CPC and Limitation

Harish Law Classes [Mob. no. 98783-57055, 98883-57055] C.P.C.
Add: Opposite Punjabi University, Patiala
Subject – C.P.C.
Unit-I
Que1. Meaning of Substantive & procedural law. Nature and Scheme of Civil Procedure
Code, 1908.
Ans:- Law can be divided into 2 groups-
1. Substantive law
2. Procedural law
Substantive law determines the rights and liabilities of parties, where as procedural law
prescribes the practice, procedure and machinery for the enforcement of those rights and
liabilities.
Some examples of substantive law:-
1. Indian contract Act, 1872
2. Indian penal code, 1860
3. The Industrial dispute Act
4. Transfer of property Act
Some examples of procedural law:-
1. Civil procedural code, 1908
2. Indian evidence Act, 1872
3. Criminal procedure code, 1973
4. The limitation Act, 1963
The function of substantive law is to define, create or confer substantive legal rights or legal
status or to impose and define the nature and extent of legal duties.
While the function of procedural law is to provide the machinery or the manner in which the
legal rights or status and legal duties may be enforced or recognised by a court of law.
Procedural law is joined or an accessory to substantive law. The two branches are
complementary to each other and inter dependent. The rule of procedure are intended to be a
hand maid to the administration of justice and they must therefore, be construed liberally and in
such manner as to render the enforcement of substantive right effective, so for as possible. No
proceeding in a court of law should be allowed to be defeated on mere technicalities.
Case- Ghan shyam Dass v. Dominion of Indian 1984 SC
Held:- It is procedural law which puts life into substantive law by providing a remedy and
implements the well known Maxim “ubi jus ibi remedium” which means where there is a right,
there is a remedy and also held that – It is neither creates nor takes away any right. It is intended
to regulate the procedure to be followed by civil courts.
A procedural law is always in aid of justice, not in contradiction or to defeat the very object
which is sought to be achieved. A procedural law is always subservient to the substantive law.
Nothing can be given by a procedural law what is not sought to be given by substantive law and
nothing can be taken away by the procedural law what is given by the substantive law.
Case- State of Punjab v. Shamlal Murari 1976 SC
Hold:- Procedural law is not be a tyrant (one who exercises unlawful authority), but a servant
and it is not an obstruction but an aid to justice.
Case- Sangram Singh v. Election Tribunal 1955 SC
Held:- The code is designed to facilitate justice and further its ends and is not a penal enactment
for punishment and penalties.
Nature of C.P.C. & its scheme-

Commencement:- C.P.C., 1908 come into force an 1, Jan 1909 and Amendment Act, 1976 came
into force on 1, Feb 1977 and the Amendment Acts 1999 & 2002 came into force on 1, July,
2002.
Extent & applicability:- The C.P.C extends to the whole of India, except the State of Nagaland
& tribal areas.
Scope of code:- The code is exhaustive on matters specifically dealt with by it. However, it is
not exhaustive on the points not specifically deals with therein. The legislature is incapable of
contemplating all the possible circumstances which may arise in future litigation and
consequently for providing procedure for them. With regard to those matters, the court has
inherent power u/s 151 of CPC to act according to the principle of justice, equity and good
conscience.
Rigid or not:- As a general rule, procedural laws are not rigid and same is applicable to C.P.C.
E.g.- Where C.P.C. may be rigid- Section 10,11,13,21, etc.
E.g.- Where C.P.C is flexible- O7R11, O7R10, O8R1 etc.
Objects:- 1. C.P.C is handmaid of justice and its object to provide effective remedy.
2. The object of the code is to consolidate and amend the law relating to the procedure of courts
of civil judicature. It is consolidated code collecting all the laws relating to the procedure to
be adopted by civil courts. It is designed to facilitate justice and further its ends and is not a
penal enactment for punishment & penalties. So, C.P.C. is known as “hand maid justice”.
Retrospective or prospective:- The C.P.C. is not retrospective in operation i.e. prospective in
operation.
Scheme of the code:- The code can be divided into 2 parts:-
1. The body of the code containing 158 sections.
2. The 1st schedule containing 51 orders and their rules.
-The sections deals with provisions of a substantive nature, laying down the general principles of
jurisdiction, while the orders in 1st schedule relates to the procedure and the method, manner and
mode in which the jurisdiction may be exercised.
-The sections are fundamental and cannot be amended except by the legislature, while the orders
and rules can be amended by legislature as well as by high courts.
-The sections and the rules must be read together and harmoniously construed, but if the rules are
inconsistent with the sections, then sections will prevail.
Extra points:-
1. Total 5 schedules are there. 1st schedule contains 51 orders. But other four schedules were
repealed.
2. Order 21 is lengthiest order in which contains 106 rules and it deals with “execution of
decrees & orders”. These 106 rules r/w sections 36 to 74.
Short Que. Meaning of suits and its essentials?

Ans:- Meaning of suit:- The word “suit” is not defined in civil procedure code. But the word
“suit” ordinarily means a civil proceeding instituted by the presentation of a plaint (Sec. 26)
In other words, “the word suit in a understood to apply any proceeding in a court of
justice by which an individual pursues that remedy which the law permits.
When the plaint is admitted by the court under its original civil suit number, it becomes suit.
Essentials of suit:-
1. Parties- Two Parties for a suit must be required i.e. Plaintiff & defendant (order1)
2. Subject matter- The subject matter of a suit is essential but it may be Property or any
other right.
3. Cause of action- It can be said to bone of contention. In other words, the reason behind
an action is known as cause of action. E.g.- breach of a contract.
4. Relief:- Relief is always demanded in prayer clause of plaint. E.g. Compensation,
required money decree, recovery of movable or immovable property, declaration of any
right related to cause of action, divorce decree etc.
Que2. What do you understand by a suit of a civil nature? Also discuss its essentials.
OR
Explain the Jurisdiction of Civil Courts?
Ans:- Definition and Meaning of Jurisdiction:- Jurisdiction may be defined to be the power of
the courts to hear and determine a cause, to adjudicate and exercise any judicial power in relation
to it. It is the authority with which the court is vested to decide matters that are litigated before it
or to take way for its decision. “Ubi jus ibi remedium” (Wherever there is right, there is remedy)
is the principle of jurisdiction.
Jurisdiction of a court means the extent of the authority of a court to administer justice prescribed
with reference to the subject- matter, pecuniary value and local limits.
If the court has no jurisdiction, the parties to a suit cannot confer jurisdiction on a court by their
consent. Where the court has jurisdiction to decide a dispute, the same cannot be taken away or
ousted by the consent of the parties.
Exception:- If two or more courts have jurisdiction to try the suit, the parties may agree among
themselves that the suit should be brought in one of those courts and not in the other court, since
there is no inherent lack of jurisdiction in the court.
Case- Hakam Singh v. Gammon Indian Ltd 1971 SC

Held:- If 2 or more courts have jurisdiction to try suit, it is open to the parties to select a
particular forum (court). Such an agreement would be legal, valid & enforceable (Section 28 of
Indian Contract Act, 1872 says that the agreement for partial restraint of legal proceedings is
valid agreement).
Case- Abdulla Bin Ali v. Galappa 1985 SC

Held:- The jurisdiction of the court has to be decided on the allegations made by the plaintiff in
the plaint and not on the allegations made by the defendant in the written statement.
Section 9:- Section 9 of CPC basically defines the Jurisdiction of Civil Courts. “The court shall
have jurisdiction to try all suits of a civil natural excepting suits of which their cognizance is
either expressly or impliedly barred.”
The word “civil” is not defined in C.P.C. Dictionary meaning of “civil” is pertaining to the
private rights and remedies of a citizen as distinguished from criminal, political etc.
-Section9 declares that in all cases it shall be presumed that the court has jurisdiction and the
burden of proof is upon the party who asserts that the courts is not having jurisdiction.
Difference b/w “civil suit” and “suits of civil nature”

Civil suit Suits of civil nature
Violation of civil law or civil rights creates the When the Violation is related to Civil right+
right to file Civil Suit. Something (social or religions). But Purely
E.g. Right to claim specific relief. Social or religious matter does not include.
E.g.- 1. Right to worship
2. Right to decent burrier or cremation.
Case- P.M.A Metropolitan v. M.M. Mathoma 1995 SC

Held:- The use of the word “civil nature” instead of civil suit u/s 9 of CPC which gives wide
application to the jurisdiction of civil courts.
So we can say that “all civil suits are suits of civil nature, but all suits of civil nature are not civil
suits”.
Suit of civil nature (Genus)
Civil suit (Species)
Some examples of suits of a civil nature-

1. Suit relating to right to property.
2. Suit relating to right of worship.
3. Suit for specific relief.
4. Suit for rent.
5. Suit for R.C.R.
Some examples of suits which are not of civil nature-
1. Suits involving principally caste question.
2. Suits involving purely religious rites/ ceremonies.
Negative part of Section 9:-
Bar
Expressly Impliedly
Under C.P.C. Outside C.P.C Section 23 & 28 of I.C.A

1. Section10 1. Limitation
2. Section 11 2. Rent control
3. Section 13 & 14 3. Income Tax
4. O2 R2 4. Industrial dispute
5. O23 R1(4)
6. O22 R9
Kinds of jurisdiction:-
1. Territorial jurisdiction
2. Pecuniary jurisdiction relating to money
3. Subject- matter jurisdiction e.g. District courts decide the Hindu law petitions.
Section 21:- Objections to jurisdiction

It provides objections as to territorial jurisdiction as well as pecuniary jurisdiction in appellate
court or revisional court. Any of party may file an objection in the lower court during the
pendency of the proceeding, but at or before framing of issues. It is an enabling provision and
parties may waive such an objection. The decree pronounced in case of violation of territorial
jurisdiction or pecuniary jurisdiction is valid.
Case- Kiran Singh v. Chaman Paswan 1954 Sc
In this case, the apex court held that pleas related to territorial jurisdiction is known as technical
pleas which does not amount to inherent lack of jurisdiction.
The object of procedural law is to empowered justice in society and justice can’t be put to
prejudice merely by technical defects in the procedure that’s why procedural law is the hand
maid of justice.
Que3. Explain Res Sub-judice?

Ans:- Section 10 of the CPC deals with the stay of civil suit. It provides that “no court proceed
with the trial of any suit in which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties or between parties under whom they or any of
them claim litigation under the same title where such suit is pending in the same or any other
court in India, having jurisdiction to grant the relief claimed, or in any court beyond the limits of
India, which established or constituted by the central govt. and having like jurisdiction or before
the supreme court”.
Object of Section 10:- The object of the rule of Section 10 is to prevent the court of the
concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel
litigations in respect of the same cause of action, the same subject matter and same relief, so that
to avoid possibility of two contradictory verdicts in respect of the same relief.
Case- Balkishan v/s Kishan Lal (1889)
Case- Shree Ram Tiwary v/s Bholi Devi
The section 10 intends to protect a person from multiplicity of proceedings and avoids conflict of
decisions.
Conditions:- To apply this rule, the following conditions must be satisfied:-
1. There must be two suits; one previously instituted and the other subsequently instituted.
2. The matter in issue in subsequent suit must be directly and substantially in issue in the
previous suit.
3. Both the suits must be between the same parties or their representatives.
4. 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 court beyond the limits of India,
established by the central govt. or before the Supreme Court.
5. The court in which the previous suit is instituted must have jurisdiction to grant the relief
claimed in the subsequent suit.
6. Such parties must be litigating under the same title in both the suits.
As soon as the above conditions are satisfied, the court cannot proceed with subsequently
presented suit
Case- Manohar Lal v/s Seth Hira Lal

The provisions of section 10 are mandatory and no discretion is left with the court.
Explanation to section 10 provides that there is no bar on power of Indian court to try a
subsequently instituted suit, if the previously instituted suit is pending in a foreign court.
Effect of contravention:- Under this section., the trial of a subsequent suit is only stayed and
there is no bar to institute the subsequent suit. So it is only a rule of procedure and the parties can
waive their rights by consent. If the parties, by consent, waive their rights then they cannot
challenge subsequently.
A decree passed in the contravention of section 10 is not a nullity and therefore, cannot be
disregarded in execution of proceedings.
Case- V.P. Vrinda v/s K. Indira Devi 1995

The matter-in-issue in previously instituted suit and subsequent instituted, is directly and
substantially the same, and the relief claimed is same and both the suits are for permanent
injunction, then the Kerala High court decided that section 10 will apply and it was held that for
section 10 it is not necessary that the cause of action must be same, but the essential condition is
that the matter-in-issue should be the same.
Q3. Explain Res-Judicata.

