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Civil Procedure Code (CPC)
[with Amendments of 1999 & 2002]

LLB Course
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Study Notes o
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 CONTENTS
Chapters
Introduction & Question Bank
1. Suits of a Civil Nature 7
2. Res Subjudice & Res Judicata
1 .Res subjudice (Stay of suit) 10
2. Res Judicata
3. Constructive
4. Res Judicata & estoppel

3. Suits against the Govt. 15

4. Indigent Person

1. Informa pauperis
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2. Papuper Appeals

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5. Preliminary Topics 18
1. Pleadings

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a) Plaint
b) Written Statements
2.Parties to suit
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4 Framing of Suit and procedure
5 Summons –issue and delivery
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5 .1Recording of evidence

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5a) Suit by Minor

d Non appearance of parties

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6 Setting aside exparte decree

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.Suit dismissed for default

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7. Court appoint of Guardian
8. Death of a party
9. Transfer of suit
10. "Cost follow the event"
11. Rateable distribution
12. Subsistence allowance
12.1 Out of court settlement
6. Temporary injunction 39
7. Attachment & Arrest 41
3
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1. Grounds for attachment & . .

C P C >>>>>
 Properties exempted 36
2. Arrest & Procedure to arrest
8. Commissions 43
9. Receiver 44
10. Judgment decree and order 45
1. Judgment & decree
2. Order
3. Order & decree
11. General 47
1. Substituted Service
2. Remand
3. Restitution
4. Caveat
5. Representative Suit
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6. Next friend
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7. Legal Representative
8. Interrogatories

9 Foreign Judgment a
10. Public Nuisance
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11. Mesne Profits
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12. Garnishee
13. Precept

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14. Inter-pleader Suit
12.
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Reference, Review & Revision 55

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1. Reference

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2. Review

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3. Revision .
13.Appeal to Supreme Court 57

14. Miscellaneous 58
1. Abatement of Suit
2. Withdrawal
3. Consent-decree
4. Compensatory Costs
5. Place of suing
4

6. Parties to Suit
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C P C >>>>>
 7. Frame of Suit
8. Inherent powers of the Court
15. Appeal, Execution etc 62
1. Appeal from original decree
2. Second Appeals
REFERENCE SECTION 64

QUESTIONS BANK
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1 Explain, with illustrations, suits of a Civil Nature.

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2 Discuss the doctrine of Res Judicata'
3 Explain the procedure to be followed to file a case

a
against the
Government.
4
provided for in m
What is informa pauparis ? Detail the Procedure

a
the C.P.C. to file a suit by an indigent person.

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5 Foreign judgement operates as a Res Judicata
between the
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parties in India. Explain. Refer to exceptions.
6
d
Explain the provisions that enable the courts

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to grant
Temporary Injunctions.
7
t (1) What are the grounds for attachment & state

S properties
which cannot be attached (2) Explain 'Arrest
before judgement'3.Detail issue & service of
Summons.
8 How & for what purpose is a Commission
appointed,
Explain its powers & functions
9 .1) Define & distinguish an order from a decree.
5
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(2) Explain Reference, Review, Revision

C P C >>>>>
 10.(1) Discuss the doctrine of Restitution.
(2) Write a note on interpleader suit.
11 Explain how appeals are made to the Supreme Court
from Civil Proceedings
12 Detail the provisions relating to the place of suing
and joinder of parties.
2.Explain Alternate Dispute Resolution [Out of Court
Settlement]
3 Explain:(i) Res subjudice (ii) Constructive Res judicata
.
(iii) Caveat (iv) Remand (v) Next friend (vi)
Garnishee
(vii) Precept (viii) Consent-decree.
14 Write Short notes on : •
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(i) Public Nuisance (ii) Mense

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Profits (iii) Interrogatories (iv)
Substituted service (v)
Representative suit (vi) Legal
Representative (vii) Abatement a
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of suit (viii) Withdrawal of the

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suit, (ix) Compensatory costs.

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15. What is a Plaint ? What are its contents? When is it rejected or

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returned.
16. What defenses can be taken in written Statements.
17.
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Detail the procedure to be followed for issue and

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service of summons under C P C 1999.

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C P C >>>>>
 CHAPTER 1
SUIT S O F A CI VI L N A TU RE
Ch.1 Suit of a Civil Nature:
Civil Suits are divided into : i) Suits of a civil
nature and ii) Suits not of a civil nature.
The Civil courts have jurisdiction to try suits of a
Civil nature. They have no jurisdiction to try suits not
of a Civil-nature. This principle is laid down in Sn.9 of
C.RC. It says that the Civil Courts have jurisdiction
to try all suits of a Civil nature excepting those that
are expressly or impliedly barred.
The C.P.C. 1976 has added two explanations.
i) A suit in which the right to property or to an

m
office is contested, is a suit of a Civil nature, even
though such a right is connected with a religious right
or with religious ceremony,
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ii) It is immaterial whether or not any fees had
been attached to an office or such an office was

a
attached to a particular place or not,
Eg.: i) Suits of Civil nature: Matters relating to

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Easement, Adoption, Marriage, title to property, to run
a customary bull race,, right to burial.

a
ii) Suits not of a civil nature: Suit for claiming

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dakshina for worship at a temple by the pujari
(worshipper), political
questions etc.
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Suits expressly barred: Remedy of a workman

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against termination order, is barred as the remedy is in
the Industrial Disputes Act. Suits dealing with Act of
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State & public policy are barred.

S The cardinal rule is therefore that the Civil

Courts can entertain
only suits of a civil nature. But, vexed problems do
come before the
courts with mixed rights civil & religious. The courts are
guided by certain procedural principles in such
circumstances.
i) If the main question or the only question is in
respect of caste or religious right or ceremonies it is not
7

of a civil nature but, if the religious right is only a

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subsidiary question, then it is of a civil nature. Further, if

C P C >>>>>
 the main question cannot be decided without deciding
the religious or caste question then, the matter is of a civil
nature and the courts have jurisdiction.
Expulsion from caste (Excommunication). This will
deprive a person of his legal right which forms part of his
status. Hence, suit will lie. However, excluding a
member from invitation to caste dinners or ceremonies
will deprive him a social privilege, and hence no civil suit
can be filed.
Similarly a) No civil suit can be filed to compel a
pujari to adorn an idol at a certain season.
b) Suit in respect of a mere dignity attached to an
office is not of the civil nature. The suit of a swamiji ,that
he should be carried on the high road in a palanquin is
not a suit of a civil nature as it is .only a religious
honour.
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ii) If the main question is a civil or a legal right, it is
a civil nature. Therefore, a right to an office is a suit of a

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civil nature. Office may be secular or religious.
A religious office may be of two kinds :
a
a) Those offices to which fees are attached as of ight.

m
Eg. Khaji, Aya of a Mutt, Joshi of a village, or
pujari of a temple, Upadayaya of a Caste.
a
b) Those offices to which no fees is attached.
Hence, the
n
officer may be receiving an ex gratia. No civil suit can
be filed to
y
d
recover ex gratia amounts

u
.The Bombay High Court had maintained a
distinction between (1) an office attached to a sacred

t
place (2) office not so attached. It allowed cases under

S
(1) and not under (2)
To override this new C.P.C. provides that whether
any fees is attached or not and whether the office is
attached to any religious place or not, it is a suit of a civil
nature.
iii) Interference with temple properties. Eg.: Removing
the name or other religious mark is of civil nature. Right to
worship at a certain place is of a civil nature. Right of
burial is a civil right. Carrying religious procession on the
highway is a civil right. Hence, a civil suit may be filed.
8
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iv) Examples:
C P C >>>>>
 1. Right of an elected person to act as such
2. Right to vote or stand for election
3. Suit for dissolution of marriage
4. Right of a club or Association member to
continue as
member
5. Suit for rent contribution, mesne profits, etc.

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C P C >>>>>
 CHAPTER 2
RES SUBJUDICE & RES JUDICATA
Ch. 2.1 Res-Subjudice: Sn .10 CP.C.
This means 'a right under judicial consideration'.
In order to prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect of the same matter in
issue, provisions are made in Sn.10 C.P.C.
Such a matter is said to be 'Res Subjudice' if the matter
previously instituted is pending in another court of competent
jurisdiction.
What is barred is the second suit instituted. The second court

m
should not proceed with the trial of the suit if:
i) The matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties.
o
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ii) The previously instituted suit must be (a) in the same court in
which the second, suit is brought or (b) in any other court original or

a
appellate.
iii) The previously instituted case must be pending in any of the

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courts as above or Supreme Court competent to grant the relief.

a
E.g.: B residing in Calcutta, has an agent A at Mysore to sell
goods. A sues B in Mysore for balance due on account. During the

n
pendency of the suit B institutes a suit against A, in Calcutta. The

y
Calcutta court must not proceed as the matter is re-subjudice in Mysore
Court. The suit must be stayed.

d
Exception: If a suit is pending in a Foreign Court, the suit is not

u
barred in India and hence, a suit may be filed.

t
The provisions in Sn 10 are mandatory. It also applies to
proceedings under Art 226 of the Constitution.

S Ch.2.2. Res Judicata : Sn. 11 C.P.C.

Res Judicata means 'right decided’. This means 'the matter
is adjudicated' and hence, the competent court has already decided
the matter. The rule is that the second trial should be barred to
prevent multiplicity of proceedings. This rule was laid down in the
Duchess of Kingstone's case by Sir William de Gray, Judge.
However, several conditions are to be fulfilled to bar the jurisdiction
of the second court.
10

Conditions
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i) The matter directly & substantially in issue in the subsequent

C P C >>>>>
 suit must be the same matter which was directly and substantially in
issue either directly or constructively in the former suit. Former suit is
a suit which has been decided prior to the suit in question.
a) A sues B for breach of contract. The suit is dismissed. A
subsequently sues B for damages for breach of contract orl the same
contract. This-is barred under Re Judicata.
b) A sues B for rent due for the year 1995. The defense is that
the rent has been paid and that there are no dues. Hence, the claim for
rent is the matter directly and substantially in issue.
ii) The former suit must have been between the same parties or
between their representatives.
iii) The parties to the suit must have litigated under the same
title in the former suit,; same title means the same capacity.
Eg.: A a mahnt of a Hindu mutt, dies. His heir B sues 'S' to
recover mutt property from him. The suit is dismissed on the ground

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that the heir had not taken out succession certificate. But later B is

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appointed duly as the manager of the mutt. He can sue 'S' and there
is no res Judicata.

.c
iv) The court which decided the former suit should have been a
court competent to try the subsequent suit.

a
If the first court had exclusive jurisdiction, then that court's
jurisdiction will act as res Judicata to bar any subsequent suit.

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If the first court had concurrent jurisdiction then that court is

a
competent hence res judicata operates.

n
Hence, if the first court had neither exclusive nor concurrent
jurisdiction, it has no jurisdiction at all. Hence res judicata will not

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apply. The suit may be initiated.

d
v) The matter directly and substantially in issue in the subse-
quent suit must have been heard and finally decided by the court in

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the suit.

t There must be final decision, the matter is heard and

S
finally decided in any one of the following ways:
(a) Ex Parte (b) Dismissal (c) Decree (d) Dismissal due to
plaintiffs failure to produce evidence.
Explanation :- Sn 11 has 8 explanations : According to them
i) The matter in the former suit should have been alleged by one
party and admitted or denied by the other
ii) Competence of court is decided irrespective of a provision
to an appeal in the earlier suit,
11

iii) "Matter" which might'or ought to have been agitated or

defended in the earlier suit shall be the matter directly or substantially
Page

in issue.
C P C >>>>>
 iv) Relief, if not, granted in earlier suit shall be
constructed as rejected.

Amendments of C.P.C. 1976.

i) To avoid multiplicity of proceedings it is provided that the
District court may try the suit or transfer it to a court with competent
jurisdiction if the court finds that the case involves a question which a
court of limited jurisdiction would be incompetent to try.
ii) Before the new C.P.C. under res judicata the successful party
was barred in respect of adverse findings of the court. Now, it is not
barred, and he may file an appeal against such adverse findings.
iii) The doctrine is now extended to independent proceedings
and also to execution proceedings.
Ch.2-3. Constructive res judicata.
According to Sn.ll, Explanation iv: a matter may be actually
m
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or constructively in issue. Matters may be directly in issue.
These are clear from the pleadings in the plaint and the

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written statement. However, there may be matters 'might have been'
or 'ought to have been' made by the parties (the plaintiff in his

a
averment or the defendant in his written statement).
If the parties have failed in the previous suit to bring out these,

m
then under the rule of res judicata, the matter is deemed to have been

a
in issue directly and substantially, and it is also deemed to have been
heard and decided. The result is that in such cases, the suit is barred
under res Judicata.
n
y
Eg.: A sues B to recover certain property belonging to the
estate of C. The ground was that C & D were brothers; on the death

d
of C, the property came to me survivor D and that D had adopted 'A'.

