MODULE III: DEFINITIONS AND KEY CONCEPTS

 Definitions under section 2

 Suits: Its types, constituents of a suit, Bars to a suit (exclusion of
jurisdiction under section 9)
 Recognised agents
 Foreign judgements
 Incidental (S. 75-77) and supplemental proceedings (S.94 -95)
 Key concepts: Cause of action, Locus standi, Lis pendens, Estoppel
Definitions under section 2
2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,—
(1) “Code” includes rules
In the Code of Civil Procedure, 1908 (CPC), Section 2(1) establishes that the term “Code” includes not
just the substantive sections but also the procedural rules. This definition is vital because the CPC is
structurally divided into two parts: the body of the Code, which contains 158 Sections that lay down
general principles of jurisdiction, and the First Schedule, which consists of 51 Orders and Rules detailing
the specific methods and procedures for exercising that jurisdiction. By explicitly stating that the “Code”
includes “rules,” the statute ensures that the procedural guidelines in the Schedule carry the same legal
authority as the substantive sections. While only the Legislature can amend the fundamental Sections,
High Courts have the power under Sections 122 and 125 to alter or add to the Rules to suit local needs,
provided they do not contradict the primary body of the Code.
The introductory phrase “unless there is anything repugnant in the subject or context” acts as a qualifying
condition for all definitions within Section 2. In legal terms, “repugnant” means inconsistent or
contradictory, and this phrase grants courts the flexibility to ignore a standard definition if applying it to a
specific part of the Act would create a logical conflict or defeat the purpose of that provision. For
instance, if a particular section uses the word “Code” in a way that clearly refers only to the substantive
158 sections, the court can bypass the inclusive definition of Section 2(1) to maintain the intended
meaning of that specific context. This ensuring that the law is interpreted harmoniously and practically
across different scenarios.
(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing
it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy
in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint
and the determination of any question within section 144, but shall not include—
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.—A decree is preliminary when further proceedings have to be taken before the suit
can be completely disposed of. It is final when such adjudication completely disposes of the suit.
It may be partly preliminary and partly final;
A “decree” denotes final adjudication between the parties and against which an appeal lies, but only when
a suit is completely disposed of, thereby a final decree would come into being; Bikoba Deora Gaikward v.
Hirabai Marutirao Ghoragare, (2008) 8 SCC 198. Thus, 'decree' means a general or formal expression of
an adjudication as regards the court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be:
(a) preliminary; or
(b) final.
The order rejecting application for condonation of delay is not a decree. Consequently, dismissal of
appeal as time-barred is also not a decree, State of Rajasthan v. Rajpal Singh Chauhan, AIR 2011 Raj 101.
Essential Elements
From a bare reading of the above definition and particular case laws it is evident that a 'decree' must have
the following elements; Paramjeet Singh Patheja v. ICDS Ltd.,2006 (10) SC 41:
(i) the adjudication must be given in a suit.
(ii) the suit must start with a plaint and culminate in a decree.
(iii) such adjudication must be formal and final and must be given by a civil or revenue court.
(i) Adjudication.--
Adjudication means "a judicial determination of a matter in controversy". Thus a decision on a matter of
an administrative nature or an order dismissing a suit for default of the appearance of parties or
dismissing an appeal for want of prosecution cannot be termed as a decree inasmuch as it does not deal
with the matter in dispute. Further, such judicial determination must be by a court.
In the definition, some orders which otherwise do not constitute decree are also included and certain
orders which constitute decree have been excluded from it. There must be a formal expression of
adjudication. All requirement of forms must be complied with. The decree follows judgment and must be
drawn up separately. Thus, if a decree is not formally drawn up in terms of the judgment, no appeal lies
from the judgment. Thus, a misdescription of a decision as an order which amounts to a decree, does not
make it less than decree.
In order that a decision of a court should become a decree, there must be an adjudication in a suit and
such adjudication must have determined the rights of the parties with regard to all or any of the matters in
controversy in the suit and such determination must be of a conclusive nature. If those parameters are to
be applied then rejection of application for condonation of delay will not amount to a decree; Ratan Singh
v. Vijaya Singh, AIR 2001 SC 279.
(ii) Suit.--
'Suit' ordinarily means "a civil proceeding instituted by presentation of a plaint." Thus, every suit is
commenced by a plaint; Jagdishwar Sahai v. Surjan Singh Pal, AIR 1977 All 554, and when there is no
civil suit there is no decree; Minakshi v. Subranranaya, 14 IA 160. However, under certain enactments
specific provisions have been made to treat application as suit, e.g., it was held in Mst. Bhonri v. Suwalal,
AIR 1956 Raj 119 that decision in an application for probate cannot be held to be a decree by virtue of
section 295 of the Indian Succession Act, 1925, which enacts that an application for probate has to be
regarded, where contested, as a regular suit, as it is only an adjudication given in a suit, commencing with
the presentation of a plaint that is a decree under section 2(2) of the Code of Civil Procedure, 1908. A
contrary view has been taken by the Allahabad High Court in E. Moah Stephens v. H.G. Orme, 35 All
448.
The determination of a question under section 47 of the Code of Civil Procedure, 1908 was expressly
included in the definition of a decree, although such determination was not made in a suit and sometimes
not drawn up in the form of a decree; Shakuntala Devi Jain v. Kuntal Kumari, (1969) 1 SCR 1006.
(iii) Rights of parties for adjudication as to matter in controversy.--
The word "rights" means substantive rights of the parties and not merely procedural rights. Thus, 'rights
of parties' inter se relating to status, limitation, jurisdiction, frame of suit, accounts, etc. The rights in
matter of procedure are not included in it. Thus, an order for dismissal of a suit for default of appearance
or an order for dismissing application for execution for non-prosecution or an order refusing leave to sue
"in forma pauperis", are not decrees as they do not determine the rights of parties.
Mst. Chauli v. Mst. Meghoo, AIR 1945 All 268 most exaggeratedly explained the essential elements of a
"decree" as follows:
(i) there must be an adjudication.
(ii) the adjudication must have been given in a suit.
(iii) it must have determined the rights of the parties with regard to all or any of the matters in controversy
in suit.
(iv) such determination must be a conclusive determination.
(v) there must be a formal expression of the adjudication.
The definition of decree must be taken along with the provisions of the Code regarding the stage at which
a decree may be prepared, and it is not every finding that will amount to a decree even though it may
conclusively determine the rights of the parties with regard to some of the matters in controversy in the
suit. The term "parties" means parties to the suit, i.e., the plaintiff and defendant. Thus, an order on an
application by a third party, who is stranger to a suit, is not a decree.
The expression "matter in controversy" refers to the subject-matter of the suit with reference to which
relief is sought. It should not be understood that the 'matter in controversy' solely relates to the merits of
the suit. It would also cover questions relating to the character and status of a party suing, to the
jurisdiction of the Court, to the maintainability of the suit and to the preliminary matters which necessitate
an adjudication before a suit is enquired into. Interlocutory orders on matters of procedure which do not
decide the substantive rights of the parties are not decrees. Similarly, the proceedings preliminary to the
institution of a suit will not be included in the definition. Therefore, any adjudication which conclusively
determines the rights of the parties with regard to any of the matters in controversy in the suit, is a decree
within the meaning of section 2(2) of the Civil Procedure Code and an appeal lies against it under section
96 of the Civil Procedure Code.
The expression "matters in controversy" includes matters which though they are common ground must
have been actually decided if any question had arisen and which are the foundation of the whole
determination. Ummed Mal v. Kundanmal, AIR 1981 Raj 202.
(iv) Conclusive determination.--
The conclusive determination, in order to amount to a decree must be on matters in controversy in the
suit. The determination must be final and conclusive as regards to the court which passes it. Thus, an
interlocutory order which does not decide the rights of the parties finally is not a decree. 'Decree' should
suggest in essence and substance, a decision which is final and conclusive not that the question sought to
be adjudicated is left open. The order cannot be held to be an adjudication which conclusively determines
the rights of the parties with regard to any of the matters in controversy in the suit; Goppupeddi Reddi v.
Gopu T. Reddy, AIR 1991 AP 362.
(v) Test for determination of "decree"
For determining the question as to whether an order passed by a Court is a decree or not, it must satisfy
the following tests:
(a) there must be an adjudication.
(b) such adjudication must have been given in a suit.
(c) it must have determined the rights of the parties with regard to all or any of the matters in controversy
in the suit.
(d) such determination must be of a conclusive nature.
(e) there must be a formal expression of such adjudication. S. Satnam Singh v. Surender Kaur, AIR 2009
SC 1089.
Illustrations
Decisions which are 'decrees':
(i) Orders of abetment of suit.
(ii) Dismissal of appeal as time-barred.
(iii) Rejection of plaint for non-payment of court-fee.
(iv) Order holding appeal non-maintainable.
(v) Dismissal of suit/appeal for want of evidence/proof.
(vi) Adjudication under sections 9-11 and 13 of the Hindu Marriage Act, 1955; Bai Umiyahen v. Ambalal
Laxmidas, AIR 1966 Guj 139
Decisions which are not 'decrees':
(i) Dismissal of appeal for default.
(ii) Appointment of Commissioner to take account.
(iii) Order of remand.
(iv) Order of granting interim relief under section 24 of the Hindu Marriage Act, 1955; Man Singh v. Siva
Prabakumari, AIR 1960 Bom 315.
When 'Decree' is said to be Nullity
In Sardar Pritam Singh v. Addl. District Judge, Mathura, 1995 All CJ 971 it was held that,
"A decree is said to be nullity if it passed by a court having no inherent jurisdiction. Merely because a
court erroneously passed a decree or there is an error while passing the decree, the decree cannot be called
a nullity. The decree to be called a nullity is to be understood in the sense that it is ultra vires the powers
of the court passing the decree and not merely voidable decree."
According to the definition provided under section 2(2) of the Civil Procedure Code, 1908, a 'decree' may
be either "preliminary' or 'final' or 'partly preliminary' or 'partly final', it shall be deemed to include:
(i) the rejection of a plaint; and
(ii) the determination of any question within section 144.
However, it shall not include:
(i) any adjudication from which an appeal lies as an appeal from an order; or
(ii) any order for dismissal for default.
(1) Preliminary Decree
An adjudication that finally decides the right of parties but does not completely dispose of the suit is a
preliminary decree; Venkata Reddy v. Pethi Reddy, AIR 1963 SC 993. So, in preliminary decree, certain
rights are conclusively determined and unless the preliminary decree is challenged in appeal, the rights so
determined become final and conclusive and cannot be questioned in the final decree. Suit for possession
and mesne profits, suits for pre-emption, suit for dissolution of partnership between principal and agent,
for foreclosure of mortgage, etc., are examples where courts can pass preliminary decree. There has been
complicating opinion as to whether there can be more than one preliminary decree in a same suit.
However, as regard to partition suits, the Supreme Court in Phoolchand v. Gopal Lal, (1967) 3 SCR 153
concluded that there is nothing in the civil code which prohibits passing of more than one preliminary
decree, if circumstances justify the same and it may be necessary to do so, but what we are saying must
be confined to partition suits. The question whether a decision amounts to preliminary decree or not is of
great significance in view of provisions of section 97 of the Civil Procedure Code, 1908:
"Where any party aggrieved by a preliminary decree passed after the commencement of this Code does
not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which
may be preferred from the final decree."