Ans:- The rule of Res- Judicata is based on three maxims:-
1. No man should be vexed twice for the same cause.
2. It is in the interest of the state that there should be an end to litigation.
3. A judicial decision must be accepted as correct.
The word ‘res judicata’ contains two words i.e. Res and Judicata. The word ‘Res’ means, a thing,
and the word judicata, means something which is previously decided.
Section 11 of the CPC contains the doctrine of Res Judicata, according to it, “no court shall try
any suit or issue in which matter-in-issue has been directly and subsequently in a former suit
between the same parties or between the parties under whom they or any of them claim litigating
under the same title, in a court competent to try such subsequently suit or the suit in which such
issue has been subsequently raised and has been heard and finally decided by such court.
To constitute a matter of Res Judicata U/s 11 the following condition must be fulfilled:-
1. The matter directly and subsequently in the issue in the subsequent suit must be the same
matter which was directly and substantially in issue, either actually or constructively in the
former suit.
Matter in Issue
______________________________________________________
Matter directly Matter collaterally

And substantially in issue or incidentally in issue
_____________________________
Actuallly Constructively
in issue in issue
E.g. ‘A’ sues ‘B” for rent due. The defence of B, is that no rent is due. Here, the matter directly
and substantially in issue is the claim of rent.
Matter collaterally and incidentally in issue:- A collateral or incidental issue means an issue
which is ancillary to the direct and substantial matter in issue. It refers to a matter in respect of
which no relief is claimed and yet is put in issue to enable the court to adjudicate upon the matter
which is directly and substantially in issue. Decisions on the matter of collateral and incidental
issue will not operate Res judicata.
Matter actually in issue:- A matter is actually in issue when it is alleged by one party and
denied by the other party.
Matter constructively in issue:- A matter is constructively in issue when it might and ought to
have been made on a ground of attack or defence in the former suit. The principle is that where
the parties have had an opportunity of controverting a matter that should be taken to be the same
thing, as if the matter had been actually controverted and decided. The object of Section 11 is to
compel the plaintiff or defendant to take all the grounds of attack or defence, which were open to
him. E.g. ‘A’ sues ‘B’ for possession of property on the basis of ownership. The suit is
dismissed. ‘A’ cannot thereafter claim possession of property as a mortgage because this ground
should have been taken in the previous suit.
E.g. ‘A’ files a suit against ‘B’ on the ground that he is the heir of ‘C’ so he is entitled to retain
land and his right shall be declared. The suit is dismissed. The subsequent suit is filed on the
ground of adverse possession. This is barred by constructive Res Judciata.
E.g. ‘A’ files a suit against ‘B’ to recover money on a pronote. ‘B’ takes defence that the pronote
was obtained from him by undue influence. His objections were overruled and the suit was
decreed. Now ‘B’ cannot challenge that the pronote was obtained from him by coercion or fraud
in the subsequent suit.
Case- Workmen C.P. Trust V/s Board of trustees.
The S.C. held that when any matter which might and ought to have made on a ground of defence
or attack in former suit but was not so made subsequently, then such a matter, in the eye of law,
will be deemed to have been constructively in issue and, therefore, it will be taken as decided.
Former Suit:- Former suit means a suit which has been decided prior to the suit in question
whether or not it was instituted prior thereto. It mean the date on which the suit is filed, does not
matter, but the date on which suit is decided matters. So even if a suit was filed later, it will be a
former suit if it has been decided earlier.
Case- Mathura prasad v/s Dossibai
The decision upon the fact-in-issue by a competent court between the same parties will be
regarded as finally decided and cannot be re-opened. A mixed question of law and fact
determined in the earlier suit may cannot be challenged but where the decision is a question of
law and it relates to the jurisdiction of the court, then the Res judicata will not apply.
2. Same Parties:- The second condition of Res Judicata is that the former suit must have been a
suit between the same parties or between the parties under whom they or any of them claim. It
means when the parties in the subsequent suit are different then there will be no res judicata.
Res Judicata between co-defendants:- A matter may be res Judicata between a plaintiff and a
defendants and co- defendant and between similarly co- plaintiffs also.
Case- Ifthikhar Ahmed V/s Syed Meharban Ali 1974
Adjudication will operate as Res Judicata between co-defendants if the following condition are
satisfied:
1. There must be a conflict of interest between co-defendants.
2. It must be necessary to decide the conflict in order to give relief to the plaintiff.
3. The question between the co-defendants must have been finally decided and
4. The co defendants were necessary and proper parties in the former suit.
If these conditions are fulfilled then it will be Res-judicata between co-defendants.
Example:- ‘A’ sues ‘B’, ‘C’ and ‘D’. To decided the claim of A, the court has interpreted a will.
The decision regarding the construction of will or rival claims of defendant will operate as res
judicata in any subsequent suit by any of the defendants against the rest.
Similarly, Res Judicata will also be applied between co plaintiffs. If there is a conflict of interest
between the plaintiffs and it is necessary for the court and decided to give relief of the defendant
and the matter is decided then it will be res-judicata between co-plaintiffs in the subsequent suit.
Pro-forma defendant:- A pro-forma defendant is that against whom no relief is claimed. A
finding against pro-forma defendant will not be a res Judicata in a subsequent suit.
Representative suit:- Where a representative suit is brought under Order 1 Rule 8 of CPC and a
decree is passed in such a suit then law assumes that all persons who have the same interest, all
of them are constructively barred by res judicata.
The following conditions must be fulfilled for Res Judicata in representative suit:
1. There must be a right claimed by one or more persons in command for themselves and
others not expressly named in suit.
2. The parties not expressly named in the suit, must be interested in such right.
3. The litigation must have been conducted bonafide and on behalf of all parties interested.
4. All conditions of order I rule 8 have been fulfilled.
Then Res Judicata will apply.
3. Same Title:- The third condition of Res Judicata is that the parties to the subsequent suit must
have litigated under the same title as in the former suit. Same title means same legal capacity.
The test of res judicata is the identity of title in the two litigations and not the identity of the
subject matter involved in two cases. example:- ‘A’ sues ‘B’ for title to the property as an heir of
‘C’ under customary law. The suit is dismissed. The subsequent suit for title to the property as an
heir of ‘C’ under the personal law is barred.
A verdict against a man suing on one capacity will not stop him when he sues in another distinct
capacity. E.g. ’A’ sues ‘B’ to recover possessions of a temple property as the heir of mahant. The
suit is dismissed. The subsequent suit filed by ‘A’ against ‘B’ as a manager of temple is not
barred.
4. Competent court:- The 4th condition of Res Judicata is that the court which decided the
former suit must have been a court comprtrnt to try the subsequent suit.
So, the decision in a previous suit by a court which is not competent to try subsequent
suit, will not operate as Res Judicata.
5. Heard and finally decided:- The final condition of Res Judicata is that the matter, directly
and substantially in issue in the subsequent suit, must have been heard and finally decided by the
court in the former suit. Heard and finally decided means the decision must be on merits. If the
former suit is dismissed by the court on the following grounds:
a. For want of jurisdiction.
b. For want of plaintiff’s appearance.
c. On the ground of non joinder or misjoinder of the parties.
d. On the ground that suit was not property framed.

e. It was premature.
f. There was technical defect.
then Res judicata will not apply.
Difference between Section 10 and Section 11:-

Section 10 will apply when there is a suit pending in the court. Whereas Section 10 will apply
when a matter has been heard and finally decided by a court.
Short Question:-
Que. Difference between Resjudicata and Estoppel
Ans:-
Res judicata Estoppel
I. Resjudicata is explained in section. 11 of
1. Estoppel is explained in Section. 115 to 117
C.P.C, 1908 of I.E.A, 1872
II. Resjudicata arises from the decision of the2. Estoppel arises from the acts of the parties
court. themselves
III. Res judicata ousts the jurisdiction of the 3. Estoppel is the rule of evidence. It shuts the
court. mouth of the party.
IV. Res judicata is based on public policy. 4. Estoppel is based on equity.
V. Res judicata stops multiplicity of suits. 5. It stops multiplicity of representations.
VI. It binds both the parties. 6. It binds only that party who made the
previous statement.
VII. It precludes a man claiming the same thing 7. It prevents him from saying one thing at one
twice over in successive litigations. time and the opposite at another time.
VIII. 8.
IX. Rule of resjudicata resumes conclusively the
9. Rule of estoppels prevents a party from
truth of the decision in the former suit. denying what he has once called.
Que. Difference b/w section 10 & 11?

Ans:- Resjudicata and Res subjudice
Resjudicata Res subjudice

1. It define in sec.11 It define in sec10.
2. In sec11, a matter is already adjudicated. In sec 10, a matter is pending b/w the parties.
3. Decision of foreign court will operate as If a case is pending in a foreign court, then it is
resjudicata. not bar u/s 10.
4. Sec11 Bars to trial of suit or issue. Sec 10 bars the trial of suit only.
5. In sec11, the former suit is that which decides In sec10, the former suit means in which the,
the firstly. matter is pending before the institution of 2nd

suit.
6. In sec 11. 2nd suit is dismissed. In sec 10. 2nd suit is stayed.
Que. Constructive resjudicata

Ans:- Constructive resjudicata:- Section 11 Explanation IV of CPC provides the Rule of
Constructive Resjudicata. In a suit, when all the other essential have been raised by the parties
and one or more similar essential issue omitted to be raised then it will be said that such party is
under duty to raise that issue, if the party fails to raise that issue, then constructive resjudicata
will apply. So this rule requires that the grounds of attack or defence related to one matter must
be raised by the plaintiff or defendant only in one suit. If they skip, then they cannot raised that
matter in subsequent suit.
Que. Representative suit (O1R8).
Ans:- Objects:-
I. To avoid multiplicity to proceedings.
II. To avoid harassment to the witnesses.
III. It saves the time of the court in litigating over the same matter, but in form of different suits.
Requirement of representative suit:-
I. There must be numerous persons.
II. The interest of all the persons must be the same.
III. There must be common relief to all the parties.
-For same interest it is not required that the cause of action is to be same. The interest should be
an existing interest.
-Acc to explanation attached to O1R8:- It is not necessary to establish that such persons have
the same cause of action.
e.g.- Due to establishment of an Industry in residential area, different cause of actions arises in
the favour of the persons of that locality.
To A- Nuisance create.
To B- Spread disease in that area.
To C- Damage to immovable property through vibration.
In these cases, interest of all the persons are common, but cause of actions are different.
O1R8(2)- The court shall at the plaintiff expense, gives notice of the institutions of suit to all the
persons interested in the suit, either by personal service or by public advertisement (in newspaper
etc).
Que:- Split of cause of action- (O2R2)?

Ans:- O2R2 of code of civil procedure, 1908 lays down that every suit must include the whole of
the claim to which the plaintiff is entitled in respect of the cause of action and where the plaintiff
omits to sue for or intentionally relinquishes any portion of his claim, he shall not afterwards be
allowed to sue in respect of the portion so omitted or relinquished.
Object of O2R2:- The defendant should not be harassed twice for the same cause.
Difference between Resjudicata and Splitting of cause of action

Res judicata Splitting of cause of action
1. Section 11 refers to a plaintiff’s duty to bring O2R2 only requires a plaintiff to claim all
forward all the grounds of attack and reliefs arises from the same cause of action.
defendant’s duty to bring forward all the
grounds of defence.
2. Section 11 refer to both the parties, plaintiff O2R2 refers only to the plaintiff.
and defeudaurt.
3. Section 11 deals only with the matters directly O2R2 deals only with the Reliefs, not with all
and substantially in issue. matters in issue.
Que4. What is a ‘foreign judgement’? How can it be enforced in India? When will Indian
Court not give effect to foreign judgement?
OR
What are the provisions related to conclusiveness of foreign judgement under CPC?
Ans:- If a suit is pending in a foreign court, then it is not a bar in India from trying a suit founded
on the same cause of action. (Explanation of sec. 10)
But Under section 13 of C.P.C, a foreign judgement is conclusive and will operate as a
resjudicata b/w the parties.
Section 13 itself provides 6 exceptions to the general rule mentioned in Section 13.
Acc. to Section 13 a foreign judgement is conclusive as to any matter, if that matter is directly
adjudicated b/w the same parties litigating under the same title, but the above mentioned general
rule is not applicable in 6 cases:-
1. If foreign court is not competent:- It is a fundamental principle of law that the
judgement must be passed by the court which is competent. If the court is not competent,
then the judgement is null and void. If the judgement is null & void, then it is not a
conclusive proof.
2. When foreign judgement not on merits:- A judgement is said to have been given on
merits when after taking evidence and after applying his mind regarding the truth or
falsity of the plaintiff’s case, the judge decides the case, then it is said to be on merits.
e.g.- 1. When the court does not give opportunity to lead evidence, 2.When the court does
not hear both the parties. So, if the judgement not on merits, then it is not conclusive b/w
the parties.
3. When foreign judgement against International or Indian law:- A judgement based
upon an incorrect view of international law or a refusal to recognize the law of India
where such law is applicable, then such judgment is not conclusive. So, that judgement is
unenforceable in India.
4. When foreign judgement opposed to natural justice:- If the judgement of court is
against the principle of natural justice i.e. 1. If the judge is biased, or 2. not act fairly, 3. If
proper notice to the party is not given, or 4. Proper opportunity is not given to the parties
to prove their respective case. Then in such cases foreign judgement is not conclusive.
5. When foreign judgement obtained by fraud:- It is a well established principle of law
that if a foreign judgement is obtained by fraud, then it will not operate as res judicata.
Maxim:- “Fraus et jus nunquam cohabitant” Which means “fraud and justice never dwell
together”.
Leading Case- Satya v. Teja Singh 1975 SC In this case, A husband obtained a decree
of divorce against his wife from an American court by mentioning that he was domicile
in America but the husband was not a bonafide resident or domicile of America and
that’s why he had played fraud on a foreign court by falsely representing himself to be
domiciled of America and hence the hon’ble S.C. of India held that the decree was
without jurisdiction and it is nullity.
6. When foreign judgement founded on breach of Indian law:- Where a foreign
judgment is founded on breach of any law enforced in India, then it would not be enforce
in India. E.g. A foreign court decides a matter which is barred under the law of limitation
in India, then such a judgement is not conclusive.
Section 14- Presumption as to foreign judgemants:- Section 14 of C.P.C. declares that the
court shall presume upon the production of certified copy of a foreign judgement that such
judgement was pronounced by a court of competent jurisdiction. This presumption can be
rebutted by leading evidence by the opposite party.
Case – Narasimha rao v. Venkata lakshmi 1991 SC
Held:- Mere production of a Photostat copy of a decree of a foreign court is not sufficient.
Section 44A- Enforcement of foreign judgement:- A foreign judgement which is conclusive in

section 13 can be enforced in India in the following ways-
1. By instituting a suit:- A foreign judgement may be enforced by instituting a suit on foreign
judgement. In such a suit the court can’t go into the merits of the claim and it shall be conclusive
as to any matter thereby directly adjudicated b/w the same parties. Such suit must be instituted
within a period of 3 yrs. from the date of judgement (Art. 101 of Limitation Act)
2. By instituting execution p/g- Acc. to section 44A, a certified copy of decree of any of the
superior courts or any reciprocating territory has to be filed in a district court. The decree may be
executed in India as if it had been passed by the district court of India.
When a foreign judgement is sought to be executed u/s 44A, then it will be open to the
judgement debtor to take all objections which are open to him u/s 13 of C.P.C.
Foreign judgement & Res judicata:- If a foreign judgement is not fall under any of 6 clauses of
Section 13, but covers the essence of section 13 then it would operate as resjudicata.
Que5. Explain the rule for the place of suing for movable or immovable property.
Ans:- Suit may be of different types. It may be related to movable or immovable property. It may
be based on contract, torts or on matrimonial proceedings. The jurisdiction of a court to entertain
and decide a suit may be restricted by a variety of circumstances. Section 15 to 20 of CPC
regulates the place for the institution of the suit.
Types of Jurisdiction-
1. Pecuniary Jurisdiction
2. Territorial Jurisdiction
3. Subject matter Jurisdiction
1. Pecuniary Jurisdiction- Section 6
If the pecuniary limits related to jurisdiction of court are fixed, then court cannot accept the case
higher than its pecuniary Jurisdiciton.
Section 15:- Place of institution of Suit:- Every suit shall instituted in the court of lowest grade
which is competent to try. Section 15 says provides the rule of practice in regard to jurisdiction
of the court. The object of section 15 is that the courts of higher grade shall not be over burdened
with the suits. But it should be noted that it is only a rule of procedure and therefore exercise of
jurisdiction by a court of higher grade then it is mere irregularity and the decree passed by the
court is not a nullity.
Case- Mazhar Husain and Another v. Nidhi Lal
Allahabad High Court had laid down the objectives of Section 15 of the Code of Civil Procedure,
1908. The objectives which have been observed are provided hereunder:
1. To avoid overburdening of the courts of higher grades with suits;
2. To afford the convenience of the parties and witnesses who may be examined in such
suits.
Gu
2. Territorial jurisdiction- Sections 16 to 20
In order to discuss territorial jurisdiction of a court, the four types of suits that are to be
considered are:
a. Suits in respect of the immovable property (Sections 16-18);
b. Suits in respect of the movable property (Section 19);
c. Suits in respect of compensation for wrongs (Section 19);
d. Other suits (Section 20).
Section 16 - Suits in respect of immovable property

