EDITED BY – KIRTEE KAMAL DAS

LLB 4th SEMESTER (2022 batch)

UNIVERSITY LAW COLLEGE, GAUHATI UNIVERSITY

2015

Civil Procedure Code & Limitation Act

Paper: 4-2

Full Marks: 80

Time: Three hours

The figures in the margin indicate full marks for the questions.

1. Fill in the blanks with appropriate answer given in the brackets: 1×10=10

(a) The Code of Civil Procedure, 1908 was amended last in ____________ (2001/2002)

Ans: 2002

(b) ____________means formal expression of any decision of a Civil Court which is not a decree.
(Judgement/Order)

Ans: Judgement

(c) Equitable set of is for ____________ of money. (Ascertained / Unascertained)

Ans: Unascertained

(d) The Court on being satisfied of the fact, of minority of the defendant has to appoint ____________
(guardian ad litem / Legal guardian).

Ans: Guardian ad litem

(e) In interpleader suit, the real dispute is between the ____________ (the plaintiffs /defendants).

Ans: Defendants

(f)The person causing breach ог disobedience of the terms injunction may be detained in the civil prison
for a term extending up to ____________ (six months/three months).

Ans: Three months

(g) The right to appeal is ____________ (a natural right / creation of statute)

Ans: Creation of statute

(h) The Respondent may file cross-objection in the form of ____________ (Memorandum of appeal so
far as applicable / an application)

Ans: Memorandum of appeal so far as applicable

(i) The law of limitation is ____________in operation. (Prospective / retrospective)

Ans: Retrospective

(j) ____________ is exception to the general rule that "Law of Limitation-bars the remedy only but does
not extinguish the right. (Right to property / Breach of contract)

Ans: Right to property

2. Answer the following questions: 2×5-10

(a) Explain the term 'Facta probanda’.

Ans: Facta probanda or the facts required to be proved, are the foundational elements of any legal claim
or defence. These are the material facts upon which a party bases their case. In simple terms, these are
the “what” of the case—the core allegations or assertions that a party needs to establish to succeed.

(b) What do you mean by the term 'interim orders'?

Ans: Interim orders are provisional or temporary orders by judges or administrative agencies. It is an
order that is put into effect pending a hearing, trial, final judgement, or an act by one of the parties.

The term interim order refers to an order issued by a court during the pendency of the litigation. It is
generally issued by the Court to ensure Status quo.

(c) What are the different kinds of appeals under the Code of Civil Procedure, 1908?

Ans: Appeal from original decree; Appeal from order; Appeal from appellate decree/second appeal/to
High Court; Appeal to the Supreme Court. Usually, first appeal lies from every original decree passed by
any court. It is marked here that appeal may lie from an ex-parte decree, but appeal shall not lie from a
decree passed with consent of both parties. Appeal from order: Sections 104 to 108 and Order 43 of the
CPC talks about appeals against orders.

(d) Against whom mesne profits can be claimed?

Ans: Mesne profit can be claimed against a person in wrongful possession and enjoyment of immovable
property is liable for mesne profits. Mesne profits can be claimed with regard to immovable property
only.
Every person may keep what he/she possesses but contrary to this, if the possession is illegal then the
person who has legal possession over the property may claim damages including the profits which the
illegal possessor may have accrued from the property. Those profits are termed as Mesne Profits.

(e) Explain the term 'Sufficient Cause'.

Ans: Sufficient cause, or good cause, refers to a legal determination that there exists sufficient reason to
support a case or decision. Sufficient cause is tied to causation but varies depending on legal context.

“The term ‘sufficient cause’ in the provision is reasonably flexible, allowing courts to apply the law in a
meaningful manner. This allows the Courts to serve justice, which was why they were formed. However,
the Courts lower in the hierarchy seem to not be exercising this power much.”

3. Explain the term 'decree', essentials of a decree and different kinds of decrees. 2+4+6-12

Ans: Introduction

A decree is one of the frequently heard terms in Civil Matters. The adjudication of a courtroom of law is
divided into decree and orders. The term “decree” has been defined in section 2(2) of the Code of Civil
Procedure, 1908. The decree is a proper expression of adjudication by way of which the courtroom
determines the rights of parties concerning the matter in controversy or dispute. It can be relating to
any or all of the matter in controversy in the match.

Decree may be suggested best in the case of a healthy, i.e., civil proceeding instituted through the
presentation of a plaint. The decree shall encompass the rejection of a plaint in figuring out any query
under Section 144, but excludes the following:

 Any adjudication from which an attraction lies, together with, an attraction from order.
 Any order of dismissal for default.

The Explanation to this segment presents that a decree can either be preliminary or final or in part initial
and partly very last. Preliminary decrees are those in which the in shape is not completely disposed of
and further proceedings may take place. The final decree is while the Court absolutely disposes of the
suit. This article describes all the aspects of a decree i.e, its major elements, types, procedure to pass
decree and various rules related to decree with case laws.

Essentials Elements of a Decree

The decree is a decision of the court. For any decision of the court to be a decree, the following
essentials are required:

1. There must be an adjudication.

2. The adjudication must be done in a suit.
 3. The adjudication must be determining the rights of the parties concerning all or any of the
matter at issue.
4. Such determination must be conclusive in nature.
5. There must be a formal expression of such adjudication.

1. Adjudication

The most essential feature of a decree is that there must be an adjudication, i.e., a proper decision of
the Judge on the matter at issue. If there’s no judicial determination, there’s no decree. And such
decision must be gone by the Court. Therefore, an order gone by a politician who isn’t a court can’t be
termed as decree. In Madan Naik v Hansubala Devi, the Supreme Court held that if the matter isn’t
judicially determined, it’s not a decree.

2. Suit

It may be defined as a civil proceeding which is instituted within the Court of Law by the presentation of
a plaint. Thus, if there’s no lawsuit, there’s no decree. There are some applications which are being
treated as suit, such as, proceedings under, the Indian Succession Act, the Hindu Marriage Act, the Land
Acquisition Act, the Arbitration Act, etc. Therefore, decisions given for these matters are considered as
decrees within the meaning of Section 2(2) of Civil Procedure Code. Additionally to the present,
decisions held by the tribunals are the decrees gone by the tribunal and not the Court decree.

3. Rights of the parties

The adjudication must determine the rights of the parties altogether or any of the matters at issue. If
the Court passes an order on procedural ground, such order can’t be termed as a decree, such as, an
order dismissing the suit for non-appearance of the parties, or an order refusing to grant leave to sue as
a paper, etc.

The term parties mean parties to the suit, i.e., the plaintiff (the one that has instituted the suit) and
therefore the defendant (against whom the suit has been filed). In Kanji Hirjibhai Gondalia vs Jivaraj
Dharamshi, the Court held that the term parties means the parties to the suit, i.e., the plaintiff and
therefore the defendant. Just in case the Court passes an order upon an application of a stranger or a
3rd party during a suit, such order won’t be considered as a decree.

4. Determination must be conclusive

The judicial determination held by the Court of Law must be conclusive and final concerning the rights of
the parties to the suit. The provisional decisions or the interlocutory orders can’t be termed as a decree
as they’re not the ultimate decision of the Court. Therefore, orders gone by the Court on certain issues
and remitting other issues to the court isn’t a decree because it doesn’t determine the rights of the
parties conclusively.
5. Formal Expression

There must be a proper expression of the adjudication. The Court must express its decision formally in
accordance with the provisions of law.

Classification of Decree

The decree may be classified into:

1. Preliminary Decree
2. Final Decree
3. Partly Preliminary and Partly Final Decree
4. Deemed Decree

Preliminary Decree

The preliminary decree may be a decree where the Court decides the rights of the parties concerning all
or any of the matter in controversy but doesn’t eliminate the suit finally.

Civil Procedure Code 1908 provides that, within the following suits a preliminary decree could also be
passed:

 Suit for possession and Mesne profit (Order 20 Rule 12)

 Administration Suits (Order 20 Rule 13)
 Suits of pre-emption (Order 20 Rule 14)
 Suit filed for dissolution of a partnership (Order 20 Rule 15)
 Suits associated with accounts between the principal and agent (Order 20 Rule 16)
 Suit for partition and separate possession (Order 20 Rule 18)
 Suits associated with the foreclosure of a mortgage (Order 34 Rule 2)
 Suits associated with the sale of the mortgaged property (Order 34 Rule 4)
 Suits for the redemption of a mortgage (Order 34 Rule 7)

However, in Narayanan vs Laxmi Narayan AIR 1953, the Court held that the above-mentioned list isn’t
exhaustive, and therefore the Court may pass preliminary decree during a suit not enlisted by the Code.

