
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appeals already admitted by the High Courts before that date. To such appeals, as were
already admitted, must apply the section before its replacement by the new section. It has
been considered necessary to retain the commentary under the old section, at least for the
purposes of such saved appeals.

6. Clause (a) of the unamended section; Decision being contrary to law . In cases to
which the old section before its replacement still applies as aforesaid, cl. (a) of that section
would be relevant. That clause provided that a second appeal would lie where the decision
of the lower Appellate Court is contrary to law. The term law in that clause is not limited to
statute law; it means general law.74

When the question is one of a right construction of a document of title,75 or of a document

which forms the foundation of the suit,76 or of a legal inference from a document,77 the
question is one of law, and a second appeal will lie. Thus, where in a suit for a declaration
of the plaintiffs proprietary title to the land in suit, the lower Appellate Court found on a
construction of the wajib-ul-arz and other documentary evidence relating to the land that
the plaintiffs were proprietors, their Lordships of the Privy Council held that the right
construction of the documents was a question of law which the High Court was not
precluded from considering in second appeal. In the course of the judgment their
Lordships said: That finding (namely, that the plaintiffs were proprietors of the lands) of
the Subordinate Judge was the result of his having misconstrued the wajib-ul-arz. The right
construction of documents is a question of law which Judges in second appeal are not by s
s 584 and 585 of the Code of Civil Procedure (now ss 100 and 101) precluded from
considering by any finding of a lower Appellate Court based upon such documents. The
Subordinate Judge arrived at his finding by inferences drawn upon an incorrect
construction of the wajib-ul-arz and the Judges in second appeal consequently were not
bound by his finding that the plaintiffs were the proprietors of the lands.78 Similarly, the
question whether a writing which is ostensibly a deed of absolute sale and an agreement by
the purchaser to reconvey the property to the vendor constitute an out and out sale and an
agreement for recoveyance or a mortgage by conditional sale, is a question of construction
of documents and the High Court is entitled to interfere in second appeal.79 In a Privy
Council case where the question was whether the possession of properties by a Hindu
widow was merely in lieu of maintenance and not adverse to the plaintiffs, their Lordships
held that the question was one of inference from documents and not one of fact an that
they were, therefore, entitled to draw their conclusion notwithstanding the con current
opinions of the Courts in India.80 But where the question is not one of construction of a
document or of legal inference to be drawn from a document, but is one as to the effect to
be given to a document as evidence of a fact or facts in issue, a second appeal is not admissible.
Thus, when the question was whether certain pension moneys were included in a watan or
hereditary endowment and two Courts after an examination of the sanad and other
relevant documents had found that they were not, the Privy Council held that the High
Court in second appeal was not entitled to reverse the finding unless the documents had
been misconstrued.81 Also, where a suit involves a question of the fact of adoption, and
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documents are produced as evidence of the fact of adoption, the question whether the
documents do or do not support the alleged adoption is a question of fact, and no second
appeal will lie.82 The law on the subject was thus stated by Mookerjee J., in Makund Deb v.
Gopi. Nath 83: We hold accordingly that, unless there is a question of the legal effect of a
deed which may be treated as a document of title or embodies a contract or is the
foundation of the suit, a second appeal does not lie. A second appeal is not admissible,
merely because some portion of the evidence is in writing of which the meaning has been
mistaken by the lower Appellate Court.

Where the lower Appellate Court arrives at a conclusion which is an inference based upon
an erroneous view of the law, the judgment is open to question in second appeal.84 A
judgment is also open to question in second appeal where a defect in the judgment is due

to an error as to the admissibility of evidence,1 or where the judgment is based on a

document which does not form part of the judicial record of the case,2 or which had been
improperly admitted as additional evidence by the first Appellate Court,3 or where
secondary evidence is admitted in contravention of the provisions ofsec s. 65 and 66 of the
Indian Evidence Act4 or where there is failure to invoke a presumption of fact under s 114 of
the Indian Evidence Act, 1872.5 It is a ground for interference in second appeal if the lower
Appellate Court relies on inadmissible evidence.6 When a certified copy was admitted in
evidence without objection, it was held that a contention that it was not properly proved
could not be raised in second appeal.7 The question of burden of proof is a question of
law, and the High Court is entitled to interfere in second appeal if the lower Appellate
Court has placed the burden on the wrong party.8 But where evidence is led by both the
parties and is considered, no second appeal can lie on the ground that the onus was
misplaced.9 The question, however, whether a party has discharged the onus rightly placed
on him is one of fact.10 A second appeal will also lie where an unregistered document
which requires registration is admitted in evidence.11 Where the first Appellate Court has
not applied its mind to the evidence in the case in a judicial manner and has omitted to
take into consideration some important evidence, the High Court can interfere in second
appeal.12 Though the High Court cannot interfere with concurrent findings of fact in
second appeal, where the lower Appellate Court has failed to record a finding, it can itself
do so on a consideration of the evidence.13

Where the Court of first instance grants a mandatory injunction for the demolition of a
building, and the decree is reversed in appeal on an erroneous view of the law, a second
appeal will lie.14 Though a person may not have been duly appointed executor, he may
render himself liable as an executor if he intermeddles with the estate of the deceased;
misapplication of law on this point is a good ground for a second appeal.15 The question
whether a stipulation in a contract is by way of penalty is a question of law which renders a
second appeal competent.16 So also the question whether an agreement is in restraint of
trade or not.17 The question whether enquiries made for purposes of s 41 of the Transfer of
Property Act were reasonable is one of law.18
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Where an appeal which ought to have been preferred to the High Court is preferred to a
District Court and the latter Court hears and decides the appeal, the decision is contrary to
law, and a second appeal will lie from the decree of the District Court.19 The High Court of
Madras and Patna have held that where a Court assumes jurisdiction which it would not
have had if the facts necessary to determine the question of jurisdiction had been rightly
decided, a second appeal lies from the findings of facts.20 If an appeal is wrongly
entertained, it is open to the party aggrieved to prefer a second appeal and take the
objection that the appeal to the lower Appellate Court was incompetent.21

7. Question of proper inference in law from findings of fact; mixed question of law
and fact. Even though under the unamended section a second appeal did not lie from a
finding of fact, it was held that a second appeal lay under cl. (a) of that section where a
legal conclusion was drawn from a finding of fact if such conclusion was found
erroneous.22 The reason given was that whereas in determining a question of fact no
application of any principle of law was involved in finding either the basic facts or in
arriving at the ultimate conclusion, in the case of a mixed question of fact and law the
ultimate conclusion has to be drawn by applying principles of law to the basic findings.23
Accordingly, where the lower Appellate Court found that the plaintiff and his predecessors
were not Hindu Sanyasis and therefore were incompetent to assume the office of the
mahant for the reason that they had not performed the requisite ceremonies and had not
uttered the required mantra, the factual part of the finding, that is, the non-performance of
the ceremony and the omission to utter the mantra was a finding of fact, but the ultimate
conclusion therefrom was a question of law.24 Thus, the question whether possession is
adverse or not is often one of simple fact, but it may also be a conclusion of law or a
mixed question of law and fact. Where the question of adverse possession is one of simple
fact, no second appeal will lie; but a second appeal will lie from a finding as to adverse
possession when such finding is a mixed question of law and fact depending upon the
proper legal conclusion to be drawn from the findings as to simple facts.25 Where the
question in a suit was whether the defendant was bound by a mortgage executed by his
mother, and it was held that he was, their Lordships of the Privy Council held that the
findings was substantially one of law, and that it was, therefore, open to question in second
appeal. In the course of their judgment their Lordships said: The facts found (by the lower
Appellate Court) need not be questioned. It is the soundness of the conclusions from them that is
in question, and this is a matter of law.26 As stated by their Lordships of the Privy Council
in another case, the proper legal effect of a proved fact is essentially a question of law, and
the High Court is, therefore, entitled to interfere in second appeal.27

It is not the practice of the Supreme Court to permit a mixed question of law and fact to
be raised for the first time before it.28

[See also notes under s 100, 46 mixed question of law and fact]
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8. Clause (c): Substantial error or defect in procedure. A second appeal will lie where
there is, as an English lawyer would express it, no evidence to go to the jury, because that
does not raise a question of fact such as arises upon the issue itself, but a question of law
for the consideration of the Judge.29 It is settled law that if the findings of fact given by the
first Appellate Court are based on appreciation of all the relevant evidence, the High Court
would not upset them. It is only when such findings are based on no evidence at all or
where the evidence is disbelieved for no reason at all or if there is any substantial error or
defect in procedure that its interference with such findings is called for in second appeal.30
Thus, where the lower Appellate Court found that a deed of compromise was not for the
benefit of a certain infant, and there was no evidence in the case upon which that Court
could found its judgment, it was held by the Judicial Committee that the case was one of a
substantial error or defect in the procedure of the first Appellate Court and that it was a
ground for a second appeal to the High Court.31 Normally, Court in second appeal will not
disturb a concurrent finding of fact. However, where the lower court ignores material
evidence with respect to the fact in issue, its finding can be interfered with even in second
appeal. Presumption of truth is attached to the entries in the revenue records and to rebut
such presumption, convincing and reliable evidence is required. Where in a suit seeking
permanent injunction, the lower courts concurrently found that defendant was in
possession of land as tenant, whereas entries in the relevant revenue records showed
plaintiff as owner in possession of the land. In the absence of evidence to rebut the
presumption of truth of entries in the revenue records, concurrent finding of lower courts
that defendant was in possession of land, ignoring the entries in revenue records could not
be sustained.32 A finding of the first Appellate Court can set aside if it is not based on any
evidence as it is an illegality.33

Pleas as to validity of notice and non-maintainability of suit under Panchayat Act can be
allowed in second appeal, as they involve consideration of law points and interpretation of
provisions of the Act.34 Ordinarily a finding as to possession-must be regarded as a finding
of fact, but even a finding of fact can be upset in second appeal on the score that there was
no evidence to support it or that it was based on a misconception.35 A finding of fact is not
bending in second appeal if it does not consider the evidence on record and if it fails to
appreciate the principles regarding the customary right of irrigation asserted by the
plaintiff.36 Lower Appellate Court reversed the finding of the trial court, believing the
plaintiffs evidence and disbelieving the defendants evidence. The judgment of the lower
Appellate Court showed that its finding suffered from a substantial error of procedure in
appraising the evidence. This error had materially affected the decision of the case on the
merits. Such an error gives the High Court jurisdiction to interfere on second appeal,
under s 100 (1)(c).37 A finding of fact made by the first Appellate Court, which is the final
court of facts can be interfered with in second appeal, only when the finding is without
evidence or based on inadmissible evidence or is perverse, i.e. the finding is such that no
reasonable and prudent man can come to it from the materials on record.38
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A finding recorded with no reasoning, or a finding based on illogical or perverse reasoning

is not binding on the High Court under s 100. The burden of proving non-receipt of
consideration was on the defendants, The contrary approach of the lower Appellate Court
was erroneous and was not legally sound. It is not enough that the lower Appellate Court
concurs with the finding, but the process of reasoning must also be sound.39 The District
Judge, in appeal, decreed A's suit for possession of whole disputed property against B and
C, on the ground that they were not sons of A's deceased father. He did not consider
important oral and documentary evidence, which was material to prove the relationship of
B with A's father. It was held that the judgment could be interfered with in second appeal,
as the District Judge had ignored a very vital and important document in the case.40 Where
the first Appellate Court fails to consider the most material evidence in the case, and
especially when it reverses the judgment of the trial court, the finding recorded by the first
Appellate Court, is not binding on the High Court, though it is true that every non-
consideration of the reason given by the trial court in a judgment of reversal will not attract
this principle.41 Even if the appreciation of evidence made is patently erroneous and the
finding of fact recorded in consequence is grossly erroneous, that cannot be said to
introduce a substantial error of defect in the procedure. However, when the first Appellate
Court discarded the evidence as inadmissible and the High Court is satisfied that the
evidence was admissible, that may introduce an error or defect in procedure. So also in a
case where the court below ignored the weight of evidence and allowed the judgment to be
influenced by inconsequential matters, the High Court would be justified in re-appreciating
the evidence and coming to its independent decision.42

Findings of fact can be interfered with by the High Court under certain circumstances,
when the court is satisfied that on account of wrong approach to a matter, injustice has
been done to one of the parties before it.43 Lower Court recorded finding of fact by
wrongly misreading the evidence. It was held that it had committed an error of law,
warranting interference. Appeal was allowed.44 The error or defect in the procedure to
which s 100 (l)(c) refers, is not an error or defect in the appreciation of evidence adduced
by the parties on the merits. Even if the appreciation of evidence is patently erroneous and
the finding of fact is in consequence grossly erroneous, that cannot be said to introduce a
substantial error or defect in the procedure. However, when the first Appellate Court
discarded the evidence as inadmissible and the High Court was satisfied that the evidence
was admissible that may introduce an error or defect in procedure. So also, where the court
below ignored the weight of evidence and allowed the judgment to be influenced by
inconsequential matters, the High Court would be justified in reappreciating the evidence
and coming to its own independent decision.45

In a case where the lower Appellate Court had come to a finding of fraud, although, in
point of law there was no evidence to support the finding, the Privy Council held that the
Judicial Commissioner was within his powers in second appeal in deciding the case on the
evidence in the record.46 The High Court in second appeal is not bound by a finding as to
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whether the defendants were permanent tenants liable to pay a reasonable rent when the
finding was based neither on evidence nor admission.47 Again, when the lower Appellate
Court inferred from the fact that a mortgagee had delayed filing a suit until the last day
allowed by the law of limitation that he had been receiving interest all the time and that the
mortgage was satisfied, the High Court held that the inference was not drawn from any
evidence so that there was an error of law.48 Where the lower Appellate Court had reversed
a finding of fact arrived at by the Court of first instance without considering the material
facts on which the first Courts finding was based the High Court would interfere in second
appeal on the ground that the judgment is not a proper judgment of reversal.49 The
Supreme Court has observed that if a finding of fact is arrived at ignoring important and
relevant evidence, the finding is bad in law.50 Similarly, where the lower Appellate Court
disposes of a suit upon a case not raised by the parties land to which the evidence has not
been directed, it is a substantial error or defect in procedure within the meaning of this
section and a second appeal lies to the High Court.51 But where the Court gives a finding
on a question on which both parties go to trial, it is not liable to be disturbed on the
ground that it was not raised in the pleadings.52 The Bombay High Court has held that a
finding based on a misconception of what the evidence is cannot be accepted in second
appeal,53 and this was followed by the Allahabad High Court in a case where the lower
Appellate Court, in a perfunctory judgment which did not state correctly what the evidence
was, found that a village officers report was tainted with malice.54 The Lahore High Court
had held that where the Court has not considered all the available evidence, a second
appeal lies.55 A second appeal will lie if the evidence has been misread or misunderstood,56
or the lower Appellate Court has misdirected itself in point of law in dealing with the
question upon the evidence,57 or has overlooked or ignored material documentary
evidence.58 The same view has been taken also by the Supreme Court.59 But the mere fact
that the lower Appellate Court has made specific reference in its judgment to only some of
the witnesses does not by itself mean that it was unmindful of the rest of the evidence.60
Error in appreciation of evidence is not a substantial error in procedure within s 100 (1)(c)
of the Code.61 When the finding of fact is based partly on conjectures, and partly on a
misunderstanding of the evidence, a second appeal lies.62 On the same principle a second
appeal will lie where the finding of the lower Appellate Court, e.g., a finding on the
existence of a usage, is based on irrelevant matters.63 A second appeal also lies where the
lower Appellate Court decides a question of fact not upon the evidence before it, but on
the authority of a previous finding of a Court of superior jurisdiction upon similar facts in
a case between different parties.64

(i) Where the Courts below have misconceived the real question they had, to try. The High Court has
jurisdiction under this section to set aside the decree of the trial Judge in favour of the
plaintiff, affirmed on the facts by the first appellate Judge, on the ground that the evidence
taken showed that the true question of fact which had not been considered and as to
which no issue had been framed should have been answered in favour of the defendant.65
A conclusion based on an erroneous understanding of the case that the plaintiff committed
breach of contract66 or on a misinterpretation of pleadings67 can likewise be challenged in a
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second appeal The Supreme Court has held that the High Court could interfere with a
finding of fact in second appeal when the Courts below had misunderstood the point for
determination.68