Section16 Clause (a) to (e) Provides that:-
i. Suits for recovery of immovable property.
ii. Suits for the partition of immovable property.
iii. Suits for closure, sale or redemption in case of mortgage of or charge upon
immovable property.
iv. Suits for determination of any other right or interest in immovable property, or
v. Suits for torts to immovable property.
These suits must be filed within the local limits of the courts where the property is situated.
Exception:- Where a suit to obtain relief in respect of immovable property or compensation to
wrong to immovable property is sought entirely through defendant’s personal obedience then suit
also can be instituted in the court within the local limits to whose jurisdiction the defendant
actually and voluntarily resides or carries on business or personally works for gain.
It this section, property means property situated in India.
Section17:- Suit for immovable property situated within jurisdiction of different courts:- A
suit in respect of immovable property which is situated within the jurisdiction of different courts
may be instituted in any court within the local limit of whose jurisdiction any portion of the
property is situated, provided that in respect of the value of the subject matter of the suit, the
entire claim is cognizable by such court.
This section does not bar the parties to bring in successive suits where the properties are situated
in different jurisdiction.
Section.18:- Place of institution of suits where local limits of jurisdiction of courts are
uncertain:-
Where it is uncertain as to within whose jurisdiction of two or more courts, the immovable
property is situated then any one of these courts may try the suit relating to that property, after
recording a statement as for uncertainty.
Section19:- Suit for compensation for wrong to person or movable property:- A suit for
compensation for wrong done to the person or to movable property, may be instituted at the
option of the plaintiff, either in the court within whose jurisdiction the wrong was committed or
the defendant resides or carries on business or personally works for gain. E.g. ‘A’ resides in
Delhi, beats ‘B’ in Calcutta. ‘B’ may sue ‘A’ either in Calcutta or in Delhi for claiming
compensation of that beating.
Section20:- Other suits to be instituted where defendant reside or where of action arises:-
Subject to the above limitations, every suit shall be instituted in a court within the local limits of
whose jurisdiction:-
a. The defendant or where there are more than one defendant, each of them at the time of
commencement of the suit actually reside, carries on business or personally works for
gain, or
b. Any of the defendants at the time of commencement of the suit actually and voluntarily
resides or carries on business or personally works for gain. But the condition in such a
case, either the leave of court is given or the defendant, who does not reside or carry on
business or personally work for gain, allow for such institution, or
c. Where the cause of action wholly or in partly arises.
Explanation:- In case of corporation, it shall be deemed to carry on business at its principal
office or at any place where it has a subordinate office.
Example:- ‘A’ resides at Shimla, ‘B’ at Calcutta, ‘C’ at Delhi. When ‘A’ ‘B’ and ‘C’ were at
Varanasi, B and C took a loan on pronote from A. ‘A’ may sue ‘B’ & ‘C’ at Varanasi where the
cause of action arises. A may also sue at Calcutta where B resides or at Delhi where C resides.
But if the non- resident defendant objects the suit cannot proceed without the leave of the court.
3. Subject-matter jurisdiction
Subject-matter jurisdiction denotes the court’s authority or capacity to decide on problems based
on their nature. Different courts have been given the authority to decide on various forms of
lawsuits. Suits involving insolvency, probate, divorce, and other similar matters, for example,
cannot be decided by a court of civil judge of the junior division. If a court lacks jurisdiction
over the subject matter of action, the decree or judgment issued by the court is null and void.
Q6. Explain the different modes of service of summons.

Ans:- Meaning of summon:- When the plaintiff files a suit then the defendant has to be
informed that the suit has been filed against him and he is required to appear in the court to
defend it. This intimation is knows as summon. The dictionary meaning of ‘summon’ is, “A
document issued from office of a court of justice, calling upon the person to whom it is directed,
to attend before a judge or office of the court for certain purpose”.
Summon to defendant:- Order 5 of C.P.C. deals with the summon to defendant, while Order 16
deals with the summon to witness.
According to section 27 read with the O5R1, when a suit has been properly filed by the
presentation of a plaint, the court must issue summon to the defendant, calling upon him to
appear on a day specified in the summon and to answer the claim of the plaintiff.
If at the time of the presentation of a plaint, the defendant is present and admits the plaintiff’s
claim then no summon is to be issued by the court.
Essentials of summon:- Order 5 Rule 2 says that every summon shall be signed by the judge or
such officer appointed by him and shall be sealed with the seal of the court and must be
accompanied by a plaint.
Appearance of defendant:- A defendant to whom a summon has been issued may appear:-
1. In person, or
2. By a pleader properly instructed and able to answer all material questions relating to the
suit, or
3. By a pleader accompanied by some persons able to answer all such questions.
But the court may order the defendant or the plaintiff to appear in person according to O5R3.
Exemption from appearance in person:-
1. If a person resides outside the local limits of court and distance is not less than 50 miles
or 200 miles where the public conveyance is available.
2. Who is a woman nor appearing in public (Pardanashin Lady).
3. Who is entitled to such exemption under the code, like president, governor etc.
Contents of summon:- The summon must contain a direction whether the date is fixed for
settlement of issue or final disposal of the case. If it is for final disposal, the defendant should
direct to produce his witness. The court must give sufficient time to the defendant to enable him
to appear and answer the case of the plaintiff on the date fixed.
Modes of services of a summon:- Service of summon is very important. It is fundamental rule
of law of procedure that a party must have a fair and reasonable notice of the legal proceeding
initiated against him so that he could defend himself.
C.P.C. provides three modes of service of summon.
1. Personal or direct service:- Order 5 Rule 10 to 16 and 18 deal with the personal service of
summon. For personal service, the following conditions or things must be remembered.
(a) Where it is practicable, the summon must be served to the defendant in person or to his
authorized agent.
(b) Where the defendant is absent from his residence at the time of service of summon and there
is no likelihood that he will be found at his residence within a resalable time and he has no
authorized agent, the summon may be served on any adult male or female member of the
defendant’s family residing with him, but servant is not the family member.
(c) When a suit is relating to any business or work against a person and that person is not
residing within the territorial jurisdiction of the court, the summon may be served to the
manager or agent carrying on such business or work.
(d) If the service of summon cannot be made on the defendant personally and he has no
authorized agent and suit is related with immovable property, the service of summon may be
made on any agent of the defendant who is incharge of the property.
(e) Where there are two or more defendants, service of summon should be made on each
defendants.
In all the above cases, service of summon should be made by delivering the copy of
summon and the defendant or his agent or the person to whom a copy of summon is
delivered, must make an acknowledgment of service of summon. Then the serving officer
must make an endorsement on the original copy of summon, mentioning the time and manner
of service and also the name and address of the person to whom summon has been served
and the witness of the service of summon.
2. Service by Affixation (Rule 17):- (i) Where the defendant or his authorized agent refuses to
sign the acknowledgement, or
(ii) Where the serving officer with due and reasonable diligence cannot find the defendant who is
absent from his residence and there is no likelihood that the will be found within reasonable time
and there is no authorized agent,
Then the service of summon can be made by affixing a copy of summon on the outdoor
or some other conspicuous part of the house in which the defendant ordinarily resides or carries
on business or personally works for gain. After affixing, the serving officer shall return the
original copy of summon to the court who issued summon, stating the facts and circumstance
under which he did so. He shall also mention the name and address of the person who identifies
the house and in whose presence the copy was affixed.
3. Substituted Service or Newspaper Service (O5 R20):- Where the court is satisfied that there
is reason to believe that the defendant avoids service or for any other reason summon cannot be
served, then the service of summon can be made by the following manner:-
(i) By affixing a copy of summon at a conspicuous place of the house in which the defendant had
last resided, carried on business or personally worked for gain. And a copy of summon shall also
be affixed on the notice board of the court.
(ii) In any other manner, as the court thinks fit. Under this method, service of summon can be
made by an advertisement in the daily newspaper, circulating in the locality in which the
defendant lastly resided, carried on business or worked for gain.
Service of summons in particular cases:-
1. Where the defendant resides within the jurisdiction of another state, the summon may be sent
to the court where he resides.
2. Where the defendant is a public officer (Not belonging to India military, navy or Air force)
or a servant of Railway company or local authority, the summon may be served thought the
head of the department.
3. Where a defendant is a soldier, sailor, airman, the court shall send summon for service to the
commanding officer.
4. Where the defendant is in prison, the summon shall be sent to the officer in charge of the
prison.
5. Where a defendant is a corporation, the summon may be served on the secretary or any
director or other principal officer, by sending it by registered post at the registered office of
the corporation or where the corporation carries on business.
6. Where the defendant partner in any firm, the summon should be served upon any one or
more of partners or upon any person having the control of the partnership business.
Que7. What are the consequences of appearance or non appearance of the parties in suit
proceedings?
Ans:- The provisions relating to the consequences of appearance and non-appearance of the
parties are contained under Order 9 of CPC.
Order 9 Rule 1:- Parties to appear on a day fixed in summon:- Rule 1 requires that the
parties to the suit are to attend the court in person or by their pleaders on a day fixed in the
summon for the defendant to appear. The suit shall be heard unless adjournment to a future day
by the court.
Rule 2- The court may dismiss the suit on the day if the summon has not been served upon the
defendant due to failure of the plaintiff to pay the courts fees or postal charges, chargeable for
such service or the presented copies of the plaint or the court can allow the plaintiff to deposit the
postal charges.
Rule 3- where neither the plaintiff nor the defendant appears when suit is called out for hearing,
the court may dismiss the suit.
Rule 4- When the suit is dismissed under R.2 and 3, the plaintiff can get relief under R.4 which
are as follow-
(1) He can file a fresh suit if limitation allows him, or
(2) The plaintiff may also apply for an order to set aside such dismissal and if the court is
satisfied that there was sufficient cause for his non-appearance then the court can restore
the suit and shall pass an order setting aside the order of dismissal of the suit and shall fix
a day for proceeding with the suit.
Rule 6- Where only the plaintiff appears and the defendant does not appear and the service of
summon is proved, the court may proceed ex-parte against the defendant and may pass a decree
in favour of the plaintiff, if the plaintiff proves his case.
Rule 8- Where the defendant appears and the plaintiff do not appear and the defendant does not
admit the plaintiff’s claim, the court shall pass the order of dismissing the suit. But if the
defendant admits the plaintiff’s claim as whole or part, the court will pass a decree against the
defendant upon such admission and shall dismiss the suit for the claim which not admitted.
Rule 9:- If a suit is dismissed under rule 8 for non appearance of the plaintiff then the plaintiff
can get the following relief’s:-
1. He can file a fresh suit if it is permitted by the limitation period.
2. He can apply to set aside the order of dismissal, if the court is satisfied that there was a
sufficient cause for non-appearance, the court may set aside the order of dismissal; and fix a day
for proceedings with the suit. But before setting aside the order dismissal, the notice must be
served to the opposite party.
Remedies in case of exparte decree:- An exparate decree is a decree passed in the absence of
the defendant. Where the plaintiff appears and the defendant does not appear, although the
summon has been dually served to him, the court may hear the suit exparte and pass a decree
against him. The defendant against whom an exparte decree has been passed, has the following
remedies:-
1. O.9 R.13 applies to the court by which decree is passed to set aside it.
2. Section 96(2) to prefer an appeal against such decree.
3. O.47 R.1 to apply for review.
4. To file a suit on the ground of fraud.
Setting aside an exparte decree:- Under O.9 R.13, there are provisions to set aside an exparte
decree passed by the court for an order to set aside to it. If the defendant satisfies the court that-
1. The summon was not dually served, or
2. He was prevented by any sufficient cause for appearance.
The court will set aside the decree passed against him and appoint a day for proceeding with the
suit.
Suficient cause:- The word ‘sufficient cause’ has not been defined in C.P.C. It depends upon the
fact and circumstances. The following are the sufficient cause for the absence.
1. Bonafide mistake as for the date of hearing.
2. Late arrival of train.
3. Inability on account of illness or accident.
4. Mistake of pleader in noting –wrong date in diary.
5. Negligence of next friend or guardian.
Power of Impose condition:- The court has discretionary power for imposing term on the
defendant before it sets aside the exparte decree. The court may order for payment of cost.
Limitation Period:- Application, under rule 13, should be made within 30 days from the date of
the decree or where the summon is not dually served the within 30 days from the date of
knowledge of the decree.
Notice:- No exparte decree can be set aside without notice to the opposite party and without
giving an opportunity of hearing.
Effect of setting aside an exparte decree:- The effect is that the suit is restored and court
should proceed from the stage as it stood before the decree.
Que8. Define the following:-