Final Decree

When the Court decides all the matters in controversy and eventually disposes of the suit it’s called the
final decree. In, Shankar V. Chandrakant, the Supreme Court stated: A preliminary decree is one which
declares the rights and liabilities of the parties leaving the particular outcome to be figured out in
further proceedings. Then, as a results of the further inquiries, conducted pursuant to the preliminary
decree, the rights of the parties are fully determined and a decree is passed in accordance with such
determination which is final. Both the decrees are within the same suit.

A final decree could also be said to be final in two ways:

  when the time for appeal has expired without appeal being filed against the preliminary decree
or the matter has been decided by the very best court;
 When, as regards to the court passing the decree, an equivalent stands completely disposed of.

It is the latter sense that the word ‘decree’ is employed in section 2(2) of the Code.

Partly Preliminary and Partly Final Decree

Partly preliminary and partly final decree are those where a final judgment has been passed in respect of
a part of the suit and other part is left for future adjudication, for instance, during a suit for possession
of immovable property with mesne profit, the decree of the Court regarding the possession may be a
final decree, whereas the decree about mesne profit is preliminary in nature.

Deemed Decree

Decrees which doesn’t fulfil the prerequisite of Section 2(2) can’t be termed as a decree under this
Code. However, there are certain orders which are considered as deemed decrees under Civil Procedure
Code, such as, adjudication under order 21 Rule 58, Rule 98 and Rule 100 are deemed decrees. Similarly,
rejection of plaint and determination of question under Section 144 (Restitution) may be a deemed
decree.

Decree Holder. Section 2(3) of the Civil Procedure Code provides that a decree holder is that the person
in favour of whom the decree has been passed or an order which is capable of execution has been
made. A decree holder are often a person. In Dhani Ram v. Lala Sri Ramthe Court held that an individual
who isn’t a celebration to the suit but in whose favour a decree has been passed or an order capable of
execution is formed shall be the decree holder.

Conclusion

The Code of Civil Procedure lays down provisions to pronounce and issue the choice of the Court and
decree is one among them. A decree within the decision of a court which determines the rights at issue
between the parties to suit. A decree are often preliminary, final or partly preliminary and partly final.
There is also an idea of the deemed decree. A decree is different from order and judgment in some
ways.For the execution of decree Order XXI of the Code lays down the provisions and procedure. A
decree is appealable and even second appeal lies to Supreme Court after the primary appeal of a
decree. A decree is passed only in civil suits and not in criminal matters.

Or

Discuss the essentials of a Civil Suit. 12

Ans: Introduction

Have you ever wondered how a civil suit is filed in a civil court? Let’s make our basics clear first. The
administration of civil proceedings in India is governed under the Code of Civil Procedure, 1908 (CPC).
Before filing a civil complaint, it is essential to determine the court’s jurisdiction under Section 9 and the
place of suing under Section 18 of the CPC. The initial step of the procedure of a civil suit is the
institution of the suit under Section 26 of the CPC. The present article provides a detailed study of the
provisions of the institution of the suit under Section 26 of the CPC.

Suit (Meaning and Concept)

The term ‘suit’ is not defined under the CPC, 1908. The Black Law’s Dictionary, 4th edition defines suit as
“A generic term, of comprehensive signification, and applies to any proceeding by one person or
persons against another or others in a court of justice in which the plaintiff pursues, in such court, the
remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at
law or in equity.” A suit is a civil process initiated by the filing of a plaint seeking to enforce civil or
substantive rights against the state or a person. A suit results in a decree. There can be no decree
without a suit.

In the case of Ethiopian Airlines v. Ganesh Narain Saboo (2011), the Hon’ble Supreme Court observed
that the term ‘suit’ is a general term that encompasses all actions to be taken by a person to enforce a
legal right that has been vested in them by law.

In the landmark case of Hansraj Gupta & Others v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd.
(1932), the Privy Council held that a civil proceeding is instituted by the presentation of a plaint.

Suit under the Limitation Act, 1963

The Limitation Act, 1963 governs the laws regulating the limitation of suits and other procedures. An
appeal or an application is not considered a suit under Section 2(l) of the Limitation Act, 1963. Section 5
of the Limitation Act, 1963, deals with the extension of the prescribed time frame in certain
circumstances. It states that any appeal or application may be allowed even after the limitation period
has passed if the appellant establishes to the court that they could not file the appeal or application
during the limitation period. If the court is satisfied, the delay in submitting the appeal or application
can be excused, regardless of whether the party is a state or a private entity. Section 5 of the Limitation
Act, 1963, does not apply to suits.

Essentials of a Civil suit

The various essentials of a Civil suit under the Code of Civil Procedure 1908 can be summarized as
follows:

1. Parties to the suit

There must be at least two opposing parties: the plaintiff who files the suit for claiming relief and the
defendant against whom the plaintiff files for the claim. There is no restriction on the number on either
side. Every suit is instituted by the presentation of a plaint. A plaint must be filed by the plaintiff, a
representative, a recognized agent, or an advocate for the plaintiff.
Order I, Rule 1 of the CPC, outlines the joinder of the plaintiffs to the suit. All persons may join as
plaintiffs if any claim to relief in a single suit arises from the same act or transaction or a series of acts or
transactions alleged to exist jointly, severally, or in the alternative, or where any common question of
law or fact arises.

Order I, Rule 3 of the CPC outlines the joinder of the defendants to the suits. When any claim to relief is
alleged to exist against defendants arising out of the same act or transaction or series of acts or
transactions, or when any common question of law or fact would emerge if separate cases were
launched against the defendants, all people may join as defendants in a suit.

A misjoinder occurs when a party to the lawsuit is unintentionally added. It is deemed a misjoinder
when a party is added but has nothing to do with the dispute. When a party to the suit is not added to
the suit, then it is a non-joinder. Order I, Rule 9 of the CPC states that no suit shall be dismissed on the
grounds of the misjoinder or non-joinder of parties. This Rule does not apply to necessary parties
interpreted as non-joinder.

2. Cause of action

A cause of action is the set of reasons on the basis of which a lawsuit is instituted in court. It is a set of
facts or allegations that constitutes grounds for filing a lawsuit. It includes all the facts pertaining to
rights and their infringement. Order II, Rule 2 of the CPC states that a cause of action is essential, and a
plaint must mention the cause of action if it is to be instituted as a suit.

In the case of Rajasthan High Court Advocates Association v. Union of India & Ors. (2000), the Hon’ble
Supreme Court held that the phrase “cause of action” had a judicially established meaning. It refers to
the conditions surrounding the violation of the right or the direct cause of the conduct. In a broader
sense, it refers to the conditions required for the suit to be maintained, which include not just the
violation of the right, but the violation combined with the right itself. and summarised the phrase to all
facts that the plaintiff would have to establish if he were to be traversed to maintain his claim to the
Court’s judgement. The cause of action includes every truth that must be proven, as opposed to every
piece of evidence that must be given to substantiate each fact.

3. Subject matter

The set of facts or details about a movable or immovable property that gives rise to a civil dispute to
claim remedies is referred to as the subject matter.

4. The relief claimed by the plaintiff

Relief is a legal remedy available to the plaintiff for a violation of legal rights by the defendant. No
remedy will be granted by a court unless the parties to the complaint request it. There are two types of
relief: specific and alternative. Specific relief is governed under the Specific Relief Act, 1963.
Conclusion

Every right has a remedy, or “Ubi jus, ibi remedium,” which is one of the fundamental principles of the
legal system. A plaintiff may file a civil lawsuit to obtain compensation for losses the defendant has
caused. A plaint must include all relevant information and serves as the first step in the documentary
process of the institution of civil litigation. However, the onus of proof is on the plaintiff as the plaintiff
files the suit and states the facts and legal grounds. The plaintiff must convince the court and support
every allegation made against the defendant by presenting the true facts and reasonable grounds for
the institution of the suit.

4. Define the term issue'. What are the materials on the basis of which issues are framed? What are
the objects for framing issues? 2+5+5=12

Ans: Introduction

The term "issue" in a civil case means a disputed question relating to rival contentions in a suit. It is the
focal point of disagreement, argument or decision. It is the point on which a case itself is decided in
favour of one side or the other, by the court. Framing of issues is probably the most important part of
the trail of a civil suit. For a correct and accurate decision in the shortest possible time in a case, it is
necessary to frame the correct and accurate issues. Inaccurate and incorrect issues may kill the valuable
time of the court.

In Siddhi Chunilal vs. Suresh Gopkishan, it was observed that if correct and accurate issues were not
framed, it leads to gross injustice, delay and waste of the court's valuable time in deciding the matter. If
defendant makes no defense, framing and recording issue by the Court does not arise, in such a case, a
Court need not frame and record issue in as much as the defendant makes no defense at the first
hearing of the suit.

For example, a plaintiff says the defendant borrowed Rs 10 lakh from him. The defendant denies it. It is
an affirmation by one party and denial by the other. Then there arises a distinct dispute and that dispute
is termed an "issue". The court can then frame issues based on the facts of the case and proceed with it.

