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THE CODE OF CIVIL PROCEDURE

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THE CODE OF CIVIL PROCEDURE:

The term "decree" is formally defined in Section 2(2) of question falling within the purview of Section 144 of the
the Code of Civil Procedure, 1908. It is an essential legal Code of Civil Procedure, 1908. However, it's important to
concept closely associated with the judicial process. A understand that a deemed decree excludes certain
decree always follows a judgment and is fundamentally scenarios, such as sentences or adjudications that are
based on the judgment's findings. Unlike a judgment, appealable as orders and orders related to the discharge
which is typically a final pronouncement, a decree can or dismissal of default. Essentially, a deemed decree
take on various forms, being divided into five distinct extends the legal recognition of a decree to encompass
types. These types include final and preliminary decrees, particular circumstances that have the characteristics of a
as well as decrees that are partly preliminary and partly decree but may not be called such in explicit terms.
final. A decree represents a formal declaration or
adjudication by the court, and it holds conclusive legal Types of Decrees
weight. It plays a pivotal role in settling the rights of the
parties involved in a legal dispute concerning the issues in Section 2(2) of the Code of Civil Procedure, 1908
question within the lawsuit. Once a decree is issued, it categorizes decrees into three distinct types:
effectively disposes of the lawsuit, as it conclusively
establishes the parties' rights as determined by the court. Preliminary Decree:

Judgment: In a general sense, the term "preliminary" refers to actions

taken in preparation for the main matter, signifying an
Although not explicitly defined in this section, a initial or introductory stage. In the legal context, a
"judgment" is a fundamental element of the legal process preliminary decree is a judicial pronouncement that
that precedes the issuance of a decree. It represents the marks an essential stage in a lawsuit but does not bring it
court's reasoned decision based on the evidence, to a final conclusion. Instead, it addresses and determines
arguments, and legal principles presented during the trial. the rights and responsibilities of the parties involved in
A judgment serves as the foundation upon which a decree the dispute regarding all or specific matters under
is built, providing the necessary findings and conclusions consideration. However, the preliminary decree does not
that guide the court in formulating the decree. Unlike a fully dispose of the entire lawsuit. Instead, it sets the stage
decree, which is the final, conclusive pronouncement, a for further proceedings. In essence, a preliminary decree
judgment is the initial step in the process, setting the stage outlines the parties' rights and obligations, leaving the
for the subsequent issuance of a decree. actual implementation or final decision to be determined
in subsequent legal actions. This type of decree is typically
Order: employed in cases where the legal proceedings are
divided into two distinct stages: one for the adjudication
While not explicitly defined in this section, an "order" is of rights and the other for the execution or
another essential legal term in the context of legal implementation of those rights.
proceedings. An order is a formal directive issued by the
court during the course of litigation or in various legal Final Decree:
matters. Orders can address a wide range of issues,
including procedural matters, evidentiary rulings, and In a broader context, the term "final" signifies the last,
interim decisions. Unlike a decree or judgment, an order ultimate, conclusive, or definitive stage. In a legal context,
does not represent a final resolution of the case's merits a final decree is a judicial pronouncement that marks the
but rather serves to manage and regulate the legal process, ultimate resolution of a lawsuit, leaving no further
ensuring fair proceedings and the enforcement of court questions or matters for consideration between the
decisions. Some orders may be delivered alongside a parties. It represents the decisive and conclusive phase of
decree, but they are distinct in nature, serving different litigation, completely disposing of the suit. A decree is
functions within the legal framework. deemed final when it comprehensively addresses and
resolves all the issues and disputes raised in the case,
Deemed Decree: leaving no room for further adjudication.

In addition to the formal definition of a decree, it is Partly Preliminary and Partly Final Decree:
important to note the concept of a "deemed decree." A
deemed decree is a legal construct that includes certain A decree is classified as partly preliminary and partly final
specific situations, such as the rejection of a plaint and any when the court addresses two distinct issues within the
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same decree. For example, if the court issues a decree in days of the judgment being pronounced. Failure to adhere
favor of one party while also directing an inquiry into to this time frame has consequences as it allows for an
certain matters for the other party, the former portion of appeal to be initiated without requiring a copy of the
the decree is considered final, while the latter part is decree if it remains undrafted beyond the prescribed 15-
regarded as a preliminary decree. This indicates that day period.
further legal proceedings must occur to determine the
outcome of the preliminary aspects. For instance, in a Special Decrees:
property possession lawsuit involving a company named
'C,' if the court grants a decree for possession of the In certain unique scenarios, different types of decrees are
property to the plaintiff and simultaneously orders an issued to address specific situations:
investigation into company 'C,' the former part of the
decree is final, while the latter part constitutes a Immovable Property (Real Estate) Decree: In cases
preliminary decree. concerning the recovery or repossession of immovable
property (real estate), the decree must include a detailed
The Necessity of a Decree: description of the property to ensure its clear
identification.
The Code of Civil Procedure mandates the issuance of a Movable Property (Personality) Decree: In decrees
decree in all legal suits. A decree is intricately linked to a related to movable property, it is essential to specify the
judgment, as it follows the judgment's pronouncement. exact monetary amount to be paid as an alternative in case
Consequently, it is an indispensable and essential delivery of the property cannot be accomplished,
requirement in the legal process. A decree serves as an regardless of the reason, whether reasonable or
integral component of the final outcome of a lawsuit. otherwise.
Importantly, an appeal can be filed against a decree, not
against a judgment. The absence of a decree precludes the Payment of Money Decree: When a decree involves the
initiation of an appeal. payment of money, the court has the discretion to either
postpone the payment to a future date or allow for
Contents of a Decree: payment in installments, with or without interest, as
deemed appropriate.
A decree invariably follows a judgment, aligning with it Possession or Past Rents and Mesne Profits Decree: In
and encompassing the following essential elements: suits for the recovery or repossession of immovable
property, the court may issue a decree for possession or
The suit's unique identification number, which should be gaining control of the property, or alternatively, for the
explicitly stated in the decree. Comprehensive recovery of past rents or mesne profits. The latter refers
identification of the parties involved, includingtheir to the profits received by a tenant in wrongful possession,
names, descriptions, and registered addresses. recoverable by the landlord. The decree in this context is
considered final and aligns with the results of any relevant
A detailed account of the claims and defenses put forth by inquiry.
the parties as a result of the lawsuit.
Explicit mention of the relief or remedy granted to the Additional Rules for Specific Decrees:
aggrieved party, emphasizing that it constitutes a remedy,
not a reward. Several rules govern the drafting of specific types of
decrees:
A breakdown of the total costs incurred in the suit,
specifying who is responsible for payment and whether  Rule 12A mandates that a decree for the specific
they are to be paid from a particular property or source, performance of a contract related to the sale or
as well as the allocation of these costs. lease of immovable property (real estate) must
The date on which the judgment was delivered, followed specify the period within which the purchaser or
by the decree itself. lessee must make the required payment.
The indispensable signature of the judge who delivered  Rule 13 specifies that in cases involving accounts of
the judgment, an essential element of any decree, any property, whether movable or immovable, and
emphasizing its authenticity and validity. the subsequent administration of such property
Drawing up of a Decree: under the court's decree, a preliminary decree must
first be passed, ordering accounts to be taken and
Rule 6A under Order XX of the Code of Civil Procedure, inquiries to be made before a final decree is issued.
1908, establishes specific procedures for drafting a decree.  Rule 14 addresses pre-emption suits, where the
It stipulates that a decree must be prepared within 15 lower jurisdiction's laws conflict with those of the
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higher jurisdiction. In cases where the purchase The term "pronouncement of a judgment" pertains to the
money has not been paid into court, the decree formal and official announcement of a court's decision.
must set a specific deadline for payment. Failure to This announcement follows the completion of the hearing,
make the payment by this deadline results in the during which the court has heard the arguments and
dismissal of the lawsuit with costs. In cases of rival presentations made by the parties involved. The judgment
claims to pre-emption, the decree outlines the is then publicly declared by the judges in an open court,
respective rights of pre-emptors proportionately or either immediately or at a later date, with prior notice to
based on the degree of their claims. the parties or their legal representatives.
 In suits concerning the dissolution of partnerships
or the taking of partnership accounts, the court may If a judgment is not pronounced immediately, it must be
pass a preliminary decree to determine the shares delivered within 30 days from the conclusion of the
of all parties involved, set a dissolution date, and hearing. In exceptional circumstances, such as bank
order accounts to be taken. Similar preliminary holidays, strikes, or other unusual situations, the deadline
decrees may be passed in cases involving accounts for delivery may be extended to 60 days. It is not
between principals and agents, with the court mandatory for the judge to read out the entire judgment;
providing specific directions on the accounting it suffices to announce the final order. The judge is
process. required to date the judgment when pronouncing it and
 For decrees in lawsuits related to property sign it to authenticate the decision. Rule 2 under Order XX
partition or separate possession of shares, the of the Code of Civil Procedure, 1908 allows a judge to
decree declares the rights of all interested parties pronounce a judgment that has been written but not yet
and may direct the partition to be executed by a pronounced by a predecessor.
collector, especially in cases involving revenue-
assessed immovable property. The introduction of a time limit between the conclusion of
 In cases where the defendant is allowed to file a arguments and the pronouncement of judgment was
counterclaim against the plaintiff's initial claim, the introduced through the Amendment Act of 1976 to
decree must clearly state the amounts owed to both address concerns about delays. Prior to this amendment,
the plaintiff and the defendant. there was no specific time frame prescribed for judgment
delivery.
Judgment:
Copy of the Judgment:
The term "judgment" finds its formal definition in Section
2(9) of the Code of Civil Procedure, 1908. A judgment is a Once a judgment is pronounced, copies of the judgment
comprehensive legal document encompassing crucial must be promptly made available to the parties upon their
elements of a court's decision-making process. It serves to request and payment of specified costs. The charges for
present the key facts of the case, outline the issues in obtaining a copy are determined by the party requesting
dispute, summarize the evidence presented by the parties, it and are governed by the rules and orders established by
and provide findings on these issues, all grounded in the the respective High Court. Order XX, Rule 6-B of the Code
evidence and arguments presented during the of Civil Procedure, 1908, outlines this rule.
proceedings. Each judgment is expected to include a
succinct summary of the pleadings, a clear delineation of Contents of the Judgment:
the issues at hand, findings on each issue, the underlying
reasons (ratio decidendi) for reaching a particular As per Rule 4 under Order XX of the Code of Civil
decision, and the relief granted by the court. Procedure, 1908, the contents of judgments differ based
on the type of court:
Importance of Judgments:
Judgments from Courts of Small Causes should include the
Judgments hold significant importance in the functioning points for determination and the decisions reached on
of our judicial system as they serve as legal precedents for these points. Judgments from other courts should
future cases. They provide valuable guidance and comprise the following elements:
establish legal principles that subsequent cases can rely  A concise summary of the pleadings, offering a brief
on for reference. In every judgment, a judge articulates the statement of the case.
rationale behind the decision, ensuring transparency and  Identification of the issues, which are the key points
accountability in the legal process. for determination.
 Findings on each issue and the decisions made in
Pronouncement of a Judgment: relation to them.

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 The ratio decidendi, elucidating the reasons behind Recognition is not a mere courtesy but is rooted in
the decisions. principles of justice, equity, and good conscience.
 The relief granted, specifying the remedy provided Understanding foreign law in parallel jurisdictions serves
by the court. as a guideline for defining notions of justice and public
policy.
Alteration of a Judgment:
Jurisdiction of Foreign Courts:
Once a judgment is dated and signed by the judge, it can
only be modified or amended under specific In private international law, a foreign court's judgment is
circumstances, as follows: recognized in India only if that court had jurisdiction in
the international sense. The territorial competence of the
Arithmetical or Clerical Errors: Alterations can be made to foreign court over the subject matter and the defendant is
correct arithmetical errors (errors involving numbers, crucial, while other forms of jurisdiction are not
such as addition, subtraction, multiplication, and division) considered material in the Indian context.
or clerical errors (mistakes made by clerks) present in the
judgment. Presumption as to Foreign Judgments:
Errors Due to Accidental Slips or Omissions: Changes may
be made to rectify errors arising from accidental slips or Section 14 presumes that a document appearing to be a
omissions, which occur when essential elements are certified copy of a foreign judgment is valid unless there is
inadvertently omitted from the judgment. This is evidence to the contrary. The Indian courts presume that
governed by the foreign judgment was pronounced by a court of
Section 152. competent jurisdiction unless it can be demonstrated
Review: The possibility of altering a judgment exists otherwise.
through the process of review, regulated by Section 114.
Conclusiveness of Foreign Judgments:
Foreign Court and Foreign Judgment (Sec. 13):
Section 13 establishes fundamental rules for foreign
The Indian Code of Civil Procedure, 1908 (CPC) outlines judgments. Generally, a foreign judgment is conclusive
the procedure for recognizing and enforcing foreign unless it falls under any of the clauses (a) to (f) of Section
judgments and decrees in India. The CPC provides specific 13. These clauses specify circumstances under which a
definitions for key terms in this context: foreign judgment is not considered conclusive and,
therefore, not enforceable in India. These circumstances
 Section 2(5) defines "foreign Court" as a court include issues related to jurisdiction, merits, international
situated outside India and not established or law, natural justice, fraud, and breaches of Indian law.
continued by the authority of the Central
Government. Foreign Judgments That Cannot Be Enforced in India:
 Section 2(6) defines "foreign judgment" as a
judgment rendered by a foreign Court. Before enforcing a foreign judgment in India, it must be
ensured that the judgment does not fall under any of the
Nature and Scope of Foreign Judgments: six cases outlined in Section 13. If it does, the judgment is
not regarded as conclusive and is not enforceable in India.
Section 13 embodies the principle of res judicata in These six tests are discussed in detail to determine the
foreign judgments. It upholds the concept of private enforceability of a foreign judgment.
international law, stating that a judgment delivered by a
foreign court of competent jurisdiction can be enforced Foreign Judgment Not by a Competent Court:
and executed in India.
A fundamental principle of law asserts that a judgment or
Object of Recognizing Foreign Judgments: order issued by a court lacking jurisdiction is inherently
void. Consequently, for a judgment from a foreign court to
The enforcement of a foreign court's judgment is based on be binding between the parties, it must be rendered by a
the principle that when a foreign court of competent court possessing the requisite jurisdiction. This pertains
jurisdiction adjudicates a claim, a legal obligation arises to to both the laws of the state in which the foreign court
satisfy that claim in the country where enforcement is operates and in the international context. Furthermore,
sought. The rules of private international law vary among the foreign judgment must directly address the matter
states, but certain rules are recognized as common to asserted as res judicata.
civilized jurisdictions through international conventions.
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In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan judgment and decree that did not show the plaintiff had
Chettiar, a dispute arose concerning the execution of a presented evidence to substantiate their claim before the
decree from a foreign court (Singapore Court) against the Court was not enforceable under Section 13(b) of the CPC
respondent. The respondent argued that since he was not because it was not rendered on the merits of the claim.
a subject of the foreign country and had not submitted to
the jurisdiction of the Singapore Court, the decree could Proposition:
not be enforced in India. The appellant countered by
claiming that the respondent, in his capacity as a partner Under Section 13(b) of the CPC, the following proposition
in a firm doing business in Singapore, had accepted the can be established:
jurisdiction of the Singapore Courts. The High Court ruled
that it was the firm that had accepted the foreign court's A judgment or decree issued by a foreign Court against an
jurisdiction, while the respondent, as an individual, had Indian defendant who was absent during proceedings
not. may not be enforceable against them unless it can be
demonstrated that the judgment was rendered after an
Consequently, the High Court determined that the decree examination of the plaintiff's claim.
against the respondent was not enforceable.
Foreign Judgments Contrary to International or Indian
Proposition: Law:

Under Section 13(a) of the CPC, the following proposition A judgment that conflicts with fundamental principles of
can be established: international law or that refuses to recognize Indian law
where applicable is not considered conclusive. For
In cases of actions-in-personam, a foreign court may issue instance, when a contract made in India is the basis for a
an order or judgment against an Indian defendant who suit filed in England, but the English court erroneously
has been served with summons but remains absent. Such applies English law, the judgment of the court falls under
a judgment may be enforceable against the Indian this clause. Private International Law generally dictates
defendant if any of the following conditions are met: that the rights and obligations of parties to a contract are
governed by the jurisdiction where the contract was
 The individual is a subject of the foreign country in formed (lex loci contractus).
which the judgment or decree was obtained against
them on previous occasions. In the case of I & G Investment Trust v. Raja of Khalikote,
 The individual is a resident in a foreign country a lawsuit was filed in English Jurisdiction to circumvent
when the legal action is initiated. The individual the consequences of the Orissa Money Lenders Act. The
initiates legal proceedings as a plaintiff in the Court held that the judgment was rendered on an
foreign Court and is later sued in the same capacity. incorrect understanding of international law. However,
 The party voluntarily appears before the foreign the Court noted that, although the judgment was based on
court after being summoned. Through an the plaintiff's assertion that Indian law did not apply,
agreement, the individual has consented to the there was no "refusal" by the Court to recognize local laws.
jurisdiction of the Court where the judgment was
obtained. Proposition:

Foreign Judgments Not Rendered on Merits: Under Section 13(c) of the CPC, the following proposition
can be established:
For a foreign judgment to have the status of res judicata,
it must have been rendered on the merits of the case. A A judgment issued by a foreign Court concerning
judgment is considered to have been rendered on the immovable property situated in Indian territory may not
merits when it involves a thorough examination of the be enforceable if it violates international law. Additionally,
evidence and a genuine assessment of the truth or falsity a judgment rendered by a foreign Court, even when Indian
of the plaintiff's claim. The true test to determine whether law is shown to be applicable but the Court refuses to
a judgment was rendered on the merits is to assess recognize it, may not be enforceable, except in cases
whether it was issued as a matter of routine or as a penalty where the foreign law governs the contract.
for the defendant's conduct, or if it was based on a careful Foreign Judgments Contrary to the Principles of Natural
evaluation of the validity of the plaintiff's claim. Justice:

In the case of Gurdas Mann v. Mohinder Singh Brar, the A fundamental requirement for a court judgment is that it
Punjab & Haryana High Court ruled that an ex parte must be obtained following due observance of judicial
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procedures, adhering to principles of natural justice. This court, leading to a judgment or decree based on such
includes impartiality, fairness, absence of bias, good faith, deception, the said judgment may not be enforceable.
notice to parties, and equal opportunities for each party to However, if there are errors in the judgment, Indian
present their case. A judgment that lacks these qualities is courts will not act as appellate bodies to rectify such
considered a nullity, and the trial is deemed "coram non mistakes or errors.
judice."
Foreign Judgments Founded on Breach of Indian Law:
In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram,
the Supreme Court ruled that an ex parte judgment and When a foreign court misinterprets an Indian law in a way
decree, even if the defendants were served with summons that forms the basis of its judgment, the enforceability of
but did not appear, should not be considered contrary to that foreign judgment in Indian courts may be questioned.
natural justice.
In the case of China Shipping Development Co. Limited v.
Proposition: Lanyard Foods Limited, the High Court ruled that a
petition for the winding up of an Indian company could be
Under Section 13(d) of the CPC, the following proposition pursued based on a foreign court's judgment. In this
can be established: instance, a foreign company delivered cargo to an Indian
company based on the latter's requests, incurring
Foreign courts must adhere to the principles of natural liabilities to third parties in the process. Legal
justice when rendering judgments. The judgment must be proceedings ensued, leading to a foreign court issuing an
impartial, fair, and the parties involved should be ex parte order in favor of the foreign company.
provided with proper notice of legal proceedings. Each Subsequently, the foreign company sought to recover the
party should have an equal opportunity to present their amount from the Indian company based on the order.
case to avoid allegations of violating the principles of When the Indian company failed to pay, the foreign
natural justice when seeking enforcement of the judgment company initiated winding-up proceedings against it. The
or decree in an Indian court. Failure to adhere to these High Court found that since the records clearly showed
principles may render the foreign court's judgment the Indian company's inability to pay its debts, the
unenforceable. winding-up petition was admitted.

Foreign Judgment Obtained by Fraud: Proposition:

In the realm of Private International Law, it is an Under Section 13(f) of the CPC, the following proposition
established principle that foreign judgments obtained may be established: A foreign court's judgment that
through fraudulent means do not hold the status of res violates any law in force in India may not be enforceable,
judicata. except when it is based on a contract governed by a
different "proper law of the contract."
It is often proclaimed that "Fraud and Justice never Dwell
together" (fraus et jus nunquam cohabitant) or "Fraud Enforcement of Foreign Judgments:
and deceit ought to benefit none" (fraus et dolus nemini
patrocinari debent). A foreign judgment that is conclusive and does not fall
within Section 13(a) to (f) may be enforced in India
In the case of Satya v. Teja Singh, the Supreme Court ruled through either of the following methods:
that when the plaintiff misled the foreign court regarding
its jurisdiction over the matter, even though the foreign Instituting Execution Proceedings:
court lacked such jurisdiction, the judgment and decree
were tainted by fraud and therefore inconclusive. A foreign judgment may be enforced through execution
proceedings in certain specified cases outlined in Section
In S.P. Chengalvaraya Naidu v. Jagannath, the Supreme 44-A of the CPC. This provision allows for the execution of
Court firmly established that a judgment or decree decrees from superior courts of reciprocating territories
obtained by perpetrating fraud upon the court is in India.
inherently void and holds no legal standing.
Section 44A – Execution of decrees passed by Courts in
Proposition: reciprocating territory:

Under Section 13(e) of the CPC, the following proposition Where a certified copy of a decree from any of the superior
may be established: When the plaintiff deceives a foreign courts of a reciprocating territory is filed in a District
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Court, the decree may be executed in India as if it were type of suit must be filed within three years from the date
issued by the District Court. of the foreign judgment.

Along with the certified copy of the decree, a certificate In the case of Marine Geotechnics LLC v. Coastal Marine
from the superior court specifying the extent to which the Construction & Engineering Ltd, the Bombay High Court
decree has been satisfied or adjusted must be filed. This emphasized that for a decree from a non-reciprocating
certificate is conclusive proof of the extent of satisfaction foreign territory, the decree holder should initiate a suit
or adjustment for the purposes of proceedings under this in a competent Indian court on the basis of the foreign
section. decree or the underlying original cause of action, or both.

The provisions of Section 47 shall apply to the execution However, in both scenarios, the foreign judgment must
proceedings of a District Court carrying out a decree pass the scrutiny of Section 13 CPC, which outlines
under this section. The District Court shall refuse to exceptions that render the foreign judgment inconclusive
execute such a decree if it falls under any of the exceptions and, consequently, unenforceable in India.
specified in clauses (a) to (f) of Section 13, based on
evidence presented. Enforcement of Foreign Awards:

Explanation I: "Reciprocating territory" refers to any A foreign arbitrator's award is enforceable in the country
country or territory outside India declared as such by the where it was rendered and can also be enforced in India.
Central Government in the Official Gazette. "Superior When considering the procedure for enforcing foreign
Courts" in relation to any such territory means the courts awards under the Foreign Awards (Recognition and
specified in the notification. Enforcement) Act (45 of 1961), courts may refer to the
Code of Civil Procedure (CPC) or any other applicable
Explanation II: "Decree" concerning a superior court statute.
refers to any decree or judgment of that court requiring
payment of a sum of money, excluding sums for taxes or Effect of Foreign Judgment:
similar charges, fines, or penalties. Arbitration awards,
even if enforceable as a decree or judgment, are not A foreign judgment holds conclusive status for matters
included. adjudicated between the parties. Such a judgment is
binding and establishes res judicata between the same
Moloji Nar Singh Rao v. Shankar Saran established that a parties or parties claiming through them.
foreign judgment that does not stem from a superior court
of a reciprocating territory cannot be executed in India. Limitation Period for Enforcement of Foreign Judgments:
Instead, a fresh suit must be initiated in India based on the
foreign judgment. In accordance with the provisions of the Code, foreign
judgments from reciprocating territories can be enforced
Under Section 44A of the CPC, decrees or judgments from in India in the same manner as decrees issued by Indian
the superior courts of reciprocating territories are treated courts. The Limitation Act of 1963 prescribes the time
as if they were issued by domestic courts and are limit for executing a foreign decree and for filing a suit in
enforceable accordingly. The judgment is executed the case of a judgment passed by a foreign court.
following the procedures outlined in Section 51 of the
Code, which may involve measures such as property The limitation periods are as follows:
attachment, sale, or even arrest in exceptional cases.
Three years, starting from the date of the decree or the
Instituting a Suit on the Foreign Judgment: date fixed for performance (in the case of a decree
granting a mandatory injunction).
In cases where a judgment or decree does not originate Twelve years for the execution of any other decree,
from a superior court of a reciprocating territory, a commencing from the date when the decree becomes
lawsuit must be filed in a competent Indian court based on enforceable or, in the case of a decree directing payment
the foreign judgment. The general legal principle dictates or delivery of property on a specific date, from the date
that decisions from foreign courts, tribunals, or quasi- when the default in payment or delivery occurs.
judicial authorities are not enforceable in a country unless
they are embodied in a decree issued by a domestic court. For judgments obtained from non-reciprocating
In such a lawsuit, the court cannot review the merits of the territories, a new suit can be filed in an Indian court, and
original claim, and it is conclusive regarding any matter the Limitation Act of 1963 specifies a limitation period of
directly adjudicated upon between the same parties. This
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3 years from the date of the foreign court's judgment for suit. It serves as the initial formal step in initiating a
initiating such a suit. lawsuit, specifying the cause of action and relevant
information essential for the suit. Order VII of the Code of
Definitions: Civil Procedure deals with the particulars of a plaint.

Affidavits - Order 19: Necessary contents of a plaint include:

Affidavits are addressed in Order 19 of the Code. They are  Court details where the suit is filed.
sworn statements made by individuals with knowledge of  Plaintiff's name, address, and description.
the relevant facts and circumstances. The person making  Defendant's name, residence, and description.
the statement, known as the "deponent," affirms the  Information about the plaintiff's defects, health
accuracy and truthfulness of the contents to the best of issues, or disabilities.
their knowledge and ensures no material information is  Description of the cause of action and where it
concealed. After signing the document, the affidavit must arose.
be duly attested by an Oath Commissioner or a Notary  Information for recognizing jurisdiction.
authorized by the court of law.  Relief sought by the plaintiff.
 Value of the subject matter for jurisdiction and
Key essentials of affidavits include: court fees.
 Plaintiff's verification on oath.
 A declaration by a person.
 Containing only facts, without inferences. Res Sub-Judice and Res Judicata (Sec. 10, 11):
 Presented in the first person.
 Presented in writing.  Res Sub-Judice: This principle prevents a court
 Statements made under oath or affirmation before from proceeding with the trial of a suit if the matter
an authorized officer or Magistrate. in issue is the same as in a previously instituted suit
between the same parties, and the previous suit is
Evidence on Affidavit: still pending before a competent court. The aim is
to avoid multiple cases on the same issue, protect
Under Section 3 of the Evidence Act, affidavits are not against contradictory judgments, and prevent
considered as evidence. When facts need to be proven, the harassment of litigants.
court typically relies on oral evidence.  Res Judicata: Res Judicata signifies that a matter
However, Rule 1 of Order 19 allows the court to order already adjudicated upon by a competent court
specific facts to be proven by affidavit. If a person provides cannot be re-litigated. It is a final decision on the
evidence through an affidavit, the opposing counsel has merits and bars subsequent actions on the same
the right to cross-examine or reply with an affidavit. cause of action between the same parties.

False Affidavit: Conditions for applying Res Sub-Judice (Section 10):

Filing a false affidavit is an offense under Sections 191, The matter in issue must be the same or substantially the
193, 195, and 199 of the Indian Penal Code, 1860. Strict same in both suits. The parties in both suits must be the
actions, including criminal contempt of court proceedings, same.
can be initiated by the court against individuals, including The title of both suits should also be the same.
public officials, who submit false affidavits. The former suit must be pending before a competent court.
The latter suit must be instituted while the former suit is
Meaning of Suit: pending.
The application of Section 10 is mandatory when all
While the term "suit" is not explicitly defined in the Code, conditions are met, and the court cannot exercise its
it refers to a legal proceeding initiated by presenting a discretion. However, if the latter suit can be decided solely
plaint. The suit sets out the plaintiff's claim and marks the on a legal point, the court can proceed with it.
first step in commencing a lawsuit, detailing what the
plaintiff seeks from the court. If the previously instituted suit is pending in a foreign
court, the Indian court can still proceed with the latter suit,
Plaint: as explained in the explanation clause of Section 10.