1. Decree
a. Preliminary and
b. Final
2. Order
Ans:- Decree:- Section 2(2) of the CPC, 1908 defines the term ‘decree’. Decree means “the
formal expression of an adjudication which, so far as regards the court expressing it
conclusively, determines the right of the parties with regards any of the matters in controversy, in
the suit and may be either preliminary or final.”
It shall also include:-
a. Rejection of the plaint (u/O7R11)
b. Determination of any question U/s 144.
But is shall not include:-
i. Any adjudication from which an appeal lies as an appeal from an order, or
ii. Any order of dismissal for default.
Explain the Words used in the definition of Decree:-

1. An adjudication:- To constitute a decision of a court to be a decree, there must be an
adjudication which means a judicial determination of the matter in dispute. Such judicial
determination must be by a court.
2. In A suit:- The word ‘suit’ is not defined in CPC. The privy council in
Case- Hans Raj V/s Dehrardun Mussoorie Electric Tramways Co. defined the term ‘suit’.
According to it, a suit means a civil proceedings instituted by the presentation of a plaint.
3. Rights of the parties as for the matter in controversy:- The adjudication must
determine the right of the parties with regard to all or any of matters in controversy in the
suit. Right means substantive right and not procedural right.
4. Conclusive determination:- Such determination must be of a conclusive nature. In other
words, the determination must be final and conclusive as regards the court which
possessed it. It means an interlocutory order which does not decide the rights of the
parties finally, is not a decree. E.g. refusing an adjournment.
5. Formal expression:- There must be a formal expression of such adjudication. All the
requirements of the form must be complied with, the formal expression must be
deliberate and given in the manner, provided by the law.
Classes of decrees/ Types of Decrees:-
1. Preliminary decree
2. Final decree, and
3. Partly preliminary and partly final decree.
1. Preliminary decree:- Where an adjudication decides the rights of the parties with regards to
all or any of the matters in controversy, in the suit but does not completely, dispose off the
suit, it is preliminary decree. A preliminary decree is passed in those cases in which the court
has first to adjudicate upon the rights of the parties and has then, to stay its hands for the time
being, until it is in a position to pass a final decree in the suit. Preliminary decree are passed
in the following suits:-
1. Suits for possession and manse profits. O. 20 R.12
2. Suits for dissolution of partnership O.20 R. 15
3. Suits for accounts between principal and agent O.20, R.16
4. Suits for sale for mortgage of property etc.
2. Final decree:- A decree may be said to be final in two ways:-
i. When within the prescribed period, no appeal is filed against the decree or the matter
has been decided by the decree of highest court and
ii. When the decree, so far as regards the court passing it, completely disposes the suit.
Finally, decree means which completely disposes the suit and finally settles all the questions in
the controversy between the parties and nothing further remains to be decided thereafter.
Difference between Preliminary & Final decree-
Preliminary Final
1. This decree does not finally dispose 1. It completely disposes off the suit.
off the suit.
2. Preliminary decrees are that in which certain 2. In final decree, nothing remains further
steps are taken, before finally deciding. to be decided.
3. Preliminary decree decides certain matters of 3. It decides all the matter in controversy.
controversy.
4. By preliminary decree, it is decided what is to 4. By final decree, nothing is left to be done

be done. further.
5. It is not depend on final decree. 5. It depends upon preliminary decree.
3. Partly preliminary and partly final decree:- A decree may be partly preliminary and partly
final. E.g. in a suit of possession of immovable property with mense profit, the court passes
decrees-
i. Decree for the possession of the property.
ii. Directs an inquiry into the mense profits.
The former part of the decree is final, while the later part is only preliminary because the final
decree for mense profits can be drawn only after enquiry and when the amount due is
ascertained. In such a case even though the decree is one, but it is partly preliminary and party
final.
Order:- Section 2(14) of CPC defines the word ‘Order’ which means the formal expression of
any decision of a civil court and which is not a decree. Thus, the adjudication of a court which is
not a decree, is an order.
Relation between decree and order:-
i. Both relate to matters in controversy.
ii. Both are decisions given by a court.
iii. Both are adjudication of a court of law.
iv. Both are formal expressions of a decision.
Distinction between Decree and Order:-

i. A decree can only be passed in a suit which is commenced by presentation of plaint. But
order can be passed only on application.
ii. The decree conclusively determines the rights of the parties with regard to all or any of
the matters in controversy, but order determines merely procedural rights.
iii. A decree maybe preliminary or final or partly preliminary or partly final, but there can’t
be preliminary order.
iv. In suit there is only one final decree, but in a suit or proceedings, number of orders may
be passed.
v. Every decree is appealable, unless otherwise expressly provided, But order is not
appealable and only those orders are appealable which are specified in CPC.
vi. A second appeal lies to the H.C. on certain grounds from the decree passed in first
appeal. It means there may be two appeals in case of decrees, whereas no second appeal
lies in case of appealable orders.
Que. Explain Decree Holder.

Ans:- Section 2(3) of CPC defines the word “Decree” holders means any person in whose
favour, a decree has been passed or an order capable of execution has been made.
From this definition, it is clear that a decree holder needs not, necessarily, be the plaintiff. A
person who is not a party to the suit, but in whose favour an order which is capable of an
execution, has been passed is also a decree holder.
Que. Judgment Debtor [Section 2(10)]

Ans:- The word ‘judgment debtor’ means any person against whom a decree has been passed, or
an order capable of execution has been made. Where the decree is passed against a surety he is a
judgment debtor within the meaning of this section. On the other hand, a person who is party to
the suit, but no decree has been passed against him, is not a judgment debtor.
Que9. Explain the procedure of filing a suit by or against Govt. or Public Servant.
Ans:- Suit may be divided into two classes:-
1. Suits in general
2. Suits in particular cases.
Suit in particular cases is a suit by or against govt. Section 79 to 81 and Order 27 explain the
procedure in case of suit by or against govt.
Title (Section 79):- In a suit by or against the govt., the authority, to be named as plaintiff or
defendant as the case may be, shall be:-
a. In the case of suit by or against the central govt., the ‘Union of India’, or
b. In the case of a suit by or against the state govt., the ‘State’ e.g. ‘State of Punjab’
Notice (Section80):- In an ordinary suit, notice need not to be given to the defendant by the
plaintiff, before filing the suit. But such notice is a condition precedent before filing a suit
against the govt. or against the public servant in respect of any act purporting to be done by such
public officer in his official capacity, except an urgent or immediate relief is required to be
obtained. No suit can be filed, until the expiration of two months, next after such notice in
written which has to be delivered or left at the office of-
1. In the case of suit against central govt. except where it is railways, a secretary to that
govt.
2. Where it relates to railways, the general manager of that railway.

3. When the suit is against state of J & K, the chief secretary of that govt. or any other
officer authorized by that govt.
4. In the case of a suit against any state govt., the collector of the district.
5. In Suit against public officer, to that officer.
Object of notice:-
The object of notice is to give the govt. or the public servant an opportunity to reconsider his
legal position and to enable them to settle the claim out of the court.
Essential requirements of notice:-
A notice under Section 80 should contain:-
1. Name, description and place of residence of the plaintiff.
2. A statement of the cause of action.
3. A statement of the relief claimed.
It says that a suit against the govt. shall not be dismissed merely by any technical defect or error
in the notice or any irregularity in the service.
Urgent or Immediate Relief:- Section 80(2) provides that a suit might be instituted with the
leave of the court, for obtaining an urgent relief against the govt., without serving a statutory
notice. But in such case, the court shall not grant relief in the suit whether interim or otherwise,
except after giving to the govt. or public officer a reasonable opportunity of showing cause in
respect of the relief prayed in the suit.
In computing the period of limitation for institution of the suit, the period of notice, u/s 80, must
be excluded.
The plaint must be filed after the expiry of two months of notice and it shall contain this
statement that the notice u/section 80 has been so delivered (If the plaint does not contain this
statement, it is the duty of the court to reject the plaint.)
Procedure Order 27 Rule 1:- In any suit by or against the govt., the plaint or written statement
shall be signed and verified by any person appointed by the govt. who is acquainted with the
facts of the case.
Order 27 Rule2- Persons authorized to act for the govt., shall be deemed as recognized agents
and they can appear in the court.
O27 R3- In suit by or against the govt. in the plaint, the plaintiff must be named according to the
provision of Section 79.
O27 R4- If in any court, there is a govt. pleader, then the govt. pleader is the agent of the govt.
for the purpose of receiving summons.
O27 R5- provides that when a suit is filed against a public officer, a reasonable time should be
given to the govt. or public officer to file the written statement. Reasonable time will be such so
that the person for filing the writing statement may take direction from his department.
Order 27 Rule 6:- says that in a suit against the govt., a person is not appeared with the govt.
pleader who can reply the question then the court shall issue directions that such competent
person must appear before the court.
Order 27 Rule 7:- provides for extension of time to enable the public officer to make reference
to govt. where he is the defendant.
Special Exemption Section 81:- It says that in a suit filed against a public officer in respect of
any act purporting to be done by him, within his official capacity,
a. The court shall exempt him from appearing in person, if it is satisfied that he cannot
absent himself from his duty without detriment to the public service.
b. The public officer shall not be arrested.

c. His property shall not be liable to be attached in execution of decree.
Execution of Decree Section 82:-
The decree against the govt. shall be executed according to the procedure explained in section
82. No execution shall be issued on any such decree, unless the decree remains unsatisfied for
the period of three months computed from the date of such decree.
Que10. Explain the Interpleader suit (Section 88 and Order 35).

Ans:- Introduction:- In majority cases, there is a dispute between the plaintiff and the
defendant. An interpleader suit is a suit in which the real dispute is not between the plaintiff and
the defendant, but the dispute is between the defendants only and the plaintiff is not really
interested in the subject matter of the suit. In an interpleader suit, the defendants plead against
each other, instead of pleading against the plaintiff.
An interpleader suit is a legal action initiated by a person or entity holding property, funds, or
assets that are claimed by two or more conflicting parties. An interpleader suit is filed when the
party holding the property has no interest in it, except for potential charges or costs and seeks to
avoid liability or multiple lawsuits. For instance where ‘A’ holds a total of Rs 10,000, which ‘B’
and ‘C’ both claim against each other. ‘B’ and ‘C’ are brought to court by ‘A’ in an interpleader
suit.
Section 88 says that where two or more persons claim adversely to each other the same debt sum
of money or other property, movable or immovable from another person who does not claim any
interest in it, except the charges or cost and is ready to pay or deliver it to the rightful claimant,
he may file an interpleader suit.
Conditions of Interpleader Suit:-
1. There must be sum debt, some of money or other property, movable or immovable in
dispute.
2. Two or more persons must be claiming it adversely to one another.
3. The person from whom such money or property is claimed, has no interest in the
property, except the charges and cost and he must be ready to pay or deliver it to the
rightful claimant.
4. There must be no suit pending in which the rights of the rival claimant can be properly
decided.
Procedure of Interpleader Suit (Order 35):- In every interpleader suit, the plaintiff must state
the following things in addition to other statements necessary to the plaint.
i. That the plaintiff claims no interest in the subject matter in dispute, other than the
charges and costs.
ii. The claim is made by the defendant severally.
iii. There is no conclusion between the plaintiff and any of the defendants.
When interpleader suit is filed, the court may order the plaintiff to place the things claimed in the
custody of the court.
At the first hearing, the court may declare that the plaintiff is discharged from all the liabilities
and award him cost and dismiss him from the suit or if its thinks that for justice or convenience,
it is required that it can retain all the parties, until the final disposal of the suit.
After hearing the parties and on admission of the parties or evidence, the court enables to do, so
may adjudicate the title of the thing. If the court is able then the court may direct that the issues
between the parties to be framed and in place of the original plaintiff, when he is discharged, any
of the claimant defendants, made as plaintiff and shall proceed to try the suit in ordinary manner.
Who can not file an interpleader suit (Order 35 Rule 5):- An agent cannot sue his principal or
a tenant can’t sue his landlord. The reason is that an agent can not dispute the title of his
principal or a tenant can’t dispute the title of his landlord, during the subsistence of the relations.
Example:-
1. ‘A’ deposits a box of jewels with ‘B’ as his agent. ‘C’ alleges that the jewels were
wrongful obtained from him by A, and claims from B. B cannot institute an interpleader
suit against A and C.
2. ‘A’ deposits a box of jewels with ‘B’ as his agent. He then writes to C for the purpose of
making the jewels a security for a debt due from himself to C. ‘A’ afterwards, alleges that
C’s debt is satisfied and C alleges the contrary. Both claim the jewels from B. B may
institute interpleader suit against A and C.
Que11. Explain the provision relating to pauper suit or a suit by indigent (Poor) person.
Ans:- Suit by Indigent person (Order 33):-
(a) Object:- The provisions of order 33 are intended to enable the indigent person to institute a
suit without payment of court fees. Generally, a plaintiff who files a suit in court of law is
bound to pay the court fees prescribed under the court fees Act, at the time of presentation
of the plaint. But if a person is too poor and unable to pay the required court fees, this Order
33 exempts such person from court fees at the 1st instance and allows him to file a suit in
‘forma pauperis’, provided that he satisfies certain conditions laid down in this order.
(b) Definition of Indigent person (Explanation I):- A person is an indigent person if:-
i. He is not possessed with sufficient means which enable him to pay the court fees
prescribed by law for the institution of such suit or
ii. Where no such fees in prescribed, then if he is not entitled to property worth one
thousand rupees.
In both the cases, the property which is exempted from attachment in execution of a decree under
Section 60 and the subject matter of the suit (Disputed property), should be excluded.
Explanation II:- Provides that the property acquired by the applicant, after the presentation of
the application for permission to sue as an indigent person and before the decision, should also
be taken into consideration for deciding the question whether the applicant is an indigent person
or not.
(c) Application:- The application for permission to sue as an indigent person, shall contain the
following particulars.
i. The particulars required with regard to plaint in suit.
ii. A schedule of any movable or immovable property of the applicant with estimated
value.
iii. Signature and verification as provided under Order 6 Rule 14 and 15.
The application should be presented by the applicant to the court in person, unless personal
appearance is exempted by the court. Where there are two or more plaintiffs, the application can
be presented by any of them.
Case- Vijay Partap Singh V/s Dukh Haran Nath 1962
The S.C. held that in forma pauperis the suit commences from the movement of the application
to sue as an indigent person is presented.
(d) Enquiry:- The applicant is indigent or not this question shall be decided by the court. The
court shall make initial enquiry into the means of the applicant either by chief ministerial
officer of the court or by the court itself. The court may examine the applicant or his agent
regarding the merits of the claim.
(e) Rejection of applicant (O.33 R.5):- The court will reject the application for permission to
sue as an indigent person in certain cases which are:-
a. Where the application is not properly framed and presented and the full particulars are
not given or where the application is not presented by the proper persons,
b. Where the applicant is not an indigent person,
c. Where he has, within two months next before the presentation of the application,
disposed of any property fraudulently, shall be enable to apply for permission as an
indigent person. But the court shall not reject the application if after taking that property
into account the applicant is still entitled to sue as an indigent person,
d. Where his allegation do not show a cause of action, or
e. Where the applicant make any agreement with reference to the subject matter of the suit
with any person and that person has obtained an interest in the subject matter, or
f. Where the allegation, made in the application, shows the suit would be barred by any law
for the time being in force, or
g. Where any person has made an agreement with applicant to finance the litigation.
Where the application is not rejected the court shall fix a day for receiving evidence in proof or
disproof as indigent person. It shall fix a day and issue a notice to the opposite party and the
govt. pleader and also hear the arguments. The court then either allows or refuses to allow the
applicant to sue as an indigent person. The order of refusal shall be bar for subsequent
application but the applicant may sue in ordinary manner.
Where the application is granted, it shall be numbered and registered and shall be deemed to be a
plaint in the suit and the suit shall proceed in the ordinary manner, except the plaintiff shall not
be liable to pay any court fees or process fees.
(f) Disappearing:- Rule 9 explains three grounds under which permission to sue as an indigent
person may be revoked to the applicant.
1. If he is guilty of vexatious or improper conduct in the case of the suit.
2. If it appears that his means are such that he should not be allowed or continued to sue as
an indigent person.
3. If he has entered into an agreement with another person and that person has obtained an
interest in the subject matter of the suit.
(g) Realization of court fees:- The permission to sue as an indigent person does not means that
the person is exempted from payment of court fees. The court fees in merely postponed.
Rules of Order 33 are intended to secure to the govt. to recover the court fees.
1. If the indigent person succeeds in the suit, the amount of court fees shall be recoverable
by the state govt. and shall be the 1st charge on the subject matter of the suit.
2. If he fails in suit, the court fees shall be paid by him.
3. If the suit abates due to the death of the plaintiff, the court fees shall be recovered from
the estate of the deceased plaintiff.
The collector shall recover the amount of court fees.
Que. Friendly Suit (Special Case).