Definition of issues

According to the dictionary meaning, "issue" means a point in question; an important subject of debate,
disagreement, discussion, argument or litigation. Issues mean a single material point of fact or law in
litigation that is affirmed by one party and denied by the other party to the suit and that subject of the
final determination of the proceedings.

In Howell v. Dering, the court held that, an issue is that which, if decided in favour of plantiff, will in it
give a right to relief; and if decided in favour of the defendant, will in itself be a defence.
Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other
party to the suit.

Material Propositions

According to Rule 1 (2), material propositions are those propositions of fact or law which a plaintiff must
allege in order to show a right to sue or a defendant must allege in order to constitute his defense. Each
material proposition affirmed by one party and denied by the other shall form the subject - matter of a
distinct issue.

Kinds of issues

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

 Issues of fact
 Issues of Law.
 Issues, however, may be mixed issues of fact and law.

Rule 2(1) OF Order 14 provides that where issues both of law and fact arise in the same suit,
notwithstanding that a case may be disposed of on a preliminary issue, the court should pronounce
judgment on all issues. But if the court is of the opinion that the case or any part thereof may be
disposed of on an issue of law only, it may try that issue first, if that issue relates to:

 The jurisdiction of the court; or

 A bar to the suit created by any law for the time being in force,

For that purpose, the court may, if it thinks fit, postpone the settlement of the other issues until the
issues of law have been decided.

Object of framing of issues

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

An obligation is cast on the court to read the plaint and the written statement and then determine with
the assistance of the learned counsel for the parties, material propositions of fact or of law on which the
parties are variance. The issue shall be formed on which the decision of the case shall depend.

The evidence shall be confined to the issues. The object of an issue is to tie down the evidence and
arguments and decision to a particular question so that there may be no doubt on what the dispute is.
The judgment then proceeding issue-wise would be able to tell precisely how the dispute was decided.

In MB Sanghvi v Secretary, Madras Chillies Merchant, Supreme Court held that, the Court should not
determine an issue which does not arise on the pleadings and should not decide a suit on a matter on
which no issue has been raised. No issue need be framed on a point of law which is perfectly clear.
In Akha Ram v LR of Ram Sahai, the court held that where broader issue framed having mixed facts,
some facts relating to plaintiff and some facts relating to defendant, the trial Court allowing plaintiff to
lead evidence of defendant was not improper.

Materials are required for framing of issues

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

 Allegations made on oath by the parties, or by any persons present on their behalf, or made by
the pleaders of such parties;
 Allegations made in the pleadings or in answers to interrogatories delivered in the suit;
 The contents of the documents produced by either party.

Amendment of issues framed

Order 14 Rule 5, C.P.C. empowers the court to amend issues framed or frame additional issues at any
stage of proceedings. Issues can be amended at any stage of the trail. They can also be amended by
appellate or revisional court.

In Nagubai Ammal v. B. Shama Rao, Supreme Court observed that, a trail does not get vitiated on wrong,
improper or defective issues.

Omission to frame issues

Even though it is the duty of the court to frame proper issues, mere omission to frame an issue is not
necessarily fatal to the suit. Omission to frame an issue is an irregularity which may be or may not be a
material one. If such an omission affects the disposal of the suit on merits, the case must be remanded
to the trial court for a fresh trial.

Where the parties went to trail with full knowledge that a particular point was at issue, they have not
been prejudiced and substantial justice has been done, absence of an issue is not fatal to the case so as
to vitiate the proceedings.

Conclusion

Issues are very important not only for the parties but also for the Court. Thus framing of issues is a very
important stage of a civil trial. Parties are required to prove or disprove the issues framed by the court,
not the pleading. On the other side, court is also bound to give decision on each framed issue.
Therefore, the Court is not to decide those matters on which no issues have been framed.

If issues are properly framed, the controversy in the case can be clearly focused and documents can be
properly appreciated in that light. The relevant evidence can also be carefully examined. Careful framing
of issues also helps in proper examination and cross examination of witnesses and final arguments in the
case.
 Or

What do you mean by summons? What are the different kinds or purposes of summons? Discuss
different modes of service of summons. 2+2+8-12

Ans: Introduction

The Code of Civil Procedure, 1908 (CPC) defines "summons” as a legal document issued by a court to
notify a defendant (the person against whom a lawsuit is filed) that a case has been filed against them
and to appear before the court on a specified date and time.

According to Section 2(9) of the CPC, a "summons" includes any document used by a court to give notice
to a person for his attendance. It can be in the form of a writ, notice, order, or other legal processes.

The purpose of a summons is to ensure that the defendant is given adequate notice of the legal
proceedings initiated against him and is given an opportunity to be heard in the matter.

Essentials of Summons

As per Order V Rule 1, the following are the essential conditions for a service of summons under CPC –

 It should be in writing.
 It should be in duplicate form.
 It should be signed by the presiding officer of the court or such other officer authorized by the
High Court.
 It should mention the time and place of the rule directed.
 It should bear the seal of the court.

As per the order of the Gujarat High Court, the issuance of a summons is a condition precedent to the
making of an order. The mere making of an order for the issuance of summons is quite different from
the issuance of summons.

Types of Summons

Majorly, there are three types of summons that are issued under the law:

1. Civil Summons

These summons are issued in a civil case under CPC to the defendant to appear in court. It is a way of
informing the defendant that a case has been issued against him or her in court. It is mainly served in
cases of breach of contract, damage suit, injunction orders, or loss of goods, etc.

2. Criminal Summons

A summon issued to a person to appear in the criminal court under the Criminal Procedure Code is
called a criminal summons. In the criminal summons, the court will mention the charges and facts based
on which the summon has been issued.
 3. Administrative Summons

The administrative bodies send these when we fail to abide by the law. Tax authority or labor court
summons is the main administrative summons issued by the law.

4. Substituted service of summons

It is an exception to the normal way of giving summons under CPC. To issue a substituted service of
summons the court should be satisfied that there is enough evidence to believe that the defendant is
intentionally keeping himself away from serving the summons, so there needs to be another way in
which summon shall be served

Purpose of Service of Summons

 It is important to inform a person about any legal action that has been taken against them.
 It gives an opportunity to the defendant to present his case and side of the story.
 The basis of summons lies in the maxim “Audi Alteram Partem”, which means to hear both
sides.
 It further helps in following the principles of natural justice and ensures fair proceedings and
trial.
 It helps in ensuring the presence of either a witness or accused or any other person who is
involved directly or indirectly in a suit before the court.
 To produce the necessary documents.

Mode of service of summons

This is one of the most fundamental and important rules of law that states that a party must be given a
fair chance to represent himself, and this is only possible if he has been served with fair and reasonable
notice of legal proceedings stating the legal action taken against him. This will also give him the
opportunity to defend himself and present his case. The code gives several modes of service of
summons, which are discussed below in detail.

1. Personal or direct service

This mode of service of summons is simple. In this mode, a copy of the summons is issued to the
concerned person or his agent or any other person on his behalf, and the person receiving the summons
must acknowledge the same. It is the duty of the officer serving summons to ensure and make an
endorsement with regard to the summons served that states the time and manner of service, the name
and address of the person receiving the summons, and witness to the delivery of the summons.

Rules 10 to 16 and Rule 18 of the order deal with personal or direct service. While serving summons
through this mode, the following principles must be taken into consideration:

 The service officer must try to serve the summons to the defendant or his agent.
  If the defendant is not present at his place of residence and there is no agent, then it must be
served on any adult male or female member of the family living with him on his behalf.
 If a suit is related to the business or work of a person who does not reside within the territorial
jurisdiction of the court, then it may be served to the manager or agent of that business or work.
 In the case of a suit on immovable property, if the defendant is not found, then the summons
may be served on any person or agent who is in charge of such property.
 If a suit involves two or more defendants, then the summons must be issued to each of them.

2. Service by the court

Rule 9 of the Order deals with the service of summons by court. It provides that if a defendant resides
within the jurisdiction of the court, then the summons must be served to him by the court officer. It can
also be served by post, fax, message, email service, approved courier service, etc., but if the defendant
does not live within the jurisdiction, then it must be served by the officer of the court within whose
jurisdiction he resides.

In the case, summons are served by Registered post acknowledgment due (RPAD), the court will assume
the valid service of summons is complete even if there is no acknowledgement slip. If a person refuses
to accept it, the court may treat it as a valid service. The Supreme Court, in the case of Salem Advocate
Bar Association v. Union of India (2005), directed the high courts to make appropriate rules or guidelines
to ensure that the provisions of summons are implemented properly without any abuse of power or
process of law.

3. Service by plaintiff

According to Rule 9A of the Order, the court may permit the plaintiff, on his application, to serve
summons to the defendants. He has to deliver the copy of the summons which is sealed and signed by
the judge or any other officer appointed by the judge to do so, and also make sure that the defendant
summons acknowledges the service. If the defendant refuses to acknowledge the service or if it cannot
be served personally, the court will re-issue the summons and serve it to the defendant.