(ii) Other cases of error or defect in procedure. Interference with a finding of fact would be
warrented where there is a substantial error or defect in the procedure provided by this
Code or by any other law for the time being in force which has produced an error in the
decision on merits. If the lower Appellate Court allows a new point of fact to be raised for
the first time or permits a party to take up a new plea or make out a new case that may
amount to an error in procedure.69 Omitting to decide a material issue,70 omitting to
examine witness tendered,71 refusing to receive documentary evidence which ought to have
been accepted,72 allowing the plaintiff in the lower Appellate Court to change the nature of
his suit,73 permitting the defendant in the first appeal to raise a new plea not taken in the
written statement,74 deciding an appeal without waiting for the return of a commission
directed to be issued by the first Appellate Court,75 rejecting an extract from the death
register admissible under s 35 of the Evidence Act and then holding that the date of death is
not proved,76 have all been held to be good grounds for special appeal. But disregard of an
Amins second report as to a boundary line does not constitute a substantial error or defect
in procedure within the meaning of this section, and is no ground for second appeal.77 The
refusal by a lower Appellate Court to exercise the discretion vested in it by O 41, r 27, with
respect to the admission of additional evidence, is a substantial error or defect in
procedure, and affords a ground of special appeal. But where the Court has exercised its
discretion in a sound and reasonable way, and in the exercise of its discretion refused to
admit additional evidence, the case is not one of substantial error or defect in procedure.78
The same is the position where the court after exercising its discretion properly accepts or
rejects the commissioners report79 or admits an application for amending the plaint.80
Admission by the lower Appellate Court of additional evidence tendered by the
respondent without the consent of the appellant and without recording the reasons for its
admission as required by O 41, r 27, is a substantial error in procedure, and is a good
ground for second appeal.81 Proceeding with a suit without the legal representatives of the
deceased plaintiff being brought on the record is also a good ground for second appeal.82
In a suit for restraining the defendant from using and occupying an open space in front of
his house, the burden to prove title to that space is on the plaintiff. If that is ignored, the
High Court would be justified in interfering with the finding even though such finding
would be one of fact.83

The scope of this clause was considered in Ramachandra v. Ramalingam.84 After observing
that it had reference not to error or defect in the appreciation of evidence but to error or
defect relating to procedure, the Court went on, if in dealing with a question of fact, the
lower Appellate Court has placed the onus on a wrong party and its finding of fact is the
result, substantially of this wrong approach, that may be regarded as a defect in procedure;
if in dealing with questions of fact, the lower Appellate Court discards evidence on the
ground that it is inadmissible and the High Court is satisfied that the evidence was
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admissible, that may introduce an error or defect in procedure. If the lower Appellate
Court fails to consider an issue which had been tried and found upon by the trial Court
and proceeds to reverse the trial Courts decision without the consideration of such an
issue, that may be regarded as an error or defect in procedure; if the lower Appellate Court
allows a new point of fact to be raised for the first time before it, or permits a party to
adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be
said to amount to a defect or error in procedure. But the High Court cannot interfere with
the conclusions of fact recorded by the lower Appellate Court, however erroneous the said
conclusions may appear to be to the High Court, because, as the Privy Council has
observed, however gross or inexcusable the error may seem to be, there is no jurisdiction
under s 100 to correct that error.

9. Main effect of amendment. The effect of the amendment, mainly, according to the
amended section, was: (i) The High Court would be justified in admitting the second
appeal only when a substantial question of law is involved; (ii) The substantial question of
law is to be precisely stated; (iii) A duty has been cast on the High Court to formulate
substantial question of law before hearing the appeal; (iv) another part of the section is that
the appeal shall be heard only on that question.85

10. Rationale behind this section. The rationale behind allowing a second appeal on a
question of law is, that there ought to be some tribunal having a jurisdiction that will
enable it to maintain, and, where necessary, re-establish, uniformity throughout the state
on important legal issues, so that within the area of the state, the law, in so far as it is not
enacted law, should be laid down, or capable of being laid down, by one court whose
rulings will be binding on all courts, tribunals and authorities within the area over which it
has jurisdiction. This is implicit in any legal system where the higher courts have authority
to make binding decisions on question of law.86

11. Finality of decision. In the 54th Report of the Law Commission of India, it is
incorporated that it may be permissible to point out that a search for absolute truth in the
administration of justice, however, laudable, must in the very nature of things be put under
some reasonable restraint. In other words, a search for truth has to be reconciled with the
doctrine of finality. In judicial hierarchy, finality is absolutely important, because that gives
certainty to the law. Even in the interest of litigants themselves, it may not be unreasonable
to draw a line in respect of the two different categories of litigation where procedure will
say at a certain stage that questions of fact have been decided by the lower courts and the
matter should be allowed to rest where it lies without any further appeal. This may be
somewhat harsh to an individual litigant; but in the larger interest of the administration of
justice, this view seems to be juristically sound and pragmatically wise. It is in the light of
this basic approach that we will now proceed to consider some of the cases which were
decided more than a century ago.87

12. Administration of justice as per law. The analysis of cases decided by the Privy
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Council and the Supreme Court prior to 1976 clearly indicated the scope of interference
under s 100, Code of Civil Procedure, by this court. Even prior to amendment, the consistent
position has been that the courts should not interfere with the concurrent findings of facts.

Now, after 1976 Amendment, the scope of s 100 has been drastically curtailed and
narrowed down. The High Courts would have jurisdiction of interfering under s 100, Code
of Civil Procedure, only in a case where substantial questions of law are involved and those
questions have been clearly formulated in the memorandum of appeal. At the time of
admission of the second appeal, it is the bounden duty and obligation of the High Court to
formulate substantial questions of law and only then is the High Court permitted to
proceed with the case to decide those questions of law. The language used in the amended
section specifically incorporates the words as substantial question of law which is indicative
of the legislative intention. It must be clearly understood that the legislative intention was
very clear that legislature never wanted second appeal to become third trial on facts or one
more dice in the gamble. The effect of the amendment mainly, according to the amended
section, was:
(i) The High Court would be justified in admitting the second appeal only when a
substantial question of law is involved.
(ii) The substantial question of law is to be precisely stated;
(iii) A duty has been cast on the High Court to formulate substantial question of law
before hearing the appeal;
(iv) Another part of the section is that the appeal shall be heard only on that question.

In a series of cases, the Supreme Court was compelled to interfere was because the true
legislative intendment and scope of s 100 Code of Civil Procedure have neither been
appreciated nor applied. A class of judges, while administering law, honestly believe that if
they are satisfied that, in any second appeal brought before them evidence has been grossly
mis-appreciated either by the lower Appellate Court or by both the courts below, it is their
duty to interfere, because they seem to feel that a decree following upon a gross mis-
appreciation of evidence involves injustice and it is the duty of the High Court to redress
such injustice. It is reiterated that the justice has to be administered in accordance with
law.88

13. Principles relating to this Section. The principles relating to s 100, Code of Civil
Procedure, may be summarised thus:-
(i) An inference of fact from the recitals or contents of a document is a question of
fact. But the legal effect of the terms of a document is a question of law.
Construction of a document involving the application of any principle of law, is also
a question of law. Therefore, when there is misconstruction of a document or
wrong application of a principle of law in construing a document, it gives rise to a
question of law.
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(ii) The High Court should be satisfied that the case involves a substantial question of
law, and not a mere question of law. A question of law having a material bearing on
the decision of the case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle emerging from binding
precedents, and, involves a debatable legal issue. A substantial question of law will
also arise in a contrary situation, where the legal position is clear, either on account
of express provisions of law or binding precedents, but the court below has decided
the matter, either ignoring or acting contrary to

such legal principle. In the second type of cases, the substantial question of law
arises not because the law is still debatable, but because the decision rendered on
a material question, violates the settled position of law.

The general rule is that the High Court will not interfere with concurrent findings of the
courts below. But it is not an absolute rule. Some of the well recognised exceptions are
where (i) the courts below have ignored material evidence or act ed on no evidence; (ii) the
courts have drawn wrong inferences from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof. When we refer to decision based on
no evidence, it not only refers to cases where there is a total dearth of evidence, but also
refers to any case, where the evidence, taken as a whole, is not reasonably capable of
supporting the finding.1

14. Who can file appeal. of the Code of Civil Procedure make provision for an appeal being
preferred from every original decree or from every decree passed in appeal respectively;
none of the provisions enumerates the person who can file an appeal. However, it is
settled by a long catena of decisions that to be entitled to file an appeal, the person must
be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the
decree he is not entitled to file an appeal.2

No appeal lies against a mere finding. It is significant to note that both s s 96 and 100 of
the Code of Civil Procedure provide for an appeal against decree and not against judgment.3

15. Pleas which may be taken for the first time in second. An appellant will not be
allowed to set up for the first time in second appeal a plea not taken by him in the lower
Court4.But if the objection is one which goes to the very root of the case, it may be taken
for the first time in second appeal.5 Plea of bona fide purchaser, in good faith from
ostensible owner (s 41, TP. Act) cannot be raised for the first time in second appeal.6 Thus,
an objection to jurisdiction may be taken for the first time in special appeal, if it is patent
on the face of the record,7 except, it is submitted, in those cases which fall within s 21
above. Similarly, the plea of res judicata may be taken for the first time in second appeal
provided it can be decided upon the record before the Court.8 A change in the law which
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has come into force after the decision of the lower Appellate Court and which has been
given retrospective effect also will be allowed to be raised for the first time in the second
appeal.9 So also the plea of want of notice in an ejectment suit10, or vice versa termination
of tenancy by valid notice where the fact of notice is not denied nor any issue is demanded
by the defendant,11 or a plea of lis pendens,12 for a judicial pronouncement available only at
the time of the hearing of the second appeal.13 As to the plea of limitation, see notes to O
41, r 2. Leave of Court: Limitation, which refer to first appeals, apply also to second
appeals.14

The High Court will entertain in second appeal a point of law although it has not been
raised in any of the lower Courts, provided the point of law arises on the findings of the
lower Court or on the issues as framed and on the evidence already recorded. Thus, where
the lower Appellate Court awarded to the plaintiff a third share of the property in suit on
the ground that remoter gotraja sapindas inherited per stirpes and the defendant preferred a
second appeal to the High Court on the ground that the plaintiff was not entitled to any share
at all, the defendant was allowed to contend at the hearing of the second appeal that the
plaintiff was not entitled in any event to more than a sixth share as remoter gotraja sapindas
inherited per capita and not per stripes.15 The Supreme Court has also laid down that a
pure question of law can be raised for the first time in appeal.16 See also the cases noted
below.17 But while the Court will be act ing within its powers in permitting a question of
law to be raised for the first time in appeal, it is not bound to do so, and, may in its
discretion, decline to do so, if that would operate unfairly on the other side.18 But the High
Court will not entertain a point of law raised for the first time in second appeal, if the point
cannot be decided without remanding the case for further evidence,19 nor will it take into
account any subsequent development and allow additional evidence in regard to it to be
taken.20 When the question is one of mixed law and fact, the High Court will not entertain
it for the first time in second appeal.21 A Full Bench of the Allahabad High Court has held
that a point of law not taken in the lower Appellate Court cannot be raised in second
appeal unless it is a point involving res judicata, jurisdiction, or a point the decision of which
is necessary to prevent further litigation, and then only if the question does not necessitate
the taking of further evidence.22 A plea that a suit is barred by section 47 will not be
entertained if raised for the first time in second appeal.23 Similarly the Kerala High Court
rejected the plea for awarding the value of improvements under Kerala Act XXIX of 1958
where such a plea was not taken in the lower Appellate Court though the Act had come
into operation while the appeal before that court was pending.24 The Privy Council quoted
with approval in an appeal from Rangoon,25 the following passage from a judgment of
Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh: 26 When a question of law is raised
for the first time in a Court of last resort upon the construction of a document or upon
facts either admitted or proved beyond controversy, it is not only competent but expedient
in the interests of justice to entertain the plea. The Privy Council in a later case refused to
allow a new point to be raised before it without any pleadings and evidence on it.27 The
Supreme Court has likewise declined to hear a new question of fact raised before it.28 A
custom neither pleaded nor sought to be established by evidence cannot be set up for the
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first time in second appeal;29 nor a new case of agency, when the plea of partnership had
failed;30 nor a new plea that a suit is not maintainable as the partnership which was the
foundation of the claim was unregistered as required by s 69 of the Partnership Act31 nor a
new plea as to the invalidity of registration of a document.32 Nor can a point of law be
taken for the first time in second appeal if it sets up a new right differing in kind from that
asserted throughout the trial, and not merely in decree. Thus, where the right claimed by
one of the defendants was treated as one of maintenance only in the Courts below, she was
not allowed to contend in second appeal that, besides maintenance, she was entitled to a
half share in the Property.33 The failure of the Court to formulate the substantial question
of law (while admitting the appeal) does not mean that the appeal cannot be heard. Such
failure is an omission by court. Litigants cannot be penalised for it.34

16. Admission of Appeal by Registrar, High Courtvalidity. See matter under the same
heading in s 96 ante.

17. This Section and Section 18 of TRAI Act, 1997. Under s 18, the appeal would lie
against any order of appellate tribunal to the Supreme Court only on the ground specified
in s 100 of Code of Civil Procedure and necessarily, therefore, it must be a substantial question
of law.35

The power of Supreme Court under s 18 of the Act cannot be equated with the power of
judicial review. Supreme Court will be concerned with a substantial question of law arising
in the case, its jurisdiction would not be restricted to illegality, irrationality or procedural
impropriety in the decision-making process.36

18. This Section, Order 41 and Order 42. It is needless to say that O 41, Code of Civil
Procedure deals with appeals from the original decrees. Order 42, Code of Civil Procedure deals
with appeals from the Appellate Court decrees. Order 42, r 1, Code of Civil Procedure, dealing
with the procedure specifies that the rules of O 41, shall apply, so far as may be, to appeals
from appellate decrees. The words so far as may be assume importance. In view of the said
wording, it cannot be said that all the rules of O 41, Code of Civil Procedure can be made
applicable in the case of second appeals and they are applicable only to the extent so far as
may be.37

19. Section 100, Section 102, Order 41, Rule 11 and Order 42, Rule 2 Harmonious
Constructionadmission of Appeal. The court has the power to direct that the appeal be
heard on the question formulated by it. At the time of making an order under r 11 of O 41
for the hearing of a second appeal, the court shall formulate the substantial question of law
as required by s 100, and in doing so, the court may direct that the second appeal be heard
on the question so formulated and it shall not be open to the appellant to urge any other
ground in the appeal without the leave of the court, given in accordance with the provision
of s 100.
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While giving harmonious construction to s 100, O 41, r 11, O 42, r 2, Code of Civil Procedure,
if all these three provisions are read together, then, the appeal in which a substantial
question of law is not formulated, cannot be heard finally and every such appeal in which
the substantial question of law is not involved will be dismissed under O 41, r 11, Code of
Civil Procedure, and then there is no question of final hearing of the appeal. The essential
requirement for further proceeding when the appeal is not dismissed under O 41, r 11, is
formulation of substantial question of law. Until and unless the court is satisfied that any
substantial question of law is involved in the appeal, such appeal cannot be entertained. In
the circumstances, if in a second appeal substantial question of law is not formulated then
it cannot be heard finally. In the circumstances, the formulation of substantial question of
law is sine qua non. To give effect to s 102, newly amended, it can reasonably be held that
until and unless substantial question of law is formulated, an appeal cannot be deemed to
have passed through the stage of O 41, r 11, Code of Civil Procedure. In the circumstances,
the intention of legislature in s 102 is that when the substantial question of law is
formulated as required under s 100, and O 42, r 2 of the Code of Civil Procedure, appeal shall
be deemed to be admitted. If before this, the court has issued notice to the other side, it is
in the stage of determining whether in the appeal any substantial question of law is
involved or not. Thereafter, the court will either formulate such substantial question of law
and the appeal will proceed further, otherwise appeal shall be dismissed. Only after
admission of appeal, will the provision of r 16 of O 41 apply. In the circumstances, the
word admitted used in s 16 (2)(a) of the Code of Civil Procedure (Amendment) Act, 2002 will
mean that the court, after hearing the appeal on formation of substantial question of law
and being satisfied that a substantial question of law is involved, formulates such
substantial question of law, only then would the appeal would be deemed to have been
admitted. Merely from the fact that the court issued notice to other side in the process of
admitting the appeal, it cannot be said that the appeal is admitted. In the circumstances, if
an appeal is not admitted before 1 July 2002, the saving clause would not apply and the bar
created under s 102 of the Code of Civil Procedure would apply.38