The object of section 97 is to prevent preliminary questions being raised in the form of appeal after a case
has been decided on merits. Since the passing of a preliminary decree is only a stage prior to passing of a
final decree, if an appeal preferred against a preliminary decree succeeds, the final decree automatically
falls to the grounds for there is no preliminary decree in support of it.
(2) Final Decree
A decree may be said to be final in three ways:
(i) when no appeal is filed within the prescribed period; or
(ii) the matter has been decided by the decree of the highest court; and
(iii) when the decree, so far as regards the Court passing it, completely disposes of the suit.
The final decree merely carries into fulfilment of the preliminary decree; S. Balwant Lokhande v.
Chandrakant Shankar Lokhande, 1995 (1) UJ 707 (SC). Where an appeal against a preliminary decree is
not filed the rights determined therein become final and conclusive and the same cannot be questioned in
the final decree; Parvathamma v. A. Muniyappa, 1997 (4) Kant LJ 95.
A final decree is one which completely disposes of a suit and finally settles all questions in controversy
between parties and nothing remains to be decided thereafter. While the preliminary decree ascertains
what is to be done, the final decree states the results achieved by means of the preliminary decree. The
preliminary decree is not dependant on the final one, but the latter is really dependent and subordinate to
the former, which is the not extinguished by the passing of the final decree. Thus, in a partition suit, the
preliminary decree declares the rights of the parties and the final decree divides the properties specifically
by metes and bounds in terms of rights so declared, thereby completely disposing of the suit. All
executable decree is thus secured to the parties. The function of the final decree is merely to restate and
apply with precision what the preliminary decree has ordered.
Ordinarily, there will be only one final decree in a suit. However, where two or more causes-of-action are
joined to, there can be more than one final decree.
Distinction between 'Preliminary' and 'Final' Decree
In Renu Devi v. Mahendra Singh, (2003) 1 SCR 820 the Supreme Court made out the distinction between
'Preliminary' and 'Final' decree in the following manner:
"A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual
result to be worked out in further proceedings. Then, as a result of the further inquiries conducted
pursuant to the preliminary decree, the rights of the parties are finally determined and a decree is passed
in accordance with such determination, which is, the final decree. The distinction between preliminary
and final decree is this: a preliminary decree merely declares the rights and shares of the parties and
leaves room for some further inquiry to be held and conducted pursuant to the directions made in the
preliminary decree which inquiry having been conducted and the rights of the parties finally determined a
decree is incorporating such determination needs to be drawn up which is the final decree."
In Rachakonda V. Rao v. R. Satya Bai, (2003) 7 SCC 452, it was observed by the Apex Court that, the
explanation to section 2(2) of the Civil Procedure Code, 1908 makes it clear that a decree is preliminary
when further proceedings have to be taken before the suit can be completely disposed of. It is final when
such adjudication completely disposes of the suit. A decree may be partly preliminary and partly final.
'Partly Preliminary' and 'Partly Final' Decree
A decree inheriting characteristics of partly preliminary and partly final is passed in suits as for
possession of land and mesne profits, the court orders possession of the land in suit in favour of the
plaintiff, and directs enquiry regarding the profits. The first portion of the decree is final as it directs the
delivery of possession to the plaintiff, while the second portion is preliminary in as much as it directs an
enquiry as to mesne profits. Where in a suit for possession as well as mesne profits a single decree is
made, it is partly preliminary and partly final.
Rejection of Plaint
The definition of 'decree' as provided under section 2(2) of the Civil Procedure Code, 1908 specifically
provides that rejection of a plaint shall be deemed to be a 'decree'. Such adjudication is, therefore,
appealable as a decree; Puranmasi Yadav v. Narbadeshwar Tripathi, 1998 (2) AWC 831. However, an
order returning a plaint or memorandum of appeal to be presented to proper court is not a decree. The
reason being that such orders do not negate any right of plaintiff or appellant and is not a decision on the
rights of parties.
The term 'decree' expressly excludes an adjudication from which an appeal lies as an appeal from an
order. Thus, an order returning the plaint to be presented to the proper court or an order rejecting an
application for an order to be set aside ex parte decree, etc., are appealable orders and not decrees.
An appeal shall lie from the following orders:
An Order--
(i) suppressing an arbitration.
(ii) on an award stated in the form of a special case.
(iii) modifying or correcting an award.
(iv) filing or refusing to file an arbitration agreement.
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement.
(vi) setting aside or refusing to set aside an award.
(3) “decree-holder” means any person in whose favour a decree has been passed or an order capable of
execution has been made: In the Code of Civil Procedure, 1908, the definition of a "decree-
holder" under Section 2(3) is intentionally broad to include any person, not necessarily a party to the
original suit, who has a decree passed in their favor or an order made that is capable of being executed.
This ensures that the benefits of a legal judgment extend to anyone the court officially recognizes as the
beneficiary of the relief granted.
(4) “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction
(hereinafter called a “District Court”), and includes the local limits of the ordinary original civil
jurisdiction of a High Court: Section 2(4) defines a "district" as the local geographic limits where a
principal Civil Court of original jurisdiction, known as a "District Court," operates, and it specifically
includes the ordinary original civil jurisdiction of a High Court within this scope. This provides a clear
territorial boundary for the administration of justice and clarifies the hierarchy of local judicial power.
(5) “foreign Court” means a Court situate outside India and not established or continued by the authority
of the Central Government;]
(6) “foreign judgment” means the judgment of a foreign Court;
Sections 2(5) and 2(6) deal with international legal contexts, defining a "foreign Court" as any court
located outside the territory of India that is not established or maintained by the Central Government of
India. Consequently, a "foreign judgment" is defined simply as any judgment delivered by such a
foreign court. These definitions are crucial for determining the enforceability of international judicial
decisions within Indian borders.
(7) “Government Pleader” includes any officer appointed by the State Government to perform all or any
of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting
under the directions of the Government Pleader; 5 [(7A) “High Court” in relation to the Andaman and
Nicobar Islands, means the High Court in Calcutta; (7B) “India”, except in sections 1, 29, 43, 44, 6 [44A,]
78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir;]
Furthermore, Section 2(7) explains that a "Government Pleader" is not limited to a single individual but
includes any officer appointed by the State Government to fulfill the functions required by the Code, as
well as any pleader acting under their specific directions. Lastly, Section 2(7A) provides a specific
geographical clarification, stating that for the Andaman and Nicobar Islands, the High Court referred to
throughout the Code is the High Court at Calcutta, ensuring there is no ambiguity regarding appellate
jurisdiction for that territory.
(8) “Judge” means the presiding officer of a Civil Court;
Section 2(8) defines a "Judge" as the presiding officer of a Civil Court. This functional definition
emphasizes the judge's role as the central authority responsible for conducting court proceedings,
managing the trial, and ensuring that justice is administered according to the law. By using the term
"presiding officer," the Code focuses on the judicial function rather than just the official title, ensuring
that any official lawfully authorized to lead a Civil Court—regardless of their specific rank in the judicial
hierarchy; is recognized as a "Judge" for the purposes of the Act. Beyond the courtroom, Section 2(17)
also classifies every Judge as a "public officer," a designation that carries specific legal protections and
responsibilities, such as the requirement of notice before filing a suit against them for acts done in their
official capacity.
(9) “judgment” means the statement given by the Judge of the grounds of a decree or order;
'Judgment' provides the reasons (or grounds) for the passing of the decree/order. Every judgment other
than that of a Court of Small Causes, shall essentially contain:
(i) a concise statement of the case;
(ii) the point for determination;
(iii) the decision thereon;
(iv) the reason for such decision.
In State of West Bengal v. Kesoram Industries Ltd., AIR 2005 SC 1646, it was held by Lahoti, J. that:
"A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read
by assuming that the Court had intended to say only that which is correct according to the settled position
of law, and the apparent error should be ignored, for making any capital out of it, giving way to the
correct expression which ought to be implied or necessarily read in the context, also having regard to
what has been said a little before and a little after. No learned Judge would consciously author a judgment
which is self-inconsistent or incorporates passages repugnant to each other."
In Balraj Taneja v. Sunil Madan, (1999) Supp 2 SCR 258 the Supreme Court observed that, a Judge
cannot merely say "suit decreed" or "suit dismissed". The whole process of reasoning has to be set out for
deciding the case one way or the other. The judgment must be intelligible and must show that the Judge
has applied his mind.
Judgments of courts are not construed as statutes since judges interpret words of statutes; Aswani Kumar
Singh v. U.P. Public Service Commission, AIR 2003 SC 2661.
Lakshmi Ram Bhuyan case
In Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan, JT 2002 (9) SC 542, it was observed by the Supreme
Court that,
"Certain provisions of the Code of Civil Procedure, 1908 may be noticed. Order VII, rule 1 of the Code of
Civil Procedure, 1908 requires the plaintiff to give sufficient particulars of the relief, which the plaintiff
claims. Order XX requires a judgment to contain all the issues and findings or decision thereon with the
reasons therefore. The judgment has to state the relief allowed to a party. The preparation of decree
follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia,
particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The
decree shall also state the amount of costs incurred in the suit and by whom or out of what property and
in what proportions such costs are to be paid. Rules 9 to 19 of Order XX are illustrative of contents of
decrees in certain specified categories of suits. The very obligation cast by the Code that the decree shall
agree with the judgment spells out an obligation on the part of the author of the judgment to clearly
indicate the relief or reliefs to which a party, in his opinion, has been found entitled to enable decree
being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted or
other determination of the suit. The operative part of the judgment should be so clear and precise that in
the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment
and decree whether the latter agrees with the former and is in conformity therewith. A self-contained
decree drawn up in conformity with the judgment would exclude objections and complexities arising at
the stage of execution.
The obligation is cast not only on the Trial Court but also on the Appellate Court. In the event of the suit
having been decreed by the trial court if the Appellate Court interferes with the judgment of the Trial
Court, the judgment of the Appellate Court should precisely and specifically set out the reliefs granted
and the modifications, if any, made in the original decree explicitly and with particularity and precisely.
Order XLI, rule 31 of the Code of Civil Procedure, 1908 casts an obligation on the author of the appellate
judgment to state the points for determination, the decision thereon, the reasons for the decision and when
the decree appealed from is reversed or varied, the relief to which the appellant is entitled. If the suit was
dismissed by the trial court and in appeal the decree of dismissal is reversed, the operative part of the
judgment should be so precise and clear as it would have been if the suit was decreed by the trial court to
enable a self-contained decree being drawn up in conformity therewith. The plaintiff, being dominus litus,
enjoys a free hand in couching the relief clause in the manner he pleases and cases are not wanting where
the plaintiff makes full use of the liberty given to him. It is for the Court, decreeing the suit, to examine the
reliefs and then construct the operative part of the judgment in such manner as to bring the reliefs
granted in conformity with the findings arrived at on different issues and also the admitted facts. The
Trial Court merely observing in the operative part of the judgment that the suit is decreed or an Appellate
Court disposing of an appeal against dismissal of suit observing the appeal is allowed and then staying
short at that, without specifying the reliefs to which the successful party has been found entitled
tantamounts to a failure on the part of the author of judgment to discharge obligations cast on the Judge
by the provisions of Code of Civil Procedure.
