Appeal, Reference, Review, and Revision under the Civil Procedure Code (CPC),

I. Appeal
Concept and Nature

An appeal is a process by which a judgment or order of a subordinate court is challenged

before a superior court. It is a continuation of the original proceedings. The right to appeal
is a statutory right, meaning it is not an inherent right but must be expressly conferred by
a statute. If the statute does not provide for an appeal, no appeal lies.

Essentials of Appeal

For an appeal to be maintainable, the following elements must exist:

• A decision (decree or appealable order) passed by a court or administrative,

judicial, or quasi-judicial authority.
• A person aggrieved by such a decision.
• A reviewing body (Appellate Court) ready and willing to entertain the appeal.
First Appeal (Section 96)

Section 96 of the CPC provides for a First Appeal. It lays down that an appeal shall lie
from every decree passed by any Court exercising original jurisdiction to the Court
authorized to hear appeals from the decisions of such Court.

• Question of Fact and Law: A First Appeal can be filed on questions of fact as
well as questions of law. The appellate court has the power to re-appreciate the
evidence.
• Ex Parte Decree: An appeal may lie from an original decree passed ex parte.
• Consent Decree: No appeal shall lie from a decree passed by the court with the
consent of parties (Section 96(3)).
• Petty Cases: No appeal lies in petty cases (Section 96(4)) where the value of
the subject matter is small and the question involves only law, unless strictly
provided otherwise.
Second Appeal (Section 100)

A Second Appeal lies to the High Court from every decree passed in appeal by any Court
subordinate to the High Court.

• Substantial Question of Law: The most critical condition for a Second Appeal is
that the case must involve a "substantial question of law." The High Court will not
entertain a second appeal on questions of fact or mere errors of law that are not
substantial.
• Procedure: The appellant must precisely state the substantial question of law in
the memorandum of appeal. If the High Court is satisfied, it formulates the
question, and the appeal is heard only on that question.
Powers of Appellate Court (Section 107)

The Appellate Court has plenary powers to do justice between the parties. Specifically, it
has the power to:

1. Determine a case finally.

2. Remand a case (send it back to the lower court for re-hearing).
3. Frame issues and refer them for trial.
4. Take additional evidence or require such evidence to be taken.

II. Reference (Section 113 and Order 46)

Concept

Reference is a procedure where a subordinate court refers a specific question of law to

the High Court for its opinion. The objective is to ensure that the subordinate court does
not commit an error on a significant legal point, especially regarding the validity of laws.

Conditions for Reference

A court can make a reference to the High Court only if the following conditions are
satisfied:

• Pending Suit: There must be a pending suit or appeal in which the decree is not
subject to further appeal.
• Question of Law: A question of law or usage having the force of law must arise
during the proceedings.
• Reasonable Doubt: The subordinate court must entertain a reasonable doubt
regarding such a question.
• Constitutional Validity: If the question relates to the validity of any Act,
Ordinance, or Regulation, and the court is of the opinion that it is invalid but there
is no determination by the High Court or Supreme Court to that effect, a reference
is mandatory.
Procedure

When a reference is made:

1. The subordinate court states the case and refers it to the High Court for its opinion.
2. The High Court holds a hearing and decides the point of law.
3. The High Court transmits a copy of its judgment to the subordinate court.
4. The subordinate court then disposes of the case in conformity with the High Court's
decision.
III. Review (Section 114 and Order 47)
Concept

Review implies looking into the matter again by the same court that passed the decree or
order. It is a judicial re-examination of the case by the same judge in certain exceptional
circumstances. The principle is that a court has the inherent power to correct its own
grave errors to prevent a miscarriage of justice.

Grounds for Review

A person aggrieved by a decree or order may apply for a review of the judgment under
the following specific grounds:

• Discovery of New Evidence: When the applicant discovers new and important
matter or evidence which, after the exercise of due diligence, was not within his
knowledge or could not be produced by him at the time the decree was passed.
• Error Apparent on the Face of the Record: This refers to an error that is
evident and obvious, not requiring elaborate arguments to establish. For example,
a law that was clearly applicable was ignored, or a statute was misread. An
erroneous decision on a controversial point of law is not an error apparent on the
face of the record.
• Any Other Sufficient Reason: This ground has been interpreted by the
Supreme Court to mean a reason sufficient on grounds analogous to the first two
(doctrine of ejusdem generis). It is not an unlimited power to re-hear the case.
Who Can Apply

Review is available to any person who considers himself aggrieved:

1. By a decree or order from which an appeal is allowed, but no appeal has been
preferred.
2. By a decree or order from which no appeal is allowed.
Restrictions
• The court cannot review its order suo motu (on its own). An application is
necessary.
• If an appeal has already been preferred by the party, a review application cannot
be entertained.

IV. Revision (Section 115)

Concept

Revision is the power of the High Court to call for the record of any case decided by a
subordinate court to ensure that the subordinate court acts within its jurisdiction. It is a
supervisory power designed to correct jurisdictional errors.
Conditions for Revision

The High Court may exercise revisional jurisdiction only if the following conditions are
met:

• Case Decided: There must be a "case decided" by a subordinate court.

• No Appeal: No appeal lies against the order passed by the subordinate court
(either to the High Court or any other court).
• Jurisdictional Error: The subordinate court must have committed one of the
following jurisdictional errors:
1. Exercised a jurisdiction not vested in it by law (Usurpation of jurisdiction).
2. Failed to exercise a jurisdiction so vested (Refusal to exercise jurisdiction).
3. Acted in the exercise of its jurisdiction illegally or with material irregularity.
Limitations on Revision

The High Court shall not vary or reverse any order deciding an issue in the course of a
suit or other proceeding, except where the order, if it had been made in favor of the party
applying for revision, would have finally disposed of the suit or other proceedings. This
prevents the High Court from interfering in interlocutory orders that do not end the case.

V. Key Differences (Comparison)

To clearly distinguish these concepts, the following differences are critical:

1. Appeal vs. Revision

• Right vs. Discretion: Appeal is a substantive legal right of the party. Revision is
a discretionary power of the High Court; a party cannot claim it as a matter of right.
• Scope: An appeal can be on questions of fact and law (First Appeal). Revision is
strictly confined to jurisdictional errors and illegalities; the High Court cannot re-
appreciate evidence in revision.
• Continuity: An appeal is a continuation of the original proceeding. Revision is a
supervisory check.
2. Appeal vs. Review
• Forum: An appeal is heard by a superior (appellate) court. A review is heard by
the same court and the same judge who passed the order.
• Grounds: Appeals are broad and can challenge the merits of the decision.
Review is limited to specific grounds like new evidence or apparent error.
3. Reference vs. Review/Revision
• Initiator: Reference is initiated by the subordinate court itself (suo motu or on
application). Review and Revision are initiated by the aggrieved parties.
• Purpose: The purpose of Reference is to seek guidance on a law. The purpose
of Review/Revision is to correct an error in a judgment or jurisdiction.

Suit by or Against Minor and Person of Unsound Mind

The Code of Civil Procedure, 1908 (CPC) acknowledges that certain persons, due to their
age or mental capacity, are incapable of protecting their own legal interests. Order 32 of
the CPC lays down specific mandatory procedures to safeguard the interests of minors
and persons of unsound mind in civil litigation. These provisions ensure that no decree is
passed against such persons without proper representation.

I. Suit by a Minor (Plaintiff)

A "minor" under the CPC refers to a person who has not attained the age of majority
according to the Indian Majority Act, 1875 (i.e., under 18 years of age). Since a minor is
legally incompetent to contract or appoint a pleader, the law requires a third party to act
on their behalf.
• Institution by Next Friend (Order 32 Rule 1)

Every suit by a minor must be instituted in their name by a person termed the "Next
Friend". The Next Friend is not a party to the suit in the strict sense but is the
vehicle through which the minor acts. The Next Friend represents the minor in all
legal proceedings, ensuring that the minor's interests are adequately protected.

o Rationale: The primary objective is to protect the minor's interest and to

have someone on record who can be held accountable for the costs of the
litigation, as a minor cannot be made personally liable for costs.
• Consequences of Filing Without Next Friend (Order 32 Rule 2)

If a suit is instituted by or on behalf of a minor without a Next Friend, the defendant

may apply to have the plaint taken off the file.

o The Court, upon such application, may order the plaint to be removed and
the costs to be paid by the pleader or the person who presented the plaint.
o This rule is strictly procedural and aims to prevent frivolous litigation where
no responsible adult is accountable for costs.
• Security for Costs (Order 32 Rule 2A)

The Court has the power to order the Next Friend to furnish security for the costs
of the defendant if it appears necessary, particularly to discourage vexatious suits.

II. Suit Against a Minor (Defendant)

When a minor is sued, they cannot appear or defend themselves. The Court is under a
statutory obligation to appoint a proper person to defend the suit on the minor's behalf.
• Appointment of Guardian ad Litem (Order 32 Rule 3)

Where the defendant is a minor, the Court, on being satisfied of the fact of minority,
shall appoint a proper person to be the "Guardian for the Suit" (also known as
Guardian ad Litem).
 o No Decree Without Guardian: A decree passed against a minor without
the appointment of a guardian is a nullity and void ab initio. It cannot be
enforced against the minor.
o Procedure: An application for the appointment of a guardian must be
made by the plaintiff or a person interested in the minor. The application
must be supported by an affidavit verifying the minority and stating that the
proposed guardian has no adverse interest.
• Notice to Natural Guardian: Before appointing a guardian, the Court generally
issues notice to the minor’s natural guardian (father, mother) or the person in
whose care the minor is living.
III. Qualifications of Next Friend or Guardian (Order 32 Rule 4)
Not everyone can act as a Next Friend or Guardian. The law prescribes specific
qualifications to ensure the minor's best interests are served.
• Sound Mind and Majority: The person must be of sound mind and must have
attained the age of majority.
• No Adverse Interest: The most critical qualification is that the person's interest
must not be adverse to that of the minor. If the Next Friend or Guardian has a
conflict of interest with the minor, they are liable to be removed.
• Not a Defendant/Plaintiff:
o A person who is a defendant in the suit cannot be the Next Friend of the
minor plaintiff.
o A person who is a plaintiff in the suit cannot be the Guardian ad Litem for
the minor defendant.
• Consent: No person can be appointed as a Guardian for the Suit without their
consent.
IV. Powers, Duties, and Restrictions
The Next Friend or Guardian acts as a trustee of the minor's welfare during the litigation.
However, their powers are not absolute and are subject to Court supervision.
• Compromise or Agreement (Order 32 Rule 7)

This is a vital safeguard. No Next Friend or Guardian can enter into any agreement
or compromise on behalf of the minor without the express leave (permission) of
the Court.

o Leave of Court: The Court grants leave only if it is satisfied that the
compromise is for the benefit of the minor.
o Voidable Agreement: Any agreement or compromise entered into without
such leave is voidable against all parties other than the minor.
• Receipt of Property (Order 32 Rule 6)