Ans:- Order XXXVI and Section 90 of CPC deals with Special Case which is also known as
friendly suit. A friendly suit is a suit where the parties do not approach a court by presentation of
a plaint as is done in ordinary civil litigation. However, they are interested in the decision of any
question of fact or of law. For the said purpose, they enter into an agreement in writing stating
such question in the form of a case for the purpose of obtaining the opinion of the court. The
court may decide the question if it is satisfied that such question is 'fit' to be decided.
Order 36 provides procedure to the followed in friendly suits. Rules 1 and 2 provides the
contents of an agreement. Such agreement duly entered into between the parties should be filed
in the court having jurisdiction to entertain the suit. It shall be registered as a suit and shall be
heard and disposed of by a judgement which will be followed by a decree. Thus, the decree is a
consent decree. No appeal lies against such decree.
Que. Suit of Public Nuisance.

Ans:- Section 91 of CPC provides the procedure of suit relating to public nuisance. In case of
public nuisance suit may be filed by the advocate general or by two or more persons with the
leave of the court. A Suit relating to public nuisance may also be filed by a private person if he
has sustained special damage.
Remedies available against Public Nuisance -
1. A person who commits a public nuisance may be punished under the Indian Penal Code.
2. A suit can be instituted for declaration, Injunction or other appropriate relief without proof
of special damage.
Que. Suit relating to Public Charities.

Ans:- Section 92 of CPC provides the procedure of suit relating to Public Charities. In order to
attract the application of the section the following four conditions are necessary:-
(1) There must be a trust, express or constructive, for public purposes of a charitable or religious
nature;
(2) The plaint must allege a breach of trust or necessity for direction as to administration of that
trust;
(3) The suit must be in the interests of the public, i.e., it must be brought in a representative
capacity for the benefit of the public and not to enforce individual rights; and
(4) The relief claimed should be one of the reliefs set out in the section.
Grant of leave to file a suit is a condition precedent. The provisions of S.92 are mandatory in
nature.
Que. What do you mean by Abatement of Suit?

Ans:- Order 22 of CPC deals with the abatement of suit and its effects. Abatement of a suit
means ending of a suit before final adjudication. Abatement of a suit can happen under various
grounds.
Grounds of abatement:-
1. Death of a party
Generally all suits and actions must be prosecuted by or against living parties. One of the
parties death can result in abatement of a suit, if there is no right of surviving interest on
the heirs of the dead over the issue in dispute. However, a suit can be revived if the heirs
have a right of action over the dispute.
2. Marriage of a party- Generally suit does not abate on the marriage of a female party.
3. Insolvency of party- If assignee or receiver declines to continue the suit, only then court
abates the suit, otherwise not.
Effect of abatement:- Order 22 Rule 9 says that where a suit abates or is dismissed under this
Order, no fresh suit shall be brought on the same cause of action.
Que. Suits by or Against Minors and Lunatics (Order 32)

OR
Write Short note on 'suit by or against minors or persons of unsound mind'.
Ans:- Order XXXII CPC has been enacted to protect the interest of minors and lunatics (person
of unsound mind) and to ensure that they are represented in a suit by a person who is qualified to
act as such. Owing to his want of capacity and judgment, a minor/lunatic is disabled from
binding himself except where it is for his benefit. A decree passed in favour of minor/lunatic
without appointment of a guardian is not nullity but a decree passed against a minor/lunatic
without appointment of guardian is a nullity.
Suits by Minor: Rules (1 to 2A) - Under these provisions, a suit by a minor should be instituted
in his name through his next friend. Under rule 2A, the Court has power to order the next friend
to furnish security for costs of defendant. The object is to discourage vexatious litigation by the
next friend of minor.
Rule 3 - where a suit is instituted against a minor the Court should appoint a guardian ad litem to
defend the suit. The appointment of such guardian is for throughout the proceedings unless it is
terminated by retirement, removal or death of such guardian.
Qualifications as to be a Guardian or Next Friend (Rule 4)
Any person who is competent in law to make a contract or who has attained majority and is of
sound mind, may act as a guardian or next friend, provided that his interest is not adverse to that
of minor, nor who is an opposite party in the suit and who has given his consent in written to act
as a guardian or next friend.
Power and Duties of a Guardian/Next Friend (Rules 5-7)
(1) In all suits to which a person is appointed as a guardian/next friend can, without the leave of
the Court, receive any amount, movable property by way of compromise.
(2) He cannot enter into any agreement or compromise on his behalf (minor's) in the suit.
Retirement, Removal or Death of such Guardian/Next Friend (Rules 8-11)
(1) A next friend cannot retire without procuring a fit person for substituting him. (Rule 8)
(2) The Court may remove a next friend in the following circumstances, if:
(i) his interest is 'adverse to that of a minor'; or
(ii) he is so connected with the defendant as to make it unlikely that the minor's interest will
not be protected by him; or
(iii) he does not do his duty; or
(iv) he ceases to reside within India during the pendency of a suit; or
(v) for any other sufficient cause.
On retirement, removal or death of a guardian or next friend, further proceedings in the suit shall
remain stayed until another competent guardian/ next friend is appointed. (Rule 10)
Que. What is the nature of right to appeal?

Ans:- According to the Code of Civil Procedure, 1908, when a party is aggrieved by the decree
passed by the court, he can approach the superior court by way of appeal, against the decree
passed by the trial court. Generally, under appeal, the whole dispute is re-heard by the appellate
court. The word appeal has no where defined in the Code of Civil Procedure. The term appeal
means the judicial examination by a higher court of the decision of an inferior court.
Appeal is a statutory right which means appeal can only be filed where the right to file appeal is
given by statute.
Scope of section 96-
1. An appeal can be filed from decree of the court.
2. An appeal can be even from an ex-parte decree.
3. No appeal lies from a consent decree.
4. No appeal lies from a decree in any suit cognizable by a small cause court if the value of
the subject matter of the original suit which does not exceed Rs. 10,000.
An appeal lies under section 96 only from a decree and does not lie from a mere
finding. Section 104 of the CPC provides the list of cases where the appeal can be filed
from orders.
Que. Reference?
Ans:- Reference is dealt under Section 113 of the CPC. It mentions that a subordinate court can
refer a doubt to the High court where the subordinate court thinks that there should not be
misinterpretation with regard to any law. This is called a reference. No party to the suit has the
right to apply for reference. It is only the subordinate court which has the power of reference
suo-moto (on its own motion) when there is doubt regarding the validity of any legal provision.
For matters other than the validity of legal provisions, the court is not bound to refer to the High
court. So, when the court feels that it needs clarification regarding any matter which is pending,
it can seek an opinion from the High court to avoid the commission of errors while rendering a
judgement.
Essentials of Reference:-
1. A question as to the validity of any act, rule, regulation, ordinance, etc., arises in the court
where the suit is being entertained,
2. The court is of the opinion that such act or any other provision of law is invalid or
inoperative,
3. Such question on the provision of law is never before made invalid either by the High
court or Supreme court, and
4. It is pertinent for determining the validity of such provision of law for disposal of the
suit.
Order 46 of CPC deals with the Procedure of Reference:-
The court making a reference may either stay the proceedings or pass a decree contingent upon
the decision of the High Court on the point referred, such decree or order not being executable
until the receipt of a copy of the judgment of the High Court upon the reference. (Order XLVI,
Rule 2).
Que. Difference between Appeal and Reference?

Ans:- The following are the differences between appeal and reference-
1. The power of reference is vested in the court. The right to appeal is the right which has
been conferred to the parties.
2. Reference can always be made to the High Court. An appeal can be made to any court
which superior and it does not need to be only High Court.
3. The grounds for reference are a substantial question of law and it is narrower. The
grounds of appeal are much wider than grounds for reference.
4. Reference can be made only when the suit, order or execution is pending. An appeal can
be filed only after the decree is passed or appealable order has been made by the
subordinate court.
Que. Review?
Ans:- A review is mentioned under Section 114 of the CPC. An aggrieved party can file an
application for review in the same court where the decree has been passed. This provision
enables the court to review its own judgement in case of any error or mistake made with regard
to the decision rendered, to rectify the same. While Section 114 is a substantive right, the
procedure for the same has been provided for under Order 47 of the CPC.
The application for Review can be filed under the circumstances where:
1. a decree or order is appealable as provided by the law, but no such appeal has been
preferred, or
2. there is no provision for appeal from certain decree or order, or
3. a decision is passed by the court of Small Causes.
The grounds for filing review application are:
1. discovery of new facts when there is no knowledge about the same or could not produce
the same prior to the time when the decree was passed, or
2. the error apparent on the face of the record, or
3. any other sufficient grounds as provided by the Code, wherein the misconception of the
court can be considered as sufficient ground.
Limitation Period:- The application for review shall be filed within 30 days from the date of
order/decree. The order or decree passed after such review shall be final and in force.
Que. Difference between Appeal and Review?

Ans:- The following are the differences between appeal and review-
1. Where an appeal has been preferred a review application does not lie. But an appeal may
be filed after an application for review.
2. The primary intention of a review is the reconsideration of the object of the suit by the
same Judge under certain conditions, while an appeal is a re-hearing by another court or
tribunal.
3. A point which may be a good ground for an appeal may not be a good ground for an
application for review, e.g., an erroneous view of evidence or of law is no ground for a
review though it may be a good ground for an appeal.
Limitation Act, 1963
Que. What are the rules relating to extension of limitation period under limitation act on
the ground of legal disability?
Ans:- Section 6 to 8 of Limitation Act, 1963 provide the principle of legal disability. To apply
Section6 (1), the following condition are necessary:-
1. That the person is entitled of file a suit or for the execution of a decree.
2. That such person is suffering from legal disability at the time from which the limitation
period is to be counted. That means he is a minor, insane or idiot.
He may institute the suit or make the application within the prescribed period after the disability
has ceased.
Section 6(2)- Suffering from two disabilities:- Where such person is effected by two such
disabilities or where before his first disability has ceased but he is effected by another disability,
he may institute the suit after the both disabilities have ceased.
E.g- ‘A’ gets the rights of filing the suit on 1.1.1993. At that time, he is of the age of 17 yrs. On
31st Dec. 1993. ‘A’ becomes insane. In these conditions, the time of limitation will not start till
‘A’ ceases to be effected from both the disabilities.
Explanation:-for the purpose of this section minor includes a child in the womb.
Que. Once time has begun to run, no subsequent disability can stop it, explain this and also
explain its exceptions?-
Ans:- Section 9 of Indian limitation act provides a principle. According to it, where once time
has begun to run, no subsequent event can stop. This section is derived from English law.
Section 9:- “where once time has begun to run, no subsequent disability or inability to institute a
suit or make an application, stops it”.
The above principle says that no subsequent disability or inability can stop the period of
limitation, as soon as the cause of actions arises. The test of this is that it must be ascertained that
at what time the plaintiff can firstly file a suit.
It means on the date when the cause of action arises the plaintiff is not under any disability and
then the period of limitation starts against him.
e.g- ‘A’ gets the rights of filing the suit on 1.1.1993. At that time, he is of sound mind. On
1.3.1993 ‘A’ becomes insane. Now the question arises whether the period of limitation will stop.
The answer is that the provision of Section 9 will apply and the time will start from 1.1.1993 and
the subsequent disability of unsoundness of mind will not stop it.
Exception:- It means when the period of limitation will be suspended:-
When the letters of administration to the estate of a creditor have been granted to his debtor, the
running of time in favour of such debtor is suspended for so long as the administration continues.
e.g. A is creditor and B is the debtor. The letter of administration to the estate of ‘A’ is the
granted to B. the time will remain suspended till the administration continues.
Que. What are the essential elements of a valid acknowledgement? What are the effects of a
valid acknowledgment? OR
In what circumstances a valid acknowledgment extends the period of limitation?
Ans:- Acknowledgement:- Section 18 of Indian limitation Act provides the provisions relating
to effect of acknowledgement. In writing for a valid acknowledgement, the following are the
essential elements-
1. In written form:- It is necessary for a valid acknowledgement that it should be in
written. Oral acknowledgement is not valid.
2. Before expiry of limitation period:- According to Section 18, acknowledgment must be
before the expiry of the limitation period. If the acknowledgement is made after the
expiry of limitation period, it has no value.
3. Signed:- Acknowledgement must be signed. Unsigned acknowledgement is not an
acknowledgement. The word ‘signed’ means signed either personally by the person
against whom there is a liability or by an agent dually authorized to sign the
acknowledgement.
4. The acknowledgement must be made by the party against whom the right is then claimed
or by any person through whom he derives his title or liability.
5. The acknowledgement must be an acknowledgement of liability:- It is not necessary
that the acknowledgement must contain a promise to pay. An acknowledgement will be
sufficient even though-
i. It is coupled with refusal to pay, or
ii. With a statement the time for payment has not yet arrived.
6. The acknowledgement is not requires to be made to the creditor or the person entitled to
the right or the property. It may be to any person, even to one who has no connection
with the creditor.
Effects of valid acknowledgement:-
Acknowledgement extends the period of limitation, but it does not create a new right.
Que. Law of limitation bars the remedy but does not extinguish the right. Explain.
Ans:- Under limitation Act if the right to recover the debt is time barred then the remedy is also
time barred. The claimant cannot go to court of law and institute a suit upon it. But though in
such cases, the remedy is barred but the right exists, so that if the debtor pays money to a
creditor, the creditor may appropriate it, and debtor cannot recover back the amount on the
ground that the time was barred.
Limitation Bars Remedy:- Section 3 lays down the general rule that if any suit, appeal or
application is brought before the Court after the expiry of the prescribed time then the court shall
dismiss such suit, appeal or application as time-barred. The law of limitation only bars the
judicial remedy and does not extinguish the right. In other words, It means that the statute of
limitation prescribes only the period within which legal proceedings have to be initiated. It does
not restrict any period for setting up a defence to such actions. Hence, the original right to suit is
not barred. However, Section 27 is an exception to this rule.
Case- Punjab National Bank and Ors v. Surendra Prasad Sinha
The Supreme Court in this case held that the rules of limitation are not meant to destroy the
rights of the parties. Section 3 only bars the remedy but does not destroy the right which the
remedy relates to.
Case- Bombay Dyeing and Manufacturing v. State of Bombay