Where the reliefs prayed for in the plaint shows that the reliefs are not very happily worded. There are
some reliefs which may not be necessary or may be uncalled for though prayed. The reliefs may have
been considered capable of being recast or redefined so as to be precise and specific. May be that the
Court was inclined to grant some other relief so as to effectually adjudicate upon the controversy and
bring it to an end. Nothing is spelled out from the appellate judgment. The Trial Court, on whom the
obligation was cast by second appellate judgment to draw up a decree, was also, as its order shows, not
very clear in its mind and thought it safe to proceed on an assumption that all the reliefs sought for in the
plaint were allowed to the plaintiffs. The Judge allowing the second appeal, should clearly and precisely
state the extent and manner of reliefs to which the plaintiffs were found to be entitled in his view of the
findings arrived at during the course of the appellate judgment. The parties, the draftsman of decree and
the executing court cannot be left guessing what was transpiring in the mind of the Judge decreeing the
suit or allowing the appeal without further placing on record the reliefs to which the plaintiffs are held
entitled in the opinion of the Judge.
Section 152 enables the court to vary its judgment so as to give effect to its meaning and intention. Power
of the court to amend its orders so as to carry out the intention and express the meaning of the Court at
the time when the order was made was upheld by Bowen, L.J. in re: Swire; Mellor v. Swire, (1885) 30 Ch
D 239, subject to the only limitation that the amendment can be made without injustice or on terms which
preclude injustice. Lindley, L.J. observed that if the order of the Court, though drawn up, did not express
the order as intended to be made then "there is no such magic in passing and entering an order as to
deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does
not express the real order of the Court, it would, as it appears to me, be shocking to say that the party
aggrieved cannot come here to have the record set right, but must go to House of Lords by way of
appeal."
Words "Judgment" and "Decree": Distinction
Generally speaking, words "Judgment" and "Decree" though looks similar but both stand on different
footings. "Judgment" means the statement given by a Judge on the grounds of a 'decree' or 'order'.
Therefore, the legislature has avoided the use of words 'formal expression' in the definition of "judgment".
However, this expression has been used in case of "Decree" and "Order". 1 It is not necessary that in a
decree, there should be a statement of reasons given by a Judge, though, it is necessary in a judgment. The
"decree" is the formal expression of conclusions arrived at in the judgment. The last paras of the judgment
normally state precisely, the relief granted to the parties. Thus, a judgment contemplates a stage prior to
the passing of a decree or an order, and, after the pronouncement of judgment, a decree shall follow.
(10) “judgment-debtor” means any person against whom a decree has been passed or an order capable of
execution has been made;
The judgment-debtor is a person against whom a court has made a monetary award. If the court
pronounces a judgment involving money-damages, the losing party must satisfy the amount of the award,
and such award is termed as "judgment debt". Such award gives the winner of the suit or judgment, or
award, the right to recover the debt in the way of extra-ordinary means and the court helps the judgment-
creditor to do so or proceed against it because the judgment-creditor gains the rights and protection. The
court can order the judgment-debtor to appear for an oral hearing to assess his assets. If it is determined or
assessed that the judgment-debtor has sufficient assets to satisfy the debt the court can order the debtor to
surrender his property to it. This process is known as "attachment of property" or a part of judgment-
debtor's salary by the a process called "garnishment".
However, expression "Judgment-debtor' does not include:
(i) legal-representative of a decreased judgment-debtor; Ramji Das v. S. Mohammad Laiq, AIR 1953 All
461.
(ii) surety of a judgment debtor; Vijay Raj v. Lal Chand, (1966) ILR Raj 194.
(11) “legal representative” means a person who in law represents the estate of a deceased person, and
includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in
a representative character the person on whom the estate devolves on the death of the party so suing or
sued: In the Code, the term "legal representative" under Section 2(11) is defined broadly to ensure that
legal proceedings do not fail upon the death of a party. It includes not only the lawful heirs who represent
the estate of the deceased but also any person who "intermeddles" with the estate, meaning someone who
takes unauthorized possession or control of the deceased’s property. Furthermore, if a person was suing or
being sued in a representative capacity (such as a trustee), the individual upon whom that specific legal
status devolves after their death is also considered a legal representative. This ensures that the liability or
right to sue is passed on to the correct entity, maintaining the continuity of the litigation.
(12) “mesne profits” of property means those profits which the person in wrongful possession of such
property actually received or might with ordinary diligence have received therefrom, together with
interest on such profits, but shall not include profits due to improvements made by the person in wrongful
possession: Section 2(12) defines "mesne profits" as the compensation that a person in wrongful
possession of a property must pay to the rightful owner. These profits are calculated based on what the
wrongful possessor actually received or what they "might with ordinary diligence" have earned from the
property during their occupation, along with interest. Crucially, this definition excludes any profits
resulting from improvements made to the property by the person in wrongful possession, as the owner is
not entitled to benefit from the trespasser's own investments.
(13) “movable property” includes growing crops: In a different category of property, Section 2(13)
clarifies that "movable property" specifically includes growing crops, distinguishing them from the land
itself and ensuring they can be attached or sold as movable assets during legal execution.
(14) “order” means the formal expression of any decision of a Civil Court which is not a decree: The
distinction between different types of judicial announcements is clarified in Section 2(14), which defines
an "order" as the formal expression of a Civil Court’s decision that does not amount to a decree. While
both are formal decisions, an order generally deals with procedural matters or interim issues rather than
the final adjudication of the parties' main rights.
(15) “pleader” means any person entitled to appear and plead for another in Court, and includes an
advocate, a vakil and an attorney of a High Court: Section 2(15) provides an inclusive definition of
a "pleader," identifying them as any person legally entitled to appear and argue on behalf of another in
court. This term is an umbrella that encompasses various legal professionals, including advocates, vakils,
and attorneys of a High Court, ensuring that the right to legal representation is clearly recognized
throughout the Code.
(16) “prescribed” means prescribed by rules: the term "prescribed" under Section 2(16) is a technical
reference meaning anything established or dictated by the "rules." This is directly linked to Section 2(18),
which defines "rules" as the specific procedures and forms found in the First Schedule of the Code, as
well as any rules formulated by High Courts under their powers in Sections 122 or 125. By linking these
terms, the Code ensures that whenever it mentions a "prescribed" manner for filing an application or
serving a notice, it is legally directing the user to the procedural rules that supplement the substantive
sections of the Act.
(17) “public officer” means a person falling under any of the following descriptions, namely :—
(a) every Judge;
(b) every member of 1 [an All-India Service];
(c) every commissioned or gazetted officer in the military 2 [naval or air] forces of. 3 [the Union] 4 ***
while serving under the Government;
(d) Every officer of a court of Justice whose duty it is, as such officer, to investigate or report on any
matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any
property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order,
in the Court, and every person especially authorised by a court of Justice to perform any of such duties;
(e) every person who holds any office by virtue of which he is empowered to place or keep any person in
confinement;
(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give
information of offences, to bring offenders to justice, or to protect the public health, safety or
convenience;
(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf
of the Government, or to make any survey, assessment or contract on behalf of the Government, or to
execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests
of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of
the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the
Government; and
(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the
performance of any public duty;
Section 2(17) provides an exhaustive and vital definition of a "public officer," categorizing individuals
who serve the state or the administration of justice. This includes all Judges and members of All-India
Services, as well as commissioned or gazetted officers in the Union’s military, naval, or air forces while in
active service. The definition extends to any officer of a Court of Justice responsible for investigating
facts, maintaining documents, disposing of property, or administering oaths, and even those empowered
to keep persons in confinement. Furthermore, it covers Government officers tasked with preventing
crimes, protecting public health, or managing the Government’s pecuniary interests—such as those
involved in revenue collection, surveys, or contracts. Finally, it encompasses any person in the service or
pay of the Government or those remunerated by fees for public duties. This classification is significant
because "public officers" are entitled to specific procedural protections under the CPC, such as a
mandatory two-month notice period under Section 80 before a suit can be filed against them for their
official acts.
(18) “rules” means rules and forms contained in the First Schedule or made under section 122 or section
125;
(19) “share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds; and
Section 2(19) provides a modern commercial interpretation for the term "share in a corporation." By
stating that this term is "deemed to include" stock, debenture stock, debentures, or bonds, the Code
ensures that various types of corporate securities are treated with the same legal weight as standard
shares. This inclusive definition allows the court to attach or sell these financial instruments during the
execution of a decree, ensuring that a judgment-debtor's diverse investment portfolio can be reached to
satisfy a legal debt.
(20) “signed”, save in the case of a judgment or decree, includes stamped.

Suits: Its types, constituents of a suit, Bars to a suit (exclusion of jurisdiction under section 9)
Section 9 - Scope and Application
Suits of civil nature are instituted and tried by the civil courts. The court means that apart from having the
trappings of some judicial tribunal should also have the capacity and the power to give the definitive
judgment which is a finality and has authority, which are the essentials off the judicial pronouncements.
Section 9 of the CPC gives the power to the Civil Courts to try the suits which are of civil nature and are
not either expressly or impliedly barred by any other law.
Hence, a civil court can try a case if -
 The suit in the question is of a civil nature
 The cognizance of the suit is not expressly or impliedly barred by any other statute
The definition of the civil suit is not enunciated anywhere in the Code. It can be said that a suit which is
not criminal in nature is a civil suit. It was held in the case of Dhruv Green Field vs. Hukam Singh, that
whenever a special statute provides for the exclusion of the civil courts to entertain a suit then it should be
construed strictly but in a case where a civil court has the power grant relief to one of the part of the suit
then it has the jurisdiction to entertain such a suit.
The Code lays down the procedures as to how the suit and what kind of the suits can be entertained by the
civil courts and it was held in the case of Union of India v. Delhi High Court Bar Assn that it is not an
absolute right given to anyone to decide that a case needs to be determined and entertained by the Civil
Court only. Whenever a statute is silent whether the dispute is of the civil nature or not then it cannot take
away the jurisdiction of the civil courts to try such matters merely on this issue.
The bar may be provided explicitly or impliedly to file civil suit. A bar is said to be an explicit bar when it
is clearly provided in the statute that the civil courts will be barred from trying this kind of suit. An
implied bar is when the statute is providing a legal remedy to the aggrieved party in the form of an appeal,
this is an implied bar on the section 9 of the CPC that such a case cannot be tried by the civil court.
An inherent lack of jurisdiction is a case when the court has no jurisdiction to try the case so the decree
passed in such a case will be a nullity. Whether the court has jurisdiction or not can be decided once the
issues are framed and the arguments are advanced. It was held by the court in the case of Mathura v.
Dossibai where a decision is given by the court when the court had no jurisdiction then it would not be
considered as the res judicata in the subsequent proceeding in the same matter in issue between the same
parties. In a case where more than one court has jurisdiction to try a case then an agreement can be made
between the parties to submit the dispute to one of the courts and such an agreement will not be
considered as against the public policy.
In other words it can be said that the theory of jurisdiction as enunciated under section 9 of the CPC was
discussed by the Supreme Court in the case of PMA Metropolitan v. M.M. Malhotra. The court observed
as follow-
 The phrases used in the section 9 of the Code have both the positive and negative intent.
 Section 9 is divided into two parts wherein one part talks about the jurisdiction to try the civil
cases and the other part talks about the suit that are impliedly and expressly barred to be tried by
the civil courts.
 The use of word shall in the section denote that the section is a compulsory section.