A Next Friend or Guardian cannot receive any money or movable property on

behalf of the minor under a decree or order without the leave of the Court. The
Court may require them to furnish security to protect the minor's property from
waste or misuse.
 • Removal or Retirement (Order 32 Rules 8-11)
o Retirement: A Next Friend cannot retire without procuring a fit person to
be put in their place and giving security for the costs already incurred.
o Removal: The Court may remove a Next Friend or Guardian if they fail to
do their duty, have an adverse interest, cease to reside in India, or for any
other sufficient cause.
V. Minor Attaining Majority (Order 32 Rules 12-14)
When a minor plaintiff attains majority (turns 18) during the pendency of the suit, the
following procedure applies:
• Election to Proceed: The minor must elect whether they wish to proceed with
the suit or abandon it.
• Discharge of Next Friend: If they choose to proceed, they must apply for an
order to discharge the Next Friend and allow them to proceed in their own name.
The title of the suit is corrected to reflect their independent status.
• Abandonment: If the minor chooses to abandon the suit, they may apply to
dismiss it. However, they may be liable to pay the costs incurred by the defendant
and the Next Friend.
VI. Persons of Unsound Mind (Order 32 Rule 15)
The protection afforded to minors is extended to persons of unsound mind.
• Applicability: Rules 1 to 14 (except Rule 2A) apply to persons adjudged to be of
unsound mind or persons who, though not so adjudged, are found by the Court on
inquiry to be incapable of protecting their interests due to mental infirmity.
• Inquiry: The Court must hold an inquiry to determine if the person is capable of
protecting their interests. If found incapable, a Next Friend or Guardian must be
appointed.
VII. Landmark Judgments
1. Ram Chandra Arya v. Man Singh (AIR 1968 SC 954)
• Facts: A decree was passed against a person of unsound mind (lunatic) without
the appointment of a Guardian ad Litem. In execution of this decree, the lunatic's
house was sold.
• Issue: Was the decree and the subsequent sale valid?
• Held: The Supreme Court held that a decree passed against a minor or a person
of unsound mind without the appointment of a guardian is a nullity and void ab
initio (from the beginning). It is not merely an irregularity. Consequently, the sale
of the property in execution of such a void decree was also void.
• Significance: This judgment firmly established that the appointment of a
guardian is a mandatory jurisdictional requirement, not just a procedural formality.
2. Nagaiah v. Smt. Chowdamma (2018 SC)
• Facts: A suit was filed by a minor through his elder brother as the Next Friend.
The High Court dismissed the suit on the ground that the father was alive and was
the natural guardian; therefore, the brother could not act as Next Friend without
being formally appointed under the Hindu Minority and Guardianship Act.
• Held: The Supreme Court reversed the High Court's decision. It held that under
Order 32 Rule 1 of the CPC, any person who is of sound mind, major, and has no
 adverse interest can act as a Next Friend. There is no requirement to be a
"guardian" appointed under the Hindu Minority and Guardianship Act to file a suit.
• Significance: This clarified that Order 32 is a self-contained code for
representation in suits. It ensures that minors are not denied justice merely
because the natural guardian is unwilling or unable to file the suit.
3. Dakeshur v. Rewat (1897)
• Held: The Court held that if a minor is sued without a guardian ad litem and a
decree is passed against him, the decree is null and void and cannot be enforced
against him. This is an early foundational case reinforcing the principle of
mandatory representation.

Limitation and Modes of Extension of Limitation Period

Meaning and Concept of Limitation
The law of limitation is a statute of repose, peace, and justice. The Limitation Act, 1963,
lays down specific time frames within which a person must approach the court for the
redressal of their grievances. The fundamental concept is that legal remedies are not
available indefinitely.
• Definition: "Limitation" essentially refers to the time limit prescribed by the law
for initiating legal proceedings.
• Period of Limitation: Section 2(j) of the Limitation Act defines "period of
limitation" as the period of limitation prescribed for any suit, appeal, or application
by the Schedule, and "prescribed period" as the period of limitation computed in
accordance with the provisions of this Act.
• Object: The law of limitation is based on two major legal maxims:
1. Interest reipublicae ut sit finis litium: It is in the interest of the state that
there should be an end to litigation.
2. Vigilantibus non dormientibus jura subveniunt: The law assists the vigilant,
not those who sleep over their rights.

If a person does not exercise their right within a reasonable time, the law
presumes that the right has been abandoned.

General Rule: Bar of Limitation (Section 3)

Section 3 of the Limitation Act establishes the general rule that every suit instituted,
appeal preferred, and application made after the prescribed period shall be dismissed,
although limitation has not been set up as a defense.
• Mandatory Nature: The court is under a statutory obligation to dismiss a time-
barred suit, even if the defendant does not raise the plea of limitation.
• Exceptions: This general rule is subject to the provisions of Sections 4 to 24,
which provide for the extension or exclusion of time in specific circumstances.
Extension of Limitation Period
While the law is strict about time limits, it is not absolute. The Limitation Act contains
specific provisions that allow for the "extension" of the limitation period or the "exclusion"
of certain time periods to prevent injustice. The limitation period is extended in the
following ways:

1. Extension by Condonation of Delay (Section 5)

Section 5 is one of the most significant provisions for extending limitation. It embodies the
"Doctrine of Sufficient Cause."
• Discretionary Power: It allows the Court to admit an appeal or an application
after the prescribed period if the appellant or applicant satisfies the Court that they
had "sufficient cause" for not preferring the appeal or making the application within
such period.
• Inapplicability to Suits: It is crucial to note that Section 5 applies only to
appeals and applications. It does not apply to original suits. A suit filed even
one day late must be dismissed unless saved by other sections (like Sec 6-19).
• Sufficient Cause: The term "sufficient cause" is not defined but is interpreted
liberally to advance substantial justice. It includes circumstances beyond the
party's control, such as:
o Illness of the party or their advocate.
o Mistake of counsel (if bona fide).
o Imprisonment or public disturbances.
o Delay in obtaining copies of judgments (though covered under Sec 12, it
often overlaps).
• No Vested Right: Condonation of delay is a matter of judicial discretion, not a
right of the party.
2. Extension Due to Legal Disability (Sections 6, 7, and 8)
The law extends the limitation period for persons who are legally incapable of suing when
the right to sue accrues.
• Types of Disabilities (Section 6): The extension applies if the person entitled to
institute a suit or make an application for the execution of a decree is, at the time
the right to sue accrues:
o A Minor;
o Insane; or
o An Idiot.
• Suspension of Time: In such cases, the period of limitation does not start
running. It begins only when the disability ceases (e.g., the minor attains majority
or the insane person regains sanity).
• Continuous Disability: If a person suffers from one disability and then another
(e.g., a minor becomes insane before turning 18), the time is extended until both
disabilities cease.
• Death of Person Under Disability: If the person dies while still under disability,
their legal representative can institute the suit within the same period after the
death as would otherwise have been allowed to the deceased.
• Maximum Limit (Section 8): The extension provided by Section 6 is subject to a
cap. Under Section 8, the extended period cannot exceed three years from the
cessation of the disability or the death of the person.
3. Extension by Acknowledgment in Writing (Section 18)
Section 18 provides for a fresh period of limitation if the liability is acknowledged by the
debtor.
• Requirements:
1. There must be an acknowledgment of liability in respect of property or right.
2. It must be made in writing.
3. It must be signed by the party against whom such property or right is
claimed (or their agent).
4. It must be made before the expiration of the prescribed period for the suit
or application.
• Effect: When such an acknowledgment is made, a fresh period of limitation
shall be computed from the time when the acknowledgment was so signed. This
effectively extends the life of the debt or right.
4. Extension by Part Payment (Section 19)
Section 19 relates to the effect of payment on account of debt or of interest on a legacy.
• Conditions:
1. A payment is made on account of a debt or of interest on a legacy.
2. The payment is made by the person liable to pay or their authorized agent.
3. The payment is made before the expiration of the prescribed period.
• Effect: Upon such payment, a fresh period of limitation shall be computed
from the time when the payment was made. It is important that there is evidence
of the payment appearing in the handwriting of, or in a writing signed by, the person
making the payment (though the proviso to this section was amended/removed in
some contexts, the acknowledgment of payment usually requires proof).
5. Effect of Fraud or Mistake (Section 17)
Where a suit or application is based upon the fraud of the defendant or respondent, or
involves relief from the consequences of a mistake, the limitation period is effectively
extended because the clock does not start ticking immediately.
• Computation: The period of limitation shall not begin to run until:
o The plaintiff or applicant has discovered the fraud or the mistake; or
o Could, with reasonable diligence, have discovered it.
• Concealed Documents: Similarly, if the defendant has fraudulently concealed a
document necessary to establish the plaintiff's right, time runs only from when the
plaintiff discovers the concealment.
6. Extension where Court is Closed (Section 4)
While technically not an "extension" of the prescribed period, Section 4 saves a suit from
being time-barred if the court is closed on the last day of limitation.
• Rule: Where the prescribed period for any suit, appeal, or application expires on
a day when the Court is closed, the suit, appeal, or application may be instituted,
preferred, or made on the day when the Court reopens.
 • Maxim: Lex non cogit ad impossibilia (The law does not compel a man to do that
which he cannot possibly perform). If the court is locked, the litigant cannot file, so
the law grants them the next working day.
7. Exclusion of Time (Sections 12-15)
Certain periods are "excluded" from the calculation, which has the practical effect of
extending the final deadline.
• Time Required for Copies (Section 12): The day on which the judgment was
pronounced and the time requisite for obtaining a copy of the decree, sentence, or
order appealed from shall be excluded.
• Pursuing Remedy in Wrong Court (Section 14): If a plaintiff has been
prosecuting a proceeding with due diligence and in good faith in a court which,
from defect of jurisdiction or other cause of a like nature, is unable to entertain it,
the time spent in that wrong court shall be excluded.
• Stay of Proceedings (Section 15): In computing the period of limitation, the
time during which the institution of a suit or execution of a decree has been stayed
by an injunction or order of a court shall be excluded.
8. Continuous Running of Time (Section 9)
It is important to conclude with the caveat in Section 9.
• General Rule: Where once time has begun to run, no subsequent disability or
inability to sue stops it.
• Implication: This means that the extensions mentioned above (like disability)
generally apply only if the disability exists at the time the cause of action arises. If
a person becomes insane after the time has started running, Section 9 prevents
any extension, highlighting the strict nature of limitation unless specific statutory
exceptions (like Sec 4, 12, 14, etc.) apply.

Ownership by Adverse Possession and Acquisition of Rights by Prescription

Concept of Adverse Possession
Adverse possession is a legal doctrine that allows a person who holds possession of land
owned by another to acquire valid title to it, provided certain conditions are met over a
specified period. It is based on the principle that if the true owner of the property sleeps
on their rights and fails to take action to recover possession within the statutory limitation
period, their title is extinguished, and the possessor acquires ownership. This is often
summarized by the maxim vigilantibus non dormientibus jura subveniunt (law assists the
vigilant, not those who sleep over their rights).
The concept essentially transforms a "wrong" (trespass or wrongful possession) into a
"right" (ownership) due to the lapse of time and the inaction of the true owner.

Statutory Provisions under the Limitation Act, 1963

The law of adverse possession in India is governed primarily by Section 27 read with
Articles 64 and 65 of the Schedule to the Limitation Act, 1963.
1. Extinguishment of Right to Property (Section 27)
Section 27 is the substantive provision that creates ownership by adverse possession.
Unlike other provisions of the Limitation Act which merely bar the "remedy" (i.e., dismiss
the suit) but do not destroy the "right," Section 27 acts as an exception.
• The Rule: Section 27 states that at the determination of the period expressly
limited to any person for instituting a suit for possession of any property, his right
to such property shall be extinguished.
• Implication: This means that if the true owner fails to file a suit for recovery of
possession within the prescribed period (usually 12 years), not only is their legal
remedy barred, but their title to the property is also legally destroyed.
• Creation of New Title: When the true owner's title is extinguished, the person in
adverse possession automatically acquires a title good against the whole world,
including the former owner. This constitutes the "creation of ownership" or
"parliamentary title."
2. Prescribed Limitation Periods (Articles 64 and 65)
To trigger Section 27, one must look at the periods prescribed in the Schedule:
• Article 65: This is the most critical article for adverse possession. It prescribes a
limitation period of 12 years for a suit for possession of immovable property or any
interest therein based on title.
o Starting Point: The time begins to run when the possession of the
defendant becomes adverse to the plaintiff.
• Article 64: Prescribes a 12-year period for suits for possession based on
previous possession and not on title, where the plaintiff while in possession of the
property has been dispossessed.
• Government Property (Article 112): If the adverse possession is claimed
against the Government (Central or State), the limitation period is 30 years instead
of 12 years.
Essentials of Adverse Possession
For possession to ripen into ownership, it must satisfy specific legal requirements. Mere
possession, however long, does not necessarily mean adverse possession. The
possession must be nec vi, nec clam, nec precario (without force, without secrecy, and
without permission).
1. Animus Possidendi (Intention to Possess)
• The most crucial element is the animus possidendi—the intention to exclude the
world, including the true owner, from the property.
• The possessor must have the intention to hold the property as an owner. Mere use
of the land (e.g., grazing cattle or passing through) without the intent to own it does
not constitute adverse possession.
• The intention must be to hold the property hostile to the true owner’s title.
2. Peaceful, Open, and Continuous Possession
• Peaceful: The possession must not be maintained by force. However, the initial
entry might be wrongful or forceful, but the subsequent maintenance of possession
must be peaceful enough to allow the owner to take legal action.
 • Open (Not Secret): The possession must be visible and notorious. It cannot be
surreptitious or hidden. The true owner must have knowledge, or the means of
knowing, that someone else is in possession of their land.
• Continuous: The possession must be unbroken for the entire statutory period
(12 years). If the possessor abandons the property or if the true owner re-enters
(even for a moment) and asserts their right, the continuity is broken, and the clock
resets.
3. Hostile Possession
• The possession must be "adverse" or "hostile" to the true owner. This means the
possessor effectively denies the owner's title.
• If the possession is permissive (e.g., a tenant, a licensee, or a caretaker), it can
never be adverse, no matter how long it continues, unless the permission is
expressly withdrawn and a hostile assertion of title is made.
Acquisition of Rights by Prescription (Section 25)
While Section 27 deals with the extinguishment of ownership (negative prescription
leading to title), Section 25 deals with the acquisition of easements (positive prescription).
• Easements: Rights such as the right of way, right to light, right to air, or right to
watercourse can be acquired by prescription.
• Conditions: If such rights have been peaceably and openly enjoyed by any
person claiming title thereto, as an easement and as of right, without interruption,
for 20 years (30 years against the Government), the right becomes absolute and
indefeasible.
• Difference: Section 25 creates a limited right (easement) over another's land,
whereas Section 27 confers full ownership (title) of the land itself.
Landmark Judgments on Adverse Possession
1. Karnataka Board of Wakf v. Government of India (2004)

The Supreme Court summarized the law, stating that a person pleading adverse
possession has no equities in their favor since they are trying to defeat the rights of the
true owner. The Court held that the plaintiff must plead and prove:

• On what date they came into possession.