Held- It was held that the statute of limitations only bars the remedy but does not extinguish the
debt.
Exceptions:- Exception to this rule means in case the circumstances under which not only the
remedy but the right is also extinguished.
Section 27 is an exception to this rule. It talks about adverse possession. Adverse possession
means someone who is in the possession of another’s land for an extended period of time can
claim a legal title over it. In other words, the title of the property will vest with the person who
resides in or is in possession of the land or property for a long period. If the rightful owner sleeps
over his right, then the right of the owner will be extinguished and the possessor of the property
will confer a good title over it. Section 27 is not limited to physical possession but also includes
de jure possession. As per the wordings of this Section, it applies and is limited only to suits for
possession of the property.
So according to Section 27, if the suit is not brought in time to obtain the possession, then not
only the remedy is barred but also the right is extinguished.
Essentials of section 27:-
1. The suit must be for the possession of the property.
2. Possession must be adequate.
3. The person filing the suit, must be entitled to file a suit, but he has not filed the suit in a
prescribed period.
4. The defendant must be in adverse possession of the property. The possession must be
actual and must be a period of 12 years.
5. The actual owner of the property files the suit after the expiry of the period of limitation
then the actual owner loses the remedy and also the right.
6. The Possession cannot be adverse if its commencement can be referred to lawful title.
Case- Fakirappa vs Wingappa

In this case, Court held that 12 years of adverse possession of Land by a wrongdoer not only bars
the remedy and extinguishes the title of the rightful owner, but confers a good title upon the
wrongdoer.
Que. What is the difference between ‘period of limitation’ and ‘prescribed period’?
Ans:- Section 2(j) of the Limitation Act, 1963 defines the terms ‘period of limitation’ as well as
‘prescribed period’.
‘Period of limitation’ refers to the time period which is prescribed for any suit, appeal or
application by the Schedule of the Limitation Act, 1963. E.g. one year, three year etc.
‘Prescribed period’ refers to the period of limitation computed according to the provisions of
the Limitation Act.
Que. What are the rules of computation of period of limitation (Section 12 to 24)?
Ans:- Exclusion of Time:- Section 12 to Section 15 of Limitation Act, 1963 deals with the
exclusion of time.
Section 12 talks about the time that has to be excluded for computing time of limitation in legal
proceedings.
The following time has to be excluded from computing the period of limitation:
1. The day on which the period of limitation for any suit, appeal or application has been
reckoned.
2. In case of an appeal or an application for leave to appeal/revision/review of a judgment:
Time requisite for obtaining a copy of the judgement.
3. In case of decree or order is appealed from or sought to be revised or reviewed or an
application for leave to appeal from a decree:
i) The day on which the judgment complained of was pronounced.
ii) Necessary time taken for obtaining a copy of the decree, sentence, order appealed from
or sought to be revised or reviewed.
4. In case of application to set aside an award: Time requisite for obtaining a copy of the
award.
Explanation to this Section states that in computing the time necessary for obtaining a copy of
the decree or orders the time taken by the court to prepare the decree or order before an
application for a copy of the decree or order is made shall not be excluded.
Section 13- where an application for leave to sue or appeal as a pauper (indigent) has been made
and rejected, the time spent by the applicant in prosecuting in good faith shall be excluded.
Section 14- If a party is proceeding in good faith in a court without jurisdiction any suit or
application the time spent by the party should be prosecuting another civil proceeding with due
diligence and that prosecution shall be in good faith shall be excluded.
Section 15- The following time shall be excluded:
1. The day of the issuance and withdrawal of the stay order or injunction.
2. In case where a previous consent or sanction of the government is required – the time
spent on obtaining the consent or sanction.
3. In case of proceedings for winding up of a company- the time during which the receiver
or liquidator was appointed.
4. In case of a suit for possession by a purchaser at a sale in execution of decree- the time
during which proceeding to set aside sale has been prosecuted.
5. The time during which the defendant is absent from India and under territory outside
India under the administration of the Central Government.
Postponement of Limitation:- Postponement of limitation means extending the period of
limitation. Section 16 to 23 of the Act deals with the postponement of limitation.
In the following cases the period of limitation will not begin to run:
Section 16: where a person having the right to sue or make an application has died before the
right accrues or right accrues only on the death of that person- the period of limitation will be
computed from the time when there is a legal representative who is capable of instituting.
Section 17: Where the suit or application is based upon fraud, mistake or concealment by fraud-
the period of limitation will not start unless the plaintiff or applicant has discovered the fraud,
concealment or mistake.
Section 18: In case of an acknowledgment of liability in respect of any property or right-a-fresh
period of limitation will be computed from the time acknowledgment was signed.
Section 19: where payment on account of a debt or of interest on legacy- a fresh period of
limitation will be computed when payment was made.
Section 20: Section 20 is only a further explanation of section 18 and section 19. It says that
under a disability the expression ‘agent duly authorised’ will include the lawful guardian,
committee, manager or agent duly authorised by such guardian, committee or manager.
Section 21: Where a new plaintiff or defendant is added or substituted after the institution of
suit- the suit will be deemed to be instituted when he was so made the party. However, if the new
plaintiff or defendant was added due to a mistake in good faith and the Court is satisfied, the suit
shall be deemed to have been instituted on an earlier date.
Section 22: Where there is a continuing breach of contract or tort – a fresh period of limitation
will start at the moment when the breach or tort continues.
Section 23: In case of suits for compensation for acts not actionable without special damage-
limitation period will start from the time when the injury occurs.
Section 24: Computation of time mentioned in instruments- All instruments shall for the
purposes of this Act be deemed to be made with reference to the Gregorian calendar.
Que. Explain the circumstances and grounds upon which extension of period is allowed U/s
5 of limitation act?
Ans:- Under Limitation Act 1963, certain limitations of period are prescribed to file a suit,
appeal or application. But U/s 5 of limitation Act, an appeal or application other than order 21 of
CPC, may be admitted after the prescribed period.
Section 5- any appeal or any application (which is not under order 21) admitted after the
prescribed period, if the appellant or applicant satisfies the court that he has sufficient cause for
not preferring the appeal or making the application within such period.
The following are the special circumstances under which condonation to delay is allowed:-
1. That the appellant or applicant was misled by any order of high court in ascertaining the
prescribed period, then it is a sufficient cause within the meaning of this section.
2. Illness:- Mere illness is not a ground of condonation of delay, but if the illness is of the
serious nature then it is a sufficient cause.
3. Poverty:- Mere poverty, is not a sufficient cause.
4. Mistake or ignorance of law:- Ignorance of law cannot be recognized as sufficient cause,
but if the mistake is bonafied, it will be considered.
5. Mistake of council:- A mistake of council is, no doubt, a good ground for extension of
time under section 5 of the limitation act but the mistake must be bonafied.
Que. What are the objects of limitation act and salient features of Limitation Act, 1963?
Ans:- The objects of the Limitation Act, 1963 are-
1. There should be an end to litigation somewhere.
2. Law assists vigilant and not those who sleep over their rights.
3. A case may be thrown out for unexplained delay.
4. To extinguish the unlimited threat of litigation creates insecurity, uncertainty.
Purpose of Limitation Act- Limitation bars remedy but does not destroy the rights.
SALIENT FEATURES OF LIMITATION ACT-

1. Exhaustive Law: The Limitation Act is an exhaustive law with respect to all the matters
expressly provided in it. It is complete in itself.
2. Adjective Law: The Limitation Act is an adjective law. Being an adjective law, it provides for
both the substantial and procedural features of any statute. But, it is more of procedural law.
3. Only applicable to civil cases: The Limitation Act applies only to civil matters.
4. Prospective as well as a retrospective effect: Section 31 of the Limitation Act provides for
the retrospective and prospective effect of the Act.
5. Only applicable to suits, appeals and applications: Section 3 of the Limitation Act provides
for the bar of limitation, which means that the Limitation Act only applies to suits, appeals, and
applications
Section 3- Bar of Jurisdiction- If the suit is not filed within the time limit as prescribed in the
provision, such suit shall not be admitted, but can be admitted under the provisions of S.4 to
S.24.
Section4- Expiry of prescribed period when court is closed- Where the prescribed period for
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 date when the court reopens.
Explanation: A court shall be 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.
For example- Limitation period expires on Sunday 07/07/2023. He did not file the case till
06/07/2023 and he cannot file the case on 07/07/2018 as it is Sunday so he can file on
08/07/2023 if the court re-opens on that day. If on Monday, the court remains closed for some
time for some reason (death of a lawyer, judge etc) or if it is a half-day, then it shall be deemed
holiday for that day for the purpose of this section.
[Note: Section 5 and 6 can also be mentioned.]

Unit-II
Que1. What do you mean by ‘Execution’? Who may apply for execution and against whom
execution may be sought?
OR
What is the meaning of execution of decree? By which court a decree can be executed?
OR
Under what circumstances decree can be transferred for its execution? Also discuss the
powers of transferee court its execution.
Ans:- Introduction:- The principles governing execution of decrees and orders are dealt with in
Sections 36 to 74 (substantive law) and Order 21 of the CPC (procedural provisions). Order 21
contains 106 Rules and is the longest of all Orders in the Code.
Execution: Meaning
The term "execution" has not been defined in the code. But generally the word "execution"
means the enforcement or giving effect to a judgement or order of a court of justice. In other
words, execution is the enforcement of decrees and orders by the process of the court, so as to
enable the decree-holder to realise the fruits of the decree.
Suppose A files a suit against B for Rs 100,000/- and obtains a decree against him. Here A is the
judgement-creditor or decree-holder. B is the judgement-debtor, and the amount of Rs 100,000/-
is the judgement-debt or the decretal amount. Since the decree is passed against B, he is bound to
pay Rs 100,000/- to A. Suppose if B refuses to pay the decretal amount to A. Now, what remedy
is left with A to recover his said amount? A can recover the said amount from B by executing the
decree through judicial process.
Courts by which decrees may be executed: Section 38
According to Section 38 of CPC, a decree may be executed either by the court which passed it,
or by the court to which it is sent for execution. A court which has neither passed a decree, nor a
decree is transferred for execution, cannot execute it. Section 37 of the Code defines the
expression "court which passed a decree" and the following courts fall within the said
expression:
(i) The court of first instance which actually passed the decree;
(ii) The court of first instance in case of appellate decrees;
(iii) Where the court of first instance has ceased to exist, the court which would have jurisdiction
to try the suit at the time of execution and
(iv) Where the court of first instance has ceased to have jurisdiction execute the decree, the court
which at the time of execution would have had jurisdiction to try the suit.
Transfer of decree for execution: Sections 39-42; Order 21 Rules 3-9
As a general rule, the court which passed the decree is primarily the court to execute it, but such
court may send the decree for execution to another court either suo-moto or on the application of
the decree-holder if any of the following grounds exists:
(i) The judgement-debtor actually and voluntarily resides or carries on the business, or personally
works for gain, within the local limits of jurisdiction of such court; or
(ii) The judgement-debtor does not have property sufficient to satisfy the decree within the local
limits of the jurisdiction of the court which passed the decree but has property within the local
limits of such court; or
(iii) The decree directs the sale or delivery of immovable property situate outside the local limits
of the jurisdiction of such other court; or
(iv) The court which passed the decree considers it necessary for any other reason to be recorded
in writing that the decree should be executed by such other court.
The provisions of Section 39 are not mandatory and the court has discretion to decide it.
Sub-section (3) of Section 39 clarifies that the transferee court must have pecuniary jurisdiction
to deal with the suit in which the decree was passed. Likewise, sub-section (4) of Section 39
further makes it clear that the court passing decree has no power to execute such decree against a
person or property outside the local limits of its territorial jurisdiction.
Powers of Court in executing transferred decree- Section 42
The Court executing a decree sent to it shall have the same powers in execution such decree as if
it had been passed by itself. All persons disobeying or obstructing the execution of the decree
shall be punishable by such Court in the same manner as if it had passed the decree. And its
order in execution such decree shall be subject to the same rules in respect of appeal as if the
decree had been passed by itself.
Who may apply for execution: Rule 10
The following persons may file an application for execution:
a) Decree-holder.
b) Legal representative of the decree-holder, if the decree-holder is dead.
c) Representative of the decree-holder.
d) Any person claiming under the decree-holder.
e) Transferee of the decree-holder, in case decree has been transferred by an assignment in
writing or by operation of law.
f) One or more of the joint decree-holders, if for benefit of all the decree-holders and application
is made for execution of whole decree and no contrary condition is imposed in the decree.
g) Any person having special interest.
Against whom execution may be taken out:-
Execution may be taken out against the following persons:
i) Judgement-debtor.
ii) Legal representative of the judgement-debtor, if he is dead. However, they shall be liable to
the extent of the property of the deceased judgement-debtor which has come to their hands.
iii) Representative of or the person claiming under the judgement-debtor.
iv) Surety of the judgement-debtor.
Limitation for execution:-
The period of limitation for the execution of a decree (other than a decree granting a mandatory
injunction) is 12 years from the date of the decree. The period of limitation for the execution of a
decree for mandatory injunction is 3 years from the date of the decree.
Que. Explain Percept (Section 46)