After reading the concept underlying section 9 of CPC, we can say that the civil court tries only suits of
civil nature. And the cases which are not of civil nature or the suits which are expressly or impliedly
barred are tried either in tribunals or councils or special courts specified under any enactment. The
questions purely relating to caste or religious ceremonies are decided by the community or religious heads
like priests, spiritual heads, etc. On the other side, questions that are political in nature are decided by
public administrative authorities.
Cases expressly & impliedly barred
The exclusion of the jurisdiction of the civil court must be mentioned in clear and unequivocal manner
and should not be merely implied. In order to decide the question of the jurisdiction, the main things
which need to be seen in the suit is the true nature of the suit and the substance of the plaint. In case if it
has to be decided that whether the jurisdiction of the civil court is barred then two things will have to be
considered.
 The statute provides for the express bar of the civil court to decide the suit.
 The statute provides an efficacious alternate remedy.
In Tamil Nadu v. Ramalinga, it was held by the court that if a final order has been passed by the special
tribunal then it would be seen that such a remedy could have been provided by the civil court or not. If the
answer is that such a remedy can be provided by the civil court also, then it cannot be automatically held
that the civil court had no jurisdiction to try the suit.
In case of Sonawati v. Sriram it was held by the court that jurisdiction of the civil court cannot be
displaced during the pendency of the suit if the other party has secured the order by any other court
defeated on merits. It was held in the case of Veermalai v. Srinivas that if a suit is instituted in a civil court
and the bar to try such a suit has been introduced after the institution of the suit then the court will still
have the jurisdiction to try such a suit which was instituted before the bar came in the existence.
It was held in the case of Sri Sinha Ramanuja v. Sri Ranga that suits which raise questions regarding the
religious rites and ceremonies is not maintainable as it does not decide on the legal rights of the parties. In
order to explain it a little further, Explanation I was added that implies two things-
1. A suit for an office is a suit which is of a civil nature
2. The suit of office does not cease to be suit of the civil nature even if the right depends upon a
decision to decide on legal rites and ceremonies.
The Explanation II clears the position that for the office it is immaterial to know that office as given under
Explanation I carries any fees or not or is attached to any property or not. In Saraswatibai Trimbak
Gaikwas v. Damodhar D. Motiwale, it was held by the court that decree passed by the civil court without
taking into consideration the special Act and it must be subject to the orders of the appropriate authority.
In general, the civil court‘s jurisdiction is barred in case where a special tribunal or a domestic tribunal is
conferred with a power to try a suit but it was held by the Supreme Court in the case of Ramesh Chand
Ardawatiya v. Anil Panjwani, that even if the domestic/special tribunal is established and conferred with
the power to try a suit then too the jurisdiction of the civil court is not barred to try a suit if there are some
grounds that are sufficient to establish the jurisdiction of the civil court despite the availability of the
special and domestic tribunals to try such a case.
In Medical Faculty v. Kshiti, it was held by the court that if a person wants the jurisdiction of the civil
court then the person needs to show that the domestic courts have exceeded the jurisdiction which was
provided to them by the authority. The civil courts however cannot interfere with the jurisdiction of the
domestic tribunals no matter how severe the penalty is until and unless the domestic courts have exercised
exceeded their jurisdiction and acted in good faith.
In case the jurisdiction of the civil court has been invoked the civil courts will not go beyond the power of
just checking that the tribunal followed the principles of natural justice or not. In Dave v. Lodge Victoria,
it was held by the court that a civil court can set aside the order passed by the domestic and special
tribunals if they have not acted within the jurisdiction or did not follow the principles of Natural Justice.
One of the landmark judgments of the Supreme Court related to the jurisdiction of the civil courts in the
regime of arbitration is Prakash Narain Sharma v. Burmah Shell C.H.S. Ltd. In this case it was held by
the courts that the jurisdiction of the civil courts is still not barred even if the matter has been referred to
the arbitration under the provisions of the Co-operative Societies Act. The Supreme Court while giving
the judgment in the case relied heavily on Dhuabhai v. State of Madhya Pradesh in which the court held
that the jurisdiction of the civil court is not barred even if the statute has barred the jurisdiction expressly
if there are requisite grounds for the civil court to interfere and try the matter.
The court in the case of State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd. held that the civil
courts must investigate facts related to the suit on the same cause of action where the criminal court has
already decided the matter and has given a conclusive judgment. The court in the present case also held
that the jurisdiction of the civil court is not barred even if the case on the same matter is pending before
the criminal court. Hence, it is now a settled law that the pendency of the matter in the criminal court will
not bar the civil court to try the matter in the civil suit by exercising its jurisdiction.
In Chairman, Railway Board v. Chandrima Das, it was held by the court where the fundamental rights
have been infringed by the public authorities, a civil suit can be filed in the civil court under private law
even if the remedy is still available in the public law.
The jurisdiction and remedies available under Article 226 of the Constitution and section 9 of the CPC are
stand under different footing. It was held in the case of Srikant Kashinath Jiuri v. Corpn of the Vity of
Belgaum that whatever is good for Article 226 may not be good for the suit under CPC. In N.T. Abraham
v. State of Kerala, it was held by the court that where one party has paid excess money to the other party
then the remedy lies by instituting the suit of the civil nature in the civil courts and not by filing the writ
petition under Article 226.
Recognised agents
Order 3 of CPC talks about the "recognized agents". These are the people who are allowed to act for
others in court cases. Let's understand what Order 3 states. Civil cases require parties to be represented
properly. This helps justice be served fairly. The CPC lays down how civil cases should proceed in India.
Order 3 covers an important aspect regarding who can speak for someone in court. It deals with
recognized agents and pleaders authorized to represent parties. In this article, we'll explain Order 3
simply. You'll learn its key provisions. And how they impact legal proceedings for those involved.
Understanding Order 3 clarifies an essential part of civil litigation.
Order 3 talks about how people can legally act for others in court. It states who is eligible to do this and
how much they can do. There are two main groups: recognized agents like attorneys, and pleaders or
lawyers. This Order makes sure that the representation of people happens properly, by having clear rules
everyone follows. It separates and defines the different kinds of legal representatives. This keeps the law
organized and legitimate when someone acts on another's behalf.
Order 3, Rule 1 says that when someone must show up in court, or make a request to the court, they can
do this in person or through a recognized agent or lawyer speaking for them. Recognized agents are
people given authority to speak for others in court by having a power of attorney. A power of attorney is a
legal document that lets recognized agents make court appearances or requests for others.
Order 3's rules outline how a representative should act, proper conduct and their representation powers.
Order 3's Rule 2 stresses appointing an agent (non-lawyer) through a written, signed document clearly
identifying the party. This requirement formalizes and makes such representation accountable. The
regulation prohibits impersonation or unauthorized representation. This highlights the legal system's focus
on allowing solely approved individuals to represent parties in court cases. The order allows people to
allow others to act for them. This is called a power of attorney. But it must be written down and legally
approved. That way, the named person can properly represent the other. Order 3 establishes guidelines for
pleaders' representation. However, it also indirectly highlights the significance of ethical conduct in
legal practice. Lawyers must uphold the law's dignity and ensure integrity.
ORDER III – Recognised Agents and Pleaders
Rule 1: Appearances, etc., may be in person, by recognised agent or by pleader.—
Any appearance, application or act in or to any Court, required or authorised by law to be made or done
by a party in such Court, may, except where otherwise expressly provided by any law for the time being
in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing,
applying or acting, as the case may be, on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person.

Rule 2: Recognised agents.—The recognised agents of parties by whom such appearances, applications
and acts may be made or done are—
(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications
and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local
limits of the jurisdiction of the Court within which limits the appearance, application or act is made or
done, in matters connected with such trade or business only, where no other agent is expressly authorised
to make and do such appearances, applications and acts.

Rule 3: Service of process on recognised agents.—

(1) Process served on the recognised agent of a party shall be as effectual as if the same had been served
on the party in person, unless the Court otherwise directs.
(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his
recognised agent
Rule 4: Appointment of pleader.—
(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such
person by a document in writing signed by such person or by his recognised agent or by some other
person duly authorised by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed
to be in force until determined with the leave of the Court by a writing signed by the client or the pleader,
as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the
suit are ended so far as regards the client.
Explanation.—For the purposes of this sub-rule, the following shall be deemed to be proceedings in the
suit,—
(a) an application for the review of decree or order in the suit,
(b) an application under Section 144 or under Section 152 of this Code, in relation to any decree or order
made in the suit,
(c) an appeal from any decree or order in the suit, and
(d) any application or act for the purpose of obtaining copies of documents or return of documents
produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the
suit.
(3) Nothing in sub-rule (2) shall be construed—
(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or
(b) as authorising service on the pleader of any notice or document issued by any Court other than the
Court for which the pleader was engaged, except where such service was expressly agreed to by the client
in the document referred to in sub-rule (1).
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is
unable to write his name, his mark upon the document appointing the pleader shall be attested by such
person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party,
unless he has filed in Court a memorandum of appearance signed by himself and stating—
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to appear:
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party
by any other pleader who has been duly appointed to act in Court on behalf of such party.
Rule 5: Service of process on pleader.—
Any process served on the pleader who has been duly appointed to act in Court for any party or left at the
office or ordinary residence of such pleader, and whether the same is for the personal appearance of the
party or not, shall be presumed to be duly communicated and made known to the party whom the pleader
represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had
been given to or served on the party in person.
Rule 6: Agent to accept service.—
(1) Besides the recognised agents described in Rule 2 any person residing within the jurisdiction of the
Court may be appointed an agent to accept service of process.
(2) Appointment to be in writing and to be filed in Court.—Such appointment may be special or
general and shall be made by an instrument in writing signed by the principal, and such instrument or, if
the appointment is general, a certified copy thereof shall be filed in Court.
(3) The Court may, at any stage of the suit, order any party to the suit not having a recognised agent
residing within the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court
on his behalf, to appoint, within a specified time, an agent residing within the jurisdiction of the Court to
accept service of the process on his behalf.
Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217: “Order 3 Rules 1 and 2 CPC
empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts”
employed in Order 3 Rules 1 and 2 CPC confines only to in respect of “acts” done by the power-of-
attorney holder in exercise of power granted by the instrument. The term “acts” would not include
deposing in place and instead of the principal. In other words, if the power-of-attorney holder has
rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of
such acts, but he cannot depose for the principal for the acts done by the principal and not by him.
Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have
a personal knowledge and in respect of which the principal is entitled to be cross-examined.”
Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75: “Vakalatnama, a species of
power of attorney, is an important document, which enables and authorises the pleader appearing for a
litigant to do several acts as an agent, which are binding on the litigant who is the principal. It is a
document which creates the special relationship between the lawyer and the client. It regulates and
governs the extent of delegation of authority to the pleader and the terms and conditions governing such
delegation. It should, therefore, be properly filled/attested/accepted with care and caution. Obtaining the
signature of the litigant on blank vakalatnamas and filling them subsequently should be avoided. We may
take judicial notice of the following defects routinely found in vakalatnamas filed in courts:
(a) Failure to mention the name(s) of the person(s) executing the vakalatnama and leaving the relevant
column blank.
(b) Failure to disclose the name, designation or authority of the person executing the vakalatnama on
behalf of the grantor (where the vakalatnama is signed on behalf of a company, society or body) by either
affixing a seal or by mentioning the name and designation below the signature of the executant (and
failure to annex a copy of such authority with the vakalatnama).
(c) Failure on the part of the pleader in whose favour the vakalatnama is executed, to sign it in token of
its acceptance.
