CIVIL PROCEDURE CODE
No |
Particulars |
|
UNIT - I |
1 |
C P C introduction |
2 |
|
3 |
|
4 |
|
5 |
Bar on suits |
6 |
|
7 |
Doctrine of Res subj judice and res judicate (sec 10,11 and 12) |
8 |
|
9 |
|
10 |
|
|
UNIT - II |
11 |
|
12 |
|
13 |
|
14 |
|
15 |
Defences |
16 |
|
17 |
|
18 |
|
19 |
|
20 |
Multifariousness |
|
UNIT - III |
21 |
|
22 |
|
23 |
|
24 |
First hearing and framing of issues (10 & 14) |
25 |
|
26 |
Adjournment (17) |
27 |
|
28 |
|
29 |
|
30 |
|
31 |
|
32 |
|
33 |
|
34 |
|
|
UNIT - IV |
35 |
Suits in particular cases ; suits by or against Government (sec - 79 to 82-27) |
|
|
36 |
Suits by aliens and by or against foreign Rulers ambassadors (sec 85 to 87) |
37 |
Suits relating to public matters ( sec 91- 93) |
38 |
|
39 |
|
40 |
|
41 |
|
42 |
|
43 |
|
44 |
|
45 |
|
46 |
|
47 |
|
48 |
|
49 |
|
|
UNIT - V |
50 |
UNIT - I
Section 2(2) of the Code defines the term decree so as to mean the formal expression of an adjudication which, as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy, such adjudication being in a suit.
Essentials of a decree:-
1) There must be a formal expression of adjudication. All requirements of form must be complied with. The term formal expression of adjudication connotes the adjudication, viz., granting or refusing any of the relief's claimed in the plaint and embodied in a formal declaration. An order clothed in the form of a decree will not make it a decree. If a decree has not been formally drawn up in terms of the judgment, no appeal lies from the judgment.
2) The application must have been given in a suit. Every suit is commenced by filing a plaint in a civil court. There cannot be a decree unless the suit has been filed. A decree is an indispensable part of a suit carried out to its logical conclusion. Rejection of an application for leave to sue in forma pauperis is not a decree within the meaning of the term for there is no plaint unless such application is granted and there is consequently no decision in a suit.
3) It must have determined the rights of the parties with reared to all or any of the matters in controversy in the suit. An order of dismissal for default of appearance is no determination of the rights of the parties and, therefore, is not a decree.
4) Such determination must be of a conclusive mature. The decision must be4 one which is complete and final as regards the courts which passes it. Where, therefore, the question sought to be adjudicated is left open, there is no decree. The question that falls for determination in such cases is whether the decision is a final one in its essence or subsequently. If it b3e so, the adjudication is a decree.
Kinds of Decree
There are two kinds of decree
1) Preliminary:-
A decree is preliminary when further proceedings have determination have to be taken before the suit can be completely disposed of. Such a decree determines the rights of the parties with regard to some or one of the matters in controversy in the suit but does not completely dispose of the suit, such decrees are passé in suits for possession and manse profits, in administration suits, in pre-emotion suits, in suits for dissolution of partnership, in accounts between the principal and agent, in partition suits, mortgage suits, in suits for foreclosure, in redemption suits, in suits for sale, etc.
2) Final Decree:-
The function of the final decree is merely to restate and apply with precision what the preliminary decree has ordained. The decrees are in the same suit and if the preliminary decree is set aside, the final decree is automatically superseded.
A preliminary decree ascertains what is to be done, while the final decree states the result achieved by means of the preliminary decree. The preliminary decree is not dependent on the final one, but the latter is really dependent on and subordinate to the former, which is not extinguished by the passing of the final decree.
Whether a decree is final or preliminary or partly preliminary and partly final has to be determined only by reference to the decree itself and not by the description given to the decree by the parties.
Where preliminary and final decrees are necessary the preliminary decree declares the rights of the parties and the final decree carries into fulfillment the preliminary decree and divides the properties specifically by metes and bounds in terms of the rights declared under the preliminary decree thereby completely disposing of the suit.
Orders
Section 2(14) of the code lays down that order means the formal expression of any decision of a civil court which is not a decree.
Order amounting to decree:-
1) An order rejecting a plaint the definition of decree provides that the rejection of a plaint shall be deemed to be a decree.
2) An order dismissing a suit for non-payment of court-fee or for failure to pay additional court-fee demanded.
3) An order for the dismissal of an appeal for non-payment of court-fee demanded after adjudication as to classification of a suit.
4) An order discharging some of the defendants for want of cause of action.
5) An order rejecting prayer for a final decree for foreclosure.
6) An order rejecting a plaint for insufficiency of stamp.
7) An order discharging defendants for failure of the plaintiffs to furnish particulars, as it amounts either to rejection of a plaint or dismissal of a suit.
8) The decision of a district court on appeal that the court below has no jurisdiction.
9) Where one issue is settled and the case remanded to the lower court for the determination of another issue.
10) An order of abatement of a suit.
11) An order dismissing an application by a legal representative to be brought on the record.
12) An order staying execution of a decree.
13) An order dismissing cross-examination.
Orders not amounting to decree:-
The following are the orders which do not amount to a decree
Interlocutory orders:-
Interlocutory orders can amount to a decree under section 2(2) if they are sufficient to dispose of the suit as a whole, no matter whether they are passed in suits or execution proceedings. An order, rejecting the plea of jurisdiction or limitation cannot amount to a decree. The decree does not include interlocutory decision on every controversial point, though embodied in a separate order, unless such interlocutory order which does not finally settle the suit as far as the court making the order is concerned and which cannot at that stage be drawn up in the form of a decree will not be a formal expression of adjudication.
Decree and Order distinguished:-
1. Every decree is appealable. First appeal invariably lies from a decree unless it is expressly provided in the body of the code or by any other law of the time being on force.
Ex: It is expressly provided in section 96(3) that no appeal shall lie from a decree passed by the court with the consent of the parties. But every order is not appealable.
2. A second appeal lies to the High Court in the case of decree if there is some substantial question of law involved therein. No second appeal lies at all even in the case of appealable orders.
3. A decree is an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy; an order may or may not finally determine the rights of the parties.
4. A decree may be preliminary or final, but there is no such distinction in an order.
5. A decree originates from a suit commenced by presentation of a plaint. An order may not necessarily originate from a suit; it generally arises from a proceeding commenced on an application.
6. In every suit there is one decree unless in suits for possession and mesne profits, administration or pre-emption suits, suits for dissolution of partnership or mortgage suits the code permits two decrees, one preliminary and the other final; in the case of a proceeding or a suit there is no restriction as to the number of orders that may be passed.
Jurisdiction can be classified into three categories
1. Jurisdiction over the subject-matter:-
Certain courts are precluded from entertaining suits of particulars classes by statute. Thus a small cause court can try only such suits as a suit for money due on account of an oral loan or under a bond of promissory note, a suit for price of work done, etc., but it has no jurisdiction to try suits for specific performance of contracts, for dissolution or partnership, for an injunction, suits relating to immovable property, or for defamation.
2. Local or territorial jurisdiction:-
Every court has its own limits, fixed by the government, beyond which to cannot exercise its jurisdiction. Thus the District Judge is in charge of the district and cannot exercise his powers beyond that district. The Munsif West and Munsif East are in charge of the areas assigned to them. The High Court has jurisdiction over the whole territory of the state within it is situate.
3. Pecuniary jurisdiction:-
Throughout India there are a large number of civil courts of different grades giving jurisdiction to try suits or hear appeals of different amounts or value. Some of these courts have unlimited pecuniary jurisdiction. Thus the High Court and the courts of the District Judge and the Civil Judge have unlimited pecuniary jurisdiction other courts have only a limited pecuniary jurisdiction.
Section 9 of the Code provides that civil in nature suits. it confers the power upon the civil court jurisdiction to try a suit of civil nature. The civil court's power is restricted only to suits or disputes of civil nature. Followings are the civil in nature suits:
1. Right to religious honour:-
A suit does not lie for mere honour or dignity unconnected with fees, profits or emoluments. A suit for declaration and injunction in respect of a right to be carried in a palanquin on certain days through Public Street is not maintainable. Courts will not decide disputes as to precedence or privilege between purely religious functionaries.
Right to honours unconnected with an office cannot form the subject-matter of a suit.
2. Right to worship:-
A suit to establish the right to worship in a temple according to the worshipper's belief is a suit of a civil in nature.
3. Right to take out procession:-
The right to take out a procession through the public streets is a civil right, and a suit will lie to enforce such a right in a civil court.
4. Right to share in offerings:-
Right to share in temple offerings is a civil right. A suit by a priest to recover fees received by an unauthorized person is a suit of a civil nature cognizable by a civil court.
5. Suit in respect of voluntary offerings:-
A suit in respect of voluntary offerings, i.e., for recovery of emoluments received by the defendants for officiating as purohits at marriage and other ceremonies conducted by them in honours of Vysysa belonged to the plaintiff is not maintainable.
6. Right to religious office:-
There can be no office without duties attached to it. The right to hold a certain office in a certain place at certain season of the year confers a legal character. A hereditary priest, cannot compel his yajman to accept his service. Right to office of a hereditary priest to which fees are attached is property and a suit is maintainable.
7. Company:-
If a company terminates the appointment of the managing agents by an ordinary resolution contrary to the articles of association, the matter is not merely concerning the internal management of the company and the civil court can grant a declaration to the effect that the resolution is invalid.
8. Suits barred on grounds of public policy:-
They are suits the cognizance of which is impliedly barred on the grounds of public or state policy. Suits by a witness to recover money agreed to be paid to him in consideration of his giving evidence, suits on agreement void on grounds of public policy, e.g., rent of lodgings knowingly let to a prostitute, suits to enforce an agreement to suppress a criminal prosecution, suits based on illegal or unlawful contracts, etc. are not maintainable.
9. Suits for restitution of conjugal rights by a Christian:-
Where the partners are Christians, a decree for restitution of conjugal rights can be granted under the provisions of a special statute, viz., the Indian Divorce Act, 1869, governing the procedure by the District Court or the High Court on the petition of the husband or wife. The general remedy of a suit in the ordinary civil courts as provided by Section 9 of CPC is impliedly barred by the Indian Divorce Act.
10. Arbitration matters:-
All kind of Arbitration matters are decided by civil court.
11. Dispute between employer and employee:-
The principles with regard to jurisdiction of civil court in relation to dispute between employer and employee can be summarized as under. Where reliefs are claimed on the basis of the general law of contract, a suit is not barred even though such a dispute may also be an industrial dispute under Industrial Disputes Act.
In case of violation of standing orders an employee may approach either before the forums created by Industrial Disputes Act or the civil court. But where dispute involves recognition, observance or enforcement of any rights or obligations created by the Industrial Disputes Act 1946, the only remedy is to approach the forums created by the Industrial Dispute Act.
12. Suits by Hindu wife for perpetual injunction restraining her husband from contracting second marriage:-
A suit brought by a Hindu wife fro an injunction perpetually restraining her Hindu husband from contracting a second marriage falls within Section 9 of CPC., and is cognizance is not expressly or impliedly barred by any provisions in the Hindu Marriage Act.
13. Revenue matters:-
All type of revenue matters decided by the civil court.
14. Service matter:-
When relevant service Rules neither expressly nor by implication take away jurisdiction of civil court to deal with service and matter was litigated in civil court for more than five years, it is not proper to hold in second appeal that the civil has no jurisdiction.
Section 10 of CPC says that a suit must be stayed iof the matter directly and substantially in issue in it is also directly and substantially in issue in a previous suit that is pending. The criterion for deciding whether the subsequent suit be stayed or not is whether there is identity of the matters directly.
Conditions :-
1. A previously instituted suit is pending in a court.
2. The matter in issue in the second suit is also directly and substantially in issue in a previously instituted suit.
3. The previously instituted suit must be pending in the same court in which the subsequent suit is brought, or in any other court in India or in any court beyond the limits of India established or continued by the Central Government or in the Supreme Court.
4. The court in which the previous suit is pending has jurisdiction to grant the relief claimed in the subsequent suit.
5. The parties in the two suits are the same.
6. The parties must be litigating under the same title in both the suits.
Different cause of action:-
When earlier suit was institute for recovery of dues payable by appellant-consignors and later suit by appellants for recovery of goods lawfully entrusted to and unlawfully detained by respondent carries, the later suit could not be stayed. The causes of action in both suits are entirely different.
1.5 Res Judicata
The doctrine of Res Judicata is based upon two Roman maxims
1. Nemo debet bis vexari pro uno eteadem cause:-
It means no one shall be vexed twice over for the same cause of action.
2. Interest republicae ut sit finis litium:-
It means that the interest of the state that there should be an end to litigation.
Section 11 of the CPC provides that Res Judicata means
1. Directly and subsequently in issue:-
The matter directly and subsequently in issue in the subsequent suit must be the same matter which was directly and subsequently in issue, either actually or constructively, in the former suit. The Res Judicata does not depend on whether the causes of action in the two suits are identical. Causes of action in the two suits may be different, but the test is whether the matter directly and substantially in issue is the same in both suits and whether the parties are the same or the suit is between parties claiming under them and litigating under the same title.
2. between the same parties:-
The second essential condition to constitute the bar of Res Judicata is that the former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Res Judicata not only affects the parties to the suit but their privies, i.e., oersons claiming under them. A judgment not inters partes or in rem is not Res Judicata in a subsequent suit though it may be received in evidence.
Representative suit:-
Where persons litigate bona fide in respect of a public right or a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the person so litigating refers to cases in which a decision in a suit may operate as res judicatata against persons not expressly named as parties to the suit, i.e., in a representative suit.
According to order 1, rule 8, of C.P.C. provides that there must be a suit in which a person claims a right in common to himself and others, though not governed by order 1, Rule 8 of CPC. If the parties in the subsequent suit can be said to have been represented by the parties in the former suit, the decision in the former suit will bind the parties in the subsequent suit. A decree passed against a shebait or a trustee will also bind his successor. Dismissal of a suit brought by the managing member of a joint family is a bar to a subsequent suit by a junior member who had been pro forma defendant in the former suit, in respect of the same property and on the same cause of action. The son is bound by the decision against the father.
Waiver of plea of Res Judicata:-
That apart the plea, depending on the facts of a given case, is capable of being waived, if not property raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of Res Judicata may proceed on an assumption that his opponent has waived the plea by his failure to raise the same.
The doctrine of Res Judicata can be applied as between co-defendants
In Chandu Lal V/S Khalilur Rahman:-
In this case, the doctrine may apply even though the party against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided.
Conditions to be fulfilled by the co-defendants:-
3. Litigating under the same title:-
The third essential condition to constitute the bar of res judicata is that the parties must have litigated under the same title in the former suit. The expression litigating under the same title means litigating in the same capacity. Thus a suit brought by a person to recover possession from a stranger of math property claiming it as heir of the deceased Mahunt is no bar to a suit by him as manager of the math, if the first suit is dismissed on his failure to produce the succession certificate for the two suits arises under different capacities. It does not matter if the transfer attacked in one case is a mortgage and in the other case a gift. All that the phrase litigating under the same title connotes is that the demand should have been of the same quality in the second suit as in the first.
4. Competency of court to try the subsequent suit:-
The fourth condition is that the court which decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised. The decisions of the courts of limited jurisdiction shall in so far as such decisions are within the competence of the courts of limited jurisdiction, operate as Res Judicata in a subsequent suit although the court of limited jurisdiction may not be competent to try such subsequent suit in which such question is subsequently raised.
5. Heard and finally decided:-
The matter directly and subsequently in issue in the subsequent suit have been heard and finally decided by the court in the first suit.
Illustrations
The court fixed an issue, "was the area in possession of B less than 50 bighas? The court found that B was in possession of an area more than 50 bighas.
Issue of fact
A decision on an issue of fact, though erroneous, constitutes res judicata between the parties in a subsequent suit, if the requisite conditions prescribed. Issue should be finally heard and decided.
Issue of law
An issue of law may not operate as res-judicata. Two cases may arise:
Res-Judicata between co-plaintiffs:-
Just a matter may be res-judicata between co-defendants so it may be res-judicata between co-plaintiffs also subject to the same conditions which apply to the case of co-defendants.