20. Section 100, Section 104 and Order 43, Rule 1. The assumption that an appeal under
O 43, r 1, cl (u) should be heard only on the grounds enumerated in s 100, is incorrect as
O 43, r 1, Code of Civil Procedure is only an enabling provision for regulating the procedure
and prescribing the various orders from which appeal would lie to an higher court. A rule
prescribing the procedure can never be understood in law as circumscribing the powers of
the higher court hearing the matter in appeal, unless the rule specifically speaks of it.
Where an order of remand is questioned as being improper and uncalled for in an appeal
provided against such an order, it would be always open to the court hearing the appeal to
consider all questions, both of fact and law, to determine whether or not the order of
remand is right in law. The learned judge, by taking such view of the matter, has equated
an appeal under s 100, Code of Civil Procedure whereunder the jurisdiction of the High Court
to entertain a second appeal after the 1976 amendment is confined only to such appeals
which would involve a substantial question of law, with an appeal under s 104, Code of Civil
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Procedure whereunder no such limitation is imposed on the powers of the High Court. That
is quite improper. In an appeal from an order of remand preferred under O 43, r 1 cl (u),
the High Court is not confined on the question whether the order satisfies the requirement
of the rule. It may also determine the correctness of the lower Appellate Courts decision
on the point on which the trial court disposed of the case. Thus, where the trial court
decrees a suit on rejection of the defence of perfection of title by adverse possession and
the Appellate Court reverses the decree and remands the case under this rule, the High
Court has the power to determine whether the point of adverse possession was correctly
decided on merits by the lower Appellate Court.39

In a suit for dissolution of partnership firm and accounts, the trial court appointed a court
commissioner in the final decree proceedings. In the second appeal against the order
allowing objections against the commissioners report, the Supreme Court held that though
a second appeal against the said order was not maintainable in view of r 1 of O 43 of the
Code, but if the appeal has been entertained upon hearing both the parties, the court may
not exercise its extra-ordinary jurisdiction to set aside that order. It was observed that the
scope of an appeal under s 100 was narrowed and the one under. O 43, r 1 is wider. What
matters most is to see whether substantial justice has been done to the parties and not the
technicalities involved therein.40

21. Appeal and Revisionrespective Scope. The aspect that has to be considered is the
respective scope of appeal and revision. It is fairly a well settled position in law that the
right of appeal is a substantive right. But there is no such substantive right in making an
application under s 115.41

Section 115 is essentially a source of power for the High Court to supervise the
subordinate courts. It does not, in any way, confer a right on a litigant aggrieved by any
order of the subordinate court to approach the High Court for relief. The scope for
making a revision under s 115 is not linked with a substantive right.Language of s s 96 and
100 of the Code of Civil Procedure which deal with appeals can be compared with s 115. While
the former two provisions specifically provide for right of appeal, the same is not the
position vis-a-vis s 115. It does not speak of an application being made by a person
aggrieved by an order of subordinate court. As noted above, it is a source of power of the
High Court to have effective control on the functioning of the subordinate courts by
exercising supervisory power.42

An appeal is essentially continuation of the original proceedings and the provisions applied
at the time of institution of the suit are to be operative even in respect of the appeals. That
is because there is a vested right in the litigant to avail the remedy of an appeal. As was
observed in K Eapen Chako v. The Provident Investment Company (P) Ltd,43 only in cases where
vested rights are involved, a legislation has to be interpreted to mean as one affecting such
right to be prospectively operative. The right of appeal is only by statute. It is necessary
part of the procedure in an act ion, but the right of entering a superior court and invoking
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its aid and interposition to redress the error of the courts below. It seems to this
paramount right, part of the progress of the inferior tribunal.44 The appeal, strictly so
called, is one in which the question is, whether the order of the court from which the
appeal is brought was right on the materials which that court had before it.45 The right of
appeal, where it exists, as a matter of substance and not of procedure.46

22. Right of Second appealduty of High Court. It has been noticed by the Supreme
Court time and again that without insisting for the statement of such a substantial question
of law in the memorandum of appeal and formulating the same at the time of admission,
the High Courts have been issuing notices and generally deciding the second appeals
without adhering to the procedure prescribed under s 100, Code of Civil Procedure. It has
further been found in a number of cases that no efforts are made to distinguish between a
question of law and a substantial question of law. In exercise of the powers under this
section, the findings of fact of the first Appellate Court are found to have been disturbed.
It has to be kept in mind that the right of appeal is neither a natural nor an inherent right
attached to the litigation. Being a substantive statutory right, it has to be regulated in
accordance with law in force at the relevant time. The conditions mentioned in the section
must be strictly fulfilled before a second appeal can be maintained and no court has the
power to add to or enlarge those grounds. The second appeal cannot be decided on merely
equitable grounds. The concurrent findings of facts, howsoever erroneous, cannot be
disturbed by the High Court in exercise of the powers under this section. The substantial
question of law has to be distinguished from a substantial question of fact.47

Where the findings arrived at by the first Appellate Court affirming the judgment of the
Trial Court was found by the High Court as neither cryptic nor based on non-
consideration of arguments advanced by parties, it was held by the Supreme Court that the
approach of the High Court was in compliance of the code and as such the judgment was
not liable to be set aside.48

23. Interference of High Court in Second Appealwhen improper. Where a plea was
never raised in the lower courts nor such matter arose for consideration in the suit or in
the appeal and neither any evidence was recorded on this aspect of the matter, nor were
the courts called upon to record a finding on that question, in such a legal and factual
position, the Supreme Court found no justification for the High Court to interfere in
appeal and modify the decree of the courts below on a question which did not arise for its
consideration.49

Where the question formulated by the High Court were neither questions of law nor
substantial questions of law, it was held by the Supreme Court that the High Court went
into a dangerous area of appreciation of evidence on the basis of non-existent substantial
questions of law. It was further held that in the absence of pleadings, the High Court
gravely erred in finding out an entirely new case on the basis of unpleaded facts and non-
existent rights. Hence the judgment of the High Court was set aside.50
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In an appeal filed by the Food Corporation of India against the order passed against it for
alleged disobedience of interim direction by High Court to deposit rent in Court, the High
Court disposed the appeal summarily on the assumption that the appellant was trying to
challenge only the order of interim direction in appeal against the alleged disobedience. It
was held by the Supreme Court that the High Court did not even bother to refer to the
facts and merits and did not ensure that its process were not misused and abused by the
respondent. As such the order of the High Court was set aside.51

Where the High Court proceeded on totally untenable premises and recorded findings
which were contrary to materials on record, the directions issued by the High Court was
held to be indefensible and liable to be set aside.52

24. Court feeinterest accrued up to decree to be included. Going by s 52 of the Court

Fees and Suits Valuation Act, 1958, the court fee payable in any appeal shall be the same as
the fee that would be payable in the court of first instance on the subject matter of the
appeal. Explanation (3) to s 52 says that in claims which include the award of interest
subsequent to the institution of the suit, the interest accrued during the pendency of the
suit till the date of the decree shall be deemed to be part of the subject-matter of appeal
except where such interest is relinquished. The instant second appeal is obviously directed
against the decree of the lower Appellate Court under which, as on the date of that decree,
the appellant is obliged to pay interest from date of the trial court decree till date of the
Appellate Court decree also.53

25. Legal Representatives of Deceased Partiesnot brought on recordeffect. Where,

undisputedly, the legal representatives of neither of the parties were brought on record in
the second appeal, the decree passed by the High Court in favour of the party who was
dead and against a party who was also dead was obviously a nullity as the second appeal
stood abated.54

However, failure to bring the legal representatives of a deceased would not be fatal to the
suit in all circumstances. Thus, where judgment was delivered in a mortgage suit after the
death of one of the mortgages, it was held by the Supreme Court that setting aside the
entire judgment for not bringing the entire body of legal heirs and legal representatives of
the deceased on record would be too technical view when some of the legal heirs of the
deceased were already on record.55

It was further held in the above case that the suit for redemption cannot be said to be not
maintainable because of non-impleadment of married daughters of the deceased
mortgagee, when one of the daughters was already dead and the other was neither in
occupation of the suit premises nor resided with the mortgagee at the time of his death.
More so when two sons of the mortgagee were already on record and representing the
estate.56
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26. Recalling of judgment in second appeal by High Court on technical ground and
later on confirming itvalidity. The High Court allowed second appeal by an order made
on 9 March 1985 and the judgment and decree passed by the first Appellate Court was set
aside and it was held that the appellant, as a co-owner of the suit land, is entitled to the
relief claimed for recovery of possession over the entire suit land. Subsequently, the order
made on 9 March 1995 allowing the second appeal was recalled on the technical objection
of non impleading of legal representatives of one of the parties and the appeal was posted
for fresh hearing. On 17 November 1997, the High Court finally disposed of the appeal
after referring to the judgment dated 9 March 1995 by stating that it concurs with the
earlier order, but gave certain additional reasons.57

The order of High Court did not find favour with the Supreme Court, which was of the
view that if all the parties had not been present who could have been impleaded, then the
judgment rendered thereto will not be one which was decided in the presence of all the
parties. Therefore, when the earlier order dated 9 March 1995 was recalled, the entire
judgment stood upset and it is no longer available for the learned judge either to concur or
accept that reasoning.58

27. Substitution of opinion of first Appellate Court by Second Appellate Court. The
High Court cannot substitute its own opinion for that of the first Appellate Court unless it
finds that the conclusions drawn by the lower court were erroneous being (1) contrary to
the mandatory provisions of applicable law, or (2) contrary to the law as pronounced by
the Supreme Court; or (3) based upon inadmissible evidence or no evidence.59

In a suit for specific performance of contract of sale, which was decreed by the trial court
and the first Appellate Court, interference by the High Court in second appeal without
analysing evidence and without giving reasons for holding view contrary to those of the
courts below. If the trial court had opportunity to observe the demeanour of witnesses,
this cannot be a ground to hold that the first Appellate Court had pre-conceived notion.60

28. First Appellate Courtnot countering reasoning of trial Courteffect. In several

judgments,61 it has been held that the first Appellate Court, which, even though a court of
fact, has to counter the reasoning recorded by the trial court for disagreeing with its
findings. If the first Appellate Court has not specifically countered the reasoning of the
trial court while coming to a different conclusion, that alone cannot be a ground for
acceptance of the second appeal. No doubt, the High Court is not supposed to go into the
question of fact, but in a situation like this where the first Appellate Court has failed to
discharge its duty of countering the reasoning of the trial court, the High Court, while
exercising its power as second Appellate Court, can look into and reappraise the entire
evidence with a view to satisfying itself whether the trial courts reasoning justified its
finding or whether the first Appellate Court was right in coming to a conclusion different
from that of the trial court.62
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29. Order of Lower Appellate Court admitting/ rejecting additional evidence. The
order of the lower Appellate Court admitting/rejecting additional evidence can be
questioned in an appeal from the appellate decree. The High Court ordinarily would not
interfere with the discretion of the lower Appellate Court in admitting or refusing to admit
the additional evidence unless such court has not exercised its discretion in a judicial
manner or in accordance with law.63 But finding of the first Appellate Court rejecting the
application for additional evidence is not binding in second appeal.64

The Privy Council in Parsotim Thakur v. Lal Mohar Thakur,65 while observing that the
provisions of s 107 as elucidated by O 41, r 27 are clearly not intented to allow litigant,
who has been unsuccessful in the lower court, to patch up the weak parts of his case and
fill up omissions in the court of appeal, has observed as follows:

Under cl. (1)(b) it is, only where the Appellate Court requires it, (i.e., finds it needful) that additional evidence can be admitted. It may
be required to enable the court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that
requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not
whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands some
inherent lacuna or defect becomes apparent.

A Constitution Bench of the Supreme Court in Venkataramaiahs case,66 while reiterating the
above-mentioned observation of the privy council, pointed out that the Appellate Court
has the power to allow additional evidence not only if it requires such evidence to enable it
to pronounce judgment but also for any other substantial cause.

In North Eastern Railway Administrations case,67 it has been observed as follows:

There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and
so, it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of
justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus,
the question whether looking into the documents, bought to be filed as additional evidence, would be necessary to pronounce judgment
in a more satisfactory manner, has to be considered by the court at the time of hearing of the appeal on merits.

When an application for acceptance of additional evidence under O 41, r 27 of the code is
filed in appeal, the High Court is duty bound to dispose of the application one way or the
other. Thus, where a second appeal was disposed of while the petition under O 41, r 27
CPC remained pending, the case was remitted to High Court for deciding the application
first and then the appeal in accordance with law.68

30. Order of First Appellate Court appointing local Commissioner for effecting
partitionvalidity. In a suit for partition, the appeal was filed at the instance of the
appellant when the trial court dismissed the suit of the appellant (then plaintiff). But the
lower Appellate Court decreed the suit with the directions that the local commissioner
appointed by the trial court shall suggest mode of partition and that the possession of the
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parties shall not be disturbed unless it is essential for effecting the partition. The aforesaid
directions given by the learned lower Appellate Court is not without jurisdiction, and the
appellant cannot make grievance against the aforesaid directions and hence, second appeal
is dismissed.69

31. Scrutiny of Evidence. While scrutiny of evidence does not stand out to be totally
prohibited in the matter of exercise of jurisdiction in the second appeal and that would, in
our view, be too broad a proposition and too rigid an interpretation of law not worthy of
acceptance. But, that does not also clothe the superior courts with jurisdiction to intervene
and interfere in any and every matter. It is only in very exceptional cases and on extreme
perversity that the authority to examine the same in extenso stands permissibleit is a rarity
rather than a regularity and thus in fine it can thus be safely concluded that while there is
no prohibition as such, but the power to scrutiny can only be bad in very exceptional
circumstances and upon proper circumspection. This is, however, without expression of
any opinion pertaining to s 100 of the Code of Civil Procedure.70

Though their Lordships in Jai Singhs case71 indicated that the said view is without
expression of any opinion pertaining to s 100 of the Code of Civil Procedure, but a series of
decision of the Supreme Court indicated that the power of judicial scrutiny is to be
exercised in case of perversity or in appropriate cases where it is found that the statutory
mandate was not followed. In view of such cases, it was also viewed that findings based on
surmises and conjectures or perverse findings not based on legally acceptable evidence
cannot have any impugnity from interference in the hands of the appellate authority.
Considering all these aspects, it is concluded that the finding of the first Appellate Court
deserves interference.72

32. Proof of Execution and cancellation of will. Where the Will has been proved as
duly executed, the fact of registration of the Will has been proved as the joint sub-registrar
had issued a certificate that the witnesses have appended their signature in his presence and
the thumb impression by the testator was also taken in his presence, these are findings of
facts of the courts below and do not raise any substantial question of law for interference
under s 100 of the Code of Civil Procedure.73 Where a pure finding of fact had been recorded by
the courts below where it had been held that the execution of the will had not been
proved, as neither its scribe nor its attesting witness has been examined and the Will was
surrounded by suspicious circumstances and was unnatural. These findings recorded by the
courts below regarding validity of Will are pure findings of fact, calling for no interference
in second appeal.74 The plea of execution of gift deed giving entire property to a party after
cancelling prior execution of will in favour of another person having been examined by the
courts below and finding of fact arrived at on the basis of evidence that no undue
influence was played upon donor/testator by the defendant and the gift deed was valid,
cannot be interfered in second appeal.75 The question whether a Will can be believed or
not is not a question of law. The High Court will not re-appraise the evidence to ascertain
whether Will should be believed or not.76 But when the trial court has recorded a specific
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finding that execution of the Will which is a registered document has been proved by
calling up attesting witnesses and the testator of the Will was in sound mental condition to
execute the Will and the Will was cancelled simply on the ground that there was unequal
disposition by the testator of the will, the cancellation of will is improper and it gives rise
to substantial question of law warranting interference in second appeal.77

33. Inadmissibility of question of facts. The language used in the amended section
specifically incorporates the words as substantial question of law which is indicative of the
legislative intention. It must be clearly understood that the legislative intention was very
clear that the legislature never wanted second appeal to become third trial on facts or one
more dice in the gamble.78 The basic law pertaining to second appeal as reflected by under
mentioned case-law79 is that if no substantial question of law would have emerged, the
findings of the first Appellate Court or concurrent findings of the courts below on the
question of fact cannot be interfered with in second appeal. Where in the case of alleged
oral partition, where the plaintiff claimed that he had purchased the suit property from one
son as it fell to his share, and the defendant claimed that he purchased same property from
another son as it fell to his share, such dispute had to be decided on basis of evidence on
record. Finding of fact recorded by Appellate Court that plaintiff failed to prove his claim
being pure finding of fact based on evidence on record should not be interfered with in
second appeal.80