A plaint is a legal document that outlines the contents of a Inherent Power to Stay:
civil suit, presenting the plaintiff's claim after filing the
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The term "inherent" encompasses a broad meaning, court. In simpler terms, if a court has already rendered a
signifying an inseparable part of something or a judgment on a particular issue involving the same parties,
permanent and essential attribute or quality. It denotes that issue cannot be re-litigated. Res judicata applies to
something intrinsic and naturally connected to a person both civil and criminal legal systems and ensures the
or object. Therefore, inherent powers refer to the inherent finality of judicial decisions.
authority of courts, which cannot be separated or
removed from them, and they exercise these powers to Principles of Res Judicata:
ensure complete justice for the parties involved. Even
when the strict provisions of Section 10 do not apply, a Res Judicata encompasses two key concepts: claim
civil court possesses inherent power under Section 151 to preclusion and issue preclusion (collateral estoppel).
stay a suit in the interest of justice. Furthermore, courts Claim preclusion prevents parties from filing a
can consolidate different suits involving the same parties subsequent lawsuit on the same matter after a final
when the matter in issue is substantially the same. For judgment has been reached in a previous case involving
instance, in the case of Bokaro and Ramgarh Ltd. vs. State the same parties. Issue preclusion, on the other hand, bars
of Bihar and Another (1962), where the issue revolved the re-litigation of legal issues already determined by a
around property ownership, the court exercised its power judge in a prior case.
to consolidate various cases with similar subject matter.
Scope and Rationale:
Consolidation of Suits:
The scope of Res Judicata has been clarified in cases such
The primary objective behind Section 10 is to prevent as Gulam Abbas v. State of Uttar Pradesh, emphasizing
conflicting judgments on the same matter from different that it is not limited to the specific provisions of the
courts. To address this, courts can issue consolidation section. Res Judicata can apply based on general
orders for both suits. In the case of Anurag and Co. and Anr. principles even when a matter is not directly covered by
vs. Additional District Judge and Others, consolidation of the section. The rationale behind this doctrine is to
suits was explained as being ordered under Section 151 to promote fair administration of justice, honesty, and the
serve the interests of justice by saving parties from prevention of the abuse of legal processes. It aims to bring
multiple cases, delays, and expenses. It also relieves finality to litigation and avoid the re-litigation of matters
parties from presenting the same evidence in different already decided by a competent court.
locations.
Failure to Apply:
Effect of Contravention:
In cases where a court fails to apply Res Judicata and
A decree passed in contravention of Section 10 is not null renders a contradictory verdict on the same claim or issue,
and void; therefore, it cannot be completely disregarded. the "last in time" rule may be applied. This rule gives
It's essential to clarify that only the trial, not the precedence to the most recent judgment, regardless of
institution of the subsequent suit, is prohibited under this whether it differs from the earlier decision. It is the
section. However, parties have the option to waive their responsibility of the parties to bring the earlier case to the
rights, and if they choose to proceed with the subsequent court's attention, and the judge must decide how to apply
suit, they cannot later challenge the validity of the it.
proceedings.
Doctrine of Res Judicata:
Interim Orders:
An order of stay under Section 10 does not preclude the The Doctrine of Res Judicata addresses the constitutional
court from issuing interim orders. Interim orders are principle of double jeopardy, preventing individuals from
temporary directives passed for a limited duration, being subjected to a second trial for the same cause after
usually before the final judgment. Therefore, the court a judgment has been rendered. Section 11 of the Civil
retains the authority to issue such interim orders as it Procedure Code incorporates this doctrine, which is also
deems necessary, such as property attachments or known as the "rule of conclusiveness of judgment." It
injunctions. seeks to inculcate finality into litigation, ensuring that
matters adjudicated upon by competent courts are
Res Judicata: accepted as correct decisions.

Res Judicata, meaning "a matter adjudged," is a legal Constructive Res Judicata:
doctrine that prevents a matter from being litigated again
after it has been conclusively decided by a competent
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Constructive Res Judicata, a rule found in Section 11 of the  Res sub judice prohibits the trial of a suit that is
Civil Procedure Code, is an artificial form of Res Judicata. currently under consideration in a previous suit,
It prevents a party from raising certain pleas against the whereas res judicata bars the trial of a suit that has
same party in subsequent proceedings related to the same been conclusively decided in a former suit.
matter when those pleas could have been raised in a
previous proceeding. This rule helps establish a higher Res Judicata and Issue Estoppel:
bar against re-litigating issues and is an extension of the
general principles of Res Judicata. Issue estoppel prevents a person who has been tried for
an offense by a competent court and acquitted from being
In summary, Res Judicata serves to bring finality to legal retried for the same offense. This principle is found in
disputes, preventing parties from endlessly litigating the Section 300(1) of the Civil Procedure Code. It applies to
same issues in multiple proceedings and ensuring that criminal proceedings, preventing a person from being
judicial decisions are respected and upheld. tried again for an offense for which they have been
acquitted.
Res Judicata and Estoppel:
Res Judicata and Stare Decisis:
Estoppel refers to the legal principle that prevents an
individual from asserting something contrary to what a Res judicata and stare decisis are related to matters of
previous action implies. This concept is governed by adjudication:
Sections 115 to 117 of the Indian Evidence Act. Notably,
the rule of constructive res judicata falls under the  Stare decisis is based on legal principles and
umbrella of estoppel. Although res judicata and estoppel pertains to the consistency of legal decisions. It
share similarities, they differ in certain aspects: binds courts to follow established legal principles.
 Res judicata is based on the conclusiveness of
Origin: judgments and binds the parties involved in
 Estoppel arises from the actions of the parties litigation.
involved, whereas res judicata results from a
court's decision. Res judicata relates to disputes, whereas stare decisis
pertains to legal principles and their consistent
Equity: application.
 Estoppel is grounded in the principles of equity,
prohibiting a person who induced another to their Res Judicata and Collateral Estoppel:
disadvantage from benefiting from that alteration.
Res judicata prevents the multiplication of lawsuits. Collateral estoppel prohibits the relitigation of an issue or
case that has already been litigated. To apply collateral
Nature: estoppel, the following requirements must be met:
 Estoppel primarily operates as a rule of evidence
and applies to individual parties, while res judicata  The issue in both cases is the same.
bars a court from trying a case, effectively  The party against whom the doctrine is invoked had
preventing an inquiry at the outset. a full opportunity to litigate the issue.
 That party actually litigated the issue.
Averments:  The issue litigated was essential to the final
 Res judicata prevents a person from asserting the judgment.
same thing twice in litigation, while estoppel
prevents a person from making contradictory Res judicata bars the relitigation of a claim that has
claims simultaneously. already been litigated. Four factors must be satisfied for
res judicata to apply:
Res Judicata and Res Subjudice:
 A previous case in which the same claim was raised
Res sub judice and res judicata have distinct or could have been raised.
characteristics:  The judgment in the prior case involved the same
parties or their privies.
 Res sub judice applies to a matter pending trial,  The previous case was resolved by a final judgment
whereas res judicata applies to a matter that has on the merits.
already been adjudicated or arbitrated.  The parties had a fair opportunity to be heard.

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For example, if Abela sued John for sexual harassment and The court, in the case of Mahjibhai Mohanbhai Barot vs.
presented evidence in the form of emails, and the court Patel Manibhai Gokalbhai, held that an application for
ruled in her favor, Abela could not later sue her employer restitution is tantamount to an application for executing a
for failing to address her complaint based on the decree.
authenticity of those same emails. The issue of the emails'
authenticity was already decided (collateral estoppel), In the case of Lal Bhagwant Singh vs. Rai Sahib Lala Sri
and the court cannot redecide it. Kishen Das, the Supreme Court affirmed that the party
benefiting from an erroneous judgment is legally
Res Judicata Landmark Cases: obligated to make restitution to the other party for their
Brobston v. Darby Borough: losses.

In this case, the plaintiff sought damages for injuries This principle was reiterated in the case of Binayak Swain
sustained due to a transit company's actions. A judgment vs. Ramesh Chandra Panigrahi, emphasizing that upon the
was initially passed in favor of the defendant. When the reversal or modification of a decree or order, the law
plaintiff filed a subsequent action against the same imposes an obligation on the party benefiting from the
defendant with a slightly different name, the court refused erroneous decree to make restitution for all actions taken
the plaintiff's claims, considering it a misuse of legal under that decree. The court, when granting restitution,
processes. must strive to restore the parties to their pre-erroneous
judgment status as far as possible.
Henderson v. Henderson:
In the case of Union Carbide Corporation v. Union of India,
This case established that a party cannot raise a claim in the apex court emphasized that restitution is an equitable
litigation that was already raised in a previous suit, principle and is subject to the discretion of the court.
preventing the relitigation of the same issues. Section 144 of the CPC does not introduce new
substantive rights but obliges the court to ensure that no
Johnson v. Gore Wood and Company: party feels aggrieved by an act performed based on the
court's order.
In this case, the House of Lords addressed the relitigation
of issues that had already been determined in prior Actus Curiae Neminem Gravabit:
litigation. The settlement agreement included provisions
limiting subsequent claims against the defendant, The Latin maxim "actus curiae neminem gravabit" means
highlighting the importance of not revisiting already that the acts of the court should not prejudice anyone and
decided matters. is based on equitable principles. The court is duty-bound
to ensure that its orders do not adversely affect any
Doctrine of Restitution (Section 144): person. The apex court reaffirmed this maxim in the case
of Odisha Forest Development Corporation v. M/s
The doctrine of restitution aims to restore the aggrieved Anupam Traders.
party to its original position when an erroneous court
judgment grants a benefit to another party not entitled to Conditions for Applying Restitution:
such benefit. Restitution is not a new concept, and Section
144 merely provides statutory recognition of this To apply for restitution, the following conditions must be
principle. Section 144 of the Code of Civil Procedure (CPC) met:
addresses the application for restitution.
An erroneous judgment must have been passed by the
Section 144 stipulates that: court.
The party to the record must have benefited from the
When a court decree or order has been: erroneous judgment.
 Varied or reversed in any appeal, revision, or other The party seeking restitution must demonstrate that, as a
proceedings, or result of the erroneous judgment, the other party received
 Set aside or modified in any suit instituted for that a benefit.
purpose,
Restitution may be granted when a decree or order has
The court that issued the decree or order shall grant been varied or reversed, and the party seeking restitution
restitution upon receiving an application from the entitled is entitled to benefit from such variation, reversal, setting
party. aside, or modification.

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Who May Apply for Restitution: Section 144(2) bars the institution of a separate suit to
obtain remedies if restitution or other relief could be
Any person who: obtained by making an application under Section 144(1).

Was a party to the order or decree being varied, reversed, Caveat (Section 148A):
set aside, or modified. Is entitled to any benefit, either by
way of restitution or otherwise, concerning the order or Definition of Caveat:
decree being varied, reversed, set aside, or modified.
The term "caveat" originates from Latin, meaning "let a
Against Whom Restitution May Be Granted: person be aware." In legal contexts, it refers to a notice
given to prevent someone from taking certain actions
Restitution may be granted against the party that wrongly without informing the party who issued the notice. In the
received the benefit under the erroneous decree or order context of the Civil Procedure Code (CPC), the provision
of the court. The party benefiting from the erroneous for caveats is covered under Section 148A. While the CPC
judgment is legally obligated to make restitution to the doesn't explicitly define a caveat, the court, in the case of
aggrieved party for their losses. Nirmal Chand v. Girindra Narayan, described a caveat as a
warning issued by an individual to the court, demanding
Who May Grant Restitution: that no order or judgment should be passed without
notifying or hearing the caveator. The person lodging a
The court that initially issued the decree or order may caveat is known as the "Caveator," and the individual who
grant restitution when an application is made by the party has filed a lawsuit or is likely to do so is referred to as the
entitled to benefit from the reversed or varied decree or "Caveatee." The primary purpose of a caveat is to ensure
order. that the court does not pass ex parte orders and that the
interests of the caveator are safeguarded. Caveats also
Remedies the Court Can Grant: serve to streamline court proceedings and reduce the
complexity of litigation. It's important to note that, as
Under Section 144, the court can issue various orders as a established in the case of Kattil Vayalil Parkkum Koiloth v.
consequence of a decree or order being varied, reversed, Mannil Paadikayil Kadeesa Umma, a caveat cannot be filed
modified, or set aside. These orders may include the by a complete stranger to the lawsuit.
refund of costs and payment of interest, damages, When to Lodge a Caveat:
compensation, and mesne profit. According to Section 148A, individuals who anticipate
that a case may be filed against them or is about to be filed
Nature of Proceeding: in any court of law have the right to lodge a caveat. A
caveat can be filed in the form of a petition under the
The nature of the proceeding under Section 144 is akin to following circumstances:
execution proceedings, which involve the process of
implementing a court order. During an ongoing lawsuit or legal proceedings when an
application has already been made or is expected to be
Extent of Restitution: made.

Section 144 is not exhaustive but inclusive. Even if a When a lawsuit is about to be initiated, and it is
matter does not fall within the scope of Section 144, the anticipated that an application will be submitted in that
court has the discretionary power to grant restitution. lawsuit.