Ex: A father brought a suit in behalf of himself and his three minor daughters from the plaint it appears that there was no conflict between the plaintiffs inter se in that suit, later on, one of the daughters, sued the father to partition the property got him in the prior suit. Held that suit was not barred by the prior suit as the rights between the plaintiffs's inter se were neither necessary nor decided in the prior suit.
Resjudicata and insolvency proceedings:-
The principle of the section has been applied in insolvency proceedings. When an official receiver dismissed an application under section 54 of the provincial insolvency Act, 1920, holding that a sale was not a fraudulent preference, a creditor was debarred by the rule of res judicatra from applying under section 4 and 56 of the Act to set aside a sale as being a fraud on creditors. An order winding up a company on the application of a person, who claims to be a creditor with respect to a specified debt, was held to operate as res judicata on the question as to the truth and amount of the debt.
Obiter Dictum:-
Where the court expresses its mere opinion on a matter not necessary for the decision of a case and not arising out of the issues before it, the same will be regarded as obiter dictum and cannot be said as decision on any issue. It is well settled that in matters of taxation there is no question of res judicata because each year's because it determines only the tax for a particular period.
Section 13 of the Act provides that a foreign judgment will operate as res judicata. It will operate as bar to fresh suit in this country on the same cause of action. The judgment is to be treated as conclusive with respect to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any one of them claim litigating under the same title.
Exceptions:-
Ex: An ex parte judgment, a judgement on the basis of compromise.
Natural Justice:-
Where the proceedings in which the judgement was obtained has been opposed to natural justice. The expression natural justice in the clause refers rather to the form of procedure than to the merits of the particular case. The mere fact that a foreign judgement is wrong in law does not make it one opposed to natural justice. There must be something in the procedure anterior to the judgement which is repugnant to natural justice. A foreign judgement obtained without notice of the suit to the defendant is country to natural justice. If a suit instituted in India in the judgement of a foreign court, and the defendant does not make any objection to the jurisdiction of the foreign court, even though it has no jurisdiction the defendant will not be allowed to take an objection when judgement goes against him.
But if he protests against the jurisdiction, and the suit is then proceeded with against him, the judgement is a nullity and no effect will be given to it in a suit brought on the judgement. The protest against jurisdiction must be made at an early stage of the proceedings, hence where no objection to the jurisdiction was made until the case had reached the stage of appeal, it was held that there was submission to jurisdiction.
Enforcement of foreign judgement:-
A foreign judgement may be enforced by proceedings in execution in certain specified cases only. It can only be enforced by a suit upon a judgement. If such suit is dismissed no application will thereafter lie to execute the judgement. The competence of a foreign court is to be decided in accordance with the principles of international law. No state is bounded under the law of nation to enforce within its territory the judgement of a foreign tribunal. But under the English system of jurisprudence such a judgement is enforced on the principle that where a court of competent jurisdiction has adjudicated that a sum is due from one person to another a legal obligation arises to pay that sum on which an action of debt to enforce the judgement can be maintained.
In Sheo Ghalom Sahoo V/S Rahut Hasein:-
In this case where money or movable property has been deposited in court on behalf of a judgement-debtor in lieu of security, for the purpose of staying a sale in execution is afterwards confirmed on appeal, neither the depositor, nor the judgement-debtor, can claim to have such deposit refunded or restored to him, notwithstanding that the decree-holder has omitted to draw it out of court for more than three years, and that more than three years have elapsed since any proceedings have been taken in execution of the decree, and that the decree for that reason is now incapable of execution.
Presumption as to foreign judgment:-
Section 14 provides that if an Indian court a certified copy of any foreign judgment is produced, it shall be presumed to be genuine, without jurisdiction.
Effect and enforcement of foreign judgment:-
On obtaining a foreign judgment the creditor has two remedies open to him. These are the following remedies:
a) By instituting a suit on such foreign judgments. :-
A foreign judgment is enforceable by a suit upon the judgment which creates an obligation between the parties. Indeed, it shall be conclusive as to any matter thereby, directly adjudicated upon between the same parties, subject to exceptions enumerated in section 13 of the code of civil procedure code.
b) By proceedings in execution of the judgment :-
In certain cases mentioned in section 44-A of the code, section 44-A provides that where a decree has been passed by superior courts in United Kingdom or in any other reciprocating country, a certified copy of such decree can be filed in the district courts in India and the decree may be executed as if it has been passed by the district court.
Sections 15 to 24 determine the forum for the institution of suits in India. Every suit shall be instituted in the court of the lowest grade competent to try it. The object of the legislature is that the court of the higher grade shall not be over-crowded. Section 15 is a rule of procedure only, not of jurisdiction. Sections 15 to 20 regulate the forum for the institution of suits in India. The grades of the court are created by the statutory provisions. The word competent in section 15 of the code means having jurisdiction to try. Jurisdiction had reference to
The jurisdiction of a court to try a suit is of three kinds, those are:
But the exception of certain cases from the cognizance of small causes court relates to the jurisdiction of courts with regard to the, nature of the suit.
Grades of courts in India:-
Following are the several grades of courts in India.
Suits to be instituted where subject-mater situate:-
Section 16 to 20 specifies the places where suit is to be instituted according to the situation of the subject-matter of the suit according to the place of residence of the defendant or defendants or the place for where the cause of action wholly or in part arises. The combined effect of the sections 15 to 20 is that every suit shall be instituted in the court of lowest pecuniary jurisdiction within whose jurisdiction, either all the defendants or any of them at the commencement of the suit actually and voluntarily resides or carries business or personally works for gain. It has been held that the expression carries on business refers to natural person and not to legal person. Where the arbitrator held his sittings at Bombay, made awards at Bombay, not part of cause of action arose at Bombay. Suit was brought on the ground that union of India carries on business at Delhi; it was held that Delhi court had no jurisdiction.
The following three conditions should concur namely:
1. The agent must be a special agent who attends exclusively to the business of the principal and carries it on in the name of the principal and not a general agent who does business for any one that pays him.
2. The person acting as agent must be an agent in the strict sense of the term. The manager of a joint Hindu family is not an agent within the meaning of the condition.
3. To constitute carrying on business at a certain place, the essential part of the business must take place on the place.
According to section 20 of the code which provides that other suits to be instituted where, defendants reside or cause of action arises. Such suits are to be instituted in a court within local limits of whose jurisdiction:
a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for again.
b) Any of the defendants at the commencement of the suit actually and voluntarily resides, or carries on business or personally works for gain provided
1. Leave of court is obtained.
2. The defendants, who do not reside or carry on business or personally works for gain, acquiesce in such institution.
3. The cause of action wholly or partly arises.
A person permanently residing at place A and having a temporary residence at B, shall be deemed to reside at both places in respect of any cause of action arising at B, his temporary residence.
Ex: A is a tradesman in Calcutta. B carries on business in Delhi. B by his agent in Calcutta buys goods of A and requests A to deliver them to the East India Railway company. A delivers the goods accordingly in Calcutta; A may sue for the price of the goods either in Calcutta where the cause of the action arises or in Delhi, where B carries in business.
Place of suing
There is an apparent distinction between the place where any money is, in fact, paid and where it becomes payable. If from the fact that payment is made at a place, it cannot necessarily follow that the amount was payable there. The actual payment by itself will not be decisive for determining the place of the actual of the cause of action.
In Pream Nath V/S Dandoomal Rikhiram
In this case as to whether money is payable expressly or impliedly under a contract at a particular place has also been considered by a bench of the High Court in the case of Badiyanath Andal V/S The Coal Purchaser and Inspection Agency (p.) Ltd. In a case where there is no express agreement between the parties with respect to the place of payment, as in that event, great uncertainty may prevail and payments made at different places will provides shifting forums for a suit at the option of the payee.
Suit for damages for breach of contract
In suits for relief for breach of contract the cause of action consists of:
The cause of action consists of:
a) The making of the contract
b) Of its breach resulting in injury to the plaintiff
It is clear that the suit may be filed either at the place where:
Where the contract is both made and broken at one place, the whole cause of action arises there. In cases of the commercial contracts between parties of two different countries, the intention of the parties would decide as to law of which country would govern the contract and which could would gave the jurisdiction.
Place where breach of the contract take place:-
Every breach of contract gives rise to a cause of action. In case of the breach of the contract, a suit may be instituted to secure the proper relief in the place.
The place of breach is the place where the contract had to be performed or completed. In order to determine the place where the breach took place, that part of the contract which has been performed has not to be considered. When a contract was to be performed at 4 places, but was performed at 3 places but broken at one place, the suit can be brought only at the place where it had been broken and not in any other place where it had been performed. If it had been broken at 2 or more places, the suit may be brought at any place where the breach had occurred.
Ex: A contract of sale of goods was made at Delhi and it was agreed that the delivery and the payments of the price was to be made at Kanpur, the contract is to be completely performed at Kanpur, and the Kanpur court will have jurisdiction to try a suit in respect of the breach of the contract.
Suit against government in cases of breach of contract:-
Determination of place for filing suit has to be governed by section 20. it has been seen that this section contemplates the following tests in this regard.
1. Defendant's residence test
2. Defendant's place of business test
3. Cause of action test.
A corporation shall be deemed to carry on business at its sole opr principal office in India, or in respect of any cause of action arising at any place where it has also a subordinate office, at such place. These tests should normally govern the suits, relating to breach of contract, against government as well. But the application of business or residence test and had posed a difficulty. There was a time when taking the advantage of business or residence test the plaintiffs used to file the cause against the government at any place in India according to their own choice.
Objections to jurisdiction:-
Section 21 of the Act provides that the followings are the objections
1. No objection as to the competence of a court with reference to the pecuniary limit, of its jurisdiction shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there was has been a consequent failure of justice.
2. No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
3. No objection as to the competence of the executing court with reference to the local limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection was taken in the executing court at the earliest possible opportunity, and unless there has been a consequent failure of justice.
Section 22 to 25 of the code of civil procedure says that the transfer of cases from one court to other. For this purpose the defendant has to apply to the appellate court or it the High court at the earliest possible opportunity and in all cases where issues are settled, at or before the settlement of issues. The defendant is to make this application after notice to the other party. After considering the objections of the other party. The appellate court or the High Court shall determine in which of the several courts having jurisdiction suit shall proceed.
General power of transfer and withdrawal:-
Section 24 confers general power on the High Court and the District court to transfer an application of any party and after notice to the other parties or on its own motion any suit, appeal or other proceeding to it, or it may withdraw the suit, appeal or other proceeding to itself and try to dispose of the same. Section 24 of the Act provides that a change of court is not allowable merely because the other side top has no objection for such change. Or else, it would mean that when both parties combine together they can avoid a court and get a court of their own choice, court is not disposed to give such an option to the parties.
Power of Supreme Court to transfer suits:-
Section 25 of the act provides the power of Supreme Court
1. On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one state to a High Court or other High Court or Civil Court in any other state.
2. Every application under the section shall be made by a motion which shall be supported by an affidavit.
3. The court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either re-try it or proceed from the stage at which it was transferred to it.
4. In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
5. The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding .
UNIT - II
Order 1 Rule 1 to 8 of the code provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. In every suit is to be instituted by the presentation of a plaint to the court. The essentials of suit to be incorporated in the plaint are the parties, subject in dispute, cause of action and a demand of relief Order 1 of the Civil Procedure Code deals with the subject of parties to the suit that is the plaintiff and defendants, and inter aliea with the joinder, misjoinder and non-joinder of parties and to a certain extent with the joinder of causes of action.
Essentials of a suit
1. Two parties
Every suit must have two parties' plaintiff and the defendant
2. Cause of action
Every suit must contain a cause of action. It contains of every fact which is necessary to be proved.
3. Subject-matter
There must be some right or property claimed in the suit.
4. Relief claimed
In every plaint relief claimed should be specifically stated.
All persons may be joined in one suit as plaintiffs in the following cases
1. When the right to relief is alleged to exist in each plaintiff.
2. The right to relief arises out of the same act or transaction or series of acts and transactions.
3. If such persons brought separate suit any common question of law or fact would arise.
Ex: A publishes a series of books styling them as Oxford and Cambridge Publications When they are not the publications of the said Universities. The two Universities join as plaintiffs against A in a suit to restrain A from selling the books as their publication. The case raises common questions of fact and they arise out of the same series of transactions, namely, the sale of books as such at different times.
Joinder of defendants:-
Several persons may join as defendants in one suit in the following cases
1. A) if any right to relief is alleged to exist against them whether jointly, severally or in the alternative.
B) The right to relief arises out of the same act or transaction
C) If separate suits were brought against such persons any common question of fact and law would arise.
In Kanhaiyalal V/S Keshodas:-
In this case the plaintiff A purchased the suit-house in which two defendants B and C were residing as tenants separately. He brought a suit for eviction against both the defendant B and C claiming different relief against the two defendants. It was held the B and C could not be joined as defendants in the same suit. It was observed that the said conditions must exist together. There must be some nexus or common link. This condition is not fulfilled if the case against each defendant is entirely distinct and separate in its subject-matter from that of the other defendants. If no connection or conspiracy is alleged to exist between the various persons joined as defendant, permitted again two or more defendants where there is no nexus inter se, it will lead to obscurity and confusion.
2. If the plaintiff is in doubt as to the person from whom he is entitled to obtain the redress, he may join two or more defendants.
3. The plaintiff may join in one suit all or some of the persons, severally or jointly and severally, liable on any one contract including parties to Bills of Exchange, Hundies and promissory notes.
4. Where the court feels that any joinder of defendants may embarrass or delay the trial of the suit the court may order separate trails or may make such other order as may be expedient.
Plaintiff when permitted to join defendants in one suit:-
Order 1, Rule 3 of the Code permits the plaintiff to join as defendants against whom a relief is claimed in respect of or arising our of the same act or transaction or series of acts or transaction provided that if separate suits brought against such persons a common question of law or fact would arise. The restrictions imposes by Order 1, Rule 3 of the Code are that the series of acts or transactions must be such which would justify placing the various defendants in the same group or category and further in respect of the various sets of defendants any common question of law or fact arise in the suit.
Ex: 1. A filed a suit for price of goods against X and Y, who are defendants, and partners of firm B, to which the goods were supplied. The defendants raised a plea that the partnership firm had been dissolved and a receiver had been appointed by the High Court for realization and payment of debts to the creditors of the firm and that the receiver thereof was a necessary party. Held, the receiver was a necessary party and should be added as a party.
2. There is collision between an omnibus and a motor car as a result of which A who was not occupant in any of these vehicles but a by-stander is injured. A may file a suit against the owners of both these vehicles with an alternative claim for damages against whichever of the two defendants who is found responsible for the collision on account of his negligence. The court will find one defendant liable and award damages against him.
Necessary and proper parties:-
A proper party is one in whose absence no order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. To summarize the necessary parties are all persons who have an interest in the subject-matter of the suit. Their presence before the court is essential for determination of all the issues involved in the suit, and
When a person who is a necessary party to a suit has not been joined as a party to the suit, it is a case of non-joinder. A suit is not to be dismissed only to the ground of non-joinder or mis-joinder of parties. The court may allow the necessary parties to be joined in at a later stage. The court may, at any stage of proceedings, either upon or without the application or either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of any person who ought to have joined, whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon to settle all the questions involved in the suit, be added. If a decree cannot be effective without the absent parties, the suit is liable to be dismissed. If the joinder of a person as a party is only a matter of convenience, that is format, the absent [arty may be added or the suit may be tried without him.
Answering the question regarding validity of non-joinder of parties where all the affected persons had not been joined as parties to the petition, and some of them only were joined, the Supreme Court took the view that the interests of the persons who were not joined as parties were identical with those persons who were before the court and were sufficiently and well represented and, the petition was not liable to be dismissed on the ground.
Effect of non-joinder of parties:-
Order 1, Rule 9 of the CPC provides that no suit shall be defeated by reason of mis-joinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties, actually before it. The defendant was making the offending construction and relief was sought against him. No relief was sought against Municipal Board. In these circumstances it can be jeld that the suit of the plaintiff for the relief claimed is not maintainable simply because the Municipal Board has not been made a party.
But in a partition suit when a co-sharer is brought on record as having certain interests, he will be deemed to be representing the entire interests he is entitled to have in the joint properties irrespective of the question whether or not there is any such averment or admission in the plaint. Where the joinder is only a matter of convenience, the absent party may be added or the suit may be tried separately.
