1)Q.

What is meaning of decree, what are the essential of decree , kind of decree, distinguish between a
decree and judgement.

Ans:- Decree Meaning: The word "Decree" is derived from the Latin term Decretum', which means an
order of the court having the force law and is binding on the parties, concerned.

Definition section 2(2) of the Code defines 'Decree' as follows:

"Decree" means the formal expression of an adjudic which, so far as regard the Courts expressing it
conclus determines the rights of the parties with regard to all or the matters in controversy in the suit
and may be either prelimes or final. It shall be deemed to include the rejection of plaints the
determination of any question within Section 144, but not include

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

b)any order of dismissal for default.

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

Essential Elements: To constitute decree, the following ingredient are to be satisfied.

i)There must be an adjudication

ii)Such adjudication must have been given in a suit.

iii)The adjudication must have determined the rights of the parties with regard to all or any of the matte
controversy in the suit.

iv)Such determination must be a conclusive determination

V)There must be formal expression of such adjudication.

i) Adjudication: To constitute 'decree', the dispute must have settled by means of an adjudication. The
word 'adjudication literally means "to settle judicially or settlement by judicial or judicial
determination":

ii)Suit: To constitute decree, the adjudication emination must have been given in a suit institute Judicis d
by an aggrieved party. The word 'suit' means, "a case filed/action instituted before the court of
competent jurisdiction seeking protection of right in dispute" It is not defined in the Code of Civil
Procedure, 1908. But in Hansraj vs. Dehradun-Mussoorie Electric Tramways Co. Ltd. (AIR 1933 PC 63 (64)
60 1A 13), the word 'suit ordinarily means and apart from some context must be taken to mean, "a civil
proceeding instituted by the presentation of a plaint. When there is no civil suit, there is no decree.
iii) Determination of Rights of Parties in Controversy: To constitute decree, the adjudication must be
with regard to determination of rights of the parties in respect of matters in controversy. The word
"rights' denote substantive rights and not the procedural rights. The word 'parties' refer to "parties to
the suit". The expression 'matters in controversy relates to "the subject matter of the suit".

iv) Conclusive Determination: To constitute decree, the determination /adjudication must be conclusive
ie. it must be complete and final as regards the court, which passed it (decree).

v) Formal Expression of Adjudication: To constitute decree, there must be formal expression of an

adjudication ie granting or refusing any relief claimed in the suit or appeal or other proceedings which
may conform to the decision of suit and embodied in a formal declaration of the Court. All requirements
of form must be complied with. Thus, if no decree has been drawn up, no appeal will lie from judgment.
The decree is to be drawn up in the terms of the agment. The mere misdescription of any decision as an
orde Order will not make it an order when it amounts to a decree.

Kinds of Decrees: Decrees may be classified under the following

heads

i)Preliminary Decree.

ii)Final Decree and

iii)Partly Preliminary and Partly Final Decree.

i)Preliminary Decree Where an adjudication decides the rights of the parties with regard to all or any of
the matters in controversy in suit but does not completely dispose of the suit it will be a preliminary
decree. Whether it completely disposes of the suit it is final decree.

A decree is preliminary when further proceedings have to be taken before the suit can be disposed of. It
declares the rights and liabilities of the parties. But the actual result will be worked out in further
proceedings. The court will determine only certain issues. Other questions will be determined at a later
stage. A preliminary decree can be passed in partition suit, suits for accounts etc.

The Code provides for the passing of preliminary decree in the

following classes of cases:

a) Suits for possession and for rent or mesne profits (0.20,R12)

b) Administration suits (0.20, R.13).

C) Suits for pre-emption (0.20, R.14).

D)Suits for dissolution of partnership (0.20, R.15).

E)Suits for accounts between principal and agent (0.20, R.16).

F)Suits for partition and separate possession (0.20, R18)

G) Suits for foreclosure of a mortgage (0.34, Rr.2, 3).

h)Suits for sale mortgaged (0.341, Rr.4, 5).

i)Suits for redemption of a mortgage (0.34, Rr.7. 8).

The above list is not exhaustive; there may be preliminary decrees in case not expressly provided for in
the Code.

ii) Final Decree : A decree is final when the adjudication disposes the suit completely. If all the matters in
the suit are decided, it is called final decree. Final decree will be depending upon the preliminary decree.
It is controlled by the preliminary decree. A decree can be partly preliminary and partly final.

A decree may become final in two ways:

1. the time for appeal has expired without any appeal being filed or the matter has been decided by a
decree of highest Court

2. When the decree, so far as regards the Court passing it, completely disposes of the suit.

It is in the latter sense that the words "final decree" are used. The appealability of a decree, therefore,
will not affect its character as a final decree.

Distinction between Preliminary Decree and Final Decree:

Preliminary Decree

Final Decree

1. Further Proceedings are to be taken before the suit can be completely disposed of.

1. Completely disposes the suit.

2. Determines only 'some' or any of the matters.

3. Ascertains what is to

2. Determines all the rights of the parties.

be done. 4. Independent decree.

3. States the result with

precision.

4. Dependant on the preliminary decree.

5. A step in a pending suit.

5. Executable decree.

6. More than one preliminary decree can be passed.

6. Only one final decree.

Partly Preliminary and Partly Final Decree : A decree may be partly preliminary and partly final. Thus
where in a suit for possession of immovable property with mesne profits, the Court

a) Decrees possession of the property, and

b) Directs an enquiry into the mesne profits;

the portion (a) is a final decree and the portion (b) is a preliminary decree.

2)Q. Discuss the essential of civil suit?

Ans-Essentials of Suit: To constitute suit, the following essential elements are to be satisfied.

i)Two parties or the two opposing parties.

ii)The subject matter in dispute.

iii)The cause of action and

iv)The relief claimed.

i) Two parties or the two opposing parties: In every suit, there must be two opposing parties namely, the
Plaintiff and the Defendant. In certain cases, there may be more than one plaintiff and more than one
defendant, where an act or transaction proceeds from two or more persons or it affects two or more
persons.

ii) The subject matter in dispute: The subject matter of a suit is the right or property claimed by the
plaintiff in the suit. The Court adjudicates upon the right of the parties with regard to the subject matter
in dispute.
iii) The cause of action: Every suit must have the cause of action. The cause of action means every fact,
which traversed it, would be necessary for the plaintiff to prove in order to support his right to the
judgment of the Court. It consists of essential facts, which have to be proved by the plaintiff to entitle
him to a decree of the Court. Thus the cause of action refers to the cause or the set of circumstances,
which leads upto a suit.

iv) The relief claimed: Every suit must contain the relief claimed by the plaintiff. The relief claimed
should be stated specifically in the plaint. It may be stated in the alternative also. The relief claimed by
the plaintiff must be one, which the court can grant. When a person is entitled to more than one relief in
respect of the same cause of action, he must sue for all the reliefs. He, however, may sue for one or
more of the reliefs available to him and can reserve his right, with the permission of the Court, to sue for
the remaining reliefs. If no such permission is obtained, he will be precluded from bringing any fresh suit
for any reliefs so omitted.