(d) Failure to identify the person executing the vakalatnama or failure to certify that the pleader has
satisfied himself about the due execution of the vakalatnama.
(e) Failure to mention the address of the pleader for purpose of service (in particular in cases of
outstation counsel).
(f) Where the vakalatnama is executed by someone for self and on behalf of someone else, failure to
mention the fact that it is being so executed. For example, when a father and the minor children are
parties, invariably there is a single signature of the father alone in the vakalatnama without any
endorsement/statement that the signature is for “self and as guardian of his minor children”. Similarly,
where a firm and its partner, or a company and its director, or a trust and its trustee, or an organisation
and its office-bearer, execute a vakalatnama, invariably there will be only one signature without even an
endorsement that the signature is both in his/her personal capacity and as the person authorised to sign
on behalf of the corporate body/ firm/ society/ organisation.
(g) Where the vakalatnama is executed by a power-of-attorney holder of a party, failure to disclose that it
is being executed by an attorney-holder and failure to annex a copy of the power of attorney.
(h) Where several persons sign a single vakalatnama, failure to affix the signatures seriatim, without
mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have
signed the vakalatnama where the signatures are illegible scrawls.)
(i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for
appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas
for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of the High
Court and engage a pleader for appearance in a higher court and execute a vakalatnama in favour of
such pleader.)
We have referred to the above routine defects, as Registries/offices do not verify the vakalatnamas with
the care and caution they deserve. Such failure many a time leads to avoidable complications at later
stages.”
Foreign judgements
According to section 2(6) of the Code of Civil Procedure, 1908:
"Foreign Judgment means the judgment of a foreign court."
It is clear from the definition of the words "Foreign Judgment" that it creates a new right in favour of the
creditor and a new obligation imposed by the foreign court on the debtor. In Satya v. Teja Singh, (1975) 2
SCR 197 it was held by the Supreme Court that,
"A judgment of foreign court is enforced on the principle that court of competent jurisdiction has
adjudicated upon a claim, a legal obligation arises to satisfy that claim. The rules of Private International
Law of each state in the very nature of things differ, but by the comity of nations certain rules are
recognized as common to civilized jurisdictions. Such a recognition is accorded not as an act of courtesy
but on considerations of justice, equity and good conscience."
Non-conclusiveness of foreign judgment/objection to a foreign judgment [Section 13].
A Foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim litigating under the same title
except:
(a) where it has not been pronounced by a court of competent jurisdiction;
(b) where it has been given on the merits of the case;
(c) where it appears on the face of proceedings to be founded on an incorrect view of international law or
a refusal to recognize the law of India in case in which such law is applicable;
(d) where it has been obtained by fraud;
(e) where the proceedings in which the judgment was obtained are opposed to natural justice; and
(f) where it sustains a claim founded on a breach of any law in force in India.
Under section 13 of the Code of Civil Procedure, 1908, a foreign judgment is conclusive and will operates
as res judicata between the parties in six cases [clauses (a) to (f)].
Foreign Judgment not by Competent Court
It is a cardinal and most fundamental principle of law that the judgment or order passed by the Court
which has no jurisdiction is null and void. Thus, judgment pronounced must be competent Foreign Court
both by the law of the state which has constituted it and in an international sense and it must have directly
adjudicated upon the "matter" which is pleaded as "res judicata"; Vishwanathan v. Abdul Wazid, AIR
1963 SC 21.
Thus, if A sues B in a foreign court, and if the suit is dismissed, the decision will operate as a bar to a
fresh suit by A in India on the same cause-of-action. On the other hand if a decree is passed in favour of A
by a foreign court against B and he sues 6 on the judgment in India, B will be precluded from putting in
issue, the same matters that were directly and substantially in issue in the suit and adjudicated upon by the
foreign court.
In an action in personam in respect of any cause-of-action, the Court of a foreign country is a court of
competent jurisdiction where the defendant is personally within the jurisdiction or submits to the
jurisdiction or though outside the jurisdiction may be reached by an order of the Court. In an action in
personam the court has jurisdiction to make an order for delivery of movables where the parties submit to
jurisdiction. However, the Court has no jurisdiction to pass a decree in respect of an immovable property
situated in a foreign state. A decree passed by a court in Ceylon against a native of state in a suit on a
contract who was not residing in Ceylon is a nullity; and cannot be enforced by an Indian Court; Sheikh
Atham v. Davud, 1909 Mad 469.
Bharat Nidhi Ltd. case
In Bharat Nidhi Ltd. v. Megh Raj Mahajan, AIR 1964 Del 22 Bharati Nidhi Ltd. (Plaintiff-appellant) filed
a suit against Megh Raj Mahajan (defendant-respondent) on 24th August, 1949 to recover (Dues) on 20th
December, 1949, the senior subordinate judge, Sialkot, decreed the suit. The suit for recovery of (Dues)
was filed on 12th June, 1954, on the basis of judgment of senior subordinate judge Sialkot. The decree of
Sialkot Court observed "a summons was duly served upon Megh Raj Mahajan, notwithstanding which he
has not appeared to defend the suit". From this finding the appellants advocate wants this court to reduce
that the defendant was physically present in Pakistan when he was served the notice when the initial suit
was filed in Sialkot Court.
For the Bharat Nidhi Ltd. to succeed in suit the judgment and decree passed by Sialkot court (foreign
court) must not be nullity, i.e., Sialkot Court must be a competent court. In the present suit, para 4 of the
plaint as ordinarily filed there was no allegation about the domicile, nationality or residence of the
defendant. Whereas in his written statement Meghraj Mahajan (defendant) denies that the amount, if any,
to the plaintiff was payable at Sialkot or any place in Pakistan on 24th August, 1949 when the defendant
had since long before (from September 1947) ceased to be reside or carry on business in Sialkot and had
actually migrated to India and had become an Indian national. The defendant appearing his own witness
stated--"prior to partition I was residing in Sialkot. I migrated to India in beginning of the month of
September 1947 due to civil disturbances thereafter 1 was settled in India, "I got myself registered as
displaced person in India" ....I have never been to Pakistan or Sialkot thereafter."
The evidence (registration as displaced person) by Megh Raj Mahajan (defendant) was sufficient to admit
the fact that he shifted from Sialkot in September 1947 to the territories comprised in India (after 15th
August, 1947), became a permanent domicile and resident thereof with no intention of going back to
Pakistan, and never went to Pakistan after September, 1947.
It was held, both on the date of institution of suit i.e. (24th August, 1949) and the date of judgment (20th
December, 1949) the defendant was domicile and resident of India. The defendant not having submitted
to the jurisdiction of Sialkot Court in a personal action against him, a decree pronounced in absentee
would be absolute nullity not enforceable.
In Raj Rajendra Sardar Maloji Marsingh Rao Shitole v. Shankar Saran, (1963) 2 SCR 577, the Supreme
Court observed that,
"It may be noted that the crucial date to determine whether the judgment is of a foreign court or not is the
date of Judgment and not the date when it is sought to be enforced or executed. Thus a judgment of a
court which was a foreign court at the time of its pronouncement would not cease to be a foreign court by
reason of the fact that subsequently the foreign territory has become part of Union of India. On the other
hand, an order which was good and competent when it was made and passed by a tribunal which was
domestic at the date of its making and which could at the date have been enforced by an Indian court,
does not lose its efficacy by reason of the partition".
In order to be conclusive the foreign judgment must be on the merits, i.e., the judge applies his mind to
detect the truth or falsity of the plaintiffs case and decides the case one way or the other. Thus, when the
suit is dismissed for the default of appearance of the plaintiff or for the non-production of document by
the plaintiff even before the written statement filed by the defendant, or where the decree was passed in
consequence of default of defendant in furnishing security, or after refusing leave to defend, such
judgments are not on merits. A judgment of a foreign court on compromise is a judgment on merits and
must be held to be conclusive; Satyanarain v. Balchand, ILR (1954) 4 Raj 905.
A judgment based upon an incorrect view of international law or refusal to recognize the law of India
where such law is applicable is not conclusive. But the mistake must be apparent on the face of the
proceedings. Thus, where a suit is instituted in U.K. on the basis of a contract made in India, the English
court erroneously applied the English law, the judgment of the court is covered by this clause in as much
as it is a general principle of Private International Law that the rights and liabilities of the parties to a
contract are governed by the place where the contract is made (Lex Loci contracts); Gurdayal Singh v.
Rajah of Faridkot, (1895) 22 Cal 222.
Foreign Judgment obtained by Fraud
All judgments whether pronounced by domestic or foreign courts are void if obtained by fraud, for fraud
vitiates the most solemn proceeding of the court of justice; Mahboob Saheb v. Syed Ismail, (1995) 3 SCC
693. Though it is not permissible to show that the court was "mistaken", it might be shown that it was
"misled". There is an essential distinction between mistake and trickery. A "mistake of law" in a foreign
judgment is no ground for vacating it, but it can be set aside if the court was imposed upon or tricked into
giving the judgment.
In the leading case of Satya v. Teja Singh, (1975) 2 SCR 197, a husband obtained a decree of divorce
against his wife from an American court averring that he was domiciled in America observing that the
husband was not a bona fide resident or domicile of America, and he had played a fraud on a foreign court
falsely representing to it incorrect jurisdictional fact, the Supreme Court held that the decree was without
jurisdiction and nullity.
In S.P. Chengalvaraya Naidu v. Jagannath, 1994 (1) UJ 1 (SC), the Supreme Court stated. "It is settled
proposition of law that a judgment or a decree obtained by playing fraud on the court is a nullity and
nonest in the eyes of the law. Such a judgment/decree by the first court or by the highest Court, has to be
treated as nullity by every court, whether superior or inferior. It can be challenged in any court even in
collateral proceedings".
Foreign Judgment opposed to Natural Justice
In Sankaran Govindan v. Lakshmi Bharathi, (1975) 1 SCR 57, Hon'ble Supreme Court observed that, the
Court rendering the judgement must comply with the minimum requirement of natural justice--it must be
composed of impartial persons, act fairly, without bias, and in good faith; it must give reasonable notice
to the parties to the dispute and afford each party an adequate opportunity of presenting his case. A
judgment which is the result of liaise or want of impartiality on the part of a judge will be regarded as a
nullity and the trial "coram non judice."
The expression "natural justice" in section 13(d) relates to the irregularities in procedure rather than to the
'merits' of the case.
Where the foreign judgment is founded on a breach of any law in force in India, it would not be enforced
in India. Every case which comes before an Indian court must be decided in accordance with Indian law.
It is implicit that the foreign law must not offend our public policy. Thus, a foreign judgment on a claim
which is barred under the law of limitation in India is not conclusive. Similarly, a decree for divorce
passed by foreign court cannot be confirmed by an Indian court if under the Indian law the marriage is
indissoluble; Y. Narasimha Rao v. Venkata Lakshmi, (1991) 2 SCR 821.
Section 14 of the Code of Civil Procedure, 1908 declares that,
"The Court shall presume, upon the production of any document purporting to be a certified copy of a
foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the
contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction."
Enforcement of Foreign Judgments
A foreign judgment which is conclusive as per section 13 of the Code of Civil Procedure, 1908 can be
enforced in India on the basis of following ways:
(i) By instituting a suit on such foreign judgment, however, such suit must be filed within 3 years from
the date of foreign judgment.
(ii) By instituting execution proceedings in specific cases mentioned in sections 44 and 44A of the Code
of Civil Procedure, 1908.