In B. Raghunandan V/S Danta Devi:-
In this case, the defendant who was going to make the offending construction and the relief was sought against him. No relief could be sought against the Municipal Board. It was open to defendant to plead that there was no violation of any bye-law. Where instead of mentioning government of India through the executive engineer, it was mentioned executive engineer; it was held that it was a case of mere misdescription which the court can order to be corrected at any time.
Representative suit:-
The general law is that all persons interested in a suit must be joined as parties to it. This rule is based in the principles of convenience buy there is an exception to this Rule which is laid down by Order 1, Rules 8 and 12. Order 1, Rule 8 contemplates suits in a representative capacity by some persons only where a large number of persons having similar rights are involved. Similarly, it also contemplates that a plaintiff may institute a suit against some persons only as defendants, holding them in a representative capacity, or representing a large number of persons having the dame interest.
Essentials of representative suit:-
Following are the essentials of a representative suit
Ex: Suit by a member of secretary of the club or association
Compromise of representative suit
A plaintiff in a suit in a representative character can compromise with leave of the court, but not otherwise. Nor can be give up or alter any right of the others without their consent or the leave of the court. Similarly, a person authorized by the court to defend a suit on behalf of others having the same interest cannot, even if there is no defence, consent to judgment against them without leave of the court, proper course in such case is to submit to judgement on their behalf, but he can compromise with leave of the court.
Object
The object of the above Rule is to afford convenience in suits where there is a community of interests amongst a large number of persons so that a few may be allowed to represent all. Thus suits relating easements, usages etc. of a whole village community or religious rites of a religious group, which are recognized, are suits involving community of interests. The right of a village community to gather fuel from forest, or graze cattle on forest land or cut wood from forest to build houses or to collect water from a stream are all such rights in which the whole body of persons living in a village are interested. It would be highly inconvenient if thousands of persons were impleaded as defendants or plaintiffs. So the Rule requires that a few persons only may be allowed to represent all. It is Rule of convenience only and sav3e much trouble and expense as well as time and ensures a convenient trial. It avoids multiplicity of suits and harassment of parties.
Framing of suits:-
Order II of the Code provides that the object of the law is that all matters in dispute between the parties and relating to the same transaction should be disposed of in the same suit. It prevents multiplicity of suits. If a plaintiff is entitled to sue in respect of several relief's but he either neglects to do so or relinquishes a part of it, he will not be allowed to institute fresh suit for such relief. It is open to plaintiff to give up any part of his claim or give up any relief against any particular defendant and the court cannot compel him not do so, but should grant the appropriate relief as claimed, if he is entitled to it in law. Rule 2 of Order II of the code enjoys that the cause of action on which the earlier suit and the latter suit are based should be the same or the foundation for both the suits should be the same. Rule 2 Order II is based on the principle that the defendant should not be forced to litigate twice for one and the same cause. It means that in case a suit does not include the entire claim the claim which is omitted should be deemed to have been relinquished by the plaintiff.
Order II, Rule 2 of the code provides:-
1. Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim, in order to bring the suit within the jurisdiction of the court.
2. Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards, sue in respect of the portion so omitted or so relinquished.
3. A person entitled to more than one relief in respect of the same cause of action may sue for all or any such relief's; but if he omits except with the leave of the court, to sue for all such relief's shall not afterwards sue for any relief so omitted.
Cause of Action:-
The cause of action is the cause of action which gives occasion for and forms the foundation of the suit. Every fact could be necessary for the plaintiff to prove, if traversed, in order to support his right to there judgment in his favour. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. It means that the whole of material facts which it is necessary for the plaintiff to prove in order to succeed in his suit. A cause of action is something more than aground or utility of title that is facts which entitle him to relief against a particular defendant. It may also be pointed out that cause of action may mean one thing for one purpose and something different for another depending on the context in each case.
Ex: 1. deliberate omission
S is the adopted son of M, the adoptive mother, both of them gift a house H in favour of C, which gift remains invalid as it was not attested. M further transfers property Y in favour of C. S files a suit to recover his adoptive father's property including H, against M, and later on joins C also as defendant claiming the alienated property from him but making no claim for the house H against him. A decree is passed against C for property Y and no decree is passed against C for the house H. s then files another suit against C for possession for such house H. the suit is barred under this Rule as he omitted to claim the said relief against C in the previous suit.
2. Accidental omission
A Muslim woman instituted a suit to recover property wroth Rs. 10,000 from her husband and a decree was passed in her favour. By an oversight she omitted to include a property wroth Rs. 500 and she instituted another suit for the same. It was held that the suit was barred for, she was aware of her claim at the time of instituting the first suit.
3. Relinquishment
Where a debtor owes Rs. 2,200 to a creditor, and the creditor institute a suit for Rs. 2,000 only in the court of the small causes by intentionally relinquishing the claim for Rs. 200; the portion relinquished cannot be claimed in a separate suit.
4. Continuous accounts
A businessman has a bill against a party for some amount in which the various items are so connected that it does not appear, that the dealing was intended to end with one contract, on the other hand, it appears to be continuous so that if one item is not paid, it shall be untied with another and form one continuous demand, the whole together forms but one cause of action and cannot be divided.
Joinder of cause of actions:-
Order II Rule e deals with the joinder of causes of actions and should be read subject to the provisions of Rules 4 and 5 of Order II, Rules 1 and 3 of Order I as is shown by the words save as otherwise provided Rules 6 and 7 of this Order are to be read with this Rule. The legislature has affected a sort of compromise of two fundamental principles by means of the Rules, embodied in Orders I and II.
According to the Rule read with Order I, Rule 1, if there are two or more plaintiffs and two or more causes of actions, they may be joined in one suit if the right to the relief and the causes of action arise from the same act or transaction and that there is a common question of law or fact, though they may not all be jointly interested in all the causes of action. But where the right to the relief claimed does not arise from the same act or transaction or if there is no common question of law or fact, the plaintiff cannot join all in one suit, unless they are jointly interested in the causes of action as provided by this Rule.
Mis-joinder of defendants and causes of action:-
If there are two or more defendants and two or more causes of actions plaintiff may unite in the same suit several causes of actions against the same defendants jointly, provided several defendants have joint interest in the main questions raised in the litigation. Where the causes of action were separate and defendants was litigation. Where the causes of action were separate and defendants were arranged in different sets, the suit was held to be bad for mis-joinder of causes of action and defendants. The plaintiff may join two or more defendants to the same suit even if there are two or more causes of actions, where the right to the relief claimed arises from the same act or transaction and there is a common question of law or fact although all the defendants may not all be jointly interested in all the causes of action., but where the relief claimed does not arise from the same act or transaction, or where there is no common question of law or fact, the defendants cannot be joined in one suit unless they are jointly interested in the causes of action in accordance with this rule.
Ex: The plaintiff instituted a suit for the recovery of possession of agricultural land from several defendants who were separately in possession of separate holdings. The Privy Council held the plaintiff in disregard if the provision of the code has united in the suit not merely several causes of actions, but several actions or suits against separate defendants with the result that in effect the litigation has been conducted and treated throughout as though the defendants were a community with common interest.
Institution of suits:-
Section 15 to 20 of the code lays down the rules prescribed the form of venue for the institution of civil suits in India. They are as under:
1. Court in which suits to be instituted:-
Section 15 of the code says that every suit be instituted in the court of the lowest grade competent to try it. The object of this provision by requiring a suitor to being his suit in the court of the lowest grade competent to try it is that courts of higher grades may not be overcrowded with suits. At the same time it does not oust the jurisdiction of the courts of higher grades, but the higher grade court should return the plaint in such case to the plaintiff to be presented to the court of the lowest grade competent to try it. The section lays down a rule of procedure and not of jurisdiction. Exercise of jurisdiction by a court of higher grade than is competent to try it is a mere irregularity, but exercise of jurisdiction by a court of lower grade than is competent to try it is a nullity and the decree will be set aside. Consent of parties cannot confer jurisdiction.
2. Suits to be instituted where subject-matter situate:-
Subject to the pecuniary or other limitations prescribed by any law, suits:
Equality acts in personam:-
The provision to the section is ion application in a modified form of a maxim of equity. Equity acts in personam. In England the Chancery Courts had and now the Chancery Division of the High Courts of Justice has jurisdiction to entertain certain suits respecting immovable property, though the property might be situate abroad if the relief sought could be obtained through the personal obedience of the defendant. The personal obedience of the defendant could be secured only if the defendant resided within the local limits of the jurisdiction of the court or carried on business within those limits. Its essential feature was that the land in respect of which the suit was brought was situate aboard, but the person of the defendant or his personal property was within the jurisdiction of the court in which the suit was brought.
3. Suits for immovable property situate within jurisdiction of different courts:-
Section 17 of the code provides that where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate. The object of the section is to avoid multiplicity of suits, but the section is no bar to parties bringing successive suits where the properties are situate in different jurisdictions.
4. Place of institution of suit where local limits of jurisdiction of courts are uncertain:-
According to section 18 of the code provides that
1. Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more courts any immovable property is situate, anyone of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction.
2. Where a statement has not been recorded and an objection is taken before an appellate or revisional court that a decree or order in a suit relating to such property was made by a court having jurisdiction where the property is situate, the appellate or revisional court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice.
5. Suits for compensation for wrong to person or movables:-
Section 19 of the Code provides that where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works for again, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts.
Ex: 1. A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
2. A, residing in Delhi, publishes in Calcutta statements defamatory of B, B may sue A either in Calcutta or in Delhi.
6. Other suits to be instituted where defendants reside or cause of action arises:-
Section 20 of the Code provides that the subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction
1. The defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain
2. Any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or a carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution.
3. The cause of action, wholly or in part, arises.
Pleadings are the backbone of litigation. The code defines the pleading as meaning a plaint or written statement under Order 6, Rule 1. A pleading are statements of the parties in writing, setting out their contentions and claim or counter-claims giving details, so that the opposite party may know what case he has to meet or what is the reply to his case, according to Sri. P.C. Mogha, pleadings are statements written drawn up and filed by each party to a case, stating what his contention will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer.
Object of pleadings:-
The object of the pleadings to narrow down the parties to definite issues and thereby diminish expense and delay, especially as regards the amount of testimony required from both the parties at the hearing. The object of the pleadings is firstly to narrow the parties to definite issues and to confine the trial within due limits so as to save time and expenses which might otherwise be needlessly thrown away. In the second place the object is to prevent the other party from being caught by surprise.
The rules of pleading may be summarized as follows:
1. State material facts not law
A pleading must state facts and shall not contain law. The courts are themselves bound to take judicial notice of law.
2. State material facts not evidence
A statement of the material facts given in a concise from divided into consecutively numbered paragraphs and the dates, sums and number expressed in figures.
Whether a suit is purely one for permanent injunction is matter of construction of plaint in each case. But in construing the plaint the court has to look at the substance of the plaint rather than its mere form. If on the whole and the substance, the suit appears to ask for some relief as stated, yet the court can look at the substance of the relief. The question whether the relief of injunction prayed for the plaintiffs be considered as consequential to the main relief or not has to be decided on the basis of the allegations in the plaint and the prayer made therein. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for.
There are two kinds of facts:
a) Facta Probanda
The material facts on which a party relies are called facta probanda and they should be stated in the pleadings.
b) Facta Probantia
Whereas the evidence or facts by means of which they are to be proved are facta probantia and they should not be pleaded.
3. State necessary particulars
When misrepresentation, fraud, breach of trust, willful default are relied on in the pleadings, particulars of these things with data and items, if necessary, shall be stated. The entry in a register of death kept by the municipal authority under section 3 of the Evidence Act may be admissible in evidence but by no means conclusive.
4. When the performance or occurrence of any condition precedent is intended to be contested, such condition precedent shall be distinctly specified.
5. Documents not to be set out
When the contents of a document are material but not precise words thereof it shall state the effect thereof briefly without setting out the document.
6. Condition of the mind to be alleged as a fact
When malice, fraudulent, intention, knowledge, or other condition of the mind of a person is material, the pleading shall allege it only as a fact without setting out the circumstances from which it is to be inferred.
7. Notice to be alleged as a fact
When it is material to allege notice to any person of any fact, matter or thing, pleading shall only allege the notice as a fact; unless the form or the precise terms of such notice is to be inferred are material.
8. Implied contract to be alleged as a fact
When any contract or any relation between persons is to be inferred from a series of letters or conversation or circumstances, the pleading shall allege only such contract or relation as fact and refer generally to them without setting them in detail.
9. Facts to be presumed not to be pleaded
Neither party is to allege any matter of fact which the law presumes in his favour unless the same has first been specifically denied.
Ex: Consideration for a bill of exchange.
10. Every pleading to be signed and verified
Signature by the party and his pleader or any person duly authorized by the party pleading to sign the same or to sue or to defend on his behalf, in case the party is unable to sign it for absence or other good cause.
11. In suits by or against a corporation any pleading may be signed and verified by the secretary or any director, or other principal officer who is able to depose to the facts of the case.
Essentials of pleadings:-
Rule 2, Order 6 is the fundamental rule of pleadings. It requires the following four things
Where in a suit for specific performance of a part of a contract of sale, the defendant does not raise the plea that such a suit not maintainable by reason of section 17 of the Specific Relief Act, he cannot be allowed to raise it at the time of hearing.
At the foot of the pleading there shall be a variation:-
Amendment of pleadings:-
The court may at any stage of the proceedings allow either party to alter or amend his pleadings such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determing the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trail.
Amendments are of three kinds: those are :-
1. Courts general power to amend any defect or error in any proceedings in order to determine the real question in issue raised by or depending on such proceeding.
2. Amendments which a party desires to make in his opponent's pleading of proceedings against his will.
Ex: Striking out or adding parties in order to adjudicate completely and effectively or striking out scandalous, unnecessary, frivolous, vexatious or embarrassing pleadings.
Amendments at any stage which satisfy the two conditions:
a) Of not working injustice to the other side.
b) Of being necessary for the purpose of determining the real question in controversy between the parties.
Ex: 1. in a suit on a promissory note the plaintiff was allowed to amend his plaint and sue on the original consideration.
2. In a suit for debt plaintiff is allowed to amend the plaint by setting out on acknowledgement passed to him by defendant even after the defendant had filed this written statement raising the plea of limitation.
3. Misdescription of immovable property in a plaint may be corrected and also in appeal.
In the following cases leave for amendment should be refused:-
Ex: Where there is no substantial ground for the case proposed to be set up the amendment. Merely because one of the effects of amendment may be to facilitate setting aside the previous order, it cannot be said to be mala fide, if the amendment is necessary for determination or real matters in controversy.
Order VII, Rule 1, 5, 7 and 8 says about plaint.
Contents of plaint:-
Rejection of plaint
Order 7, Rules 11 to 13 lays down as under:
Procedure on rejecting plaint:-
Rule 12 of the Code says that where a plaint is rejected the judge shall record an order to that effect with the reasons for such order.
Grounds of rejection of the plaint:-
Ex: In suit for malicious prosecution and damages, absence of necessary averment in plaint.
1. Plaintiff not making good the deficiency in court fees:-
If the plaint is written upon paper insufficiently stamped, the court is bound to give the plaintiff time to make good the deficiency. Reasonable time must be given to make up the deficiency and within the time allowed, if the plaintiff cannot pay, he may apply for further time to make good the deficiency or to continue that suit as a pauper.
2. Suits being barred by any law:-
Where a plaint appears to be barred by limitation and is not accompanied with an application for granting exemption the court has discretion to reject such a plaint.
2.5 Written statements :-
Order VII Rule 1 says that the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. Where the defendants fails to file the written statement within the said period of 30 days, he shall be allowed to file the same on such other day, s may be specified by the court, for reasons to be the date of service of summons.
Conditions:-
Rule 1-A of the code says following conditions to be satisfy by the defendant.
1. Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be field with the written statement.
2. Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
3. A document which ought to be produced in court by the defendant under this rule, but, is not so produced shall not, without the leave of the court be received in evidence on his behalf at the hearing the suit.
4. Nothing in this rule shall apply to documents:
a) Produced for the cross-examination of the plaintiff's witnesses.
b) Handed over to a witness merely to refresh his memory.