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D, died and the property had come to B. A claimed as adopted son.
The suit was dismissed as adoption was not proved. Later A sued B

t
alleging that he was a 'bandhu' of C and hence was entitled. This is

S
barred by constructive res Judicata. B ought to have pleaded that he
was a 'bandhu' in the earlier suit. Suit dismissed
Ch. 2.4. Res judicata and estoppel
Distinguished:
Though res judicata is sometimes treated as part of the
doctrine of estoppel, still they are essentially different.
Res judicata Estoppel
1. Res judicata under Sn.ll, is Estoppel as per Sn.115 of
12

based on public policy. It is the Evidence Act is by

essentially procedural. Based conduct of parties, or
Page

on "Nemo dabet bix vexari" (No agreement or estoppel in

C P C >>>>>
 one should be vexed twice) to pais.
put an end to litigous tendency. This is essentially a
What is barred in the second suit rule of evidence. It is
on the same cause of action based on the rule that if

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C P C >>>>>
 between the same parties and a person induces another
subject to other conditions of to alter his situation, he
Sn.ll. cannot take advantage of
such altered situation. He
will not be allowed to
contradict himself.
2. Res judicata ousts the juris Estoppel shuts the mouth
diction of the court in the of the party from blowing
second suit. hot and cold in the same
3. Deals with jurisdiction of the breath.
second court itself and bars it This is by a party and
from exercising jurisdiction. hence he is prevented from
going back on his earlier
statement.

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C P C >>>>>
 CHAPTER 3
SUITS AGAINST GOVT.
Ch.3 Sns 79 & 80 Suits against Government
Suits may be (i) General or (ii) of a particular kind.
In respect of suits in general it is not necessary to give notice to
the defendant before filing a civil suit. However, in respect of suits
against the Government, it is essential that notice under Sn. 80 C.P.C.
must be served. The object is to provide an opportunity to the Govt.
to reconsider the legal position, and to amend or settle the claim
without any litigation. The Central Government shall be called the
Union of India and the State Government shall be called the State,
e.g. state of Karnataka for the purpose of serving notice. Period of
notice: Two months Notice is essential, as per sn.80

m
In respect of suits, against the Central Government notice must
be given to the Secretary to the Government. (If it relates to the rail-
o
way, notice must be given to the General Manager of the railways).

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In respect of suits against State the cause of action Govern-
ment notice must be given to the Secretary to that Govt. or the

a
Collector of the District, as the case may be.
The notice must be in writing, state the name and description
m
and place of residence of the plaintiff and also the relief which he
claims.
a
n
In case of a public officer, notice under Sn.80 must be delivered
to him or left at this office.
Plaint y
d
The plaint shall contain a statement stating that notice under

u
Sn.80 has been so delivered or left in the office of the person so

t concerned. If notice has not been so served, then the suit is to

S
be dismissed.
The new C.P.C. Sn.80(2) provides that when a suit to obtain an
urgent or immediate relief is to be filed then no notice is necessary if
the court so permits. The court in such circumstances shall give the
Govt. or the Officer, reasonable opportunity of showing cause. The
court also, decides whether there is urgency or not.
No suit under Sn.80 shall be dismissed merely on technical
grounds of error or defect in the notice.
15

If there is no urgency to grant relief, the Court returns the plaint

for presentation after giving notice .It must identify the cause of
Page

action and reliefs claimed, in the notice and in the plaint.

C P C >>>>>
 CHAPTER 4
INDIGENT PERSON
Ch. 4.1 Informa Pauperis
(Suits by indigent person)
Provisions are made in C.P.C. to enable a pauper to file a suit
subject to certain conditions. 0.33rr. 1 to 16 provide for this.
A person is a pauper when he is not possessed of sufficient
means to pay the court fee to institute a suit. Where no such fee is
prescribed, the person is a pauper when his entire property is below
Rs.1000/- value excluding his necessary wearing apparel and of course
the matter of the suit.
Suit

m
0.33 provides for the procedure to file a suit informa pauperis.
Every application for leave (permission) to sue informa pauperis must
o
contain the particulars as required in a plaint. Also a schedule of any

.c
movable or immovable property with estimated value should be
annexed. The plaint should be duly signed and verified.

a
Presentation
The application should be presented to the Court by the appli-

m
cant or agent capable of answering material questions put to him by
the court.
Examination a
n
The applicant is examined, if the application is proper and duly

y
presented and if the court thinks fit to examine. The examination
relates to the merits of the claim and property of the applicant.
d
Rejection

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The court rejects the application:

t i) If it is not framed and presented in the prescribed manner.

S I ii) If the applicant is newfound to be a pauper.

iii) If the applicant has fraudulently disposed of his property
within two months next before instituting the suit.
iv) If there is no cause of action.
v) If there is a transfer of interest in the subject matter of the
proposed suit, to some other person.
Hearing
If there is no reason to reject the application, the court shall fix
16

a day for receiving the evidence by the applicant to prove his pauper-
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ism. Evidence to disprove pauperism may be allowed. (Notice to the

C P C >>>>>
 opposite party and Govt. pleader necessary). On the day fixed the
court shall examine the witnesses produced by either party and may
examine the applicant and make a memorandum thereof. Thereupon
the court may give its decision allowing the application or its refusal.
Admission of application: If the application is granted it
should be numbered and registered. It shall be deemed to be a plaint
and the suit shall proceed of course without payment of Court fees.
Dispaupering
i) If the plaintiff is guilty of vexatious or improper conduct in
the course of the suit.
ii) If his means are more than a pauper.
iii) If the plaintiff transfers his interest in the subject matter,
The court may dis-pauper him. Under the new C.P.C. the court
is empowered to assign a pleader to an indigent person who is not
represented by a pleader Order 33, Rule 18 also provides for free
m
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legal services to such persons.
Costs

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Where the plaintiff succeeds, the court shall calculate the amount
of court fees and recover the same from the plaintiff.
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Ch. 4.2.: Pauper Appeals
m
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A pauper who is entitled to go for an appeal but who is unable
to pay the fees is allowed to appeal as a pauper subject to the same

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provisions as provided above.

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The court entertains the appeal if, the lower court's decision

d
is contrary to law usage or is erroneous or unjust.

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C P C >>>>>
 CHAPTER 5
PRELIMINARY TOPICS
Ch. 5.1. Pleadings :
i) Pleadings are statements in writing drawn up and filed by
each party to a case, stating what his contentions will be at the trial,
and giving all such details as his opponent to know, in order to
prepare his case in answer (P.C. Mogha).
There are two pleadings : The 'Plaint' & the 'Written
Statement'.
The C.P.C. defines pleadings (O.VI R.2) Every pleading shall
contain, and contain only a statement in a concise form of the material
facts, on which the party pleading relies for his claim or defense, as
the case may be, but not the evidence by which they are to be proved.
According to Sri. P.C Mogha : m
Drafting of pleading is an art, it requires a good
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knowledge of law and the skill of sorting out material facts from
the whole bundle of facts and circumstances brought to the

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knowledge of the Advocate.

ii) Essentials :
m
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a) Every pleading must state facts and not law :

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Eg : The deft, is in possession of the mortgaged property and
'is liable to render accounts of income and expenditure'. (There is a

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statutory duty and hence, need not be pleaded)

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b) Pleadings should have only material facts

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The party must plead all material facts on which he intends to
rely and must plead material facts only. These are 'facta probenda'

t (Facts to be proved).

S 1. In a claim on a Promissory note, it is unnecessary to plead,

that money was given because of the honesty of the promisor.
2. In denying, the receipt of any money taken as a loan, it is
unnecessary to plead that the defendant is a very rich man and that he
had never taken any loan from any body.
c) Pleadings should not contain the evidence, but only
facts :
Eg: An Insurance company was defending the claims made by
18

a party. The term of the policy was that it would become void if the
insurer-died by his own hand'.
Page

In the written statement the Company had stated that policy

C P C >>>>>
 holder was a moody fellow, that he had bought a pistol from a shop a
few days before his death and that he had also written to his wife that
he would kill himself. The court held that all this was evidence and
hence should not be included in the pleadings (Written Statement). It
was sufficient to say that "the policy holder died by his own hand".
d) Facts must be pleaded with simplicity, brevity and
precision.
This rule is more easily said than done. As P.C. Mogha, points
out, precision and brevity can be attained by experience and careful
observation.
1. Simple words and short sentences should be used. Facts must
be stated plainly and with precision. Use of pronouns must be avoided.
The said defendant or the said plaintiff may be used often to avoid
ambiguity. Similarly 'the said deed', the First-schedule property' etc
may be used.
2. Dates, sums, numbers must be expressed in figures.
m
3. Chronological order must be followed.
o
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4. Legal effects of documents must be briefly stated, without
reproducing the document or quoting from it.

a
5. Intention, malice, knowledge etc., must be stated as a fact

m
without setting out the circumstances.

a
6. The pleading should be signed by the parties and his
advocates. It shall be verified at the foot to testify the sanctity of the
fact stated.
n
7.
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Ch. 5.1.1. Plaint (0.7, R.1) CP.C.

u
The plaint is the foundation of the Civil Case. Before drafting
it 4 essentials are to be noted 1) Period of limitation (ii) Pecuniary

t or territorial jurisdiction of the court (iii) Statutory formalities

S
before filing a suit (iv) Impleading all necessary parties.
Contents :
1) Headings : The name of the Court
(Space for fixing Court - fee - stamps)
2) Title : Description of Plaintiff and Defendant
3) Body : States the material facts divided into paragraphs and
numbered consecutively.
4) Relief - Claims or Amounts sued for
19

5) Valuation, court fee - paid

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6) Jurisdiction of court, within period of limitation, etc..

C P C >>>>>
 7) List of documents, annexure
8) Signature and Verification

PLAINT (Proforma)
In the court of....... at ........
Original Suit (O.S.) No......... of 2012
A S/o, B, aged 40, residing
at No....... Street ....... Place . Plaintiff
Versus

C/S/o D, aged 45, residing

at No. ........ Street ..... Place Defendant
m
The above named plaintiff states as follows : 1
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............ .........
2......... ............
3 ..... . ...............
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4. The Cause of action arose on..... ........
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when the defendant ..............

a
5. The defendant is resident in.. .......... and

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within the jurisdiction of this Honorable court

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6. The value of the subject matter of the suit for the purpose of
court fee and jurisdiction is Rs .......

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7. The suit is filed within the period of limitation

u8. The plaintiff claims

t 9.

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Signature of Advocate (of the Plaintiff) Signature of Plaintiff
VERIFICATION
I, ........... (Plaintiff) ...... declare that the facts stated above in
paragraphs 1 to ....... above are true to my knowledge, information
and belief in token whereof affix my signature at ..... on the .... day
of..... (month) 2012. '
20
Page

Signature of the Plaintiff

C P C >>>>>
 Affidavit: According to the new Sn 26, the C P C Amendment
Act of 1999 it is mandatory that all the facts mentioned in the
plaint are proved by way of an affidavit. Hence, an affidavit is
a must.
[Sn 26(2) says In every plaint, facts shall be proved by
affidavit." ]
Summons to Defendants : Section 27 C P C
provides for the issue of summons to the defendants in a suit
to appear and answer the claim within 30 days of the
institution of the suit. Earlier, the section did not provide any
time limit for the plaintiff to serve the summons on the
defendants. That resulted in long delays.

m
o
Ch.5.1.2. WRITTEN STATEMENT
Defence available to defendant in a Civil Suit
(Essentials of W.S.)
.c
a
The written statement can be conveniently divided into

m
following heads
1. The heading and title or formal portion
2. The body of the W.S. a
n .\

y
a) Admission and Denial part
b) Additional pleas

d
u
c) Objection in point of law

t
d) Special defences and avoidance

S
^Verifications
1. The heading and the title :
The heading of the W.S. should be the same as that of the
plaint. Then there should be the number of the suit. Title also should
be the same as that of the plaint with the difference that if there are
several plaintiffs, the name of the first plaintiff should only, be written
with the addition of words 'and another' or 'and others'. After the
title, the person on whose behalf the W.S. is filed should be shown. In
some places, the words "The defendant states as follows" are used
21

before the various paragraphs of the W.S., but this is not necessary.
The rules about signature and verification of the W.S. should be
Page

carefully observed.
C P C >>>>>
 Eg : In the court of.......... Munsiff, Mysore
O.S. No.118 of 2012
Kannapa and others..... ...... Plaintiffs
Versus
Krishnappa and others.........Defendants.
Written statement under Order VIII Rl C.P.C.
First Defendant begs to state as follows :

1 that

2
---------------
Verification signature of Defendant
m
o
.c
2. The body of the W.S. a) Admissions and Denials :
The defendant should take each fact in the same order in

a
which it is alleged in the plaint and it should be either admitted
or denied, or when the defendant has no knowledge of it, he

m
may refuse to admit. General denial is not sufficient. A denial

a
may be total or partial. When the denial is total, i.e., when the
defendant totally and categorically denies the allegations in

n
the plaint, the defence is said to be in form

y
"traverse".
•. . ' . ' .

d
i) Dilatory pleas :

u
. Dilatory pleas are those which merely delay trial of suit
on merits. But, pleas which go to the very root of the case are

t called peremptory plea, or pleas in bar.

S ii) Objection in point of Law :

It is an objection which a defendant takes to the legal
inference which is drawn by the plaintiff in his favour in the
plaint. Ordinarily this is heard and decided at the time of trial,
but the court should try that objection before proceeding with
trial of other issues, if the case (or any part there of) can be
disposed of on the decision of such objection.
iii) Special defence :
«•
22

Order 8, Rule 2 contains the rule : which says that the

defendant must rise, by his pleading, all matters which show
Page

the suit not maintainable, or that the transaction is void, or

C P C >>>>>
 voidable in point of : law, and all such grounds of defence, as
for instance, fraud, limitation, release, payments, performance,
or facts showing illegality etc.
In a suit by a firm, if the defendant wants to plead its
non-maintainability on the ground of the firm's non-
registration, it will not be sufficient to say that plaint does
not allege that the firm is registered.

2. Pecuniary (Sns. 6 & 15) :

The civil courts have different grades to try suits of a civil
nature. Small causes courts have Jurisdiction upto a fixed amount.
However, High courts, District and Civil judge courts have unlimited
pecuniary jurisdiction.