The finding of first Appellate Court regarding the form of adoption in dispute is a finding
of fact which cannot be interfered in second appeal.81

The trial court and the first Appellate Court have noted that the plaintiff has not been able
to produce any deed of title directly lending support to his claim for title and at the same
time, the defendant too has no proof of his title, much less even an insignia of title. Being a
civil case, the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a
high degree of probability lending assurance of the availability of title with him would be
enough to shift the onus on the defendant and if the defendant does not succeed in
shifting back the onus, the plaintiffs burden of proof can safely be deemed to have been
discharged. In the opinion of the two courts below, the plaintiff had succeeded in shifting
the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff
had stood discharged. The High Court, in exercise of its limited jurisdiction under s 100 of
Code of Civil Procedure cannot enter into the evaluation of evidence afresh. Thus the
interference with a pure and simple finding of fact based on appreciation of oral and
documentary evidence, by the High Court, would not be proper.82

Thus, the quantity of the extent of requirement in a petition for bona fide need and necessity
has been held to be a question of fact not vulnerable in second appeal.83 The findings
about the mere wish or desire as opposed to need or requirement of the landlord, besides
the findings about the comparative hardship, a finding of questions of fact and the High
Court under s 100 of the Code of Civil Procedure in view of Mattu Lal v. Radhe Lal, 84 could not
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have interfered with such findings.85 The High Court was not justified in second appeal
under s 100, to interfere with the findings of facts unless there were facts established to
hold that the alternative accommodation acquired after the decree of eviction in favour of
the appellant was reasonably suitable.86 In a suit for declaration of easement of right of
passage, the concurrent finding by the trial court and the lower Appellate Court was that
the plaintiff failed to establish prescriptive easement or easement of necessarily or
easement by immemorial user. Such a finding is a finding of a fact and requires no
interference in second appeal.87

Similarly, where on the face of clear pleadings and the evidence on record, the High Court
reached a conclusion that there was no pleadings and evidence regarding dispossession,
therefore, the Supreme Court set aside the order of the High Court in accepting the
second appeal on the ground that there was no pleading and evidence regarding
dispossession and as such, suit for possession was incompetent.88

Where the High Court wrongly framed an issue whether appellant had purchased the
property and on appreciation of evidence reversing findings of facts recorded by the first
Appellate Court, it was held that the High Courts interference with the findings of the first
Appellate Court, which is the final court of facts, were unwarranted.89 The views of the
trial court were based on the misreading of the oral evidence. The lower Appellate Court
drew logical conclusion from circumstantial evidence and upset the findings of the trial
court. The interference drawn by the lower Appellate Court thereof, can not be said to be
merely based on conjectures and surmises. Such findings by the lower Appellate Court are
wholly findings of fact and can not be interfered with by the High Court in exercise of its
limited jurisdiction under s 100.90

In a suit for declaration of title and confirmation of possession on the basis of sale deed
executed by Karta of Joint Hindu Family, it was held by the Orissa High Court that
whether there is legal necessity to support an alienation is a question of fact and the courts
below having concurrently held that there was legal necessity in the family, there is no
scope for the High Court in second appeal to interfere with the finding particularly when
there is no perversity in the approach of the Courts below.91

A plea by the appellant that they are the tenant in the disputed property is a question of
fact, thus, they are debarred in a second appeal challenging the findings of the two courts
below on the factum of tenancy. This was the view of the Supreme Court in Raja Durga
Singh of Solan v. Tholu.92

In a matter relating to the execution of a will, the High Court ignored two important
suspicious circumstances, those being:
(i) the legatee took act ive part in the execution of the Will; and
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(ii) no provision was made in the Will for the two widows of the testator, when one of
whom, the appellant, was not even related to the legatee

The pious wish expressed by the deceased that it was expected of the legatee to look after
the welfare of the appellant was of no consequence. Had these two suspicious
circumstances been kept in mind by the High Court, that the finding of fact disturbed by
the High Court would not have occasioned in the totality of circumstances. Thus, the
decision of the High Court was upset.93

The concurrent finding of fact that out of the two sale deeds executed in respect of a
property, one is earlier in time and is genuine and valid. The findings are based on oral and
documentary evidence. Such a finding was not open to any challenge in second appeal.94
The concurrent finding as to the factum of adoption not having been proved, was not such
a one, which could not be arrived at in any view of the matter. This finding, therefore, was
unassailable in second appeal even under s 100 as it stood before 1976, and what was then
a restricted area for the second Appellate Court has now become almost a prohibited area
or no entry area under s 100 as amended in 1976.95 The findings of facts regarding
misrepresentation and fraud cannot be interfered with in second appeal.96

The entitlement of the plaintiff to receive damages from the defendants being an issue of
fact as concluded by both the courts, has not been shown to be in any manner illegal or
perverse. Hence, the said findings by both the courts below have to be upheld and the
High Court should not interfere with the finding of the facts.97

The findings on the questions of execution or entering into an agreement to sell, dated 18
June 1975 and that of possession are pure and simple concurrent findings of facts and it is
well-settled that while exercising s 100 of Code of Civil Procedure, the High Court is not
entitled to interfere with the findings of facts, however grossly erroneous it may be, except
in cases where it may be said to be vitiated by substantial error of law.1

In a suit for declaration, the original owner had executed a power of attorney authorising
the defendants to look after the house property. Defendants claimed that sale deed was
executed by the original owner on the same day the power of attorney was executed.
Admittedly, the original owner died after two years from the date of the alleged sale letter.

It was held by the Jharkhand High Court that the concurrent finding of fact that the
defendants have not perfected their title by adverse possession.2

M.Y. Eqbal, J., explained the point in the following words:

21 There is no pleading of the defendants/appellants that sale letter was executed on the
same day but after execution of registered power of attorney. Here interesting question
that comes to my mind is that if Mangal Khan agreed to sell the house property in favour
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of Most. Rajni then there was no occasion for executing registered power of attorney
instead of executing a registered sale deed. Be that as it may, admittedly Mangal Khan died
after two years from the date of alleged sale letter that is 02.09.1970. No evidence has been
adduced by the defendants either orally or documentary to show that after the execution of
sale letter any attempt was made by Most. Rajni to persuade Mangal Khan to execute a sale
deed so long as he was alive. Even after the death of Mangal Khan his heirs and legal
representatives were never informed by Most. Rajni about her continuation in possession
on the basis of alleged transfer by virtue of a sale letter. Not a single chit of paper has been
filed by the defendants/appellants to show that they were claiming hostile title in the suit
property.3 In view of the admission in the title deed obtained by the respondent himself
and a concurrent finding recorded by the courts below that the appellant has been in
possession, the injunction shall follow. Under these circumstances, the trial court and the
appellant court have rightly granted the perpetual injunction. The High Court is, therefore,
not right in reversing that finding.4

Where in a suit for declaration that plaintiff was adopted son, an entry in admission
register was put forth in evidence and while rejecting such evidence, a finding, in fact, was
given by lower court that the attestator identity was indicated in a different ink, it being a
factual finding, not falling into category of perverse conclusion, there would be no scope
for interfering with the conclusion.5

After considering the entire evidence on record, the court below have given a finding that
the marriage between the plaintiff and defendant no 1 had taken place in the year 1968 and
the marriage between defendant no 1 and defendant no 2 had taken place in the year 1978.
This is the concurrent finding of the fact which has become final, which could not be
subjected to the judicial scrutiny in second appeal.6

The Appellate Court considered the evidence elaborately and came to the conclusion that
the court cannot direct the husband to return it, since there is no evidence as to the fact
that the jewels were in the possession and custody of the husband when the wife left the
husbands house. This is purely a question of fact and in a second appeal the High Court is
expected only to consider substantial questions of law and since the final fact finding court
has found, on facts proved in the case, that the plaintiff is not entitled to recover the jewels
it is unjustified on the part of the High Court to interfere with that part of the judgment.7

The lower Appellate Court, before reversing the finding of the trial court on the issue of
bona fide requirement of the land lady for starting a cloth business, failed to read the entire
evidence and take into consideration all the documents placed before the trial court. In
such a situation, the High Court was justified in interfering of the finding of the first
Appellate Court.8

In an Orissa case, the first contentions related to a question of fact and the Appellate
Court as the final court of the fact having recorded the findings that the plain paper sale
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deed covers the suit land and such finding being not unreasonable, it is not permissible for
the appellant to contend in the second appeal that the suit land is not covered by the plain
paper sale deed.9 Where the trial court and the first Appellate Courts on the facts found
that the sale certificate which was the only piece of evidence relied on by the plaintiff, did
not clearly connect the property covered by the certificate with the suit premises, the High
Court is not justified in interfering with such findings of facts in second appeal.10

The conclusions about limitation is a finding of fact and it is not open for interference in
the second appeal.11

Where both the courts below, upon consideration of the evidence on record, have arrived
at the concurrent finding that the plaintiff, an illiterate lady, executed the disputed deed of
sale with necessary mental act of understanding the nature of the transaction. Such finding
of fact can not be interfered with in second appeal unless it is wholly absorbed or
materially vitiated by some consideration of evidence to the contrary.12

Once an appeal had been admitted on the substantial question of law, there was no
question of saddling it with any other subsequent conditions.13

No documentary evidence of title was available to prove that the suit lands belong to the
deity of the temple of the other village A and the mere fact that one of the co-trustees
belongs to a village A, was no ground to interfere with the findings that the land belongs
to the temple of the village M, in which they were situated. In this view, the findings
recorded by the courts below on the question of ownership of the said land to be perverse
and on that basis treated as if there was an error of law.14

The vendee proved the ingredients of good management and the concurrent finding of the
trial court and the first Appellate Court was that the impugned sale was an act of good
management and it was essentially a finding of fact. The High Court was, therefore, in
error in setting aside the concurrent finding of fact in the fact and circumstance of the
case.15 In the face of the findings recorded by the trial court as also by the lower Appellate
Court on the question of execution of sale deed by the second defendant in favour of the
plaintiff, with the further finding that it was a valid sale deed which properly conveyed the
title of the property in question to the plaintiff, it was not expected of the High Court to
set aside those findings merely on the ground that the circumstances which had already
been considered by the lower courts appeared to suggest some other conclusions from
proved fact.16 The first Appellate Court was a court of facts and it had every right to view
the facts from its own angle giving good reasons for its opinion. Simply because the trial
court had described a particular document as a manipulated one, the first Appellate Court
was not estopped from reopening that matter. Nothing was placed before the High Court
to infer any illegality in the approach of the courts below. Hence, there is no ground for
interference in second appeal.17
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The High Court rightly held that the finding of subletting or parting with possession of the
premises in dispute was vitiated in law as it was primarily based on inadmissible evidence.
Having found the finding vitiated, it was open to the High Court to re-examine and re-
appreciate the evidence on record.18 From this point of view, the High Court considered
the various figures and entries in the originals in which such erasures and entries are
alleged to have been made by the employee and therefore, the non-supply of these
documents has caused prejudice. Having examined the findings arrived at by the High
Court, it cannot be said that the High Court has committed any error which warrants
interference under Art. 136 of the Constitution.19

34. Finding of factwhen liable to be interfered in Second appeal. As discussed above,

the High Court, in its jurisdiction under s 100 is only to consider the question of law and
not interfere with the findings of facts arrived at by the courts below. At times, questions
which are suggested as substantial questions of law turn out to be only question of facts
which can not be interfered with by the High Court under normal circumstances.
However, it is settled law that the High Court can interfere in second appeal when finding
of the lower Appellate Court is based on misconception or not supported by acceptable
evidence.20

The position is well settled that when the judgment of the final court of fact is based on
misinterpretation of documentary evidence or on consideration of inadmissible evidence
or ignoring material evidence, the High Court, in second appeal, is entitled to interfere with
the judgment. The position is also well settled that admission of parties or their witnesses
are relevant pieces of evidence and should be given due weightage by courts. A finding of
fact ignoring such admissions or concessions is vitiated in law and can be interfered with
by the High Court in second appeal.21

Though the scope for interference with concurrent findings of fact while exercising
jurisdiction under s 100, Code of Civil Procedure is very limited, and re-appreciation of
evidence is not permissible where the trial court and/or the first Appellate Court
misdirected themselves in appreciating the question of law or placed the onus on the
wrong party, certainly there is a scope for interference under s 100, after formulating a
substantial question of law.22

While it is true that in a second appeal a finding of fact even if erroneous will generally not
be disturbed but where it is found that the findings stands vitiated on wrong test and on
the basis of assumption and conjectures and resultantly there is an element of perversity
involved therein, the High Court will be within its jurisdiction to deal with the issue. This
is, however, only in the event such a fact is brought to light by the High Court explicitly
and the judgment should also be categorical as to the issue of perversity vis--vis the concept
of justice. Needless to say however, that perversity itself is a substantial question worth
adjudicationwhat is required is a categorical finding on the part of the High Court as to
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perversity. The requirements stand specified in Section 103 and nothing short of it will
bring it within the ambit of Section 100 since the issue of perversity will also come within
the ambit of substantial question of law as noticed above. The legality of finding of fact
cannot be termed to be a question of law.23 When both the lower courts have concurrently
erred in not appreciating the oral and documentary evidence properly, the High Court is at
liberty to re-appreciate the evidence and record its own conclusion for reversing the orders
passed by the lower court.24

In a second appeal where there were concurrent finding of facts by the lower courts, the
interference by the High Court was held to be justified by the Supreme Court when there
was error as to the onus of proof.25 H.S. Bedi, J., speaking for the Supreme Court Bench in
the above case observed as follows:

The High Court has also rightly observed that there was no presumption that the property owned by the members of the Joint Hindu
Family could a fortiori be deemed to be of the same character and to prove such a status it had to be established by the propounder
that a nucleus of Joint Hindu Family income was available and that the said property had been purchased from the said nucleus and that
the burden to prove such a situation lay on the party, who so asserted it.26

In the above decision, the Supreme Court quoted with approval from its earlier decision in
D.S. Lakshmaiah v. L. Balasubramanyam,27 wherein it has been observed as under:

18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence
of a joint Hindu Family. The one who asserts has to prove that the property is a joint family property. If, however, the person so
asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the
property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the
property with his own funds and not out of joint family nucleus that was available.

Pasayat, J., speaking for the Supreme Court Bench observed as follows in Hero Vinoths
case.28It is now well settled that an inference of fact from a document is a question of fact.
But the legal effect of the terms or a term of a document is a question of law. Construction
of a document involving the application of a principle of law, is a question of law.
Therefore, when there is a misconstruction of a document or wrong application of a
principle of law while interpreting a document, it is open to interference under section 100,
CPC. If a document creating an easement by grant is construed as an easement of necessity
thereby materially affecting the decision in the case, certainly it gives rise to a substantial
question of law.