3)Q. Define term issue. How are the issue framed ? what are the consequences of failure to frame issue?
Cite case law. Kinds of issue ? object of issue? Materials of issue?

Ans- Introduction:-

Framing of issues is probably the most important part of the trail of a civil suit. For a correct and
accurate decision in the shortest possible time in a case, it is necessary to frame the correct and
accurate issues. Inaccurate and incorrect issues may kill the valuable time of the court.

Siddhi Chunilal vs. Suresh Gopkishan (2009(6) BCR 857)

In this case, it was observed that if correct and accurate issues were not framed, it leads to gross
injustice, delay and waste of the court’s valuable time in deciding the matter.

If defendant makes no defense, framing and recording issue by the Court does not arise, in such a case,
a Court need not frame and record issue in as much as the defendant makes no defense at the first
hearing of the suit.

What are the issues or definition of issues:-

Issues mean a single material point of fact or law in litigation that is affirmed by one party and denied
by the other party to the suit and that subject of the final determination of the proceedings.

When issues arises?-

Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other
party to the suit.
What are the material propositions:-
According to Rule 1(2) material propositions are those propositions of fact or law which a plaintiff must
allege in order to show a right to sue or a defendant must allege in order to constitute his defense.

Why issues are framed? (Object of framing of issues):-

The main object of framing issues is to ascertain the real dispute between the parties by narrowing
down the area of conflict and determine where the parties differ

Duty of the court:- The duty in relation to framing of the issue is that of the court which it has to
discharge because it has to try the suit and it has to give notice to parties to lead evidence with the
context of the issues framed.

Kinds of issues:-

As per the Order 14 Rule 1(4) of the C.P.C. issues are of two kinds.

A. Issues of fact

B. Issues of Law.

When issues are framed?:-

According to rule 1, issues are framed and recorded by the court at the first hearing after reading the
plaint, written statement, examining and hearing of parties and their pleaders.

Postponement of framing of issues?:-

Where the Court finds that the issues cannot be correctly framed without the examination of some
person not before the Court or without the inspection of some document not produced in the suit, it
may adjourn the framing of the issues to a future day (maximum of 7 days).

How issues are framed? Or What materials are required for framing of issues?:-

The issues may be framed by the Court from all or any of the following materials—

1.Allegations made on oath by the parties, or by any persons present on their behalf, or made by the
pleaders of such parties;

2. Allegations made in the pleadings or in answers to interrogatories delivered in the suit;

3.The contents of the documents produced by either party.

Amendment of issues framed:-

 Order 14 Rule 5, C.P.C. empowers the court to amend issues framed or frame additional issues at any
stage of proceedings and it does not consider that the power must be exercised when an application is
made on the other hand it saddles on the Court a duty to exercise power suo moto “for determining the
matters in controversy between the parties” if that was necessary to do so.

Conclusion:-

At last, with the concluding this article it can be said that the issues are very important not only for the
parties but also for the Court. Parties are required to prove or disprove the issues framed by the court,
not the pleading. On the other side, court is also bound to give decision on each framed issue.
Therefore, the Court is not to decide those matters on which no issues have been framed.

4)Q.Define Appeal. What are the essential elements of Appeal? Discuss right of Appeal, who may
appeal, kinds of Appeal, who cannot appeal, cross objection, cross appeal, power of Appellate Court,
Appeal from appellate decree. Distinguish between appeal and rivision ?

Ans – Meaning of Appeal – The expression “appeal” has not been defined in the Code. According to
dictionary meaning, “appeal” is the judicial examination of the decision by a higher court of the decision
of an inferior court.

Stated simply, appeal is a proceeding by which the defeated party approaches a higher authority or
court to have the decision of a lower authority or court reversed.

An appeal is a complaint made by the aggrieved party to a superior court contending that a decree
passed or an order made by an inferior court is illegal and should not be allowed to survive. It is a legal
recourse available to unsuccessful party to get the decree or the order of lower court set aside at the
hands of superior court.

Object of Appeal – The object of appeal is to provide an opportunity to the aggrieved party to show how
the decree passed by lower court is illegal. The purpose of appeal therefore is to rectify any possible
error.

Essential elements of appeal – Every appeal has three basic elements –

(i) A decision (usually a judgment of a court or the ruling of an administrative authority)

(ii) A person aggrieved (who is often, though not necessarily, a party to the original proceedings)

(iii) A reviewing body ready and willing to entertain an appeal.

Kinds of appeal – The appeals may be classified in two kinds’ viz., first appeal and second appeal.
First appeal – The appeal which arises from an original decree is known as first appeal. Original decree
means, a decree passed by a court in a suit in exercise of its original jurisdiction. Thus, first appeal is that
by which the appellant challenges an original decree passed by a court. Section 96 of the code of civil
procedure, 1908 deal with first appeal.

Second appeal – The second appeal is that which is filed against the decree passed by an appellate court
in first appeal. In other words, an appeal questioning the legality of the decree of an appellate court is
called second appeal. Section 100 of code of civil procedure, 1908 provides for second appeal.

Right to Appeal – A person cannot file an appeal from a decision as a matter of right. Right of appeal is
not an inherent right, unless it is clearly provided, an appeal cannot be filed. When it is conferred by a
statute, it with become a vested right. There is a distinction between right to file a suit and a right to file
an appeal. Right to file a suit is a right to file an appeal. Right to file a suit is an inherent right unless it is
barred by a specific statute. But right to file an appeal is not a vested right unless it is provided by law.

Who may appeal – An appeal may be preferred by any one of the following persons/parties having legal
grievance against a decision/judgment of a lower court –

(i) Any party to the suit adversely affected by the decree, or if such party is deal, by his legal
representative.

(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.

(iii) An auction purchaser may appeal from an order in execution setting aside the sale on the ground of
fraud.

No, person, unless he is party to the suit is entitled to appeal. However, a person who is not a party but
who is aggrieved by the judgment and if he seeks and gets leave of the court to prefer an appeal against
the judgment can also appeal.