3. Subject matter:
m
o
The jurisdiction in civil matters is based on the subject matter
as well.

.c
i) Generally, money suits are confined to small causes courts
upto a fixed amount. Matrimonial matters are to be initiated at the

tion. a
District Judges court. Various acts prescribe which court has jurisdic
;

m
ii) The suit is to be instituted where subject matter i.e., immov-

a
able property is situated.
The general rule is that parties cannot create or oust the juris-
diction of the courts.
n
y
Ch. 5.2.2. Suit by or against a partnership FIRM order 30 Rules
1 to 10 C.P.C. deal with provisions to file a suit by or against a firm.
d
Partnership firms

u
1. Partners may sue or be sued in the name of the firm:

t According to 0.30 R.I, any two or more persons claiming (or

S
being liable) as partners, and carrying on business in India, may sue or
be sued in the name of the firm. These persons should be partners of
the firm at the time of accrual of the "cause of action". Further, any
party to the suit, may apply to the court for a statement of names and
addresses of the persons who were partners (at that time of accrual of
cause of action) in such firm and this is to be furnished by the party
and verified in such manner as the court may direct.
All pleadings (plaint, written statement etc) may be verified or
signed by any such person (partner).
23

The suit is not affected, if there is a minor in the firm, or one

who is not capable of suing or be used.
Page

C P C >>>>>
 2. Partners' name and addresses:
When the suit is filed in the name of the firm, the defendant may
in writing demand the names and addresses of all the partners and the
plaintiff shall furnish the same to the court.
If the plaintiff fails to so furnish, the court may stay all
proceedings on such terms as it may direct. However, if the names
and addresses are declared, the suit shall proceed, with the partners
arrayed in the plaint. The proceedings continue in the name of the
firm, but the names are to be entered in the decree of the court.
3. Summons : .
Provisions are made for service of summons. If persons are
named in the cause title, the summons shall be served on any partner
or partners or at the place of business as directed by the court. This is
good service of summons.

m
However, if the plaintiff has knowledge, at the time of filing the
suit that the partnership firm has been dissolved summons will have

o
to be served on every such partner of the said dissolved firm.

.c
Appearance is necessary, if the person is a partner. Otherwise,
he may enter appearance under protest (Rule 8), stating that he was

a
never a partner at any material time. The court decides whether that
person was a partner or not.

m
When the partners are sued in the name of their firm, they should
make appearance, in their names but subsequent proceedings shall be
in the name of the firm.
a
n
Death : In case of death of a partner, it is not necessary to join
the legal representative. But a legal representative has a right to apply

y
to the court to be made a party.

d
Suits between partners:

u
R.9 provides for suits between partners of the same firm.
Similarly, in case of two or more common partners in two firms, suits

t by one firm against the other may be filed.

S 5.2.3. Suit by a minor : (0.32 Rl to 16)

A minor or infant is regarded by law as of immature intelligence
and discretion. Due to want of capacity and judgment, he is disabled
from binding himself, except for his,»,own benefit. Order 32 is
therefore specially made to protect the interests of minors. These
provisions apply to persons of unsound mind. The objective is to see
that a minor or unsound person is represented by a qualified person,
24

to act on his behalf.

Suit:
Page

C P C >>>>>
 Every suit by a minor should be filed in his name by a "next
friend", "Minor" is a person who has not completed 18 years of age,
if minor's property is under charge of court of Wards Act, the
minority is upto 21 years.
The cause title of the suit gives the title and description. "X,
minor, by his next friend Mr....... " versus AB defendant.
Suit filed, without next friend should be taken off the file, on
hearing the objector - defendant.
Appointment:
The court has powers to appoint (Rule 3), a "Guardian" for the
suit, by issuing an order made on the application of the guardian. The
guardian should file an application, with an affidavit verifying that he
is a fit person and has no interest in the suit adverse to the minor i.e.,
he would act for the benefit of the minor. The court will appoint after
giving notice to Father, but if he is not alive, to the mother if both are

m
dead, to the guardian, if any, of the minor. Guardian should give his

o
consent for appointment.

.c
The guardian so appointed continuous until he is terminated by
removal, retirement, or death.

a
If any person is not fit to be appointed as guardian, the court
may appoint an officer of the court as guardian and his expenses shall

m
be met from the property of the minor as justice and circumstances

(Rule 3).
a
n
ii) If defendant appears and plaintiff does not, the court is bound

y
to dismiss the suit.
iii) If plaintiff appears and defendant does not, the court is

d
authorised either to postpone the hearing or proceed exparte.

u
The order is applicable to hearing, before the trial begins. For

t
subsequent stages suitable provisions are made in order 17.

S Ch. 5.3 Parties to the Suit (O.I.R. 2 to RR.23)

Joinder of parties
The four essentials of a suit are
i) Opposing parties (Plaintiff and Defendant)
ii) Subject in dispute.
iii) a cause of action, and
25

iv) a demand for relief or

Page

C P C >>>>>
 compensation.
Provisions are made in the C.P.C. relating to joinder of parties
and the framing of suits.
i) Joinder of Plaintiffs:
Al! persons may be joined as plaintiffs in one suit, if the relief
claimed arises from the same act or transaction and there is a
common question of law or of fact.
Eg.: a) A publishes books in the name of The Oxford and
Cambridge Publication', misleading the public. The two Universities
may sue together as Plaintiff in one suit for an injunction against A.
b) A & Co. issued a prospectus. X,Y and Z believed the
statements and bought shares. The statements were in fact a misrep-
resentation. X,Y and Z may together sue A & Co.

m
If this rule is not followed it is a misjoinder of plaintiffs.
Similarly, if a party necessary to the suit is not included it becomes
non-joinder of parties.
o
.c
ii) Joinder of defendants:
The rule is that all those persons may be joined as defendants

a
when any relief claimed by the Plaintiff, arise out of the same act or
transaction, and further, when there is any common question of law

m
or of fact.

a
Eg.: a) A, a passenger in a bus belonging to B is injured by a

n
•collision between the bus and a truck of C. A sues B & C for damages

y
for personal injury. As the transaction is the same and there is a
common question of law B & C may be sued together.

d
b) A & B conspire and publish a libel against C. C may sue A

u
and B together.

t
If the above rule is not followed it may lead to misjoinder of
defendants. Misjoinder of plaintiff or misjoinder of defendants or
S misjoinder of cause of action will not be fatal to the suit but, the plaint
may be amended, and the Court may proceed further.
If a necessary party is not joined, it amounts to non-joinder of
parties.

Ch. 5.4. Framing of suit in civil Court [ As amended in 1999.]

i) Order 2, Rules 1 to 7 C.P.C. have provided for "Frame of
26

suit".
The rule is : every suit should be framed so as to afford
Page

ground for final decision on the subjects in dispute.

C P C >>>>>
 The objective is to prevent further litigation. Hence, as far as
possible the framing should be complete by itself.
e.g. In a partition suit, the plaint should be so framed as to
disclose the whole partible property.[all properties to be partitioned]

ii) The plaintiff should include the whole of his claim, to

which he is entitled as regards cause of action. He may relinquish
a part of his claim, in which case he is estopped from claiming it
(Rule 2).
Where various reliefs are available in respect of the same cause
of action he may claim for a few. If he has omitted a relief, he cannot
claim, except with the permission of the court.
iii) Joinder of causes of action : Rule 3 :
a) Plaintiff may unite several causes of action against the same
defendant or defendants jointly.
m
o
b) Further, if plaintiffs are jointly interested in the
cause of action, they may sue jointly.
iv) For recovery of immovable property
.c
a
The plaintiff may include with the leave of the court:
i) mesne profits or arrears of rent

m
ii) damages for breach of contract

a
iii) claims on the same cause of action.

n
Exception : In a suit for foreclosure or redemption the party
may claim possession of mortgaged property.

y
v) Rule 7 : All objections for misjoinder of causes of action

d
should be taken by the defendant at the earliest time. Otherwise it is

u
deemed to be waiver.
Procedure:
t O.IV R 1 : The plaint should be filed to the Court with a
S duplicate copy.
If duly instituted, a summon is issued to the defendant to appear
and answer the claim. He should file the written statement of his
defence, if any, within thirty days from the day of institution of
the suit as may be specified therein: But no summon is issued if
defendant was present at the time of filing of suit and admits
the claims.

If the defendant fails to file his written statement within

27

the 30 days, the Court in its discretion may allow to file his W S
on a day not later than 30 days from date of service of summons
Page

to him.
C P C >>>>>
 Ch 5.5 Issue of Summons and delivery

C P C amendment 1999 has made many changes in

respect of issue and delivery of summons. The objective
is to minimize delay and expedite the disposal of the
case.

Under rule 9 the Court may issue summons and deliver

the same to the plaintiff or his agent for service. , it will
direct the plaintiff to present as many copies of the plaint on
plain paper as there are defendants within two days from the
date of such order along with requisite fee for service of
summons on the defendants.

m
o
It may direct the summons to be served by
(i) registered post acknowledgement due or

.c
(ii) by speed post or
(iii) High Court approved Courier Service or

a
(iv) by fax massage or
(v) by Electronic Mail service [ email] or
(vi) by such other means as the High Court may prescribe by
rules.
m
a
The summons is addressed to the defendant, to accept the service
at the place where the defendant or his agent actually and

n
voluntarily resides or carries on business or personally works for
gain.
y
d
Under rule 9A the Court can , in addition to, and
simultaneously with the delivery of summons for service to the

u
plaintiff, direct that summons to be served on the defendant or his

t
agent.

S Rule 14. Provides for production of document on which plaintiff

sues or relies along with the plaint.

He should prepare a list of all such documents and shall produce it

in Court with all the documents and a copy thereof, with the
plaint. But, if he does not file any such document or a copy, it
will not be admitted in his evidence. Exception:
documents produced for the cross examination of the plaintiffs
witnesses, or, handed over to a witness merely to refresh his
memory.
28

Rule 18. 1A deals with the duty of defendant to produce

Page

documents upon which he relies for relief

C P C >>>>>
 He should prepare a list of all such documents and shall produce it
in Court with all the documents and a copy thereof, with the
plaint. But, if he does not file any such document or a copy, it
will not be admitted in his evidence. Exception:
documents produced for the cross examination of the defendant’s
witnesses, or, handed over to a witness merely to refresh his
memory.

Order of dismissal
If plaintiff or his agent has not sent the summons within 2
days to the defendant or he has not paid the court-fee or
charges, the court shall make an order that the suit be
dismissed.

Ch 5.6 Recording of Evidence Amendments

1999
m
One important change in the C P C amendment Act o
.c
1999 is the procedure of recording of evidence made
with a view to save the time of the Court.
a
Recording of evidence is conducted in the following
manner:
m
a) Examination in Chief of a witness shall be on
affidavit;
a
n
b) The Cross Examination and Re-Examination of such a
witness will be either taken by the Court or the
y
Commissioner appointed by it;

d
c) The Court or the Commissioner will then record the
evidence in writing or mechanically in the presence of
u
the Judge or the Commissioner, as the case may be;
t d) The Commissioner has to return the evidence along

S with his report in writing to the Court;

e) The report of the Commissioner has to be submitted
to the Court within 60 days of such appointment or
within such further extended time as the Court may
permit for reasons to be recorded in writing;
f) Such evidence shall form part of the record of the suit
Written Arguments:
In addition to this the C P C Amendment Act of 2002 has
29

made provisions for submission of written arguments in

support of the case by both the parties separately .This is in
Page

addition to oral arguments with the permission of the Court.

C P C >>>>>
 This helps in saving the valuable time of the Court

Ch 5.6 .1 Exparte proceedings Rule 6 :

When the suit is called on, for the "first" hearing, Rule 6
provides that if the plaintiff appears and the defendant does not
appear, the court may make an order to hear exparte
1) When summons has been served on the defendant.
2) and it is proved that it is so served.
The court must be satisfied that there was due service of
summons on the defendant. "Service" does not mean by Regd. post.
Hence, no exparte decree is made on that basis.
The court weighs the merits of the suit even in exparte
proceeding.
m
o
Adjourned exparte hearing (0.9 R.7) :
When the hearing exparte, is adjourned to a later date, the

.c
defendant may appear and file an application with affidavit and assign
"good cause" for his non-appearance on that date, The court may

a
issue suitable directions as to costs etc. He is then entitled to defend
the suit.

m
Non appearance of plaintiff (R.8):

a
When the defendant appears and the plaintiff does not appear,
the court may dismiss the suit. However, if the defendant admits any
n
claims, the court may pass a decree on the basis of the admission. But

y
in respect of other claims, if any, the court dismisses such claims.

d
In such a case, the plaintiff is barred from filing a fresh suit R-9.
But, he may file an application to set aside the dismissal by showing

u
"sufficient cause" and the court at its discretion may set aside the

t dismissal order and allow the party to proceed with the suit. Notice

S
should be served on the defendant, before making such an order
under R-9.
In case of non attendance of one or more of several plaintiffs or
defendants, the court at the instance of the plaintiffs (or defendants)
appearing as the case may be, permit the suit to proceed in the same
way as all were present. Attendance in person :
R-12 provides that where the plaintiff or defendant is to
appear in person as per summons and absents without sufficient
cause, the suit will be dismissed as per the Rules under order 9.
30
Page

Setting aside exparte decree (0.9, R.13) :

C P C >>>>>
 0.9, Rule 13 is wide enough to cover every application to set
aside exparte decree. The grounds are that summons was not "duly
served", defendant was prevented by "sufficient cause or reason"
from appearing, or that there was fraud in suppressing summons.
Application :
The defendant may file an application with affidavit to the
court which passed the exparte decree.
The court will make an order setting aside the decree, if the
defendant satisfies that the summons was not duly served or he
was prevented from appearing by "sufficient cause". The court
imposes such terms as to costs and fixes a day to proceed with the
case.
Limitations: ;

m
1. The defendant should make the application, within 30
days from the date of decree, or where the summons are not duly

o
served, the period is 30 days from the date of his knowledge of the

.c
decree.
2. No decree should be set aside without notice to the plaintiff
(Rule 14).
a
3. If the decree is of such a nature that it cannot be set aside as

m
against such defendant only, it may be set aside against all defendants.

a
4. Mere irregularity ir. the service of summons, is no ground to
set aside the decree, if the defendant, had notice of the date of hearing
n
and had sufficient time to appear.

y
Sufficient cause :

d
It is interpreted liberally to do substantial justice when there

u
is no negligence or inaction or want of bonafides of the defendant.
A finding by the court on sufficient cause is mandatory. Such a

t cause depends on various facts and circum-stances of the case.