Inherent Power to Grant Restitution: In essence, caveats are always linked to applications in
ongoing or anticipated legal proceedings, whether those
Under Section 151, the court possesses inherent power to proceedings are currently instituted or expected to be
issue necessary orders to meet the ends of justice or initiated in the future.
prevent the abuse of the court's process. This includes the
power to grant restitution, even when Section 144 does Who May Lodge a Caveat:
not apply. The court can order the restoration of the status
quo ante (the previously existing state of affairs) in Section 148A also specifies that a caveat can be filed by
various circumstances to achieve justice. any person, regardless of whether they are a party to the
lawsuit, as long as the caveator has the right to appear
Bar of Suit: before the court regarding the specific lawsuit in question.
This means that even third parties connected to the case
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in some way can lodge a caveat. However, as previously A caveat, or a notice issued to the court to prevent certain
discussed, a caveat cannot be filed by someone who is actions, should typically contain the following
entirely unrelated to the case, as established in Kattil information:
Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa
Umma. In summary, this clause is substantive in nature, Name of the caveator.
and anyone claiming the right to appear before the court Address where the notice should be sent.
may file a caveat. Name of the court where the caveat is filed.
Suit number and, if applicable, appeal number.
Where Can a Caveat Be Lodged: Brief details about the lawsuit or appeal that is expected
to be filed.
Whenever a caveator anticipates that legal proceedings
may be initiated against them in the near future, they can Names of potential plaintiffs or appellants and
file a caveat petition in any Civil Court with original respondents.
jurisdiction, Appellate Court, High Court, or the Supreme
Court. This includes various types of Civil Courts, such as If, after filing a caveat, an application is submitted in any
Courts of Small Causes, Tribunals, Forums, and lawsuit or legal proceeding, the court is obligated to notify
Commissions. However, it's essential to note that, as the caveator about such an application. When a notice is
determined in Deepak Khosla v. Union of India & Ors, served on the applicant, the applicant must, at their own
Section 148A of the CPC applies only to civil proceedings expense, provide the caveator with a copy of the
and cannot be invoked for petitions under the Criminal application and any accompanying documents. Failure by
Procedure Code or petitions filed under Article 226 of the the court or the applicant to inform the caveator would
Constitution of India. render the subsequent decree or judgment null and void,
as stated in Section 148A(3).
How to File a Caveat:
In the case of The Reserve Bank of India Employees
A caveat under Section 148A should be signed either by Association & Anr. v. The Reserve Bank of India & Ors., a
the caveator or their legal representative (advocate). caveat petition was filed by the appellants due to the
When represented by an advocate, it should be apprehension of an injunction order by the respondent.
accompanied by a Vakalatnama (a document authorizing The plaintiffs were served with a notice and all relevant
the advocate to act on behalf of the caveator). The caveat documents. They were also informed that the application
is submitted and registered in a specific caveat register would be heard on 28-10-1980. However, the application
maintained by the courts, either in the form of a petition was not heard on the specified date but rather on 30-10-
or another prescribed form. This register typically 1980. The petitioners argued that because the court failed
contains information such as the date of the caveat, the to provide notice of the order to the plaintiffs, the
caveator's name and address, the names of the plaintiff judgment would be null and void under Section 148A(3).
and defendant, and the date and number of the However, the court disagreed with the appellants, stating
proceedings anticipated by the caveator. When filing a that a caveat provides the right to be informed about the
caveat, a copy, along with proof of postal service, must be hearing of the case but does not deprive the court of its
provided, and an application should inform the court that power to issue judgments or orders based on the merits
copies of the caveat have been sent to all relevant parties, of the case. Nonetheless, this precedent was overruled in
relieving the court from sending further notices. The court C.G.C Slddalingappa v. G.C Veeranna, where it was held
fees for filing a caveat may vary between different courts that the provision regarding notice under Section 148A(3)
but is generally a nominal amount, often less than INR 100. is mandatory, and non-compliance renders the order null
The rules and format for caveats are usually similar across and void.
most courts.
Rights and Responsibilities in the Context of a Caveat
To illustrate the steps for filing a caveat in the Delhi High
Court: When a caveat is filed, it entails specific rights and
responsibilities for the caveator, the applicant, and the
Support the caveat petition with an affidavit, both signed court. Let's examine these rights and duties separately:
by the caveator. Include a Vakalatnama when represented
by an advocate. Rights and Responsibilities of the Caveator
Attach any relevant orders (if applicable) and proof of
notice service to the court. Under Clause (2) of this section, when a caveat is
submitted as per sub-section (1), the caveator is obligated
What Does a Caveat Contain: to serve a notice of the caveat on the person who has filed
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or is expected to file an application as described in sub- is filed after the expiration of this period, the caveat
section (1). The caveator, at the time of initiating the becomes null and void. If the caveator still wishes to be
process, asserts that either there is an ongoing lawsuit in informed, they must file a fresh caveat for the next 90 days.
which they anticipate an application will be submitted, or
there is already an application pending in the lawsuit, and Common Mistakes Made When Filing a Caveat
they seek representation. Alternatively, they may
anticipate a future lawsuit in which an application will be Several common mistakes occur when filing a caveat,
filed, and they wish to be represented in that application. including:
Consequently, when such an application is filed, the
caveator has the right to be informed. However, before Filing a caveat in support of an application, when it should
being entitled to notice, the caveator must send a notice be noted that caveats can only be filed against an
via registered post to the applicant who is expected to file application.
this application or has already filed one. In other words, Forgetting to serve notice to the applicant, which is
the caveator must serve notice to the applicant, informing mandatory under Section 148A of CPC.
them that they are obliged to provide notice whenever Incorrectly claiming that an order or judgment was
they submit an application. incorrect due to the notice being given, even after the
expiration period. It is crucial to remember that after 90
Rights and Responsibilities of the Court days, a fresh caveat must be filed.

The court's duty comes into play once the caveat has been Inherent Powers of Courts (Section 148-153B)
lodged and notice has been served on the applicant.
Clause (3) of the Section stipulates that after a caveat has The term 'inherent' denotes something that is a
been filed, and subsequently, an application is filed in any permanent, absolute, inseparable, essential, or
lawsuit or legal proceeding, the court is required to serve characteristic attribute. Inherent powers of courts are
notice to the caveator. This means that once the caveator those powers that the court may exercise to ensure
has filed the caveat, expressing their desire for complete and impartial justice between the parties
representation, and then an actual application is filed involved. Courts have a duty to administer justice in every
within the next 90 days, the court will notify the caveator. case, whether or not specific provisions are outlined in the
The court informs the caveator that the application they legal code. These inherent powers are retained by the
anticipated has been filed, and the caveator now has the court, even though they are not explicitly conferred.
right to be heard before the court. Section 151 of the Civil Procedure Code deals with the
inherent powers of the court.
Rights and Responsibilities of the Applicant
Provisions of Sections 148 to 153B of CPC
In addition to the court providing notice, the applicant is
also obligated to serve notice to the caveator, informing The legal provisions governing the inherent powers of
them that an application related to the filed caveat has courts are detailed in Sections
been made. Clause (4) of the section directs the applicant 148 to 153A of the Civil Procedure Code. These sections
to furnish a copy of the application they have submitted, address the exercise of powers in various situations. Here
along with any other documents or papers that may have are the provisions related to the inherent powers of
been filed in support of their application, to the caveator. courts:
The court will not proceed with the application unless the
applicant submits an affidavit confirming that notice has Sections 148 and 149 deal with the grant or enlargement
been served on the caveator. of time.
Section 150 deals with the transfer of business.
Limitation of Time Section 151 safeguards the inherent powers of the courts.
Sections 152, 153, and Section 153A deal with
As outlined in clause 5 of the section, the caveat remains amendments in judgments, decrees, orders, or separate
in force for a period of 90 days. If an application is filed proceedings.
within these 90 days, both the court and the applicant are
required to provide notice to the caveator. However, if no Enlargement of Time
caveat is filed within these 90 days, no one has the
obligation to inform the caveator. In other words, if an Section 148 of the CPC stipulates that when a specific time
application period is fixed or awarded by the Court for the completion
of any act as mandated by the CPC, the Court has the

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discretionary authority to extend that period as needed, the fair administration of justice and prevent the misuse
even if the originally fixed period has lapsed. of the Court's procedures.

In simpler terms, when a specific time limit is set for the The scope of Section 151 of CPC can be illustrated by
completion of any act, the Court has the authority to various cases and situations:
extend that period for up to 30 days. This power is
exercised in the absence of any specific provision to the The Court may review its own orders and rectify errors.
contrary that reduces, negates, or withholds the time limit. It can grant interim injunctions when a case does not fall
The power is limited to extending the time originally fixed, under the purview of Order 39 or when dealing with an
and it is of a discretionary nature. 'ex parte' order.
Illegal orders or those issued without jurisdiction can be
Payment of Court Fees set aside.
Subsequent developments in a case can be considered by
According to Section 149 of the CPC, if the entire or a the Court.
portion of the court fee required for any document under The Court can exercise the power to conduct proceedings
the prevailing court fee law has not been paid, the Court 'in camera' or restrict the disclosure of its proceedings.
may, at its discretion, allow the person responsible for the The Court can expunge remarks made against a Judge.
fee to pay the entire or partial amount, as applicable. Upon The Court can amend a suit and rehear it on its merits or
such payment, the document in question, which is subject re-examine its orders.
to court fees, will have the same legal force and effect as if
the fee had been paid initially. Ends of Justice
This provision allows the court to permit a party to rectify
the deficiency in court fees on a complaint, notice of In the case of Debendranath v Satya Bala Dass, the concept
appeal, or other documents, even after the limitation of "ends of justice" was elaborated upon. It was held that
period for filing the lawsuit or appeal has expired. "ends of justice" are not mere polite expressions but
Payment of the required court fee is mandatory for any significant words embodying the idea that justice is the
document subject to court fees submitted to the court. If ultimate goal of all laws. This expression is not vague but
the court fee is paid within the time set by the court, the instead aligns with the legal principles and statutes
document cannot be considered time-barred. This governing justice in a given jurisdiction.
payment retroactively validates a defective document.
The court's power in this regard is discretionary and must The Court can exercise its inherent powers in various
be exercised in the interest of justice. situations, including reviewing its own orders and
Transfer of Business correcting errors, issuing injunctions when an order does
not fall under Order 39, and addressing 'ex parte' orders.
Section 150 of the CPC states that unless otherwise
provided, when the business of one court is transferred to Abuse of Process of the Court
another court, the court to which the business is Section 151 of the CPC empowers the Court to utilize its
transferred shall have the same authority and perform the inherent powers to prevent the abuse of the Court's
same functions as those sequentially prescribed and processes. When a party engages in misconduct that is
enforced by the CPC for the court from which the business unfair to the other party, the Court must provide remedies
was transferred. to ensure that the actions of the Court do not harm anyone.
If a party engages in fraudulent conduct within the Court
Section 151 of CPC - Preservation of Inherent Powers of or toward another party in a proceeding, remedies must
the Court be provided based on the inherent power of the Court.

Section 151 addresses the "Preservation of Inherent The term 'abuse' occurs when the Court uses a process in
Powers of the Court." This section explicitly states that a manner it was not intended to, resulting in an injustice.
nothing in the Code of Civil Procedure (CPC) shall be In such cases, the Court must correct the abuse to prevent
deemed to limit or otherwise affect the inherent power of an injustice. Parties may become perpetrators of abuse
the Court to issue orders necessary for the administration when they engage in actions such as obtaining benefits
of justice or to prevent the abuse of the Court's process. through fraud on the Court or another party, initiating
The Court is not obligated to wait for legislation from the multiple proceedings, and more.
Parliament or directives from higher judicial authorities.
It possesses discretionary and inherent authority to issue Section 152 of CPC deals with the "Amendment of
orders that are not explicitly provided for by law to ensure judgments, decrees, and orders." It allows the Court to
rectify written or arithmetic errors in judgments, decrees,
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or orders, or errors arising from an accidental slip or specific cases, parties may resort to filing regular civil
omission, either through its own initiative or upon the suits in court.
application of any party.
Courts Authorized to Execute Decrees
Section 153 covers the "General authority to amend,"
empowering the Court to amend any errors or faults in Section 38 of the CPC states that a decree can be executed
any proceedings in suits to ensure that issues raised are either by the Court of first instance or by the Court to
properly addressed. which it has been sent for execution.

Sections 152 and 153 clarify that the Court has the Section 37 defines the scope of the expression "court
authority to correct mistakes in its records at any time. which passed a decree." The courts included within this
expression are as follows:
Limitations
The court of the first instance.
The exercise of inherent powers is subject to certain The court that issued the decree in the case of appellate
limitations, including: decrees.
These powers can only be used in the absence of specific The court that had jurisdiction to hear the suit at the time
provisions in the Code. They cannot contradict the of execution if the court of first instance no longer exists.
provisions of the Code. The court that had jurisdiction to hear the suit at the time
They are applicable only in rare or exceptional cases. of execution if the court of first instance no longer has
While exercising these powers, the Court must follow the jurisdiction for execution.
procedural methods established by the legislature.
These powers cannot be used to interfere with the Transfer of Decree for Execution
principle of Res Judicata (finality of decisions).
Substantive rights of the parties must not be violated. Section 39 allows a decree-holder to apply to the court of
They cannot be used to prevent a party from pursuing first instance to transfer the decree for execution to
legal proceedings. They cannot invalidate an order that another court. This transfer may occur if any of the
was valid at the time of issuance. following conditions are met:

Execution of Judgment and Decree (Order 21) The judgment-debtor conducts business, resides, or
Definition, Nature, and Scope works for gain within the jurisdiction of the receiving
court.
The term "execution" is not explicitly defined in the CPC The property of the judgment-debtor falls within the
but refers to the process of enforcing or giving effect to a jurisdiction of the receiving court even if it is not under
court's order or judgment. Execution involves compelling the jurisdiction of the court of first instance.
the judgment-debtor to fulfill the decree's mandate, The decree directs the delivery or sale of immovable
allowing the decree-holder to recover what has been property situated outside the jurisdiction of the court that
granted by the judgment. For instance, when a decree- issued the decree.
holder obtains a judgment for a specific sum of money The court that issued the decree deems it appropriate for
against a judgment-debtor, execution involves collecting the execution to be carried out by another court, with
that amount from the debtor. written reasons provided.