Denial must be specific:-
The written statement must contain denial which is specific. It must not be evasive. In other words every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant shall be taken to b admitted. The words the plaintiff is put to proof of the several allegations in the plaint, or he does not admit the correctness of the averments in the plaint, are generally specking not a sufficient denial within the meaning of Rules 3 and 4 of Order 8.
Contents of written statements:-
Set-off is the doctrine of law which allows the defendant to put his claim under certain circumstances against the plaintiff before the court. It is reciprocal acquittal of debts; a cross-claim for money and it any extinguish the plaintiffs claim. It obviates the necessity of filing a fresh suit by him. The right to set-off has been granted by Rule 6 of Order 8 of the code of Civil Procedure. Parties to a proceeding have a right to set-off their claims against each other in a proceeding independently of the provisions of Order 8, Rule 6, where cross-demands arise out or the same transaction or are so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant driven to a cross-suit. Courts in this country as well as in England have allowed a plea of set-off in such circumstances in respect of unascertained sums.
Kinds of set-off
There are two kinds of set-off: those are as follows.
1. Equitable set-off:-
There are cases in which set-off is allowed even in respect of an unascertained sum.
Ex: damages, connected in their nature and circumstances that they can be looked upon as part of one transaction. It is known as equitable set-off, as it is allowed by courts of equity in England while a legal set-off, as it is allowed by courts of common law in England
2. Legal set-off:-
Set-off envisaged under Order VII, Rule 6 is legal set-off, the relevant time for considering whether the claim is barred by limitation is the date of the institution of the suit and not the date when the written statement claiming the set-off was put in but in a counter-claim the material point of time would be the date when the written statement was filed and not the date of the suit.
Where the lower court allowed he application under Order 47, Rule 1 and section 151, civil procedure code, without giving any notice to the petitioner, it was held, the lower court was clearly in error in allowing the application without affording an opportunity to the petitioner in the matter. The order passed by the lower court was set aside. Where ex-paete decree was passed due to counsel's inaction and his name also did not appear on list on the date of passing ex-parete decree, it was held that ex-parte decree was liable to be set aside.
Sufficient cause:-
Under Order 9, Rule 13 of cpe an ex-parete decree passed against a defendant can be set aside upon the satisfaction of the court either the summons were not duly served upon the defendant or he was prevented by any sufficient cause is shown for non-appearance of the defendant in the case on date of hearing the court has no power to set aside ex-parte decree.
The original sale deed having given wrong description of the property the suit property in the prior suit is different from that of the subsequent suit. Therefore the cause of action of the two suits, are different and the bar under Rule 9 of Order 9 of the cpc cannot apply although the former suit was dismissed under Rule 8 of Order 9, cpc.
UNIT- III
The terms of Order IX, CPC, are all parts of the procedural enactments while construing them an attempt should be made to further the remedy and suppress the mischief. To the extent the defendant who was present and as such preferred to further the progress of the case and the plaintiff was absent, the law inhibits any fresh action, to the extent however the defendant, was absent it is plain that the same result is neither contemplated, nor can be canvassed even on equitable grounds for the defendant was also in default.
Followings are the important points
1. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs
Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by Rule 9 Order VII, the court make an order that the suit be dismissal.
2. Whether a suit can be dismissed for non-payment of process fee
If on that days neither of the party to suit appear when the case is called on for hearing. It was held by the divisional bench that the counsels engagement in another court when the suit was called on, if not denied in the opposition filed by the defendant, constitutes sufficient cause for non-appearance at the hearing.
3. Excuse for plaintiff's no-appearance
A bona fide mistake is a bona fide mistake. The court has no jurisdiction to impose any condition as to cost under this rule.
4. If the summons is not served on the defendant and the plaintiff does not take steps for fresh service for from the date of the non-service of summons nor is time extended by court.
5. Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed unless the defendant admits the claim or part thereof, in which case court shall pass a decree against defendant upon such admission, and where party only of the claim has been admitted, shall dismiss the suit so far as to relates to the remainder.
Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person
Where a plaintiff or defendant who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendant, respectively, who do not appear.
Setting aside decree ex-parte
Section 13 of the code provides that in any case in which a decreed is passed ex-parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such term as to costs payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Remedies in case of ex-parte decree and order:-
For restoration under Order 9, Rule 13 lies to the court which passed the decree as mentioned above, within 30 days from the date of the passing of the decree, or form the date on which the applicant had knowledge of the decree; when the summons was not duly served. The fact an ex-parete decree has been passed by the court does not preclude the defendant from applying to the court for an order to set aside under the rule.
An independent suit is maintainable to set aside an ex-parte decree on the ground of fraud, or collusion even after rejection of application under Rule 13. Where there has been an appeal against decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex-parte decree.
The following causes have been held to be sufficient cause:-
The following causes have not been held to be sufficient cause:-
Examination or the parties by the court:-
Order X of the Code provides that the object of this order is not to take evidence but to determine the matter in dispute between the parties. Its object is to clear up the obscurity and narrow down the issue. At the first hearing of this suit, the court may examine any party of his pleader orally in order to ascertain and clarify the true position of the parties with respect to the facts of the case and whether he admits or denies the allegations in the plaint or written statements. The statement shall be recorded. Any party appearing on person or present in court or any person able to answer any material question relating to the suit by whom such party or his pleader is accompanied may be examined orally by the court ay, if it thinks fir, put un the course of such examination questions suggested by either party.
The party making statement under this Rule is bound by it and its admission is made by such party it becomes conclusive. Rule 2 provides as under:
1. at the first hearing of the suit, the court:-
a) Shall with a views to elucidating matter in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in court, as it deems fir.
b) May orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in court or his pleader is accompanied.
2. At any subsequent hearting, the court may orally examine any party appearing in question or present in court, or any person, able to answer any material question to the suit, by which such party or pleader is accompanied.
3. The court may if it thinks fit, put in course of an examination under this rule questions suggested by either parties.
Every party to suit is entitled to know the nature of his opponent's so that he may be able to put forth a proper reply to it. If the pleadings are not clear and do not disclose the real state of affairs and there is some ambiguity, a party is entitled to obtain further information from the other party. But he is not entitled to know the evidence of his opponent. Discovery means to disclose all material facts which constitute a case, and all facts necessary to support his opponent's case. This information can be all must answer by affidavit. The second purpose of discovery is to disclose all documents in one's possession or power relating to matters in suit even if they go against one's case. The documents are to be disclosed by affidavit of documents.
The principle of discovery is for tending to save expenses and shortening litigation. Besides discovery of documents the parties may also require discovery of facts. Sometimes both discovery of documents and interrogatories are necessary and then if there be time discovery of documents should generally be asked for first, for inspection of documents disclosed may render unnecessary some of the proposed interrogatories. Either party may at the trial read at evidence anyone or more of the answers or any part of an answer which he had obtained to the interrogatory, administered to his opponent. He need not put in the rest of them unless the judge directs him to do so.
3.3 Interrogatories :-
As a general rule interrogatories will be allowed whenever the answer to them will serve either to maintain the case of the party administering them or to destroy the case of his adversary. The object of interrogating is two fold:
a) To obtain admission to facilitate the proof of one's own case
b) To ascertain the case of the opponent.
The main object of interrogatories is to save expense by enabling a party to obtain from his opponent information of such fact which may be material to the questions in dispute. There is, therefore, some art required in drawing interrogatories. Think rather of the answer the defendant will probably give you than of the answer which you are instructed by your client he ought to give. The defendant's version of the matter must differ from the plaintiff's version and your object is to discover precisely where and to what extent they differ. Your question then should be framed so as to elicit, if possible, the admission you desire and at the same time failing that admission, to get at all events some definite statements sworn true by them, from which the party interrogated cannot afterwards resile. Leave no loop-hole of escape, if he will not answer the question you may still at least find out how far he is prepared to go in the opposite direction; to secure this it is well to ask a series of short questions, not long questions; each additional detail should be put in a question by itself.
Ex: If you are instructed by your client that the plaintiff gave evidence in the insolvency court in the presence of one X that the certain cheque was in handwriting of the defendant, it will be of little value to ask merely: Did you not state on oath in the Insolvency court in the presence of X that the said cheque is in the defendant's handwriting? Because the plaintiff will simply answer, No. The only one way to discover precisely what it is that the plaintiff denies is to split the question into several as follows:
What interrogatories may be allowed?
In England interrogatories are allowed for ascertaining the nature of opponent's case, for supporting one's own case directly or indirectly. Interrogatories that are admissible must be relevant to the matter in issue. If particulars are given, interrogatories should be restricted to matter therein.
Ex: A publisher of a newspaper may be asked to answer the interrogatory, was not the passage set out in Para 3 of the plaint intended to apply to the plaintiff. But he will not be called upon to answer the further interrogatory, if not, say to whom it is intended to apply, because it will not be bona fide for the purposes of the present litigation however useful it may be for use in a further litigation.
But interrogatories are not like pleadings confined to the material facts on which the parties intend to rely; they should be and generally are directed to the evidence by which the party interrogatories desires to establish the facts at the trials. Either party may interrogate as to any link in the chain of evidence necessary to substantiate his own case if the question is relevant leading up to a matter in issue in the action.
Ex: The defendant denies that he wrote a material document, he may be asked whether the documents produced by the plaintiff are not in his handwriting.
What interrogatories may not be allowed?
The following interrogatories are not allowed.
3.4 Discovery of documents :-
The issues in the suit having been clearly stated, each party should ask himself how he shall prove his case, in other words, what is the evidence available which he must adduce. Supposing some letters have passed between the parties before the filing of the suit and contain important admissions and may be used as evidence of some material fact. But the letters of the plaintiff would be in the possession of the plaintiff and the two sets of letters supplement each other and neither would be intelligible without the production of the other set. Mover over, a party would like to read his own letters he gives evidence by entering the witness-box his recollection of an interviews may be hazy and be far less reliable than an account set down in black and white in letter written by him. Mover over, there is no better material for cross-examination of an opponent that the letters written by him before the suit. Hence it is generally desirable for each party to see all material documents in the possession of the opponent and to take copies of them or the important one. Such disclosure is obtained by the process called discovery of documents.
Ex: A wants to inspect certain documents in the possession of B, which he is entitled to inspect, but A cannot unless B produces them in the court. A must, therefore, call upon B to produce the documents. But how can A do this unless he knows what documents are in his possession. A is entitled to discover from B the documents in his possession or power.
Any party to the suit may give notice to the other party to produce for his inspection any document referred to in the pleadings or affidavits of the other party. Rules 15 to 18 of Order 11, CPC, relate to the inspection of documents. The documents, for the purposes of inspection may be divided into two categories:
a) These documents which are referred to the pleadings affidavits of the parties.
b) Other documents in the possession or power of the party but not so referred.
Order for inspection
Where the party receiving notice omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere that at the office of his pleader, the court may, on the application of the party desiring it, make an order for inspection at such place and in such manner as it thinks fit, but no order will be made where the court thinks that it is necessary either for disposing fairly of the suit or for saving costs.
Rule 15 lays down, regarding the first category, that a party may without the courts intervention, give notice in the form provided under Rule 16 in whose pleadings they are referred to, to produce such documents for his inspection. Rule 17 lays down that then party to whom notice is given should, within ten days, from the receipt of such notice, give notice to the party claiming such inspection stating his objections, if any, to the production of any of the documents. Rule 18 lays down procedure to be followed when there is non-compliance with Rule 17 (2) of Rule 18 lays down that the court shall not make such order for inspection when it is of opinion that it is unnecessary for disposing of the suit.
Application for striking out of defence not allowed on ground of failure to file affidavit of documents by defendant
Where repeated opportunities were given to defendant to file affidavit of documents. But he subsequently said affidavit was filed within time fixed by High Court. As such, it could not be said that no affidavit of documents was filed in terms of order of court. Hence, default clause had never taken effect and hence defence could not be striked out. As said affidavit had not conformed to requirements of provisions, hence, it could not be accepted as valid affidavit. But for the interest of justice, defendant was given time to file proper affidavit as he was not found guilty of obstinacy and contumacy.
By admission one party admits the case of other party, that is it accepts the case of the party in whole or in part to be true. Under section 58 of the Indian Evidence Act facts admitted need not be proved. The adoption of the procedure provided in this order would result in saving the time of courts in taking of such proof and shortening litigation. Thus, it obviates the necessity if proving facts which are admitted and the judgment, in such cases, may proceed on admissions.
Object of admission
Its object is to do away with the necessary formality of proving facts that are admitted. The importance of admission consists in the fact that either party may, at any stage of the suit, move for judgment on the admissions made by the other side.
Kinds of admission:-
There are 5 kinds of admissions, those are as follows:
a) Actual that is those continued in the pleading or in answer to interrogatories.
b) Constructive that is those which are merely the consequence of the form of pleading adopted
Notice to admit may be given the following cases:-
Other party may give notice by his pleading or otherwise in writing that he admits the whole or any part of the case of the other party. The question whether the sale was made for legal necessity or not is a pure question of fact. Therefore, where the contesting defendant had admitted twice that the evidence adduced by the parties did not make out any case of legal necessity for the sale of property and the appellate court committed a manifest error by allowing this issue of fact to be re-opened when it had been concluded by the admission made on behalf of the defendant.
Notwithstanding that no notice to admit documents has been given under Rule 2, the court may, at any stage of the proceeding before it, of its own motion call upon any party to admit any document and shall, in such a case, record whether the party admits or refuses or neglects to admit such document. Where the documents in dispute are contained in the file of another suit, the law prohibits of any copy except a certified copy as secondary evidence of the original and so, that petitioner cannot call upon the opposite party, to admit or deny any other kind of secondary evidence. Each party must bear the initial cost of procuring the proper document and producing it before the court, and then alone, it can call upon the opposite party to admit and or deny the same and thereby attempts to save the costs of proving the documents. Whether a party refuses to admit and or deny an improper document, which cannot to be adduced in evidence, the court cannot call upon such party to do so as the peril of facing the consequences.
Any party may admit the document filed by the other party, thus obviating the necessity or proving it. Where admission is made between co-defendants to which plaintiff is not a party, the same cannot be treated as evidence against the plaintiff.
Affidavits
Order XIX and Sections 30 and 139 of the Code provides that any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable. Provided that where it appears to the court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by the affidavit.
Affidavit means an affidavit is a written statement of the deponent on oath duly affirmed before any court or Magistrate or any Oath commissioner appointed by the court.
Affidavit can be used in the following cases:-
for cross-examination, unless he is exempted from personal appearance or his cross-examination is not required.
Contents of affidavits
Oath
The statement in affidavit must be duly affirmed before any court or Magistrate or any Oath Commissioner appointed by the court or any notary appointed under the Notaries Act of 1952.
Order 19 Rule 13 of the code provides that judgment and decree.
Judgment when pronounced
The C.P.C. does not provide a time for the period between the hearing of the arguments and the delivery of a judgment. Nevertheless an unreasonable delay between hearing of arguments and delivery of judgment, unless explained by exceptional or extraordinary circumstances is highly undesirable even when written arguments are substituted. It is not unlikely that some points which the litigant considers important may escape notice. But what is more important is that the litigant must have complete confidence in the result of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgment. Justice must not only be done but must manifestly appear to be done.
Object of judgment:-
Its object is to support by most cogent reasons the conclusion arrived at by the judge. If the judge elaborately records the fluctuations of his mind such judgment may defeat the object of judgment.
Requisites of judgment:-
When judgment becomes final:-
A question which stands finally decided cannot be reopened neither has the court any further jurisdiction upon the signature being appended on the judgment by oral mention. The issue stand concluded as soon as the judgment is pronounced and the same is signed.
Contents of decree:-
1. The decree shall agree with the judgment: it shall contain
a) The number of the suit
b) The names and description of the parties
c) Particulars of the claim
d) Claim specification of the relief granted or other determination of the suit
e) The amount of costs incurred in the suit and by whom or out of what property it is to be paid and any order as to set-off of the costs of one part against the other.
2. The decree shall be signed by the Judge. If the Judge who gave judgment has vacated office, the decree may be signed by his successor, or if the court has ceased to exist by the Judge of any court to which the Judge was subordinate.
Decree in particular cases:-
Order 20, Rule 9 of the Code provides the decree shall contain a description of such property sufficient to identify.