S
Effect:
The effect of setting aside the exparte decree is that the parties
are restored to the position they previously held. Hence, the
court* proceeds from that stage. If decree is not set aside, it will be
absolute and binding.
Revision :
Under Sn. 151 C.P.C. revision will lie if the conditions are
satisfied.
31

5.6. Suit dismissed for default.

Refer Ch. 5.4.
Page

C P C >>>>>
 5.7. Court appointment of Guardian
Refer Ch. 5.3.2.

5.8. Death of a party (Order 22 : Rules 1 to 12) :

Provisions have been made in 0.22 Rl to 12 C.P.C. to cases
of creation, transfer or devolution of interests in pending cases.
The cardinal rule is that if the right to sue survives, the death of a
party (plaintiff or defendant) does not cause the suit to abate. The
suit or

appeal can be represented by the heirs and legal representatives. If

the right to sue does not survive, the suit ends.
The general rule is that death of a party, marriage or insolvency

m
of a party to the suit, pending in the court, will not abate, if the
right to sue survives.

o
.c
Rule 1 : If the right to sue survives, the Suit shall not abate on
the death of plaintiff or defendant.

a
Rule 2 : Death of one of several plaintiffs or defendants :

m
When there are several plaintiffs or several defendants and
any of them dies, and the right to sue survives, the court shall

a
make an entry on record and the suit continues between the surviving
plaintiffs alone or against surviving defendants alone.

n
Rule 3 : Death of sole plaintiff or one of several plaintiffs : In

y
such a case, if the right to sue survives to the sole surviving

d
plaintiff, or the right to sue does not survive to surviving plaintiff
alone - the court, on an application made in that behalf, shall allow

u
the legal representatives to be made a party, and the suit proceeds.

t
However, if no application is made within the period of
limitation, the suit abates so far as that dead plaintiff is concerned.
S Costs, if any may be recovered by defendant from the estate of the
deceased plaintiff.

Rule 4 : Death of sole defendant or one or more of

several defendants.
i) When the sole defendant dies and right survives to legal
representative he may be brought on record.
ii) When one of several defendants dies, and the right to sue
32

does not survive to defendants alone, legal representatives may be

Page

brought on record.

C P C >>>>>
 iii) If no application is made to bring on record, the suit
abates.

iv) However, the defendant may prove his ignorance or show

sufficient cause for the delay and the court with due regard to the
ignorance of the defendant, may allow the legal representatives to be
brought on record.
Pleaders duty :
It is the duty of the pleader, appearing on behalf of the defend-
ant to inform the court about the death of the party. The court gives
notice to the other party and allows the legal Reps, to be brought on
record.
Marriage of female party: Rule 7 :
This will not abate the suit. Hence, it may be continued and

m
executed against her alone. However, if the husband is liable for debts
of his wife, the decree may be, executed against the husband.
Insolvency Rule 8 : o
.c
Insolvency of plaintiff will not abate the suit. The official
receiver may continue but if he refuses to give security, the court on

a
an application made by the defendant dismiss the suit.

m
Ch. 5.9. Transfer of a suit (Sns. 22-25):

a
Sn. 22: C.P.C.: The general principle is that the plaintiff has a

n
right to choose his own forum. However, if the suit is one which can
be instituted in two or more courts and the plaintiff has instituted in

y
one of them, the defendant, may make an application to the appellate

d
court, to have the suit transferred to another court. He should give
notice to the plaintiff before making the application. The time of

u
making application is at the earliest opportunity and before such

t
settlement of issues.

S
The appellate court shall consider the objections of the parties
and examine the totality of circumstances which indicate to the
balance of convenience in favour of the applicant and decides in which
court the suit should proceed.

The application lies to the Appellate court, when several courts

are under its jurisdiction. But, if those courts are subordinate to
several appellate courts, application should be made to the High Court
to which the appellate courts are subordinate.
33

Sn. 24 : General power of transfer :

The High Court or District Court on motion by any party - but
Page

with notice and after hearing the parties or suo moto, at any stage,
C P C >>>>>
 may transfer any suit, appeal or other proceeding pending before it to
any competent court to try or dispose of.
It.has the powers to withdraw any suit, appeal or proceeding
pending in any court subordinate to it, and may try and dispose of or
may. transfer to the competent court to dispose of the same.
The grounds of transfer should be sufficient and the burden is
on the applicant. If he has a genuine apprehension that he would not
get justice from the court, or if transfer would be "convenient" to the
parties and "would be cheap" - or if the balance of convenience was
in favour of transfer - the court may, if satisfied with the reasons,
transfer the suit.
Sn. 25 powers of Supreme Court:
On application filed with affidavit by a party before the
Supreme Court, the Court after giving notice and hearing parties
may make an order for transfer, if such an order would be necessary
m
for the ends of justice. It may transfer any suit, appeal or proceeding

o
from a High Court or Civil Court of a State, to another High Court or
Civil Court.
Ch. 5.9. "Costs follow the event" - Explained
.c
a
Sn. 35 C.P.C. deals with costs of suits. According to it costs of
the suit and incidentals thereto are determined by the court at its

m
discretion.
It has full power to determine to what extent the costs are to be

a
paid by whom and from what property. It may give suitable and

n
necessary directions in this regard.
y
A court without jurisdiction may also determine costs.

d
Exception :

uIn case the court directs that "any cost does not follow the event"

t
it should state its reasons.

S
Costs : Mean expenses incurred by the party/The object is not
to make any gain or profit to the party. It is not a bonus. They cost in
determined by the court, but is subject to the conditions and limita-
tions of law.
Cost includes incidentals e.g. arbitration referred by court.
Order : Order as to costs may be "costs reserved" "costs to
follow the event", "costs to abide the result" etc. The court takes into
account the length of trial, nature of questions involved, conduct of
parties. The principle is costs follow the event.
34

Scope :
Page

1. The successful party is entitled to cost if not guilty of

C P C >>>>>
 misconduct. For harassment exemplary costs may be levied.
2. It does not depend on who wins or loses. Many facts shape
judicial verdict.
3. Cost is not equal to what a litigant may actually spend.
4. Costs are disallowed for misconduct or for frivolous and
vexations suits or for loss of time of the state.
5. Under Sns. 35 A, compensatory costs for vexations or false
claims may be ordered to be paid to the objector who has put forward
his defence. The maximum is Rs.3000/-

Ch. 5.10. Rateable distribution Sn. 73 C.P.C

Sn. 73 C.P.C. provides for rateable distribution, among decree-

m
holders of the assets of the judgement debtor, held by the court.
Earlier the rule was "first come, first serve, and this had led to

o
.c
malpractices and scrambles. To put an end to this, Sn. 73 was made to
place all decree-holders on equal footing.

a
The objects are (1) to prevent multiple execution proceedings
and (2) to secure equitable distribution of assets. This section

m
provides for a cheap and speedy mode of execution. It is a rule of

a
procedure.
Essentials:

n
The essential conditions are as follows :

y
i) The assets of judgement - debtor (J.D.) must be held by the

d
court i.e., attached by the court.
ii) The decrees obtained by two or more decree holders, should

u
be money-decrees and should be against the same J.D.

t iii) The claimant must have applied for execution to the same

S
court and before the court received the assets. He should not have
obtained satisfaction of his decree.

iv) The cost of realisation, should be deducted before rateable

distribution.
Distribution of proceeds:
When the immovable property of the J.D. is sold by the court,
the sale proceeds shall be applied to meet:
i) cost of making sale
35

ii) amounts due under the decree

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iii) interest and principal on encumbrances if any.

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 iv) rateable distribution of moneys among all the eligible
decree-holders.
Restrictions :
1. The right of the Govt. is not affected by the section.
2. The sale of immovable property by the court is subject to the
mortgage or change, if any, on the property and hence, the purchaser
gets the property subject to the said mortgage or charge.

Of course, such a mortgagee or holder of charge, may waive

and agree for reteable distribution with other decree-holders.
Revision :
The High Court has powers of revision when the lower court
has no jurisdiction or distribution is wrong.

Ch. 5.11. Subsistence allowance: m

o
.c
0.21, R. 39 21 has provided for execution of decrees or orders.
Provisions have been made in Rules 37 to 39, for the arrest and

a
detention of the judgment-debtor (J.D.) in execution proceedings
against him, before the execution court,

m
a
On an application with affidavit filed by the decree-holder, the
court instead of issuing a warrant for arrest, issue a notice to the J.D,
n
to show cause why he should not be committed to the civil prison

y
Notice is not necessary if the J.D. is making plans to abscond etc.

d
The court on inquiry may release the J.D. on security or detain
in custody of officer of the court.

u If warrant of arrest is issued, it is addressed to an officer

t appointed by the judge and specifies the amount to be paid by the J.D.
and is signed by the judge.
S No arrest is to be made if the amount is specified. Otherwise,
the officer may arrest the J.D. and bring him before the court "with
all convenient speed".
Condition to deposit subsistence allowance :
One strict rule is that the decree-holder should make the
deposit of amounts as the judge thinks sufficient for the subsistence
of the J.D. until the JD is brought before the court.
However, if the JD is committed to the civil prison, the court
36

fixes the monthly allowance, as per prescribed scales. The decree-

holder should deposit in advance in full on the first of every month. If
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not paid the JD will be released.

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 Such amounts are deemed costs in the suit.

Ch 5.12 Out of Court Settlement or Alternate Dispute

Resolution

One important change made by the C.P.C. is in introducing

alternate Dispute Resolution [ Sn 89.] This is taken from the
United States where it has been a success thereby reducing the
delay in civil litigations.
Civil Courts are given the power to refer the disputes to:
a) Arbitration;
b) Conciliation;
c) Judicial settlement including settlement through Lok
Adalat; or
m
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d) Mediation.

.c
a)In case the Court prefers arbitration, it invokes the
provisions of the Arbitration and Conciliation Act and advices

a
the parties to settle as per the Act.
b) In case the Court finds the conciliation is suitable,it will

m
refer the two parties to Lok Adalat, in which case Sn 20 (1)
of the Legal Services Authority Act, 1987 and all other relevant
provisions will apply .
a
n
c) In case the Court thinks that Judicial settlement is suitable,

y
it may refer to an institution or person and such institution or
person shall be deemed to be a Lok Adalat and all the

d
provisions of the Legal Services Act 1987 will become

u
applicable.

t
(d) for mediation, the Court makes a compromise between
the parties and follows such procedure as may be prescribed.

S Direction:
C P C Amendment of O. X.1A.
Direction of the Court to opt for any one mode of alternative
dispute resolution —

After recording the admissions and denials, the Court shall

direct the parties to the suit to opt either mode of the
37

settlement outside the Court as specified in sub-section (1) of

section 89. On the option of the parties, the Court shall fix the
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date of appearance before such forum or authority as may be

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 opted by the parties.

1B. Appearance before the conciliatory forum or authority —

Where a suit is referred under rule 1A, the parties shall

appear before such forum or authority for conciliation of the
suit.