Who can not appeal – If a party agrees not to appeal or waives his right to appeal, he cannot file an
appeal and will be bound by an agreement if otherwise such agreement is valid. Such an agreement,
however, must be clear and unambiguous whether a party has or has not waived his right of appeal
depends upon the facts and circumstances of each case. Similarly, where a party has accepted the
benefits under a decree of the court, he can be stopped from questioning the liability of the decree.

Cross – objection (Order 41, Rule 22) –

Meaning of cross – objection – Cross – objection is the objection taken by the respondent in an appeal.
The appeal is by the appellant against a respondent, the cross objection is an objection by a respondent
against the appellant. The cross- objection is like a cross – appeal except that it is not an independent
proceeding. It is the part of same record.

Who may file cross – objection – In a appeal, the cross – objection may be filed by the respondent if he

(i) Could have filed an appeal against any part of the decree, or

(ii) Is aggrieved by a finding of the court in the judgment, even if the decree is in his favour.

Against whom the cross objection may be filed – The cross objections may be filed by the respondent
against the appellant only. No cross objection are permitted against a person who is not the party to the
appeal.

When cross – objections may be fined – The provisions of Order 41 Rule 22

contemplates right to file cross – objection only when an appeal in filed and also when such appeal is
admitted by the appellate court and notice is issued on the respondent.

cross appeal – An appeal filed beyond the period of limitation may be treated as cross – objection under
order 41, Rule 22.

A cross – appeal may be treated as cross – objections only if such appeal is filed after the other appeal
and not if it is filed before that appeal.

Power of Appellate court – (Section 107) –

(1) Subject to such conditions and limitations as may be prescribed, an Appellate court shall
have power -

(a) To determine a case finally and to pass a decree. (Section 107 (1) (a), Rule 24)

(b) To remand a case and direct what are to be tried. (Section 107 (1) (b), Rules 23 & 23 – A)

(c) To frame and refer them for trial if the lower Court has omitted to frame or try any issue.
(Section 107 (1) (c), Rules 25 and 26)

(d) To take additional evidence which ought to have been admitted. (Section 107 (1) (d), Rules
27 to 29)

(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as
nearly as may be the same duties as are conferred and imposed by this code on courts of original
jurisdiction in respect of suits instituted therein.

Duties of Appellate Court – It should not, however, be forgotten that the powers of an appellate
court are not absolute or uncontrolled. The code also imposes certain duties on appellate courts and the
court has to decide appeals keeping in mind these duties. These duties are as follow –
a)Duty to decide appeal finally.

b)Duty not to interfere with decree with decree

c)Duty to reappreciate evidence, and

d)Duty to record reasons.

Appeal from appellate decree – (Order XL II), Rule 1 to 3) – The rules of order XLI shall apply to
the appeals from appellate decrees. The Court shall formulate the substantial question of law while
formulating such question; the court may direct that the second appeal be heard on the question so
formulated. It shall not be open to the appellant to urge any other ground in the appeal without the
leave of the court.

No further appeal in certain cases – (Section 100 – A) – Notwithstanding anything contained in

any letters patent for any High Court or in any instrument having the force of law or in any other law for
the time being in force of law or in any other law for the being in force, where any appeal from an
original or appellate decree or order is heard and decided by a single judge of a High Court, no further
appeal hall lie from the judgment and decree of such single judge.

Provision contained in section 100 – A – Section 100 – A expressly bars further appeal from the
judgment and decree passed by a single judge of High Court in any appeal. It says that if a single judge of
a High Court has heard and decided any appeal from an original decree or from an appellate decree or
from an order, there shall be no further appeal from the judgment and decree of such single Judge.

Procedure in appeals from appellate decrees and order: (Section 108) – the provisions of this
part relating to appeals from original decree shall, so far as may be, apply to appeals –

(a) From appellate decrees, and

(b) From orders made under this code or under any special or local law in which a different
procedure is not provided.

Provisions contained in Section 108 – This section says that the provisions relating to appeals
from original decree shall apply to appeals from appellate decrees and to the appeals from orders made
under this Code.

Differences Between Appeal and Revision

1) Legal right in Appeal Vs. Revision

The appeal is a constitutional right for an unsuccessful party in the court. Revision on the other hand is
discretion of the court, meaning it can take place or not.

2) Hearing in the court

The appeal is a court hearing like any other while revision is not necessarily heard in the court.
3) Type of court

According to the Civil Procedure Code, a request is handled by a superior court to the previous court so
it must not be a high court. A high court can only revise.

4) Power of interference

In appeals, the courts have the power to interfere in any way but in revision the influence of
intervention is limited.

5) Number of procedures in Appeal Vs. Revision

There is only one procedure involved in an appeal that is the hearing of the case. In revision, however,
two methods are included, preliminary and final.

6) Continuity

An appeal is a continuation of the court proceeding on a certain case while a revision is checking
whether the legal actions were followed in the proceedings.

5.Q.) Q. What do you mean by summons? what are the difference kind of purpose of summons? discuss
different mode of service of summons?

Ans:-Meaning – When the plaintiff files a suit, the defendant have to be informed that the suit has been
filed against him, and that he is required to appear in the court to defend it. The intimation which is sent
to the defendant by the court is technically known as “summons.”

Though the said expression (Summons) has not been defined in the Code, according to the
dictionary meaning, “A summons is a document issued from the office of a court of justice, calling upon
the person to whom it is directed to attend before a judge or officer of the court for a certain purpose.”

Type 1: Civil summons

A civil summons is a judicial summons given by one private person or entity to another private person or
entity to appear in court and respond to a petition filed in court.

This type of summons informs the defendant that there is a civil action taken against it and they must
show up in court to respond to the allegations.
Typically, a civil action involves a lawsuit claiming damages, compensation for a loss or injury or
injunction to force someone to do or not to do something.

Some examples of a civil lawsuit are:Breach of contract lawsuits Injunction Claim for money owed
Intellectual property infringement The civil summons needs to respect the civil court rules of procedure
of the court where the lawsuit has been filed.

Type 2: Criminal summons

A criminal summons is a type of judicial summons notifying someone to appear in a criminal court.

There are different types of summons issued in the context of criminal proceedings, some are issued by
a peace officer or police and others by the prosecutor.

For example, a citation, traffic summons or notice to appear are all different types of summons in law
related to a criminal-type of proceedings. In some jurisdictions, a criminal proceeding may proceed by
summary conviction, indictable offense or dual offenses.

Criminal summons can be issue in cases like:

Trespassing

Armed robbery

Assault

Murder

Driving under the influence of alcohol (DUI)

The criminal summons served to you will outline the nature of the accusations against you and the
criminal court calling you.