Under Section 100 of the code, the power of the High Court to interfere with the findings
of fact is limited, but it may not be limited in a case where the finding of fact had been
arrived at upon taking into consideration inadmissible evidence and based on
presumptions which could not have been raised.29 An appeal under s 100, Code of Civil
Procedure, can be entertained by the High Court only on a substantial question of law. There
can be no quarrel with this legal proposition. The scope of powers of High Court under s
100, Code of Civil Procedure is a matter of settled law. If the finding of the subordinate court
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on facts are contrary to evidence on record and are perverse, such finding can be set aside
by the High Court in appeal under s 100. The High Court cannot shut its eyes to perverse
findings of the courts below. In the present case, the findings of fact arrived at by the
lower Appellate Court were contrary to evidence on record and, therefore perverse, and
the High Court was fully justified in setting aside the same.30

On the question of interference in second appeal in cases of concurrent findings of fact,

the Supreme Court has observed as follows:

17. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule.
Some of the well recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the
courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden
of proof. When we refer to decision based on no evidence, it not only refers to cases where there is a total dearth of evidence, but also
refer to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.31

The Supreme Court further went on to observe in the above case,32 as follows:

9. It has been noted time and again that without insisting for the statement of such a
substantial question of law in the memorandum of appeal and formulating the same at the
time of admission, the High Courts have been issuing notices and generally deciding the
second appeals without adhering to the procedure prescribed under section 100 of the
Code. It has further been found in a number of cases that no efforts are made to
distinguish between a question of law and a substantial question of law. In exercise of
powers under this section in several cases, the findings of fact of the first Appellate Court
are found to have been disturbed. It has to be kept in mind that the right of appeal is
neither a natural nor an inherent right attached to the litigation. Being a substantive
statutory right, it has to be regulated in accordance with law in force at the relevant time.
The conditions mentioned in the section must be strictly fulfilled before a second appeal
can be maintained and no court has the power to add or to enlarge those grounds. The
second appeal cannot be decided on merely equitable grounds.Bona fide requirement, on a
first look, appears to be question of fact. But in recording a finding on the question, the
court has to bear in mind the statutory mandate incorporated in s 12 (1),33 if it is found
that the court has not applied the statutory provisions to the evidence on record in its
proper perspective then the finding regarding bona fide requirement would cease to be a
mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire
judgment. In such a case, the High Court cannot be faulted for interfering with the finding
in exercise of its second appellate jurisdiction under s 100 of the Code of Civil Procedure.34

When the second appellate judge was able to indicate and highlight the serious infirmities
and illegalities committed by the learned trial judge as well as the first appellate judge, and
the necessity for his interference to prevent total miscarriage of justice, with convincing
reasons, the findings recorded by the trial court as well as the first Appellate Court were
shown to be not only vitiated due to perversity of reasoning but also due to surmises and
misreading of the materials on record. On a careful and critical scanning through the
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judgment in the second appeal, it could not be said that any findings of fact concurrently
recorded were mechanically interfered with without justification or by transgressing the
limitations on the exercise of jurisdiction under s 100, Code of Civil Procedure, the reasons
assigned by the learned judge in the High Court for the conclusions arrived at did not
suffer from any infirmity, warranting Supreme Court interference in appeal.35

When an admission by the defendant tenant in the reply notice in regard to the plaintiffs
title and the description of the plaintiff as owner of the property signed by the defendant
were not considered by the first Appellate Court while holding that the plaintiff had not
proved his title, the High Court interfered with the finding on the ground of non-
consideration of vital evidence and Supreme Court affirmed the said decision.36 That was
upheld in Jagdish Singh v. Nathu Singh37 with reference to a second appeal in 1978, disposed
of on 5 April 1991, Justice Venkatachaliah (as he then was) held:

Where the findings by the Court of facts is vitiated by non-consideration of relevant

evidence or by an essentially erroneous approach to the matter, the High Court is not
precluded from recording proper findings. Again in Sundra Naicka Vediyar v. Ramaswami
Ayyar 38 it was held that where certain vital documents for deciding the question of
possession were ignored, such as a compromise, an order of revenue Court relying on oral
evidence was unjustified. In yet another case in Mehrunissa v. Visham Kumari,39 arising out of
Second appeal of 1988 decided on 15-1-1996, it was held by Venkataswami J that a finding
arrived at by ignoring the second notice issued by the landlady and without noticing that
the suit was not based on earlier notices, was vitiated and the High Court could interfere
with such a finding. The second situation in which interference with findings of fact is
permissible is where a finding has been arrived at by the Appellate Court by placing
reliance on inadmissible evidence which if it was omitted, an opposite conclusion was
possible. In Sri chand Gupta v. Gulzar Singh, 40 it was held that the High Court was right in
interfering in Second Appeal, as has been held by Honble Supreme Court.41

If the High Court in second appeal finds that the conclusions of the trial court regarding
the genuineness of agreements for sale are based upon inadmissible evidence, or arrived at
without evidence, the High Court is certainly entitled to set aside the findings of fact
recorded by the trial court and the first Appellate Court.42

However, where there is no material to show that the conclusions arrived at by the first
Appellate Court was based on inadmissible evidence or that the findings arrived at are
perverse, it is impermissible for High Court to interfere in the findings of fact. Thus in a
suit relating to cancellation of sale deed, there was evidence to show that the sale deed was
executed by the transferor when he was suffering from alcoholic psychosis and there was
medical evidence to prove the fact and the sale deed also showed that valuable land was
sold for a paltry amount. Under these circumstances the Supreme Court restored the
findings of the first Appellate Court.43
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It has been held by the Calcutta High Court that under section 100 of the Code the power
of the Court while exercising the jurisdiction under second appeal is limited and the Court
will not disturb the concurrent finding of facts as a general principle of law but there are
exceptions to that principle, namely, where both the Courts below failed to appreciate the
oral and documentary evidence properly to reach their findings, which goes to the root of
the matter. In the above case the High Court placed reliance on the decision of the Apex
Court in Ramlal v. Phagua,44 wherein the trial court and the first Appellate Court wrongly
addressed the issue by not considering the evidence properly. The High Court in that case
interfered with the concurrent finding of fact by re-appreciating the evidence and the
Supreme Court affirmed the view taken by the High Court.45

In a case before the Supreme Court, there was divergence of views among Judges of the
Bench on the point whether the facts of the case called for interference on the findings of
fact. In that case, the plaintiff was allotted plot by corporation for setting up industry on
the condition of starting production within 2 years. On the failure of the plaintiff, the
Corporation resumed possession of the plot. The plea of the plaintiff that construction
was impossible because of H.T. Pole on the plot which was agreed to be removed by the
Corporation was accepted by the lower courts and confirmed by the High Court. While
Tarun Chatterjee, J. was of the view that the plaintiffs plea needs to be accepted,
Balasubramanyan, J., held the finding of fact was perverse. Ultimately the matter was
directed to be referred to larger Bench.46 No evidence is forthcoming from the either side
as to whether use of the passage in question was discontinued even before the plaintiffs
came into possession or before the defendants had acquired their plots of land. The fact
mentioned in the 30 years old document as to the right of user in a piece of land shall be
presumed to be correct in this case.47

Interference with the finding of fact arrived at by the first Appellate Court, as the final
court of fact, is barred under s 100 Code of Civil Procedure, but when such finding is based
upon non-appreciation of the conduct of the parties in proper perspective and
misapplication of the principles of law in declaring the deed void and collusive when such
deed is very vital, constituting the foundation of title, the High Court can interfere in
second appeal under s 100 Code of Civil Procedure.48 It can be said that non-consideration of
material aspects which are absolutely necessary for coming to a decision on a particular
point, is no doubt a substantial question of law which would depend upon facts and
circumstances of every case.49

There is no second opinion that concurrent findings shall be subjected to interference if

the same is vitiated due to perversity of the reasoning and also due to surmises and
misreading of the materials available on record.50

Where the finding by lower courts as to the facts of the case were not based on evidence, it
was held liable to be set aside.51
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Where the parties have placed their case before the courts and adduced evidence
documentary as well as oral in their support and the first Appellate Court perversely sets
aside the trial courts judgment, in the second appeal, the evidence could be re-assessed and
nothing prevents this court from doing so.52

Where the findings of the first Appellate Court were based upon certain facts which were
not called upon to be decided or were not the subject-matter of the suit and such findings
were also based on imagination and surmises and not based on legally acceptable evidence,
such findings were held not entitled to be sustained.53

Nature of construction, though a pure question of fact, non-application of test prescribed

in statute for reaching the conclusion, renders finding perverse and liable to be set aside in
appeal under s 100, Code of Civil Procedure.54

In a case from Tamil Nadu, the Supreme Court held that relief cannot be granted to a non-
appellant party to a suit. In a suit for declaration of title, decree was passed against the
State Government, but the State did not file appeal against the decree. It was held that the
decree cannot be interfered with in appeal filed by a private co-defendant.55

H.S. Bedi, J., speaking for the Bench in the above case explained it as follows:

In paragraph 16 of the judgment that we have quoted above, the High Court was
cognizant of the fact that it was perhaps over stepping its jurisdiction in the matter but
chose to circumvent the requirement of law in the belief that it was justified in doing so as
the plaintiff-appellant was attempting to swallow Government property. We are of the
opinion, however, that the State Government had accepted the judgment of the trial court
as no appeal had been filed by it. We accordingly allow the appeal set aside the judgments
of the first Appellate Court and the High Court dated 21st November, 1988 and 10th
January 2001 respectively and restore the judgment of the trial court.56 Where the law has
laid down in clear terms the types of alterations of conversions which would constitute a
material alteration and which alone could serve as the basis for an act ion under s 256 of the
Cantonment Act, it is incumbent on the courts in the process of justifying the act ion
proposed against the builder under the relevant provision of the Act to refer to those tests.
The findings of the courts below stand vitiated because of non-application of the tests
prescribed in law for arriving at a conclusion as to whether the basis for taking act ion
under s 256 of the Act was available to the authorities under the statute. Where, on
account of failure on the part of the courts below in applying the tests laid down in law
while arriving at a finding of fact, the findings so recorded by them are rendered perverse,
the question whether such finding of fact recorded by them without reference to the
statutory tests is sustainable in law would itself be a question of law and a substantial one
at that.57
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Where in a suit for declaration of ownership of land, no ownership to the land was proved,
and a cooperative society granted permissive possession of the land to the plaintiff and the
said society was not competent to grant the land, no limitation was either specified or
disclosed in averments in plaint, on these facts, the finding of fact recorded by lower
courts that the plaintiff had been in possession and enjoyment of land by adverse
possession against interest of government was found erroneous in second appeal.58

Where, separate possession of room was given by father-in-law to his daughter-in-law after
her marriage with his son, but the possession was continued by daughter-in-law even when
her relations with her husband were strained, and even after death of her husband, her
possession was thus hostile and open to true owner. The observation of the trial court that
possession of daughter-in-law cannot be adverse against her father-in-law is erroneous.
Further, the finding by the lower court that her possession would be adverse after death of
her husband is also erroneous. It was held by the High Court that possession of the
daughter-in-law on room was adverse against the owner.59

On the question of adopting proper approach by Court in relation to second appeals under
s 100 of the Code, a three-Judge Bench of the Supreme Court has observed as follows:

It is not within the do main of the High Court to investigate the grounds on which the
findings were arrived at, by the last court of fact, being the first Appellate Court. It is true
that the lower Appellate Court should not ordinarily reject witnesses accepted by the trial
court in respect of credibility but even where it has rejected accepted by the trial court, the
same is no ground for interference in Second Appeal when it is found that the Appellate
Court has given satisfactory reasons for doing so. In a case where from a given set of
circumstances two inferences of fact are possible, one drawn by the lower Appellate Court
will not be interfered by the High Court in Second Appeal. Adopting any other approach is
not permissible.60 Finding of fact arrived at without consideration of the entire pros and
cons of the case can be interfered with by this court in second appeal. The subordinate
judge, who decided the suit recorded the evidence. He had thus occasion to have a look at
the demeanour of the witnesses and form his own impressions about their truthfulness or
otherwise. The additional district judge should have gone after the weight of evidence. He
should not have picked up one sentence from here and one sentence from there in the
statements of the witnesses and then recorded a finding of fact. He should have gone
through the statements of the witnesses in their entirety and then formed his own
impressions about the probabilities or improbabilities of each others version. Appreciation
of evidence in a manner that it leads to miscarriage of justice would be an error of law,
which the High Court has the duty to correct at the appellate stage.61

Where, sale of immovable property took place and evidence of independant witnesses
established that vendor received balance consideration, the trial court gave the findings
accordingly. The first Appellate Court placed reliance upon statement of the handwriting
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expert but failed to consider evidence of independent witnesses and therefore, reversed the
finding of the trial court. The finding of the first Appellate Court being unsustainable is
liable to be set aside in second appeal.62

Where, in fact it appears that the lower Appellate Court, while deciding the appeal did not
care to even have a perfunctory glance at the record, which was available, in view of this,
the finding of fact recorded by the lower Appellate Court, would have to be held to be not
based on any evidence. Had the lower Appellate Court considered the evidence on the
record, a different conclusion would have been reached. When a finding of fact is recorded
on the basis of no evidence, the same would give rise to a substantial question of law as
envisaged under s 100, Code of Civil Procedure.63

There are two situations in which interference with findings of fact is permissible. The first
one is when material or relevant evidence is not considered which, if considered would
have led to an opposite conclusion. This principle has been laid down in a series of
judgments of this court in relation to s 100, Code of Civil Procedure, after the 1976
amendment.64

The Court (the first Appellate Court) is under a duty to examine the entire relevant
evidence on record and if it refuses to consider important evidence having direct bearing
on the disputed issue and the error which arises as of a magnitude that it gives birth to a
substantial question of law, the High Court is fully authorised to set aside the finding. This
is the situation in the present case.65 In a suit for specific performance of agreement to sell
property filed by prospective vendee, the trial court dismissed the suit since execution of
agreement was not proved. In the appeal, the Appellate Court reversed the trial courts
decision. The Appellate Court arrived at the finding without any evidence to sustain it and
on gross misappreciation of evidence, therefore, the High Court is entitled to set it aside in
order to do justice.66

Finding of fact arrived at by the courts below on no evidence or on gross misappreciation

of evidence can be interfered with in second appeal by the High Court, because it will be
also a substantial question of law whether a court of fact is entitled to return a finding of
fact which is not sustainable at all on the evidence on record and whether such a finding
shall be binding on the High Court in second appeal. Finding of fact arrived at
concurrently by the two courts below, if works havoc to the cause of justice, cannot be
allowed to be sustained.67

The Allahabad High Court, while explaining what constitutes a void agreement, said that
the plaintiff-vendor stated that the sale deed in question was got executed by the
defendant, his nephew, by misrepresenting it to be a document of security indemnifying
the defendant from repayment of the government dues. The element of fraud and
misrepresentation was obvious in pleadings itself. The facts were misrepresented to the
plaintiff by the defendant and taking plaintiff into his confidence and dominating him by
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his position as such, he got the fraudulent deed of sale executed. It renders deed as
voidable document. The Appellate Court, while tracking these issues had interpreted the
document to be a deed of gift without going into merits of evidence and attending
circumstances. The judgment of Appellate Court had directly and substantially affected the
right of parties and it has been rightly interpreted as substantial question of law. The
judgment of the Appellate Court was set aside and the sale deed cancelled.68 According to
the provisions of s 100 of the Code of Civil Procedure, in second appeal, this court has no
jurisdiction to interfere with the finding of the first Appellate Court without formulating
substantial question of law and cannot set aside the findings of the first Appellate Court on
re-appreciation of the oral as well as documentary evidence available on record, unless the
court finds that the findings of fact recorded by the first Appellate Court were perversely
based on misreading of evidence or based on no evidence.69

Thus, the position of law is very clear that as a rule, the High Court has no jurisdiction to
entertain a second appeal on the ground of an erroneous finding of fact, however, gross or
inexcusable the error may seem to be, or as a rule in second appeal, finding of fact should
not be disturbed, but if, they are based on no evidence or in disregard of evidence or on
inadmissible evidence or against the basic principles of law or on the face of it there
appears error of law or procedure or when there is a complete variance between pleadings
and proof, such findings can be disturbed.70

35. Finding of fact can be interfered in Letters Patent Appeal. Of course, it is not
open for the High Court to interfere with the concurrent findings of the two courts sitting
in second appeal. However, the Supreme Court in Asha Devi v. Dukhi Sao, 71 has held that it
will be open for the Letters Patent Bench to review and reverse the concurrent findings of
fact entered by the two courts. It was further held that the Letters Patent Appeal from the
judgment of a learned single judge in a first appeal, is not to be treated on a par with a
second appeal preferred under s 100, Code of Civil Procedure, and therefore, it cannot be held
that the Letters Patent Appeal can only lie on a question of law and not otherwise. In
Andalammal v. Rajeswari Vedachalam,72 it was held that the Letters Patent Bench has got
powers to review even the concurrent findings of fact and the whole case is left open
before the court.73

36. Substantial question of law: meaning of. The existence of a substantial is the sine
qua non for the exercise of the jurisdiction under the amended provisions of s 100, Code of
Civil Procedure.74

The jurisdiction of the High Court is now confined to entertain only such appeals as
involve a substantial question of law specifically set out in the memorandum of appeal and
formulated by the High Court. In so formulating, the section does not require the High
Court to set out reasons for doing so. Dealing with that expression contained in Art.
133(1) of the Constitution, the Supreme Court in Sir Chunilal Mehta & Sons Ltd v. The Century
Spinning & Mfg Co, 75 where the question involved was one as regards the interpretation of
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a managing agency agreement defined the expression substantial question of law to mean
one which is of general public importance or which directly and substantially affects the
rights of the parties and which has not been finally settled by the Supreme Court, the Privy
Council or the Federal Court,76 or which is not free from difficulty or which calls for
alternative views. In holding that the appeal involved a substantial question of law, the
Supreme Court observed that the question involved was one of construction of the
agreement which was not only one of law but that it was neither simple nor free from
doubt and was therefore a substantial question of law. Similarly, the High Court of Madras
has taken the view that where there is a point of law which is fairly arguable and where
there is room for difference of opinion on it or where the court has thought it necessary to
deal with that question at some length and discuss alternative views, the question would be
a substantial question of law.77 The view taken by the Bombay High Court in an earlier
case that a question of interpretation of a decree, though a complicated one, is not a
substantial question of law, was expressly dissented from in Sir Chunilal Mehtas case and is
therefore not a correct view.78 But once the Supreme Court has settled a question of
principle, its application to the facts of a case is not a substantial question of law.79 The
words substantial question of law do not necessarily mean that the question of law
involved must be of general importance. The condition is satisfied if there is a substantial
question of law between the parties.80 Misconstruing of evidence and act ing without
evidence is a substantial question of law between the parties.81 The amended provision to s
100 provides that an appeal will lie to the High Court by the appellate decree of the
subordinate court only if the High Court is satisfied that the case involves a substantial
question of law. Thus, according to the amended provision, the question of law could not
be ground for interference in the second appeal. The question of law should be a
substantial question of law. The expression substantial question of law can not be put in
straightjacket. It depends upon each of the case whether the substantial question of law
arises in the case or not.82 The substantial question of law has to be distinguished from
substantial question of fact. It is not within the domain of the High Court to investigate
the grounds on which the findings were arrived at, by the last court of fact, being the first
Appellate Court. The lower Appellate Court should not ordinarily reject witnesses accepted
by the trial court, in respect of credibility but even where it has rejected, the witnesses
accepted by the trial court, the same is not ground for interference in the second appeal
where it is found that the Appellate Court has given satisfactory reasons for doing so.