Illustration: In a scenario where X sues Y for Rs 20,000 Section 39(2) grants the court of first instance the
and obtains a decree in their favor, X becomes the decree- authority to transfer a decree for execution to a
holder, Y becomes the judgment-debtor, and the Rs subordinate court of competent jurisdiction on its own
20,000 represents the judgment debt. Y is legally initiative.
obligated to pay Rs 20,000 to X as per the decree. If Y
refuses to pay, X can initiate the execution process to This section also clarifies that if the execution of a decree
enforce the decree. involves a person or property outside the territorial
jurisdiction of the court that issued the decree, that court
Execution Proceedings under CPC lacks the power to execute the decree.
The CPC contains comprehensive provisions governing
the execution of orders and decrees. These provisions Sections 51 to 54 of the Code deal with the execution
cover various scenarios and offer remedies to judgment- procedure. Section 51
debtors, decree-holders, and claimant objectors. If the This section outlines the jurisdiction and authority of the
provisions do not provide adequate or timely relief in court when executing a decree. The application for the
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execution of a decree can be made orally or in writing. The request for the division of government revenue is not a
court has the discretion to execute the decree according mandatory condition for invoking this section.
to the method requested by the decree-holder or as it
deems appropriate. Powers of the Transferor Court

Modes of executing a decree include: Once a court has passed a decree and transferred it to
another court with competent jurisdiction, the transferor
Delivery of specific property (movable or immovable) as court loses jurisdiction over that decree and cannot
decreed. execute it. Only the transferee court is authorized to
Sale of property with or without attachment, provided it entertain applications for execution.
is within the court's jurisdiction.
Arrest and detention of the judgment-debtor, with due Powers of the Transferee Court
process and notice.
Execution by appointing a receiver. Order 21 Rule 8 of the Code allows a decree to be executed
Any other mode necessary for the execution, if not by either the district court to which it was sent for
covered by the previous options. execution or a subordinate court with competent
jurisdiction, as referred by the district court. Section 42
Section 52 defines the powers of the transferee court, stating that it
shall possess the same powers in executing the decree as
This section addresses cases where a decree is passed if the decree had been passed by itself. The transferee
against the legal representative of a deceased judgment- court can enforce execution, including punishing those
debtor. As long as the property of the deceased remains who obstruct the execution process, just as if it had passed
with the legal representative, the decree can be executed the decree.
against that property, specifically when it involves the
payment of money from the deceased's property. This The court's powers include:
applies if the decree was passed against the party as the
legal representative of the deceased individual. Sending the decree for execution to another court under
section 39. Executing the decree against the legal
If property initially in the possession of the judgment- representative of a deceased judgment-debtor under
debtor comes into the hands of the legal representative section 50. Ordering the attachment of a decree. However,
without proper application, the court can enforce the the transferee court cannot order execution at the request
execution of the decree against the legal representative as of the decree's transferee or grant leave to execute a
if it were passed against them personally. decree against a firm against any person other than those
referred to in Rule 50 of Order XXI.
Section 53
Powers of the Executing Court
Section 53 stipulates that when property is liable for the
payment of a debt owed by a deceased ancestor and is in The section reiterates the jurisdiction and powers of the
the possession of a son or descendant, that property will court responsible for executing a decree. Applications for
be deemed to belong to the deceased. This property, execution may be made orally or in writing, and the court
which has come into the hands of the son or other can choose the most appropriate mode of execution,
descendants as legal representatives, is considered part of taking into consideration the decree-holder's request or
the deceased's estate for the purpose of executing the other factors.
decree.
Modes of executing a decree include:
Section 54
Delivery of specific property (movable or immovable) as
Section 54 is applicable when a decree has been issued for decreed.
partition or for obtaining separate possession of a share Sale of property with or without attachment, provided it
in an undivided estate, typically for the purpose of paying is within the court's jurisdiction.
government revenue. In such cases, the partition of the Arrest and detention of the judgment-debtor, with due
estate or share is to be carried out by the collector. process and notice. Execution by appointing a receiver.
However, if the collector refuses to conduct the partition Any other mode necessary for execution, not covered by
concerning revenue-paying property, the civil court can the previous options.
intervene and perform the partition. The plaintiff's Jurisdiction and Place of Suing (Sec. 15 to 20)

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Definition of Jurisdiction In the case of Shankar Narayanan Potti vs. K. Sreedevi, the
Supreme Court held that civil courts have inherent
Jurisdiction refers to the authority of a court to take jurisdiction in all types of civil matters unless the suit is
cognizance of an offense and determine a cause of action. expressly or impliedly barred. The legislature can exclude
According to Black's Law Dictionary, jurisdiction is civil court jurisdiction by inserting provisions in acts. The
defined as "a court's power to decide on a case or issue a exclusion must be based on legislative intent, and the act
decree." In the case of Hirday Nath vs. Ram Chandra, the must provide an alternative remedy for the excluded
High Court of Calcutta defined jurisdiction as the judicial jurisdiction. When an act does not provide an alternative
power of a court to hear, determine, and adjudicate upon remedy, civil court jurisdiction cannot be excluded.
a cause.
Territorial Jurisdiction (Section 16 to 20)
Factors Determining Jurisdiction Territorial jurisdiction is categorized into:
Jurisdiction is primarily determined based on:
Pecuniary value Suits related to immovable property (Section 16 to 18)
Local limits of the court's jurisdiction Suits related to movable property (Section 19)
The subject matter of the court Other suits (Section 20)

Before a court can take cognizance of an offense, it must Section 16 states that suits related to immovable property
consider the pecuniary value of the suit, the nature of the should be instituted where the property is situated. This
case, and the territorial limits of the court. It is not enough applies to various matters, including recovery of
for the forum to have the authority to deal with the matter immovable property, partition, foreclosure, sale, or
or for the court to have pecuniary or local jurisdiction. The redemption in the case of a charge or mortgage,
court must also be competent to grant relief in the matter. compensation for wrongs to immovable property, and
determination of interest or rights concerning immovable
Jurisdiction of Civil Court (Section 9) property. It also includes the recovery of movable
property under attachment or distraint for the above-
Section 9 does not explicitly define the term "civil." mentioned purposes.
However, it can be understood to refer to private rights
and remedies distinct from criminal and political matters. When a suit seeks compensation or relief for wrongs
A suit of civil nature involves disputes related to private caused to immovable property held by a defendant or
rights and is not connected to political or criminal issues. another person on behalf of a defendant, and the relief can
be obtained through the defendant's personal attendance,
Civil courts have jurisdiction to try all suits unless they are the suit may be filed in the court within whose local
expressly or impliedly barred. Even if a suit involves jurisdiction the property is situated or where the
questions related to religious ceremonies or rites, it is defendant voluntarily resides, carries on business, or
considered of civil nature if it pertains to the right to personally works for gain.
property or contesting an office. Suits expressly barred
are those prohibited by statutes or laws in force. Special Section 17 applies to cases where immovable property is
tribunals or courts with exclusive jurisdiction under situated within the local limits of the jurisdiction of
specific statutes may also limit the jurisdiction of civil different courts. In such cases, the suit may be filed in any
courts. However, if a legal question arises, the civil court court within whose local jurisdiction a portion of the
can still examine the matter. property is situated. The entire claim, in terms of value, is
within the jurisdiction of the chosen court.
Impliedly barred suits are those barred by general legal
principles or conduct that is against public interest. The Section 18 addresses situations where the jurisdiction of
court should not deal with matters that harm the public or courts is uncertain due to ambiguous local limits. If a court
go against public will. is satisfied that there is uncertainty regarding its
jurisdiction, it may proceed with the case and record a
The phrase "suits of a civil nature" in Section 9 has both statement indicating the uncertainty. The decree passed
positive and negative implications. It includes all civil by such a court will have the same effect as if the property
matters but excludes those expressly or impliedly barred. were situated within its local limits.
Section 9 places an obligation on the court to exercise
jurisdiction to enforce private rights, making it mandatory Section 19 deals with suits related to movable property. It
for the court to take cognizance of such matters. states that such suits should be filed where the defendant
resides or carries on business or where the cause of action
arises. This ensures that the court with jurisdiction over
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the defendant's location or where the cause of action such amendments are just and necessary for determining
occurred is the appropriate venue for the suit. the actual issues in dispute between the parties.

Institution of Suit (Sec. 26) and Pleadings (Order 6) Key points regarding the amendment of pleadings are as
follows:
What Are Pleadings?
Timing: Pleadings can be amended at any stage of the
Before delving into the amendment of pleadings, it's proceedings.
essential to understand what pleadings are and their role Purpose: The purpose of allowing amendments is to
in a civil suit. Pleadings are the foundational statements in ensure a just outcome in the case and to help determine
any civil suit, forming the basis upon which the entire case the real questions in dispute. Limitation: An application
is built. Without pleadings, a civil suit cannot be initiated. for amendment shall not be allowed after the trial has
Order 6 Rule 1 of the Code of Civil Procedure (CPC) defines commenced unless the court is convinced that, despite
pleadings as consisting of the plaintiff's plaint and the due diligence, the party could not have raised the matter
defendant's written statements. before the trial commenced. Discretionary Power: The
court has discretionary power to allow or disallow
 Plaint: The plaintiff initiates a civil suit by filing a amendments based on the circumstances of the case.
plaint in a civil court to present their claims and Nature of Amendment: Amendments can be made to the
seek relief. plaintiff's plaint or the defendant's written statements.
 Written Statements: The defendant, in response, Conditions for Granting Amendment: The court may allow
submits written statements within 30 days from amendments if:
the date of receiving the summons. These written  The amendment does not cause injustice to the
statements are filed by the defendant to present other party.
their defense.  The amendment is necessary to determine the real
issues in dispute.
Pleadings should be meticulously drafted and devoid of  The amendment does not defeat the law of
vague or ambiguous statements. They comprise material limitation.
facts that help the plaintiff establish the cause of action  The amendment does not introduce a completely
and enable the defendant to build their defense in the civil new case.
suit.  The party applying for the amendment is not
Rules for Drafting Pleadings: negligent.
 The proposed alteration is just and does not violate
When drafting pleadings, certain rules should be legal rights or cause injustice to the other party.
followed:  The amendment is not made with mala fide
intentions.
Pleadings should present facts, not apply the law. The
court alone has the authority to apply the law based on the Doctrine of Relation Back: Generally, when an amendment
facts presented in the pleadings. The case of Gouri Dutt is allowed, it relates
Ganesh Lal Firm v. Madho Prasad emphasizes that back to the date of the original suit. However, in
pleadings should be boiled down to four words: "Plead exceptional cases, the court may direct that the
facts, not laws." Pleadings should contain material facts amendment does not relate back to the date of the suit.
that are relevant to defining the cause of action for the Procedure for Filing an Application: Parties seeking to
plaintiff or strengthening the defendant's defense, as amend their pleadings should draft an application and
stated in the case of Virender Nath v. Satpal Singh. submit it to the relevant civil court. They are required to
Pleadings should not include evidence. Evidence is pay the prescribed court fee and state the purpose of the
presented during the trial based on the facts established proposed amendment. The court will review the
in the pleadings. Pleadings should present material facts application and, if deemed fit, grant permission for the
concisely. Irrelevant or immaterial statements should be amendment. The party making the amendment must then
avoided when drafting the plaint. file the revised pleadings within the specified time frame.
Amendments and Limitation: While the limitation period
Amendment of Pleadings (Order 6 Rule 17): may be a ground for rejecting an amendment application,
the court still has discretionary power to allow the
Order 6 Rule 17 of the CPC deals with the amendment of amendment if it deems it necessary in the interest of
pleadings in a civil suit. This rule grants the court the justice.
authority to allow parties to alter or amend their
pleadings at any stage of the proceedings, provided that
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Order 6 Rule 18: initial and fundamental stage in initiating any legal action,
guiding the determination of the appropriate jurisdiction
Order 6 Rule 18 of the CPC deals with the consequences of in a civil court.
failing to amend pleadings as per the court's order. If a
party, who has been granted leave to amend, fails to do so Order VII of the Code of Civil Procedure specifically
within the specified time frame or within fourteen days addresses plaints. Within Order VII of CPC, various rules
from the date of the order (if no specific time is set), the pertain to different aspects of the plaint. Rules 1 to 8
party will not be permitted to make the amendment delineate the particulars of the plaint, Rule 9 of CPC
unless the court extends the time. explains how the plaint will be admitted, and subsequent
Rules 10 to 10-B discuss the return of the plaint and the
Criticism of Order 6 Rule 17: appearance of parties. The primary Rules, i.e., 11 to 13,
Order 6 Rule 17 has faced criticism for several reasons: elucidate the circumstances under which the plaint can be
rejected.
Delay in Justice: Allowing amendments often leads to
delays in the proceedings. It is argued that a significant Section 26 of the Code of Civil Procedure stipulates,
percentage of amendment applications are filed solely to "Every suit shall be instituted by the presentation of a
prolong the legal process. Backlog: Indian courts already plaint or in such other manner as may be prescribed." This
grapple with a backlog of cases, and the amendment of section underscores the indispensable nature of the plaint
pleadings can further burden them. Misuse: Some argue for the initiation of a suit before a civil or commercial
that Order 6 Rule 17 is frequently misused. Hindrance to court.
Speedy Disposal: Critics contend that this rule can hinder
the timely disposal of cases. Violation of Legal Rights: Essential Contents of a Plaint
There is a concern that it may lead to the violation of legal A plaint is a legal document that must contain specific
rights on the other side. Difficulty in Determining Real essential contents; without these, it cannot be recognized
Issues: At times, it can be challenging to ascertain the as a valid plaint. These necessary contents are stipulated
actual questions in dispute between the parties due to in Rules 1 to 8 of Order VII of CPC and include the
frequent amendments. following:

The controversy regarding the interplay between the Identification of the court where the suit will be initiated.
amendment of pleadings and the Limitation Act is still Details about the Plaintiff, including name, address, and
unsettled, and various interpretations exist. description.
Information about the Defendant, encompassing name,
In conclusion, Order 6 Rule 17 of the CPC grants the court residence, and description.
discretion to allow amendments to pleadings to ensure A statement regarding any defects, health issues, or
justice is served. However, it has faced criticism for disabilities of the Plaintiff, if applicable.
potential misuse and delay in the legal process. Facts giving rise to the cause of action and the location
Amendments should be granted judiciously, considering where the cause of action occurred.
the circumstances of each case. Facts that not only substantiate the cause of action but
also aid in establishing jurisdiction.
Plaint and Written Statement (Order 7, 8) Plaint Information about the relief sought by the Plaintiff from
the court.
A Plaint is a legal document that encapsulates the essence The amount, if any, that the Plaintiff is willing to set off
of a civil suit, outlining the Plaintiff's claims upon from their claim.
initiating legal proceedings. It serves as the foundational A statement of the value of the subject matter of the suit,
step taken by the Plaintiff in the form of a legal document relevant for jurisdiction and court fees.
to commence a suit, expressing the Plaintiff's objectives in Verification by the Plaintiff on oath.
the case. The concept of a plaint is enshrined in the Civil
Procedure Code. Through the medium of the plaint, the These elements collectively constitute a comprehensive
Plaintiff narrates or describes the cause of action and plaint and are indispensable throughout the legal
pertinent details crucial from the perspective of the suit. proceedings. Additional particulars not mentioned above
include stating the exact amount of money to be recovered
Within the realm of a plaint, the cause of action comprises from the Defendant (Rule 2 of Order VII), and when the
two distinct components: the legal theory (the factual plaint involves immovable property, it must be
circumstances upon which the Plaintiff bases their claim) meticulously described (Rule 3 of Order VII).
and the legal remedy sought from the court. The plaint Rejection of Plaint
assumes paramount importance because it represents the
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A plaint may be rejected under certain circumstances Rule 11 can be filed at any stage, and the court must
when it fails to meet specific requirements. Some dispose of it before proceeding with the trial. Kuldeep
situations in which a plaint may be rejected include: Singh Pathania vs. Bikram Singh Jarya: This case clarified
that, for an application under Order VII Rule 11(a) of the
When the cause of action is not disclosed, rendering it Code of Civil Procedure, only the Plaintiff's pleadings can
impossible to prove the damage suffered by the Plaintiff. be considered, and the written statement or other
If the Plaintiff undervalues the relief sought, and the court averments cannot be taken into account during the
requests correction within a specified timeframe, but the inquiry.
Plaintiff fails to comply. When all required documents are
not properly stamped, and the Plaintiff, upon court Appearance and Non-Appearance of Parties (Order 9)
request, fails to supply the necessary stamp paper within
a designated timeframe. When the plaint relies on a Appearance of Parties to the Suit
statement secured by a law or statute that does not grant
the Plaintiff the right to file the suit. If a duplicate copy of As stipulated in Rule 1 of Order IX of the Code of Civil
the plaint, mandatory as per the rules, is not submitted. Procedure, the parties involved in a suit are required to
When the Plaintiff fails to adhere to the provisions of Rule attend the court, either in person or through their legal
9 of Order VII of CPC. representatives (pleaders), on the designated date
specified in the summons. When the plaintiff or defendant
Provisions Regarding the Rejection of Plaint under CPC fails to appear before the court in response to an order for
personal appearance and fails to provide a valid reason
The Code of Civil Procedure contains provisions related to for their non-appearance, Rule 12 of Order IX empowers
the rejection of a plaint, including: the court with the following actions:

Order VII Rule 12 of CPC delineates the procedure for If the plaintiff does not appear, the court may dismiss the
rejecting a plaint, providing guidance for future cases. suit.
Order VII Rule 13 of CPC stipulates that the rejection of a If the defendant does not appear, the court may pass an
plaint does not preclude the presentation or filing of fresh ex-parte order.
plaint.
Non-Appearance of Both Parties to the Suit
The rejection of a plaint can occur through two modes:
When neither the plaintiff nor the defendant appears in
The Defendant has the right to file an application, in the court for a scheduled hearing, Rule 3 of Order IX grants
form of an interlocutory application, at any stage of the court the authority to dismiss the suit. However, the
proceedings to request the rejection of the plaint. Suo dismissal of the suit under this rule does not prohibit the
moto rejection, where the court, on its own, rejects the filing of a fresh suit based on the same cause of action, as
plaint, is governed by Order VII Rule 11. The court can outlined in Rule 4.
initiate this process if the plaint fulfills the conditions The plaintiff can also seek to set aside the dismissal if they
outlined in the first point. can satisfy the court that there was a valid reason for their
non-appearance. If the court is convinced of the sufficient
Landmark Cases on the Rejection of Plaint cause for non-appearance, it may overturn the dismissal
order and schedule a new hearing date for the suit.
Several cases have shaped the jurisprudence surrounding
the rejection of a plaint, including: Appearance of the Plaintiff

Kalepur Pala Subrahmanyam v. Tiguti Venkata: This case When only the plaintiff appears in court, and the
established that a plaint cannot be partially rejected while defendant is absent, an ex-parte order may be issued
retaining another part; it must be rejected in its entirety. against the absent defendant. However, the plaintiff must
Sopan Sukhdeo Sable v. Asstt. Charity Commr.: In this demonstrate that the summons was duly served to the
case, it was held that an application under Order VII Rule defendant.
11 filed to delay proceedings at the stage of recording
evidence would be rejected. Bibhas Mohan Mukherjee v. An ex-parte order can only be issued if the court is
Hari Charan Banerjee: This case established that an order satisfied with the proof of summons service to the
rejecting a plaint is considered a decree and is applicable defendant. The court may then proceed with the case and
and binding in other cases involving the rejection of a render a decree in favor of the plaintiff. It's important to
plaint. ROJA vs. U.S. RAYU: This case determined that an note that this provision applies exclusively to the initial
application for the rejection of a plaint under Order VII
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hearing and not subsequent hearings, as established in the suit dismissed due to non-appearance, they are entitled to
case of Sangram Singh v. Election Tribunal. have the suit or application restored by paying the costs.

Even when rendering an ex-parte order, the court has the When Summons Is Not Served
duty to ensure the delivery of justice even in the absence
of the defendant. The Supreme Court, in the case of Maya Rules 2 to 5 of Order IX address situations where the
Devi v. Lalta Prasad, emphasized that the court must summons is not served to the defendant. It is fundamental
verify whether the allegations in the plaint are that parties must be given a fair opportunity to present
substantiated and whether the prayers before the court their case, and proper notice of legal proceedings is a
are deserving of being granted. An ex-parte order cannot prerequisite. Therefore, serving the summons to the
be issued when there are multiple defendants in the case, defendant is mandatory and a condition precedent.
and any one of them appears.
If there is no service of the summons or if it does not afford
Appearance of Defendant the defendant sufficient time to prepare an effective
defense, the court cannot pass a decree against the
Rules 7 to 11 of Order IX govern the appearance of the defendant, as established in the case of Begum Para v.
defendant when the plaintiff is absent. Two scenarios can Luiza Matilda Fernandes.
arise when the defendant is present, but the plaintiff is
not: Rule 2 of Order IX also states that if the plaintiff fails to pay
the costs for serving the summons to the defendant, the
The defendant does not admit the plaintiff's claim, either suit may be dismissed. However, if the defendant appears
in part or in full. The defendant admits all or part of the on the day of the hearing, whether in person or through a
plaintiff's claim. pleader, the dismissal cannot proceed. In such cases, the
plaintiff retains the right to file a fresh suit. If the court is
If the defendant does not accept the plaintiff's claim, the satisfied that there is a reasonable reason for the failure
court will order the dismissal of the suit. However, if the to pay costs, it may set aside the dismissal order.
defendant acknowledges the plaintiff's claim, the court
may pass a decree in favor of the plaintiff based on that When the summons is returned unserved, and the plaintiff
admission. The rest of the claim will be dismissed in such does not apply for fresh summons within seven days from
cases. the date of return, the court may dismiss the suit against
the defendant(s).
Dismissal of the plaintiff's suit without hearing them is a
significant matter and should only be considered when When the service of the summons to the defendant is not
the court is convinced that such dismissal is necessary in proven, the court may direct the issuance of a fresh
the interest of justice, as noted in the case of Shamdasani summons for service. If the service of the summons is
v. Central Bank of India. proven but the time provided in the summons for the
defendant to respond is insufficient, the court may
Application to Set Aside Dismissal postpone the hearing to a later date, providing notice to
the defendant.
If a suit is dismissed due to the plaintiff's non-appearance,
the plaintiff can file an application to set aside the Ex Parte Appearance and Decree
dismissal order. The court may set aside the dismissal if it
is satisfied with the reason provided for the non- An ex-parte decree can be issued when the defendant is
appearance and schedule a new hearing date for the suit. absent on the scheduled hearing date. An ex-parte order
is also passed when the plaintiff appears in court on the
Sufficient Cause hearing date, but the defendant, after receiving due
summons, does not attend. The court may proceed with
In determining sufficient cause for the non-appearance of the suit ex-parte and issue a decree against the absent
the plaintiff, the court assesses whether the plaintiff defendant.
genuinely attempted to appear on the scheduled hearing
date. Sufficient cause is a factual inquiry, and its An ex-parte decree is legally valid and enforceable,
determination depends on the circumstances of each case. although it can be annulled based on legal and valid
grounds. An ex-parte decree carries the same legal force
In the case of Chhotalal v. Ambala Hargovan, the Bombay as a decree rendered after both parties are heard, as
High Court noted that if a party arrives late and finds their affirmed in the case of Panduranga Ramchandra v.
Shantibai Ramchandra.
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Remedies Against an Ex-Parte Decree case and the involved parties. Additionally, the
commissioner should have the necessary skills and
When an ex-parte decree is rendered against a defendant, expertise to carry out the specific tasks outlined in the
several remedies are available: commission.

An application can be made under Rule 13 of Order IX to The district judge, overseeing the subordinate courts,
set aside the ex-parte decree. must exercise caution when appointing a commissioner.
An appeal against the decree can be filed under Section Repeated appointments of the same individual for all
96(2) of the Code or a revision petition under Section115 commissions and selecting individuals who frequently
of the Code, when an appeal is not frequent the court should be avoided.
permissible.
A review application can be filed under Order 47 Rule 1. A What Is the Procedure for Appointing a Commissioner?
separate suit on grounds of fraud can be initiated.
Every High Court is authorized to establish rules and
Setting Aside an Ex-Parte Decree regulations governing the procedures followed by
subordinate courts, including the appointment of
To set aside an ex-parte decree, the defendant may file an commissioners. The procedure for appointing a
application. Such an application must be submitted to the commissioner is typically outlined in state-specific High
court that issued the decree. Specific rules and conditions Court rules. For example, Delhi's High Court Rules of 1967,
must be met to set aside an ex-parte decree, and it can only Chapter 10, delineate the procedure for appointing a
be done if the defendant can demonstrate sufficient commissioner in Delhi. The process generally involves:
grounds for their non-appearance.
Formation of a panel of up to four commissioners,
Commissions (Sec. 75 to 78 Order 26) including young individuals, often including a female
lawyer, designated by the court to record evidence.
What Is the Purpose of a Court-Appointed Commission? Notification by the district court to the local bar regarding
commissioner vacancies, followed by the submission of
A court-issued commission is a directive from the court to applications and recommendations by the bar to the court
a designated individual, known as a court commissioner, and High Court.
to act on behalf of the court and undertake all necessary
actions to facilitate the administration of full and Appointments are typically for three years, extendable by
impartial justice. The commission serves various High Court order, with a maximum tenure of six years
purposes, such as conducting local investigations or from the initial appointment.
recording the testimony of witnesses who cannot appear
in court physically. When Can a Commissioner Be Appointed by the Court?

Who Has the Authority to Appoint a Commissioner? A court can appoint a commissioner when specific
functions need to be carried out as mandated by the court.
According to the Code of Civil Procedure (CPC), the court Section 75 of the CPC grants the court the authority to
responsible for the case is empowered to appoint a issue a commission for various purposes:
commissioner. Section 75 specifies that "the Court" can
issue a commission, subject to certain limitations and Examination of Witnesses: Orders 26, Rules 1-8
conditions. Therefore, the court presiding over the
lawsuit has the authority to designate a commissioner.  When witnesses cannot attend court due to illness,
The appointment of a commissioner can occur in response incapacity, or other valid reasons, the court can
to a party's application or at the court's discretion through appoint a commissioner to record their testimony.
a suo moto commission issuance.
Local Investigations: Orders 26, Rules 9-10
What Are the Qualifications for a Court Commissioner?  The court may appoint a commissioner for local
investigations to gain a better understanding of
Typically, a pool of commissioners is established by the disputed matters, ascertain property values, or
High Court, consisting of competent individuals, often assess mens rea or annual net profits.
including legal professionals, capable of executing
commissions on behalf of the court. The appointed Adjustment of Accounts: Orders 26, Rules 11-12
commissioner must possess qualities such as
independence, impartiality, and a lack of interest in the
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 In cases requiring verification of accounts involved court's purview. Commissioners should also refrain from
in the lawsuit, the court can issue a commission to seizing documents to prevent prejudice to parties.
examine such accounts.
Evidentiary Value of the Commissioner's Report
Partition of Property: Orders 26, Rules 13-14
 After passing a preliminary decree for property The report and evidence submitted by commissioners are
partition, the court can appoint a commissioner to considered part of the case record. However, if evidence is
oversee the division of property and submit a presented without the accompanying report, it does not
report. become part of the record. The court ultimately
determines the weight and reliability to attribute to the
Scientific Investigations: Orders 26, Rule 10-A commissioner's report, which can be challenged under
 In cases necessitating scientific investigations, such certain circumstances.
as identifying specific substances, the court may
appoint a commissioner to conduct such inquiries. Who Is a Receiver According to the Civil Procedure Code?
In accordance with Order 40 of the Civil Procedure Code
Property Sales: Orders 26, Rule 10-C (CPC), a receiver is an impartial and independent
If movable property is subject to sale and preservation is individual appointed by the court to oversee, protect, and
not feasible, a commissioner can be tasked with selling the preserve a disputed property that is the subject of a
property and submitting a report detailing the proceeds. lawsuit. For instance, in a legal dispute between parties A
and B over an immovable property, if the court
Ministerial Work: Orders 26, Rule 10-B determines that it's in the best interest of both parties to
Commissioners can be appointed to perform take possession away from B and place it in the hands of a
administrative tasks, such as accounting and calculations, neutral third party, the court may appoint a receiver. This
on behalf of the court. receiver's role includes managing the property's affairs
until the lawsuit is resolved. The appointed receiver is
Powers of the Commissioner: Orders 26, Rules 16-18 responsible for property maintenance, which includes
collecting income like rent or profits and using these
Commissioners are vested with specific powers under funds for property upkeep. After deducting maintenance
Order 26, Rules 16-18. These powers include: expenses, any remaining income is submitted to the court.
Importantly, a receiver is not a representative of either
Examination of Parties and Witnesses: Commissioners party in the lawsuit; rather, they are considered an officer
can examine parties, witnesses, and individuals who may of the court acting in the common interest of all parties
provide relevant evidence. Directive to Produce involved.
Documents: Commissioners have the authority to compel
parties to produce necessary documents. Entry and What Is the Purpose of Appointing a Receiver?
Search: Commissioners may, with court permission, enter
and search land or buildings relevant to the commission's The appointment of a receiver serves several essential
objectives. Ex Parte Proceedings: If a party fails to appear purposes:
before the commissioner as ordered by the court, the
commissioner can proceed ex parte. Protection of the Property: A receiver is appointed to
safeguard and preserve the property in dispute. This is
Remuneration for Commissioners crucial to prevent one party from depleting or causing
irreparable harm to the property, which could undermine
While the CPC does not expressly provide for the entire purpose of the lawsuit.
remuneration for commissioners, Rule 15 of Order 26 Interim Protection: A receiver is a form of interim
allows for the deposit of funds by the applicant to cover protection provided by the court until the final resolution
the commissioner's expenses. The court has discretion to of the case. It ensures that the property remains intact and
issue directions regarding remuneration as part of the its value is preserved until the court makes a final
commission issuance. determination.