4. Substituted service

Substituted service means a mode of service of summons that is adopted in place of ordinary service of
summons. There are two modes of substituted service as given under Rules 17, 19 and 20 of the Order.
These are:

 If the defendant or his agent refuses to acknowledge or sign the receipt of the summons, or if
the officer serving the summons reasonably believes that the defendant is not present at his
residence and will not be found within a reasonable time, and moreover if there is no agent to
receive summons on his behalf, he may affix the copy of the summons on the door or any
conspicuous part of his house.
  In this case, the serving officer has to make a report stating the reasons for affixing the
summons, the circumstances, the name and address of the person who helped him and the
witnesses to affixing the summons.
 The court can declare that the summons has been issued if it is satisfied with the report of the
officer.
 If the defendant is deliberately avoiding service and the court has a reason to believe so, it may
affix the summons in some conspicuous place in the court and house of the defendant where he
used to reside, carry on business or work for somebody.

In the case of Yalllawwa v. Shantavva (1997), the Supreme Court held that this mode of service of
summons is not an ordinary mode and must not be used normally. It must only be used in exceptional
cases and treated as the last option.

According to Rule 20, if a court orders to advertise the summons in the newspaper, then it must be done
in a local newspaper where the defendant lived, had a business, or worked. This service is an effective
option to serve summons even if the defendant is not reading the newspaper (Sunil Poddar v. Union
Bank of India, 2008).

Before issuing the summons through this mode of service, the court must give the defendant a
reasonable time to appear before the court. In another case, State of Jammu and Kashmir v. Haji Wali
Mohammad (1972), the Supreme Court held that if a summon does not fulfil the requirements of Rule
19 of Order 5 under the Code, then such service of summons is not in accordance with the law.

5. Service by post

The Code earlier provided that the summons could be served through the post as well and was given
under Rule 20A of the Order, but this provision has been repealed by the Amendment Act of 1976.

Service of summons in special cases

Rules 21–30 provide the mode of service of summons in special cases.

 If the defendant resides in another state or outside the jurisdiction of the court issuing the
summons, the court may send the summons to another court in whose jurisdiction the
defendant resides to serve it on him.

According to Section 29 of the code, if any foreign summon has to be served, then it must be sent to the
court in the territories where the code applies, and they will further serve the summons as if it had been
issued by them.

 If the summons has to be served in presidency towns like Calcutta, Madras, and Bombay, then it
may be sent to the Small Causes Court of that particular jurisdiction.
 If the defendant does not live in India and has no agent then according to Rule 25, the court can
serve the summons by way of post, fax, email or any other appropriate means. The other way of
serving the summons to such sovereign country where the defendant resides is either by a
 political agent or through the court of that country, which has powers and authority to serve the
summons as given under Rule 26 of the order.
 If the defendant is a public officer, a railway officer, or a servant of the local authority, then the
summons can be served through the head of their departments.
 If the defendant is a soldier, airman, or sailor, then the summons can be sent through their
commanding officer.
 If the defendant is a convicted prisoner, then the summons can be served through the officer in
charge of the prison.

In case, the defendant is a company or a corporation, the summons may be served to the secretary,
director, or principal officer of the company or through post to the address where such company carries
on its business or at its registered office.

 If the defendants are partners in a firm, then it must be served to any one of the partners, but if
the partnership has dissolved before the suit has been instituted, then every partner must be
served the summons.

The court issuing the summons also has the power to substitute it with a letter of request, which will
contain the same contents and information as the summons. This will be done for any person depending
upon the position or office held by such a person.

Conclusion

Order 5 of the Code of Civil Procedure, 1908 specifically deals with the issue and service of summons to
the defendant. It provides various rules related to the issuance of summons and their modes of service.
All of these have been discussed in detail in the article. It also provides the scenario as to what will
happen if a person refuses the summons. The defendant has also been given the opportunity to raise
the objections to the summons if any at the earliest or else it will be waived. But there are many
instances where the defendants tend to avoid or ignore the summons. This further results in delays in
court proceedings and the pendency of suit. The law makers and the courts must look into this issue in
order to solve the problem of the pendency of cases in our country.

5. Write explanatory notes on: (any two) 6+6=12

(a) Suits by indigent persons,

Ans: “Indigent person”: (Meaning) Order 33 Rule 1

A person is an “indigent person” (i) if he is not possessed of sufficient means to enable him to pay the
fee prescribed by law for the plaint in such suit; or (ii) where no such fee is prescribed, when he is not
entitled to property worth one thousand rupees. In both the cases, the property exempt from
attachment in execution of a decree and the subject-matter of the suit should be excluded.
Any property acquired by the claimant after the submission of the application for permission to sue as
an pauper person and the decisions thereon should be taken into consideration for deciding the
question whether the applicant is an indigent person.

The word “person” also includes juristic person.

Contents of application: Rule 2

Every application for permission to sue as an indigent person should contain the following particulars:

(1) The particulars required in regard to plaints in suits (2) A of any movable or immovable property
belonging to the applicant with the estimated value thereof; and

(2) Signature and verification as provided in Order 6 Rules 14 and 15, 40. The application should be
presented by the applicant to the court in person unless exempted by the court. Where there are two or
more plaintiffs, it be presented by any of them. The suit commences from the moment an application to
sue in form of a pauper is presented.

A Rejection of application: Rule 5

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

Where the application is not framed and presented in the prescribed manner; or

i) Where the applicants not an indigent person; or

ii) Where the applicant has, within two months before the presentation of the application, disposed of
any property fraudulently or in order to get permission to sue as an indigent person;

iii) Where there is no cause of action; or Where the applicant has entered into an agreement with
reference to the subject-matter of the suit under which another person has obtained interest; or

iv) Where the suit appears to be barred by law; or

v) Where any other person has entered into an agreement with the applicant to finance costs of the
litigation.

Inquiry: Rule 1-A

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

Where permission is granted: Rules 8-9-A

Where an application to sue as a indigent person is granted, it shall be deemed to be a plaint in the suit
and shall proceed in the ordinary manner, ex ept that the plaintiff will not have to pay court fees or
process fees.

The court may assign a pleader to an indigent person if he is not rep- resented by a pleader. The Central
Government or the State Government may make provisions for rendering free legal aid and services to
indigent persons to prosecute their cases. A defendant can also plead set-off or counterclaim as an
indigent person.”

Where permission is rejected: Rules 15-15-A

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

Revocation of permission: Rule 9

The court may, on an application by the defendant or by the Government Pleader, revoke permission
granted to the plaintiff to sue as an indigent person in the following cases:

 Where he is guilty of vexatious or improper conduct in the course of the suit; or

 Where his means are such that he ought not to continue to sue as an indigent person; or
 Where he has entered into an agreement under which another
 Person has obtained an interest in the subject-matter of the suit.

Costs

The costs of an application to sue as an indigent person shall be the costs in the suit.

Recovery of court fees and costs:

Where indigent person succeeds: Where the plaintiff (indigent person) succeeds in the suit, the court
shall calculate the amount of courts and costs and recover from the party as ordered by the court.

Where indigent person fails: Where the plaintiff (indigent person) tails or the suit abates, the court shall
order him (plaintiff) to pay court fee costs.

Right of State Government

The State Government has right to recover court fees. For that the government is deemed to be a party
to the suit.

Realization of court fees: Rule 14

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

Set-off or counter claim

An indigent person may also plead set-off or file counter claim without paying court fees.

Appeal

An order rejecting an application to sue as an indigent person is appealable.

Appeals by indigent persons: Order 44

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

(b) Notice u/s 80 CPC

Ans: The serving of notice under Section 80 of the CPC before suing the government or public officer is
mandatory and describes two types of cases:

(i) Suit against the government and

(ii) Suit against public officers in respect of acts done or purporting to be done by such public officers
in their official capacity.

This section is explicit and mandatory and admits of no exceptions. The language of this section is
imperative and absolutely debars a court from entertaining a suit instituted without compliance with its
provisions. If the provisions of the section are not complied with, the plaint must be rejected under O. 7,
R. 11(d) of CPC. So the notice under Section 80(1) of CPC, 1908 is the first step in the ligation against
government or public officer.