Ex: Boundaries or numbers in a record of settlement or survey.
Where a decree is obtained for possession of land, it will carry with it the possession of account book as well.
1. Order 23, Rule 10 of the Code provides that the decree for delivery shall also state amount of money to be paid in lieu of delivery if it cannot be had. It should not be left to be determined in execution.
2. In decree for money, court may order postponement of payment or it shall be by installments. The court may make such order afterwards.
Order 20, Rule 12 of the Code provides that there shall be decree for possession of immovable property. There shall be a preliminary decree for mesne profits directing it to be ascertained. And a final decree for msne profits shall be made after inquiry as to the amount. The directive for mesne profits can be given even after the decree for possession has been passed. In a suit for partition, the court can give a direction for the ascertainment of future profits, provided a final decree has not been passed.
Order 20, Rule 13 of the Code provides that first a preliminary decree shall be passed, ordering for inquiry into accounts and claims and giving other directions. Thereafter a final decree shall be passed; an administration suit cannot be filed by one of the heirs to obtain possession of the property wrongfully withheld by another person claming to be heir.
The following persons may maintain an administration suit:
a) Specify a day on or before which the purchase money shall be so paid.
b) Direct that on payment into court of such purchase money, together with costs on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, and if payments are not made the suit shall stand dismissed with costs. The dismissal is automatic.
a) If claims decreed are equal in degree, the claim of each pre-emption will take effect on his complying with sub-rule (1) in respect of his proportionate share of the property including any proportionate share of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect.
b) If and in so far the claims decreed are different in degree, that the claim of the inferior pre-emption shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.
Execution is the enforcement of decrees and orders by process of the court so as to enable the judgment-creditor to recover the fruits of the judgment. The modes in which the court can execute their decrees and orders are set forth in sections 36, 37 and Order 21 of the Code. The decree passed by the court of first instance is the decree, to be executed unless and until it is merged in the decree passed by the High Court.
Application to orders
The provisions of the Code relating to the execution of decrees shall, so far as they applicable are deemed to apply to the execution of orders as the order is the formal expression of any decision of a civil court which is not a decree.
Who may apply for execution?
It is the decree- holder who has to apply for the execution of the decree. Where a decree is jointly passed in favour of more persons than one, then unless the decree imposes condition to the country any one or more of joint decree-holders may apply for the execution of the whole decree for the benefit of all of them.
Payment made under in the court, may operate as a satisfaction of the decree, it will be unreasonable to hold that merely because the payment is made in court interest should cease to rule upon a decree which awards interest until its payment. Decree holders should be entitled to claim interest until such time as and when they come to know of the payment in the court.
1. All money payable under a decree shall be paid as follows, namely:-
2. Where any payment is made under Code the judgment-debtor shall give notice thereof to the decree-holder either through the court or directly to him by registered post, with acknowledgement due.
3. Where money is paid by postal money-order or through bank, the money -order or payment through bank, as the case may be, shall accurately state the following particulars namely:
a) The number of the original suit.
b) The names of the parties or where there are more than two plaintiffs or more than two defendants as the case may be, the names of the first two plaintiffs and first two defendants.
c) How the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs.
d) The number of the execution case of the court, where such case is pending,
e) The name and the address of the payer.
4. On any amount paid, interest, if any, shall cease to run from the date of service of the notice.
5. On any amount paid, interest, if any shall cease to run from the date of such payment.
Application for execution
The execution proceedings are started by tan application for execution. Where a decree is for the payment of money the court may, on the oral application of the decree-holder at the time of passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of warrant if he is within the precincts of the court.
Application for attachment of movable property not in judgment-debtor's possession
If the application is made for the attachment of any movable property not in possession of the judgment-debtor though belonging to hi, the decree holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same. If the application is made for the attachment of any immovable property belonging to a judgment-debtor it shall contain at the foot:
a) A description of such property sufficient to identify the same and in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers.
b) A specification of the judgment-debtor's share or interest in such property to the best of the belief to the applicant and so far as he has been able to ascertain the same.
Notice before ordering execution:-
The law dos not require any notice to be issued to the party against who execution is applied for except in the following cases:
Execution against person of judgment-debtor
When an application for execution of money-decree by the arrest or detention in the civil prison of a judgment-debtor who is liable to the arrested in pursuance of the application is made, the court shall instead of issuing a warrant for his arrest issue a notice calling upon him to appear before the court on a day specified in the notice to show cause why he should not be committed to the civil prison. No such notice is necessary of the court is satisfied by affidavit or otherwise that with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court. Where no appearance is made by the judgment-debtor upon the notice the court shall issue a warrant for the judgment-debtor.
Judgment-debtor's remedies in case of non-recognition of payment:-
Where a judgment-debtor satisfies the decree by a payment or adjustment made out of court which is not certified to the court in time; the judgment-debtor has the following remedies incase of non-recognition of the same:
Courts by which decrees may be executed
Sections 38 and 39 of the Code provides following decrees may be executed by the courts
Exceptions:-
There are, three cases where the executing court can go behind the decree, and they are as follows:
1. Where the decree has been made without jurisdiction
The Privy Council has held that if the court which passed the decree has no inherent jurisdiction to pass it, the decree is nullity and is incapable of execution.
2. Where the decree is a nullity
A decree passed against a person who was dead at the date of decree without bringing his legal representatives on the record is nullity and it cannot be executed against his estate.
3. Where the decree is ambiguous
Though an executing court cannot go behind the decree, it is competent to construe the decree where the terms are ambiguous, and to ascertain its precise meaning. If the decree creates a charge on property in which the judgment-debtor had a widow's estate, the executing court has jurisdiction to enquire if the charge continued after the widow's death and if it could be enforce against the property in the hands of her legal representative.
Section 36 of the Code lays down as under:
1. Order for transfer of decree may be passed under the following conditions. The court which passed a decree may, on the application of the decree-holder, send it for execution court of competent jurisdiction:
2. The court which passed a decree may of its own motion send the decree for execution to any subordinate court of competent jurisdiction.
3. For the purposes of this section a court shall be deemed to be a court of competent jurisdiction if, at the time of making the application for the transfer of decree of it, such court would have jurisdiction to try the suit in which such decree was passed.
Section 24, Order 21, Rules 8 and 9 of code provides the followings:
1. The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such court in same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
2. Without prejudice to the generally of the provisions of the code the powers of the court shall include the following powers of the court which passed the decree, namely:
3. A court passing an order in exercise of the powers specified in the code shall send a copy thereof to the court which passed the decree.
4. Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution any of the following powers, namely:
Execution of decrees passed by foreign courts:-
Section 44-A of the Code provides that the decree of any superior court in any reciprocating territory may be executed in India as if it was passed by a District court in India. Procedure for it is as follows:
1. A certified copy of the decree of the superior court must be filed in District court in India, along with a certificate from the superior court stating the extent to which the decree has been satisfied or adjusted.
2. Section 47 of CPC shall apply to such decree; the District court shall refuse to execute it if the decree falls within any of the exceptions specified in the code, providing when a foreign judgment is not conclusive, that is:
a) When a judgment was not pronounced by a competent court.
b) When it is not given on the merits of the case.
c) When it appears on the face of it to be founded on an incorrect view of international law or a refusal to recognize the law of India where such law is applicable.
d) Where the proceedings in the case were, opposed to natural justice.
e) When it had been obtained by fraud.
f) When it sustains a claim founded on a breach of any law in force in India.
Section 49 applies to all decrees including mortgage decree. it provides for the adjustment of equity in favour of the judgment-debtor against transferees of the decree-holder which the judgment-debtor would have been entitled to enforce against decree-holder. If the judgment debtor had a right to set off a decree under Order 21, Rule 18, he has right against the transferee of the decree-holder.
Ex: A holds a decree against B for Rs. 5,000. B holds a decree against A for Rs. 3,000. A transfer his decree to C, C cannot execute against B for more than Rs. 2,000.
Legal representative of the judgment-debtor:-
Section 50 of the Code provides for the execution of a decree against the representative of a deceased judgment-debtor. Attachment can be made only of the property of judgment-debtor found in the hands of the representative, or of the property of the representative only to the extent that he has sued the assets of the judgment-debtor without satisfying the debts of the deceased. The liability of the legal representative is confined to the property of the deceased which has actually come to his hands. If the decree-holder wants to make him responsible also for the property of the deceased which might have come to his hands with due diligence on his part, he should file a suit against him.
Execution against legal representatives:-
Legal representatives cannot raise objection to the execution on the ground that the applications have not applied for execution against them to the court which passed the decree under the provisions of Section 50, CPC, Which provides that where a judgment-debtor dies before the decree has been fully satisfied, the decree-holder may apply to the court which passed it to execute the same against the legal representatives of the deceased. The provision has to be read with Order 21, Rule 22, CPC, Which provides that where an application for execution is made against the legal representatives of a party to the decree, the court executing the decree shall issue a notice to the person against whom execution is applied for, requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.
The proceedings initiated against a Director of a company in liquidation under Section 543 of the Companies Act can be continued after his death against his legal representative and the amount declared to be due in such misfeasance proceedings can be realized from the estate of the deceased in the hands of the legal representative. The legal representative, of course, would not be liable for any sum beyond the value of the estate of the deceased in his hands.
The Bombay high Court has held that there are two requirements of an execution application against legal representatives:
Procedure in execution
Section 51 of the Code provides that subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree:
1. That the judgment-debtor with the object of obstruction or delaying the execution of the decree:
Where the decree is for the payment of money, execution by detention in prison shall not be ordered unless after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court, for reason recorded in writing, is satisfied:
a) is likely to abscond or leave the local limits of the jurisdiction of the court
b) his after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property or committed any other act of bad faith in relation to his property.
2. That the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same
3. That the decree is for a sum which the judgment-debtor was bound in a fiduciary capacity to account.
Appointment of receiver outside jurisdiction
Calcutta High Court has held in B. R. Ray V/S M/S Ganesh and Company, that the court may appoint receiver of property outside the local limits of territorial jurisdiction. The principle by which the action of a court in effecting sales in execution is confined to property situate within its territorial jurisdiction is prima facie not applicable to a sale by a receiver which need not necessarily be a sale by public auction as district from private treaty.
Enforcement of decree against legal representatives
Section 52 of the Code provides that where execution was taken before the death of judgment-debtor, it should be continued after his death by substituting his legal representative in his place, after giving he notice under Order 21, Rule 22. Under this section application is to be made to the court which passed the decree and not to the court to which it has been transferred for execution. The transferee can also be dealt with application for substitution of legal representative as jurisdiction of court passing decree is not exclusive.
Ex: A decree passed against a person who died pending the suit without his legal representatives being brought on the record is a nullity and cannot be executed against his legal representative.
Decree for injunction also can be enforced against the legal representative. But such an injunction cannot be against the purchaser of the property of the defendant, as injunction does not run with the land; decree-holder's remedy is to institute a fresh suit against the purchaser.
Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed:
Decree for specific movable property
1. Where the decree is for any specific movable or for any share in a specific movable, it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.
2. Where any attachment has remained in force for three months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the court may award to the decree-holder, in alternative to delivery of movable property, such amount, and, in other cases, such compensation as it thinks fit, and shall pay the balance to the judgment-debtor on his application.
3. Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of three months form the date of the attachment, no application to have the property sold has been made, or if made, has been refused, the attachment shall cease.
The decree for any specific movable property may be executed in any of the following four methods:
Decree for the delivery of immovable property
Where the property is in possession of a person bound by the decree, the decree is executed by delivering possession thereof the person to whom it has been adjudged, or to his agent and if necessary, by removing any person bound by decree who refuses to vacate the property.
Where the decree is for joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum or other customary mode at some convenient place, the substance of decree.
For putting the decree holder in possession of building or enclosure the court may, when the person in possession does not afford free access, order that any lock or bolt be removed or opened, any door be broken open, or any other necessary act be done.
Delivery of any immovable property in the occupancy of a tenant or other person entitled to occupancy is by the same mode.
3.8 Arrest and Detention :-
A judgment-debtor may be arrested in execution of a decree at any time and on any day except that:
Procedure in making arrest
Before ordering arrest and detention in execution of a money-decree, the court shall issue a notice to the judgment-debtor to show cause against the order provided that such notice is not necessary if the decree, the judgment-debtor the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the jurisdiction of the court. Where in a case for payment of money execution is applied for against the person of judgment-debtor the court had before the Amendment of 1936 jurisdiction to issue a warrant or arrest without any previous service of notice upon the judgment-debtor.
Procedure on appearance of judgment-debtor
When a judgment-debtor appear before the court in obedience to a notice issued as above, or is brought before the court after being arrested in execution of a decree for the payment of money, the court shall hear the decree-holder in support of his application for the execution and shall give the judgment-debtor an opportunity to show cause why he should not be committed to civil prison. Pending the inquiry the court shall detain the judgment-debtor in the custody of a court office for release him on his furnishing security for his appearance. On completion of enquiry, the court may either disallow the application or subject to Section 51 order the judgment-debtor in civil prison, provided that for giving him an opportunity to satisfy the decree, he may be left on the custody of a court officer for a period up to 15 days or released on his furnishing security for appearance.
Detention and release:-
Section 58 of the Code provides that:
A. every detained in civil prison in execution of a decree shall be so detained:
1. Where the decree is for the payment of a sum of money exceeding 5 thousand rupees, for a period not exceeding three months.
2. Where the decree is for the payment of a sum of money exceeding 2 thousand rupees, but not exceeding 5 thousand rupees for a period not exceeding six weeks.
Provided that he shall be released from such detention before the expiration of the said period of detention:
B. A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt but he shall not be liable to be re-arrested under the decree in execution of which he was detained in civil prison.
Persons exempted from arrest
The following persons are exempted from arrest under civil decrees:
1. A judge, magistrate or judicial officer, while going to preside in or returning from, his court.
2. Where any matter is pending before a tribunal, the parties thereto, their counsel and recognized agents and witness with summons, except under process issued by such tribunal for contempt of court, while going to or returning or attending such tribunal for such purposes. But a judgment-debtor is not exempted if there is an order for immediate execution.
Exemption of members of legislative bodies from arrest and detention under civil prison
1. No person shall be liable to arrest or detention in prison under civil process:
a) if he is a member of
i) Either house of parliament
ii) The legislative assembly or legislature counsel of a state
iii) A legislative assembly of a union territory
During the continuance of any meeting of such house of parliament or, as the case may be, of the legislative assembly or the legislative counsel.
b) If he is a member of any committee of:
i) either house of parliament
ii) the legislative council of a state
iii) the legislative assembly of a state or union territory
During the continuance of any meeting of such committee.
c) If he is a member of:
i) either house of parliament
ii) A legislative assembly or legislative council of a state having both such houses.
During the continuance of a joint sitting, meeting, conference or joint committee of the house of parliament or houses of the state legislature s the case may be.
2. A person released from detention under the code shall subject to the provision of the said section be liable to re-arrest and to the further detention to which have been liable if he had not been released under the provisions of the code.
3.9 Attachment of Property :-
Section 60 of the Code provides the following property is liable to attachment and sale in execution of a decree. Those are as follows:
The following particulars shall not be liable to such attachment or sale, namely:
1. The necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any women.
2. Tools of artisans and, where the judgment-debtor is an agriculturalist; his implements of husbandry and such cattle and seed grain as may, in the opinion of the court be necessary to enable him to earn his livelihood as such, and such portion of agricultural procure or of any class of agricultural produce as may have been declared to be free from liability.
3. Houses and other buildings with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment belonging to an agriculturist or a labourer or a domestic servant and occupied by him.
4. Books of account
5. A mere right to sue for damages
6. Any right of personal service
7. Stipends and gratuities allowed to pensioners of the government or of local authority or of any other employer or payable out of any service family pension fund notified in the official Gazette by the central government or the state government in this behalf, and political pensions.
8. The wages of labourers and domestic-servants, whether payable in ornaments on the body of a Hindu wife forms part of the stridhan and therefore cannot be attached in execution of a decree against her husband.
9. Salary to the extent of the first and two thirds of the agriculturist at the time of attachment.
Where any part of such portion of the salary is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where, such attachment has been made in execution of one and the same decree, shall, after the attachment had continued for a total period of twenty-four months be finally exempt form attachment in execution of that decree.