The decree can be executed under section 44A of the Code of Civil Procedure, 1908 only, if all the
conditions of section 13(a) to (f) are satisfied.
A "foreign judgment" to be a valid cause of action for a suit upon it in India, must be final and conclusive
"in the court in which it is passed." In order to establish that a final and conclusive judgment has been
pronounced, it must be shown that, in the court in which it was pronounced, it conclusively, finally and
forever established the existence of the right of which it sought to be made conclusive evidence in India
so as to make it res judicata between the parries.
Incidental (S. 75-77) and supplemental proceedings (S.94 -95)
Sections 75 to 77 of the Code of Civil Procedure, 1908 deal with the incidental powers of a civil court.
These provisions do not create substantive rights. They confer auxiliary procedural powers upon the court
to enable effective adjudication of the principal dispute. The object is to ensure that justice is not defeated
due to procedural limitations or practical constraints.
Section 75 is the substantive enabling provision. It authorizes the court to issue commissions in specified
circumstances. The provision is enabling in nature and is to be read with Order XXVI of the CPC, which
lays down the procedural framework governing the exercise of these powers. The Supreme Court and
various High Courts have consistently held that Section 75 is discretionary and must be exercised
judiciously, not mechanically.
Section 75 empowers the court to issue commissions for:
1. Examination of any person
2. Local investigation
3. Examination or adjustment of accounts
4. Making partition
5. Scientific, technical, or expert investigation
6. Conducting sale of property
7. Performing any ministerial act
These categories reflect situations where the court requires assistance to ascertain facts or implement its
decision effectively.
The power to issue a commission is not a substitute for evidence that a party ought to produce. Courts
have repeatedly clarified that a commission cannot be used to fill lacunae in evidence. In Haryana Waqf
Board v. Shanti Sarup (2008) 8 SCC 671, the Supreme Court held that a local commissioner cannot be
appointed to collect evidence for a party. The function of a commissioner is to assist the court, not to
enable a litigant to strengthen its case.
Thus, incidental proceedings under Sections 75–77 operate as procedural tools that supplement the court’s
adjudicatory function without enlarging its jurisdiction.
Section 75 is operationalized through Order XXVI of the Code. The power to issue a commission is
discretionary and must be exercised only when the court considers it necessary for the ends of justice or
for expeditious disposal of the suit. The provision does not confer a right on either party. The court must
record reasons demonstrating necessity.
1. Commission for Examination of Witnesses (Order XXVI Rules 1–8)
A commission may be issued when a witness:
 resides beyond the local limits of the court’s jurisdiction,
  is about to leave such jurisdiction,
 is unable to attend due to sickness, infirmity, or other sufficient cause, or
 is exempted from personal appearance.
The object is to preserve material evidence without causing undue hardship.
In Kamal Kumar v. Ruby General Hospital Ltd. (2016) 7 SCC 613, the Supreme Court emphasized that
recording of evidence on commission must not prejudice cross-examination and the opposite party must
be given full opportunity to participate. The appointment of a commissioner cannot dilute procedural
fairness.
The court must ensure that the issuance of commission does not become a routine practice. Personal
examination in open court remains the rule; examination on commission is an exception.
2. Commission for Local Investigation (Order XXVI Rule 9)
A commission for local investigation may be issued when the court deems it necessary or proper to
elucidate any matter in dispute, ascertain market value, determine mesne profits, or assess damages.
The purpose is clarification of facts which cannot be conveniently brought before the court through oral
evidence alone.
In Haryana Waqf Board v. Shanti Sarup (2008) 8 SCC 671, the Supreme Court held that a commissioner
cannot be appointed to collect evidence on behalf of a party. The commissioner’s role is limited to
assisting the court in understanding the factual matrix. Appointment merely to find out who is in
possession is generally impermissible if it amounts to collecting evidence.
Similarly, courts have held that local investigation cannot be used to substitute proof of title.
3. Commission for Examination or Adjustment of Accounts (Order XXVI Rules 11–12)
Where a suit involves complicated accounts, the court may issue a commission to examine or adjust
accounts. This is common in partnership disputes, administration suits, and matters involving fiduciary
accounting.
The commissioner submits a report which forms part of the record. However, the report is not binding.
Parties may file objections. The court must independently apply its mind before accepting or modifying
the report.
Judicial precedent establishes that the commissioner performs a quasi-judicial function in such matters,
but final adjudication remains with the court.
4. Commission for Partition (Order XXVI Rules 13–14)
In partition suits, after passing a preliminary decree determining shares, the court may appoint a
commissioner to effect actual division by metes and bounds.
The commissioner prepares a plan and submits a report. Objections may be raised. The court may
confirm, vary, or set aside the report before passing the final decree.
The Supreme Court in Shub Karan Bubna v. Sita Saran Bubna (2009) 9 SCC 689 clarified the distinction
between preliminary and final decrees in partition matters and emphasized the structured role of the
commissioner in final decree proceedings.
5. Commission for Scientific or Expert Investigation (Order XXVI Rule 10A)
Inserted to modernize procedural assistance, this provision allows appointment of experts for scientific
investigation. This is frequently invoked in matters involving handwriting comparison, technical
measurements, valuation, environmental assessment, and intellectual property disputes.
The commissioner’s report is evidence but is subject to cross-examination. The court cannot mechanically
rely on it.
6. Commission for Sale of Movable Property (Order XXVI Rule 10C)
Where movable property is subject to speedy decay or where sale is otherwise necessary, the court may
appoint a commissioner to conduct sale. This prevents loss of value pending litigation.
7. Commission to Perform Ministerial Acts (Order XXVI Rule 10B)
The court may appoint a commissioner to perform purely ministerial acts such as measurement or
inventory preparation. This is administrative assistance, not adjudication.
Sections 76 and 77 CPC
Section 76 enables one court to issue a commission to another court situated outside its jurisdiction. This
ensures territorial flexibility and inter-court cooperation. Section 77 mandates that the court receiving the
commission shall execute it and return the evidence or report. The provision embodies the principle of
judicial comity and coordinated administration of justice.
These provisions are procedural bridges enabling effective fact-finding across territorial limits without
transferring the suit itself.
IV. Supplemental Proceedings (Sections 94–95 CPC)
Supplemental proceedings under Sections 94 and 95 CPC are fundamentally distinct from incidental
proceedings. While Sections 75–77 assist the court in fact-finding and implementation, Sections 94–95
empower the court to grant interim protective measures to prevent frustration of the ultimate decree.
These provisions are preventive in nature. They operate to preserve the subject matter of litigation, secure
the defendant’s presence, prevent dissipation of property, and maintain status quo pending adjudication.
Section 94 is the enabling provision. It authorizes the court, where it is necessary to prevent the ends of
justice from being defeated, to order certain interim measures. The procedural mechanics are provided in
various Orders of the CPC, primarily Orders XXXVIII, XXXIX and XL.
The phrase “if it is so prescribed” in Section 94 makes the provision conditional upon rules framed under
the Code. Therefore, Section 94 cannot be invoked independently. It must operate through the relevant
procedural Order.
1. Arrest Before Judgment (Section 94(a) read with Order XXXVIII Rules 1–4)
The court may order arrest of the defendant before judgment where it is satisfied that the defendant, with
intent to delay the plaintiff or to obstruct execution of a decree, is about to abscond or leave the
jurisdiction. This is an extraordinary remedy. It directly affects personal liberty and must be exercised
with strict scrutiny.
In Prem Raj Mundra v. Md. Maneck Gazi AIR 1951 Cal 156, the Calcutta High Court laid down that
arrest before judgment is not intended to convert an unsecured debt into a secured one. The court must be
satisfied about dishonest intention, not mere apprehension. The power cannot be exercised merely
because the plaintiff fears non-recovery. There must be material showing deliberate intent to defeat
execution.
2. Attachment Before Judgment
(Section 94(b) read with Order XXXVIII Rules 5–13)
Attachment before judgment is granted where the court is satisfied that the defendant, with intent to
obstruct or delay execution, is about to dispose of or remove property from jurisdiction.
The Supreme Court in Raman Tech & Process Engg. Co. v. Solanki Traders (2008) 2 SCC 302 clarified
that attachment before judgment is a drastic power and should not be exercised mechanically. It is not
meant to secure the plaintiff’s claim in every suit. The plaintiff must establish:
 A prima facie case
 Intention of the defendant to defeat execution
 Specific material facts, not vague allegations
The Court warned against using this provision as a pressure tactic in commercial disputes.
Attachment is protective, not punitive.
3. Temporary Injunctions
(Section 94(c) read with Order XXXIX Rules 1–5)
Temporary injunctions are granted to preserve the subject matter of the suit pending trial.
The settled triad governing injunctions is:
i. Prima facie case
ii. Balance of convenience
iii. Irreparable injury
The Supreme Court in Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719 held that a prima facie case
does not mean a case proved to the hilt. It means a substantial question requiring investigation.
Injunction is equitable and discretionary. Suppression of material facts disentitles the applicant.
4. Appointment of Receiver
(Section 94(d) read with Order XL)
The court may appoint a receiver when it appears just and convenient. A receiver takes custody,
management, or preservation of property during pendency of the suit.
In T. Krishnaswamy Chetty v. C. Thangavelu Chetty AIR 1955 Mad 430, principles governing
appointment of receiver were laid down:
i. Plaintiff must show a strong prima facie case
ii. There must be danger to property
iii. Appointment should not cause greater harm
iv. The remedy is discretionary and equitable
Receivership is a severe measure as it displaces possession.
5. Interlocutory Orders (Section 94(e))
This clause is residuary. It empowers the court to make such interlocutory orders as may appear just and
convenient. It must operate within the framework of the Code.
Courts have held that this provision cannot be invoked to create substantive rights or bypass specific
procedural safeguards.
V. Section 95 CPC – Compensation for Obtaining Arrest, Attachment or Injunction on Insufficient
Grounds
Section 95 acts as a safeguard against abuse of supplemental remedies.
Where arrest, attachment, or injunction has been obtained:
i. On insufficient grounds, or
ii. The suit ultimately fails and the court finds no reasonable ground for the application,
The court may award compensation to the defendant.
The object is deterrence against frivolous or oppressive interim applications.
However, compensation under Section 95 is limited to the pecuniary jurisdiction of the court and is
summary in nature. It does not bar a separate suit for damages where appropriate.
Key concepts: Cause of action, Locus standi, Lis pendens, Estoppel
The term “cause of action” has not been defined in the Code of Civil Procedure, 1908. It has been left for
the Judiciary to interpret. But in simplest terms, a “cause of action” can be defined as a legal claim that an
individual or entity can bring against another person or entity. It broadly consists of two elements: cause
(existence of a legal right and violation of a legal right) and action (a right to file a civil suit for violation
of a legal right).
Let's understand these elements with the help of an example: Suppose, ‘A’, a plaintiff is residing
peacefully in his house. ‘B’, the defendant commits a nuisance against him. Here, ‘A’ has the legal right
of peaceful enjoyment of his property which has been violated by ‘B’. Hence, ‘A’ can file a civil suit
against ‘B’ for violation of his rights.
In the case of M/S. Sonic Surgical v. National Insurance Co. Ltd., it was held that the cause of action
means that bundle of facts which gives rise to a right or liability and which enables a party to file a civil
suit. Cause of action is a sine qua non for the ultimate success of the suit. The burden of proving cause of
action lies upon the party who asserts the cause of action. Therefore, the cause of action is the pivot of the
suit and the entire suit revolves around it.