Type 3: Administrative summons

Administrative summons is another type of judicial summons issued by an administrative body

authorized in law to handle a specific type of investigation or legal matters.

For example, every jurisdiction will have a tax authority in charge of handling all matters related to
taxes.Your tax authority may have the power to issue a summons for you to appear and provide
information related to your taxes.

Administrative summons can be issued by different types of administrative courts such as:

i)Tax court

ii)Immigration court
iii)Labour courts

iv)Professional code .

Modes of service of summons: Rule 9 – 30:-

The service of summons is of primary importance as it is a fundamental rule of the law of procedure
that a party must have a fair and reasonable notice of the legal proceedings initiated against him so that
he can defend himself. The problem of service of summons is one of the major causes of delay in the
progress of the suit. It is common knowledge that defendants try to avoid service of summons.

The Code prescribes five principal modes of serving a summons to a defendant –

a)Personal or direct service: Rule 10-16,18.

b)Service by court: Rule 9.

c)Service by plaintiffs: Rule 9-A.

d) Substituted service: Rule 17, 19-20,

e) Service by post.

6.Q.) What is Review and its grounds under Section 114 and Order 47 of the CPC.

What is review ? on what ground a review is allowed? discuss the procedural aspect of review?

Ans:_introduction:-

As per the general rule, once the judgment signed and pronounced by the court it becomes functus
officio, (case to have control over the matter) and it cannot be altered or changed. The provision of
Section 114 and Order 47 are relating to a review or the exception of the general rule.

The code provides the substantive right of the review under

section 114 and the procedure thereof under Order 47. As a substantive right, it has to be conferred by
the law, either expressly or by necessary implication. As a procedural provision, every Court or Tribunal
can correct an inadvertent error which can be corrected ex debito justitae (to prevent the abuse of
process of court).

Meaning of review:- As per the black law dictionary, review means to reconsider, to look again or to re-
examine. But in the legal parlance, it is a judicial re-examination of the case by the same court and by
the same judge. In certain circumstances, a judge reviews an earlier order passed by him, called review.

Object of review:-
 Actually, the doctrine of review is the acceptance of human fallibility. The main object of review is, if
there is an error due to human failing, define that mistakes or error to prevent the miscarriage of justice
and to defeat justice. Because justice is above all.

Who may apply?:-

Section 114 says that any person aggrieved by a degree or order may apply for a review of a judgment.
Here, “person aggrieved” means the person who has suffered legal grievance or against whom a
decision has been pronounced which has wrongfully deprived him of something or wrongfully refused
him something or wrongfully affected his title to something.

The power of review can be exercised by the court on an application by the aggrieved person, not by
the suo motu action.

Grounds for review:- There are many grounds on which an application for review of a judgment may
be made which are as follows:-

1)Discovery of new and important matter or evidence; or

2)Mistake or error apparent on the face of the record; or

3)Any other sufficient reason.

Let us consider the above-stated Grounds in detail:-

1. Discovery of new and important matter or evidence Order 47 Rule 1:-

The first ground for an application of review is the discovery of new evidence. Whenever applicant
discovered new fact or important matter evidence after exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the decree was passed, application of
review is permissible. Such evidence or all matter must be relevant and such a character that if it had
been given in it might possibly have altered the judgment.

2. Mistake Apparent on the face of record:-

The second ground for review is a mistake or an error apparent on the face of the record. Such error
may be one of fact or of law. Mistakes can be said to be an error apparent on the face of record if it is
not self-evident and requires an examination or argument to establish it. There are some examples of
error apparent on the face of the record; pronouncement of judgment without taking into consideration
the fact that the law was amended retrospectively; considering the statutory provisions, or on the
ground of omission to try a material issue in the case, etc.

3.Other sufficient reason:-

 The last ground for review is “any other sufficient ground”, but actually it has not been defined in the
code. However, relying on the judgment of the Privy Council and the Federal Court, the Supreme Court
has held that the word “any other sufficient reason” must mean “a reason sufficient on grounds, at least
analogous to those specified in the rule”.

There are some examples of other sufficient reason for granting review; where the statement in the
judgment is not correct; or where the decree or order has been passed under a misapprehension of the
true state circumstances; or where a party had no notice or fair opportunity to produce his evidence etc.

When a review petition lies?; Circumstances:-

There are some cases where a review petition is maintainable which are as follows:-

1. A degree or order from which no appeal lies is open to review,

2. A review petition or application is also maintainable in cases where the appeal is provided but no such
appeal is preferred by the aggrieved party.

3. Decisions on reference from the Court of Small Causes

By whom review may be made?

As per the definition, the review is a reconsideration of the same subject matter by the same court and
by the same judge, so he only has jurisdiction to consider the case and earlier order passed by him.

But there may be situations wherein this course is not possible. The judicial officer may not be
available due to the death of such other unexpected or unavoidable cause. Under these situations, his
successor or any other judge or Court of concurrent jurisdiction may hear the review petitions and
decide the same.

Procedure at hearing / Hearing of review application – The hearing of review application is conducted in
following stages –

(i) The court shall hear the application ex parte. If the court is not satisfied abot the sufficient of ground,
it shall reject the application at once. Otherwise the court may issue notice to the opposite party.

(ii) The application for review shall be heard by the same court and same judge. After hearing the
parties, the court may reject the application or allow it.

(iii) After allowing the application for review, the matter shall be heard on merits by the court. After re-
hearing, the court may either confirm the original decree or vary it.

7.Q.) discuss the provision relating to suit by or against government.? Suit by or against minor, lunatics,
guardian or next friend or guardian ad litem.?
Ans_ Sections 79 to 82, Order XXVII of the Code of Civil Procedure deal with 'Suits by or Against the
Government' or 'Public Officers' while discharging their duties in official capacity Order XXVII containing
8 rules provides for the procedure of proceedings by or against the Government or the Public Officers in
their official capacity.

Un 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 Central Government, the Union of India, and

b) In the case of a suit by or against a State Government, the State.

Jurisdiction: A suit against the Government can only be brought in the Court within the local limits of
whose jurisdiction the cause of action arose.