• What was the nature of their possession.
• Whether the fact of possession was known to the other party.
• How long their possession has continued.
• That their possession was open and undisturbed.
2. Ravinder Kaur Grewal v. Manjit Kaur (2019)

This is a revolutionary judgment where the Supreme Court clarified that adverse
possession is not just a shield (defense) but also a sword.

• Ruling: A person who has perfected their title by adverse possession can file a
suit (as a plaintiff) to declare their title and protect their possession. They do not
 have to wait to be sued by the original owner to use the plea of adverse possession
as a defense.
• Significance: This overruled previous interpretations that adverse possession
could only be used as a defense by a defendant.
3. P.T. Munichikkanna Reddy v. Revamma (2007)

The Court emphasized the psychological factor of animus possidendi. It held that to prove
adverse possession, it is not enough to show that some acts of possession have been
done. The possession must be "effective, undisturbed, and to the knowledge of the owner
or without any attempt at concealment by the trespasser." The Court also noted that with
the changing times, the right to property is a human right, and the courts should be careful
in granting adverse possession claims, ensuring the "adverse" nature is strictly proved.

Burden of Proof
The burden of proof lies heavily on the person claiming adverse possession.
• The presumption of law is that "possession follows title." Therefore, the court
presumes that the true owner is in possession.
• The trespasser must strictly prove every element (hostility, continuity, openness)
to displace this presumption.
• Vague assertions of "long possession" are insufficient. Specific dates and acts of
ownership must be established.
Conclusion of the Doctrine's Operation
Once the 12-year period (or 30 years for Government land) expires strictly in accordance
with the conditions of Article 65 and Section 27:
1. The true owner loses their right to evict the possessor.
2. The true owner loses their title to the property.
3. The possessor acquires a new, absolute title that can be sold, mortgaged, or
inherited, just like any other legal title.
Jurisdiction and Types of Jurisdiction under CPC
Concept and Meaning of Jurisdiction
The term "Jurisdiction" is not strictly defined in the Code of Civil Procedure, 1908 (CPC).
Etymologically, it is derived from the Latin terms juris (law) and dicere (to speak). Thus, it
essentially means the power or authority of a court to "speak the law" or to administer
justice.
In the legal context, jurisdiction refers to the extent of the authority of a court to administer
justice not only with reference to the subject matter of the suit but also to the local and
pecuniary limits of its power. It is the power to hear, determine, and adjudicate upon a
case.
• Official Trustee, West Bengal v. Sachindra Nath Chatterjee (1969): The
Supreme Court held that for a court to have jurisdiction to try a suit, three conditions
must be satisfied:
1. The court must have authority to decide the subject matter of the
controversy.
 2. The court must have authority to decide the dispute in the territory where
the cause of action arose.
3. The court must have authority to decide the dispute considering the
monetary value of the suit.
Section 9: The Gateway of Civil Jurisdiction
Section 9 of the CPC lays down the fundamental rule of civil jurisdiction. It states that the
Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits
of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.
• Presumption of Jurisdiction: The language of Section 9 is positive and
expansive. The courts have a presumption in favor of jurisdiction. The burden of
proof is on the party who asserts that the court has no jurisdiction.
• Suits of Civil Nature: A suit is of a civil nature if the principal question therein
relates to the determination of a civil right and its enforcement. It covers private
rights and obligations of citizens.
o Examples of Civil Suits: Suits for property, breach of contract, specific
performance, damages for torts, restitution of conjugal rights.
o Examples of Non-Civil Suits: Suits involving purely religious rites or
ceremonies, or purely political questions (unless they affect property or
office).
Types of Jurisdiction
Jurisdiction can be classified into several categories based on the nature of limitations
imposed on the court's authority.

1. Pecuniary Jurisdiction (Section 6)

Pecuniary jurisdiction refers to the authority of a court to try a suit based on the monetary
value of the subject matter. The CPC divides courts into different grades to distribute the
workload efficiently.
• Section 6: This section states that, save insofar as is otherwise expressly
provided, nothing herein contained shall operate to give any Court jurisdiction over
suits the amount or value of the subject-matter of which exceeds the pecuniary
limits (if any) of its ordinary jurisdiction.
• Section 15 (Rule of Lowest Grade): To ensure that higher courts are not
overburdened with small claims, Section 15 mandates that every suit shall be
instituted in the Court of the lowest grade competent to try it.
o Example: If a Junior Civil Judge has a limit of ₹5 Lakhs and a Senior Civil
Judge has unlimited jurisdiction, a suit valued at ₹2 Lakhs must be filed
before the Junior Civil Judge. While the Senior Judge technically has
jurisdiction, the procedural rule of Section 15 requires filing in the lowest
grade.
• Valuation: The plaintiff determines the value of the suit in the plaint. However,
the plaintiff cannot arbitrarily undervalue the suit to choose a forum or overvalue it
to bring it to a higher court. The Suits Valuation Act, 1887, governs the valuation.
2. Territorial Jurisdiction (Sections 16–20)
Territorial or local jurisdiction refers to the geographical limits within which a court can
exercise its authority. The CPC provides detailed rules to determine the place of suing
based on the nature of the suit.
• Suits for Immovable Property (Section 16):

Suits related to immovable property (recovery of possession, partition, foreclosure,

redemption, or determination of any other right to immovable property) must be
instituted in the Court within the local limits of whose jurisdiction the property is
situate.

o Proviso: If the relief sought can be obtained entirely through the "personal
obedience" of the defendant (e.g., specific performance of a contract to sell
land), the suit may be instituted either where the property is situate OR
where the defendant resides/works. This is the equitable principle of equity
acts in personam.
• Immovable Property Situated in Jurisdiction of Different Courts (Section 17):

Where the suit is to obtain relief respecting immovable property situated within the
jurisdiction of different Courts, the suit may be instituted in any Court within the
local limits of whose jurisdiction any portion of the property is situated.

o Condition: The entire claim must be cognizable by such court in terms of

pecuniary value.
• Uncertainty of Jurisdiction (Section 18):

Where it is alleged to be uncertain within the local limits of the jurisdiction of which
of two or more Courts any immovable property is situated, any one of those Courts
may, if satisfied that there is ground for uncertainty, record a statement to that
effect and effectively try the suit.

• Suits for Wrongs to Person or Movables (Section 19):

Where a suit is for compensation for wrong done to the person (e.g., assault,
battery) or to movable property, if the wrong was done within the local limits of one
Court and the defendant resides/works within the local limits of another Court, the
suit may be instituted at the option of the plaintiff in either of the said Courts.

o Illustration: If A, residing in Delhi, beats B in Calcutta, B may sue A either

in Calcutta (where the wrong occurred) or in Delhi (where A resides).
• Other Suits / Residuary Provision (Section 20):

For all other cases not covered by Sections 16-19 (e.g., breach of contract,
commercial disputes), the suit shall be instituted in a Court within the local limits of
whose jurisdiction:
 1. The defendant, or each of the defendants where there are more than one,
at the time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain; OR
2. Any of the defendants resides/works (with leave of the court or
acquiescence of others); OR
3. The cause of action, wholly or in part, arises.
o Corporations: A corporation is deemed to carry on business at its sole or
principal office in India, or, regarding any cause of action arising at any
place where it has a subordinate office, at such place.
3. Subject-Matter Jurisdiction
This refers to the authority of a court to try cases of a particular nature or subject.
• Inherent Limit: Certain courts are barred from trying specific types of cases. For
instance, a Small Causes Court cannot try a suit for specific performance of a
contract or partition of immovable property. Similarly, a Civil Court cannot try
matters exclusively assigned to Tribunals (e.g., Income Tax Tribunal, National
Company Law Tribunal).
• Defect is Fatal: A defect in subject-matter jurisdiction is distinct from territorial or
pecuniary defects. If a court lacks subject-matter jurisdiction, its decree is a nullity
(void ab initio). It goes to the root of the competence of the court.
o Kiran Singh v. Chaman Paswan (1954): The Supreme Court held that a
decree passed by a court without jurisdiction over the subject matter is a
coram non judice. The objection to such jurisdiction can be raised at any
stage, even in execution or in collateral proceedings.
4. Original and Appellate Jurisdiction
• Original Jurisdiction: This is the authority to hear and decide a case in the first
instance. The Court of the Civil Judge (Junior Division) or District Judge usually
exercises original jurisdiction. In some High Courts (like Bombay, Calcutta,
Madras, Delhi), the High Court also has original civil jurisdiction for high-value
suits.
• Appellate Jurisdiction: This is the power of a superior court to review, rehear,
and revise the decisions of lower courts. District Courts and High Courts exercise
appellate jurisdiction. The Supreme Court is the final court of appeal.
5. Exclusive and Concurrent Jurisdiction
• Exclusive Jurisdiction: When a specific court or tribunal is the only forum
competent to decide a matter, it has exclusive jurisdiction. For example, the Rent
Controller has exclusive jurisdiction over eviction matters under Rent Control Acts,
barring the jurisdiction of civil courts.
• Concurrent Jurisdiction: When two or more courts have the authority to try the
same case, they are said to have concurrent jurisdiction.
o Example: Under Section 19, both the court where the assault took place
and the court where the defendant resides have concurrent jurisdiction. The
plaintiff has the choice of forum.
6. Foreign Jurisdiction
This refers to the jurisdiction exercised by a court outside India. A judgment of a foreign
court is conclusive in India under Section 13 of the CPC, provided it has been pronounced
by a court of competent jurisdiction and satisfies other conditions (e.g., not against natural
justice or Indian law).