R.V. Raveendran, J., speaking for the Supreme Court Bench in the undernoted case,83 has
explained the meaning of substantial question of law in the following words:

9.1. Second appeals would lie in cases which involve a substantial question of law. The word substantial prefixed to question of law
does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to
impact or effect of the question of law on the decision in the lis between the parties. Substantial questions of law means not only
substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the
context of section 100, CPC, any question of law which affects the final decision in a case is a substantial question of law as between the
parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial
question of law.
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Explaining the point more explicitly, the Supreme Court went on to observe further as
follows:

Where there is a clear enunciation of law and the lower court has followed or rightly
applied such clear enunciation of law, obviously the case will not be considered as giving
rise to a substantial question of law, even if the question of law may be one of general
importance. On the other hand, if there is a clear enunciation of law by this court (or by
the concerned High Court), but the lower court had ignored or misinterpreted or
misapplied the same, and correct application of the law as declared or enunciated by this
court (or the concerned High Court) would have led to a different decision, the appeal
would involve a substantial question of law as between the parties. Even where there is an
enunciation of law by this court (or the concerned High Court) and the same has been
followed by the lower court, it the appellant is able to persuade the High Court that the
enunciated legal position needs reconsideration, alteration, modification or clarification or
that there is a need to resolve an apparent conflict between two view points, it can be said
that a substantial question of law arises for consideration. There cannot, therefore, be a
strait-jacket definition as to when a substantial question of law arises in a case. Be that as it
may.84 If the question of law termed as substantial question, stands already decided by a
larger bench of the High Court concerned or by the Privy Council or by the Federal Court
or by the Supreme Court, merely wrong application on the facts of the case would not be
termed to be a substantial question of law. Where a point of law has not been pleaded or is
found to be arising between the parties in the absence of any factual format, a litigant
should not be allowed to raise that question as a substantial question of law in second
appeal. The mere appreciation of fact, the documentary evidence or the meaning of entries
and the contents of the document cannot be held to be raising a substantial question of
law. But where it is found that the first Appellate Court has assumed jurisdiction which did
not vest, the same can be adjudicated upon in the second appeal, treating it as a substantial
question of law. Where the first Appellate Court is shown to have exercised its discretion
in a judicial manner, it can not be termed to be an error either of law or of procedure
requiring interference in second appeal.85

In P. Chandrasekharan v. S. Kanakarajan,86 Sinha, J., speaking for the Bench of Supreme

Court observed as follows:

when thus the courts below misread and misinterpreted a document of title read with the plan for the identification of the suit lands
whereupon the plaintiffs themselves relied upon, a substantial question of law arose for determination of the High Court in between the
parties to the suit.

Relying on several decisions of the Supreme Court, it was held by the Madhya Pradesh
High Court as follows:

16. The word substantial question of law has not been defined in the Code of Civil Procedure but the said expression has been used in the
Constitution. The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general
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public importance or whether it directly and substantially affects the right of the parties and if so whether it is either an open question in
the sense that it is not finally settled by the Supreme Court or by Privy Council or by Federal Court or is not free from difficulty or calls
for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining
the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law.87

In para 17 of the above judgment, the High Court has enumerated basic ingredients
constituting the substantial question of law although it has been stated that the list is not
exhaustive. Similarly in para 18 some instances are enumerated which cannot be said to be
a substantial question of law.88

It has been held by the Supreme Court that when there is misconstruction of document or
wrong application of a principle of law in construing a document, it gives rise to a question
of law.89

In another case the Supreme Court has held that consideration of irrelevant facts and non-
consideration of relevant fact would give rise to a substantial question of law. Also reversal
of a finding of fact arrived at by the First Appellate court ignoring vital documents may
also lead to a substantial question of law.90

The jurisdiction of the High Court in terms of s 100 of the code is limited. It can interfere
with the concurrent findings of two courts if any substantial question of law

arises for its consideration. Where a lady a sale deed executed by her as being vitiated by
misrepresentation, under influence, fraud and collusion on the part of her brother, it was
held by the Supreme Court that whether the respondent despite the fact that he was the
brother of the appellant was in a dominating position is essentially a question of fact per se
it does not give rise, to a substantial question of law.1 Under s 100, the High Court has the
jurisdiction to interfere only when a substantial question of law is involved and even then it
is expected that such a question shall be so framed although the court is not bound by that
question as the proviso indicates. There may be some other substantial questions of law
which may need decision and which can be so decided.2

The question concerning the sub-letting, assigning or parting with possession of the
premised premises by the tenant father to his son (both living together in the same
premises) and the nature of presumption that arises, are substantial questions of law,
regarding which a second appeal to the High Court may lie.3

The question, whether nationalised banks, obliged to charge interest as specified rate in
accordance with the circulars and directives periodically issued by the Reserve Bank of
India under the provisions of the Banking Regulation Act, 1949, can be taken out of the
provisions of the Usurious Loans Act, 1918 is a question of law. Where such question is
involved in a suit filed before court of small causes by a nationalised bank against an
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agriculturist, it being a question of law, appeal against the decree of the small causes would
be maintainable.4

When the courts below had not taken into consideration the effect of all the documents
such construction of documents being a question of law was open to be executed before
the High Court in the second appeal.5 The Patna High Court relying upon a judgment of
the Supreme Court in K Chelliah Servai v. M Muthu Sami Servai, 6 held the plea about the
limitation is a mixed question of fact and law. That need not be raised for the first time in
the second appeal without there being a factual foundation including pleading and
evidence.7 The question whether the Respondent is in possession of open land or not is a
pure question of fact and not of law much less a substantial question of law.8

The findings recorded regarding the appellant being not in adverse possession of the suit
property are findings of fact concurrently recorded by the court below after due
appreciation of evidence, therefore, on this ground also the appeal of the appellant must
fail as there is no question of law much less a substantial question of law which calls for
interference.9

After the amendment of 1976 a second appeal can be filed only if a substantial question of
law is involved in the case. The memorandum of appeal must precisely state the substantial
question of law involved and the High Court is obliged to satisfy itself regarding the
existence of such a question.10 As to what is a substantial question of law, Dr. Pasayat, J.,
speaking for the Bench of the Supreme Court in the above case, observed as follows:

11. To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must
have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned.
To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge
from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and
proper decision of the case.
An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of
the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and
involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.11

After setting aside the findings of fact the court had either to remand the matter to the first
Appellate Court for a rehearing of the first appeal and decision in accordance with law
after taking into consideration the entire relevant evidence on the records, or in the
alternative, to decide the case finally in accordance with the provisions of s 103 (b) of the
Code of Civil Procedure.12

If the courts below, fail in their duty to appreciate evidence and do not advert to vital
evidence, be it oral or documentary, the same would lead to the conclusion that they have
committed errors on substantial questions of law.13 Finding by first Appellate Court that
when horoscope is available, the fact that a different date is indicated in school record is of
no consequence is improper. Since first Appellate Court acted on irrelevant material i.e.,
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horoscope, and left out of consideration material that was relevant, i.e., school record, the
matter involves question of law. Thus second appeal cannot be dismissed on ground that
there was no substantial question of law involved.14

Where a suit for eviction was dismissed by the lower Appellate Court on the ground of not
being instituted before a particular date and the High Court found that the ground to be
not relevant to the issue of bona fide, it was held that the High Court rightly interfered
under s 100 of the Code of Civil Procedure.15

Second appeal was against decree in a suit for specific performance. Plea that suit was
barred by s 16 of the Specific Relief Act, 1963, was raised for the first time in second appeal. It
was held that the plea, being in respect of a question of law, may be allowed to be raised.16
The first Appellate Court came to a finding of possession in favour of the defendant
(reversing the decree obtained by the plaintiff in the trial court) merely by drawing an
interference from an unregistered Hukamnama executed in defendants favour by the
Muthawalli. It was held that it was substantial error of law, justifying interference in second
appeal.17

Revenue records are not documents of title. The question of interpretation of a document
which is not a document of title, is not a question of law.18 The construction of a basic
document of title or of a document which is the foundation of the rights of parties,
necessarily raises a question of law.19 The plaintiff, an illiterate woman who had been a
widow for 30 years was persuaded by her three daughters to execute a deed in respect of
all her property. Plaintiff (according to her version, wished to give the properties to them
after her death, but was made to sign a deed of gift inter vivos by fraud. She sued to get the
deed set aside, on the ground of fraud. She failed on the facts in the trial court, but
succeeded in the first Appellate Court, which accepted the plaintiffs factual version. The
first Appellate Court, while setting aside the deed on the ground of fraud, also held that as
attestation (which is required in the case of a deed of gift under Transfer of Property Act,
1882), had not been proved, the deed did not confer any rights on the donee. In second
appeal, the defendant (donee) argued that as the gift deed was void and could be ignored,
the first Appellate Court committed an illegality in setting it aside. It was held that the first
Appellate Court had not committed any manifest error in cancelling the gift deed.20 In a
second appeal against decree in suit for specific performance, a plea that the suit was
barred by s 16 of the Specific Relief Act, 1963, was allowed to be raised for the first time, as it
was a question of law.21 Where the lower courts recorded a concurrent finding that the
holding was vested in the Gaon Sabha and settled with the defendants, the case cannot be
remanded on the ground that the question of possession was not decided by the lower
courts.22

In an appeal arising out of a suit for specific performance of agreement for sale, the
question whether the plaintiff was willing and ready to perform his part of the contract
cannot be said to be a question of law. It was held by the Supreme Court that substantial
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question of law should be formulated relying on or on the basis of findings of fact arrived
at by the Trial Court and the first Appellate court.23

In interfering with the award of the district judge under the Land Acquisition Act, 1894, the
High Court adopted hypertechnical approach and upset the valuation without taking into
consideration the aforesaid evidence on record. In such circumstances, the High Court was
not justified in interfering with the assessment of the market value of the vacant land made
by the district court.24

37. Point in law, proposition of law and substantial question of law. A point of law
which admits of no two opinions may be a proposition of law but cannot be a substantial
question of law. To be substantial a question of law must be debatable, not previously
settled by law of the land or a binding precedent, and must have a material bearing on the
decision of the case, if answered either way, in so far as the rights of the parties before it
are concerned. To be a question of law involving in the case there must be first a
foundation for it laid in the pleadings and the question should emerge from the sustainable
findings of fact arrived at by court of facts and it must be necessary to decide that question
of law for a just and proper decision of the case. An entirely new point raised for the first
time before the High Court is not a question involved in the case unless it goes to the root
of the matter. It will, therefore, depend on the facts and circumstance of each case whether
a question of law is a substantial one and involved in the case, or not; the paramount
overall consideration being the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and impelling necessity of avoiding
prolongation in the life of any list.25

The first Appellate Court did not discharge the duty cast on it as a court of first appeal, the
High Court having noticed failure on the part of the appellant in not discharging the
statutory obligation cast on him by sub-s (3) of s 100 of the Code of Civil Procedure, on account
of the substantial question of law involved in the appeal having not been stated, much less
precisely, in the memorandum of second appeal. Ordinarily, an opportunity to frame such
question should have been afforded to the appellant unless the deficiency was brought to
the notice of the appellant previously by the High Court registry or the court and yet the
appellant had persisted in his default.26

As per settled law, the scope of exercise of the jurisdiction by the High Court in second
appeal under s 100 is limited to the substantial questions of law framed at the time of
admission of the appeal or additional substantial questions of law framed at a later date
after recording reasons for the same. It was observed in Santosh Hazaris case27 that a point
of law which admits of no two opinions may be a proposition of law but cannot be a
substantial question of law. To be a substantial question of law, it must be debatable, not
previously settled by law of the land or a binding precedent and answer to the same will
have a material bearing as to the rights of the parties before the court. As to what would be
the question of law involving in the case, it was observed that to be a question of law
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involving in the case there must be first a foundation for it laid in the pleadings and the
question should emerge from the sustainable findings of fact arrived at by the court of
facts and it must be necessary to decide that question of law for a just and proper decision
between the parties.28

What is a substantial question of law would certainly depend upon facts and circumstances
of every case and if a question of law had been settled by the highest court of the country,
that question, however important and difficult it may have been regarded in the past and
however large may be its effect on any of the parties, would not be regarded as substantial
question of law.29

Merely because of appreciation of evidence another law is also possible, would not
empower the High Court to assume jurisdiction by terming the questions as substantial
questions of law, the learned district judge has exercised his discretion as a first Appellate
Court in a judicial manner.30

38. Determining whether a question of law is substantial test for The proper test for
determining whether a question of law raised in the case is substantial would, be whether it
is of general public importance or whether it directly and substantially affects the rights of
the parties and if so whether it is either an open question in the sense that it is not finally
settled by the Supreme Court or by the Privy Council or by the Federal Court or is not free
from difficulty of calls for discussion of alternative views. If the question is settled by the
highest court or the general principles to be applied in determining the question are well
settled and there is a mere question of applying those principles or that the plea raised is
palpably absurd the question would not be a substantial question of law.31

If the question of law termed as a substantial question stands already decided by a larger
bench of the High Court concerned or by the Privy Council or by the Federal Court or by
the Supreme Court, merely its wrong application on the facts of the case would not be
termed to be a substantial question of law. Where a point of law has not been pleaded or is
found to be arising between the parties in the absence of any factual format, a litigant
should not be allowed to raise that question as a substantial question of law in second
appeal. The mere appreciation of the facts, the documentary evidence or the meaning of
entries and the contents of the document cannot be held to be raising a substantial
question of law. But where it is found that the first Appellate Court has assumed
jurisdiction which did not vest in it, the same can be adjudicated in the second appeal,
treating it as a substantial question of law. Where the first Appellate Court is shown to
have exercised its discretion in a judicial manner, it cannot be termed to be an error either
of law or of procedure requiring interference.32

Whether the trial court should not have exercised its jurisdiction differently is not a
question of law justifying interference.33
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39. Substantial question of law sine qua non for exercise of jurisdiction. The reading
of s 100 makes it abundantly clear that if the appeal is entertained without framing the
substantial question of law, then it would be illegal and would amount to failure or
abdication of the duty cast on the court. In a number of judgments it has been held by
Supreme Court that the existence of the substantial question of law is the sine qua non for
the exercise of jurisdiction under s 100 of the Code of Civil Procedure.34

Jurisdiction of the High Court under s 100, Code of Civil Procedure is limited to a substantial
question of law framed at the time of admission of the appeal or at a subsequent stage if
the High Court is satisfied that such a question of law arises from the facts found by the
courts below.35

It is obvious and clear that unless and until a substantial question of law is shown to have
been involved in the second appeal, there would not arise any question of interference by
the second Appellate Court against the order of the first Appellate Court and the judgment
and decree recorded thereof. Simply because some part of the procedural law has not been
specifically or precisely observed or fulfilled, this, ipso facto, would not lead to a justification
for interference in exercise of powers in second appeal in terms of the provision of s 100 of
the Code of Civil Procedure.36

40. Sub-section (3)Pleading of substantial question of law in appeal. It is expected of

the appellant to frame substantial question of law in the memorandum of appeal. Sub-
section (3) of s 100, Code of Civil Procedure states that: In an appeal under this section, the
memorandum of appeal shall precisely state the substantial question of law involved in the
appeal.37