1C. Appearance before the Court consequent to the failure of

efforts of conciliation —

Where a suit is referred under rule 1A and the presiding

officer of conciliation forum or authority is satisfied that it
would not be proper in the interest of justice to proceed with
the matter further, then, it shall refer the matter again to the
Court and direct the parties to appear before the Court on the

m
date fixed by it .

o
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 CHAPTER6
TEMPORARY INJUNCTIONS
Ch. 6. Temporary Injunction. (0.39)
Provisions are made in the C.P.C. to enable courts to grant tem-
porary injunctions.
Injunctions are of two kinds.
Temporary and Permanent.
Temporary injunctions are those that continue for a specified
time or until further orders are made by the courts. They may be
issued at any stage of the suit or even before the issue of summons,
but it is essential that the suit should be pending in the court. But, a
perpetual injunction can be granted by the decree of the civil court
made at the hearing and on the merits of the case. These are governed
by the Specific Relief Act. Circumstances under which a temporary
m
o
injunction can be granted are :

.c
i) The property which is the subject matter of dispute must be in
danger of being wasted, damaged or transferred by a party to the suit
or wrongfully be sold in execution of a decree.
a
ii) The deft must be threatening to dispose of his property with

m
a view to defraud his creditors.
iii) The deft threatens to disposses the plaintiff or otherwise

a
cause injury to schedule property.
Illustrations
n
y
i) X lets out vacant land to Y under a contract that Y should not
dig there. Y makes arrangement to dig and carry sand for his purpose.
d
X may sue for an injunction to restrain Y from doing so.

u ii) T is the trustee and A is the beneficiary. T is attempting to

t
S
sell trust property in violation of the trust deed. A may sue for an

injunction.
iii) X pollutes the air with smoke and gas and interferes with the
physical comfort of the neighbours. Y may sue for an injunction.
The court in its discretion may grant a temporary injunction,
for the purpose of preventing waste, or dispossession or injury etc.
This is a preventive relief until disposal of suit or until further orders.
This is an equitable relief.
39

If order is granted till the disposal of the interlocutory applica-

tion for injunction (without finally disposing) it is ad interim. If given
Page

in finally disposing of application it is Temporary injunction. This

C P C >>>>>
 enures to the benefit of the party until disposal of suit, or until further
orders.
The plaintiff must come with clean hands & disclose all facts.
The court will grant, if there is a prima facie case. There must
be a serious question to be tried, or on facts there should be a prob-
ability of getting relief, by plaintiff. The courts interference should be
necessary to protect against injury; otherwise mischief would be more.
Balance of convenience is in favour of plaintiff. Breach of
injunction by defendant, amounts to contempt of court.
Under this order 39, injunction can be granted to prevent
second marriage, if the first wife / husband is living.
Appeal: An appeal
If the plaintiff has brought a suit on insufficient grounds or if
there was no reasonable ground for suing, the court, may on the
application of the deft, award compensation upto Rs.1,000/- to the
m
o
deft. The Plaintiff shall pay this.

.c
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 CHAPTER 7
ATTACHMENT & ARREST
Ch. 7.1 Properties which cannot be attached
A suit in a civil court concerning any right to any property may
be decreed in favour of the plaintiff or may be dismissed. If the suit is
decreed, the person in whose favour the decree is passed is called the
decree-holder and a person against whom it is given is called the judg-
ment-debtor. The decree-holder can resort to execution to realise the
amount, by way of attachment of the property of the judgment debtor,
or by ways of arrest of the judgment debtor or by both.
Attachment is an order of the court prohibiting the judgment-
debtor from dealing with the property attached. It is only after attach-
ment that it will be ordered to be sold by the court by court auction.
Those properties which may be attached are mentioned in Sn.60

m
subject to certain exceptions.
Property liable for attachment:
Lands, Houses, other buildings, goods, moneys, cheque, o
.c
Government Securities, debts, shares etc. as per Sn.60.
The following are not liable for attachment:

a
i) Necessary wearing apparel, cooking vessels, beds and beddings
of the debtor, of his wife and children. Personal ornaments which
m
should be with a woman by religion. (Eg.Mangala Sutra etc.)

a
ii) Tools of artisans, Agricultural implements including cattle

n
and seed grain and agricultural produce as are necessary for
livelihood.

y
iii) Books of account, a mere right to sue for damages, any

d
right of personal services, etc.

u
iv) Stipends and gratuities and political pensions.

t v) Wages of laborers and domestic servants payable in kind or

S
in money.
vi) Salary to the first Rs.400/- and two thirds of the remainder,
vii) A right to future maintenance etc. as per Sn.60 of C.P.C.
viii) Houses and buildings belonging to agriculturist, laborer or
a domestic servant,
ix) L.I.C. Policies, Provident Fund Contributions.
Where the property is immovable the attachment shall be made
by an order prohibiting the judgment-debtor from transferring or
41

charging the property in anyway. All persons are prohibited from

taking any benefit from such transfer or charge..
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C P C >>>>>
 The order shall be proclaimed at some place on the property
or adjacent to the property by beat of drum or other customary mode.
A copy of the order shall be affixed on a conspicuous part of the
property or of the Court house (or in the office of the collector if it is
land).
Ch.7.2 Arrest before Judgment
A plaintiff in a suit may at any stage of the suit pray for the
arrest of the deft before judgment or for the attachment of property
before judgment.
He must make an application after the plaint is admitted. It is
not just to arrest a person or attach his property before a decree. But,
in only certain specified cases such an action is allowed.
. Order 38 Rules 1 to 4 provide for arrest before judgment.
If the court is satisfied that the deft has an intention to delay or

m
obstruct the execution of a decree that may be passed against him:
i) has absconded or is about to abscond or had left or is about
to leave the local limits of its jurisdiction.
o
.c
ii) has disposed of his property or has removed from the local
limits, or
a
m
iii) he is about to leave India, the court may issue a warrant to
arrest the deft, and to bring him before the court. The court may ask

a
him to furnish security for his appearance.

n
The Warrant should specify the amounts claimed by the plain-
tiff. If the amount is paid, the deft, should not be arrested. If not so

y
paid the court may ask him to deposit sufficient money or property or

d
to furnish security for his appearance. If he fails to do so, he may he
committed to the civil prison. He should not be detained for more

u
than 6 months. If the value of the subject matter is below Rs.50/- he

t
should not be arrested for more than 6 weeks.

S
Attachment before judgment
If the deft is about to dispose of the property or to remove it
from the local jurisdiction, with a view to delaying or obstruting the
execution of a decree, then the court may direct the deft, to furnish
security. The court may order for conditional attachment of the said
property..
Compensation: If the arrest before judgments or attachment is
made on insufficient grounds the court may award upto Rs.1,000/-
compensation to the deft. The plaintiff should pay this compensation.
42
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 CHAPTER 8 COMMISSIONS
Ch.8 Commissions (Order 26 Rules 1 to 22.)
The C.P.C. has provided for the appointment of a commission
for the examination of a resident, within its jurisdiction, if that person
is (i) exempted from attending the Court or is proved to be (ii) sick
and infirm.
The persons who are exempted are:
i) Persons resident outside the jurisdiction or who is about to
go outside.
ii) Govt. officers who are in service and who cannot attend with-
out detriment to public interest.
Who may be the Commission:
The Court may appoint an advocate or pleader or any person
at its discretion as a commission.
Commissions may be appointed, i) m
to make local investigations, ii) to
o
.c
examine accounts, iii) to make
partitions.

a
iv) to make scientific investigation or to make sale of movable
property.
Powers m
a
The Commission should discharge its functions as per the

n
directions of the Court.

y
i) It may examine the parties or any witnesses or any other
person whom it deems fit.

d
ii) Call for and examine documents and other relevant things,

u
iii) Enter any place or buildings at reasonable times, iv) Record

t objections to answer questions.

S
t
Attendance, Summoning: The Commission is considered as a
Civil Court, and is empowered to exercise its power as in C.P.C.
(Of course, no penalties can be imposed.)
Returning of Commission: The court fixes the time within which
the Commission should return. It should submit its report to the court
with the evidence collected, depositions, documents etc.
Evidentiary Value: The evidence taken under a Commission
should not be read as evidence without the consent of the other party,
43

subject to certain exceptions.

When the commission submits its returns, it is dissolved, and,
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ceases to have any power.

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 CHAPTER 9 RECEIVER
Ch. 9 Receiver (Order 40 C.P.C.)
There may arise a circumstance where the court may have to
appoint some person to look after the property of a person. Such an
appointed person is a 'RECEIVER'. If it appears to the court to be
just and convenient, it may appoint a receiver of any property and
hand it over to his possession and management. This may be done at
any stage of the suit.
Such a receiver has the power conferred by the Court: i)
He may file suits and defend suits, ii) He may realise,
protect and manage the property, iii) He may collect rents
and apply them.
iv) He may execute the documents and exercise any other pow-
ers as the Court orders. When the party to the suit has a right to
remove any person from possession of property the receiver may
m
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remove him with the permission of the Court.

.c
Eg.: i) In a suit for dissolution of a partnership firm, if the court
thinks fit, it may appoint a receiver to protect the assets of the firm.

a
ii) In a suit for partition of a Mithakashara Coparcenary prop-
erty, the court may appoint a receiver to the co-parcenary property.

m
Remuneration: The court fixes the amounts to be paid to the
receiver as remuneration.
a
Grounds of appointment: Mere convenience is not a ground.

n
There must be a just and convenient ground.

y
Status: The Receiver, duly appointed by the court is an officer
of the court and hence he is subject to the orders of the Court. He

d
is also the representative of the court and also of all the parties

u
t
interested in the suit. He is not an agent of any party. In respect of
land paying revenue, the collector may be appointed as the receive/.

S A Receiver duly appointed should

i) furnish security, ii) submit his
accounts duly, iii) make payments,
iv) be responsible for losses, if any, resulting from his wilful
default or gross negligence.
Failure
If the receiver fails to discharge his duties e.g., fails to submit
44

his accounts or make payments or causes wilful loss, the court may
direct to ' attach the property of the receiver and may sell such
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property and apply, the proceed to make good the loss thereof.
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 CHAPTER 10 JUDGMENT, DECREE AND ORDER
Ch.10.1 Judgment and decree.
Judgment means the statement of the grounds of decree or
order, given by a judge. The judgment contains:
i) A concise statement of the case,
ii) The points for determination, iii)
The decision thereon, and iv) The
reason for-such decision.
Decree: After the judgment is pronounced, the successful party
may apply to the court to draw up the decree. It is then drawn up by
the officer of the court. It should contain:
i) The number of the suit.
ii) The names and description of parties.

m
iii) The relief granted or other determinations such as that the

o
suit is dismissed.

.c
iv) The particulars of the claim.
The decree must correspond with the judgment. The court may

a
correct clerical arithmetical errors or accidental slips.
Decree may be preliminary or final. The preliminary decree is

m
passed in suits such as dissolution of partnership, suits for presump-
tion, administration suits etc.
a
In the case of dissolution of partnership, the preliminary

n
decree, may declare the proportional shares and may direct that

y
accounts are to be taken. The suit is adjourned to a later date for
passing a final decree. After accounts are taken and the amounts of

d
share determined the court passes the final decree.Appeal is allowed
from the preliminary decree.
u Form of Decree
t Name of the Court ...........................

S (Title of the suit etc) No ............

Claim for specific performance of an agreement dated,
20-1-2010 and in the alternative for damages for Rs.5,000/-
The suit coming on this day for final disposal before ......... the
name of the judge ............ in the presence of Sri ............. Advocate
for plaintiff and of Sri ..............advocate for the defendant, it is
declared. that the plaintiff is not entitled to specific performance, of
the said agreement, and it is ordered and decreed that the deft, do pay
Rs.5,000/- to the plaintiff as and for damages for the breach of
45

contract referred to above, and, Rs ............. on account of costs of

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this suit with interest thereon at the rate of 6% per annum from this
C P C >>>>>
 date to the date of realisation.
Given under my hand and seal of the Court on this 15th day of
January 2012

Judge

Seal
(Cost of suit with details)
Ch. 10.2. Order
Means the formal expression of any decision, of a Civil Court,
which is not a decree.
Eg.: i) Order issued under Sn. 91 Public Nuisance
m
ii) Order made under Sn.95 for payment of compensation to

o
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 CHAPTER 11
GENERAL
Ch.ll. 1 Substituted Service
The usual procedure of serving the summons to the defendant,
is by delivering it to the defendant if he is living within the jurisdiction
of the Court, or to his agent if so directed by the Court. The defend-
ant or his agent is required to give an acknowledgment in writing duly
signed with date.
Where this personal or direct service fails, the summons may be
served under 'Substituted Service'. Where the defendant refuses to
sign or where the Ameen (Bailiff) after all due and reasonable
diligence cannot find him, he may serve as follows;
i) He should affix a copy of the Summons on the outer door or
some conspicuous part thereof.
ii) He should return the original to the court endorsing the
m
o
nature of the service.

.c
iii) If the Court is satisfied, declares that it is duly served.
Where the Court is satisfied that there is reason to believe that

a
the defendant is deliberately avoiding the summons, it may order the
summons to be served by affixing a copy in some conspicuous place

m
in the court-house and also in the usual place of his residence, or
business or working.

a
Under this the Court may order service by advertising in the

n
newspapers. The Court shall fix the time for the appearance of the
defendant.

y
Ch. 11.2 Remand (O 41 R 23)

d
Remand means to send back a case to the same lower court for

u
taking action thereon. This is the inherent power of an appellate court.
Where the appellate court finds i) that the trial court has decreed

t
the suit on its finding on a preliminary issue, and that ii) the said

S
decree is reversed in appeal, then it may remand the case to the same
lower court with suitable directions. The Appellate court sends a
copy of its judgment and its order to the trial court. It may thereby
direct to re-admit the suit and to proceed with the suit. The
evidence recorded earlier to the remand order may be accepted as
evidence.
Eg.: A files a case against B. The trial court declares the suit as
barred by limitation. In appeal this decree is reversed. The appellate
• court may direct to the trial court to re-admit the case with the
47

same suit number and proceed with the case.

The inherent power to remand includes cases of error,
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omission or irregularity committed by the lower court.

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 Ch.11.3 Restitution Sn.144 C.P.C.
Restitution means 'restoring to the party what he has lost'.
This doctrine of restitution is applicable in Civil courts in the
following circumstances:
i) The trial court must have given a decree or order and in
pursuance the plaintiff P must have received some benefit from
the defendant D.
ii) The appellate court on appeal from the trial court must
have reversed the trial court order or decree in favour of D.
In such a case,. D may make an application under Sn.144.
The court may make orders to restore D to his status ante. For
this purpose it may order for refund of costs, for payment of
interests, damages, Mesne profits as it may find proper.

m
The court will not entertain any suit but an application for

o
restitution will suffice.
Eg.: A obtains a decree against B for possession of 10

.c
Metric Tonnes of timber, and in execution thereof obtains
possession. This decree is reversed by the appellate court. B may

a
make an application for the restoration of his 10 Metric Tonnes of
timber.

m
The doctrine of restitution is based on the rule that when a

a
person has made a gain or benefit under a decree, and the appellate
court reverses the decree, the law imposes an obligation on such a

n
party to restore to the other who has lost i.e, Status quo ante is to be

y
restored. It is for this reason that the trial court takes security from
the party for restitution of the property, if the decree is reversed on
appeal.
d
u
Ch.11.4 Caveat (Sn.148 A, CPC) or Caveat application

t
Caveat means 'beware'.