Objections to Jurisdiction (Section 21)

The CPC distinguishes between the lack of inherent jurisdiction (subject matter) and the
lack of territorial/pecuniary jurisdiction.
• Rule for Territorial/Pecuniary Objections (Section 21): An objection as to the
place of suing or pecuniary limits must be taken:
1. In the Court of first instance.
2. At the earliest possible opportunity (usually at or before the settlement of
issues).
3. Before the verdict is pronounced.
• Failure to Object: If the objection is not raised at the earliest stage, it is deemed
to be waived. An appellate court will not entertain such an objection unless there
has been a consequent failure of justice.
• Hira Lal Patni v. Kali Nath (1962): The Supreme Court held that the objection to
local jurisdiction does not go to the root of the jurisdiction. If the defendant
participates in the trial without objection, he cannot later challenge the decree on
the ground of territorial jurisdiction.
Bar on Jurisdiction (Section 9 - Express and Implied Bar)
While Section 9 is expansive, it acknowledges two types of bars:
1. Express Bar: When a statute specifically provides that the jurisdiction of the Civil
Court is barred.
o Example: The Industrial Disputes Act bars civil courts from trying matters
assigned to Industrial Tribunals. The SARFAESI Act bars civil courts from
entertaining suits regarding actions taken by banks to recover secured
debts.
2. Implied Bar: When a statute creates a special right and liability and provides a
specific machinery for its enforcement, the jurisdiction of the Civil Court is impliedly
barred.
o Dhulabhai v. State of Madhya Pradesh (1969): This is the landmark
judgment on the exclusion of jurisdiction. The Supreme Court laid down 7
principles, stating that the exclusion of the jurisdiction of the Civil Court is
not to be readily inferred. If the special tribunal does not comply with the
provisions of the Act or principles of judicial procedure, the Civil Court's
jurisdiction remains.
Inherent Jurisdiction (Section 151)
Apart from specific statutory jurisdiction, every Civil Court has inherent jurisdiction.
• Section 151: It saves the inherent power of the Court to make such orders as
may be necessary for the ends of justice or to prevent abuse of the process of the
Court.
• This power is not a new source of jurisdiction but a recognition of the fact that the
legislature cannot foresee every procedural situation. It allows the court to act
where the Code is silent, ensuring justice is done.
Landmark Judgments
1. A.R. Antulay v. R.S. Nayak (1988): The Supreme Court held that consent
cannot confer jurisdiction. If a court lacks inherent subject-matter jurisdiction,
the parties cannot by agreement or waiver give it jurisdiction. However, parties can
agree to submit to the jurisdiction of one of two competent courts (Concurrent
Jurisdiction).
2. Hakam Singh v. Gammon (India) Ltd. (1971): Where two or more courts have
jurisdiction under the CPC, an agreement between the parties restricting
jurisdiction to one of them is valid and not void as being opposed to public policy.
But an agreement conferring jurisdiction on a court that has no jurisdiction at all is
void.
3. Kiran Singh v. Chaman Paswan (1954): Reaffirmed that a decree passed
without subject-matter jurisdiction is a nullity, whereas a decree passed without
territorial jurisdiction is only an irregularity if not objected to on time.

Writ of Summons and its Service

Meaning and Nature of Summons
A summons is an official document issued by a Court of Justice calling upon the person
to whom it is directed to appear before the Judge or Officer of the Court for a specific
purpose. In the context of a civil suit, it is an instrument used by the court to inform the
defendant that a suit has been filed against them and to compel their appearance in court
to answer the claim.

The term "summons" is not strictly defined in the Code of Civil Procedure, 1908 (CPC),
but its scope is regulated by Sections 27 to 32 and Order V of the Code. The
fundamental principle behind issuing a summons is the doctrine of audi alteram partem
(no one should be condemned unheard). It ensures that the defendant gets a fair
opportunity to present their case.
Essentials of a Valid Summons
For a summons to be valid, it must strictly adhere to the procedural requirements laid
down in the CPC. Any material defect in the summons may vitiate the proceedings.
• Signature and Seal: According to Order 5 Rule 1(3), every summons must be
signed by the Judge or such officer as the Judge appoints in this behalf.
Furthermore, it must bear the seal of the Court. A summons without a seal or
signature is considered void.
• Accompanying Plaint: Order 5 Rule 2 mandates that every summons shall be
accompanied by a copy of the plaint. This is crucial so that the defendant knows
exactly what allegations and claims are made against them.
• Direction to Appear: The summons must specifically direct the defendant to
appear and answer the claim on a specified date. It should clarify whether the
appearance is for the "settlement of issues" or for the "final disposal" of the suit
(Order 5 Rule 5).
 • Production of Documents: The summons must order the defendant to produce
all documents or copies thereof in their possession or power upon which they
intend to rely in support of their case (Order 5 Rule 7).
Issue of Summons (Section 27)
Section 27 of the CPC provides that where a suit has been duly instituted, a summons
may be issued to the defendant to appear and answer the claim. The summons must be
served in the manner prescribed by the rules. It is important to note that the summons
must be issued and served within 30 days from the date of the institution of the suit.

Modes of Service of Summons

The CPC prescribes several modes for the service of summons to ensure that the
defendant actually receives notice of the suit. The court generally attempts personal
service first, but other methods are available if that fails.

1. Personal or Direct Service (Order 5 Rules 10-16)

This is the most preferred mode of service. Order 5 Rule 10 states that service shall be
made by delivering or tendering a copy of the summons signed by the Judge or appointed
officer and sealed with the court's seal.

• Service on Defendant in Person: Order 5 Rule 12 provides that wherever it is

practicable, service shall be made on the defendant in person, unless he has an
agent empowered to accept service.
• Service on Agent: If the defendant has an empowered agent, service on such
agent is sufficient. In suits relating to business or work, if the defendant does not
reside within the local limits of the court's jurisdiction, service may be made on any
manager or agent who personally carries on such business or work for the
defendant (Order 5 Rule 13).
• Service on Adult Member of Family: Where the defendant is absent from his
residence at the time when the service is sought to be effected and there is no
likely prospect of his being found at his residence within a reasonable time and he
has no agent, service may be made on any adult member of the family, whether
male or female, who is residing with him (Order 5 Rule 15).
o Note: A servant is not considered a member of the family for this purpose.
• Endorsement of Time and Manner: The serving officer (process server) must
endorse on the original summons the time and manner of service, and the name
and address of the person identifying the person served and witnessing the
delivery (Order 5 Rule 18).
2. Refusal to Accept Service (Order 5 Rule 17)

Procedural complications often arise when a defendant refuses to accept the summons.

• If the defendant or their agent refuses to sign the acknowledgment, or if the serving
officer cannot find the defendant despite due diligence and there is no agent or
adult family member to accept service, the officer shall affix a copy of the summons
on the outer door or some other conspicuous part of the house in which the
defendant ordinarily resides or carries on business.
 • The officer must then report the circumstances to the Court. The Court, after
making inquiries, may declare the summons to have been duly served.
3. Service by Post, Courier, and Electronic Means (Order 5 Rule 9)

Modern amendments to the CPC have expanded the modes of service to reduce delays.

• Registered Post/Speed Post: The Court may direct service of summons by

registered post with acknowledgment due (AD) or by speed post.
• Courier Services: Summons can be served via courier services approved by the
High Court.
• Electronic Means: Service is now permissible through fax, email, or other
electronic means as provided by the rules made by the High Court.
• Presumption of Service: Under Order 5 Rule 9(5), if the summons is sent by
registered post and the acknowledgment is received signed by the defendant, or if
the postal article is returned with an endorsement of "refusal," the court shall
declare that the summons has been duly served.
4. Substituted Service (Order 5 Rule 20)

This is a mode of last resort. Substituted service is applicable only when the court is
satisfied that the defendant is keeping out of the way for the purpose of avoiding service,
or that for any other reason, the summons cannot be served in the ordinary way.

• Affixing in Court House: The service is effected by affixing a copy of the

summons in some conspicuous place in the Court-house and also upon some
conspicuous part of the house where the defendant is known to have last resided
or carried on business.
• Newspaper Advertisement: The Court may order the publication of the
summons in a daily newspaper circulating in the locality where the defendant is
last known to have actually and voluntarily resided.
• Effect: Service substituted by order of the Court shall be as effectual as if it had
been made on the defendant personally.
5. Service on Defendant Residing in Another Jurisdiction (Section 28)

If the defendant resides in another state, the summons acts as a bridge between courts.

• Section 28 states that a summons may be sent for service to a Court having
jurisdiction in the place where the defendant resides.
• The Court to which such summons is sent shall, upon receipt thereof, proceed as
if it had been issued by such Court and shall then return the summons to the Court
of issue with the record of its proceedings.
6. Service of Foreign Summons (Section 29)

Section 29 deals with the service of foreign summonses. Summonses and other legal
processes issued by:
 • Civil or Revenue Courts established in any part of India to which the CPC does not
extend;
• Courts established or continued by the authority of the Central Government outside
India;
• Courts of any other country notified by the Central Government;

may be sent to Courts in the territories to which the CPC extends and served as if
they were summonses issued by such Courts.

Special Cases of Service

The CPC provides specific rules for serving summons on certain categories of
defendants:
• Soldiers, Sailors, or Airmen (Order 5 Rule 28): Where the defendant is a
soldier, sailor, or airman, the Court shall send the summons for service to his
Commanding Officer, together with a copy to be retained by the defendant.
• Prisoners (Order 5 Rule 24): If the defendant is confined in a prison, the
summons shall be delivered or sent by post/courier/email to the officer in charge
of the prison for service on the defendant.
• Corporations (Order 29 Rule 2): In suits against a corporation, the summons
may be served on the secretary, director, or other principal officer of the
corporation, or by leaving it or sending it by post to the registered office of the
corporation.
• Partnerships (Order 30 Rule 3): Where persons are sued as partners in the
name of their firm, the summons may be served upon any one or more of the
partners, or upon any person having, at the time of service, the control or
management of the partnership business.
• Public Officers (Order 5 Rule 27): Where the defendant is a public officer, the
Court may send the summons to the head of the office in which the defendant is
employed.
Objections to Service and Irregularities
The validity of the service is crucial for the jurisdiction of the court.
• Section 99 of the CPC provides that no decree shall be reversed or modified for
error or irregularity not affecting the merits of the case or the jurisdiction of the
Court. However, a complete failure to serve summons is a jurisdictional defect that
renders the decree void.
• Appearance Cures Defect: The proviso to Order 9 Rule 13 (Setting aside ex-
parte decree) suggests that if the defendant had notice of the date of hearing and
sufficient time to appear, mere irregularity in the service of summons is not a
ground to set aside an ex-parte decree.
• Waiver: If a defendant appears and participates in the proceedings without
objecting to the mode of service, they are deemed to have waived their right to
object to any irregularity in the service.
Consequences of Non-Appearance
If the summons is duly served and the defendant fails to appear on the specified date:
 • Ex-Parte Proceedings: The Court may proceed ex-parte (in the absence of the
defendant) and pass a decree against them if it is proved that the summons was
duly served.
• Fresh Summons: If it is not proved that the summons was duly served, the
Court shall direct a second summons to be issued and served on the defendant.
• Dismissal: If the plaintiff fails to pay the court fee or postal charges for the
service of summons, the suit may be dismissed under Order 9 Rule 2.

1. Difference Between Decree and Order, Types of Decrees, and Modes of

Execution
I. Concept of Decree (Section 2(2))
A decree is the most important part of a civil suit. It is the operative part of the judgment
and the formal expression of the court's decision. According to Section 2(2) of the Civil
Procedure Code (CPC), a "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. It may be either
preliminary or final.
Essentials of a Decree:

For a decision to be termed as a decree, the following five essential elements must be
present:

1. Adjudication: There must be a judicial determination of the matter in dispute.

Administrative orders or dismissal of a suit for default are not decrees.
2. Suit: The adjudication must have been given in a suit. A suit is commenced by
the presentation of a plaint.
3. Rights of Parties: The adjudication must determine the rights of the parties with
regard to matters in controversy. It must deal with substantive rights (e.g., status,
limitation, jurisdiction) rather than procedural matters.
4. Conclusive Determination: The determination must be final and conclusive as
regards the court passing it. It should not be an interlocutory order that leaves the
rights undecided.
5. Formal Expression: There must be a formal expression of the adjudication. The
decree must follow the judgment and be drawn up separately.
Deemed Decree:

The definition of decree also includes:

• The rejection of a plaint (Order 7 Rule 11).

• The determination of any question within Section 144 (Restitution).

It does not include:

• Any adjudication from which an appeal lies as an appeal from an order.

• Any order of dismissal for default.
II. Concept of Order (Section 2(14))
Section 2(14) of the CPC defines an "order" as the formal expression of any decision of
a Civil Court which is not a decree.

In a civil suit, a court may pass several orders at different stages (e.g., granting an
adjournment, issuing a commission, granting a temporary injunction), but usually passes
only one decree at the end. Orders generally relate to procedural issues rather than the
final determination of substantive rights, although there are exceptions.

III. Distinction Between Decree and Order

The distinction between a decree and an order is fundamental because it determines the
remedy available to the aggrieved party (i.e., whether to file a regular appeal or a
revision/appeal from order).