In another case of Coke v. Gill, it was held that cause of action means every fact which would be
necessary for the plaintiff to prove if traversed to support his right to the judgment of the court in his
favor.
Some of the general characteristics of a valid cause of action are as follows:
 Legal rights: A cause of action must be based on legal rights that are recognized by the law. These
rights may be derived from statutes or regulations.
 Legal duties: A cause of action must be based on a legal duty that the defendant owes to the
plaintiff and that duty must be breached to create a valid cause of action.
 Injury: a valid cause of action requires that the plaintiff should have suffered some injury as a
result of the breach of duty by the defendant. Moreover, the injury must be identifiable.
 Causation: for a valid cause of action, the plaintiff is burdened to prove the causal link between
the injury and the defendant’s breach of duty.
 Damages: if the injury to the plaintiff is quantifiable and identifiable and forms a valid cause of
action, the plaintiff is entitled to damages for the physical loss, emotional distress, or any other
harm.
Ramana Dayaram Shetty vs. International Airport Authority of India and Ors.
In this case, the International Airport authority put up the tender to put up a restaurant, etc at Bombay
Airport. A tender was accepted but later on found out that he did not fulfill one of the conditions of the
tender. Hence, the concerned authority asked the respondent to submit the documents to recheck its
eligibility. The respondent submitted the concerned documents and he was reconfirmed for the tender
even though he partially fulfilled the condition. The other party (appellant in this case) wanted to apply
for the bid but did not as they did not fulfill certain conditions. Hearing that the tender had been given to
somebody who did not fulfill the conditions, the appellant proceeded to Bombay High Court u/a 226 but
the case was dismissed. Later, it was appealed in the SC u/a136 of the Constitution. Therefore, the
constitutionality of the acceptance of the tender of the respondent was the major issue in this case. The
Court held the tender invalid on the grounds of the violation of A. 14 of the Constitution as the conditions
laid down by the airport authority were the basic eligibility criteria and cannot be disregarded by them.
This case has been the most celebrated in the field of administrative law.
Non-disclosure of cause of action and Rejection of Plaint
Order VII rule 11 requires the plaintiff to incorporate in the plaint the facts and constitute the cause of
action. The cause of action (existence and violation of a legal right) is the main substance of the suit as
the entire suit revolves around it. Disclosure of the cause of action is vital for a comprehensive and just
decision by the court as it enables the courts to frame the issues efficiently and fulfill the requirement of
natural justice to appraise the defendant about the actual cause of action in the suit so that he can prepare
his defense effectively. The court has to settle the issues based on pleading only. Therefore, the more
concise and precise the pleadings, the more accurate the issues. On the first hearing, the court shall
examine if the cause of action has been properly disclosed in the plaint or not by examining the pleadings
and even orally examining the witnesses if the need arises. If the cause of action has not been explicitly
disclosed then the court may ask the plaintiff to amend its pleading and disclose the cause of action
properly. The court normally takes a liberal approach and will not reject the plaint for non-disclosure of a
cause of action per se but if the court is of the view that the plaintiff is acting malafide then certainly the
court will reject the plaint on the face of it.
However, it is really important to note that for examining the cause of action the court will never examine
the defendant, written statement, or the witnesses of the defendant.
Cause of action and Res judicata
Res judicata refers to the principle that a final judgment on a matter by a competent court is conclusive
and binding on the parties involved. It serves the purpose of promoting finality and certainty in legal
proceedings and preventing parties from endlessly bringing the same issues before the courts. This
principle plays a crucial role in the legal landscape by ensuring that disputes are resolved and concluded
with finality, avoiding repeated litigation that may cause unnecessary delay. In the context of cause of
action, it means that once a particular cause of action has been litigated and decided, the parties cannot
bring another lawsuit based on the same cause of action. Thus, it promotes finality and efficiency in
resolving disputes.
In the case of State of U.P v Nawab Hussain, it was held that “Res judicata is the broader rule of evidence
which prohibits the reassertion of a cause of action. This is based on two theories- 1) the finality and
conclusiveness of judicial decisions for the final termination of disputes in the general interest of the
community as a matter of public policy, and 2) the interest of the individual that he should be protected
from the multiplication of litigation. It is the cause of action that gives rise to an action, and that is why
the courts must recognize that a cause of action that results in a judgment must lose its identity and
vitality and merge in the judgment when pronounced, it cannot survive the judgment or give rise to
another cause of action on the same facts.”
Locus standi
The doctrine of locus standi has deep roots in legal jurisprudence. The expression refers to the right or
capacity of a person to appear before a court in respect of a particular matter. In essence, it determines
who is entitled to approach the court for judicial redress. Under the traditional rule, a stranger to a dispute
cannot be permitted to intervene in legal proceedings. Only a person whose legal rights have been
infringed, or who has suffered a legal injury, is competent to institute a suit.
The term is derived from the Latin words locus, meaning place, and standi, meaning to stand. Together,
they signify the right to stand before a court of law. In civil procedure, locus standi denotes the legal
capacity to maintain an action. It requires that the litigant must have a direct and personal interest in the
outcome of the proceedings. A person who has no connection with the dispute or whose rights are not
affected cannot ordinarily invoke the jurisdiction of the court.
The doctrine rests on two core principles. First, the petitioner must be a person who has suffered a
grievance. Second, the grievance must involve an infringement of the petitioner’s own legal rights. The
rule ensures that courts adjudicate genuine disputes involving real parties in interest, rather than abstract
or hypothetical questions.
The requirement of locus standi serves important procedural purposes. It limits unnecessary litigation and
prevents the judicial process from being misused by busybodies or intermeddlers. It also clarifies who
may sue or be sued and ensures that the dispute is brought before a court having proper jurisdiction. By
insisting on a direct legal interest, the doctrine preserves the adversarial character of civil litigation.
Three essential elements generally underpin locus standi. The first is actual injury. The plaintiff must
demonstrate a concrete and specific harm, whether existing or imminent. The injury cannot be speculative
or remote. It must arise from the defendant’s conduct and must be capable of judicial determination.
The second element is causation. The plaintiff must establish a nexus between the defendant’s act or
omission and the injury suffered. The harm must be traceable to the conduct complained of. Without such
a connection, the court cannot attribute liability.
The third element is redressability. The plaintiff must show that the injury is capable of being remedied
through the relief sought. The court’s intervention must have the capacity to address or alleviate the harm.
If the requested relief would not cure or meaningfully redress the injury, standing is absent.
A distinction must be drawn between cause of action and locus standi. Cause of action refers to the
bundle of facts which gives rise to a legal claim and entitles a person to seek relief against another. It
forms the substantive foundation of a suit. Locus standi, on the other hand, concerns the plaintiff’s legal
capacity to institute the action. While cause of action addresses the existence of a legal wrong, locus
standi addresses the plaintiff’s entitlement to complain of that wrong. A person may articulate a legal
issue, but unless that issue affects their own rights, they may lack standing.
In Indian jurisprudence, the concept of locus standi has undergone significant evolution, particularly in
constitutional and public law matters. In Akhil Bhartiya Soshit Karmachari Sangh v. Union of India, the
Supreme Court permitted an unregistered association to maintain a writ petition under Article 226 of the
Constitution. The Court recognized that representative actions and collective grievances may warrant
judicial intervention where broader public rights are involved.
Similarly, in S.P. Gupta v. Union of India, a group of lawyers was allowed to challenge issues relating to
judicial appointments. The decision marked a turning point in the development of Public Interest
Litigation in India. The Court relaxed the traditional rule of standing and permitted persons acting bona
fide in public interest to seek enforcement of constitutional or legal rights of others who were unable to
approach the court themselves.
The expansion of locus standi in public law has strengthened access to justice and enabled enforcement of
public duties. Public Interest Litigation emerged as a powerful instrument to address systemic injustice
and protect collective rights. However, this liberalization has also led to concerns regarding misuse.
Frivolous or publicity-oriented petitions can burden the judicial system and divert attention from genuine
disputes. Courts therefore exercise caution in scrutinizing standing to ensure that the doctrine serves
justice without encouraging abuse.
In civil proceedings under the CPC, the traditional rule continues to apply more strictly. The plaintiff must
establish a direct legal injury and a personal stake in the litigation. Thus, locus standi remains a
foundational principle that regulates access to the judicial process and maintains the integrity of
adjudication.
Lis pendens
The doctrine of lis pendens is codified under Section 52 of the Transfer of Property Act, 1882.
Although it is not contained in the Code of Civil Procedure, it operates directly within civil litigation and
must be understood in conjunction with CPC proceedings.
Section 52 provides that during the pendency of any suit or proceeding in a court of competent
jurisdiction, in which any right to immovable property is directly and specifically in question, the
property cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of
any other party under any decree or order that may be passed therein, except under the authority of the
court.
This provision does not create a prohibition on transfer. It imposes a statutory subordination of the
transfer to the result of litigation.
The doctrine is procedural in operation but substantive in effect. It does not invalidate transactions. It
binds the transferee to the outcome of pending litigation.
The Supreme Court in Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200 clarified that Section 52 is not
based on the doctrine of notice. It is founded on public policy and necessity. Even a bona fide purchaser
without notice is bound by the decree if the transfer was made pendente lite.
Thus, Section 52 creates a statutory constructive notice, irrespective of actual knowledge.
Although the doctrine is housed in the Transfer of Property Act, it functions as an incident of civil
adjudication under the CPC. It ensures that the subject matter of litigation remains under the control of
the court and is not rendered futile by private alienation.
The doctrine of lis pendens is rooted in public policy and the necessity of maintaining the authority and
effectiveness of judicial proceedings. It is founded on the maxim:
Ut lite pendente nihil innovetur
During the pendency of litigation, nothing new should be introduced.
The principle does not rest upon equitable considerations alone. Nor is it dependent upon the doctrine of
notice. It is based on the broader need to preserve the sanctity of judicial process.
The fundamental rationale is that once a court is seized of a dispute relating to immovable property, the
subject matter of that dispute must remain within the control of the court. If parties were permitted to
freely transfer the property during litigation, the court’s eventual decree could be defeated by successive
alienations. Each new transferee might claim independent rights, leading to endless litigation and
frustration of justice.
The Supreme Court in Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200 emphasized that the doctrine is
intended to strike at attempts by parties to circumvent the jurisdiction of the court. The Court observed
that the rule is not founded on notice but on expediency and necessity. The doctrine ensures that litigation
proceeds to its logical conclusion without being rendered infructuous by private dealings.
The doctrine also prevents multiplicity of proceedings. If transferees pendente lite were not bound by
decrees, successful plaintiffs would be compelled to initiate fresh litigation against each subsequent
purchaser. This would undermine judicial economy and delay final resolution.
Another important dimension is that lis pendens preserves the principle of finality. Once a decree is
passed, it must bind not only the parties but also those claiming under them during pendency. Otherwise,
adjudication would become ineffective.
In Rajender Singh v. Santa Singh (1973) 2 SCC 705, the Supreme Court held that a transferee pendente
lite is bound by the decree passed in the suit. The Court reaffirmed that the doctrine is based on public
policy and applies irrespective of the transferee’s knowledge.