Competent Authority: Section 79 of the Code, lays down the provisions relating to suits by or against the
authority to be named as plaintiff or defendant shall be -

1. Secretary to that Government in case of a suit by or against the Central Government.

2. Secretary to that Government or Collector of the District in case of State Government

3. Chief Secretary to the Government in case of the State of Jammu and Kashmir.

4. General Manager in case of Railway.

Notice: According to Section 80 of the Code, a notice of two months shall be served before filing a suit
against the Government. Otherwise, the suit will be dismissed. Such notice is not compulsory in case of
ordinary suits. Such notice shall be given to the authorities as stated above. The object of notice under
Section 80 is to promote the administration of justice and to secure public good by avoiding unnecessary
litigations so as to provide the Government/Public Officer with an opportunity to settle the
claim/dispute within the period of the

notice/two months. However, the notice of two months may be relaxed in case of suits for an urgent
and immediate relief (Section 80, Clause 2). Notice under Section 80 is mandatory, and non-compliance
of the rule under Section 80 leads to rejection of the plaint. Section 80 reads as follows

Save as otherwise provided in Sub section (2), no suit shall be instituted 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 delivered to, or left at the office of -

a) in the case of a suit against the Central Government except where it relates to a railway, a Secretary
to the Government,

b) in the case of a suit against the Central Government where it relates to a railway, General Manager of
that Railway;
c) 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 this behalf,

d) in the case of a suit against any other State Government a Secretary to that Government or the
Collector of the District,

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.

Suit by or against minor, lunatics, guardian or next friend or guardian ad litem: Order 32 –

According to Rule 1 of order 32 C.P.C a minor is competent to institute suit in his/her name by a person
who in such suit shall be called the next friend of the minor. Thus a minor can sue by his/her next friend.
According to Indian majority Act 1875, minor means a person who has not attained 18 years of age. But
in the case of a minor whose person or property a guardian or next friend has been appointed by a
court, or whose property is under the superintendent of a court of words the age of majority is 21 years.

- Order 32 has been specially enacted to protect the interest of minors or persons unsound mind and to
ensure that they are represented in suits or proceeding by persons who are qualified to act as such. A
decree passed against a minor or lunatic without appointment of a guardian is a nullity and void.

- Every suit by a minor should be instituted in his name through his guardian or next friend. If it is not
done the plant will be taken off the file. Where such minor is a plaintiff the court may, at any stage of
the suit, order his guardian or next friend either on the application of the dependant or sue – motu , for
reasons to be recorded to be recorded to furnish security for cost of the defendant.

- Where a suit against a minor the Court should appoint a guardian ad – litem to defend the suit. Such
appointment should continue throughout all the proceedings including an appeal or revision and in
execution of a decree. Any person who has attained majority and is of sound mind, any act as a guardian
or next friend provided his interest is not opposite party in the suit and who gives consent in writing to
act as a guardian or next fried. In the interest of a minor, however, the court may permit another person
to act as the next friend or guardian of the minor. In the absence of a fit and willing person to act as a
guardian, the court may appoint any of its officers to be such guardian.

Nature and Scope – Order 33 provides for filling of suits by indigent persons. It enables persons who are
to pay court fees and allows them to institute suit without payment of requisite court fees.

Procedure for filing a suit – Order 33 of the code lays down the procedure for instituting (filing) a suit by
an indigent person.
Generally, a person seeking relief through civil court by instituting an action is required to pay
prescribed court fee. But, order 33 exempt an indigent person from paying court fee. However, the
exemption is not complete and is subject to certain conditions.

Conditions – The court entertains a suit by an indigent person, provided the following conditions are
satisfied –

(i) The person (applicant) must not have possessed sufficient means to apy the court fee.

(ii) He must not be entitled to a property worth one thousand or above and the suit must be a bonafide
one.

Rejection of application – The court may reject the application for pauper suit, in the following cases –

(i) If the applicant is not a pauper.

(ii) If the applicant disposes of his property fraudulently two months before filing the application.

(iii) If the applicant has entered into an agreement with the third party, having interest in the subject
matter.

Appeal – Order 44 extends (confers) right on the indigent person to go on appeal. However he has to
apply once again to the appellant court. Order 44 contains 3 rules as stated below –

Rule 1 - The indigent person is entitled to prefer an appeal. The appeal shall be presented in an
application accompanied by a memorandum of appeal. The provisions of the appeal shall be applicable.

Rule – 2 – The court may grant the time for payment of court fee, in case of an application rejected
under Rule – 1.

Rule -3 – Generally no further inquiry is required in the case of appellant indigent. The inquiry shall be
conducted by an officer of that court.

(ii) Suits concerning family matters: order 32 – A - Order 32 – A, as inserted by the code of civil
procedure (Amendment) Act, 1976 lays down the procedure where suits or proceeding relate to matters
concerning a family.

Ordinary judicial procedure is not ideally suited to the sensitive area of proposal relationship. Litigation
concerning affairs of the family requires special approach keeping in mind serious emotional aspects
involved. Family counseling a some of the methods of achieving the ultimate object of preservation of
the family, hence, should be kept in the forefront. Proceedings in such suits, therefore, may not always
be held in open court but may be conducted in camera.

The Supreme Court, while dealing with the family Courts Act, 1984, observed that the said Act was
enacted with a view to promote conciliation in, and secure speedy settlement of, disputes relating to
family matters.
8.Q.) What is Junction and kinds of injunction when can a civil grant temporary injunction? What are
the Procedure for granting temporary injunction? What is the remedy for violation of temporary
injunction. Or

What is temporary injunction and Interlocutory Orders? What are the different kinds of injunction?

Ans:-Injunction:-Injunction is an order by which the court either forbids a party to suit from doing some
act or compels a party to suit to carry out certain act.

Kinds of injunction:-injunctions are of two kinds: -

(i) Temporary injunction.

(ii) Permanent injunction.

A Permanent injunction restrain a party forever from doing the specified act and can be granted only
on merits at the conclusion of the trial after hearing both the parties to the suit.

A Temporary injunction or interim injunction restrains a party temporarily from doing the specified Act
and can be granted only until the disposal of the suit further orders of the court.

When Court can grant temporary injunction (order 39,rule 1):-

(i)Where in any suit is proved by affidavit or otherwise:-

(a) That any property in dispute in a suit is in danger of being wasted , damaged or alienated by any
party to the suit , or wrongfully said in execution of a decree, or

(b) That the defendants threatens, or intends to remove or dispose off his property with a view to
defraud his creditors,

(c) That the defendants threaten to dispossess or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit.

The court may by order grant a temporary injunction to restrain such act, or make such other order for
the purpose of staying and preventing the wasting, damaging , alienation , sale , removal or disposition
of the property , or dispossession of the plaintiff , or otherwise causing an injury to the plaintiff in
relation to any property in dispute in the suit , as the Court thinks fit until the disposal of the suit or until
further orders.