10. The pay and allowances of persons to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957 applies.
11. All compulsory deposits and other sums in or derived from any fund to which Provident Fund Act, 1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment.
a) All deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968, for the time being applies, in so far as they are declared by the said Act as not to be liable to attachment.
b) All money payable under a policy of insurance on the life of the judgment-debtor.
c) The interest of a lessee of a residential building to which the provision of law for the time being in force relating to control of rents and accommodation apply.
12. Any allowance forming part of emoluments of any servant to the government or any servant of railway company or local authority which appropriate government, by notification in official Gazette declare to be exempt from attachment and any subsistence grant or allowance made to any servant while under suspension.
13. An expectancy of succession by survivorship or other party contingent or possible right or interest.
14. A right to future maintenance.
15. Any allowance declared by any Indian law; to be exempt from liability to attachment.
16. Where the judgment-debtor is a person liable for payment of land revenue any movable property which under any law for the time being applicable to him is exempt from sale for recovery of an arrear of such revenue.
Attachment of movable property
When the attachment of movable property belonging to the judgment-debtor but not in his possession is sought an inventory of the property containing an accurate description of the same shall be annexed to the application. But where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be by actual seizure and the attaching officer shall keep the same in his own custody, but if it is subject to speedy decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.
Movable property not in possession of judgment-debtor
In the case of movable property not in the possession of the judgment-debtor, the attachment can only be made under Rule 46, by a written order prohibiting the person in possession thereof from giving it over to the judgment-debtor. When it is brought to the notice of the court that some property not in the possession of the judgment-debtor has been attached and the court is satisfied that it is so it must release the property from attachment under Rule 60, when the property is movable; the concept of mortgage in possession is not applicable.
Attachment of immovable property
When the attachment of immovable property is sought, the application shall contain at foot a description of the property sufficient to identify it, and also boundaries or number from the record of settlement, debtor's share or interest in such property.
3.10 Sale of property :-
Any court executing decree may order that any property attached by it and liable to sale, or such portion thereof as any seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
Proclamation of sale
The court shall cause a proclamation of sale of the intended property to be made in the language of the court. It shall be drawn up after notice to the decree-holder and the judgment-debtor.
Contents of proclamation:-
Sale how conducted in particular cases
1. Agricultural produce
Where the property to be sold is agricultural produce the sale shall be held:
Sale relating to movable property in execution of a decree should ordinarily be held at some place within the jurisdiction of the court ordering decree. This will bar the case of agricultural produce.
2. Negotiable instruments
In such cases the court may, instead or directing the sale to be made by public auction, authorize the sale of such instrument or share through a broker. Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, the date of the sale shall be so fixed as to admit of the crop being ready for storing. If the growing crop does not admit of being stored, it may be sold before it is cut and gathered.
3. Debt and shares
Where the property sold is a debt not secured by a negotiable instrument, or is a share in a corporation, the delivery shall be made by a written order of the court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser, or prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividends or any interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer making any such payment to any person except the purchaser.
Immovable property
When an order for the sale of immovable property has been made, the court may, on the application of the judgment-debtor and on being satisfied that there is reason to believe that the decretal amount may be raised by the mortgage or lese or private sale of such property, or of any reasonable period, and grant a certificate authorizing him to make the proposed transaction within the period, provided that the money be paid, not to the judgment-debtor, but to the court, and by that the mortgage, etc., shall not be absolute until has been confirmed by the court.
Setting aside sale of immovable property
1. Application to set aside on deposit
Where immovable property has been sold in execution of a decree, any person
a) either owing such property
b) holding an interest in such property by virtue of a little acquired before the sale, may apply to have the sale set aside on his depositing in court:
Where a person applies under Rule 90 to set aside the sale he shall not, unless he withdraws his application, be entitled to make or prosecute an application under the Rule.
Who may apply under this rule:-
An application under this rule may be made by:
a) A person having lesser interest like a lessee or a mortgagee.
b) Any other person with an inchoate title to the property.
c) Any person who is interested in protecting the property on account of his being in possession or otherwise in pursuance of an incomplete transfer of property.
Right to apply
An attaching creditor is entitled to apply for setting aside the sale after depositing sale warrant amount in court.
Person holding an interest in such property:-
2. Application to set aside the sale on ground of irregularity or fraud:-
Effect of the death of a party
Order 22, Rule 1 to 6 and 12 of the Code provides that the suit does not abate by the death of a plaintiff or defendant if the right to sue survives. If one of the defendant dies and his legal heir was not substituted within time prescribed under law, the suit abates as against him alone, but where can be no abatement of the suit so far the remaining defendants are concerned, if the court comes to the view that the right to sue did not survive, the suit could be dismissed without further trial. On the other hand if the court comes to the view that the right to sue survived and an effective decree could be made against the surviving defendants only, the court shall proceed to try the suit on merits against the surviving defendants and shall pass a decree in accordance with the finding finally arrived at. Since the claim was brought against the firm through its karta and no substitution was made within the time limited by law, either of the succeeding karta or of the surviving members of the family, the appeal will abate as a whole.
Procedure in case of death of one of several defendants or of sole defendant
Ex: A files a suit against B and his son C for declaration that the execution sale was illegal. B dies, and his widow W, and daughter D, are not brought on record. It was held that the suit abated as a whole.
a) The plaintiff was ignorant of the death of a defendant, and could not for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963, and the suit has, in consequence abated,
b) The plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963, for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act.
Procedure where there is no legal representative
1. If, in any suit, it shall appear to the court that any party who has died during the pendancy of the suit has no legal representative, the court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the court or such other person as it thinks fit to represent the estate of the deceased fort the purpose of the suit, and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the deceased person has been a party to the suit.
2. Before making an order under this rule, the court:
a) may require notice of the application for the order to be given to such of the person having an interest in the estate of the deceased person as it thinks fir,
b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse so that the deceased person.
3. If either party dies after the conclusion of hearing of the suit but before pronouncement of judgment the suit shall not abate.
Death of a party to the suit pending appeal
In a suit where the right to sue would not have survived on plaintiff's death before decree, and a decree has already been passed in faviour of the plaintiff, if either party dies pending an appeal, the appeal will not abate when the right claimed in appeal arises, out of the decree, but it will abate, when the appeal is to enforce the original right to sue.
Ex: Damage was awarded against a defendant, and the defendant appealed but he died pending the appeal. It will not abate; his legal representative may carry on the appeal to get rid of the decree which will otherwise have to be paid out of the estate of the deceased.
Death of plaintiff after preliminary and before final decree
This rule will not apply after preliminary and before final decree. The suit will not abate. The Privy Council has also held that a decree once passed confers right and imposes liabilities which are fixed until the decree is reversed or varied in appeal.
Decree for or against a dead person
If at the date of the institution of the suit, a party was dead and a decree is passed against him, it is a nullity. A decree against the defendant, who died during the pendency of the suit and no legal representative os brought on the record, is a nullity and cannot be executed against the legal representative. A decree against a respondent after his death is also a nullity. It has been held in a recent case by the Punjab High Court that a decree passed against the dead person is not nullity on that account, it may be erroneous or contrary to law and liable to be set aside. Decree becomes nullity only when court lacks inherent jurisdiction to try the matter. Aggrieved party can file review petition or to in letters patent appeal.
Where a plaintiff died during pendency of appeal and no substitution was made, the decree was void to the extent to that person's interest. A decree passed by the Privy Council in ignorance of the death of the party and without substitution of his heirs has full force and effect. A decree passed after the death of the sole plaintiff is a nullity. Decree passed in favour of a number of plaintiffs one of whom is dead at the time, is not necessarily a nullity in it's entirely in every case. A final decree against a defendant who has died preliminary decree without substitution of his representatives is not a valid decree.
In the following cases, abatement as regards the deceased was held not to affect the rest of the suit or appeal:
Ex: Liability if compromiser, of a surety, is joint and several
Illustrations
In the following cases suit or appeal abates all, as a whole:
Ex: A pre-emption suit.
Under Rule 3 it is the duty of the court to examine the terms of the settlement with care and caution. Court must see if the order can be effectively enforced against all parties to the compromise. The court must be satisfied that the agreement is lawful and it can pass a decree in accordance with these only in so far as it relates to the suit. A court must decree by consent performs a judicial and not ministerial act. The court must satisfy itself by evidence taken that the agreement or compromise is a lawful one. Where a compromise is filed in the court but repudiated by some of the parities to it, court must hold an enquiry under Rule 3 of the Code.
Formal application for compromise is not necessary
Rule 3 of order 28 does not provide that the court should exercise jurisdiction under that rule only when there is formal application by one of the parities to pass a decree in accordance with a compromise or agreement. When such compromise or agreement is pleaded by a party even by way of evidence in a suit, it is the duty of the court to proceed to enquire into the existence of such compromise or agreement and to pass decree in accordance with it if it is proved.
Order 23, Rule 3 of C.P.C. does not complete a situation when the court can alter the terms of the compromise. Had there been consent terms duly signed by the parties and the respective advocates, the court has to pass a consent decree arrived at between the parties. But if the compromise is not accepted by parties, the only alternative left to the court is to dispose of the case on its merits in accordance with law.
UNIT- IV
Suits by or against Government.
In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be -
a) in the case of a suit by or against Central Government, the Union of India, and
b) in the case of a suit by or against State Government, the State.
Notice.
1) Save as otherwise provided in sub-s. (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of -
a) in the case of a suit against the Central Government except where it relates to a railway, a Secretary to the Government;
b) in the case of a suit against the Central Government where it relates to a railway, General Manager of that Railway;
bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised that Government in this behalf;
c) in the case of a suit against any other State Government a Secretary to that Government or the Collector of the District.
and, in the case of public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the court without serving any notice as required by sub-section (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plain for presentation to it after complying with the requirements of sub-section (1).
3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice -
a) the name description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.
83. When aliens may sue. - Alien enemies residing in India with the permission of the Central Government, and alien friends, may use in any Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission or residing in a foreign country, shall not sue in any such court.
Explanation. - Every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country, without a licence in that behalf granted by the Central Government, shall, for the purpose of this section, be deemed to be an alien enemy residing in a foreign country.
The test of alien enemy is residence or place of business and not nationality. But the overrunning of an lien country by an enemy does not, by itself, render a person resident in such country or a company incorporated therein and carrying on business as an alien enemy. The Government of the country of residence must be at war.
84. When foreign States may sue. - A foreign State may sue in any competent court:
Provided that the object of the suit is to enforce a private right vasted in the Ruler of such State or in any officer of such State in his public capacity.
A foreign State may sue in any competent court, provided that such foreign State has been recognized by the Central Government and provided that the object of the suit of is to enforce a private right vested in the Ruler of such State or in any officer of such State in his public capacity.
The term "private right" means a right which may be enforced by a foreign State against private individuals as distinguished from right which one State in its political capacity may have as against another State in its political capacity.
86. Suits against foreign Rules, Ambassadors and Envoys.
1) No foreign State may be sued in any court otherwise competent to try suit except with the consent of the Central Government certified in writing by a Secretary to that Government:
Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid a foreign State from whom he holds or claims to hold the property.
2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits or any specified class or classes, and may specify, in the case of any suit or class of suits, the court in which the foreign State may be sued, but it shall not be given, unless it appears to the Central Government that the foreign State:
a) has instituted a suit in the court against the person desiring to sue it, or
b) by itself or another, trades within the local limits of the jurisdiction of the court, or
c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or
d) has expressly or impliedly waived the privilege accorded to it by this section.
3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.
4) The preceding provisions of this section shall apply in relation to -
a) any Ruler of a foreign State;
aa) any Ambassador or Envoy of a foreign State;
b) any High Commissioner of a Commonwealth country; and
c) any such member of the staff of the foreign State or the staff or retinue of the Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf, as they apply in relation to a foreign State;
5) The following persons shall not be arrested under this Code, namely:-
a) any Ruler of a foreign State;
b) any Ambassador or Envoy of a foreign State;
c) any High Commissioner or a Commonwealth country;
d) any such member of the staff of the foreign State or the staff or retinue to the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf.
6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.
Suits by or against Corporation
In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation, by the secretary or by any director or other principle officer of the corporation who is able to depose to the facts of the case. (Order XXIX, Rule 1).
Suit for injunction. - Failure of plaintiff to prove that defendant had encroached suit land. Disentitled plaintiff to relief of injunction for want of cause of action.
Subject to any provision regulating service of process, where the suit is against a corporation, the summons may be served-
a) on the secretary or any director, or other principal officer of the corporation, or
b) by leaving it or sending it by post addressed to the corporation at the registered office or if there is no registered office then at the place where the corporation carries on business. (Order XXIX, Rule2).
The court may, at any stage of the suit, require the personal appearance of the secretary or any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit. (Order XXIX, Rule 3).
The procedure relating to the suits by or against firms is given in Order XXX of the Code. It states that any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such cause apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action partners in such firm, to be furnished and verified in such manner as the court may direct. In a suit by or against a firm, the pleadings may be signed and verified by anyone of the parties. (Order XXX, Rule 1).
Minor is a person who has not completed the age of 18 years and in the case of a minor of whose person or property a guardian has been appointed by a court or whose property is under a Court of Wards, the age of majority is completion of 21 years.
Every suit by a minor shall be instituted in his name by a parson who, in such suit, shall be called the next friend of the minor. The next friend should be a person who is of sound mind, who has attained majority, who is not a defendant and whose interest is not adverse to that of the minor. (Order XXXII, Rules 1 and 4)
Explanation 1 to Rule 1 or Order XXXII lays down that in this Order "minor" means a person who has not attained his majority within the meaning of S.3 of the Indian Majority Act, 1875, where the suit relates to any of the matters mentioned in cls. (a) and (b) of S. 2 of that Act or to any other matter.
Clauses (a) and (b) of S. 3 of the Indian Majority Act, 1875, lay down that nothing herein contained shall affect : 9a) the capacity of any person to act in the following matters, namely, marriage, dower, divorce and adoption; (b) religion or religious rites and usages of any class of citizens of India.
Under the provisions of S. 3 of the Indian Majority Act, 1875, every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of justice before the minor has attained the age of 18 years, and every minor of whose property the superintendence has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of 18 years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the Indian Succession Act, or in any other enactment, be deemed to have attained his majority when he shall have completed his age of 21 years and not before.
Who is an indigent person? - A person is an indigent person: (1) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject of the suit) to enable him to pay the fee prescribed by law for the plaint in the suit proposed to be instituted by him, or 92) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit. (Order XXXIII, Rule 1, Expln. I).
Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. (Order XXXIII, Rule 1, Expln. II).
Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. (Order XXXIII, Rule 1, Expln. III).
The benefit of Order XXXIII, C.P.C. is conferred on persons without 'sufficient means' and not without any means at all. Pauperism is not a pre-requisite for the leave. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property alone is what the court has to look into. Possession of sufficient means refers to possession of sufficient realizable property which will enable the plaintiff to pay the court-fee. Possession of hard cash sufficient enough to pay the court-fee is not a pre-requisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay court-fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. What is intended and provided is that justice shall not be denied to a person for the reason what he is not having sufficient means of pay court-fee.
4.4 Interpleader suit:-
An in interpleader suit is one in which the real dispute is between the defendants only and the plaintiff is not really interested in the matter. The defendants interplead, i.e., plead against each other instead of pleading against the plaintiff as in an ordinary suit. The defendants interplead as to their claims to the debt or property over which the plaintiff has no interest and which he is ready to pay or deliver to the rightful claimant. The relevant provision is to be found in S. 88 of the Code which reads thus:
88. Where interpleader suit may be instituted.- Where two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all parties can properly be decided, on such suit of interpleader shall be instituted.
In every interpleader suit the plaint shall, in addition to other statements necessary for plaints, state-
1) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;
2) the claims made by defendants severally; and
3) that there is no collusion between the plaintiff and any of the defendants. (Order XXXV, Rule 1).
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. (Order XXXV, Rule 2).
Procedure at first hearing.- (1) At the first hearing of the suit the court may: (1) declare the plaintiff discharged from all liability to the defendant in respect of the thing claimed, award him his costs and dismiss him from the suit; (b) if it thinks that justice or convenience so require, retain all parties until the final disposal of the suit. [Order XXXV, Rule 4(1)].