S
Any person who claims any right of hearing before the Court,
where an application is or is about to be made, may lodge a 'Caveat'
in that regard, before that court. He is called the Caveator. Such a
Caveator shall serve a notice of the Caveat by Regd. Post
(acknowledgment due) on the person who is or is about to make an
application.
If a Caveat is' duly filed, the court shall serve notice to the
Caveator. The applicant shall furnish to such a Caveator a copy of the
application and also copies of any paper or documents filed by him
before the Court.
48

The period of limitation of the Caveat is 90 days. Hence, if

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within this period no application is filed by the applicant, then the

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 Caveat lapses.
Ch.11.5 Representative Suit
The general rule is that all persons interested in a suit ought to
be made the necessary parties thereto. However, on the basis of
convenience, there is an exception. This is the representative suit.
Under this a few persons should be allowed to file a suit when there is
a community of interest among a large number of persons.
The leading case is Ramashesiah V Ramappa.
According to this, a suit may be filed by one or more persons on
behalf of themselves and others having the same interest in the suit.
The court may grant permission for filing such a suit. It shall give
notice to all concerned persons or by public advertisement as the case
may be. Any person who is interested may apply to the court to
include his name.
No part of the suit should be withdrawn or abandoned or
m
o
compromised without notice to all concerned.

.c
A decree under this rule shall be binding on all persons-
plaintiffs & defendants-and acts as a Res judicata.

Ch 11.6 Next friend 0.32. R.1 a

m
A minor has no legal capacity to sue or be sued. Hence, it is

a
necessary that his interest should be protected and the C.P.C.
provides for a Next friend to act and file or defend him. But, the Next

n
friend is not a party to the suit.

y
The title of the suit will be put as A, a minor by his Next friend
B versus C & D. No suit will be entertained by or against a minor

d
without a next friend. (The court may ask the 'next friend' to furnish
security for expenses of the suit.)
u
Any person of sound mind and who has attained majority may
t
act as a 'next friend'. Such a person should not have any adverse

S
interest to that of the minor.
The next friend may be removed when he does not do his duty
or acts adverse to the interests of the minor.

Ch. 11.7 Legal Representative Sn.2(ll).C.P.C

Means a person who represents in law the estate of the
deceased person It includes i) any person who intermeddles with the
estate of the deceased.
49

ii) When a party sues in a representative character, and dies, the

person on whom the property devolves, is a legal representative.
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C P C >>>>>
 Eg.: Universal legatee, Legatees of portions of estate.
Where a decree is passed against a legal representative, for
payment out of property of the deceased, the decree can be executed
against such property as remains in his hands.
Son or other descendant in Hindu Law is a legal representative
of the deceased.

Ch. 11.8 Interrogatories 0.11 R.1 to 8

Discovery by interrogation : Any person to suit is entitled to
elicit and know the nature of his opponents case and also to know
before-hand what case he has to meet at the hearing. A plaint or a
written statement of the case may not sufficiently disclose the nature
of a case. To make good the deficiencies, either party may administer
interrogatories, in writing to the other, through the court. The party
to whom interrogatories are administered must answer them in
m
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writing and an oath.

.c
Interrogatories(questions) are allowed:
i) to know the nature of the case or the material facts.

a
ii) to support one's case by getting admissions or impeaching
the opposite party's evidence.

m
e.g. A sues B for i) breach of contract & ii) for damages. A
must prove the i) Contract and ii) the breach. B may administer
a
interrogatories to A to obtain admissions to prove his own case. But,

n
B cannot put questions to know evidence A has to prove his case.
Interrogatories not allowed:
y
Matters which are of:

di) Evidentiary value and which are of a

u
ii) Confidential nature between the opponent and his

t Advocate, and

S iii) Matters injurious to public interest-

Procedure: The party must make an application to the Court in

the pro forma for permission to deliver the interrogatories. The court
shall consider and grant the permission. The opposite party shall
answer them by affidavit in 10 days, in the pro forma. However, it
may take objections if the questions are irrelevant, not bona fide or
privileged. If questions are vexatious or improper, the cost sustained
50

by the party shall be paid by the party in default.

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 Ch. 11.9 Foreign judgment. Sns 13 & 14
Foreign judgment is defined as the judgment given by the
Foreign Court i.e. a court situated beyond the territorial limits of
India and which is not established or continued by the President of
India. The rule is that a foreign judgment operates as a Res judicata
between the parties except in the following cases ;
i) The Courts in India will not give effect to a foreign judgment
pronounced by a court without jurisdiction.
The leading case is Gurdayal V. Raja of Faridkot (1895).
A sued B in the Faridkot court to recover Rs.60,000/- mis-
appropriated by B, when B was in A's services. B did not appear and
hence an ex parte decree was passed. At the time of the suit B was not
residing in Faridkot and had no domicile of that place. Thereupon, A

m
sued B in British Indian Courts. Held, Faridkot Court's decree was a

o
foreign judgment. As B had no residence or domicile and was not
even present there the foreign decree was without jurisdiction and

.c
hence, would not be followed in India.
ii) The foreign judgment must have been given on the merits
a
of the case. The Indian courts have a right to examine the merits.

m
iii) If the Indian court finds that the foreign judgment appears
on the face of the record to be an incorrect view of International

a
Law or Indian Law, it may refuse to follow that decision.

n
iv) If the foreign judgment is given in violation of the

y
principles of Natural Justice, the Indian courts may refuse to

d
follow it.

uv) Any foreign judgment obtained by fraud is void, and

t hence, not followed by Courts in India.

S vi) If the foreign judgment has decreed for a claim, which is a

breach of any Indian Law, then the decision is not found. Hence,
a foreign judgment for a gambling debt would not be enforceble in
Indian courts.
Presumptions as to foreign judgments :
According to Sn.14, a certified copy of the foreign judgment is
admissible in evidence in India, There is a presumption that the judg-
ment is duly pronounced. This presumption is, of course, rebuttable.
51
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C P C >>>>>
 Ch. 11.10 Public Nuisance : Sn. 91
It is an unauthorised act or omission which causes any common
danger, injury or annoyance to the public or to the people in general
who live in the vicinity.

Under Section 91, the Advocate General or two or more

persons who have obtained the leave of the court, may institute a suit.
There may not be any special damage caused by such public nuisance.
But the plaintiff may pray for declaration or injunction or for such
other reliefs as may be appropriate under the circumstances of the
case.
Institution of a suit under this section will not limit any other
remedy provided elsewhere i.e., criminal prosecution or suit for tortious

m
liability.

o
Eg.: A keeps his horses and wagons standing for an unreason-
able time on the highway causing public nuisance.

.c
Here the advocate-general, or 2 or more persons with the
permission of the court may file a suit against, A praying the court:

a
i) For abatement of nuisance and injunction, ii)

m
Restraining him from continuing the nuisance.

a
This remedy is available is respect of Public Nuisance or any
wrongful act affecting the public at large.

n
y
Ch. 11.11 Mesne Profits

d
u Sn.2(12) C.P.C. defines mesne profit. It means those profits

t
which a person in wrongful possession of some property actually
received or might have received with ordinary diligence, together with

S interest on such profits. However, it shall not include profits due to

improvements made by the person in wrongful possession.
0.20 R.12 provides for the recovery of the immovable property
and the mesne profits.
The court may pass a decree for the mesne profits which have
accrued. on the property, prior to the institution of the suit. It may
direct an inquiry as to mesne profits from the institution of the suits
until the delivery of possession of property to the decree-holder.
52

The court shall pass a final decree on the basis of such suit.
Page

C P C >>>>>
 This inquiry may be held by an officer of the court who must
report to the court the results of his inquiry. After this, the court hears
the parties and a final decree may be passed in respect of mesne
profits.
It is provided that when the court has passed a decree directing
an inquiry into mesne profits, the grant of mesne profits may be from
the commencement of the suit until a maximum of 3 years from the
date of the decree.

Ch.11.12. Garnishee
Sn 6(4)
He is a person in whose. hands there is a debt (i.e., amount
due by him to the judgment debtor), this may be attached by the
execution order of the court. A Garnishee order is an order served

m
on the Garnishee, attaching a debt in his hands. The decree holder
may attach the debt.

o
.c
Eg.: P is the decree-holder [D H] for Rs.2,00,000/-against

a
the defendant, judgment- debtor.[ J.D.]

m
G owes Rs.200,000/- to D. P may ask court to give a

a
Garnishee order to attach Rs.200,000/- due from G

n
G is the granishee. He may pay the amounts to P. P may give

y
d
a discharge for payment of moneys thereof.

u
Judgment debtor DH, has Rs. 1,50,000/- in SB account in
HDFC Bank. The Court may issue a garnishee order to the .Bank

t to attach the account.

S The Court may issue notice to the garnishee to pay such

amount to the Court.
When the amount is so paid, the Court directs that the
amount may be paid to the decree-holder.
If the garnishee does not pay or appears and shows cause,
the court may issue execution order against him.
If there is dispute, it shall be tried and disposed off.
53
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C P C >>>>>
 Ch.11.13. Precept: Sn.46.
On the application made by the decree-holder the court which
passed the decree may in suitable cases issue a precept to any
court competent to execute such decree, to attach any property
belonging to the judgment-debtor mentioned in the precept.
That court which receives the precept shall attach the prop in
the prescribed manner provided for attachment.
No such attachment can continue for more than two months.
But the court may extend the period. However if the decree has
transferred to this Court and the decree-holder has applied for:
order of sale, the precept stands good.
Ch.11.14 Inter Pleader Suit (S.88, 0.35 R. 1 to 6)
*.

m
When two or more persons Dl, D2, D3 and D4 claim adverse to
one another, the same debt, sum of money or other property in
movable or immovable from another person P who claims no
o
.c
interest therein, and who is ready to pay or deliver it to the rightful
claim P may institute an inter pleader suit against all the claimants

a
for purpose of obtaining a decision as to the person to whom
payment or delivery shall be made and of obtaining indemnity for

m
himself.
If there is already a suit pending no such suit shall be instituted.

a
In the plaint the plaintiff should make the following allegations:

n
i) No interest is to be claimed by the plaintiff in the subject

y
matter of the suit.
ii) Claims area made by the defendants severally.

d
iii) There is no collusion between the plaintiff and any of the

u
defendants.

t iv) Things claimed to be paid or placed in the custody of the

S
court, must be specified. (subject matter).
If any of the defendants has already filed a suit against the
plaintiff, interpleader suit is to be stayed.
The Court may declare that the plaintiff is discharged from
liability to debts or it may retain all parties until the final disposal of
the suit. Agents and tenants may not institute interpleader suits.
The Court may provide for the costs 'of the plaintiff by
imposing charge on the things claimed.
54

Details of procedure are provided for in the Civil Court

Rules.
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C P C >>>>>
 CHAPTER 12

REFERENCE, REVIEW & REVISION

Ch.12.1 Reference Sn 113

Any court below the High Court may state a case and refer
the same for the opinion of the High Court and the latter may make
such order thereon as it thinks fit. This is called reference.
If the lower court is satisfied that the case before it, involves a
question challenging the validity of any Act, Ordinance or
Regulation (or any provision thereof) and that there is no
decision of that High Court or the Supreme Court on that, it may
set-out its reasons and opinion and refer the same for the opinion of
the High Court.
m
o
The reference can be made only when the lower court has a
'doubt' on the question. The object is to get the questions speedily

.c
decided by the High Court. This saves much time of the parties
which would have otherwise moved a writ challenging the Statute

a
under Art.226 and 227 of the Constitution. Provisions have been
made in the Civil Court Rules, relating to how the references are to

m
be made.

Ch 12.2 Review Sn.114 C.P.C.

a
n
To review is to re-consider. Provisions are made in the

y
C.P.C for a review of a decision by the very court which passed the
decree or made the order.

dAny party to a suit, who considers himself aggrieved

u i) by a decree or appealable order of a court-but no appeal is

t
preferred or
ii) by a non appealable decree or order of the Court, or
S iii) by a decision on a reference from a Court of Small
Causes-may apply for a review of the judgment.
As the application is made to the very court, it may
reconsider and make suitable orders thereof.
55
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C P C >>>>>
 . 12.3 Revision Sn.115
This is called Revisional Jurisdiction of the High Court. A large
number of cases come under this section. However certain condi-
tions are to be fulfilled.
I. The lower court should have
i) acted in excess of its jurisdiction. ,
ii) failed to exercise its jurisdiction.
iii) acted illegally or with material irregularity. This refers to
errors of jurisdiction.
II. The lower court's decision must be non-appealable.
In such a case on an application by the applicant for revision,
the High Court calls for the records of the lower court, and makes
such orders as it thinks fit.
m
Scope
o
.c
The Revisional Jurisdiction is discretionary in character.
Hence, even if the above conditions are satisfied the Court may not

a
interfere. It is only when there is a substantial failure of justice to a
party that it interferes.

m
It has powers to vary or reverse any order made by the lower
court. The test is, if the order is allowed as it is, it should cause injus-

a
tice and irreparable loss to the party.

n
There is no Revisional Jurisdiction of a decree or order against
which there is a regular appeal under C.P.C.

y
The High Court will not enter into the merits of the case but it

d
examines whether the requirements of law have been duly fulfilled by
the lower court.

u The irregularity must be of such a nature as to justify an

t interference to prevent any gross miscarriage of justice. The Court

S
will not interfere on mere technical grounds.
Amendment C P C 1999
"Provided that the High Court shall not, under this section,
vary or reverse any order made, or any order deciding an
issue, in the course of a suit or other proceeding, except where
the order, if it had been made in favour of the party applying
for revision, would have finally disposed of the suit or other
proceedings "
(3) A revision shall not operate as a stay of suit or other
proceeding before the Court except where such suit or other
56

proceeding is stayed by the High Court.".