Procedure for granting temporary injunction:- The power to grant a temporary injunction is at the
discretion of the Court. The Court has to be satisfied with regard to following matters before granting
temporary injunction:-
 (i)The court must be satisfied that the applicant has a primitive case to go to trial , that is there is a
probability of the plaintiff getting the relief asked for him . It is not necessary that the plaintiff should
establish his title to the property in the suit.

(ii)The court must be satisfied that there is a likely hood of the plaintiff suffering from on irreparable
injury, if the injunction is not granted.

9.Q.Plaint order -7 c.p.c., its meaning, essentials and particulars, form,?

Or

What do means by plaint, what particulars should a plaint contain ? What are the ground for rejection of
plaint? Discuss the particulars to be furnished in a plaint?

Ans:-Introduction :

A plaint is a legal document which contains the written statement of the plaintiff’s claim. A plaint is the
first step towards the initiation of a suit. It can be said to be a statement of claim, a document, by the
presentation of which the suit is instituted. However, the expression “plaint” has not been defined in
the code. It is a pleading of the plaintiff.

In plaint, the plaintiff should alleged facts about his cause of action. A plaint which is presented to a civil
court of appropriate jurisdiction contains everything, including facts to relief that the plaintiff expects to
obtain.

Particulars of the plaint:

1) The name of the particular court where the suit is brought; [R.1(a)];

2) The name, place, and description of the plaintiff’s residence; [R.1(b)];

3) The name, place, and description of the defendant’s residence; [R.1(c)];

4) A statement of unsoundness of mind or minority in case the plaintiff or the defendant belongs to
either of the categories; [R.1(d)];

5) The facts that led to the cause of action and when it arose; [R.1(e)];

6) That fact that point out to the jurisdiction of the court ; [R.1(f)];

7) A statement of the value of the subject-matter of the suit for the purpose of jurisdiction and court
fees; [R.1(i)];
8) The relief claimed by the plaintiff, simply or on the alternative; [R.1(g)];

9) Where the plaintiff files a suit in a representative capacity the facts showing that the plaintiff has an
actual existing interest in the subject matter and he has taken steps that may be necessary to enable
him to file such a suit; [R. 4];

10) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed or relinquished; [R.1(h)];

11) Where the suit is for recovery of money, the precise amount claimed; [R 2]

12) Where the suit is for accounts or mesne profits or for movables in the possession of the defendant
or for debts which cannot be determined, the approximate amount or value thereof; [R. 2]

13) Where the subject-matter of the suit is immovable property description of the property sufficient to
identify it, e.g. boundaries, survey numbers, etc; [R.3]

14) The interest and liability of the defendant in the subject-matter of the suit; [R. 5]

15) Where the suit is time-barred, the ground upon which the exemption from the law of limitation is
claimed;

Admission of plaint:

Rule 9 lays down the procedure when the plaint is admitted by the court. It provides for the filling of
copies of the plaint by the plaintiff and also requires him to pay requisite fees for the service of
summons on the defendants within seven days.

Order 7 rule 11 of CPC mentions the provisions, where the plaint should be rejected.

The plaint will be rejected in the following cases:-

1. Where plaint does not disclose the cause of action,

2. Where relief claimed is undervalued,

3. Where plaint is insufficiently stamped,

4. Where suit is barred by law,

5. Where plaint is not in duplicate, and

6. Where there is non-compliance with statutory provisions.

These all grounds are explained in detail the following:-

Where plaint does not disclose the cause of action:-

1. in every plaint filed by the plaintiff if it does not disclose any cause of action, the court will reject it.
But in order to reject the plaint on this ground, the court must look at the plaint and at nothing else; it
was held in the case of Begum Sahiba vs. Nawab Mohammed Mansur. (2007) 4 SCC 343.

The power to reject a plaint should be exercised by The court only when if the court comes to
the conclusion that even if all allegations set out in the plaint are proved, the plaintiff would not be
entitled to any relief, in that case, the court will reject the plaint without issuing summon to the
defendants. The reading of the plaint should be meaningful and not formal. Finally, the plaint can be
rejected as a whole if it does not disclose the cause of action. A part of it cannot be rejected, it was held
in Roop Lal vs. Nachhattar Singh, (1982) 3 SCC 487.

2)Where the relief claimed is undervalued:-

Where the relief claimed by the plaintiff is undervalued and the valuation is not correct within the time
fixed and extended by the court, the plaint will be rejected.

3.) Where plaint is insufficiently stamped:- In many cases relief claimed by the plaintiff is properly
valued, but it is written upon a paper insufficiently stamped and the plaintiff fails to requisite Court fees
within the time fixed and extended by the court. In that case, the plaint will be rejected. But if the
plaintiff paid that court fees within the time extended by the court the suit or appeal must be treated as
instituted from the date of presentations of plaint or memorandum of appeal for the purpose of
limitation as well as payment of court fee, it was held in Mannan Lal vs. Chhotaka Bibi, (1970)1 SCC 769,
AIR, 1971 SC 1374.

4.)Where suit is barred by law:-

Any suit which appears from the statement in the plaint that is barred by the law, the court will reject
the plaint. For instance; wherein a Suit against the government, the plaint does not state that a “notice”
as required by Section 80 of code has been given, the plaint will be rejected under this clause, held in
Bhagchand vs. Secy. of State, AIR 1927 PC 176. But where a waiver of such notice is pleaded, the court
cannot reject the plaint without giving the plaintiff an opportunity to establish that fact. Likewise, if the
plaint itself shows that the claim is barred by limitation, the plaint cannot be rejected.

5). Where plaint is not in duplicate:- The plaint has to be filed in duplicate. if the said requirement does
not comply with the plaint will be rejected.

10)Q.Define of Law of limitation. What are the object and reasons for the law of limitation. How does
limitation Act bar the suit for Possession?

Ans – Meaning the law of limitation – The law of limitation limits or prescribes a time, after the laps of
which suit or other proceeding cannot be maintained in a court of law or the persons liable to suit shall
become exempt from answering therein. It does not postpone or suspend the right of claimant, it
merely prescribes a period for the institution of a suit and forbids them from being brought after
periods, each of which starts from some definite event. If only restrains the holder of a right from
enforcing his right by recourse to law after the prescribed period of limitation.

Object and reasons for law of Limitation – The law of Limitation 1963 is enacted to consolidate and
amend the law for the limitation of suits and all the proceedings and for purposes connected therewith.
It extent to the whole of India except of Jammu and Kashmir. The rule of procedure a branch of
adjective law. The intention the law of limitation is not create a right where there is none, not to
extinguish a right wher5e there is one, but to enforce a bar after a certain period to enforce an existing
right.