2) Where the court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed. [Order XXXV, Rule 4(2)].
3) Where the admissions of the parties do not enable the court so to adjudicate, it may direct-
a) that an issue or issues between the parties be framed and tried, and
b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner. [Order XXXV, Rule 4(3)].
Order XXXV, Rule 4, must be followed where there is a dispute as to right to collect rent after the death of the landlord. The court could allow the tenant to deposit the rent and direct the claimants to file separate suit to decide the title.
[Sections 75-78 and Order XXVI]
75. Power of court to issue commissions. - Subject to such conditions and limitations as may be prescribed, the court may issue a commission -
a) to examine any person;
b) to make a local investigation;
c) to examine or adjust accounts;
d) to make a partition;
e) to hold a scientific, technical or expert investigation;
f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the court pending the determination of the suit; or
g) to perform any ministerial act.
Examination. - Any court may in a suit issue a commission either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit, or of the witness to be examined, for the examination on interrogations or otherwise of : (1) any person resident within its jurisdiction who is from sickness or infirmity unable to attend it : provided that a commission for examination on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do, and the court may accept a certificate of a registered medical practitioner as evidence of the sickness or infirmity of any person; (2) any person entitled to exemption from personal appearance in court as provided in S. 133 of the Code, viz., the President and Vice-President of India, the Speaker or Chairman of the House of People, Assembly or Council the Ministers and the Judges of the High Courts and the Supreme Court; (3) any women, who, according to the customs and manners of the country, ought not to be compelled to appear in public; (4) any person who is about to leave the local limits of its jurisdiction before the date on which he is required to be examined in court; (5) any person resident beyond the local limits of its jurisdiction; and (6) any person in the service of the Government, who cannot, in the opinion of the court, attend without detriment to the public service; provided that in cases (4) to (6) where, under Rule 19 of Order XVI (which lays down that no witness be ordered to attend in person unless resident within certain limits), a person cannot be ordered to attend a court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice and provided further that a commission for examination of such person on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do. (Order XXVI, Rules 1 and 4).
Examination of witnesses on commission is in the discretion of the court. It should examine witnesses on commission only for adequate reasons, with are broadly mentioned above.
The court is empowered to issue a commission for examination of a person on interrogatories or otherwise.
It is open to the court to cancel the earlier order and to drop the proceeding for examination on commission.
A commissioner was appointed by the court to inspect how much noise would be created by saw mill. The commissioner was the court's officer, and obstructing an officer of the court is a serious violation of law. Anyone who resorts to this kind of tactic will not be entitled to any relief under Article 226 of the Constitution.
Arrest before Judgment
Where at any stage of a suit, excepting suits respecting any immovable property referred to in S. 16, clauses (a) to (d), the court is satisfied, by affidavit or otherwise,-
a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the court or to obstruct or delay the execution of any decree that may be against him, -
(i) his absconded or left the local limits of the jurisdiction of the court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the court, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof, or
b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance.
The defendant shall not, however, be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim. (Order XXXVIII, Rule 1).
Security. - Where the defendant fails to show such cause the court shall order him either to deposit in court money or other property sufficient to answer the claim against him or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit. (Order XXXVIII, Rule 2).
Where the defendant fails to deposit in court money or other property sufficient to answer the claim against him or to furnish security for his appearance, the court may commit him to the civil prison until the decision of the suit, or where a decree is passed against the defendant, until the decree has been satisfied.
No person shall be detained in prison for a longer period than six months if the amount or value of the subject-matter exceeds Rs. 50, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed Rs. 50. (Order XXXVIII, Rule 4).
Attachment before Judgment
Order 38, Rules 5, 6,8,10 to 13 of the Code provides the followings:
1. Where at any stage of the suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against heirs:
a) Is about to dispose of the whole of any part of his property.
b) Is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court.
The court may direct that the defendant, within a time to be fixed by it either to of the court, when required, the said property or the value of the same, as such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
Object of attachment before judgment
The main object of attachment before judgment is to enable the plaintiff to realize the amount of the decree, if one is eventually passed from the defendant's property. The attachment before me judgment is an encumbrance preventing the owner of the property to create encumbrance, sale or create charge thereon. Attachment before judgment does not create any right, title or interest, but it disables the judgment debtor to create any encumbrances on the property. Ultimately, when decree is passed, the property forms part of the decree so as to enable the decree-holder to proceed with against the property to release the decree debt. Even the properties which are not part of the schedule mentioned in the suit will nonetheless be the part of the decree. It is not mandatory that the property should be specifically mentioned, it is so only in a mortgage suit under relevant clauses of Order 34 of the Code. The decree-holder is entitled to proceed against those items mentioned in the petition. The decree would be executed as provided in other mode of the decree. And attachment properties are also liable to be sole as integral part of the decree.
Action by court
Right to third parties attached property
a) They shall not be affected in so far as they existed prior to attachment.
b) Attachment shall not bar a decree-holder against the defendant from applying for the sale of the property under attachment in execution of his decree.
Restrictions of attachment
Remedies in case of unjustified arrest or attachment or injunction
Section 95 of the Code provides that the court may award against the plaintiff reasonable compensation not exceeding 50 thousand rupees provided it is within the jurisdiction of the court for the expenses or injury caused to him if the order of arrest or attachment or injunction was based on insufficient grounds. This can be done on the application of the defendant.
Order XXXIX of the Coder provides that an injunction is a judicial process by which a party is required to do or to refrain from doing any particulars act. It aims at preserving the subject-matter of the suit in status quo for the time being. Injunctions are of two kinds: those are as follows,
The object of granting temporary injunction is to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit. It is the nature of protective relief granted in favour of party to prevent future possible injury. The need of such protection has to be judged against the corresponding need of the defendant to be protected against injury resulting from exercising his own legal rights. The court must weigh one need against another and determine where the balance of convenience lies and may pas an appropriate order in exercise of its discretionary power.
Principles governing temporary injunctions:-
The court should satisfy that there is a reasonable probability for the success of the plaintiff:
1. That there is prima facie case between the parties.
2. That the plaintiff will suffer irreparable loss in case the temporary injunction is not granted.
3. That the balance of convenience lies in favour of the plaintiff.
Effect of temporary injunction
It does not effect any subsequent alienation of the property so as to make it void. The only penalty provided in Rule 2(3) is that other property belonging to the defendant may be attached and sold to satisfy the decree against him and he may be detained in civil prison or punished for Contempt of Court. Thus it differs from an attachment in which any transfer is void.
Ground for granting temporary injunction
Where in any suit it is proved by affidavit or otherwise:
1. That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree.
2. That the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors.
3. That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
Consequence of disobedience or breach of injunction
1. In the case of disobedience any injunction granted or other made under Rule 1 or Rule 2 on breach of any of the terms on which the injunction was granted or the order made, the court granting the injunction or making the order or any court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release.
2. No attachment made under this rule shall remain in force for more than one year at the end of which time, if the disobedience or breach continues the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any to the party entitled thereto.
4.7 Appointment of receiver :-
Appointment.- Where it appears to the court to be just and convenient, the court may, by order, appoint a receiver of any property whether before or after decree; remove any person from the possession or custody of the property; and commit the same to the possession, custody or management of the receiver (Order XL, Rule 1). The appointment of a receiver is in the discretion of the court. That discretion has to be exercised not arbitrarily but cautiously, judicially and according to legal principles after a consideration of the circumstances of the case. The main object and purpose of his appointment is the preservation of the subject-matter of the litigation pending a judicial determination of the rights of the parties thereto. He is appointed for the protection of rights of the parties or for the prevention of injury. The court should not appoint a receiver or property in the possession of the defendant claiming the same by legal title, unless the plaintiff can show prima facie that he has a strong case and good title to the property. He must have an interest in the property to be affected by the order.
The person who holds possession under agreement in expected to act pending suit as receiver on behalf of the court and his possession cannot be disturbed and no application of other party for appointment of Receiver can be entertained.
A receiver is appointed for the preservation of the subject-matter of the litigation pending a judicial determination of the rights of the parties thereto. It is done for the protection of rights or for prevention of injury or irreparable loss. He is an officer of the court and his possession of the property is in the possession of the court and it is for the benefit of all the parties who are concerned with the said property. Any money in his hands is in custodia legis for the person who can make a little to it. When a court receiver is appointed in respect of any property it is said to be in custodia legis and the court holds the property for the benefit of true owner. The court receiver acts on behalf of the court.
The appointment of a receiver is in the discretion of the court. The power should not be exercised as a matter of course or for the reason that it can do no harm to appoint one. A receiver should not be appointed when there is a bona fide of the property unless there is some cogent ground for interference. There should be a well founded fear that the property in question will be dissipated or other irreparable mischief may be done.
Power of Receiver.- Being a servant of the court, a receiver has only such power and authority as is conferred on him by the court. His powers are entirely conditioned by the term of his appointment, which may be varied by the court subsequently. The court may confer upon him all such powers, mentioned in Order XL, Rule 1 (1) (d), viz. as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the court thinks fir.
Legal consequences of the receiver being an officer of the court
1. Property in the hands of the receiver cannot be attached without the court's permission.
2. No party can enter into an agreement with him so as to restrict and control his powers or for payment of any remuneration to him.
3. Receiver cannot purchase the property over which he is receiver.
4. He cannot be sued nor can he sue without the leave of the court.
5. He has to account to the court for gain or loss and if he fails to account or pay the account due, or occasions loss by his conduct, the court may realize it from him by attaching and selling property.
Obligation of the receiver
1. Furnish such security as the court thinks fit duly to account for what he shall receiver in respect of the property.
2. Submit his accounts at such periods and in such form as the court directs.
3. Pay the amount due from his as the court directs.
4. Be responsible for any loss occasioned to the property by the willful default or gross negligence.
(Ss. 96-122 & Orders XLI, XLIIII, XLIV & XLV)
96. Appeal from original decree:-
1. Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising jurisdiction to the Court authorised to hear appeals from the decision of such court.
2. An appeal may lie from an original decree passed ex. Parte.
3. No appeal shall lie from a decree passed by the Court with the consent of parties.
4. No appeal shall lie, except on a question of law from a decree in any suit of the nature cognizable by Courts of Small Courses, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees].
The right to prefer an appeal from the judgment of the court of first instance is derived from the provisions of S. 96 of the Code. This is subject to the restriction contained in sub-s. (4) added by the Amendment Act, 1976. An appeal shall. However, lie on a question of law even in cases referred to in sub0s. (4) of S. 96 of the Code.
The remedy of appeal is a creation of statute and is not an inherent right of a person. If the Legislature in its wisdom thinks in a particular case that on appeal should be provided, it cannot be held that the legislation is bad.
By the Civil Procedure Code (Amendment) Act, 1976, the definition of the word "decree" has been amended and "the determination of any question under S. 47, C.P.C" has been taken out of the definition of 'decree'. In the circumstances, an order determining a question under S. C.P.C. is no longer a decree. Since such order is no longer a decree under the Code as amended, on appeal lies against the said order.
Limitation. - An appeal shall be accompanied by a memorandum of grounds together with judgment and decree as envisaged under Order XLI, Rule 1. The limitation begins to run from the date of the supply of the certified copies of the judgment and decree. The time taken by the court for their supply from the date of application till the date of supply should be excluded in computation of the period of limitation. Even if application for certified copies of judgment and decree were separately filed, the combined period would be excluded. Therefore, the right to file an appeal arises only from the date when the decree was not time-barred.
The State has offered no explanation of delay in filing appeal. The court condoned delay without recording satisfaction of reasonable or satisfactory explanation for inordinate delay. Such order cannot be sustained as condonation of delay was not proper and judicious.
Distinction between an appeal and revision. - There is an essential distinction between an appeal and revision. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitation prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have it has not power to review the evidence unless the statute expressly confers on it that power.
(Ss. 113, 114, 115, o.46, o46)
REVIEW
(S. 114 AND Order XLVII)
114. Review. - Subject as aforesaid, and 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.
All decrees or orders cannot be reviewed. The right of review has been conferred by S. 114 and Order XLVII, Rule 1 of the Code. Section 114 provides that 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 form a court of small causes, may apply for a review of the judgment to the court which passed the decree or made the order on any of the following grounds mentioned in Order XLVII, Rule 1, viz.-
1) discovery by the applicant of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or made, or
2) on account of some mistake or error apparent on the face of the record, or
3) for any other sufficient reason,
and the court may make such order thereon as it thinks fit.
Explanation. - The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.
The powers of review are intended for correction of mistakes or errors apparent on the face of the record. Under Orissa Board of revenue Act, 1951, Section 7 confers no wider powers of review on Board or its delegate the commissioner them the powers of review under Order XLVII, Rule 1, C.P.C.
REVISION
[S. 115]
115. Revision. -
1. The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears -
a) to have exercised a jurisdiction not vested in it by law, or
b) to have failed to exercise a jurisdiction so vested, or
c) to have acted in the exercise of its jurisdiction illegality or with material irregularity.
the High Court may make such order in the case as it thinks fit:
[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding.]
2. The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.
3. A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation. - In this section, the expression "any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.
Jurisdiction. - The word 'jurisdiction' is a verbal coat of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission [(1969) 2 A.C. 147], namely, the entitlement "to enter upon the enquiry in question". It has, as a result of a catena of Indian decisions, assumed a restricted meaning. Section 115 confers power of revision on the High Court in a case not subject to appel thereto. According to the Law Commission, errors of jurisdiction and errors apparent on the face of the record could be corrected under Art. 227 of the Constitution. But the third clause under S. 115 could not be covered by Art. 227, viz., when the court acts or exercises jurisdiction on the subordinate court's acting in the exercise of its jurisdiction illegally or with material irregularity. The remedy under Art. 227 is also costly for the poor litigants, and the remedy provided in S. 115, is, on the other hand, cheap and easy. The Committee, however, felt that, in addition to the restrictions contained in S. 115, an overall restriction on the scope of the applications for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the law Commission in its Fourteenth and twenty-seventh reports, the Committee recommended that S. 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely:-
(i) that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or
(ii) that the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury.
(Ss. 148, 1491 151):-
148-A. Right to lodge a Caveat. -
1) Where an application is expected to be made, or has been made in a suit or proceeding instituted, or about to be instituted, in a court, any person claiming a right to appear before the court on the hearing of such application may lodge a caveat in respect thereof.
2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator), shall serve a notice of the cavent by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made under sub-section (1).
3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the court shall serve a notice of the application of the caveator.
4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.
5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.
With a view to preventing any party to obtain an ex part order S. 148 A empowers any person claiming a right to appeal before the court on the hearing of any application, which is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a court, to lodge a caveat in respect thereof. Where a caveat has been lodged, the person by whom the caveat has been lodged, viz., the caveator, shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made. Where after a caveat has been lodged, any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator. Were a notice or any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator's expense, with a copy of the application made by him and also with copies of any paper of document which has been. Or may be, filed by him in support of the application.
The caveat shall not remain in force indefinitely and a time limit of ninety days has been fixed from the date on which it was lodged.
It is clear from the reading of Rule 11 (1) of Order XLI, C.P.C. that only the appellant or revisionist or his pleaders are required to be heard and not counsel for respondent or opposite party or his pleader at the stage of admission of appeal or revision, even when caveat has been filed. Section 148A provides hearing of any application to be moved by any person claiming a right to appear before the court on the hearing of such application. It nowhere lays down that by filing a caveat a person is entitled to even oppose the admission of appeal or revision which are continuation of the suit. Memorandum of appeal and revision are different from other applications moved in them. By filing caveat under S. 148A the caveator or his counsel are not entitled to oppose admission of appeal or revision. They are entitled only to be heard when any application is expected to be moved in appeal or revision. It is another case that notices have been issued to the respondents or opposite parties or their pleader and in that case the respondents or opposite parties of their pleader are entitled to oppose the admission but in no other case.
The court has to give an opportunity of hearing to caveators if it has to pass an order against them.
Since laws are general rules, they cannot regulate for all times to come so as to make express provision against all inconveniences, which are infinite in number, and to foresee all cases that may possibly happen with a view to providing a remedy. A Code however wisely framed cannot make express provisions against all contingencies and for all times. The purpose of the law is to secure the ends of justice. The laws are not ends in themselves but are only a means for securing justice. If the ordinary rules of procedure result in injustice in any case and there is no other remedy, it is the duty of the court override those rules for achieving the ends of justice.