Limitations on Commissioners What Is the Role of a Receiver?

Commissioners are tasked with assisting the court in its A receiver is considered an officer of the court and acts as
judicial functions but cannot replace the court's judicial an extension of the court's authority. Their primary
authority. They cannot perform judicial functions, such as responsibilities include:
determining the value of property, which falls within the
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Receiving Income: A receiver collects rents and profits These principles, established in cases like T.
generated by the property in question. Krishnaswamy Chetty vs. C. Thangavelu Chetty and others
Managing Income: They are responsible for handling and (AIR 1955 Mad 430), form the foundation of receiver
allocating the collected income in accordance with court appointments in Indian jurisprudence.
orders.
Execution of Documents: A receiver may execute legal Who Can Apply for the Appointment of a Receiver?
documents related to the property, effectively acting as
the property owner. Typically, it is the plaintiff who files an application for the
Instituting and Defending Lawsuits: In some cases, a appointment of a receiver, but defendants can also make
receiver may need to initiate or defend legal actions on such applications. Third parties are generally not
behalf of the property or its interests. permitted to apply directly but may do so with court
Exercise of Court-Granted Powers: A receiver exercises permission if they have a vested interest in protecting and
only those powers granted by the court while being preserving the property.
mindful of the court's instructions.
Who Can Be Appointed as a Receiver?
Who Can Appoint a Receiver?
A receiver should be an impartial, independent, and
According to Section 51(d) of the CPC, the court before disinterested party with no stake in the disputed property.
which the proceedings are pending has the authority to While parties to the lawsuit are generally not appointed
appoint a receiver when it deems it just and convenient to as receivers, exceptions may arise in extraordinary
do so. The decision to appoint a receiver is within the circumstances.
court's discretion. For instance, in a trial, the trial court
has the authority to appoint a receiver, while in an appeal, When Can a Receiver Be Appointed?
the appellate court can make such an appointment.
However, this discretion is not unfettered and must be A receiver can be appointed by the court whenever it
exercised in accordance with principles of justice and determines that either party should not possess the
equity. disputed property during the lawsuit. The court may
appoint a receiver either before or after a decree is issued
How Does the Court Decide to Appoint a Receiver? and can remove any person from the property's
possession or custody, entrusting it to the receiver. Under
Before appointing a receiver, the court must consider Section 94(d) of the CPC, a receiver can also be appointed
several key principles: to prevent the miscarriage of justice. Additionally, for
executing a decree, the court has the power to appoint a
Discretionary Power: The appointment of a receiver is a receiver under Section 51(d) of the CPC. Specific
discretionary remedy. provisions in special acts may also allow for the
appointment of a receiver.
Protective Relief: It is intended to protect and preserve
the disputed property during the pending lawsuit. What Is the Process of Appointing a Receiver?
Strong Prima Facie Case: A receiver should only be
appointed if the plaintiff demonstrates a strong prima The process of appointing a receiver is outlined in court
facie case against the defendant, indicating a likelihood of rules established by the respective courts. High courts
success in the lawsuit. Not Based on Harmlessness: A have the authority to make rules for the supervision and
receiver should not be appointed solely on the premise control of subordinate courts. For example:
that it will cause no harm. Prevention of Harm: A receiver
is appointed when there is a credible threat of harm to the In the Delhi High Court (Original Side) Rules, 1967,
property or when the plaintiff's situation will worsen if Chapter XIX, the process may involve:
the appointment is delayed. Protection of Common
Interest: When the property is not in the possession of  Filing a written application for a receiver supported
either party and is of common interest to both parties, a by an affidavit.
receiver may be appointed to protect and preserve it.  Requiring non-official receivers to provide security
Clean Hands Doctrine: The party seeking the appointment to account for funds received from the property.
of a receiver should come to court with clean hands,  Specifying the number of sureties and the value of
demonstrating proper conduct that does not disqualify personal bonds to be provided.
them from receiving this equitable relief.  Requiring the receiver to submit an initial report
detailing property inventory or accounts within
one week of appointment.
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 Providing directions for the investment of funds can result in legal action, and the receiver may be held
received from the property, often in scheduled personally liable for any losses caused by their negligence
banks or government bonds. or willful failure to protect and preserve the property.

What Are the Powers of a Receiver? Receiver's Liabilities (Order 40, Rule 4):

Under Order 40, Rule 1(d) of the CPC, a receiver is granted According to Order 40, Rule 4, if a receiver fails in any of
specific powers, including: the following ways:
Fails to submit the required reports as specified by the
Collection of Rents and Profits: A receiver can collect court. Fails to pay the amounts due from them as directed
income such as rents and profits generated by the by the court. Causes loss to the property due to gross
property. negligence.
Application and Disposal of Income: They have the Fails to fulfill any other duty directed by the court.
authority to apply and dispose of collected income as
required. In such cases, the court has the authority to order the
Execution of Documents: A receiver may execute legal attachment of the receiver's property to recover the losses
documents on behalf of the property owner. Institution resulting from their willful default or negligence. Once
and Defense of Lawsuits: In some cases, a receiver may these losses are recovered from the proceeds of the sale
initiate or defend legal actions relevant to the property. of the receiver's property, any remaining balance, if any,
Court-Delegated Powers: A receiver may exercise any will be paid to the receiver.
other powers delegated by the court.
The receiver is also bound to exercise prudence in
A receiver's powers are granted and limited by the court, managing expenses and caring for the property under
and they should always seek court advice for important their possession, similar to how a prudent individual
decisions regarding the property to protect themselves. would manage their own property in similar
circumstances.
Without court permission, a receiver cannot:
Receiver Remuneration:
 Grant leases on the property.
 Initiate lawsuits, except for rent-related suits, Receivers are entitled to remuneration for the services
which require court permission. they provide, as determined by the court. Additionally,
they may be compensated for any losses or expenses
Receiver Duties and Liabilities Explained Receiver's incurred in maintaining the property. The court, under
Duties (Order 40, Rule 3): Order 40, Rule 2, has the authority to set the remuneration
Under Order 40, Rule 3, the responsibilities of a receiver to be paid to the receiver based on their services. The
are outlined as follows: court may issue a general or specific order specifying the
remuneration terms.
Security Requirement: The receiver must provide security
to account for the income they will receive from the For example, the Delhi High Court, under its original side
property. Account Submission: The receiver is obligated rules from 1967, has outlined a remuneration structure
to submit accounts, typically on a half-yearly basis or as for receivers based on various factors, including rents
directed by the court. These accounts must detail the recovered, outstanding recoveries, and the value realized
income received and the expenses incurred for the from the sale of movable and immovable properties.
protection and preservation of the property. Payment to These percentages are applied progressively, depending
the Court: Any amounts due to the court, as directed by on the value involved.
court orders, must be promptly paid by the receiver.
Accountability for Loss: The receiver assumes In cases where no specific remuneration is specified for a
responsibility for any reduction in the property's value particular task, the court has the discretion to grant
resulting from their willful negligence. Personal Discharge remuneration it deems reasonable, based on the
of Duties: The receiver must personally discharge their receiver's application.
duties and cannot delegate or assign any of the
responsibilities entrusted to them by Appointment of a Collector as Receiver:
the court.
Under Order 40, Rule 5, if the revenue generated from the
A receiver is obliged to fulfill all these duties and property is received by the government, the court has the
responsibilities as directed by the court. Failure to do so authority to appoint a collector as a receiver, provided the
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collector consents to the appointment. The court may false or misleading statements were made in support of
make this appointment if it believes that entrusting the the injunction, it can be voided.
property's management to a collector would serve the
best interests of those concerned. Binding on Corporation Officers: An injunction against a
corporation is binding not only on the corporation itself
Irreparable Harm: The court considers whether the but also on all its members and officers whose actions it
plaintiff would suffer irreparable harm if the injunction is seeks to restrict.
not granted before a final judgment.
Interlocutory Orders: The CPC also provides for
The duration of a temporary injunction is at the court's interlocutory orders related to injunctions, including
discretion, and it may extend or modify the injunction as orders for interim sales, detention and preservation of
needed. property, and the immediate possession of land subject to
a lawsuit.
Examples of Cases for Granting Temporary Injunctions
(CPC): Deposit of Money: In cases where the subject of the
lawsuit is money or deliverable property held in trust, the
Protection of Property: In cases where property under court may order its deposit in court or delivery to the
dispute in a lawsuit is at risk of being wasted, destroyed, rightful party, with or without security, as directed by the
alienated, or illegally sold during the legal proceedings. judgment.
Defrauding Creditors: When the defendant threatens to
remove or dispose of their property to defraud their Temporary injunctions are a crucial legal tool used to
creditors. Preventing Harm: If the defendant threatens to maintain the status quo and protect parties' rights during
deprive the plaintiff of their property or intends to cause the course of legal proceedings. They serve to balance the
injury to the plaintiff concerning the disputed property. interests of the parties involved while ensuring justice is
Breach of Contract: In cases to prevent the defendant from served.
breaching a contract or causing other harm. Public
Servants: To stay orders related to the transfer, Summary Procedure (Order 37) Explained
suspension, reduction in rank, retirement, dismissal,
removal, or termination of service of public servants or Order XXXVII of the Code of Civil Procedure, 1908, deals
employees of government-owned or controlled with summary suits or summary procedures, which
companies. Disciplinary Proceedings: To halt disciplinary provide a streamlined legal process for enforcing certain
proceedings or any adverse entries against public rights more swiftly and efficiently than traditional
servants or employees in connection with government methods. The primary aim of summary procedure is to
affairs. Election Restrictions: For restraining election- expedite the resolution of disputes when the defendant
related matters. Government Auctions: To restrain has no substantial defense.
government auctions or proceedings for the recovery of
revenue dues on land unless adequate security is Applicability:
provided.
Summary suits can be instituted in various courts,
Notice Requirement: In most cases, the court is required including High Courts, City Civil Courts, Courts of Small
to give notice to the opposing party before granting an Causes, and any other court notified by the High Court.
injunction. However, in exceptional circumstances where High Courts can also specify or modify the types of suits
delay could defeat the purpose of the injunction, the court that fall under this order.
may grant it without prior notice, provided it records the
reasons for doing so. Types of Suits Covered:

Mandatory Disposal: The court must dispose of suits Summary procedure is typically applied to the following
involving temporary injunctions within 30 days from the types of suits:
date of granting the injunction. If this is not possible, the  Suits involving bills of exchange, hundies, and
court must provide reasons for the delay. promissory notes.
 Suits for recovering a debt or liquidated demand in
Modification or Discharge of Injunctions: Parties money arising from a written contract, an
dissatisfied with an injunction order may request the enactment, or a guarantee.
court to modify, discharge, or set it aside. However, such
modification or discharge is subject to conditions, and if What Are Bills of Exchange, Hundies, and Promissory
Notes:
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 A bill of exchange is an unconditional written order previously instituted suit involving the same
from one party to another to pay a specified sum, parties.
either immediately or on a fixed future date, for Granting Leave to Defend:
goods or services received.
 A hundie is an unconditional written order  Principles for granting or refusing leave to defend
directing one person to pay a certain sum of money include:
to another person.  Substantial defense entitles the defendant to
 A promissory note is an unconditional promise to unconditional leave.
pay a specific sum to a named person or bearer,  Triable issues indicating a fair defense usually lead
either on demand or at a set time. to unconditional leave.
 Conditional leave may be granted if the defendant's
Liquidated Demand: good faith is in doubt.
 Plausible but improbable defense may result in
 Liquidated demand refers to a claim for a fixed sum conditional leave.
of money, such as a debt of Rs. 50, which is  No leave is granted if the defendant lacks a
distinguishable from a claim for unliquidated substantial defense or raises no genuine triable
damages that would require discretionary issues.
assessment by the court.  If the defendant admits part of the claimed amount,
leave is not granted unless that admitted amount is
Institution of Summary Suits: deposited with the court.

 Summary suits can be initiated by filing a plaint in Decree in Summary Suits:

the appropriate civil court.  The plaintiff can obtain a decree for a sum not
 The plaint must explicitly state that the suit falls exceeding the amount stated in the plaint, along
under Order XXXVII and should not seek relief with interest and costs, in the following situations:
beyond the scope of this order.  If the defendant does not enter an appearance (ex
parte decree).
Procedures After Institution:  If the defendant has not applied for leave to defend.
 If the defendant applied for leave but it was refused.
 The defendant must seek leave to defend the suit  If leave to defend is granted, the suit proceeds as an
from the court. ordinary suit, and the decree is granted as per the
 The defendant is burdened with the responsibility Civil Procedure Code.
of presenting facts that justify granting leave to
defend. Setting Aside Decree in Summary Suits:
 The plaintiff must serve the defendant with a copy
of the plaint and summons within a specified time.  Rule 13 of Order IX of the CPC deals with setting
 The defendant must enter an appearance within 10 aside an ex parte decree. The defendant must
days of receiving the summons. satisfy the court that the summons was not
 If the defendant enters an appearance, the plaintiff properly served or that there was sufficient cause
serves a summons for judgment. for their non-appearance.
 Within 10 days of receiving the summons for  Rule 4 of Order XXXVII provides the court with the
judgment, the defendant must apply for leave to power to set aside an ex parte decree in summary
defend. suits, but the defendant must show special
 Leave to defend may be granted unconditionally or circumstances that prevented them from appearing
with conditions deemed just by the court. and facts that justify leave to defend.
 If the defendant does not apply for leave to defend,
or if the application is refused, the plaintiff is Difference Between "Sufficient Cause" and "Special
entitled to judgment. Circumstances":

Res Sub-Judice:  Setting aside an ex parte decree in an ordinary suit

requires showing sufficient cause for non-
 The principle of res sub-judice prevents a court appearance, while in summary suits, special
from proceeding with a suit when the same matter circumstances are required. Special circumstances
is already under consideration in another are more stringent and relate to factors preventing

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a person from attending court that are almost  Section 98(2) mandates that appellate courts
impossible to overcome. cannot review findings of fact made by lower courts
unless there is a substantial question of law
Appeals From Original Decrees (Sections 96 to 99A; Order
involved.
41):
 Appeal Against a Dead Person:
 An appeal is a legal process for challenging a
 If an appeal is mistakenly filed against a deceased
decision made by a lower court or authority in a
person, the appellant can file a fresh appeal against
higher court to correct or reverse an injustice or
the legal heirs of the deceased within the
error. prescribed period.
 The right to appeal is statutory and substantive,
meaning it must be granted by law and can be General Provisions relating to Appeals (Section 107,
waived by agreement. 108) and Reference to High Court (Section 113;
 There is generally only one right to appeal from an Order 46):
original decree to a higher court unless explicitly Title: Provisions for Appeals and Reference to High
provided otherwise by a statute. Court
 Appeals can be categorized as first appeals, second Nature and Scope:
appeals, and appeals to the Supreme Court, based  A court subordinate to the High Court is authorized
on the forum to which they are filed. to refer a case under Section

Right to Appeal: 113. In the context of Section 113, the term "court"
refers to a court with Original Civil Jurisdiction.
 Section 96 of the CPC grants an aggrieved party the Such a reference is permissible only when there is a
right to appeal from a decree passed by a court question of law, the validity of any Act or Ordinance,
exercising original jurisdiction, subject to certain or a provision of the Act is in question. This
exceptions. reference can be sought only in a pending suit,
 A person not party to the original proceeding can appeal, or other ongoing proceedings. Additionally,
appeal only with the special leave of the court. Section 115 deals with revision, granting the High
 The right to appeal arises from the law in force at Court the authority to request the record of any
the time of filing the original suit. case decided by a lower court.