Thus, the conceptual foundation of lis pendens rests on three core considerations:
1. Protection of the court’s jurisdiction over the subject matter.
2. Prevention of multiplicity of litigation.
3. Preservation of the binding force and effectiveness of decrees.
It is important to understand that lis pendens does not aim to protect the plaintiff alone. It protects the
judicial process itself. The doctrine ensures that private transactions do not undermine public
adjudication.
For the doctrine of lis pendens to operate, every statutory ingredient under Section 52 must be satisfied.
Courts apply these conditions strictly because the provision affects proprietary rights.
Each element must coexist. Absence of any one defeats the application of the doctrine.
i. There must be a suit or proceeding pending before a court.
The Explanation to Section 52 clarifies that pendency commences from the date of presentation of the
plaint or institution of the proceeding. It continues until the suit is finally disposed of and complete
satisfaction or discharge of the decree is obtained.
The doctrine applies not only at the trial stage but also during appellate and execution proceedings. An
appeal is considered a continuation of the suit.
The Supreme Court in Rajender Singh v. Santa Singh (1973) 2 SCC 705 held that pendency includes
appellate stages, and transfers made during appeal are equally subject to lis pendens.
Thus, pendency is continuous and extends until final adjudication reaches enforceable closure.
ii. Section 52 expressly excludes collusive suits.
A collusive suit is one where parties institute proceedings with a fraudulent intention to obtain a judicial
order to defeat the rights of third parties.
If litigation is a sham and not adversarial, the doctrine will not apply. Courts examine whether the
proceeding is genuine and whether real rights are being contested.
This requirement ensures that Section 52 is not misused as a tool of fraud.
iii. The suit must be pending in a court of competent jurisdiction.
Competency refers to jurisdiction over the subject matter and pecuniary limits. If the court inherently
lacks jurisdiction, the doctrine cannot operate.
However, minor procedural irregularities do not invalidate pendency for the purpose of Section 52.
This is the most critical requirement.
The litigation must directly involve a right to immovable property. The property must be the subject
matter of the dispute, not merely incidentally connected.
If the property is only indirectly affected, lis pendens does not apply.
For example:
  A suit for specific performance of a contract to sell immovable property attracts Section 52.
 A suit for declaration of title attracts Section 52.
 A suit for partition attracts Section 52.
However, a simple money suit does not attract lis pendens merely because the defendant owns immovable
property.
iv. Courts consistently hold that the property must be directly and specifically in issue.
The transfer must be made by a party to the litigation or by someone claiming under such party.
If a stranger transfers property, Section 52 does not apply.
The doctrine binds successors-in-interest. A transferee pendente lite steps into the shoes of the transferor.
v. The transfer must be such that it affects the rights of the other party under the decree or order that
may be passed.
If the transfer does not prejudice the rights declared by the decree, Section 52 may not operate.
The doctrine does not prohibit transfer. It renders the transfer subservient to the outcome of litigation.
A transfer pendente lite is:
 Not void
 Not illegal
 Not automatically cancelled
It is valid inter partes. However, it is subject to the result of the litigation.
In Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200, the Supreme Court clarified that the doctrine does
not annul conveyances. It only makes them subordinate to the rights determined by the court.
Thus, the transferee acquires title, but that title is defeasible depending on the decree.
Once Section 52 becomes applicable, the consequences for a transferee pendente lite are significant. A
person who acquires property during the pendency of litigation does not obtain an independent or
insulated title. The transferee is treated as a representative-in-interest of the transferor and remains bound
by the outcome of the proceedings. The doctrine ensures that the authority of the court over the subject
matter of the suit is not undermined by private alienations.
A decree passed in a pending suit binds not only the original parties but also those who derive title from
them during the pendency of the suit. The Supreme Court in Rajender Singh v. Santa Singh (1973) 2 SCC
705 held that a transferee pendente lite is bound by the decree even if he was not impleaded as a party.
The Court clarified that the doctrine operates irrespective of notice and irrespective of participation in the
proceedings. Similarly, in Nagubai Ammal v. B. Shama Rao AIR 1956 SC 593, the Supreme Court
observed that a transferee from a party during litigation is bound by the result of the litigation and cannot
resist execution of the decree on the ground that he was not originally impleaded. The transferee cannot
claim a better title than that of the transferor.
The Code of Civil Procedure provides procedural recognition to this principle through Order XXII Rule
10. This provision permits continuation of a suit by or against a person upon whom interest has devolved
during the pendency of the suit, subject to the leave of the court. A transferee pendente lite may seek
impleadment to protect his interest. In Thomson Press (India) Ltd. v. Nanak Builders & Investors Pvt. Ltd.
(2013) 5 SCC 397, the Supreme Court held that such a transferee may, in appropriate cases, be added as a
party, particularly in suits for specific performance, to avoid multiplicity of proceedings and ensure
complete adjudication. However, impleadment is discretionary. Even if the transferee is not brought on
record, he remains bound by the decree. Impleadment serves to protect his procedural rights but is not a
condition for the application of the doctrine.
The nature of the title acquired by a transferee pendente lite is conditional. The transfer is neither void nor
illegal. It is valid between the transferor and transferee. However, it remains subject to the final
determination of the rights in the pending litigation. If the transferor ultimately succeeds, the transferee’s
title stands confirmed. If the transferor fails, the transferee’s interest stands defeated to the extent of the
decree. The doctrine thus imposes a statutory limitation on the full enjoyment of the property during
litigation.
In execution proceedings, a transferee pendente lite cannot obstruct enforcement of the decree by
asserting an independent right. Since he claims under the judgment-debtor, he is bound by the decree and
may be proceeded against in execution. Courts have consistently treated such transferees as persons
deriving interest from the judgment-debtor rather than as strangers to the decree. Their remedy, if any, lies
against the transferor and not against the decree-holder.
The doctrine has particular importance in suits for specific performance of contracts relating to
immovable property. Where the defendant transfers the property after institution of the suit, the transferee
is bound by any decree directing execution of a sale deed. In Durga Prasad v. Deep Chand AIR 1954 SC
75, the Supreme Court laid down that in such cases the decree should direct both the original vendor and
subsequent transferees to join in executing the conveyance so as to pass effective title to the plaintiff. This
approach ensures that the relief granted by the court is complete and enforceable without necessitating
fresh litigation.
It is also settled that good faith and absence of notice are irrelevant under Section 52. The Supreme Court
in Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200 made it clear that the doctrine of lis pendens is not
based on the principle of notice. It is founded on public policy and necessity. Even a bona fide purchaser
for value without knowledge of the pending litigation is bound by the decree. The rationale is that judicial
proceedings must not be defeated by private dealings, and the binding force of adjudication cannot
depend on the subjective awareness of subsequent transferees.
The cumulative effect of these principles is that a transferee pendente lite stands in the shoes of the
transferor, is bound by the result of the suit, may seek impleadment for procedural protection, and cannot
defeat or delay execution of the decree by asserting derivative rights. The doctrine thus preserves the
effectiveness, continuity, and finality of civil adjudication.
Estoppel
The doctrine of estoppel is a rule of evidence which prevents a person from denying or asserting
something contrary to what is implied by a previous action, statement, or admission of that person, when
another has relied upon it. The doctrine is codified primarily under Sections 115 to 117 of the Indian
Evidence Act, 1872 (S.121-123 Bhartiya Sakshya Adiniyam 2023), though its principles are equitable and
have been developed extensively through judicial interpretation.
Estoppel is not a cause of action. It is a rule of evidence. It does not create rights. It prevents a party from
asserting rights inconsistently.
The word “estoppel” is derived from the French word estoupe, meaning to stop or shut out. In legal terms,
estoppel prevents a person from “blowing hot and cold” at the same time.
The doctrine is founded on equity, good conscience, and fairness. It ensures consistency in conduct and
prevents injustice arising from contradictory positions.
The fundamental principle is that when one person, by words or conduct, makes a representation to
another, intending that it should be acted upon, and the other person relies on that representation and
alters their position, the maker of the representation cannot later deny its truth.
Section 115 of the Evidence Act provides that when one person has, by declaration, act, or omission,
intentionally caused or permitted another to believe a thing to be true and to act upon such belief, neither
he nor his representative shall be allowed to deny the truth of that thing in any suit or proceeding between
them.
The essential elements are:
1. A representation by words, conduct, or omission.
2. Intention or knowledge that it would be acted upon.
3. Reliance by the other party.
4. Alteration of position by the relying party.
The representation must relate to an existing fact. Estoppel cannot arise from a statement of law.
In Pickard v. Sears (1837), the principle of estoppel by conduct was articulated in English law, forming
the foundation of Section 115.
In B.L. Sreedhar v. K.M. Munireddy (2003) 2 SCC 355, the Supreme Court held that estoppel is a
principle of equity arising from natural justice and fair dealing. It prevents a party from denying a fact
when such denial would result in injustice to another who relied upon it.
i. Estoppel is a Rule of Evidence
Estoppel does not confer title. It does not create ownership. It merely bars a party from denying a
particular fact.
In Union of India v. Anglo Afghan Agencies AIR 1968 SC 718, the Supreme Court observed that estoppel
is a rule of equity and can operate even against the government in appropriate cases, though subject to
limitations.
However, there can be no estoppel against statute. If a representation is contrary to law, it cannot be
enforced.
Types of Estoppel
Estoppel by Conduct or Representation: This is the general principle under Section 115. It arises when
one party makes a factual representation and another relies on it.
Estoppel by Record: This arises from judicial decisions. Once a matter has been adjudicated by a
competent court, the parties are estopped from re-litigating it. This overlaps with the doctrine of res
judicata under Section 11 CPC.
Estoppel by Deed: When a party executes a deed containing certain recitals, that party is estopped from
denying those recitals in subsequent proceedings between the same parties.
Estoppel by Election: A person cannot accept and reject the same instrument. If a party elects to take
benefit under a transaction, they cannot later challenge its validity.
The Supreme Court in Nagubai Ammal v. B. Shama Rao AIR 1956 SC 593 explained the principle that a
party cannot approbate and reprobate.
a) Promissory Estoppel
This is an equitable doctrine developed by courts. It applies when a promise, though unsupported by
consideration, is relied upon by another who alters their position.
In Motilal Padampat Sugar Mills v. State of Uttar Pradesh (1979) 2 SCC 409, the Supreme Court
recognized promissory estoppel against the government where a promise was made and relied upon.
However, promissory estoppel cannot compel the government or any authority to act contrary to statute.
Section 116 provides that a tenant is estopped from denying the title of the landlord at the commencement
of tenancy. Similarly, a licensee cannot deny the title of the licensor.
This principle protects stability in landlord-tenant relationships.
The estoppel applies only during continuance of tenancy. After surrender or eviction, the tenant may
challenge title in appropriate circumstances.
Section 117 applies to negotiable instruments. An acceptor of a bill of exchange cannot deny the drawer’s
authority to draw the bill.
This provision protects commercial certainty.
b) Limitations of Estoppel

There can be no estoppel against statute. A representation contrary to statutory provisions cannot be
enforced.
There can be no estoppel against public interest. The government cannot be compelled to carry out a
promise that violates law.
Estoppel must be specifically pleaded and proved. It cannot be presumed.
Estoppel cannot override clear legislative mandate.
c) Distinction Between Estoppel and Res Judicata
Estoppel is a rule of evidence preventing denial of a fact.
Res judicata is a rule of procedure preventing re-litigation of issues already decided.
Estoppel binds parties on specific factual representations. Res judicata binds them on judicial
determinations.