The object of law of limitation is preventing disturbance or deprivation of word have been
acquired in equity and justice and by long enjoyment or what may have lost by party own in action
negligence or lache. The rule of limitations is not meant to see that parties don’t resort to dilatory
tacties but seek their remedy within a fixed by the legislature. The limitation Act merely prescribed a
period of limitation for the institution of a suit and does not itself create any right to sue where none
existed.

Limitation Act bar the suit for possession – Section 25 of the Limitation Act provides as follow
regarding bar the suit for possession –

Section 25 (1), where the access and use of right or Air to and for any building have been
peaceably enjoyed therewith as an easement, and as of right, without interruption and for 20 years and
where any way or water course or the use of any water or may other easement whether has been peace
ability and openly enjoyed by any person claiming title there to as an easement and as of right without
interruption and for 20 years, the right to such access and use of light or air, way, water course, use of
water or other easement shall be absolute and indefeasible.

Section 25(2), each of the said periods of 20 years shall be taken to be a period
ending within 20 years next before the institution of the suit where in the claim for which such period
relates is contested.

Section 25 (3), where the property over which a right is claimed under
sub section (1) belongings to the Govt. that sub section shall be read as if for the words 20 years were
substituted.

11) Q. What do you mean by barred by limitation, and its efficiency.

Ans – The limitation Act fixed the time or period within which a suit, appeals and application have to be
filed. If a suit, appeal and application filed after the period prescribed by the Limitation Act, those suits,
appeals and application will be barred by limitation (under section 11 to 24 of the Act). Section 3 of the
Limitation Act imposes upon a court dismiss an application made after the prescribed period of
limitation even though the plea of limitation has not been taken in the defence.

For the purposes of this Act –

(a) a suit is instituted -

i) In an ordinary case, when the plaint is presented to the proper officer.

ii)In the case of a pauper, when his application for leave to sue as a pauper is made, and

(b) Any claim by way of a set – off or a counter claim shall be treated as a separate suit and shall be
deemed to have been institute.

i) In the case of a suit – off, on the same date as the suit in which the set – off is pleaded.

ii) In the case of a counter claim on the date on which the counter – claim is made in court.

(c) An application by notice of motion in a High Court is made when the application is presented to the
proper officer of that court.

12) Q. “Limitation bars the remedy but does not extinguish the title” – Discuss.

Ans – It is a well established rule of law that in cases which are not governed by the section, limitation
merely bars the remedy but does not extinguish the tile while in cases of various other rights to property
the limitation Act only bars the remedy, in the case of a right to institute a suit for posses of the
property including immovable property, not only the remedy but also the very right gets extinguished.
Section 27 is therefore an exception to the general principle that limitation bars only the remedy and
does not extinguish the right itself.

Limitation Act bars only action of plaintiff in court but it does not destroy the right of defendant
though it may be barred limitation. Defendant can thus put forward any defense though it may not be
enforceable in a court of law, being barred by limitation.

Ordinary, if the proceeding is not instituted within the specified period, the only result is
(except Section 27), that the remedy is barred while, the right remain in fact, so much so that if, a
payment of time barred debt is made by the debtor in ignorance he can not recall that on the plea that
the debt was barred by limitation and creditor had no right to appropriate his (debtor’s) payment made
in ignorance of the bar, similarly a barred debt can be set-off by a liquidator in winding up proceedings
against debts by the company to the debtor.
13) Q. Who is receiver? Discuss the appointment power, duties and who may be appointing as receiver?

Ans – Who is receiver – A receiver is one who receiver money of another and renders account. A
receiver is an impartial person who is appointment by the court with the object of preserving the suit
property until final disposal of the suit. Receiver is empowered to collect and receiver the rents and
profits of the property during pendency of proceedings. He is the representative of the Court.

Appointment of the Receiver: order 40 – A receiver may be appointed by the court before which the
proceedings are pending. Thus, in case of a suit, receiver can be appointed by the trial court. Where an
appeal is preferred against the decree passed by the trial court, it is the appellate court which has power
to appoint receiver.

Power of the Receiver: Rule 1 (d) – A receiver is an officer or representative of the court and he function
under its directions. The court may confer upon the receiver any of the following powers -

(i) To institute and defend suits.

(ii) To realize, manage, protect, preserve and improve the property,

(iii) To collect, apply and dispose of the rents and profits,

(iv) To execute documents, and

(v) Such other power as it thinks fit.

Duties of the receiver: Order 40, Rule 3 – The receiver shall –

(a) Furnish security to account for what he shall receiver in respect of the property.

(b) Submit his accounts at such period and in such from as the court directs.’

(c) Pay the amount due from him as the court directs, and

(d) Be responsible for any loss occasioned to the property by his willful default or gross negligence.

Who may be appointed as receiver – A person who is independent, impartial and totally disinterested
should normally be appointed as receiver. Generally, a party to the suit (Plaintiff or defendant) should
not be appointed as receiver by the court. But the rule is not rigid or inflexible. In exceptional
circumstances or for special persons, a party to a suit or proceedings can also be appointed as receiver.

14)Q. The executing court can not go beyond the decree - discuss.

Ans:_ Introduction -The term Execution of a Decree refers to the process for enforcing or giving effect to
the judgment, decree or order of the court.The execution is the mechanism though which the decree
holder realises the fruits of the decree ordered by the court. It comes to a close when the decree
holder gets the relief awarded to him by the court. The decree holder is the person in whose favour
decree has been passed, and the judgment debtor is the person against whom a decree has been
passed.

Executing Court

The executing court cannot question the validity of a decree. It has to take the decree as it stands and
has to execute it according to its terms. The executing court must abide by the directions mentioned in
the decree.It is beyond its boundary to question its legality or correctness.

The executing court is not allowed to criticise the decree or give relief against it. The executing court
cannot allow objections that the decree was obtained by fraud or passed against a wrong person or
against a minor, who was not properly represented. Such pleas can be raised not in the executing court
but by means of a separate suit or by means of an appeal, if the same is permissible.

An application for the execution of the decree may be filed in the court which passed the decree or in
the court to which the decree has been transferred for the execution.

There are, however, three cases where the executing court can go behind the decree which are as
follows:

1) Where the decree is a nullity. The objection of the judgment-debtor that the decree is a nullity
because it was passed against a dead person, without bringing his legal representative on the record is
an objection which can be entertained by the executing court and if the objection is proved then there
will be no executable decree all.