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C P C >>>>>
 CHAPTER 13
APPEAL TO THE SUPREME COURT
Ch. 13 Appeal to the Supreme Court. Sn. 109 C.P.C.
Provisions are made in the C.P.C for appeals from the High
Court to the Supreme Court.
The appeal may be from any judgment decree or final order in a
Civil proceeding.
The High Court must certify . .
i) that the case involves a substantial question of law of
general importance and
ii) that in its opinion the said question needs to be decided by
the Supreme Court.
Scope:
m
i) This provision is subject to Art. 132 of the Constitution.

o
Before 1972, the position was, that the High Court had to certify that

.c
the value of the subject matter of the dispute was not less than
Rs.20,000/-. However this requirement was omitted by the 13th
Amendment to the Constitution. Sn.109 of C.P.C. has incorporated
this amendment.
a
m
ii) Appeals are allowed only in a 'Civil proceeding'. It means a
proceeding in which there is the termination of right to property or a
Civil right.
a
n
Hence, a reference under Income Tax Act or Sales TAX Act is
not a Civil proceedings.

y
iii) Certificate of fitness is to be granted by the High Court. The

d
certificate is the leave(permission) to appeal to the Supreme Court.
Hence, if the certificate is refused, the party cannot go in appeal.

u
However, he may invoke the Special Leave jurisdiction SLP of the

t Supreme Court under Art. 136 of the Constitution.

S
iv) The value of the suit in the court of first instance to be
Rs.20,000/- is irrelevant now in view of the omission of this
requirement.
Procedure
The petition for the certificate should be made to the High Court
which shall hear and conclude within 60 days. If the certificate is
refused, the petition shall be dismissed. If certificate is granted to the
appellant, the High Court, shall require him to provide security and
deposit as it may determine. Thereupon the Court may declare the
57

case as admitted and transmit the case to the Supreme Court.

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C P C >>>>>
 CHAPTER 14
MISCELLANEOUS
Ch.14.1 Abatement of suit (0.22.RR. 1 to 9)
Abatement here means 'ceasing to exist'.
The rule in Civil proceedings is that the death of the plaintiff
or the defendant will not abate the suit if the right to sue survives.
The test is whether the right to sue survives to the Legal
representative or not.
Eg.: A suit for assault, divorce defamation etc. abates on the
death of the plaintiff or the defendant.
In Saifuddin V. Sate of Bombay A, the religious head
excommunicated B. B contested this order in a suit but died pending
the suit. The Supreme Court held that the maxim 'actio personalis
moritur cum person’a applied' ]Personal action died with the
m
o
person] and the suit abated. Similarly, a suit to recover damages
for breach of contract of marriage abates on the death of the

.c
plaintiff.
The suit will not abate if the right to sue survives, e.g. cases

a
coming under Succession, breach of mercantile contracts, right to a
share in the property, tenancy right etc.

m
When there are two or more plaintiffs or defendants, the death

a
of one will not abate the suit if the right to sue survives. The court
records the death but proceeds with the case.

n
y
Exception : A new provision is made under C.P.C. If the case

d
has been fully heard and concluded but reserved for judgment then
the suit will not abate but will be operative even if death takes place

u
in the meanwhile.

t Scope :

S
If the suit abates, no fresh suit be brought on the same cause of
action. It is barred by Res Judicata.

Ch. 14.2 Withdrawal of a Suit. 0.23 R.1

At any time after the institution of a suit, the Plaintiff may as

against all or any of the defendants withdraw his suit or abandon part
of his claim. When the Court is satisfied that a suit must fail by reason
58

of some formal defect, or, that there are other sufficient grounds for
Page

allowing the plaintiff to institute a fresh suit for the subject matter of

C P C >>>>>
 a suit then it may grant permission to withdraw the suit.
The party is at liberty to the fresh suit. If the plaintiff
withdraws without the permission of court, he is liable for cost and
shall be precluded from instituting any fresh suit. The court should
not allow one plaintiff to withdraw, without the consent of the other
plaintiffs.
Ch. 14.3 Consent-decree or Compromise 0.23 R.3.
a) Provisions are made in the C.P.C. for compromise. In that
case, the 'consent decree' is passed by the Court.
The conditions that should be fulfilled for a consent-decree are:
i) The Court must be satisfied that the suit has been adjusted
fully or partly by an lawful agreement or compromise in writing and
signed by the parties to the suit, or

m
ii) The defendant must have satisfied the plaintiff in respect of
the subject matter of the suit fully or partly.
o
The court records the same, and passes a decree accordingly.

.c
b) Scope:

a
No consent decree is passed if the agreement or compromise
made by the parties is void or voidable.

m
If the parties contest the agreement, the Court decides the ques-
tion. The consent decree is not appealable .No suit will be

a
entertained to set aside a decree on the ground that the compromise is

n
not lawful.
In case of a representative suit, there shall be no compromise

y
without the permission of the Court.

d
Ch. 14.4 Compensatory Costs: Sn. 35. A

u
Means cost by way of compensation or damages for false or

t
vexatious claims and defences in a civil suit or other proceeding.

S
Eg.: a) Recovery of dispossessed immovable property,
b) Recovery of movables attached
c) Partition of immovable property etc. are covered
under this section.
iii) Wrongs to persons :
In respect of compensation for wrongs done to the person or to
movable property, the suit may be instituted in the place where the
plaintiff lives.
59

a) A resident of Delhi beats B when A was in Calcutta. B may

sue either in the court at Delhi or Calcutta.
Page

b) A residing in Madras/publishes a libel in Bombay, defaming

C P C >>>>>
 B.B may sue either in the court at Madras or Bombay.
,This section covers torts and contracts, iv)
Every other suit is to be instituted:
a) in the court where the defendant resides or carries on
business.
b) in the court within whose jurisdiction, the cause of action
arose.
A resides at Simla. B at Calcutta & C at Delhi. In Benaras A.B
& C were on a pilgrimage. B & C made a joint Promissory Note in
favour of A for Rs.5,000/-.
A may sue B & C at Benaras where the cause of action arose.
But A may sue B & C at Calcutta or at Delhi, but the non-resident
may object. The court may grant leave to sue.

m
Ch. 14.9 Inherent powers of the Court : Sn. 151. C P Co
.c
The Court has inherent powers to make such orders as may be
necessary for the ends of justice or to prevent any abuse of the
process of the court.
a
The C.P.C. does not limit or affect this inherent power of the
court (Sn.151)
m
a
As the Supreme Court has stated? this inherent power has not
been conferred on the Court by the C.P.C.
n
It is a power inherent in the court itself, by virtue of its

y
duty to do justice between the parties before it.

d The C.P.C. is not exhaustive: and, hence, where the circum-

stances demand, the court may act upon the assumption of its inher-

u
ent power in the interests of justice.

t When there are no express provisions in the C.P.C., the

S
court resorts to its inherent powers.
Illustrations:
i) To order joint trails or suits,
ii) To allow a defence to the indigent person,
iii) To apply the principles of Res Judicata outside Sn.ll of
C.P.C.
iv) To grant maintenance allowance for the ends of justice
v) To correct its own mistakes.
60

vi) To amend the sale certification and correct the

Page

misdescription of the property.

C P C >>>>>
 vii) To punish disobedience to an order of the court, etc.

Exceptions:
1. Inherent powers are not exercised by the Court, to do that
which is prohibited by the C.P.C. It cannot extend the period of
limitation on grounds of equity and justice. It cannot entertain a suit
which is purely on religious grounds.
2. When there are express provisions in the C.P.C., the inherent
power should not be exercised.
The court has no powers in the following:
i) to set aside an exparte decree (after the period of limitation)

ii) to restore an election petition dismissed for default/

m
iii) to substitute the legal representative after signing the
judgment.

o
.c
Inherent powers to amend decrees or orders.
The court has inherent powers to vary or amend its own decree

a
-«£, order so as to carry out its own, meaning, when the decree or
order does not correctly state what the court actually decided or
intended.
m
a
eg. (1) A sues B for Rs.20,000/- and interest. The judgment
was given for Rs.12,000/- in all. The decree is drawn accordingly. A

n
applies to amend the decree to include interest. The court refuses the

y
amendment, as its decree is according to its judgment.
(2) In a case, the judgment did not award costs, but in drawing

d
up the decree, costs had been awarded. The court has powers to

u
amend so as to carry out its judgment.

t General Powers to amend.

S Sn. 153 provides that the court may at any time amend any
defect or error in any proceeding in a suit for the purpose of deter-
mining the real question or issue before the Court.
61
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 CHAPTER 15
APPEALS
Ch. 15.1. Appeal from original decree (First appeal)
Sees. 96 to 99 :
Appeal is a substantive right and not procedural.
Sn. 96 : An appeal lies from every decree passed by any court
exercising its original jurisdiction to the appellate court. This is
subject to restrictions.
1) Appeal lies from an original decree passed ex parte.
2) No appeal lies from a consent-decree
3) No appeal lies from a small causes court if value is below
Rs.3000/- except on point of law .As per C P C amendment 1999,
this amount is Rs.10,000/-
4) If there is failure to appeal against a preliminary decree, the
party is barred from appealing from the final decree passed by the
m
o
court. The reason is, the preliminary decree is conclusive so far as
matters dealt with and decided by the court. These matters form part

.c
of the final decree. In fact, it operates as Res 'judicata to the
first

a
stage.
5) Rules of procedure are made to serve the ends of justice.

m
Hence, mere technicalities should not defeat justice.
On these lines, Sn. 99 provides that if the error, defect or

a
irregularity, or non-joinder or misjoinder of parties, or cause of

n
action, does not affect the merits of the case, or the jurisdiction of the
court, the appellate court should not reverse or substantially vary the

y
decree of the lower court.

d
The merits of the case are affected when the error results in
error of judgment.

u
t Ch. 15.2. Second Appeals:

S The right of appeal is a substantial right and is provided in C.P.C.

as a statutory right in Sns. 100 to 102.
Sn. 100 provides for appeal to the High Court from every
decree passed by the appellate court, if the High Court is satisfied
that the case involves a substantial question of law. This rule is
subject to the other provisions of C.P.C. and other law for the time
being in force.
Appeal lies from an ex parte appellate decree.
Procedure:
62

The memorandum of appeal should precisely state the substan-

Page

tial question of law.

C P C >>>>>
 If satisfied, the court formulates that question of law. The
appeal is heard by the High Court on that question and the
respondent is allowed to argue that there is no question of law.
The court has powers to hear on any other substantial question
of law if it so desires,
Sn. 100 A provides that if heard by a single judge and
decided,
.C P C 1999 provides "100A. No further appeal in certain cases
— ……
(a) where any appeal from an original or appellate decree or
order is heard and decided,
(b) where any writ, direction or order is issued or made on
an application under article 226 or article 227 of the

m
Constitution, by a single Judge of High Court, no further appeal
shall lie from the judgment, decision or order of such Single
Judge
o
.c
.
Scope :
.
a
Whether a particular question is substantial or not, depends

m
on the facts and circumstances of each case.
Amendment:
a
"102. No second appeal in certain cases —

n
No second appeal shall lie from any decree, when the amount
or value of the subject-matter of the original suit does not exceed

y
twenty-five thousand rupees.".

dIf the findings of the trial court are unsound, perverse,

u
findings based on material inconsistencies or inaccuracies - the

t
High Court will interfere. However, the court will not interfere
merely on the ground of gross or erroneous finding of fact or a
S finding based on some documentary evidence.
It will admit or reject. There is no partial admission.