The underlying motive and object behind adding section 80 in CPC

 a.) In case of reasonable and just reason for filling suit, a prior notice will provide an opportunity to the
government or public officer to correct or accept the demand put forward by the plaintiff. It leads to
speedy settlement of the grievances.

b.) In case of reasonable complaint government or public officer will get enough time of two months to
settle it down or to negotiate on the issue. Which might take years if it will decide in court.

c.)By giving a chance to negotiate and settle down the dispute this section is inserted for saving the
money and time of plaintiff. It will help in avoiding money wastage in long process of litigation

Contents or Requisites of notice u/s. 80 CPC

The essential contents or requisites of a notice u/s. 80 CPC are as under---

(1) whether the name, description and residence of the plaintiff are given so as to enable the
authorities to identify the person serving the notice;

(2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient
particularity;

(3) whether a notice in writing has been delivered to or left at the office of the appropriate authority
mentioned in the section; and

Contents or Requisites of notice u/s. 80 CPC

The essential contents or requisites of a notice u/s. 80 CPC are as under---

(1) whether the name, description and residence of the plaintiff are given so as to enable the authorities
to identify the person serving the notice;

(2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient
particularity;

(3) whether a notice in writing has been delivered to or left at the office of the appropriate authority
mentioned in the section; and

(4) whether the suit is instituted after the expiration of two months next after notice has been served,
and the plaint contains a statement that such a notice has been so delivered or left. In construing the
notice the Court cannot ignore the object of the legislature, viz. to give to the Government or the public
servant concerned an opportunity to reconsider its or his legal position. If on a reasonable reading of the
notice the plaintiff is shown to have given the information which the statute requires him to give, any
incidental defects or irregularities should be ignored.

Section 80 of CPC mandates an individual to send notice to the authority concerned for its grievances
and allow person to sue only after completion of 2 months after the notice. It is inserted in CPC for
providing speedy justice by saving valuable time and money of the plaintiff. The period of 2 months is
there for the purpose of providing an opportunity to the concerned authority for addressing the issue
and saving time of both, the accused government or public officer and the plaintiff. There is not much
scrutiny have done on the success rate of this section in CPC. But the findings of Law Commission in
reports point outs that this tool is not being utilised as an opportunity to resolve dispute, instead it is
misused as a technical defence for delaying the justice. Legislature or Judiciary should attempt to
preserve the intent of this legislation. Like the judiciary can impose exemplary damages in the cases
where the authority is at fault, and it could correct its action within 2 months after receiving the notice.
These steps can make this section more meaningful and pragmatic which can be ultimately proved
helpful in reducing the giant heap of clogged cases in Indian Judicial system

(c) Interpleader suit.

Ans: ‘To interplead’ means to litigate with each other to settle a point concerning a third party. An
interpleader suit is a legal action taken by a party over a property which is claimed by two or more other
parties. Under this category of suits, the real dispute does not lie between plaintiff and defendant rather
multiple defendants interplead against each other.

E.g. - A finds a phone lying on the road, thereafter both B & C claim the phone from him. A himself
claims no interest in such phone, he can file a suit of interpleader.

The provisions for the interpleader suit are provided under Section 88 and Order 35 of the Civil
Procedure Code, 1908 (CPC).

Interpleader Suit under Section 88 of CPC

Conditions on Which an Interpleader Suit can be Instituted:

 Two or more persons claim adversely to one another the same debts, sum of money or other
property from another.
 Property may be movable or immovable.
 The person from whom the property is claimed, claims no interest therein other than for
charges or costs.
 There must not be any pending suit under which the rights of all parties can properly be
decided.

Who may File an Interpleader Suit:

The person who claims no interest in the property other than for charges or costs may institute the suit
of interpleader. The plaint for the same should be in Form 40 of Appendix A of CPC.

Procedure for Institution of Interpleader Suit

The procedure is provided under Order 35 (Interpleader) of CPC which is as follows:

Rule 1: It states that the plaintiff while filing a suit of interpleader must also state:
  That he claims no interest in the subject-matter in dispute other than for charges or costs.
 The claims are made by the defendants severally.
 That there is no collusion between the plaintiff and any of the defendants.

Rule 2: It mentions that where the thing claimed is capable of being paid into Court or placed in the
custody of the Court, the plaintiff may be required to so pay or place it before he can be entitled to any
order in the suit.

Rule 3: It states that where defendant in an interpleader suit actually sues the plaintiff in respect of the
subject matter, any court in which suit against plaintiff is pending shall on being informed by the Court
in which suit of interpleader is pending stay such suit.

Rule 4: At first hearing the court may declare that:

 Plaintiff is discharged from all liability towards defendant in respect of things claimed.
 If the court thinks that for ends of justice to meet all parties need to be retained, till the end, it
may retain such party.

Rule 5: It mentions that agents and tenants may not institute interpleader suit against their principal
and landlord respectively.

Illustration - A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully
obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C.

Rule 6: Charge for Plaintiff’s Costs — Where the suit is properly instituted the Court may provide for the
costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.

Case Laws

Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram & Ors. (1987): This case dealt with an
interpleader suit filed by a bank, which held funds belonging to multiple parties. The Supreme Court
emphasized that interpleader suits serve the purpose of preventing the stakeholders from being drawn
into multiple, time-consuming, and costly litigations and that they provide a convenient mechanism for
resolving competing claims.

Mangal Bhikaji Nagpase v. State of Maharashtra (1997): Bombay High Court held that the plaintiff must
declare that he has no interest in the issue other than expenses and charges.

Puran Chand v. Ram Gopal (2000): In this case, the Delhi High Court reiterated the principle that an
interpleader suit is an appropriate remedy when multiple parties assert competing claims to a specific
property or fund held by a third party.

Or
Distinguish between: 4×3-12

(a) Second Appeal and Revision

Ans: The distinction between Second Appeal and Revision are as follows:

1. The second appeal lies under section 100,103,108 and order 42. Revision is defined under
section 115.
2. The second appeal lies when the case involves a substantial question of law. Revision lies when
there is a jurisdiction error.
3. In the second appeal, the High Court can decide questions of fact in various situations. But in
revision High Court cannot decide the question of Fact.
4. The High Court has no power to grant relief merely on the equitable ground. In the case of
revision, the High Court has the power to decline if it thinks that substantial justice has been
done.
5. The second Appeal lies only in the High Court. The revisional power of the High Court can be
invoked in cases where no appeal lies in the High Court.
6. The High Court has the power to interfere in the second appeal if it is not legal. In revision, the
High Court cannot interfere with the judgement of the subordinate court even if it is not legal.

(b) Set-off and Counter-claim

Ans: It is crucial to understand and carefully consider the difference between set-off and counter-claim
under CPC, as they may appear similar but have significant differences:

1. Nature

Set-off is a statutory defence available to the defendant in response to the plaintiff’s action, while a
counter-claim is essentially a cross-action initiated by the defendant.

2. Basis

Set-off must be based on an ascertained sum or arise from the same transaction as the plaintiff’s claim.
On the other hand, a counter-claim does not necessarily have to arise from the same transaction.

3. Purpose

Set-off serves as a statutory defence and is pleaded in the written statement. It acts as a shield for the
defendant and cannot be used as an offensive measure. In contrast, a counter-claim does not provide a
defence against the plaintiff’s claim. Instead, it empowers the defendant to assert their claim against the
plaintiff, similar to an independent action. It serves as a weapon of offence.

4. Scope
An equitable set-off typically cannot exceed the plaintiff’s claim and is a defensive measure. In contrast,
a counter-claim can exceed the plaintiff’s claim as it operates as a cross-action.

According to Rule 6-F of Order 6, if a set-off or counter-claim is established as a defence against the
plaintiff’s claim and a balance is found due to the defendant, the court may grant judgment to the party
entitled to such balance.

However, it is important to note that in both set-off and counter-claim cases, the defendant’s claims
must not exceed the pecuniary limits of the court’s jurisdiction.

(c) Procedural law and Substantive law.

Ans: Differences between substantive laws and procedural laws are:

1. Subject matter

Substantive laws deal with the legal rights and obligations of the individuals among themselves and
towards the state.

Procedural laws describe the ways and methods following which substantive law is enforced.

2. Objective

These laws control and govern the rule of law as a whole.

Procedural laws exclusively deal with the proceedings in the court and the methods to start a legal case.

3. Context of application

Substantive laws are applied only in legal contexts.

Procedural laws are applied in both legal and non-legal contexts including proceedings of litigation.

4. Regulation

Substantive laws are regulated by the Acts of Parliament or governmental implementations.

Procedural laws are regulated by statutory laws only.

5. Capacity

Substantive laws have individual capacities to decide the course of any legal proceedings.

Procedural laws only can dictate the paths any legal proceeding should follow.
6. What is 'Review'? On what grounds a review is allowed? Discuss the procedural aspects of review.
2+4+6-12

Ans: Introduction

Review means to look once again. Section 114 and Order 47 of the Code of Civil Procedure, 1908 (CPC)
deals with the concept of review. Review is covered under S. 114 of CPC. Review means nothing but to
reconsider/rethink or re examine/re-evaluate something. The term "review" refers to a court's re-
examination of a previous decision. The very same judge and the very same court conduct the review.
Any individual who is dissatisfied by an order or decree from which no appeal exists or wherein an
appeal exists but is not chosen may request a review of verdict.