1. Nature of Determination:
• Decree: Conclusively determines the rights of the parties regarding the matters
in controversy. It is the final result of the suit.
• Order: May or may not finally determine the rights. It is often a step towards the
final decision (e.g., order framing issues).
2. Institution:
• Decree: Can only be passed in a suit instituted by the presentation of a plaint.
• Order: Can be passed in a suit as well as in other proceedings (e.g., execution
proceedings, applications).
3. Types:
• Decree: Can be preliminary, final, or partly preliminary and partly final.
• Order: There is no such classification of preliminary or final orders.
4. Appealability:
• Decree: Every decree is appealable (unless expressly barred, e.g., consent
decree under Section 96(3)).
• Order: Not every order is appealable. Only those orders listed in Section 104
and Order 43 Rule 1 are appealable ("Appealable Orders"). All other orders are
non-appealable.
5. Second Appeal:
• Decree: A second appeal lies to the High Court against a decree passed in the
first appeal (Section 100), provided a substantial question of law exists.
• Order: No second appeal lies against an order, even if it is an appealable order.
6. Number:
• Decree: Generally, there is only one decree in a suit (except where the law
provides for a preliminary and a final decree).
• Order: There can be multiple orders passed in a single suit.
IV. Types of Decrees
The CPC classifies decrees into three categories based on the stage of the proceedings
and the extent of adjudication.

1. Preliminary Decree
A preliminary decree is passed when the adjudication decides the rights of the parties
with regard to all or any of the matters in controversy but does not completely dispose of
the suit. The suit continues until the final decree is passed.

• When passed: In suits where the court first has to adjudicate upon the rights of
the parties and then, based on those rights, has to work out the exact amount or
specific property to be given.
• Examples:
o Suit for Possession and Mesne Profits (Order 20 Rule 12): The court
may pass a preliminary decree determining the plaintiff's right to possession
and directing an inquiry into the amount of mesne profits.
o Administration Suit (Order 20 Rule 13): The court first determines the
rights of the heirs and creditors, then directs accounts to be taken.
o Partition Suit (Order 20 Rule 18): The court declares the shares of each
party (Preliminary Decree) and appoints a Commissioner to physically
divide the property.
o Suit for Dissolution of Partnership (Order 20 Rule 15): The court
declares the partnership dissolved and the shares of partners, then directs
accounts to be taken.
• Effect: A preliminary decree is appealable. If a party fails to appeal against the
preliminary decree, they are precluded from challenging its correctness in an
appeal against the final decree (Section 97).
2. Final Decree

A decree is final when strictly nothing remains to be done by the court in the suit. It
completely disposes of the suit.

A decree may be final in two ways:

1. When no preliminary decree is required: In simple suits (e.g., recovery of a

specific debt), the decree is final from the start.
2. When it follows a preliminary decree: After the directions given in the
preliminary decree (like inquiries or partition by Commissioner) are carried out, the
court passes a final decree incorporating the result.
• Functus Officio: Once a final decree is passed, the court becomes functus
officio (ceases to have jurisdiction over the suit), except for execution or review.
3. Partly Preliminary and Partly Final Decree

A decree may be partly preliminary and partly final. This happens when the court finally
decides one issue but leaves another for further inquiry.

• Example: In a suit for possession of immovable property and mesne profits, if

the court passes a decree directing the defendant to hand over possession to the
plaintiff (Final part) and directs an inquiry into the mesne profits (Preliminary part),
it is a composite decree. The portion regarding possession is executable
immediately.
V. Modes of Execution (Section 51)
Execution is the enforcement of a decree or order. It is the medium through which the
decree-holder compels the judgment-debtor to carry out the mandate of the decree.
Section 51 of the CPC lays down the general powers of the court to enforce execution,
while Order 21 provides the detailed procedure.
The court may, on the application of the decree-holder, order execution of the decree by
the following modes:

1. Delivery of Property (Section 51(a))

• Movable Property: Where the decree is for any specific movable property, it
may be executed by the seizure and delivery of that property to the decree-holder
(Order 21 Rule 31).
• Immovable Property: Where the decree is for the delivery of immovable
property, possession thereof shall be delivered to the party to whom it has been
adjudged. If the judgment-debtor refuses to vacate, the court can remove any
person bound by the decree (Order 21 Rule 35).
2. Attachment and Sale (Section 51(b))

This is the most common mode of executing money decrees.

• The court can attach the property (movable or immovable) of the judgment-debtor.
• "Attachment" means prohibiting the judgment-debtor from transferring or charging
the property.
• After attachment, the court can sell the property by public auction and pay the
decree-holder from the proceeds.
• Section 60 lists properties that are liable to attachment (e.g., lands, houses,
goods, money) and properties that are exempt (e.g., wearing apparel, tools of
artisans, a portion of salary).
3. Arrest and Detention (Section 51(c))

The court may order the arrest of the judgment-debtor and his detention in a civil prison.

• Restrictions: This is a drastic remedy and is subject to strict conditions. Under

the proviso to Section 51, a judgment-debtor cannot be arrested merely for
poverty. The decree-holder must prove that the debtor:
o Has the means to pay but refuses to pay (Bad faith); or
o Is likely to abscond or leave the local limits of the court's jurisdiction; or
o Has dishonestly transferred his property to avoid payment.
• Women and Certain Persons: Women cannot be arrested in execution of a
money decree (Section 56).
4. Appointment of Receiver (Section 51(d))

In exceptional cases where attachment and sale are not sufficient or appropriate, the
court may appoint a Receiver.
 • The Receiver takes possession of the judgment-debtor's property, manages it,
collects rents or profits, and pays the decree-holder. This is an equitable mode of
execution.
5. Other Manners (Section 51(e))

This is a residuary clause. The court can execute the decree in "such other manner as
the nature of the relief granted may require."

• Specific Performance: For decrees of specific performance of contracts or

restitution of conjugal rights, if the judgment-debtor wilfully disobeys, the court can
attach their property or (in specific performance cases) appoint an officer to
execute the document on behalf of the debtor (Order 21 Rule 32, 34).
• Injunctions: If a party disobeys an injunction decree, their property can be
attached, or they can be detained in civil prison.
VI. Limitation for Execution

Generally, the Limitation Act prescribes a period of 12 years for the execution of a decree
(Article 136). If the execution application is not filed within this period, the decree becomes
unenforceable. However, for a decree of mandatory injunction, the period is 3 years.

Injunction and Interlocutory Orders (Define injunction, explain the ground to grant
temporary injunction.)
I. Concept and Definition of Injunction
An injunction is a specific order of the Court forbidding the commission of a wrong
threatened or the continuance of a wrongful course of action already begun. It is a judicial
process whereby a party is required to do, or to refrain from doing, any particular act. It is
a preventive relief granted to a litigant, based on the maxim “Prevention is better than
cure.”
The Code of Civil Procedure, 1908 (CPC) does not strictly define "injunction," but the law
regarding injunctions is found in the Specific Relief Act, 1963 (for perpetual/permanent
injunctions) and Order 39 of the CPC (for temporary/interim injunctions).
In Burney v. McDonald, an injunction was defined as "a judicial process, by which one
who is threatening to invade or has invaded the legal or equitable rights of another, is
restrained from continuing or commencing such wrongful act."
Types of Injunctions
1. Temporary Injunction: Granted for a specified period or until the further order of
the Court. It preserves the status quo during the pendency of the suit. It is governed
by Order 39 of the CPC.
2. Perpetual (Permanent) Injunction: Granted by the decree made at the hearing
and upon the merits of the suit. It permanently restrains the defendant from
asserting a right or committing an act. It is governed by Sections 38-42 of the
Specific Relief Act.
3. Mandatory Injunction: Compels the performance of certain acts (e.g., to pull
down a wall constructed in breach of a contract).
 4. Prohibitory Injunction: Forbids the commission of certain acts.
II. Temporary Injunction (Order 39, Rules 1-5)
A temporary injunction is an interim remedy that is provisional in nature. Its primary
objective is to preserve the property in dispute in status quo and prevent any change in it
until the final disposal of the suit. It ensures that the plaintiff's rights are not defeated by
the defendant's actions before the court can deliver a final judgment.
Statutory Grounds for Granting Temporary Injunction (Order 39, Rule 1)

The Court may grant a temporary injunction if it is proved by affidavit or otherwise that:

1. Danger to Property (Wastage or Damage): Any property in dispute in the suit is

in danger of being wasted, damaged, or alienated by any party to the suit1. This
applies to both movable and immovable property.
2. Wrongful Sale in Execution: The property in dispute is wrongfully sold in
execution of a decree2.
3. Threat of Disposal (Defrauding Creditors): The defendant threatens, or
intends, to remove or dispose of his property with a view to defrauding his
creditors3.
o Note: In this specific ground, the property need not be the specific
property in dispute; it can be any property of the defendant.
4. Threat of Dispossession: The defendant threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in relation to any property in dispute in the
suit4.
Restraint of Breach of Contract or Injury (Order 39, Rule 2)

In any suit for restraining the defendant from committing a breach of contract or other
injury, the Court may grant a temporary injunction to restrain the defendant from
committing the breach or injury complained of, or any injury of a like kind arising out of
the same contract or relating to the same property or right.

III. The "Triple Test" for Granting Temporary Injunction

While Order 39 lists the statutory circumstances, the Courts have evolved specific judicial
principles to govern the discretionary power of granting injunctions. This is known as the
"Triple Test." All three conditions must coexist for an injunction to be granted.

1. Prima Facie Case

The applicant (plaintiff) must demonstrate that there is a prima facie case in their favor.

• This does not mean the plaintiff must prove their case to the hilt at this stage. It
means there is a substantial question raised by the plaintiff that needs investigation
and a decision on merits.
• The Court must be satisfied that there is a serious dispute to be tried and that on
the facts before it, there is a probability that the plaintiff is entitled to relief. If the
suit appears to be barred by law or frivolous on the face of it, no injunction can be
granted.
2. Irreparable Injury

The plaintiff must prove that if the injunction is not granted, they will suffer "irreparable
injury."

• "Irreparable" does not mean that the injury cannot be physically repaired. It means
an injury that cannot be adequately compensated by way of damages (money).
• If the plaintiff can be fully compensated by money if they succeed in the suit, the
court will generally refuse the injunction. For example, if a building of historical
value is about to be demolished, money cannot replace it; hence, the injury is
irreparable.
3. Balance of Convenience

The Court must weigh the "balance of convenience" between the parties.

• The Court compares the mischief or inconvenience that is likely to be caused to

the plaintiff if the injunction is refused, against the mischief or inconvenience that
is likely to be caused to the defendant if the injunction is granted.
• The scale must tilt in favor of the plaintiff. If granting the injunction causes greater
hardship to the defendant than the refusal would cause to the plaintiff, the
injunction will be denied.
Notice to Opposite Party (Order 39, Rule 3)

The general rule is that the Court shall not grant an injunction without giving notice to the
opposite party. However, in cases of extreme urgency where the object of granting the
injunction would be defeated by delay, the Court may grant an ex-parte ad-interim
injunction (injunction without hearing the other side).

• In such cases, the Court must record reasons for its opinion.
• The applicant must send a copy of the application and affidavit to the defendant
immediately.
• The Court must attempt to dispose of the application within 30 days (Rule 3A).
Consequences of Disobedience (Order 39, Rule 2A)

If a person disobeys or breaches an injunction order, the Court may:

1. Attach the property of the guilty person.

2. Order the detention of such person in the civil prison for a term not exceeding three
months.
3. If the disobedience continues, the attached property may be sold to compensate
the injured party.
IV. Interlocutory Orders (Order 39, Rules 6–10)
Interlocutory orders are orders passed by the court during the pendency of a suit which
do not determine the final rights of the parties but are necessary to protect the subject
matter of the suit or to facilitate the progress of the litigation5. While temporary injunctions
are a type of interlocutory order, Rules 6 to 10 of Order 39 specifically deal with other
forms of interim relief.
1. Power to Order Interim Sale (Rule 6)

The Court may order the sale of any movable property which is the subject matter of the
suit or attached before judgment if:

• The property is subject to speedy and natural decay (e.g., fruits, vegetables,
chemicals).
• Under the circumstances, it is desirable to sell it immediately for any "just and
sufficient cause."
2. Detention, Preservation, and Inspection (Rule 7)

The Court may make an order for:

• The detention, preservation, or inspection of any property which is the subject

matter of the suit.
• Authorizing any person to enter upon any land or building in the possession of any
other party for such purposes.
• Authorizing any samples to be taken, or any observation to be made or experiment
to be tried, which may seem necessary or expedient for the purpose of obtaining
full information or evidence.
o Example: In a copyright infringement case regarding a manufacturing
process, the court may authorize an expert to inspect the defendant’s
factory.
3. Deposit of Money in Court (Rule 10)

Where the subject matter of a suit is money or some other thing capable of delivery, and
a party admits that he holds such money or thing as a trustee for another party or that it
belongs or is due to another party, the Court may order the same to be deposited in Court
or delivered to such last-named party, with or without security.