Ans:- It is an order or direction given by the court which passed the decree to a court which
would be competent to execute the decree to attach any property of judgment debtor.
Section 46 of CPC provides that the court which passed a decree may upon an application by the
decree holder, issue a percept to that court with whose jurisdiction the property of the judgment
debtor is lying, to attach any property specified in the precept.
The underlying object of attachment by percept is to enable the decree holder an interim
attachment of the property of the judgment debtor situated within the jurisdiction of another
court where it is apprehended that the decree holder may otherwise be deprived of the fruits of
the decree.
According to Section 46(2), an order for the attachment in pursuance of the percept, shall be
limited for two months, unless it is not extended by the court. It means an order of a permanent
attachment is illegal.
This section applies on the matters where a decree has been passed. No attachment can be made
under this section where the property is situated outside India.
Que. Scope of Section 47

Or
Questions to be determined by the court executing decree.
Ans:- Under Section 47 of the Code of Civil Procedure, the Executing Court can only go into
questions that are limited to the execution of decree and cannot go behind the decree. Section 47
deals with the power of court executing decree. The scope of sec. 47 is very wide as exclusive
jurisdiction has been conferred on the executing court in respect of all matters relating to
execution. It applies only to matters arising subsequent to the passing of a decree and deals with
objections to execution, discharge and satisfaction of a decree. It lays down the principle that
matters relating to the execution, discharge or satisfaction of a decree arising between the parties,
or their representatives, should be determined in execution proceedings and not by a separate
suit.
Conditions:-
1. All questions must arise between the parties to the suit or their representative.
2. It must arise in the suit in which the decree was passed.
3. It must relate to the execution, discharge or satisfaction of the decree.
4. It must be determined by the execution court.
Object :-
1. To provide cheap & expeditious remedy for determination of certain questions in
execution.
2. To avoid the multiplicity of suits.
Que. Execution against transferees and legal representatives (Section 49 and 50)
Ans:- Section 49: Transferee-
Every transferee of a decree shall hold the same subject to the equities (if any) which the
judgment-debtor might have enforced against the original decree-holder.
Section 50: Legal representative-
(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the
decree may apply to the Court which passed it to execute the same against the legal
representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the
extent of the property of the deceased which has come to his hands and has not been duly
disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree
may, of its own motion or on the application of the decree-holder, compel such legal
representative to produce such accounts as it thinks fit.
Que. Stay of execution.

Or
When executing court may stay execution? : Rule 26
Ans:- Order 21 Rule 26 of CPC – The Court to which a decree has been sent for execution
shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time,
to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any
Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order
to stay execution, or for any other order relating to the decree or execution which might have
been made by such Court of first instance or Appellate Court if execution had been issued
thereby, or if application for execution had been made thereto.
Where the judgement-debtor applies for stay of execution, the transferee court must obtain
security from the judgement-debtor or impose such condition as it may think fit. The provision is
thus mandatory and imperative.
Rule 28 provides that the transferee court is bound by an order made by the court which passed
the decree or by an appellate court in relation to execution of such decree.
Stay of execution pending suit: Rule 29
Rule 29 enacts that where a suit by the judgement-debtor is pending in a court against the decree-
holder, such court, may, on the judgement-debtor furnishing security or otherwise as it thinks fit,
stay execution of the decree until disposal of such suit. For this rule to apply, there must be two
simultaneous proceedings in one and the same court. The underlying object of this provision is
twofold, namely, firstly, to enable the judgement-debtor and the decree-holder to adjust their
claims against each other; and secondly, to avoid multiplicity of execution proceedings.
Que2. Discuss the various modes of execution of a decree.

Ans:- Mode of execution: Section 51
The CPC lays down various modes of execution. After the decree-holder files an application for
execution of a decree, the executing court can enforce execution. The substantive provision
(Section 51) merely enumerates different modes of execution in general terms, while the
conditions and limitations under which the respective modes can be availed of are prescribed by
different provisions under Order 21. The CPC provides the following modes for execution of
different types of decrees:
1) Delivery of property.
2) Attachment and sale or by sale without attachment of any property.
3) Arrest and detention in prison for such period not exceeding as specified in Section 58.
4) Appointment of receiver.
5) Other manner as the nature of relief granted may require.
Modes of Executing Decrees:-
A. Delivery of Property: Section 51(a)
i. Movable Property: Section 51(a) & Rule 31- Where the decree is for any specific
movable property, it may be executed
(i) by seizure and delivery of property; or
(ii) by detention of the judgment debtor; or
(iii) by attachment and sale of his property; or
(iv) by attachment and detention both.
ii. Immovable Property: Rules 35 and 36- Where the decree is for immovable property in
the possession of the judgment-debtor or in the possession of the person bound by the
decree, it can be executed by removing such person and by delivering possession to the
decree-holder thereof.
B. Attachment and Sale of Property: Section 51(b)- It empowers the Court to order execution
of a decree by attachment and sale or by sale without attachment of any property. The Court
is competent to attach the property if it is situated within the local limits of the jurisdiction of
the court.
C. Arrest and Detention: Section 51(c)- The decree holder can request that the decree be
implemented by arresting and detaining the judgement debtor in the execution application. If
such a request is made in an execution application, the court will instead issue a notice
instructing the judgement debtor to come before the court on a certain day and show cause
why he should not be put to civil jail. If the court is convinced, by affidavit or otherwise, that
giving such notice will cause a delay in the execution process or that the judgement debtor is
likely to abscond or leave the court's jurisdiction, the notice will not be required.
D. Appointment of Receiver: Section 51(d)- Execution by appointment of a receiver is known
as equitable execution and is entirely at the discretion of the court. It cannot be claimed as a
matter of right. The appointment of a receiver in execution proceedings is considered to be an
exceptional remedy.
E. In such other manner as the nature of the relief granted may require.
Execution of Decree for:
1. Payment of Money: Rule 30
a) By detention in civil prison of the judgment-debtor, or
b) By attachment and sale of his property, or
c) By both.
2. Specific Movable Property: Rule 31
a) By seizure of the movable, and
b) By delivery to the party to whom it has been adjudged, or
c) By detention in civil prison of the judgment-debtor, or
d) By attachment of his property, or
e) By all the above modes.
3. Specific Performance for Restitution of Conjugal Rights or an Injunction: Rule 32
a) By attachment of property (in case of restitution of conjugal rights),
b) By detention in civil prison, or by attachment of property, or by both (in case of
injunction).
4. Immovable Property: Rule 35
a) By delivery of possession, and
b) By removing any person bound by the decree who refuses to vacate the property.
5. Endorsement of the negotiable instrument- Rule 51 deals with the endorsement of a
negotiable instrument. According to this rule, the attachment of the negotiable instrument can
be completed by the actual seizure of the instrument if it is not deposited in a Court and it is
not in the custody of a public officer. The negotiable instrument should be brought into Court
and is kept in the custody of Court until further orders of the Court.
6. Attachment of rent, mesne profits, etc.- According to Rule 42, where a decree directs for
an inquiry regarding the rent or mesne profits or any other matter, then the property of the
judgment-debtor may be attached for the amount due similar to the case of an ordinary
decree for the payment of money.
7. Decree against firm- Rule 50 provides various provisions relating to the execution of a
decree against the firm. According to this rule, when the decree is granted against a firm the
execution may be granted against-
a) Any property of the partnership;
b) Against any person who is adjudged to be the partner of the firm;
8. Payment of icons or currency notes- Rule 56 of Order XXI of the Code of Civil Procedure
deals with the provisions where the property attached is current coin or currency notes, the
Court at any time during the continuance of the attachment, can direct that such coin or notes,
or a part thereof if it is sufficient to satisfy the decree, to be paid over to the party entitled
under the decree.
Que 3. In the execution of a decree what property can be attached? Discuss what properties
are not attachable in execution of a decree.
OR
Explain in detail as to which properties are not liable for attachment and sale in execution
of a decree? Discuss exceptions to this.
Ans:- Introduction:- Execution of a decree can takes place by the attachment of the property of
the judgment debtor. It means attachment is a preliminary step to the sale of the property. The
object of attachment is to give notice to the judgment debtor not to alienate his property to
anyone and also the general public not to purchase or deal with the property of the judgment
debtor attached in execution proceedings.
A. Property which can be attached (Section 60):- This section specifies the property
which is liable to attachment and sale in execution of a decree and what properties are
exempted from attachment.
According to it, the following properties can be liable to attachment:-
1. lands,
2. houses or other buildings,
3. goods,
4. money,
5. bank-notes,
6. cheques,
7. bills of exchange,
8. hundis,
9. promissory notes,
10. Government securities,
11. bonds or other securities for money,
12. debts,
13. shares in a corporation
14. all salable property (movable or immovable) belonging to the judgment debtor or
over which he has a disposing power, may be attached and sold in execution of a
decree against him.
B. Property which cannot be attached (Section 60):-
Section 60 also provides the list of certain properties which shall not be liable to
attachment. They are as follows:-
1. The necessary wearing apparel, cooking vessel, beds and bedding of the judgment
debtor, his wife and children and such personal ornaments which can’t be separated
from any women, according to her religion. It means the mangal-sutra of a married
women is not to be attached.
2. Tools, of artisans and where the judgment debtor is an agriculturist his husbandry and
such cattle and seed grain which are, in the opinion of the court, necessary to earn his
livelihood and such portion of agriculture land which may have been declared to be
free from liabilities.
3. Houses and other buildings belonging to an agriculture or a domestic servant and is
occupied by him.
4. Books of accounts.
5. A mere right to sue for damages.
6. Any right of personal service.
7. Stipends and gratuities allowed to the pensioner or of the govt. or a local authority or
of any other employer or payable out of any service family pension fund notified fund
notified in the official gazette by the central govt. or state govt. or political pensions.
8. The wages of labourers and domestic servants whether payable in money in any form.
9. Salary up to the extent of first one thousand rupees and 2/3rd of the remainder salary,
in execution of a decree other than a decree for maintenance.
10. One third of the salary in execution of any decree of maintenance.
11. The pay and allowances of persons to whom the Air Force Act, 1950 or Army Act,
1950 or Navy Act, 1957 applies.
12. All compulsory deposits and other sums to which to provident funds Acts, 1925,
applies so far they are declared by that Act, not to be liable to attachment.
13. All deposits under Public Provident Funds Act, 1968, if they are declared by that Act
not liable to attachment.
14. All money payable under a policy of the insurance on the life of judgment debtor.
15. The interest of a lease of a residential building upon which the provision of the law or
conditional rent and accommodations applies.
16. Any allowance of any servant of the govt. or any servant of a railway company or
local authority which the govt. by notification in the official gazette, is to be
exempted from attachment.
17. An expectancy of succession by survivorship or other contingent or possible right or
interest.
18. A right to future maintenance.
19. Any allowance declared by any Indian law, to be exempted from attachment or sale in
execution of a decree, and
20. Where the judgment debtor is personally liable to pay land revenue, any movable
property which, under any law for the time being applicable to him, is exempt from
sale for the recovery of an arrear of such revenue.
Que. What is the effect of transfer of property after attachment (Section 64).
Ans:- Section 64- Private alienation of property after attachment to be void-
Where an attachment has been made, any private transfer or delivery of the property attached or
of any interest there in and any payment to the judgment-debtor of any debt, dividend or other
monies contrary to such attachment, shall be void as against all claims enforceable under the
attachment.
Que. Objections to attachment (Rule 58 and 59).