No Right to Appeal: Conditions for Reference:

 Parties who accept benefits under a decree or waive  When a subordinate court refers a matter involving
their right to appeal through an agreement may be a significant question of law to the High Court for its
estopped from challenging the decree's legality opinion, it is termed a "reference" as per Section
later. 113.
 Only a party to the suit or a person with special Section 113 allows any court to refer a case to the
High Court for its opinion, subject to specific
leave of the court can appeal.
conditions and limitations outlined in Order XLVI,
One Right to Appeal: Rule 1. These conditions include:
The existence of a pending suit or appeal with a
 Section 96 specifies that generally, there is only one
non-appealable decree. A question of law or
right to appeal from a decree, subject to certain established legal practice is at issue.
conditions. Multiple appeals are not allowed as a The court hearing the suit or appeal has reasonable
matter of right. doubts regarding the legal question.
No Appeal in Petty Cases: The question of law pertains to the validity or
provisions of an Act, Ordinance, or Regulation,
 Section 96(4) restricts appeals, except on points of among other issues, as specified in the proviso to
law, in cases where the value of the subject matter Section 113.
of the original suit does not exceed a specified limit,
such as Rs. 10,000, as adjudicated by the Court of Who Can Apply for Reference:
Small Causes.  A subordinate court can refer a case to the High
 Appeal Against Preliminary Decree: Court, either at its own discretion or upon the
 Section 97 stipulates that if a party fails to appeal application of any of the parties involved. It's
against a preliminary decree, they cannot important to note that Section 113 does not
subsequently object to it in an appeal against a final empower the High Court to initiate or order a
decree. reference; instead, it allows the subordinate court
 No Appeal Against a Finding: to make such a reference.

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Powers and Duties of the Referring Court:  Rule 4 of Order XLVI addresses the costs associated
with a reference to the High Court. It stipulates that
 The referring court has the responsibility to any costs resulting from a reference to the High
entertain doubts about the question of law. In the Court shall be considered part of the costs in the
case of Banarsi Yadav vs. Krishna Chandra Dass, it case.
was established that a subordinate court can refer
a case to the High Court when reasonable doubts Review (Section 114; Order 47):
exist regarding the constitutional validity of an Act.
Title: Provisions for Review
Powers and Duties of the High Court:
Order XLVII in the Code of Civil Procedure, 1908 (CPC),
 When a case is referred to it by a subordinate court, along with Section 114 of the Act, outlines the procedure
the High Court can: Make any order it deems for conducting reviews. Section 114 specifies the
appropriate. conditions necessary for filing a review application with
the same court that passed the decree or order subject to
Choose to answer or decline to answer the question posed review. Order XLVII complements these conditions by
in the case, returning it to the referring court for providing grounds for review and other procedural rules
disposition. Quash the case referred to it. governing the process.

Article 228 and Section 113: To understand the legal procedure, it is crucial to consider
two primary aspects:
 Section 113 of the Civil Procedure Code and Article Same Court: Rule 1 of Order XLVII emphasizes that review
228 of the Constitution are distinct provisions. applications for a decree or order must be made to the
Section 113 pertains to the validity of an Act and same court that issued the said decree or order. Court
allows the court, under specific conditions, to refer Definition: Although the CPC does not explicitly define the
a case to the High Court for its opinion, particularly term "court," it is implicitly interpreted as any court with
in cases related to the validity of an Act. In contrast, jurisdiction to hear civil suits. This jurisdiction may be
Article 228 empowers the High Court to withdraw conferred by the CPC itself, special statutes governing
a case from a subordinate court and determine tribunals, or the Constitution of India, which grants civil
substantial questions of law concerning the appellate jurisdiction to the Supreme Court and High
interpretation of the Constitution. Courts.

Procedure at Hearing: Review Jurisdiction for the Supreme Court: The Supreme
Court falls under the definition of "court" and possesses
 The following procedure must be followed during review jurisdiction for civil cases other than those of a
the hearing: criminal or civil nature governed by the CPC and the
As per Rule 1 of Order XLVI, the court handling the Criminal Procedure Code. This review power is separately
suit, appeal, or decree will prepare a statement of granted under Article 137 of the Constitution.
facts and points of doubt in the case. It will then
issue a decree or order contingent upon the High Review Jurisdiction for the High Courts: High Courts, in
Court's decision on the referred points After addition to their power as "Civil Courts" under the CPC,
hearing the parties involved, the High Court will have the authority to exercise the power of review. This
decide the referred points. A copy of the judgment, power, encompassed within their plenary jurisdiction,
bearing the registrar's signature, will be sent to the enables them to rectify grave errors and prevent
referring court per Rule 3. Upon receiving the copy, miscarriages of justice, as upheld in the case of Shivdeo
the referring court will proceed in accordance with Singh v. State of Punjab.
the High Court's decision to dispose of the case.
Rule 5 grants the High Court the power to issue This revised text provides a clear and concise explanation
orders, amend, alter, cancel, or set aside any decree of the provisions related to appeals, references to the High
or order made by the referring court. In cases Court, and the review process, making it more accessible
where the jurisdiction of a small causes court is in and understandable.
question, Rule 7 mandates the submission of a
record with reasons for doubt to the High Court. ORDER XLVII - CONDITIONS FOR REVIEW

Costs of Reference: Conditions for Applicability:

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 An application for Review may be submitted by any  The rule states that "Any person who considers
person who perceives themselves as aggrieved himself aggrieved" can file a review. This clear legal
under the following circumstances: provision implies that the person filing a review
A decree or order has been issued by any civil court, need not necessarily be a party to the suit; rather,
and an appeal is permissible, but no appeal has they may be someone with a legitimate interest in
been filed at the time of the Review application. the case. Anyone who believes that their interest
Once a review application is filed, it does not has been adversely affected by the case's decision
prohibit the subsequent filing of an appeal against has the standing to file a review.
the same decree or order. However, if an appeal is  The Supreme Court, in the case of Union of India v.
filed and decided on its merits before the Review Nareshkumar Badrikumar Jagad & ors., affirmed
application, the Review cannot proceed. Conversely, that even a third party to the proceedings, if they
if the Review application is heard and decided consider themselves aggrieved in some respect by
before the appeal, the appeal becomes dismissible. the judgment and order passed by the court, may
The first decision, whether through review or seek recourse through a review petition.
appeal, supersedes the original decree or order. If
an appeal or Special Leave Petition (SLP) is Grounds for Review:
preferred, whether before or after the initiation of
the Review, but is not heard and is dismissed due to  A review can be requested if any of the following
legal incompetence or the application of the Law of conditions are met:
Limitation, this dismissal does not hinder the filing Discovery of new and important matter or evidence
or continuation of a Review, provided the decision that was not within the person seeking the review's
is otherwise reviewable based on the grounds knowledge or could not be produced at the time the
specified in the Order. decree or order was issued, despite due diligence. A
mistake or error that is apparent on the face of the
A decree or order has been issued by any civil court, and record. This mistake can be either factual or legal.
no appeal is allowed. In this scenario, an aggrieved person Any other sufficient reason that is analogous
can request a review of the case based on the grounds (ejusdem generis) to the other two grounds and is
outlined in the Order. not based solely on an error in appreciating an
important matter or evidence, which should have
Review vs. Revision: been within the person's knowledge and could have
been presented with due diligence.
 It's important to differentiate between Review and  Subsequent events can be taken into account when
Revision. Review has a broader scope than reviewing a decision, but the mere reversal or
Revision, as Revision can only be pursued on the modification of the legal question on which the
grounds of jurisdictional or procedural errors by decision was based in a subsequent case by a higher
the High Court. Review, on the other hand, can only authority does not qualify as a new and important
be conducted by the same court, and its grounds, as matter for review.
detailed in this article, encompass a wider range of
factors beyond jurisdiction and procedure. Illustration:

 If a decree or order is eligible for revision under  A scenario is provided as an illustration: If Party A
"Revision," it is mechanically eligible for review sues Party B for a sum of money under an
under "Review" as well, provided it is non- agreement and obtains a decree based on this claim.
appealable. However, the reverse is not true due to Meanwhile, Party B files an appeal in the Privy
the specific scope of Revision. Council against this decree. While the appeal is
pending, Party A obtains another decree against
Review in Cases of a Reference from a Small Cause Court: Party B based on the same agreement, claiming a
different sum of money. Subsequently, the Privy
If a reference has been made by a small cause court to the Council reverses the initial decree in the ongoing
High Court under Order XLVI, the High Court's decision on appeal. Party B applies to the court that issued the
such a reference is binding. However, a person aggrieved second decree for a review, citing the Privy
by this decision can apply for a review of that decision. Council's decision as a new and important matter,
which is accepted and deemed a sufficient ground
Who Can File a "Review": for review.

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Restrictions: against the case decided by the subordinate court.

 The order, under Rule 9, excludes two specific types The subordinate court must have acted beyond its
of applications from consideration: jurisdiction, failed to exercise its jurisdiction, or
An order made on an application for a review, displayed material irregularity or illegal conduct
whether the application is granted or rejected, that affected the final decision. The case must be
cannot be reviewed. decided by a court subordinate to the High Court.
A decree or order issued on review, which involves
a rehearing of the case on its merits and supersedes Alternative Remedy:
the original decree or order, cannot be reviewed for
a second time.  The High Court has discretion in exercising its
revisional jurisdiction and may consider factors
Revision (Section 115) - Overview such as the availability of alternative remedies. If an
Meaning: effective remedy exists, the court may advise the
 Revision refers to a meticulous and thorough aggrieved party to pursue it, rather than invoking
examination of a legal case. Under Section 115 of revisional jurisdiction to prevent misuse.
the Code of Civil Procedure, the High Court
possesses revisional jurisdiction, allowing it to Limitations on Revision:
review cases. This jurisdiction is exercised to
ensure the fair delivery of justice and to correct any  Article 131 of the Schedule of the Limitation Act
errors made by subordinate courts. imposes a 90-day limitation period for filing a
revision under the Code of Civil Procedure. The
Nature, Scope, and Object: application for revision must be submitted to the
High Court within this timeframe.
 The primary objective of revisional authority, as
conferred by Section 115, is to prevent subordinate Suo Moto Exercise of Power:
courts from acting arbitrarily, illegally, capriciously,
or exceeding their jurisdiction. It empowers the  Suo moto revision allows the court to initiate
High Court to oversee that justice is served while revision on its own, without any application from
maintaining adherence to the rule of law and the parties involved. This is typically done in cases
fairness. Subordinate court judges have the involving blatant violations of the law, public order,
authority to make decisions, even if they are or constitutional rights, often with an amicus curiae
incorrect, and only jurisdictional errors can be appointed to assist the court.
revised. This process provides a remedy for parties
aggrieved by non-appealable orders from Interlocutory Orders:
subordinate courts.
 Interlocutory orders, issued during proceedings to
Who May File: safeguard the interests of the parties, can also be
subject to revision. These orders address
 Any aggrieved party can file an application for immediate issues related to the case.
revision after a case has been decided, provided
there is no appeal pending against it. The High Death of Applicant:
Court may then revise the case if it discovers
improper actions or errors by the subordinate  The death of an applicant does not halt the revision
court. Additionally, the High Court can initiate proceedings. The revision can continue, and the
revision suo moto, without an application, under order is given to the legal representative of the
the Code of Civil Procedure. deceased applicant.

Conditions for Revision: Doctrine of Merger:

 For the High Court to exercise its revisional  The doctrine of merger relates to the incorporation
jurisdiction, several conditions, as outlined in of a settlement into a court order. It is based on
Section 115, must be met. These include: principles of propriety and varies based on the
The case must have already been decided by the nature of jurisdiction exercised by the superior
subordinate court, and a judgment has been authority.
rendered. Even interlocutory orders may be subject
to revision. There should be no pending appeal
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Procedure of Revision: Conversion of Revision into Appeal:

 The revisional jurisdiction is exercised to ensure  The nature and scope of revisional jurisdiction
that the subordinate court has not exceeded its differ from appellate jurisdiction. A revisable order
jurisdiction. Changes to the decision of the cannot be converted into an appeal, but parties may
subordinate court are made if it acted beyond its choose to file an appeal separately.
authority. Reasons for these changes or refusals are
recorded for the record. Law Commission's View on Revision:

Letters Patent Appeal (LPA):  The Law Commission emphasizes the careful and
strict issuance of Rule Nisi, the avoidance of calling
 LPA is an appeal against a single judge's decision by for the subordinate court's record without a stay,
another bench of the same court. It is used to and the prompt disposal of revisions within two to
challenge a single judge's decision on facts or laws, three months when a stay is granted.
ensuring that a fair review is conducted.

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