Any person who has been aggrieved by a court of small causes decision on a referral may request a
review of the judgement. The petition for review must be fled with the court that issued the decree or
order. The court to which a petition for review should be addressed is the court that issued the
judgement or order. An application for review can be filed by anyone who is affected by a decree /order
or by the ruling of court of small causes on a reference. The provisions governing the form of preferred
appeals apply to the application form for review also with few necessary alterations which is also known
as "mutatis mutandis".

Section 114, CPC

This section states that subject as aforesaid, any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has
been preferred.

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the
Court which passed the decree or made the order, and the Court may make such order thereon as it
thinks fit.

Review (Meaning)

“Review”, in a very general understanding of a layman, as described by the oxford dictionary, states – “A
formal assessment of something with the intention to institute a change if necessary”. The concept
under the law actually goes in consonance with the stated description, having in addition the conditions
for applicability, specific grounds along with other general rules.

Object of Review

The main object of granting a review of judgment is reconsideration of the same matter by the same
court and the same judge under certain conditions.
The power of review is inherited in every court to prevent miscarriage of justice or to correct grave and
palpable errors committed by it.

Grounds For Review

Review can be filed, if there is:

1. “Discovery of New and Important matter or evidence, which, after the exercise of due
diligence was not within the knowledge of the person seeking review or could not be
produced by him at any time when the decree was passed or order made”,

Discovery of any new matter or evidence necessarily has to be an important or relevant as such to the
extent that had it been brought on record at any time when the decree was passed or order made, it
would have an impact and might have altered the decision. Moreover, absence of such important
matter or evidence on record at the time of decision, must not be the result of negligent attitude of the
concerned person and therefore such person applying for Review is required by law to strictly prove that
such matter or evidence was not within his knowledge or could not be adduced, even after exercising
due diligence and unless such proof is given, application shall not be granted.

Court may take subsequent events into consideration while reviewing a decision, however the fact that
the question of law on which decision, sought be reviewed, is based has been reversed or modified
subsequently by the higher authority in any other case, would not make it a new and important matter,
to review the decision.

Illustration – “A sued B for a sum of money alleged to be due under an agreement and obtained the
decree for the same, against which B, subsequently filed an appeal in the Privy Council, and while the
appeal was pending, A obtained another decree against B on the strength of the former decree, for
another sum of money alleged by him to have become due under the same agreement and later Privy
Council reversed the former decree in the appeal, on the basis of which B applied to the court which had
passed the second decree, for the Review on the ground of the decision of Privy Council and so was
accepted and held by the court to be a new and important matter”[xvi].

2. “some mistake or error apparent on the face of the record”,

The mistake or error should be such, which is very obvious and visible itself on the face of it, and
therefore any error found out from the judgment after a long reasoning and law based analysis, cannot
be said to be one apparent on the face of record, as a ground for review. However, such mistake or error
can be of fact and as well as of law.

Illustrations – “Non-consideration of the very obvious application of particular law, such as law of
limitation or particular provision to the facts of the case, setting aside of the ex parte decree without
being satisfied of the any of the conditions laid down in Order 9 Rule 13, application of religious law
which has not been legally recognized, wrong interpretation of a settled legal issue, where a commission
was issued to examine a witness in a country where no reciprocal arrangement exists, have been held to
be an error apparent on the face of record”.
 3. “any other sufficient reason”.

Before 1922, the application of the term “Sufficient reason” was unrestricted and unregulated, finally in
that year a principle came to be laid down by the Privy Council in the case of Chhajju Ram V. Neki[xviii],
which can be summarized as that “the third ground mentioned, is no doubt giving wide scope to the
grounds for review, but at the same time that “sufficient reason” has to be at least analogous (ejusdem
generis) to either of the other two grounds and the mere reason that decree was passed or order made
on erroneous ground that court failed to appreciate the important matter or evidence, would not make
any good ground for review, and therefore in such cases, the appeal and not review, is the remedy to
get such erroneous decree or order corrected”.

Illustrations – Failure to adhere to legal provision which required the court to act in a particular manner
would fall within the meaning of “Sufficient Reason” as analogous to the “Error Apparent on the Face of
the Record”. Order of the dismissal of a suit due to default of the plaintiff, cannot be reviewed on the
ground of misapprehension of the counsel as sufficient reason, but if order was on its face illegal then
such order may be reviewed on the ground as error of the law apparent on the face of the record.

Order XLVII in the Code of Civil Procedure, 1908 (CPC)

Order XLVII in the Code of Civil Procedure, 1908 (CPC) together with Section 114 of the Act, provides the
procedure for Review. Section 114 merely produces the conditions necessary for the filing the
application for Review to the ‘court’ by which decree or order, sought to be reviewed under the
application, was passed or made. While Order XLVII along with the same conditions as enumerated in
the section, lays down grounds for Review and other procedural rules governing the same.

In order to understand the legal procedure, Two Primary Aspects of the concept need to be borne in the
mind, which are as follows –

1. “Same Court” – Rule 1 of the Order specifically provide that application for Review of the decree
or order has to be made to the very same court which passed such decree or made such order.
2. “Court” – The term has not been defined in the CPC, but impliedly interpreted as “Any Court
having the jurisdiction to try the suits of a civil nature”[i], now such civil jurisdiction may be such
as conferred upon the courts by the CPC itself, or upon the Tribunals by the special statues, or
upon the Supreme Court and High Courts under their civil appellate jurisdiction[ii], by the
Constitution of India.

Review Jurisdiction for the Supreme Court – The Apex Court, therefore also falls within the meaning of
the term “Court” while hearing any suit of a civil nature. It however has been separately empowered
with the review jurisdiction under Article 137 of the Constitution, but for the cases other than that of
civil and criminal, since for such cases, it is being governed by the CPC and Criminal Procedure Code
only.

Review Jurisdiction for the High Courts – Apart from the power conferred upon it as a “Civil Court”
under the CPC, it has been held by the Apex Court in the case of Shivdeo Singh v. State of Punjab :
“It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court
from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent
miscarriage of justice or to correct grave and palpable errors committed by it.”

Conclusion

The power of reviewing of its own judgment is conferred on the court. Section 114 and Order 47 of Civil
procedure Code provides the right to review the judgment. Section 114 provides only right to review the
judgment and order 47 of CPC provides limitations and conditions. Article 137 of the Indian Constitution
allowed the Supreme Court to review its own orders and judgment. The objective behind this power is
to ensure justice. It is rightly said that Law has to bend before justice.

Or

"An executing Court cannot go behind the decree". Elucidate the statement pointing out the
exceptions, if any. 12

Ans: Introduction

One of the most important principles of Section 47 is that any matter related to the execution,
discharge, or satisfaction of a decree between two or more parties or their representatives in their
absence must be determined in the same execution proceedings. No other or separate suit must be filed
for the same. This indicates that the Section has a much wider scope than it looks. The executing court
has been conferred exclusive jurisdiction on all matters related to execution, discharge, or satisfaction of
a decree.

According to Section 47, once a suit has been adjudicated and a decree has been passed, then all the
questions related to the execution of the decree must be taken up and determined by the executing
court. It further bars the filing of a separate suit for this purpose. In the case of Harnandrai Badridas v.
Debidutt Bhagwati Prasad (1973), the Hon’ble Supreme Court held that in order to empower the
executing court to consider and determine all questions related to the execution of a decree, unless it
falls beyond its ambit, the provision of Section 47 must be interpreted liberally.

Objective of Section 47 CPC

The following are the objectives of this Section:

 To provide a quick and cheaper remedy in case the decree has not been executed by a
judgement debtor.
 To determine any question or objection related to the execution of a decree.
 It also reduces the burden of filing a separate suit and thus prevents multiple litigations and
suits.
 It also reduces the chances of pendency of suit and delay in justice, which might happen in case
a separate suit is filed for the purpose of execution of a decree.
  It provides a legal remedy to the decree holder if the decree has not been executed properly or
if there is any ambiguity in the execution.
 The decree can be enforced properly and without any failure with the help of the executing
court.

Essentials of Section 47 CPC

In order to apply Section 47, the following conditions or essentials must be fulfilled cumulatively:

 The question related to the execution of a decree must arise between the parties to a suit or
their representatives and not any third person not having any interest in the suit or execution.
 The question or matter at issue must be related to the execution, discharge or satisfaction of a
decree.

Question or matter in issue

The question or matter at issue between the parties to a suit where the decree has been passed must be
related to the execution, discharge, or satisfaction of such a decree. The following questions fall under
the ambit of Section 47:

 Whether the decree passed is executable,

 Whether the property mentioned in the decree be sold for execution of such decree,
 Whether the decree has been executed and whether the method or procedure followed
satisfied the decree,
 Whether the property in question is included in the decree,
 Questions related to identity, attachment, or sale of property.
 Whether a party is entitled to restitution of property after the decree has been executed,
 Whether such execution be postponed or not,
 Whether the sale of property in the execution is warranted and done according to what has
been mentioned in the decree, etc.