Ans:- Order 21 Rule 58:- Adjudication of claims to, or objections to attachment of,
property.
Where any claim is preferred to, or any objection is made to the attachment of, any property
attached in execution of a decree on the ground that such property is not liable to such
attachment; the Court shall proceed to adjudicate upon the claim or objection.
Provided that no such claim or objection shall be entertained-
(a) Where, before the claim is preferred or objection is made, the property attached has already
been sold; or
(b) Where the Court considers that the claim or objection was designedly or unnecessarily
delayed.
Order 21 Rule 59:- Stay of sale.
Where before the claim was preferred or the objection was made, the property attached had
already been advertised for sale, the Court may-
(a) if the property is movable, make an order postponing the sale pending the adjudication of the
claim or objection, or
(b) if the property is immovable, make an order that, pending the adjudication of the claim or
objection, the property shall not be sold, or, that pending such adjudication, the property may be
sold but the sale shall not be confirmed, and any such order may be made subject to such terms
and conditions as to security or otherwise as the Court thinks fit.
Que4. Discuss the provisions of law relating to arrest and detention for execution under
Civil procedure code.
Ans:- Introduction:- Arrest and Detention is one of the modes of executing a decree is arrest
and detention of the judgment debtor in a civil prison. Sections 55-59 and Rules 30-41 deals with
arrest and detention of the judgment debtor in a civil prison.
When arrest and detention may be ordered-
1. Where the decree is for payment of money.
2. Where the decree is for specific performance of the contract or for injunction.
3. Where the decree is against a Corporation.
Who cannot be arrested-Sections 56, 58, 135, 135-A:- The following classes of persons cannot
be arrested or detained in civil prison-
1. A woman;
2. Judicial officers, while going to, presiding in, or returning from their courts;
3. The parties, their pleaders, mukhtars, revenue agents and recognized agents and their
witnesses acting in obedience to a summons, while going to, presiding in, or returning
from their courts;
4. Members of Legislative Bodies;
5. Any person or class of persons, whose arrest according to the State Government, might
be attended with danger or inconvenience to the public;
6. A judgment-debtor, where the decretal amount does not exceed Rs. 2000.
Notice: Order XXI Rules 37 and 40
Where the decree is for the payment of money and the application is made for the arrest and
detention of the judgment-debtor, the Court shall instead of issuing a warrant for arrest, issue a
notice calling upon the judgment-debtor to appear and show cause why he should not be
committed to civil prison in execution of the decree. The purpose of issuing notice is to afford
protection to the honest debtors incapable of paying dues for reasons beyond their control.
Period of Detention: Section 58
The period of detention of the judgment-debtor in civil prison shall be-
(a) up to three months, where the decretal amount exceeds Rs. 5000 and
(b) up to six weeks, where the decretal amount exceeds Rs. 2000 but does not exceed Rs. 5000.
Where the decretal amount does not exceed Rs. 2000 no detention can be ordered.
Release of Judgment Debtor: Section 58-59
A judgment debtor may be released in the following cases-
1. On the amount mentioned in the warrant being paid; or
2. On the decree against him being otherwise fully satisfied; or
3. On the request of the decree-holder; or
4. On the omission by the decree-holder to pay the subsistence allowance (such release,
however does not discharge the judgment debtor from his debt, but he cannot be
rearrested on the same ground);
5. On the ground of illness.
Re-arrest of Judgment-Debtor
Normally, a judgment-debtor once released, cannot be re-arrested in the execution of the same
decree. But if a judgment-debtor is released because of the mistake of the jail authorities, he can
be re-arrested. Release of the judgment-debtor on the ground of illness does not debar his arrest.
The total period of actual detention, however, cannot exceed the maximum prescribed in the
Code.
Que5. When an immovable property can be sold and resold in execution under O.XXI
rules 82- 87 of the civil procedure code?
OR
What are the provisions related to confirmation of execution sale under O.XXI, rule 89 to
94 the civil procedure code?
Ans:- Sale of Property- Sections 65-73 and Rules 64-94 of Order XXI deals with the subject
relating to sale of movable and immovable properties.
Rule 64 provides that any court executing a decree may order that any property attached
by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree shall
be sold, and the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party
entitled under the decree to receive the same.
After the property is attached and ordered to be sold by public auction, the first step to be
taken by the court is to cause a proclamation of the intended sale to be made in the language of
such court. (Rules 66-67).
No sale without the consent in writing of the judgment-debtor can take place before 15
days in case of immovable property and before 7 days in case of movable property from the date
of proclamation in the courthouse. (Rule 68)
• The court may, at its discretion, adjourn any sale to a specified day and hour. But if such sale is
adjourned for more than 30 days, a fresh proclamation should be made.
• A decree-holder cannot, without the express permisison of the court, purchase the property sale
in execution of his own decree. When he does so with the perimission of the court, he is entitled
to a set-off, but if he does so without such permission, the court has a discretion to set aside the
sale upon the application by the judgement-debtor, or any other person whose interests are
affected by the sale. [Rules 72]
A. Sale of Movable Property: Rules 74-78
• Sale of all movable properties in execution of a decree should ordinarily be held at some
place within the jurisdiction of the court ordering such sale.
• The price of the property shall be paid at the time of sale. [Rule 77(1)]
• On payment of price, the sale becomes absolute. [Rule 77(2)]
• In case of default by the purchaser in payment of price, the property will forthwith be re-
sold and the defaulting purchaser should be liable for the defeciency in price on such re-sale.
(Rule 71)
• Rule 78 provides that a sale of movable property in execution of a decree cannot be set
aside on the ground of irregularity in publishing or conducting the sale.
• Violation of the provisions relating to the sale of movable property does not ipso facto
make the sale void. The petitioner has to show that substantial injury has been sustained by
him.
B. Sale of Immovable Property: Rules 82-94
• Any Court other than a Court of Small Causes may order sale of immovable property in
execution of a decree.
• The Court may postpone sale to enable the judgment-debtor to raise the decretal amount by
private alienation, such as, sale, mortgage, charge, lease, etc. The chief object of this
provision is to prevent sale of property of the judgment-debtor in cases where the decree can
be satisfied by private alienation of such property. Postponement of sale is at the discretion of
the court and cannot be claimed by the judgment-debtor as of right. (Rule 83)
• Immediately after the sale of immovable property, the person declared to be the purchaser
of the property must deposit 25% of the purchase money, unless, such requirement is
dispensed with by the court. The provision regarding the deposit is mandatory and non-
compliance with it will make the sale a nullity. In case of failure on the part of the purchaser
to deposit the amount, the property will forthwith be re-sold and the defaulting purchaser will
be liable for the deficiency in price. (Rules 84-87)
Grounds of setting aside the sale:-
1. Setting aside sale on deposit: Rule 89
i. Rule 89 of Order XXI provides for setting aside execution of sale on payment of 5% of
purchase price to the auction-purchaser and entire amount specified in the proclamation for
sale to the decree-holder. The underlying object of this rule is to give a judgment-debtor the
"last chance" of getting the sale set aside before it is confirmed by the court.
2. Setting aside sale for irregularity or fraud: Rule 90
i. A sale of immovable property in execution can be set aside also on the ground of material
irregularity or fraud in publishing or conducting the sale, provided the applicant proves that
he has sustained substantial injury by reason of such irregularity or fraud.
3. Setting aside sale on judgment-debtor having no saleable interest: Rule 91
i. Rule 91 enables the auction-purchaser to apply for setting aside the sale on the ground that
the judgment-debtor had no saleable interest in the property. The rule is intended for the
protection of an innocent auction-purchaser; and it cannot, therefore, be invoked where the
purchaser knew at the time of sale that the judgment-debtor had no saleable interest in the
property.
Rule 92- Confirm the sale- Where no application is made under rule 89, rule 90 or rule 91, or
where such application is made and disallowed, the Court shall make an order confirming the
sale, and thereupon the sale shall become absolute.
Rule 94- Certificate to purchaser- Where a sale of immovable property has become absolute,
the Court shall grant a certificate specifying the property sold and the name of the person who at
the time of sale of is declared to be the purchaser. Such certificate shall bear date the day on
which the sale became absolute.
Que. Who cannot make bid for sale of attached property under CPC?
Ans:- The following persons given under the provisions of Order 21 cannot bid at the sale in
execution of a decree:
Rule 72: Decree-holder not to bid for or buy property without permission—
No holder of a decree in execution of which property is sold shall, without the express
permission of the Court, bid for or purchase the property.
Rule 72-A: Mortgagee not to bid at sale without the leave of the Court—
A mortgagee of immovable property shall not bid for or purchase property sold in execution of a
decree on the mortgage unless the Court grants him leave to bid for or purchase the property.
Rule 73: Restriction on bidding or purchase by officers—
No officer or other person having any duty to perform in connection with any sale shall, either
directly, or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.
Que6. What are the Remedies when there is resistance to delivery of possession in
execution of a decree as under section 74 and Order XXI, Rule 97-106?
Ans:- Resistance to delivery of possession: Rules 97-103- Section 74 and Rules 97-103 of
Order XXI deals with resistance to delivery of possession to decree-holders or auction-
purchasers.
1. Where a decree-holder or an auction-purchaser of immovable property is resisted or
obstructed by any person in obtaining possession of such property, he may make an
application to the court complaining of such resistance or obstruction. (Rule 97)
2. Where any person other than the judgment-debtor is dispossessed of immovable property
by the decree-holder or auction-purchaser, he may make an application to the court
complaining of such dispossession. (Rule 99)
Hearing of application: Rules 105-106
Rule 105 empowers the court to dismiss an application for default of appearance by the applicant
or to pass ex-parte order when the opposite party does not appear in spite of notice to him.
Rule 106 enables the court to set aside order passes under Rule 105, if the party adversely
affected by such order shows sufficient cause for his non-appearance when the application was
called on for hearing.
Inquiry and Adjudication: Section 74, Order XXI Rules 97-101
The Court shall on receipt of an application under Rule 97 proceed to adjudicate upon the
application in accordance with Rule 103. The court will hold a fullfledged inquiry and determine
all questions including the questions relating to right, title or interest in the property arising
between the parties to the proceeding or their representatives.
In accordance with such determination, the court shall, either:
a. allow the application to the decree-holder or auction-purchaser directing that the
applicant be put into possession of the property; or
b. dismiss the application; or
c. pass such order at it deems fit.
In Case Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal & Another, (1997) (SC), the
Hon’ble Supreme Court observed that- “A conjoint reading of Order XXI, Rules 97,98,99 and
101 projects the following picture:
(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the
result that the decree for possession could not be executed in the normal manner, then the decree-
holder has to move an application under Order XXI, Rule 97 for removal of such obstruction and
after hearing the decree-holder and the obstructionist, the Court can pass appropriate orders after
adjudicating upon the controversy between the parties. It is obvious that after such adjudication,
if it is found that the resistance or obstruction was occasioned without just cause by the
judgment-debtor or by some other person at his instigation or on his behalf, then such obstruction
or resistance would be removed and the decree-holder would be permitted to be put in
possession. Even in, such an eventuality, the order passed would be treated as a decree under
Order XXI Rule 101, and no separate suit would lie against such order meaning thereby that only
remedy would be to prefer an appeal before the appropriate appellate Court against such decree.
(2) If for any reason, a stranger to the decree is already dispossessed of the suit property relating
to which he claims any right, title or interest before his getting any opportunity to resist or offer
obstruction on spot on account of his absence from the place or for any other valid reason then
his remedy would lie in filing an application under Order XXI, Rule 99. C.P.C., claiming that his
dispossession was illegal and that possession deserves to be restored to him, if such an
application is allowed after adjudication, then the executing court can direct the stranger
applicant under Order XXI, Rule 99 to be put in possession of the property or if his application is
found to be substanceless, it has to be dismissed. Such an order passed by the executing court
disposing of the application one way or the other under Order XXI, Rule 98 sub-rule (1) would
be deemed to be a decree as laid down by Order XXI, Rule 103 and would be appealable before
appropriate appellate forum. But no separate suit would lie against such orders as clearly
enjoined by Order XXI Rule 101.
Que. Rateable distribution of assets (Section 73)

Ans:- Distribution of Assets- Section 73 of the Code provides for rateable distribution of
proceeds of execution sale among two or more decree-holders. It provides that where the assets
are held by a court and before the receipt of such assets, several decree-holders have applied to
the court for execution of a decree for payment of money against the same judgment-debtor and
have not obtained satisfaction, the asset, after deducting the costs of realisation, shall be rateably
distributed among them. Rateable distribution means according to percentage of their claim.
• It allows filing of a suit for refund of assets wrongly distributed.
• The provision also confers priority of government debts over private debts.
Nature and Scope- The rule enunciated in Section 73 is a rule of procedure and provides cheap,
speedy and expeditious mode of execution.
Object- The provision seeks to place all decree-holders on an equal footing regardless of priority
in attachment of making of application for rateable distribution. It intends to secure equitable
dispossession of assets of the judgment-debtor among rival decree-holders without taking
recourse to separate and independent proceedings.
Appeal and Revision-
• The order passed U/s 73 is not appealable as a decree.
• A revision application can be filed against the said order provided the conditions laid down U/s
115 of the Code are satisfied.

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Harish Law Classes [Mob. no. 98783-57055, 98883-57055] C.P.C.

Add: Opposite Punjabi University, Patiala

Nature of C.P.C. & its scheme-

Short Que. Meaning of suits and its essentials?

Case- Hakam Singh v. Gammon Indian Ltd 1971 SC

Case- Abdulla Bin Ali v. Galappa 1985 SC

Difference b/w “civil suit” and “suits of civil nature”

Case- P.M.A Metropolitan v. M.M. Mathoma 1995 SC

Suit of civil nature (Genus)

Civil suit (Species)

Some examples of suits of a civil nature-

Under C.P.C. Outside C.P.C Section 23 & 28 of I.C.A

Section 21:- Objections to jurisdiction

Que3. Explain Res Sub-judice?

Case- Manohar Lal v/s Seth Hira Lal

Case- V.P. Vrinda v/s K. Indira Devi 1995

Q3. Explain Res-Judicata.

Matter directly Matter collaterally

d. On the ground that suit was not property framed.

Difference between Section 10 and Section 11:-

Que. Difference b/w section 10 & 11?

Resjudicata Res subjudice

the firstly. matter is pending before the institution of 2nd

Que. Constructive resjudicata

Que:- Split of cause of action- (O2R2)?

Difference between Resjudicata and Splitting of cause of action

Section 44A- Enforcement of foreign judgement:- A foreign judgement which is conclusive in

Section 16 - Suits in respect of immovable property

Q6. Explain the different modes of service of summons.

Que8. Define the following:-

Explain the Words used in the definition of Decree:-

Difference between Preliminary & Final decree-

4. By preliminary decree, it is decided what is to 4. By final decree, nothing is left to be done

Distinction between Decree and Order:-

Que. Explain Decree Holder.

Que. Judgment Debtor [Section 2(10)]

2. Where it relates to railways, the general manager of that railway.

b. The public officer shall not be arrested.

Que10. Explain the Interpleader suit (Section 88 and Order 35).

Que. Friendly Suit (Special Case).

Que. Suit of Public Nuisance.

Que. Suit relating to Public Charities.

Que. What do you mean by Abatement of Suit?

Que. Suits by or Against Minors and Lunatics (Order 32)

Que. What is the nature of right to appeal?

Que. Difference between Appeal and Reference?

Que. Difference between Appeal and Review?

Limitation Act, 1963

Case- Bombay Dyeing and Manufacturing v. State of Bombay

Case- Fakirappa vs Wingappa

SALIENT FEATURES OF LIMITATION ACT-

[Note: Section 5 and 6 can also be mentioned.]

Que. Explain Percept (Section 46)

Que. Scope of Section 47

Que. Stay of execution.

Que2. Discuss the various modes of execution of a decree.

Que. Objections to attachment (Rule 58 and 59).

Que. Rateable distribution of assets (Section 73)

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