41. Sub-section (4)Formulation of substantial question of lawearlier view. The failure

of the court to formulate the substantial question of law (while admitting the appeal) does
not mean that the appeal cannot be heard. Such failure is an omission by court. Litigants
cannot be penalised for it.38

42. Sub-section (4)Formulation of substantial question of lawcurrent position. After

1976 Amendment, the scope of s 100 has been drastically curtailed and narrowed down.
The High Courts would have jurisdiction of interfering under s 100, Code of Civil Procedure,
only in a case where substantial questions of law are involved and those questions have
been clearly formulated in the memorandum of appeal.39

It is trite law that under s 100 of the Code of Civil Procedure a High Court can entertain a
second appeal only if it is satisfied that the case involves a substantial question of law. Sub-
section (4) of s 100 provides that where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate that question. Sub-section (5)
stipulates that the appeal shall be heard on the question so formulated and the respondent
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shall, at the hearing of the appeal, be allowed to argue that the case does not involve such
question. The mandatory requirements of this provision of law have been totally flouted by
the High Court. The High Court has not indicated in the long judgment as to which was
the substantial question of law, if any, considered, nor has it formulated the substantial
question of law on which the decision in the second appeal was being given. The High
Court has proceeded as if it were deciding a first appeal against a decree in original
proceedings. On this ground alone, the judgment is liable to be interfered with in second
appeal.40 The setting aside of concurrent findings of the courts below in second appeal
without formulating substantial question of law is not proper.41 If a perusal of the
impugned judgment passed by the High Court does not show that any substantial question
of law has been formulated or that the second appeal was heard on the question, if any, so
formulated, the judgment in second appeal cannot be maintained and so, is liable to be set
aside.42

The following observation of the Supreme Court deserves particular attention in Basayya
Mathads case43:

This Court, in a series of decisions, has held that allowing a second appeal without framing substantial question of law is clearly contrary
to the mandate of Section 100, CPC vide:
(a) Gian Dass v. Gram Panchayat, village sunner Kalan and others, (2006) 6 SCC 271 [LNIND 2006 SC 545];

(b) Joseph Severance and others v. Benny Mathew and others, (2005) 7 SCC 667 [LNIND 2005 SC 724];

(c) Sasi Kumar and others, v. Kunnath Chellappan Nair and others, (2005) 12 SCC 588 [LNIND 2005 SC 821] : AIR 2005 SC
4395 [LNIND 2005 SC 821];
(d) Chadat Singh v. Bahadur Ram and others, (2004) 6 SCC 359;

(e) Kanhaiyalal and others v. Anup Kumar and others, (2003) 1 SCC 340;

(f) Civil Appeal No. 2836 of 2001 Town Planning Municipal Council v. Rajappa., Dated 8-1-2007 (Dr. Justice Arijit Pasayat and
Justice P. Sathasivam)
In view of the settled legal position and of the fact that the High Court has not adhered to the same, failed to formulate substantial
question of law thereby committed an error in allowing the second appeal. On this ground, the judgement and order of the learned
Judge in R.S.A. 105 of 1997 is liable to be set aside.

It is abundantly clear from the analysis of s 100 that if the appeal is entertained without
framing the substantial questions of law, then it would be illegal and would amount to
failure or abdication of the duty cast on the court. The existence of substantial questions of
law is the sine qua non for the exercise of jurisdiction under s 100 of the Code of Civil
Procedure.44

It has been observed by Supreme Court in several decisions that the High Court must
conform to the requirements laid down in sub-s (4) of s 100 Code of Civil Procedure,
formulation of such questions of law gives proper direction in which arguments have to be
advanced by the parties. The facts and the questions of law are also appreciated in correct
perspective.45
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Bare perusal of s 100 makes it clear that the High Court cannot proceed to hear a second
appeal without formulating the substantial question of law involved in the appeal.46

If perusal of the impugned judgment passed by the High Court does not show that any
substantial question of law has been formulated or that the second appeal was heard on
the question if any, so formulated, the judgment cannot be maintained by the Supreme
Court.47

The stipulation under s 100 of the Code of Civil Procedure as to the need to formulate a
substantial question of law and the failure to do so vitiate the adjudication itself.48 If the
parties were not informed of the substantial questions of law, if formulated, that arose for
consideration as required under s 100, so that they could address on such a substantial
question of law, this is a serious informative being contrary to requirement of s 100 of Code
of Civil Procedure.49 The Supreme Court has taken the view in several cases that in second
appeals, substantial question or questions of law must arise for consideration and the
appeals are to be heard on the substantial questions of law so formulated.50 It is not
permissible for the High Court to reverse the judgment of the lower Appellate Court
without formulating a substantial question of law.51 Merely because the High Court could
reach a different conclusion, would not give rise to a substantial question of law.52

43. Sub-section (4)Formulating points for consideration instead of substantial

question of lawpermissibility. Where, in second appeal, the substantial question of law
was not framed and the High Court did not frame substantial question of law. However,
for formulated points which arose for its consideration in second appeal were decided, the
interference by the High Court in second appeal, without framing substantial question of
law, would be improper.53

When the question of law formulated as substantial question of law in the instant case
cannot, in any way, be termed to be a question of law much less as substantial question of
law. The question formulated in fact is a question of fact. Merely because of appreciation
of evidence another view is also possible, would not clothe the High Court to assume the
jurisdiction by terming the question as substantial question of law.54

Where, the substantial question of law was not formulated by the High Court in second
appeal pertaining to suit for specific performance of contract, the only question framed
was whether agreement can be executed even after increase or decrease in land, covered
after consolidation, finding of the High Court in second appeal on the question framed
and on the finding of the fact as recorded by first Appellate Court was held improper.55

44. Sub-section (4)Formulation of substantial question of law at later stage. If at the

time of hearing, another substantial question of law comes into picture, the court can
frame it, but for that there are some limitations. The first limitation is that the question to
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be framed must be as substantial question of law. The proviso presupposes that the court
shall indicate in its order the substantial question of law which it proposed to decide even
if such substantial question of law was not earlier formulated by it. Thus, the existence of a
substantial question of law is sine qua non for the exercise of the jurisdiction under the
amended provisions of s 100. The second limitation is that such a substantial question of
law can be formulated at the initial stage and in some exceptional cases, at a later point of
time even at the time of argument stage, such substantial question of law can be
formulated provided the opposite party should be put on notice thereon and should be
given a fair or proper opportunity to meet out the point.56

Where, substantial question of law was not formulated at the time of admission of appeal
but after about 11 months of admission of appeal, and when counsel for appellants and
respondents were heard at length on each of the substantial questions of law, no party thus
suffered any prejudice by formulation of substantial question of law subsequent to
admission of appeal and therefore, second appeal was not liable to be dismissed on that
ground.57

The Supreme Court has held that the judgment of the High Court should only be set aside
on the ground of non-compliance of s 100 (4) of the Code if come prejudice is shown to
have been caused to the affected party by not formulating the substantial question of law.58
It has been observed in the case as follows:

In our Opinion, this Court should not take an over technical view of the matter fo declare that every judgment of the High Court in
Second Appeal would be illegal and void, merely because no substantial question of law was formulated by the High Court. Such an
over technical view would only result in remitting the matter of the High Court for a fresh decision, and thereafter the matter may again
come up before us in appeal. The judiciary is already over-burdered with heavy arrears and we should not take a view which would add
to the arrears.59

45. Proviso to Sub-section (5). The proviso to sub-s (5) of s 100 is applicable only when
any substantial question of law has already been formulated and it empowers the High
Court to hear, for reasons to be recorded, the appeal on any other substantial question of
law. The expression on any other substantial question of law clearly shows that there must
be some substantial question of law already formulated and then only another substantial
question of law which was not formulated earlier can be taken up by the High Court for
reasons to be recorded, if it is of the view that the case involves such question.60

When the second appeal has been admitted for hearing, any other substantial question of
law which is involved can be raised at the time of hearing. Keeping in view the provision
of law in the proviso to sub-s (5) of s 100, Code of Civil Procedure, hardly there can be any
dispute on that contention. But the same has to be accepted with a rider that in such a
circumstance the court has to be satisfied that the case involves such a question of law
which needs consideration and adjudication, even if not formulated as a substantial
question of law at the stage of hearing under O 41, r 11, Code of Civil Procedure.61
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Thus, where the judgment of the High Court did not show that any substantial question of
law has been formulated or that the second appeal was heard on the question, if any, so
formulated, the judgment of High Court cannot be sustained.62

Where the High Court did not deal with the substantial question of law formulated at the
time of admission, but proceed to frame new or additional substantial questions of law as a
subsequent stage without assigning any reason, it was held that the order was not proper.63
The jurisdiction of the High Court to entertain a second appeal under s 100 of the Code of
Civil Procedure after the 1976 amendment, is confined only to such appeals as involve a
substantial question of law, specifically set out in the memorandum of appeal and
formulated by the High Court. The proviso presupposes that the court shall indicate in its
order the substantial question of law which it proposes to decide even if such substantial
question of law was not earlier formulated by it. The existence of a substantial question of
law is thus, the sine qua non for the exercise of the jurisdiction under the amended
provisions of s 100 of the Code of Civil Procedure.64 It is not every question of law that could
be permitted to be raised in second appeal. The parameters within which a new legal plea
could be permitted to be raised, are specifically stated in sub-s 5 of s 100 of the Code of Civil
Procedure. Under the proviso, the court should be satisfied that the case involves a
substantial question of law and not a mere question of law. The reason for permitting the
substantial question of law to be raised, should be recorded by the court. Further,
(i) it is the duty cast upon the High Court to formulate the substantial question of law
involved in the case even at the initial stage; and
(ii) that in (exceptional) cases, at a later point of time, when the court exercises its
jurisdiction under the proviso to sub-s (5) of s 100 of the Code of Civil Procedure in
formulating the substantial question of law, the opposite party should be put on
notice thereon and should be given a fair or proper opportunity to meet the point.
Proceeding to hear the appeal without formulating the substantial question of law
involved in the appeal is illegal and is an abnegation or abdication of the duty cast
on court; and even after the formulation of the substantial question of law, if a fair
or proper opportunity is not afforded to the opposite side, it will amount to denial
of natural justice. The above parameters within which the High Court has to
exercise its jurisdiction under s 100 of the Code of Civil Procedure should always be
borne in mind.65

Where, after hearing the parties, the court is of the view that the substantial questions
formulated at the time of admission of the second appeal requires slight modification, it
was held by the Madhya Pradesh High Court that it was permissible in order to bring out
the controversy on the forefront in view of the provisions of sub-section (5) of Section 100
of the CPC.66

Where the order of the High Court shows that no substantial question of law was
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formulated or that the second appeal was heard on the question, if any, so formulated, it
was held by the Supreme Court that the judgment cannot be maintained. In this respect
the proviso to sub-s (5) of s 100 is applicable only when any substantial question of law has
already been formulated and it empowers the High Court to hear, for reasons to be
recorded, the appeal on any other substantial quiestion of law. The expression on any
other substantial question of law clearly shows that there must be some substantial
question of law already formulated.67

The Supreme Court has held that an order admitting a second appeal is neither a final
order nor an interlocutory/interim order. It does not amount to a judgment, decree,
determination, sentence or even order in the traditional sense. It does not decide any issue
but merely entertains an appeal for hearing.68

Explaining the application of sub-s (5) of s 100 CPC, Raveendran, J., speaking for the
Supreme Court Bench in the above case, observed as follows:

3. Sub-section (5) of section 100 CPC provides that a second appeal shall be heard on the substantial questions of law formulated by the
court. It also provides that the respondent, at the hearing of the second appeal, can argue that the case does not involve such questions.
Thus the substantial quiestions of law formulated by the High Court are not final, and it is open to the petitioner herein (who is
respondent in the pending appeal) to demonstrate during hearing that no substantial question of law arose for consideration in the case
and that the second appeal should be dismissed.69

46. Core issue. The main issue around which the entire case evolves is: whether the
agreement dated 5 July 1976 was a licence or a tenancy. This issue was there before the
trial court and the agreement was held to be a licence. It was there also before the lower
Appellate Court but it was not adjudicated upon. When the core issue is not adjudicated
upon, it results in a substantial question of law under s 100.70

47. Construction of document is substantial question of law. The second Appellate

Court has categorically stated that there is a substantial question of law between the parties
inasmuch as the construction of the documents and which the claim to property is made is
a substantial question of law. The construction of documents would be a substantial
question of law is now a well settled proposition. This proposition has been settled as far
back as the judgment of the Privy Council.71 It has since been reaffirmed by Supreme
Court in the case of Kochukakkada Aboobacker v. Attam Kasim, 72 and the case of Neelu
Narayani v. Lakshmanan.73 In the light of the aforesaid judicial decision, it can be safely held
that the question of construction of such documents itself is a substantial question of
law.74

The construction of a document by the court deciding the issues between the parties raises
a substantial question of law.75

48. Interpretation of documentwhen question of fact and when question of laws. It

is now well settled that an inference of fact from a document is a question of fact. But the
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legal effect of the terms or a term of a document is a question of law. Construction of a

document involving the application of a principle of law, is a question of law. Therefore,
when there is a misconstruction of a document or wrong application of a principle of law
while interpreting a document, it is open to interference under s 100, CPC. If a document
creating an casement by grant is construed as an easement of necessity thereby materially
affecting the decision in the case, certainly it gives rise to a substantial question of law.76

49. Two views. Where the Appellate Court, which is final court of fact, has accepted the
interpretation which is quite plausible and acceptable, sitting in second appeal, the said
judgment should not be interfered with where the interpretation of the lower Appellate
Court is one of the two possible interpretation.77

Merely because the High Court in second appeal could reach a different conclusion, would
not given rise to a substantial question of law.78 Merely because of appreciation of evidence
another view is also possible would not empower High Court to assume the jurisdiction by
terming the question as substantial question of law.79

While deciding a second appeal, it is not open to the Court to re-appreciate or re-assess the
evidence. Jurisdiction of Court in Second Appeal is confined to substantial question of law
only and, as such, the finding of fact is not open to challenge. It is well settled that where
two views are possible from the available evidence it is not open to the second Appellate
Court to set aside a finding because the other view would be more appealing.80

50. Mixed question of law and fact. Normally, the second Appellate Court should not
intrude into the question of facts. Though this is a basic principle of law, there is or cannot
be any rigid rule in this respect. In deciding a second appeal in proper prospective, the
second Appellate Court may have to enter into the questions of fact.81 Similarly, mixed
questions of fact and law cannot be permitted to be raised for the first time in second
appeal.82 It is not the practice of the Supreme Court to permit a mixed question of law and
fact to be raised for the first time before it.83 The reason given was that whereas in
determining a question of fact no application of any principle of law was involved in
finding either the basic facts or in arriving at the ultimate conclusion, in the case of a
mixed question of fact and law the ultimate conclusion has to be drawn by applying
principles of law to the basic findings.84 Accordingly, where the lower Appellate Court
found that the plaintiff and his predecessors were not Hindu sanyasis and therefore were
incompetent to assume the office of the mahant for the reason that they had not performed
the requisite ceremonies and had not uttered the required mantra, the factual part of the
finding, that is, the non-performance of the ceremony and the omission to utter the mantra
was a finding of fact, but the ultimate conclusion therefrom was a question of law.85 Thus,
the question whether possession is adverse or not is often one of simple fact, but it may
also be a conclusion of law or a mixed question of law and fact. Where the question of
adverse possession is one of simple fact, no second appeal will lie; but a second appeal will
lie from a finding as to adverse possession when such finding is a mixed question of law
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and fact depending upon the proper legal conclusion to be drawn from the findings as to
simple facts.86 The finding on question of readiness and willingness to perform contract is
mixed question of law and fact, if the findings of fact recorded by courts below was that
the plaintiff had failed to establish that he was ready and willing to perform his part of
contract, the setting aside of this finding by second Appellate Court without reappreciating
evidence is impermissible.87 Where the question in a suit was whether the defendant was
bound by a mortgage executed by his mother, and it was held that he was, their Lordships
of the Privy Council held that the findings was substantially one of law, and that it was,
therefore, open to question in second appeal. In the course of their judgment their
Lordships said:

The facts found (by the lower Appellate Court) need not be questioned. Even if, findings of
facts by courts below are wrong or grossly inexcusable, held, that by itself would not entitle
the High Court to interfere under s 100 in absence of clear error of law.88 It is the soundness
of the conclusions from them that is in question, and this is a matter of law.89

As stated by their Lordships of the Privy Council in another case, the proper legal effect of
a proved fact is essentially a question of law, at the High Court is, therefore, entitled to
interfere in second appeal.90

Discussing the true scope of the above observation, the Supreme Court has pointed out in
Sri Meenakshi Mills Ltd v. Commissioner of Income Tax, 91 that there is a distinction between a
pure question of fact and a mixed question of law and fact and that the observation
aforesaid had reference to the latter and not the former and went on to state:

In between the domains occupied respectively by questions of fact and of law, there is a
large area in which both these questions run into each other, forming so to say, enclaves
within each other. The questions that arise for determination in that area are known as
mixed questions of law and fact. These questions involve first the ascertainment of facts
on the evidence adduced and. then a determination of the rights of the parties on an
application of the appropriate principles of law to the facts ascertained. To take an
example, the question is whether the defendant has acquired title to the suit property by
adverse possession. It is found on the facts that the land is a vacant site, that the defendant
is the owner of the adjacent residential house and that he has been drying grains and cloth
and throwing rubbish on the plot. The further question that has to be determined is
whether the above facts are sufficient to constitute adverse possession in law. Is the user
continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding
whether the defendant has acquired title by adverse possession, the Court has firstly to find
on an appreciation of the evidence what the facts are so far it is a question of fact. It has
then to apply the principles of law regarding acquisition of title by adverse possession, and
decide whether on the fact established by the evidence, the requirements of law are
satisfied. That is a question of law. The ultimate finding on the issue must, therefore be an
inference to be drawn from the facts found, on the application of the proper principles of
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law, and it will be correct to say in such cases that an inference from facts is a question of
law. In this respect, mixed questions of law and fact differ from pure questions of fact in
which the final determination equally with the finding or ascertainment of basic facts does
not involve the application of the proper principles of law. The proposition that an
inference from facts is one of law will be correct in its application to mixed questions of
law and fact but not to pure questions of fact.and summing up the result of the authorities,
the court stated:

(1) When the point for determination. is a pure question of law such as construction of a
statute or document of title, the decision of the Tribunal is open to reference to the court
under Section 66(1).