Prior to the Amendment Act of 1976, various High Courts had given different opinions on whether the
question related to the delivery of possession of property to an auction-purchaser falls under the ambit
of Section 47. But the Supreme Court in 1973 clarified and settled that such a question is related to the
execution, discharge, or satisfaction of a decree and must be determined under the Section and thus,
clause (b) to Explanation 2 was added after the amendment. (Harnandrai Badridas v. Debidutt
Bhagwati Prasad, 1973)

Some of the examples of questions that do not fall within the category of questions under the Section
are as follows:

 Whether the decree passed is fraudulent,

  Whether it has become in-executable by a compromise in the previous suit before the passing of
a decree,
 Question of the jurisdiction of the court,
 Question related to the validity of decree except in cases where it is a nullity,
 A pre-decree arrangement between the parties,
 Question or claim for compensation for wrongs committed by any officer in the execution of a
decree, etc.

Powers and duties of executing court

The powers and duties of the executing court are:

 Plenary power to determine questions related to execution, discharge, or satisfaction of a

decree.
 The relevant date for this purpose would be the date on which the proceedings were originally
instituted.
 It can mould relief according to the changes in the circumstances.
 The court cannot go beyond what has been mentioned in the decree.
 The question related to the validity or correctness of the decree can not be determined by such
a court.
 It has the duty to interpret the decree in cases of vagueness and ambiguity.
 It can also refuse the execution of a decree if there is an inherent lack of jurisdiction in the
court.

General principles for executing court

There are some general principles related to the power and duties of an executing court. These are:

 No court can execute a decree for a property that is situated outside its local jurisdiction. Thus,
the general rule is that an executing court has to work within its territorial jurisdiction.
 The executing court can never go beyond what has been stated in the decree, nor can it modify
the decree.
 If the court lacks inherent jurisdiction, then the decree passed will be a nullity and its invalidity
could be easily established in execution proceedings. However, such a lack of jurisdiction must
be easily identifiable on the face or in the first instance.
 In case the decree-holder dies, then it does not mean that the decree will now stand in
executable. It can be executed against his legal representatives.
 The executing court has the power to interpret a decree in cases of ambiguity and vagueness.
 It can also decide whether such a decree has ceased to be executable by any subsequent
developments.
 If a decree has become in-executable by operation of law, then it might become executable by
virtue of any further amendment.
  The executing court can also mould or modify the relief granted to the plaintiff according to any
change in the situation or circumstances.
 If the executing court is executing a decree which has been transferred to it by some other
court, then it will have the same powers as if it is executing a decree passed by the court itself.

Appeal, revision and Section 47 CPC

The word ‘decree’ has been clearly defined under clause 2 of Section 2 of the Code. Prior to the
Amendment Act of 1976, the question related to the execution of a decree under Section 47 was subject
to a first appeal under Section 96 and then a second appeal under Section 100 of the Code. This meant
that if a party was not satisfied with the proceedings of the executing court and its order, then it could
appeal further. It was earlier considered as “deemed to be a decree”.

In the case of Parshava Properties Ltd. v. A.K. Bose (1979), the Patna High Court held that the
determination of a question under Section 47 of the Code will be termed as a decree only if it fulfils the
essentials of a decree defined under Section 2(2) of the Code and, thus, could be appealed further.
However, this was overruled in the case of Narmada Devi v. Ram Nandan Singh (1987). On the other
hand, the High Court of Allahabad, along with other courts in different judgments, has given a different
view that after the amendment of 1976, an order passed under Section 47 of the Code does not fall
within the meaning of the decree (Pratap Narain v. Ram Narain, 1980).

Thus, after the amendment, any question determined under the Section and an order passed in lieu of
the question are not considered as decrees, and so no further appeal lies. However, one can file a
revision application under Section 115 of the Code if the conditions given in the Section can be fulfilled.

Conclusion

Section 47 mainly deals with the questions that are to be determined by the executing court while
executing a decree. The questions that can be related to execution, discharge, or satisfaction of the
decree come under the ambit of this Section. The position of an order passed by the executing court
under the Section was different before the Code of Civil Procedure (Amendment) Act of 1976. It was
considered to be a deemed decree and an appeal in furtherance of that order was permitted. But after
the amendment, it is clear that any order passed by virtue of Section 47 is not a decree and cannot be
appealed. However, an application for revision can be filed, which is maintainable only if the conditions
of revision are fulfilled. The Amendment Act of 1976 further provides that any amendment to Section
2(2) of the Code will not affect any such pending appeals and they will be determined as if they were
determined before the amendment.

7. "The statute of limitation is the statute of repose, peace and justice" Explain the statement. 12

Ans: Introduction

The law of limitation finds its roots in the maxim Interest Reipublicae Ut Sit Finis Litium which means
that in the interest of the state as a whole there should be a limit to litigation and vigilantibus non
dormientibus Jura subveniunt which means the law will assist only those who are vigilant with their
rights and not those who sleep upon it.

The Limitation Act, 1963 (Act hereafter) prescribes different periods of limitation for filing of suits,
appeals or applications.The statute of limitation are statutes of repose because they extinguish stale
demands and quiet titles. They secure peace by ensuring the security of rights and justice as by lapse of
time, evidence may get destroyed.

Object of the Act

The Law of limitation prescribes a time period within which a right can be enforced in a Court of Law.
The time period for various suits has been provided under the schedule of the Act. The main purpose of
this Act is to prevent litigation from being dragged for a long time and to quickly dispose of cases which
leads to effective and easy litigation and disposal of cases.

Period of Limitation

Section 2(j) of the Act defines the period of limitation and prescribed period. Period of limitation refers
to the time period which is prescribed for any suit, appeal or application by the Schedule of the
Limitation Act, 1963. The prescribed period is the period of limitation computed in accordance with the
provisions of this Act.

Section 3 of the Act describes the Bar of limitation as subject to the provisions contained in Sections 4 to
24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period
shall be dismissed although limitation has not been set up as defense.

When Period of Limitation Starts

The time from which the period of limitation begins depends on the case's subject matter, and a specific
starting point of such period is provided extensively by the Schedule in the Act. It generally starts from
the date when the summons or notice is served, or the date on which the decree or judgment is passed,
or the date on which the event that forms the basis of the suit takes place.

Bar of Limitation Under Section 3

Section 3 of the Act provides that any suit, appeal, or application must be made within the limitation
period specified in the Limitation Act.

If any suit, appeal or application is made beyond the prescribed period of limitation, it is the duty of the
Court not to proceed with such suits irrespective of the fact whether the plea of limitation has been set
up as a defence or not. The provisions of Section 3 are mandatory, and the Court can suo motu take
note of question of limitation. The question whether a suit is barred by limitation should be decided on
the facts as they stood on the date of presentation of the plaint. It is a vital section upon which the
whole Limitation Act depends for its efficacy. The effect of Section 3 is not to deprive the Court of its
jurisdiction. Therefore, decision of a Court allowing a suit which had been instituted after the period
prescribed is not vitiated for want of jurisdiction. A decree passed in a time barred suit is not a nullity.

Limitation Bars Remedy but doesn't Extinguish Right

The law of limitation only bars the remedy by way of the suit i.e., if the period of limitation expires, the
party entitled to file a suit for the enforcement of a right is debarred from doing so.

However, the original right on which the suit was to base is not barred. Thus, limitation only bars the
judicial remedy, but it does not extinguish the right.

For example, where the recovery of a debt has become time barred by the lapse of the prescribed
period, the right to the debt is not extinguished.

If the debtor, without being aware of the bar of time, pays the debt, he cannot sue the creditor to
refund the money to him on the grounds that his claims for the recovery of the debt had become time
barred. There is one exception to the aforesaid rule contained in Section 27 of the Limitation Act, 1963.
It provides that where a person’s right to institute the suit for the possession of any property has
become barred by limitation his right to the property itself shall be extinguished.

Extinguishment of Right

General Rule that the law of limitation only bars the remedy but does not bar the right itself.

Section 27 is an exception to this rule. It talks about adverse possession. Adverse possession means
someone who has possession over another’s land for a long time can claim a legal title over it. In other
words, the title of the property will vest with the person who resides in or is in possession of the land or
property for a long period. If the rightful owner sleeps over his rights, then the rights of the owner will
be extinguished, and the possessor of the property will confer a good title over it. Section 27 is not
limited to physical possession but also includes de jure possession. As per the wordings of this Section, it
applies and is limited only to suits for possession of the property.

Doctrine of Sufficient Cause

Sufficient cause means there should be adequate reasons or reasonable ground for the court to believe
the applicant was prevented from proceeding with the application in a Court of Law.