Summary of Distinction
• Injunction: Specifically restrains a party from doing an act or compels them to
do an act. It focuses on conduct.
• Other Interlocutory Orders: Focus on the management, preservation, or
inspection of the physical subject matter (property/goods) or the collection of
evidence during the trial.
V. Discharging or Varying Orders (Rule 4)
Any order for an injunction may be discharged, varied, or set aside by the Court on an
application made thereto by any party dissatisfied with such order.

• If a party makes a false or misleading statement in their application for an

injunction, the Court must vacate the injunction.
• If circumstances change or keeping the injunction becomes unnecessary or harsh,
the Court has the power to modify it.

Commission: Purpose and Procedure under CPC

I. Introduction
The general rule of civil procedure is that evidence should be recorded in open court, in
the presence of the presiding judge and the parties, to ensure transparency and proper
cross-examination. However, in certain practical situations, it may be impossible or highly
inconvenient to bring a witness to court or to conduct a specific investigation within the
courtroom premises. To address this, Sections 75 to 78 and Order 26 of the Code of
Civil Procedure, 1908 (CPC) empower the court to issue a "Commission."
A "Commission" is a mandate or authority issued by a court to a specific person (called a
Commissioner) to perform certain acts that the court itself cannot conveniently do.

II. Purpose of Issuing a Commission (Section 75)

The power to issue a commission is discretionary and is exercised to do complete justice.
Section 75 lists the specific purposes for which a commission may be issued:
1. To examine any person: When a witness cannot attend court due to illness,
distance, or privilege.
2. To make a local investigation: To clarify facts about a disputed property (e.g.,
boundaries, encroachments).
3. To examine or adjust accounts: In complicated financial disputes or
partnership suits.
4. To make a partition: To physically divide property after a preliminary decree.
5. To hold a scientific, technical, or expert investigation: When specialized
knowledge is required.
6. To conduct a sale of property: For property subject to speedy decay or in
execution of a decree.
7. To perform any ministerial act: Administrative tasks like calculation of interest
or serving processes.
III. Procedure for Different Types of Commissions
The procedure varies slightly depending on the purpose, as detailed in Order 26.

1. Commission to Examine Witnesses (Order 26 Rules 1-8)

• Grounds:
o Resident within Jurisdiction (Rule 1): If the person is exempted from
attending court (e.g., Pardanashin lady under Sec 132) or is unable to
attend due to sickness or infirmity.
o Resident Outside Jurisdiction (Rule 4): If the person resides beyond
the local limits of the court's jurisdiction.
 o Leaving Jurisdiction: A person about to leave the court's jurisdiction
before the hearing.
o Public Servants: Government servants whose absence would detriment
public service.
• Procedure:
1. Application: A party applies to the court supported by an affidavit
explaining the necessity.
2. Order: The court issues an order appointing a Commissioner (usually an
advocate).
3. Examination: The Commissioner goes to the witness, administers the
oath, and records their testimony (examination-in-chief and cross-
examination) just as it would be done in court.
4. Return: The deposition is signed by the witness and returned to the court.
2. Commission for Local Investigation (Order 26 Rules 9-10)
• Purpose: To elucidate any matter in dispute, or to ascertain the market value of
any property, amount of mesne profits, or damages.
• Procedure:
1. Appointment: The court appoints a Commissioner with specific
instructions on what to inspect (e.g., "Visit the site and map the alleged
encroachment").
2. Notice: The Commissioner must give notice to the parties about the date
and time of the visit.
3. Inspection: The Commissioner visits the spot, inspects the property in the
presence of parties, and may take measurements or prepare a map.
4. Report: The Commissioner submits a written report to the court.
• Evidentiary Value (Rule 10(2)): The report and the evidence taken by the
Commissioner form part of the record and are evidence in the suit. However, the
court is not bound by the report; parties can challenge it by examining the
Commissioner in court.
3. Commission to Examine Accounts (Order 26 Rules 11-12)
• Purpose: In suits for accounts (e.g., between partners or principal-agent), where
examining ledgers in open court is impractical.
• Procedure: The court issues specific instructions to the Commissioner to
examine the books of accounts and determine the amount due. The Commissioner
submits a report which is evidence in the suit.
4. Commission to Make Partition (Order 26 Rules 13-14)
• Stage: This is usually done after the passing of a preliminary decree declaring
the shares of the parties.
• Procedure:
1. The Commissioner inspects the property.
2. He divides the property into shares according to the decree.
3. He allots shares to the parties (often by drawing lots if shares are equal).
4. He prepares a report with a map showing the division.
5. The court hears objections to the report and then passes the Final Decree.
5. Commission for Scientific Investigation (Order 26 Rule 10A)
 • Purpose: Where any question arises involving scientific or technical analysis
(e.g., DNA test, handwriting analysis, chemical composition) which cannot be
conveniently conducted in court.
• Procedure: An expert is appointed as a Commissioner to conduct experiments
or analysis and report the findings.
IV. Powers of Commissioner (Order 26 Rules 16-18)
To effectively perform their duties, Commissioners are vested with certain powers
analogous to a civil court:
1. Examine Witnesses: They can summon and examine parties and witnesses on
oath.
2. Call for Documents: They can require the production of relevant documents.
3. Enter Premises: They can enter upon any land or building mentioned in the
order (Rule 16).
4. Ex-Parte Proceedings: If a party fails to appear before the Commissioner
despite notice, the Commissioner can proceed in their absence (Rule 18).
V. Expenses (Order 26 Rule 15)
Before issuing a commission, the court usually orders the party applying for it to deposit
a reasonable sum into the court to cover the expenses of the commission and the
remuneration of the Commissioner.

VI. Limitations
• Judicial Functions: A Commissioner cannot perform judicial functions. For
example, they can report on who is in physical possession of the land, but they
cannot decide who has the legal title or who ought to be in possession. That is the
court's prerogative.
• Delegation: The court cannot delegate its primary duty of deciding the case to
the Commissioner. The Commissioner is merely an assistant to the court to gather
facts or evidence.
VII. Conclusion
The system of Commissions acts as the "eyes and ears" of the court for matters existing
outside the four walls of the courtroom. It bridges the gap between judicial proceedings
and practical reality, ensuring that evidence which is difficult to bring to court is not lost
and that complex investigations are handled by competent persons, thereby facilitating
the efficient administration of justice.

Provisions Relating to Death, Marriage, and Insolvency of Parties in a Pending Suit

(Order 22)
Under the Civil Procedure Code, 1908 (CPC), Order 22 deals with the effect of death,
marriage, and insolvency on a pending suit. The general principle is that a suit does not
necessarily end (abate) just because a party’s status changes, provided the "right to sue"
survives.

I. Death of a Party (Order 22 Rules 1-6)

The death of a party can impact the suit depending on whether the right to sue (cause of
action) survives.

1. No Abatement if Right to Sue Survives (Rule 1)

The mere death of a plaintiff or defendant shall not cause the suit to abate if the right to
sue survives.

• Right to Sue Survives: Generally, rights related to property, contracts, and

debts survive the person.
• Right to Sue Dies: Personal rights like defamation, assault, or personal injury
claims usually die with the person (Maxim: Actio personalis moritur cum persona).
2. Death of One of Several Plaintiffs or Defendants (Rule 2)

If there are multiple plaintiffs or defendants, and one dies:

• If the right to sue survives to/against the surviving parties alone, the court simply
makes an entry on the record, and the suit proceeds with the survivors. No fresh
application for substitution is needed.
3. Death of Sole Plaintiff or Sole Surviving Plaintiff (Rule 3)

If a sole plaintiff dies and the right to sue survives:

• The court, on an application, shall bring the Legal Representative (LR) of the
deceased plaintiff on record.
• Time Limit: The application must be made within 90 days from the date of death.
• Consequence: If no application is made within time, the suit abates (ends)
regarding the deceased plaintiff.
4. Death of Sole Defendant or Sole Surviving Defendant (Rule 4)

If a sole defendant dies and the right to sue survives:

• The plaintiff must apply to the court to substitute the legal representative of the
deceased defendant.
• Time Limit: Application must be made within 90 days.
• Consequence: If not done, the suit abates against the deceased defendant.
• Exemption: The court may exempt the plaintiff from substituting the LR if the
deceased defendant had failed to file a written statement or appear to contest the
suit (Rule 4(4)).
5. Determination of Legal Representative (Rule 5)

If a dispute arises as to who is the legal representative, the Court determines that question
itself.

6. No Abatement After Hearing (Rule 6)

If a party dies after the conclusion of the hearing but before the judgment is pronounced,
the suit does not abate. The judgment can be pronounced as if the death had not
occurred.

II. Marriage of a Female Party (Order 22 Rule 7)

The marriage of a female party has no adverse effect on the suit.
• No Abatement: The marriage of a female plaintiff or defendant shall not cause
the suit to abate.
• Execution:
o The suit proceeds to judgment.
o If the decree is against a female defendant, it can be executed against her
alone.
o Husband's Liability: If the husband is legally liable for the debts of his
wife (under applicable personal law), the decree may be executed against
him with the permission of the Court. Similarly, a husband may execute a
decree in favor of his wife with court permission if the subject matter entitles
him to it.

III. Insolvency of Parties (Order 22 Rule 8)

Insolvency refers to the financial inability of a party to pay debts, leading to legal
adjudication as an insolvent.

1. Insolvency of Plaintiff
• No Automatic Abatement: The insolvency of a plaintiff does not strictly cause
the suit to abate.
• Role of Assignee/Receiver: The suit can be continued by the Official Assignee
or Receiver for the benefit of creditors.
• Security for Costs: If the Assignee/Receiver declines to continue the suit or fails
to give security for the costs of the defendant (as ordered by the Court), the Court
may dismiss the suit on the defendant's application.
2. Insolvency of Defendant
• The Code does not specifically provide for the insolvency of a defendant in Order
22. However, generally, the suit is stayed, and the Official Receiver/Assignee is
made a party to represent the defendant's estate.

IV. Effect of Abatement and Setting Aside (Order 22 Rule 9)

• Fresh Suit Barred: When a suit abates or is dismissed under this Order, no
fresh suit can be brought on the same cause of action.
• Setting Aside Abatement: The aggrieved party (e.g., the legal heir) may apply
to the Court to set aside the abatement.
• Sufficient Cause: The applicant must prove that they were prevented by
"sufficient cause" (e.g., ignorance of death, illness) from continuing the suit. This
 application must be made within 60 days from the date of abatement. Section 5 of
the Limitation Act applies for condoning delay.
Summary Table
Event Effect on Suit Action Required Time Limit

Death of Does not abate if Application to 90 Days from

Party right to sue survives. substitute Legal Rep. death.

Marriage of
No Abatement. None (Suit continues). N/A
Female

Security for
Insolvency of Does not abate Assignee/Receiver to
costs if
Plaintiff automatically. continue.
ordered.

Arrest and Attachment Before Judgment (Order 38 CPC)

Order 38 of the Code of Civil Procedure, 1908 (CPC) deals with "Arrest and Attachment
Before Judgment." These are extraordinary remedies provided to a plaintiff to ensure that
the defendant does not defeat the realization of a future decree by absconding or
disposing of their property during the pendency of the suit.

These provisions balance the plaintiff's right to secure the fruits of litigation with the
defendant's right to personal liberty and property.

I. Arrest Before Judgment (Order 38 Rules 1-4)

The court can arrest a defendant before the final judgment to ensure their appearance or
to secure the plaintiff's claim.