(2) When the point for determination is a mixed question of law and fact, while the finding
of the Tribunal on the facts found is final, its decision as to the legal effect of those
findings is a question of law which can be reviewed by the court.

(3) A finding on a question of fact is open to attack under Section 66(1) as erroneous in
law when there is no evidence to support it or if it is perverse.

(4) When the finding is one of fact, the fact that it is itself an inference from other basic
facts will not alter its character as one of fact.

Now to refer to the decisions wherein the question as to what are mixed questions of law
and fact has been considered; the question whether a transfer was made with intent to
defeat creditors within the meaning of s 53 of the Transfer of Property Act, 1882,92 or whether
the plaintiff has made out his title to the property in suit93 or whether a railway company
took as much care of the goods delivered to the company as a man of ordinary prudence
would under similar circumstances take of his own goods within the meaning of s s 151
and 152 of the Indian Contract Act, 1872,94 or whether the plaintiff is entitled to the
easement claimed by him,95 or whether property is ancestral or self-acquired,96 or whether
a tenancy is permanent,97 or

whether a shet-sanadi service inam is kadim or jadid,1 were held to be questions of law, and a
second appeal will lie to the High Court. It has been held by the High Court of Calcutta
that where from a certain set of facts a court infers a lost grant, the process is one of
inference of fact, and not of legal conclusion, and that it is not a ground for a second
appeal.2 The Allahabad High Court holds that negligence is a mixed question of law and
fact, and that a second appeal lies if it is shown that the court has approached the question
from a wrong stand-point, or that the evidence is such that there was no option but to
draw the converse conclusion or that the finding is vitiated by so some other legal defect.3
But the better opinion is that it is a pure question of fact.4

It has been held by the Supreme Court that whether the dedication of a temple is to the
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public or is private is a mixed question of law and fact,5 as also the question whether a
property is ancestral or not,6 or whether, when a raiyat purchased the interest of the
proprietor, there is a merger of the two interests.7

In a suit for permanent injunction, the questions of law formulated by the High Court in
second appeal were not pure questions of law, but mixed questions of law and fact, such as
whether there was oral gift and whether the alleged oral gift was valid. There were no
averments in the plaint in respect of any gift, oral or otherwise or about its validity.
Therefore the defendant had no opportunity of denying the same in the written statement
and consequently there was no issue in respect of them. It was held by the Supreme Court
that no amount of evidence or arguments can be looked into in absence of pleadings and
issues. The questions which could not be considered in the suit, could not also have been
considered in second appeal.8

Raveendran, J., speaking for the Bench in the above case, observed as follows:

27. We are therefore of the view that the High Court exceeded its jurisdiction under section 100 CPC, firstly in re-examining questions of
fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by
formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned juudgment of the
first Appellate Court which held that the plaintiffs ought to have filed a suit for declaration.9

Where the findings by the court of facts is vitiated by non-consideration of relevant

evidence or by an essentially erroneous approach to the matter, the High Court is not
precluded from recording proper findings.10 Where the inferences of the courts below are
perverse and it has reached an inference contrary to and/or based on misreading of
evidence on record, such errors can certainly be corrected by the High Court in the second
appeal.11 The question whether a female had acquired the right under s 14 of the Indian
Succession Act, 1925 and as such she became full owner hence, could not be divested of that
right is a question of fact which would require evidence to be decided.12 When the courts
below had rejected and disbelieved the evidence on the ground that the propounder had
not properly discharged his duty, it is the duty of the High Court to consider whether the
reasons given by the courts below were sustainable in law.13

It has been held in some cases that the question whether the relationship of landlord and
tenant subsists between the plaintiff and the defendant is a mixed question14 but in view of
the decision of the Supreme Court in Raja Durga Singh v. Tholu,15 the correctness of these
decisions is open to question. It has been held in Bhagat Singh v. Nikka, 16 that the question
whether a decree was obtained by fraud is one of law, as that is a matter of inference from
facts. But a number of decisions17 have laid down that fraud is a question of fact and this,
it is submitted, is the better view. It has been held in Bhattacharjee v. Sentinel Assurance Co, 18
that waiver is a mixed question of law and fact but the weight of judicial opinion is against
this view.19 Whether a patta requires to be registered has been held to be a mixed
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question,20 as also whether on the facts proved, a partner could be said to have abandoned
his interest in the firm or whether a partnership could be held to have been dissolved.21

51. Usage having the force of law. The words, usage having the force of law, mean a
local or family usage as distinguished from the general law.22

52. Custom. The Privy Council in Palaniappa v. Devasikamony 23 said that questions of the
existence of an ancient custom are generally questions of mixed law and fact. But in several
cases, the question of the existence of a custom has been referred to by the Privy Council
as a mere question of fact. Thus, when a custom of lineal primogeniture in an impartible
raj was pleaded, the Privy Council observed that the High Court was right in considering
the question as merely a question of fact.24 In another case, the existence of a custom
excluding females from inheritance was said by the Privy Council to be a question of fact.25
A step-brother alleged a family custom in derogation of the Mitakshara by which he was
entitled to an equal share with a brother of the whole blood and the judicial committee
observed that no evidence was forthcoming of any instance in which the custom was
followed and that the question involved was one of fact only.26 Again, the existence of a
custom by which a tenant was relieved of rent of land allowed to lie fallow, was said by the
Privy Council to be one of fact.27 A Full Bench of the Allahabad High Court has explained
that these cases are consistent, for while the prevalence of a practice is a question of fact,
yet the question whether the practice is legally binding is a question of law.28 Accordingly,
the same High Court has held that a finding that a custom which would displace the
operation of the personal law governing a Hindu widows right to succession has not been
established, is a finding of fact and cannot be reviewed in a second appeal.29 In Palaniappa
v. Devasikamony, 30 the Privy Council said that the judge must first find what are the things
act ually done in alleged pursuance of the custom and then decide whether these facts
satisfy the requirements of law. The first is a question of fact and the second is a question
of law. Thus, in a case where a mirasdars right under an alleged local custom was in
question, the Madras High Court held that findings as to what things were actually done in
alleged pursuance of the custom were questions of fact with which the High Court could
not interfere; but the inference as to the existence and the decision as to the validity of the
custom were matters of law subject to revision by the High Court in second appeal.31 The
Madras High Court made the same distinction in a case where the question was whether a
holding was transferable by a local custom;32 and so have the Allahabad33 and Bombay34
High Courts. In two cases, the Allahabad High Court has said that it will interfere if the
lower Appellate Court has act ed upon illegal evidence or evidence legally insufficient,35 but
this refers to the legal requirements necessary to establish a valid custom.36 In another case,
where a custom of Dharadhura was alleged in cases of alluvion and diluvion the Allahabad
High Court held that a wrong construction of wajib-ul-arz coupled with a wrong inference
from certain facts constituted an error of law which justified interference in second
appeal.37 As to certificates under s 41 (3) of the Punjab Court Act, 1918, in cases of
custom, see the undermentioned cases.38
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53. Refusal by court of first appeal to extend time for filing appeal. Where an
application is made to a court of first appeal to admit an appeal from the original decree
after the expiration of the period of limitation, that court has the power, on sufficient
cause being shown, to admit the appeal. If the lower Appellate Court refuses to admit the
appeal, holding in the exercise of its discretion that there was no sufficient cause for not
presenting the appeal within the prescribed time, there is no ground for a second appeal.
The principle is that where a court has exercised its discretion in a sound and reasonable
way, the High Court has no power to interfere in second appeal. But if the lower Appellate
Court does not exercise its discretion at all, or exercises it capriciously and arbitrarily, or
without proper legal material to support its decision, a second appeal will lie under cl (a) of
the section.39 In a matter decided by the Delhi High Court, the question about the
maintainability about a second appeal arose in view of the fact that there was a delay of 385
days in filing of an appeal by a public authority. A legal branch of the public authority was
conscious of the period of limitation and accordingly intimated the necessity of the
decision of filing the appeal being taken on priority basis. The officials, instead of filing the
appeal, decided to await the decision of other cases. In such a situation, the authority is not
only negligent but appearing to be lease, bothered about law of land; accordingly, the delay
was not condoned and appeal was dismissed.40 By reason of the dismissal of the appeal,
the appellant stands relegated to the position as was the original suit.41

54. Dismissal of first Appeal as barred by Limitationrevision and not second appeal
is remedy. The Supreme Court, in Kalavati v. Durga Prasad, 42 has observed with approval
the decision in Karasondos Dharamsey v. Gangabai, 43 holding that an order of the High Court
refusing to admit an appeal after the period of limitation expired would not be a decree
passed on appeal by the High Court and held that it is only where the appeal is heard and
judgment delivered thereafter, the judgment can be said to be a judgment of affirmance
and if appeal is not entertained on the preliminary ground that it was not maintainable or
for any other reason, the decision cannot be said to be decision in appeal. This judgment
of three judges of the Supreme Court was followed by a Division Bench of Karnataka
High Court in Kanji Moorarji v. SV Hegde, 44 by holding that dismissal of appeal on the
ground that it had abated against respondent, would not be a decision in appeal affirming
the decree of the trial court and would not be decree passed in appeal and hence, no
second appeal would lie and revision was maintainable. Full Bench of the Calcutta High
Court in Mamuda Khateen v. Beniyan Bibi, 45 held that order rejecting time barred
memorandum of appeal consequent upon refusal to condone delay is not a decree nor an
appealable order, however, such order is revisable. Same view has been taken by Madhya
Pradesh High Court in Ajit Singh v. V Bhagwan,46 Rajasthan High Court in Chhelaram v.
Manak,47 Orissa High Court in Ainthu v. Sitaram. 48 However, Full Bench of the Kerala
High Court took a contrary view in Thambi v. Mathew.49

The question as to whether dismissal of appeal consequent upon dismissal of application

for condonation of delay would amount to decree has been specifically considered and
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decided by the Supreme Court in Ratansingh v. Vijay Singh, 50 wherein after referring to
decree as defined in s 2 (2) Code of Civil Procedure in para 10, the Supreme Court has
observed as follows in para 11 and it would answer the question to be determined in this
reference:

In order that decision of a Court should become a decree there must be an adjudication in
a suit and such adjudication must have determined the rights of the parties with regard to
all or any of the matters in controversy in the suit and such determination must be of a
conclusive nature. If those parameters are to be applied then rejection of application for
condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as
time barred is also not a decree. We are aware that some decisions of the High Courts have
taken the view that even rejecting an appeal on the ground that it was presented out of
time is a decree within the meaning of the said definition. We are also aware of the
contrary decisions rendered by High Courts on the same point. Dealing with some of
those decisions a Full Bench of the Calcutta High Court (SP Mitra, CJ, Sabyasachi
Mukherjee, J. (as he then was and SK Datta, J) has held in Mamuda Khateen v. Beniyan Bibi,51
that if the application under Section 5 of the Limitation Act was rejected the resultant order
cannot be decree and the order rejecting the memorandum of appeal is merely an
incidental order. The reasoning of the Full Bench was that when an appeal is barred by
Limitation, the appeal cannot be admitted at all until the application under Section 5 of the
Limitation Act is allowed and until then the appeal petition, even if filed, will remain in
limbo. If the application is dismissed the appeal petition becomes otiose. The order
rejecting the memorandum of appeal in such circumstances is merely an incidental order.
We have no doubt that the decisions rendered by the High Courts holding the contrary
view do not lay down the correct principle of law.

In view of the above decision of the Supreme Court, the question for reference is
answered by holding that an order rejecting the memorandum of appeal following
rejection of application for condonation of delay in filing the appeal under s 5 of the
Limitation Act, 1963, would not be a decree passed in appeal and hence, second appeal
would not lie under s 100 Code of Civil Procedure and order would be revisable under s 115
Code of Civil Procedure. When once it is held that order dismissing appeal as barred by time,
is not a decree, the question of drawing a decree under O 41, r 35 would not arise and
mere drawing of decree in the prescribed form would not make such an order a decree and
any decree drawn pursuant to such an order is immaterial and would not debar the
aggrieved party to file revision.52

In view of the decision of the Supreme Court in Ratansinghs case as stated above, rejection
of an application for condonation of delay will not amount to a decree and consequently,
dismissal of an appeal as time barred is also not a decree. The answer to the question is
that no second appeal lies and the order would be revisable.53

55. Dismissal of appeal for default. Though a second appeal may lie from an appellate
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decree passed ex parte, no second appeal lies from an order dismissing an appeal for
default. Such an order is not a decree.5456. New case in second appeal. An appellant
should not be allowed to set up a new case in second appeal,55 nor should he be allowed to
raise a new issue not supported by the evidence on the record.56 An appellant would also
not be allowed to amend the plaint to convert for the first time in a second appeal, his suit
for redemption of a mortgage and possession of the mortgaged property into one for
possession based on paramount title.57

In a suit for declaration of title, the plea under the Easement Act had not been set up by
the defendant nor there was any foundation and material in the written statement as well as
oral evidence. The new plea of adverse possession cannot be considered by the High Court
sitting in second appeal jurisdiction to grant any relief to defendant.58

The observation of the court in the above case in para 24 of the judgment is worth
noticing:

It is also a settled law that plea of adverse possession is not sustainable when an alternative plea for retention of possession by operaton
of section 53 -A of Transfer of Property Act is made as a first plea by a plea of part performance of contract on basis of argument (sic).
Adverse possession plea being totally inconsistent with the second plea of retention of possession by operation of section 53 -A of
Transfer of Property Act.59

In a suit for declaration of title and injunction where no plea as to easementary rights were
raised, making out a new case and conversion of the suit into one for enforcement of
easementary rights and grant of injunction by the High Court was held to be improper by
the Supreme Court.60 Commenting on the manner in which the High Court dealt with the
second appeal, Raveendran, J., speaking for the Bench in the above case, observed as
follows:

16. The observation of the High Court that when a plantiff sets forth the facts and makes a prayer for a particular relief in the suit, he is
merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be
granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropreate in a civil
suit while proposing to grant a relief, a lesser or smaller version of what is claimed. But the said observation is misconceived if it is
meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer. It is fundamental that in a civil suit, relief to be
granted can be only with reference to the prayers made in the pleadings.61

57. New Plea/Objection as to question of fact in second appeal. An appellant will

not be allowed to set up, for the first time in second appeal, a plea not taken by him in the
lower court.62

Plea of bona fide purchaser in good faith from ostensible owner63 cannot be raised for the
first time in second appeal.64 In a