Section 5 allows the extension of prescribed period in certain cases on sufficient cause being shown for
the delay. This is known as doctrine of “sufficient cause” for condonation of delay which is embodied in
this section. Condonation of delay means that extension of time given in certain cases provided there is
sufficient cause for such delay. Section 5 of the Act talks about the extension of the prescribed period in
certain cases. It provides that if the appellant or the applicant satisfies the court that he had sufficient
cause to not prefer the appeal or application within that period, such appeal or application can be
admitted after the prescribed time.
In State of West Bengal v. Administrator (1972), the Supreme Court held that the extension of time is a
matter of concession and cannot be claimed by the party as a matter of right.

It is difficult and undesirable to precisely define the meaning of sufficient cause. It must be determined
by the facts and circumstances of each case. However, a sufficient cause should fulfill the following
essentials:

 It must be a cause which was beyond the control of the party invoking it.
 He must not be guilty of negligence.
 His diligence and care must be shown.
 His intention must be bonafide.

Exception

Section 5 is not applicable to applications made under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908 (states that the decree must be signed by the judge, and then the decree must be
entered in the register of decrees and further states that the decree should be dated and authenticated
by the judge's signature) and to suits.

The Court has no power to admit a time barred suit even if there is a sufficient cause for the delay. It
applies only to appeals or applications as specified therein.

Plea of limitation: Duty of Court

The Court is under an obligation to dismiss a suit if it is filed beyond the time prescribed by the
Limitation Act. The provisions of Section 3 are mandatory, and the Court will not proceed with the suit if
it is barred by time.

Case Laws

 Craft Centre v. Koncherry Coir Factories (1990):

It was held by the Kerala High Court that the plaintiff's duty is to convince the Court that his suit is within
time. If it is out of time and the plaintiff relies on acknowledgments to save the limitations, he must
plead or prove them, if denied. The Court further held that, provision of Section 3 is absolute and
mandatory and if a suit is barred by the time, the court is under a duty to dismiss the suit even at the
appellate stage though the issue of limitation may not have been raised.

 ICICI Bank Ltd v. Trishla Apparels Pvt Ltd (2015):

It was held by Madras High Court that there is no doubt that the court is duty-bound to dismiss the suit
in a case it is barred by time even though no such plea has been taken by the opposite party.

Limitation Period When the Court is Closed

Section 4 of the Limitation Act deals with the provision and mentions:
When a court is closed on a certain day and the period of limitation expires on that day, then any suit,
appeal or application shall be taken up to the Court on the day on which it reopens.

This means that a party is prevented not by his own fault but because of the Court being closed on that
day.

For instance, if a Court reopens on 1st January and the time for filing the appeal expires on 30th
December (the day on which the Court remains closed) then the appeal can be preferred on the 1st of
January when the Court reopens.

Or

"When once time has begun to run, no subsequent disability or inability to suc stops it" Explain the
statement. State the exceptions, if any. 12

Ans: Introduction

The ‘Law of Limitation’ provides an aggrieved party with the time limit for different suits within which
the party can approach the court for relief. The suit is dismissed by the competent court where the time
limit provided by the limitation act expires. A situation may exist where, due to his physical or mental
condition, the person is not able to file a suit or make an application. In such cases, the law may not be
the same and additional rights and benefits may be accorded to individuals with disabilities.

The concept of legal disability is provided under Section 6 of the Limitation Act,1963 which further
extends to Sections 7, 8 and 9.

Section 6 of the Limitation Act,1963

Legal disability: (1) Where a person entitled to institute a suit or make an application for the execution
of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an
idiot, he may institute the suit or make the application within the same period after the disability has
ceased, as would otherwise have been allowed from the time specified there for in the third column of
the Schedule.

(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by
two such disabilities, or where, before his disability has ceased, he is affected by another disability, he
may institute the suit or make the application within the same period after both disabilities have ceased,
as would otherwise have been allowed from the time so specified.

(3) Where the disability continues up to the death of that person, his legal representative may institute
the suit or make the application within the same period after the death, as would otherwise have been
allowed from the time so specified.

(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the
person whom he represents, affected by any such disability, the rules contained sub-sections (1) and (2)
shall apply.
(5) Where a person under disability dies after the disability ceases but within the period allowed to him
under this section, his legal representative may institute the suit or make the application within the
same period after the death, as would otherwise have been available to that person had he not died.

Explanation —for the purposes of this section, ‘minor’ includes a child in the womb.

The section deals with following types of disabilities:

 Minority
 Insanity
 Idiocy

Minority

Minor is a person who has not attained the age of 18 years according to Indian Majority Act, 1875. The
calculation of the age has to be done according to Section 3(2) of the Majority Act, 1875 - In computing
the age of any person, the day on which he was born is to be included as a whole day and he shall be
deemed to have attained majority at the beginning of the eighteenth anniversary of that day.

Insanity

It means unsoundness of mind or lack of the ability to understand that prevents someone from having
the mental capacity required by law to enter into a particular relationship, status, or transaction or that
releases someone from criminal or civil responsibility.

In the case of S.K.Yadav v. State of Maharashtra (2009), the concept of insanity has been dealt with in
detail by the Supreme Court and the court opined that only legal insanity is recognized by law and not
the medical insanity.

Another case on the point of insanity is that of Hari Singh Gond v. State of Madhya Pradesh (2008) in
which the Supreme Court categorized insanity into further four categories:

 When one is an idiot;

 When one is made non compos by illness
 When one is a lunatic or a mad man and
 When one is drunk.

Idiocy

A person who acts in an extremely foolish way is said to be an idiot. Idiocy is not an acquired form of
mental instability, rather a person is an idiot since his/her birth.

Computation of Limitation Period in case of Legal Disability

Persons with insanity, minority and idiocy as disabilities are exempted under Section 6 to file a suit or an
application for the execution of the order in the time prescribed by the law. They are allowed to file a
suit or an application when their disability has ceased and counting the period starts from the day their
disability comes to an end.

Who is entitled to the benefit of Section 6

It is only a person “entitled to the suit” who can claim benefit of legal disability. Where the person dies
with such disability the ‘Legal Representative’ of such person may sue and all the rules provided by
Section 6 would apply to such legal representative as well.

Accrual of cause of action

The provision provides that the plaintiff must be suffering from the disability at the time when the cause
of action accrues.

In the case of Udhavji Anandji Ladha and Ors. v. Bapudas Ramdas Darbar (1949) Bombay High Court held
that Section 6 does not cover in any way any “intervening” kind of legal disability. When a legal disability
is in existence, only then can Section 6 be successfully applied.

Section 7 of the Limitation Act,1963

Disability of one of several persons.—Where one of several persons jointly entitled to institute a suit or
make an application for the execution of a decree is under any such disability, and a discharge can be
given without the concurrence of such person, time will run against them all; but, where no such
discharge can be given, time will not run as against any of them until one of them becomes capable of
giving such discharge without the concurrence of the others or until the disability has ceased.

Explanation I —This section applies to a discharge from every kind of liability, including a liability in
respect of any immovable property.

Explanation II —For the purposes of this section, the Manager of a Hindu undivided family governed by
the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the
other members of the family only if he is in management of the joint family property.

Section 7 had to be taken as an exception to the general principle set out in Section 6 and provides that
if there were several persons who were jointly entitled to file suits and if one of them were disabled, the
time would not run against either of them until the disability ceased to exist. But if one of the persons
entitled to institute a suit was competent to grant discharge without concurrence from others, then
time would begin to run against both of them.

Section 8 of the Limitation Act,1963

Special exceptions — Nothing in Section 6 or in Section 7 applies to suits to enforce rights of pre-
emption, or shall be deemed to extend, for more than three years from the cessation of the disability or
the death of the person affected thereby, the period of limitation for any suit or application.
This provision provides that if the limitation period is extended under Section 6 or 7 then in no case it
should be extended for more than 3 years. Also, the extension under Section 6 or 7 will not be
applicable to suits for pre-emption.

Section 9 of the Limitation Act,1963

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

Conclusion

Legal disability under Limitation Act includes minority, insanity or mental disability. It serves as a
safeguard to protect individuals who are unable to fully comprehend their legal rights and
responsibilities. By temporarily suspending the ability to initiate legal proceedings, it ensures that
vulnerable individuals are not taken advantage of during periods of diminished capacity. Moreover, it
allows for a fair and equitable legal process, as it requires parties to possess the necessary competence
to actively participate in legal proceedings.

The Limitation Act incorporates various sections, namely Sections 6, 7, 8 and 9, to address different
aspects of legal disability. These sections collectively define the parameters within which legal disability
operates. Section 6 serves as the primary provision, while Sections 7, 8 and 9 further expand on specific
situations where legal disability under Limitation Act may apply.

EDITED BY – KIRTEE KAMAL DAS

LLB 4th SEMESTER (2022 batch)

UNIVERSITY LAW COLLEGE, GAUHATI UNIVERSITY