1. Grounds for Arrest (Rule 1)

At any stage of the suit (before judgment), the Court may issue a warrant for the arrest of
the defendant if it is satisfied, by affidavit or otherwise, that the defendant, with intent to
delay the plaintiff, or to avoid any process of the Court, or to obstruct or delay the
execution of any decree:

• Has absconded or left the local limits of the jurisdiction of the Court.
• Is about to abscond or leave such limits.
 • Has disposed of or removed his property from the local limits of the jurisdiction of
the Court.
• Proviso: The defendant shall not be arrested if they pay the officer entrusted
with the execution of the warrant the sum specified in the warrant as sufficient to
satisfy the plaintiff's claim.
2. Procedure (Rule 2 & 3)
• Show Cause: The defendant is brought before the Court and asked to show
cause why they should not furnish security for their appearance.
• Security for Appearance: If the defendant fails to show cause, the Court shall
order them to deposit money or other property sufficient to answer the claim or to
furnish security for their appearance.
• Discharge of Surety: A surety can apply to be discharged at any time. The
Court will then summon the defendant to find fresh security.
3. Consequences of Default (Rule 4)

If the defendant fails to furnish security or find fresh security, the Court may commit them
to civil prison.

• Duration: Until the decision of the suit or, if a decree is passed, until the decree
is satisfied.
• Max Period: No person shall be detained for more than 6 months (or 6 weeks if
the subject matter value does not exceed ₹50).

II. Attachment Before Judgment (Order 38 Rules 5-13)

This is a mechanism to preserve the defendant's property so that if the plaintiff wins, there
are assets available to satisfy the decree.

1. Grounds for Attachment (Rule 5)

The Court may order attachment before judgment if it is satisfied (by affidavit or otherwise)
that the defendant, with intent to obstruct or delay the execution of any decree:

• Is about to dispose of the whole or any part of his property.

• Is about to remove the whole or any part of his property from the local limits of the
jurisdiction of the Court.
2. Procedure (Rule 5)
• Show Cause: The Court directs the defendant to either furnish security (sum
specified) or produce the property, OR to appear and show cause why they should
not furnish security.
• Conditional Attachment: The Court may also direct conditional attachment of
the property immediately.
• Void Attachment: If an order of attachment is made without complying with the
procedure of Rule 5 (i.e., without notice/show cause), such attachment shall be
void (Rule 5(4)).
3. Order of Attachment (Rule 6)
 • If the defendant fails to show cause or furnish security, the Court may order that
the property specified be attached.
• If the defendant shows cause or furnishes security, the attachment (if any) shall be
withdrawn.
4. Mode of Attachment (Rule 7)

The attachment is made in the same manner as provided for the attachment of property
in execution of a decree (under Order 21).

5. Effect of Attachment
• Rights of Third Parties (Rule 10): Attachment before judgment does not affect
the rights of persons not parties to the suit (e.g., prior mortgagees) nor bar any
person holding a decree against the defendant from applying for the sale of the
property.
• No Re-attachment (Rule 11): If a decree is subsequently passed in favor of the
plaintiff, it is not necessary to re-attach the property in execution. The earlier
attachment continues.

III. Landmark Judgments

1. Raman Tech. & Process Engg. Co. v. Solanki Traders (2008) 2 SCC 302

The Supreme Court held that the power under Order 38 Rule 5 is a drastic and
extraordinary power. It should not be exercised mechanically or merely because the
plaintiff has a just claim. The Court stated:

• The object is to prevent the defendant from defeating the decree, not to convert an
unsecured debt into a secured debt.
• The plaintiff must establish that the defendant is attempting to remove or dispose
of assets with the intention of defeating the decree. Mere disposal of property is
not enough; the malicious intent must be proved.
2. Sardar Govindrao Mahadik v. Devi Sahai (1982)

The Supreme Court observed that the sole object behind the order levying attachment
before judgment is to give an assurance to the plaintiff that his decree if made would be
satisfied. It is a sort of "guarantee against the decree becoming infructuous."

3. V.G. Quasim v. The Yamuna Enterprises (1998)

The Court emphasized that the remedy of attachment before judgment is not a weapon
for the plaintiff to coerce the defendant into a settlement. It must be used sparingly and
strictly in accordance with the law.
IV. Difference Between Arrest/Attachment Before Judgment and
Execution
Feature Before Judgment (Order 38) In Execution (Order 21)

Stage Pending the suit. After the decree is passed.

Preventive (to ensure

Purpose Curative (to satisfy the debt).
assets/person is available).

Requires proof of "intent to Right of Decree Holder (no

Criteria
delay/obstruct". special intent needed).

Nature Discretionary and Extraordinary. Procedural Right.

Compensation for Wrongful Arrest/Attachment (Section 95)

If it appears to the Court that the arrest or attachment was applied for on insufficient
grounds, or if the suit fails and there was no reasonable ground for instituting it, the Court
may award compensation to the defendant (up to ₹50,000) for the expense or injury
caused, including injury to reputation.

Suits By or Against Government and Appeal to Supreme Court

The Code of Civil Procedure (CPC), 1908, contains special provisions to handle suits
where the Government is a party. These rules recognize the unique status of the State
and the need for procedural safeguards like prior notice.

Part I: Suits By or Against Government (Sections 79–82, Order 27)

1. Authority to Sue or Be Sued (Section 79)

In any suit by or against the Government, the authority to be named as plaintiff or

defendant is:

• Central Government: The Union of India.

• State Government: The State (e.g., The State of Maharashtra).
2. Mandatory Notice (Section 80)

This is the most critical procedural requirement. Section 80(1) mandates that no suit shall
be instituted against the Government or a public officer (for acts done in official capacity)
until the expiration of two months next after a notice in writing has been delivered.
 • Object of Notice: The purpose is to give the Government time to reconsider the
legal position, investigate the claim, and settle it without litigation if it is just. It
prevents unnecessary litigation and saves public money.
• Contents of Notice:
1. Name, description, and residence of the plaintiff.
2. Cause of action.
3. Relief claimed.
• To Whom Delivered:
o Central Govt: Secretary to the Govt or General Manager of Railway.
o State Govt: Secretary to the Govt or Collector of the District.
• Effect of Non-Compliance: The notice requirement is mandatory. A suit filed
without serving notice or before the expiry of the two-month period is liable to be
dismissed (as held in Bihari Chowdhary v. State of Bihar).
3. Exceptions to Notice (Section 80(2))

To prevent injustice in urgent matters, an amendment was introduced. A suit to obtain

urgent or immediate relief may be instituted with the leave of the Court without serving
the Section 80(1) notice.

• Condition: The Court shall not grant any interim relief (like an injunction) without
giving the Government a reasonable opportunity to show cause.
• Return of Plaint: If the Court finds no urgency after hearing the parties, it must
return the plaint to be filed after complying with the notice requirement.
4. Procedure (Order 27)
• Signing and Verification: Plaints or written statements on behalf of the
Government can be signed by any person appointed by the Government.
• Government Pleader: Is the agent of the Government for receiving processes.
• Time for Appearance: The Court must allow a reasonable time (usually not less
than the time required for communication between the government office and the
pleader) for the Government to file its response.
5. Execution of Decree (Section 82)

A decree against the Government cannot be executed immediately.

• The decree must remain unsatisfied for a period of three months from the date of
the decree.
• Only if the Government fails to pay within this period can the court issue execution
orders (like attachment).
6. Exemption from Arrest (Section 81)

In a suit against a public officer for an act done in his official capacity:

• The officer is exempt from arrest regarding that suit.

• His property cannot be attached before the execution of the decree.
Part II: Appeal to Supreme Court (Sections 109, 112, Order 45)
Appeals to the Supreme Court are the final tier of the appellate system in India. They are
governed by the CPC (Section 109) and the Constitution of India (Articles 132–136).

1. Conditions for Appeal (Section 109)

Under Section 109 of the CPC (read with Article 133 of the Constitution), an appeal lies
to the Supreme Court from any judgment, decree, or final order of a High Court if the High
Court certifies that:

• The case involves a substantial question of law of general importance; and

• In the opinion of the High Court, the said question needs to be decided by the
Supreme Court.
2. Procedure for Appeal (Order 45)
• Application for Certificate: The party desiring to appeal must apply to the High
Court for a certificate of fitness. This petition must be filed within 60 days.
• Security for Costs: If the certificate is granted, the appellant must deposit the
required security for the costs of the respondent.
• Admission of Appeal: Once security is furnished, the High Court declares the
appeal admitted and transmits the record to the Supreme Court.
3. Constitutional Provisions (The Real Power)

While the CPC provides the procedure, the substantive right to appeal flows from the
Constitution:

• Article 132: Appeals in cases involving a substantial question of law as to the

interpretation of the Constitution.
• Article 133: Civil appeals (as mentioned in Section 109 CPC).
• Article 136 (Special Leave Petition - SLP): This is the most common route
today. Notwithstanding Section 109, the Supreme Court has the discretionary
power to grant "special leave to appeal" from any judgment, decree, determination,
sentence, or order in any cause or matter passed by any Court or Tribunal in India.
o Nature: It is a discretionary power, not a right. It is used where there is a
gross miscarriage of justice or a novel question of law.
4. Powers of Supreme Court (Section 112)

Section 112 clarifies that nothing in the CPC affects the powers of the Supreme Court
under Article 136 or any other provision of the Constitution. The Supreme Court's rules
take precedence over the CPC procedure regarding appeals to it.

Key Differences Summary

 Feature Suit Against Govt (Sec 80) Suit Against Private Party

Notice Mandatory (2 months). Generally not required.

Can sue without notice with leave

Urgency Can sue immediately.
(Sec 80(2)).

Only after 3 months of decree (Sec

Execution Immediate execution possible.
82).

Officer exempt in official acts (Sec Defendant can be arrested

Arrest
81). (Order 38).

Written Statement, Set-off, and Counter Claim (Order 8 CPC)

The Code of Civil Procedure (CPC) provides the mechanism for a defendant to respond
to a suit filed by a plaintiff. This response involves filing a Written Statement, which may
include claims like Set-off and Counter Claim to settle mutual disputes in the same
proceeding.

I. Written Statement (Order 8 Rule 1)

1. Meaning and Purpose

A Written Statement (WS) is the pleading of the defendant. It is a formal document where
the defendant:

• Deals with every material fact alleged by the plaintiff in the plaint.
• Either admits or denies the allegations.
• States new facts in their favor and legal objections to the claim.
2. Time Limit for Filing (Order 8 Rule 1)
• General Rule: The defendant must file the Written Statement within 30 days
from the date of service of summons.
• Extension: The court can extend this period for reasons to be recorded in
writing, but the extension shall not exceed 90 days from the date of service of
summons.
• Commercial Suits: In commercial disputes, the maximum limit is 120 days. If
not filed by then, the right to file the WS is forfeited mandated by the Supreme
Court in SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd.
• Directory vs. Mandatory: For non-commercial suits, the Supreme Court in
Salem Advocate Bar Association v. Union of India held that the 90-day limit is
 directory, not mandatory. Courts can extend it in exceptional circumstances,
though usually with heavy costs.
3. Essentials of Denial (Rules 3, 4, 5)
• Specific Denial: The denial must be specific. A general denial is insufficient.
• Evasive Denial: The denial must not be evasive but must answer the point of
substance. For example, if it is alleged that the defendant received a certain sum
of money, it is not enough to deny that sum; they must state how much they
received or deny receiving any sum at all.
• Effect of Non-Denial: Every allegation of fact in the plaint, if not denied
specifically or by necessary implication, shall be taken to be admitted.

II. Set-off (Order 8 Rule 6)

Set-off is a reciprocal acquittal of debts. It is a defense where the defendant demands
that the amount owed to them by the plaintiff be adjusted against the plaintiff's claim.

1. Conditions for Legal Set-off (Order 8 Rule 6)

For a defendant to claim a legal set-off, the following conditions must be satisfied:

1. Suit for Money: The suit filed by the plaintiff must be for the recovery of money.
2. Ascertained Sum: The amount claimed by the defendant must be an
ascertained sum of money (not unliquidated damages).
3. Legally Recoverable: The sum must be legally recoverable (e.g., not barred by
limitation).
4. Same Character: Both parties must fill the same character as they fill in the
plaintiff's suit (e.g., if sued in a personal capacity, one cannot set off a debt owed
in a representative capacity).
5. Pecuniary Jurisdiction: The amount claimed must not exceed the pecuniary
limits of the jurisdiction of the Court.
2. Equitable Set-off

Apart from legal set-off, Indian courts recognize "Equitable Set-off" (under Order 20 Rule
19).