It is to serve this necessity that provision has been made in S. 151 of the Code of Civil Procedure, which reads thus:
151. Saving of inherent powers of court. - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
Saving clause. - It is a saving clause and only gives legislative recognition of an age-old and well established principle that every court has inherent power to do that real and substantial justice between the parties for administration of which alone it exists. It does not confer any substantive right on parties but is meant to get over the difficulties arising from rules of procedure. Section 151 fives no right to a party to make an application. It gives power to the court to pass such orders as it thinks fit. Section 151 is really intended to prevent courts from being rendered impotent by any omission in the Code; but it is not intended to override the main enactment of the law.
The inherent powers are inherent in the court itself and have not been conferred by the Code; these powers are independent of and in addition to any other powers that the court may exercise under the Code.
Illustrations. - The court has an inherent power under S. 151, C.P.C.:
a) to consolidate suits and appeals including appeals to the Supreme Court;
b) to postpone the hearing of suits pending the decision of a selected action or where some of the issues are common in another pending suit;
c) to stay cross-suits on the ground of convenience;
d) to allow a defence in forma pauperis;
e) to grant restitution apart from the provisions of S. 144, C.P.C.;
Where the court rectifies a mistake in a decree in the exercise of its inherent powers, it has jurisdiction to order restitution of any benefit which may have been received wrongly by the persons who were not entitled to such benefits but for the mistake in the decree;
f) to add a party or to transpose parties, or where the appeal is filed against dead persons to allow the appellant to add legal representatives of the deceased as parties in a proper case;
g) to entertain the application of a third person to be made a party;
h) to punish summarily by imprisonment for contempts of court committed by the publication of a libel out of court;
i) to stay the drawing up of the court's own orders or to suspend their operation, if the necessities of justice so require;
j) to stay the carrying out of a preliminary order pending appeal;
k) to amend decrees by correcting errors in cases not covered by S. 152. The court has an inherent jurisdiction to rectify its own mistake and to do justice has been done to them due to the mistake of the court;
l) to restrain by injunction a person from proceeding with a suit in another court;
m) to vacate an order obtained by fraud practiced upon it or by abusing the process of the court;
n) to set aside an order made ex parte and without notice to the parties to be affected thereby if a proper case is substantiated;
o) to remand a suit in a case to which neither Order XLI, Rule 23 not Order XLI, Rule 25 applies- the court, by reason of its inherent jurisdiction, may order remand in cases other than the case specified in Order XLI, Rule 23, if it is necessary for the ends of justice;
p) to interfere where its decree is being executed in a manner manifestly at variance with the purpose and intent of the decree;
q) to set aside a compromise decree when the court has been misled into recording it by a statement of the pleader that he was specially authorised to compromise when in fact he was not so authorised;
r) to stay a suit even when it does not come within S. 10, C.P.C.;
s) to apply the principles of res judicate to cases not falling within S. 11 of the Code;
t) to recall and cancel the court's invalid orders, etc.
UNIT- V
5.1 Object of the law of limitation:-
The object of the Act is quiet long possession and to extinguish stale demands. The object of the Act is not create or define causes of action, but simply to prescribe the period within which existing rights can be enforced in courts of law. The principle of the Act is not be enable suits to be brought within certain periods, but to forbid them being brought after certain periods.
The law of limitation and prescription are based upon the principle that the law aids the diligent and not the indolent. A man who has negligently slept over his rights for an undue length of time will not be allowed to litigate in respect of them. A person who has been in the enjoyment of property, or of a right, or of an immunity from a demand by another, for, a period of time which the law has prescribed, will be allowed to enjoy that property, right or immunity in peace and quiet even thereafter, and will not be harassed by unexpected litigation cropping up at distant dates, or exposed to stale demands, perhaps when witnesses of the facts are dead or the evidences of the title lost.
Limitation and Prescription
A law of prescription lays down the period at the expiry of which a substantive or primary right is, under certain circumstances, acquired or extinguished. The term prescription as used in the Limitation Act, excludes, and is opposed to limitation. A person right is extinguished by prescription when he cannot assert it either judicially.
Bar of limitation
Section 3 of the Act provides that subject to the provision of section 4 to 24, every suit which is instituted or appeal preferred or application made, after the prescribed period is to be dismissed by the court. This would be so, even though limitation has not been set up as a defence.
It is also provided that for the purpose of this Act:
1. A suit is instituted
a) In an ordinary case, when the plaint is presented to the proper officer.
b) In the case of a pauper, when his application for leave to sue as a pauper is made.
c) In the case of a claim, when the claimant first sends his claim to the official liquidator.
2. Any claim by way of a set off or a counter-claim is to be treated as a separate suit and is deemed to have instituted.
a) In the case of set off, on the same date as the suit in which the set off is pleaded.
b) In the case of counter-claim, on the date on which the counter-claim is made in court.
3. An application by notice of motion in a High Court is deemed to be made when the application is presented to the proper officer of that court.
Suit when deemed to be instituted
A suit is taken as instituted on the date on which the plaint is presented, and not when it is accepted. If the plaint is accompanied by insufficient court-fees, and time is given by the court to makes good the deficiency, the suit is still deemed to have been instituted in the date when the plaint was first prescribed, and not on the date when the requisite court-fee were paid. A similar rule applies when the plaint is ordered to be amended. So also where leave to sue is required, the obtaining of the leave of the Judge later on, and the admitted of the suit upon the Register of suits, do not in any way affect the presentation of the plaint which presenting is all that the Act requires to be done in order to stop limitation running.
Expiry of prescribed period when court is closed
Section 4 of the Act provides that when the prescribed period of any suit, appeal or application expires on a day when the court is closed, the suit, appeal, or application may be instituted, preferred or made on the day when the court re-opens. The sections provides for the contingency when the prescribed period expires on a holiday. This section does not extend the period of limitation. The only contingency contemplated by it is when the court is closed. It may be noted that a court is deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day. The court here mans the proper court. Where a plaintiff has filed his application in the wrong court, he is not entitled to the benefit of an extension under this section if the proper court where he ought to have filed the suit was, at that time, open.
5.2 Legal disability :-
Section 6 of the Act provides four simple rules in cases where the person suing suffers from a legal disability, as under:
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 prescribed period after the disability has ceased.
2. Where such person is 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 prescribed period after both disabilities have ceases.
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 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 remainder of the prescribed period.
Disability of one of several persons
Section 7 of the Act provides that if 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 all of them. If 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 other or until the disability has ceased. It is certified that the section applies a discharge from every kind of liability, including a liability in respect of any immovable property. It is also clarified that the manager of a Hindu Undivided family governed by the Mitakshara law shall be deemed to be capable of giving discharge without the concurrence of the members of the family only if he is in management of the joint family property.
Special exceptions
Section 8 of the Act provides that followings are the special exceptions
Ex: A, to whom a right to sue for legacy has accrued during his minority, attains majority eleven years after such accrue. A has, under the ordinary law, only one year reaming within which to sue. But under section 6 and this section an extension of two years will be given to him under section 6 read with this section.
Receives
5.3 Limitation Act
Object of the law of limitation
The object of the Act is quiet long possession and to extinguish stale demands. The object of the Act is not create or define causes of action, but simply to prescribe the period within which existing rights can be enforced in courts of law. The principle of the Act is not be enable suits to be brought within certain periods, but to forbid them being brought after certain periods.
The law of limitation and prescription are based upon the principle that the law aids the diligent and not the indolent. A man who has negligently slept over his rights for an undue length of time will not be allowed to litigate in respect of them. A person who has been in the enjoyment of property, or of a right, or of an immunity from a demand by another, for, a period of time which the law has prescribed, will be allowed to enjoy that property, right or immunity in peace and quiet even thereafter, and will not be harassed by unexpected litigation cropping up at distant dates, or exposed to stale demands, perhaps when witnesses of the facts are dead or the evidences of the title lost.
Limitation and Prescription
1. A law of limitation prescribes the time after which a suit or other proceedings cannot be instituted in a court of law. A law of prescription prescribes the time at the expiration of which some substantive right may be acquired or may become extinguished. Prescription has, therefore, a twofold aspect: as creating a right and extinguishing a right.
2. A law of limitation as merely barring the remedy merely; it does not touch the right of a person to the debt, damage, goods, person, property, etc. but in so far as it extinguishes the right of action, limitation is considered to be a species of prescription.
3. A law of limitation, as merely barring the remedy, is a part of the procedural or adjective law. A law of prescription, because it affects the substantive right itself, is part of the substantive law.
A law of prescription lays down the period at the expiry of which a substantive or primary right is, under certain circumstances, acquired or extinguished. The term prescription as used in the Limitation Act, excludes, and is opposed to limitation. A person right is extinguished by prescription when he cannot assert it either judicially.
Bar of limitation
Section 3 of the Act provides that subject to the provision of section 4 to 24, every suit which is instituted or appeal preferred or application made, after the prescribed period is to be dismissed by the court. This would be so, even though limitation has not been set up as a defence.
It is also provided that for the purpose of this Act:
1. A suit is instituted
a) In an ordinary case, when the plaint is presented to the proper officer.
b) In the case of a pauper, when his application for leave to sue as a pauper is made.
c) In the case of a claim, when the claimant first sends his claim to the official liquidator.
2. Any claim by way of a set off or a counter-claim is to be treated as a separate suit and is deemed to have instituted.
a) In the case of set off, on the same date as the suit in which the set off is pleaded.
b) In the case of counter-claim, on the date on which the counter-claim is made in court.
3. An application by notice of motion in a High Court is deemed to be made when the application is presented to the proper officer of that court.
Suit when deemed to be instituted
A suit is taken as instituted on the date on which the plaint is presented, and not when it is accepted. If the plaint is accompanied by insufficient court-fees, and time is given by the court to makes good the deficiency, the suit is still deemed to have been instituted in the date when the plaint was first prescribed, and not on the date when the requisite court-fee were paid. A similar rule applies when the plaint is ordered to be amended. So also where leave to sue is required, the obtaining of the leave of the Judge later on, and the admitted of the suit upon the Register of suits, do not in any way affect the presentation of the plaint which presenting is all that the Act requires to be done in order to stop limitation running.
Expiry of prescribed period when court is closed
Section 4 of the Act provides that when the prescribed period of any suit, appeal or application expires on a day when the court is closed, the suit, appeal, or application may be instituted, preferred or made on the day when the court re-opens. The sections provides for the contingency when the prescribed period expires on a holiday. This section does not extend the period of limitation. The only contingency contemplated by it is when the court is closed. It may be noted that a court is deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day. The court here mans the proper court. Where a plaintiff has filed his application in the wrong court, he is not entitled to the benefit of an extension under this section if the proper court where he ought to have filed the suit was, at that time, open.
Legal disability
Section 6 of the Act provides four simple rules in cases where the person suing suffers from a legal disability, as under:
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 prescribed period after the disability has ceased.
2. Where such person is 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 prescribed period after both disabilities have ceases.
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 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 remainder of the prescribed period.
Disability of one of several persons
Section 7 of the Act provides that if 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 all of them. If 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 other or until the disability has ceased. It is certified that the section applies a discharge from every kind of liability, including a liability in respect of any immovable property. It is also clarified that the manager of a Hindu Undivided family governed by the Mitakshara law shall be deemed to be capable of giving discharge without the concurrence of the members of the family only if he is in management of the joint family property.
Special exceptions
Section 8 of the Act provides that followings are the special exceptions
Ex: A, to whom a right to sue for legacy has accrued during his minority, attains majority eleven years after such accrue. A has, under the ordinary law, only one year reaming within which to sue. But under section 6 and this section an extension of two years will be given to him under section 6 read with this section.
Continuing running of time
Section 9 of the Act provides that once time has begun to run, no subsequent disability, or inability to institute a suit or make an application stops it. Where letters of administration to the estate of the deceased creditor have been granted to his debtor, the riunning of the period of limitation for the recovery of the debvt is suspended while the administration continues.
Disabnility or inability to sue
Disability or inability to sue includes disability to make an application for execution as well. Disability is want of legal qualification to act; inability is want of physical power to act. This disability is the state of being a minor, insane or an idiot; whereas illness, poverty, etc., are instances of inability. The rule as to the continuous running of time is one of the fundamental principles of the law of limitation. This rule lays down that where once time has begun to run, it runs continuously and without any breaks or interruptions until the entire prescribed period has run out, and no disability or inability to sue occurring subsequently to the commencement will stop its running. This fundamental principle is embodied in section 9 of the Act, which applies to suits as well as application, although the words used are inability to sue.
Suits against trustees and their representatives
Section 10 of the Act provides for suits against trustees and their representatives. It lays down that irrespective of the above provisions of the Act, no suit against a person in whom property has become vested in trust for any specific purpose or against legal representative or assigns will be barred by any length of time, where such suit is for the purpose of following in his or their hands such property or proceeds thereof, or for an account of such property or proceeds. It is also clarified that for the purposes of this section, any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment is to be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof. When a trust has been created expressly for some specific purposes or object, and property has become vested in a trustee upon such trust, the person who is beneficially interested in that trust may bring a suit against such trustee to enforce that trust at any distance of time without being barred by the law of limitation. As a result of this section, an apparently fraudulent trustee who has put trust money into his own pocket cannot escape by reason of lap's of time.
Ingredients
a) Following in his hands the trust property or the proceeds thereof
b) For an account of such property or proceeds, will not be barred by any length of time.
Exclusion of time in legal proceedings
Section 12 of the provides that the following rules for excluding time for computing certain periods of limitation
Exclusion of time
a) The day on which the period begins to run.
b) The day on which the judgment was pronounced
c) The time required for obtaining a copy of the decree, sentence or order
d) The time required for obtaining a copy of the judgment.
a) The day on which period begins to run.
b) The day on which the judgment was pronounced.
c) The time for obtaining a copy of the decree
d) The time for obtaining a copy of the judgment.
a) The day on which the time beings to run.
b) The time for obtaining a copy of the award.
Exclusion of time in cases where leave to sue or appeal as a pauper is applied
Section 13 of the Act provides for exclusion of time in cases where leave to sue or appeal as a pauper is applied for. In such a case, if the application is rejected, in computing the period of limitation, the time during which the applicant has been prosecuting in good faith his application is to be excluded. In such cases, the court may, on the payment of the court-fees prescribed for such suit or appeal, treat the suit or appeal as having the same force and effect as if the court-fees had been paid in the first instance.
Effect of death on or before the accrual of the right to sue
Section 16 of the Act provides the followings:
1. Where a person who would, if he were living, have a right to institute a suit or make an application, dies before the right accrues or where the right to institute a suit or make an application accrues on the death of a person, then the period of limitation is to be computed from the time when there is a legal representative of the deceased capable of instituting such suit or making such applications.
2. Where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accurse, or where a right to institute a suit or make an applicant against any person accrues on the death of such person, the period of limitation is computed from the time when there is a legal representative of the deceased from the time when the plaintiff may institute such suit or make such application.
3. Applies to suits to enforce rights of pre-emption or to suits for the possession of immovable property or of a hereditary office.
5.3 Acknowledgment :-
Acknowledgement means a definite, clear admission of exisiting liability. It is not necessary that there should be a promise to pay; the simple admission of a debts is sufficient. An acknowledgement does not create any new right of action, but only enlarges the time and has the effect of making a new period run form the date of the acknowledgment. An acknowledgement of a barred debt cannot give fresh period of limitation in favour of creditors. An acknowledgement is not limited in respect of a debts only, it may be in respect of any property or right which is the subject-matter of the suit.
Ex: The taking of account of a dissolved partnership. An acknowledgement of a conditioned liability will not give a fresh start so long as the condition remains unfulfilled. There must be an unqualified admission, or an admission qualified by a condition which is fulfilled.
Essentials of Acknowledgement
Our aim is to provide a new technology in Education, building professional management structure and molding the physical talents in the field of sports, making our institutions to be first choice of students in India and our union helps you to purpose Education of greater quality to meet the challenge globally.
Our group of Institutions strives to provide an apt platform for our students to portray their varied talents to the fullest extent by imparting quality and comprehensive Education. Our aim is to help every student to discover and realize their potentials.