2) Where the decree is ambiguous, i.e., a decree instead of meaning one thing may mean two or more
different things. In such a case, it is the duty of the executing court to go behind the decree and seek to
ascertain from the judgment and pleading of the case to find out the true implication of the decree. This
is necessary to enable the executing court to execute the decree.

3) Where the decree has been made by a court without jurisdiction, i.e., in respect of territorial or
pecuniary jurisdiction or in respect of the judgment-debtor’s person. An objection based on the ground
of jurisdiction can be entertained by the executing court because if the decree has been passed by a
court having no jurisdiction, there is no executable decree.

Against whom the execution can be made?

Execution may be taken out against the following

persons:

a) Judgement-debtor.

b) Legal representative of the judgement-debtor, if

the judgement-debtor is dead.
c) Representative of or the person claiming under the
judgement-debtor.

d) Surety of the judgement-debtor.

Conclusion

The execution means implementing or enforcing or giving effect to an order or a judgment passed by
the court of justice. Various modes of execution of a decree are also provided by the Code which
includes arrest, detention of the judgment-debtor, delivery of possession, attachment of the property,
by sale, partition, the appointment of receiver and payment of money etc. Thus, the provisions are
rendered effective or capable of giving relief to an aggrieved party.

15) Q. Limitation is the Statute of repose,peace and justice- explain the statement.

Ans:-The Statutes of Limitation are statutes of repose; and of late years the desire has been general;
both on the part of the legal profession and on the part of the public, to abridge the length of the time
during which actions may be commenced, and there can be little (if any) doubt that the policy of the
statutes of Limitation is good, and is one to be encouraged. They are such legislative enactments as
prescribe the periods within which actions may be brought upon certain claims, or within which certain
rights may be enforced.

The law of limitation is founded on public policy, its aim being to secure the quiet of the community, to
suppress fraud and perjury, to quicken diligence and to prevent oppression. The statute is founded on
the most salutary principle of general and public policy and incorporates a principle of greater benefit to
the community. It has, with great propriety, been termed statute of repose, peace and justice.

Mr. Justice Story in his Conflict of Law observed as

follows:

“Law thus limiting suits are founded in the noblest policy. They are statutes of repose; to quiet titles to
suppress frauds and to supply deficiency of proofs arising from the ambiguity or obscurity of the
antiquity of transactions. They proceed upon the presumption that claims are extinguished or ought to
be held extinguished, whenever they are not litigated in the proper forum (court) within the prescribed
period.

They take away all solid grounds of complaint because they rest on the negligence or neglect of the
party himself. They quicken diligence by making it in some measure equivalent to right. They discourage
litigation by bringing in one common receptacle all the accumulation of past times which are
unexplained, and have now, from lapse of time, become in applicable.”
The Indian Limitation Act lays down definite rules of law giving to the people for whose benefit they
have been framed a guarantee that after a lapse of certain period they may rest in peace and rely upon
titles or other rights which they have acquired.

Statutes of Limitation rest upon sound policy and tend to the Pease and welfare of the society.

16) Q.when one time has began to run no subsequent disability or inability to sue stops it - example the
statement State exception if any ?

Ans:-Section 9 Continuous running of time Where once time has begun to run, no subsequent disability
or inability toinstitute a suit or to make an application stops it:Provided that, where letters of
administration to the estate of a creditor have been granted to his debtor, the running of the period of
limitation for a suit torecover the debt shall be suspended while the administration continues.

This section applies not only to suits but to application as well. This has not been expressly provided in
the section.If at the date on which the cause of action arose the plaintiff was under nodisability or
inability, then time will naturally begin to run against him becausethere is no reason why the ordinary
law should not have full operation. Section9 says that once time has begun to run, no subsequent
disability or inability tosue can stop its running. This applies to a person himself as well as to
hisrepresentatives-in-interest after his death.The section contemplates a case of subsequent and not of
initial disability, thatis, it contemplates those cases where the disability occurred after the accrual ofthe
cause of action; whereas cases of initial disability have been provided for bySection 6. A decree-holder
made various applications for the execution of adecree. Each application was within time. Then the
decree-holder died. His son,who was a minor, made an application for execution of the decree within
threeyears after the death of his father but more than three years after the date of thelast application of
the deceased father. Held, that Section 9 applies and not

Section 6 and minor son's application for execution was time barred, it being a case not of initial but of
subsequent disability.

Examples:-A right to sue accrues to P, when he is under no disability; but subsequently he becomes
insane. Time runs against P as usual, from the date of accrual of the right and his subsequent disability
(viz., insanity) is no bar to the running of time.

"Disability" meaning:

"Disability" means want of capacity of the legal qualification to act as such as have been mentioned in
Section 6, viz., minority, insanity or idiocy.

"Inability" meaning:

"Inability" means want of physical power or facility to Act. Inability assumes that the plaintiff is fully
capable to sue; there is no personal inability to sue but some extraneous circumstances render him
unable to file the suit, e. g. illness, poverty, etc. there is no provision in law to extend the time for a
person who is unable to file a suit apart from his disability arising from his being a minor, or an idiot or
insane.

Exception

The proviso lays down that when the administration of an estate has been given to a debtor of the
deceased, no time will run against such a debtor until the administration of estate which was entrusted
to him has been finished. In such cases, the law prevents the duty of property administering the estate
to come into conflict with the right of the person to sue for the debt, the hand to give and the hand to
receive is the same.

Joint effect of Sections 6, 7, 8 and 9.

The joint effect of this and previous sections is that if advantage is taken of two disabilities, they must so
overlap each other as to leave no gap of normal period between them, i. e.. period which is free from all
disabilities because as soon as such an interval occurs, the time begins to run and subsequent inability or
disability is powerless to stop its running. If it is not a continuing disability from the beginning (when the
cause of action arose), or if one ceases to be under a disability even for a day, time begins to run against
him and subsequent disability of himself or after his death that of his legal representative, will not avail
to save limitation For instance, A. a Hindu minor, is under the guardianship of his own mother Z. he is
deprived of the possession of his family estate by a trespasser Y, while he is yet a minor and under the
guardianship oh his own mother Z. While yet a minor. A dies and is succeeded to his estate by the
mother, the erstwhile (former) guardian. Here, time begins to run against the mother as soon as she
succeeds to the property. If the widow of A subsequently adopts a son who is a minor and who in
consequence adopts a son who is a minor and who in consequence of the adoption becomes the heir of
A, the adopted son cannot claim extension of time.

LAW COMMISSION OF INDIA IN ITS 89 REPORT ON THE LIMITATION ACT, 1963, PROVIDED THAT
SECTION 9 OF THE ACT DOES NOT SEEM TO NEED ANY CHANGE.