• It applies where the defendant's claim arises out of the same transaction as the
plaintiff's claim.
• It can be for an unascertained sum (e.g., damages for breach).
• It is discretionary, whereas legal set-off is a right.
3. Effect of Set-off

The Written Statement containing a set-off has the effect of a plaint in a cross-suit so as
to enable the Court to pronounce a final judgment in respect of both the original claim and
the set-off.
III. Counter Claim (Order 8 Rules 6A - 6G)
A Counter Claim is a claim made by the defendant against the plaintiff. It is substantially
a cross-suit aimed at enforcing a claim against the plaintiff.

1. Nature and Scope (Rule 6A)

• A defendant may set up, by way of counter claim against the claim of the plaintiff,
any right or claim in respect of a cause of action accruing to the defendant against
the plaintiff.
• Timing: The cause of action must have accrued either before or after the filing of
the suit but before the defendant has delivered their defense (or before the time
limit for it expires).
• Effect: It is treated as a plaint in a cross-suit. The plaintiff has to file a written
statement in answer to the counter claim.
2. Difference from Set-off
• Scope: Set-off is a defense (shield) used to reduce the plaintiff's claim. Counter
claim is a weapon (sword) used to claim an independent decree against the
plaintiff.
• Subject Matter: Set-off is limited to money suits. Counter claim can be for any
civil right (e.g., injunction, possession, money).
• Jurisdiction: In set-off, the amount must not exceed the court's jurisdiction. In
counter claim, the same rule applies.
3. Survival of Counter Claim (Rule 6D)

Even if the suit of the plaintiff is stayed, discontinued, or dismissed, the counter claim may
legally proceed. The court can pass a decree on the counter claim independent of the
main suit.

Comparison Table
Feature Set-off (Legal) Counter Claim

Nature Statutory Defense (Shield). Cross-Action (Sword).

Claim Type Only for recovery of money. For any civil right/relief.

Can be ascertained or un-

Amount Must be ascertained sum.
ascertained.

Usually from same/different Can be independent cause

Accrual
transaction. of action.

Amount must be recoverable Recoverable at date of

Limitation
at date of suit. Written Statement.
 Feature Set-off (Legal) Counter Claim

Effect of Suit
Falls with the suit. Survives independently.
Dismissal

Production, Impounding, and Return of Documents (Order 13 CPC)

Documentary evidence is a crucial part of civil litigation. To ensure a fair trial and prevent
last-minute fabrication of evidence, the Code of Civil Procedure (CPC) lays down strict
rules under Order 13 regarding when documents must be produced, how they are
handled (impounded), and when they can be returned.
I. Production of Documents (Order 13 Rule 1)
The law mandates that all documentary evidence must be brought before the court at the
earliest possible stage to avoid surprise to the opposite party.

1. Time for Production

• General Rule: The parties or their pleaders must produce all original documents
on or before the settlement of issues.
• Copies Filed Earlier: This applies to documents where copies were already filed
along with the plaint (Order 7 Rule 14) or the written statement (Order 8 Rule 1A).
At the stage of issues, the original must be produced for the court's inspection.
2. Procedure
• The court receives the documents.
• A list of documents must accompany them (Rule 1).
3. Exceptions (Rule 1(3))

Documents do not need to be produced at this initial stage if they are produced:

• For the cross-examination of the witnesses of the other party.

• To refresh the memory of a witness (e.g., a diary or logbook).
4. Rejection of Irrelevant Documents (Rule 3)

The Court has the power to reject any document at any stage of the suit if it considers the
document irrelevant or inadmissible. The grounds for rejection must be recorded.

II. Admission and Impounding of Documents

Once documents are produced, the court determines their admissibility.

1. Endorsement on Admitted Documents (Rule 4)

If a document is admitted in evidence, the Court officer must endorse it with:

• The number and title of the suit.

• The name of the person producing the document.
• The date of production.
• A statement that it has been admitted.
• Signature: The judge must sign or initial the endorsement.
2. Impounding of Documents (Rule 8)

"Impounding" means keeping the document in the custody of the law.

• Power: Notwithstanding any other rule, the Court may, if it sees sufficient
cause, direct any document or book produced before it to be impounded.
• Custody: The document is kept in the custody of an officer of the Court for such
period and subject to such conditions as the Court thinks fit.
• Purpose: This power is usually exercised when the Court suspects the
document is forged, fabricated, or unstamped/insufficiently stamped, and it is
necessary to prevent the party from tampering with it or keeping it away from legal
scrutiny (e.g., sending it to the Collector for stamp duty adjudication).

III. Return of Documents (Rule 7 and Rule 9)

Documents placed on record do not stay there forever. The CPC provides a mechanism
for their return.

1. Return of Rejected Documents (Rule 7)

• Documents not admitted in evidence do not form part of the record.
• They shall be returned to the persons producing them.
2. Return of Admitted Documents (Rule 9)

Any person (party or non-party) desirous of receiving back any document produced by
them is entitled to receive it back:

• No Appeal: When the suit has been disposed of, and the time for appeal has
expired.
• Appeal: If an appeal is filed, after the appeal is disposed of.
3. Early Return (Proviso to Rule 9)

A document can be returned before the disposal of the suit/appeal if:

• The applicant delivers a certified copy (if a party) or an ordinary copy (if a non-
party) to be substituted for the original.
• The applicant undertakes to produce the original if required by the Court.
4. Exception
No document shall be returned which, by force of the decree, has become wholly void or
useless.

Summary Flowchart
Stage Action Relevant Rule

Stage Production of Original Documents (at Settlement of Order 13 Rule

1 Issues). 1

Stage Order 13 Rule

Court admits or rejects documents.
2 3

Stage Order 13 Rule

Admitted documents are Endorsed.
3 4

Stage Order 13 Rule

Documents may be Impounded if suspicious.
4 8

Stage Documents Returned after suit/appeal (or earlier with Order 13 Rule
5 copy). 9

Provisions of Summary Suits (Order 37 CPC)

I. Introduction and Object
Summary Suits are a special class of suits governed by Order 37 of the Code of Civil
Procedure, 1908 (CPC). They are distinct from ordinary suits because they provide a
summary procedure for the speedy recovery of money in cases where the defendant has
no substantial defense.
• Object: The primary objective is to prevent unreasonable obstruction by a
defendant who has no valid defense and to facilitate the expeditious disposal of
cases involving commercial transactions or liquidated demands. It is based on the
principle that in commercial matters, time is of the essence.
II. Applicability (Order 37 Rule 1)
1. Courts Competent to Try Summary Suits:

The provisions of Order 37 apply to:

• High Courts.
• City Civil Courts.
• Courts of Small Causes.
• Any other Court notified by the High Court.
2. Classes of Suits:

Order 37 applies only to the following specific classes of suits:

• Suits upon Bills of Exchange, Hundis, and Promissory Notes.

• Suits in which the plaintiff seeks only to recover a debt or liquidated demand in
money payable by the defendant, arising:
o On a written contract; or
o On an enactment (where the sum is fixed, e.g., tax or penalty); or
o On a guarantee, where the claim against the principal is in respect of a debt
or liquidated demand.
III. Institution of Summary Suit (Order 37 Rule 2)
To institute a summary suit, the following requirements must be met in the plaint:
1. Specific Averment: The plaint must explicitly state that the suit is filed under
Order 37 of the CPC.
2. No Other Relief: It should not contain a claim for any relief which does not fall
within the scope of Rule 1 (i.e., unliquidated damages or injunctions cannot be
mixed).
3. Cause of Action: It must set out the specific grounds (bill of exchange, contract,
etc.) on which the claim is based.
IV. Procedure and Stages (Order 37 Rule 3)
The procedure involves a strictly regulated timeline that differs significantly from ordinary
suits.

1. Appearance of Defendant (Within 10 Days)

• Unlike ordinary suits where the defendant files a Written Statement, in a summary
suit, the defendant cannot defend the suit as a matter of right.
• Upon receiving the summons, the defendant must enter an "Appearance" within
10 days.
• Consequence of Non-Appearance: If the defendant fails to enter an
appearance within 10 days, the allegations in the plaint are deemed to be admitted,
and the plaintiff is entitled to a decree immediately (Rule 2(3)).
2. Summons for Judgment
• If the defendant enters an appearance, the plaintiff must then serve a "Summons
for Judgment" on the defendant.
• This summons is supported by an affidavit verifying the cause of action and the
amount claimed, and stating that in the plaintiff's belief, there is no defense to the
suit.
3. Application for Leave to Defend
• Upon receiving the Summons for Judgment, the defendant must apply for "Leave
to Defend" within 10 days.
• The defendant must file an affidavit disclosing such facts as may be deemed
sufficient to entitle them to defend.
V. Granting of Leave to Defend (The Test)
The most critical stage in a summary suit is the court's decision on whether to grant
"Leave to Defend." This is governed by principles laid down by the Supreme Court in
landmark cases like IDBI Trusteeship Services Ltd. v. Hubtown Ltd. (2017).
The Court generally follows these principles:
1. Unconditional Leave: If the defendant satisfies the Court that they have a
substantial defense or raises a triable issue (a dispute that requires a trial to
resolve), unconditional leave to defend is granted.
2. Conditional Leave: If the defendant's defense appears frivolous or vexatious,
or if they have no substantial defense but the court feels mercy should be shown,
leave may be granted subject to conditions (usually depositing the suit amount or
furnishing security).
3. Refusal of Leave: If the defendant admits the claim or has absolutely no
defense (moonshine defense), leave is refused, and the plaintiff gets a judgment
forthwith.
VI. Decree and Execution
• Decree: If leave to defend is refused or the defendant fails to comply with the
conditions (e.g., depositing money), the plaintiff is entitled to a judgment
immediately.
• Setting Aside Decree (Rule 4): Under "special circumstances," the Court has
the power to set aside a decree passed in a summary suit, stay execution, and
grant leave to the defendant to appear and defend. This is stricter than Order 9
Rule 13 (setting aside ex-parte decree in ordinary suits).

Difference Between Summary Suits and Other (Ordinary) Suits

The distinction lies primarily in the procedure and the rights of the defendant.

Feature Summary Suit (Order 37) Ordinary Suit

The defendant has no

The defendant has an
Right to inherent right to defend.
automatic right to defend and
Defend They must seek "Leave to
file a Written Statement.
Defend" from the court.

Restricted to specific claims:

Bills of Exchange,
Applies to all civil disputes of a
Applicability Promissory Notes, Written
civil nature (Section 9 CPC).
Contracts, Enactments,
Guarantees.

Specific summons in Form Standard summons for

No. 4 (Appendix B). It informs settlement of issues. Requires
Summons
the defendant to appear defendant to appear and
within 10 days. answer.
 Feature Summary Suit (Order 37) Ordinary Suit

Defendant appears on the date

Defendant must enter
fixed in the summons (usually
Appearance appearance within 10 days of
allowing 30 days for Written
service.
Statement).

Filed as a matter of right within

Written Filed only if Leave to Defend
30 days (extendable to 90/120
Statement is granted.
days).

If defendant does not appear If defendant does not appear,

within 10 days, the plaintiff is the court proceeds ex-parte
Effect of Non-
entitled to an immediate (hears only plaintiff). It does not
Appearance
decree. The allegations are automatically decree the suit
deemed admitted. without evidence.

Burdens the defendant to

Burdens the plaintiff to prove
Burden of prove they have a valid
their case through evidence
Proof (Initial) ground to contest ("Triable
during trial.
Issue").

A decree in a summary suit (if An ex-parte decree can be set

decided on merits or default) aside more easily under Order
Res Judicata
bars a fresh suit. Setting it 9 Rule 13 if "sufficient cause" is
aside is difficult (Rule 4). shown.

Follows the full course:

Highly expedited. Judgments
Pleadings -> Issues ->
Speed can be passed without a full
Evidence -> Arguments ->
trial.
Judgment.
VII. Conclusion
Order 37 is a powerful tool for creditors to recover liquidated debts without the long delays
of ordinary litigation. By shifting the burden onto the defendant to show a valid defense
early on, it filters out frivolous defenses and ensures that commercial sanctity is
maintained. However, because it restricts the defendant's natural right to defend, courts
exercise this power cautiously, ensuring that genuine disputes are sent for trial (by
granting leave).