THE END
63
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 Reference Section
Selected Sns and Orders

CIVIL PROCEDURE CODE (AMENDMENT) Act, 1999

2. Amendment of section 26 — In the Code of Civil Procedure, 1908

(5 of 1908) (hereinafter referred to as the principal Act), existing
section 26 shall be re-numbered as sub-section (1), and after sub-
section (1) as so renumbered, the following sub-section shall be
inserted, namely:
"(2) In every plaint, facts shall be proved by affidavit."
3. Amendment of section 27 the following words shall be inserted
at the end, namely:
"on such day not beyond thirty days from date of the
institution of the suit".
4. Amendment of section 32 — In section 32 of the principal Act, in

m
clause (c) for the words "not exceeding five hundred rupees" the

o
words "not exceeding five thousand rupees" shall be substituted.
5. Amendment of section 58 (i) in sub-section (1),—

.c
(a) in clause (a), for the words "one thousand rupees", the
words "five thousand rupees" shall be substituted; (b) for

a
clause (b), the following clause shall be substituted, namely:
"(b) where the decree is for the payment of a sum

m
of money exceeding two thousand rupees, but not
exceeding five thousand rupees, for a period not

a
exceeding six weeks:";

n
(ii) in sub-section (1A), for the words "five hundred
rupees", the words "two thousand rupees" shall be

y substituted.

d
6. Amendment of section 60 in the first proviso to sub-section (1),

u
in clause (i), for the words "four hundred rupees", the words "one
thousand rupees" shall be substituted.

t 7. Insertion of new section 89 In the principal Act, after section 88,

S
the following section shall be inserted, namely:—

"89. Settlement of disputes outside the Court —

(1) Where it appears to the Court that there exist elements of a

settlement which may be acceptable to the parties, the Court shall
formulate the terms of settlement and give them to the parties for
their observations and after receiving the observations of the
parties, the Court may reformulate the terms of a possible
settlement and refer the same for (a) arbitration; (b) conciliation; (c)
judicial settlement including settlement through Lok Adalat; or (d)
64

mediation.
Page

C P C >>>>>
 (2) Where a dispute has been referred—
(a) for arbitration or conciliation, the provisions of the Arbitration
and Conciliation Act, 1996 (26 of 1996) shall apply as if the
proceedings for arbitration or conciliation were referred for
settlement under the provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in
accordance with the provisions of sub-section (1) of section 20 of
the Legal Services Authority Act, 1987 1987) and all other
provisions of that Act shall apply in respect of the dispute so
referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a
suitable institution or person and such institution or person shall be
deemed to be a Lok Adalat and all the provisions of the Legal
Services Authority Act, 1987 (39 of 1987) shall apply as if the
dispute were referred to a Lok Adalat under the provisions of that
Act;

m
(d) for mediation, the Court shall effect a compromise between the
parties and shall follow such procedure as may be prescribed.".

o
.c
8. Amendment of Section 95 in sub-section (1), for the words
"not exceeding one thousand rupees", the words "not exceeding
fifty thousand rupees" shall be substituted.
9. Amendment of Section 96
a
in sub-section (4), for the words
"three thousand rupees", the words "ten thousand rupees" shall be
substituted.
m
10. Substitution of new section for Section 100A For section 100A

a
of the principal Act, the following section shall be substituted,

n
namely:—
"100A. No further appeal in certain cases — Notwithstanding

y
anything contained in any Letters Patent for any High Court or in
any other instrument having the force of law or in any other law for

d
the time being in force,

u
(a) where any appeal from an original or appellate decree or order
is heard and decided,

t (b) where any writ, direction or order is issued or made on an

S
application under article 226 or article 227 of the Constitution, by a
single Judge of High Court, no further appeal shall lie from the
judgment, decision or order of such Single Judge.".
11. Substitution of new section for section 102 the following
section shall be substituted, namely:—
"102. No second appeal in certain cases — No second appeal shall
lie from any decree, when the amount or value of the subject-
matter of the original suit does not exceed twenty-five thousand
rupees.".
12. Amendment of section 115 in sub-section (1)(i) for the proviso,
the following proviso shall be substituted, namely:—
65

"Provided that the High Court shall not, under this section, vary or
Page

reverse any order made, or any order deciding an issue, in the

course of a suit or other proceeding, except where the order, if it
C P C >>>>>
 had been made in favour of the party applying for revision, would
have finally disposed of the suit or other proceedings.";
(ii) after sub-section (2), but before the Explanation, the following
sub-section shall be inserted, namely:— "(3) A revision shall not
operate as a stay of suit or other proceeding before the Court
except where such suit or other proceeding is stayed by the High
Court.".
13. Amendment of section 148 — , after the words "such period",
the words "not exceeding thirty days in total," shall be inserted.

CHAPTER III - Amendment of Orders

14. Amendment of Order IV —

In the First Schedule to the principal Act (hereinafter referred to as

the First Schedule), in Order IV, in rule 1,— (i) in sub-rule (1), for
the words "plaint to the Court", the words "plaint in duplicate to
the Court" shall be substituted;
m
(ii) after sub-rule (2), the following sub-rule shall be inserted,

o
namely: "(3) The plaint shall not be deemed to be duly instituted

.c
unless it complies with the requirements specified in sub-rules (1)
and (2).".
15. Amendment of Order V — (i) in rule 1, for sub-rule (1), the

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following shall be substituted, namely:—
"(1) When a suit has been duly instituted, a summon may be issued

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to the defendant to appear and answer the claim and to file the
written statement of his defence, if any, on such day within thirty

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days from the day of institution of the suit as may be specified

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therein:
Provided that no such summons shall be issued when a

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defendant has appeared at the presentation of the plaint and
admitted the plaintiff's claim:

d Provided further that where the defendant fails to file the

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written statement on the said day, he shall be allowed to file the
same on such other day which shall not be beyond thirty days from

t the date of service of summons on the defendant, as the Court may

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think fit.";
(ii) for rule 2, the following shall be substituted, namely:—
"2. Copy of plaint annexed to summons.— Every summon shall be
accompanied by a copy of the plaint.";
"9. Delivery of summons to the plaintiff or his agent —

(1) The Court shall issue summons and deliver the same to the
plaintiff or his agent, for service, and direct the summons to be
served by registered post acknowledgement due or by speed post
or by such courier service as may be approved by the High Court or
by fax message or by Electronic Mail Service or by such other means
66

as the High Court may prescribe by rules, addressed to the

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defendant to accept the service at the place where the defendant

or his agent actually and voluntarily resides or carries on business or
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 personally works for gain.

(2) The plaintiff or his agent shall send the summons by any means
as directed by the Court under sub-rule (1) within two days from
the delivery of summons to the plaintiff by the Court under that
sub-rule.

(3) When an acknowledgement or any other receipt purporting to

be signed by the defendant or his agent received by the Court or
postal article containing the summons is received back by the Court
with an endorsement purporting to have been made by a postal
employee or by any authorised person to the effect that the
defendant or his agent had refused to take delivery of the postal
article containing the summons or refused to accept the summons
by any other means specified in sub-rule (1), when tendered or
transmitted to him the Court issuing the summons shall declare that
the summons had been duly served on the defendant:

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Provided that summons was properly addressed, pre-paid

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and duly sent by registered post acknowledgement due, the

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declaration referred to in this sub-rule shall be made
notwithstanding the fact that the acknowledgement having been
lost or misled or for any other reasons has not been received by the
Court on the date fixed by it."
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9A. Simultaneous issue of summons for service by the Court
controlled process.—

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(1) The Court may, in addition to, and simultaneously with the
delivery of summons for service to the plaintiff as provided in the

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manner provided in rule 9, may also direct that summons to be
served on the defendant or his agent empowered to accept the

d
service at the place where the defendant or his agent actually and

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voluntarily resides or carries on business or personally works for
gain. (2) The summons shall, unless the Court otherwise direct, be

t delivered or sent to the proper officer in such manner as may be

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prescribed by the High Court to be served by him or one of his
subordinates.

(3) The proper officer may be an officer of the Court other than that
in which the suit is instituted, and where he is such an officer, the
summons may be sent to him in such manner as the Court may
direct.

(4) The proper officer may serve the summons by registered post
acknowledgement due, by speed post, by such courier service as
may be approved by the High Court, by fax message, by Electronic
67

Mail service or by such other means as may be provided by the

rules made by the High Court.";
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(vi) rule 19A shall be omitted;

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 (vii) in rule 21, for the words "or by post", the words "or by post or
by such courier service as may be approved by the High Court, by
fax message or by Electronic Mail service or by any other means as
may be provided by the rules made by the High Court" shall be
substituted;

(viii) in rule 24, for the words "by post or otherwise", the words "or
by post or by such courier service as may be approved by the High
Court, by fax message or by Electronic Mail service or by any other
means as may be provided by the rules made by the High Court"
shall be substituted;
(ix) in rule 25, for the words "by post," the words "or by post or by
such courier service as may be approved by the High Court, by fax
message or by Electronic Mail service or by any other means as may
be provided by the rules made by the High Court" shall be
substituted. :—

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"(4) The person verifying the pleading shall also furnish an affidavit
in support of his pleadings.";

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17. Amendment of Order VII — "9. Procedure on admitting plaint

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—

(1) Where the plaint is admitted, the Court shall give to the plaintiff

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summons in the name of all the defendants to be served upon or
get served in the manner provided under Order V. ) Within two days

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of the receipt of summons under sub-rule (1), the plaintiff shall send
or cause to send he summons to the defendants along- with the

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copy of the plaint in the manner provided under Order V.

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(3) Where the Court orders that the summons be served on the

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defendants in the manner provided in rule 9A of Order V, it will
direct the plaintiff to present as many copies of the plaint on plain

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paper as there are defendants within two days from the date of

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such order alongwith requisite fee for service of summons on the
defendants.".

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"14. Production of document on which plaintiff sues or relies —

(1) Where a plaintiff sues upon a document or relies upon

document in his possession or power in support of his claim, he
shall enter such documents in a list, and shall produce it in Court
when the plaint is presented by him and shall, at the same time
deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power

of the plaintiff, he shall, wherever possible, state in whose
possession or power it is.
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(3) Where any such document or a copy thereof is not filed with
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the plaint under this rule, it shall not be allowed to be

received in evidence on behalf of the plaintiff at the hearing of the
suit. C P C >>>>>
 (4) Nothing in this rule shall apply to document produced for the
cross examination of the plaintiffs witnesses, or, handed over to a
witness merely to refresh his memory.";

18. Amendment of Order VIII — (i) for rule 1, the following rule shall
be substituted, namely:—
"1. Written statement.—The defendant shall at or before the first
hearing or within such time as the Court may permit, which shall
not be beyond thirty days from the date of service of summons on
the defendant, present a written statement of his defence.";
"1A. Duty of defendant to produce documents upon which relief is
claimed or relied upon by him.—
(1) Where the defendant bases his defence upon a document or
relies upon any document in his possession or power, in support of
his defence or claim for set off or counter claim, he shall enter such
document in a list, and shall produce it in Court when the written
statement is presented by him and shall, at the same time, deliver

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the document and a copy thereof, to be filed with the written
statement.

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(2) Where any such document is not in the possession or power of

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the defendant, he shall, wherever possible, state in whose
possession or power it is.

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(3) Where a document or a copy thereof is not filed with the written
statement under this rule, it shall not be allowed to be received in

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evidence on behalf of the defendant at the hearing of the suit.
(4) Nothing in this rule shall apply to documents— (a) produced for

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the cross-examination of the plaintiff's witnesses, or (b) handed

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over to a witness merely to refresh his memory.";

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"2. Dismissal of suit where summons not served by the plaintiff or
his agent or in consequences of failure to pay cost.—Where on the

d
day so fixed it is found that the summons has not been sent within

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stipulated period of two days, to the defendant by the plaintiff or
his agent or in consequence of their failure to pay the Court-fee or

t any charges, if any chargeable for such service, the Court shall make

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an order that the suit be dismissed:
Provided that no such order shall be made if, notwithstanding such
failure, the defendant attends in person or by agent when he is
allowed to appear by agent on the day fixed for him to appear and
answer.";
O. X.1A. Direction of the Court to opt for any one mode of
alternative dispute resolution
After recording the admissions and denials, the Court shall direct
the parties to the suit to opt either mode of the settlement outside
the Court as specified in sub-section (1) of section 89. On the option
of the parties, the Court shall fix the date of appearance before
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such forum or authority as may be opted by the parties.

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1B. Appearance before the conciliatory forum or authority —Where

a suit is referred under rule 1A, the parties shall appear
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 before such forum or authority for conciliation of the suit.
1C. Appearance before the Court consequent to the failure of
efforts of conciliation —Where a suit is referred under rule 1A and
the presiding officer of conciliation forum or authority is satisfied
that it would not be proper in the interest of justice to proceed with
the matter further, then, it shall refer the matter again to the Court
and direct the parties to appear before the Court on the date fixed
by it.";
.
23. Amendment of Order XIII — In the First Schedule, in Order XIII,
for rules 1 and 2, the following rule shall be substituted, namely:—

"1. Original documents to be produced at or before the settlement

of issues —
(1) The parties or their pleader shall produce on or before the
settlement of issues, all the documentary evidence in original where
the copies thereof have been filed along with plaint or written
statement.
(2) The Court shall receive the documents so produced: m
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Provided that they are accompanied by an accurate list

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thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of

a
the other party; or (b) handed over to a witness merely to refresh
his memory.".

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24. Amendment of Order XIV —

a
(i) in rule 4, for the words "may adjourn the framing of the issues to

n
a future day", the words "may adjourn the framing of issues to a
day not later than seven days" shall be substituted.

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26. Amendment of Order XVII.—

d
(i) for sub-rule (1), the following shall be substituted, namely:—

u
"(1) The Court may, if sufficient cause is shown, at any stage of the
suit, grant time to the parties or to any of them, and may from time

t to time adjourn the hearing of the suit for reasons to be recorded in

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writing:
Provided that no such adjournment shall be granted more than
three times to a party during hearing of the suit.";

"4. Recording of evidence by commissioner—

(1) In every case, the evidence of a witness of his examination-in-

chief shall be given by affidavit and copies thereof shall be supplied
to the opposite party by the party who calls him for evidence.
(2) The evidence (cross-examination and re-examination) of the
witness in attendance, whose evidence (examination-in-chief) by
70

affidavit has been furnished to the Court shall be taken orally by a

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commissioner to be appointed by the Court from amongst the panel

of commissioners prepared for this purpose on the same day:
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 Provided that, in the interest of justice and for reasons to be
recorded in writing, the Court may direct that the evidence of any
witness shall be recorded by the Court in the presence and under
the personal direction and superintendence of the judge.

(3) The commissioner shall be paid such sum for recording of

evidence as may be prescribed by the High Court.
(4) The amount payable to the commissioner under sub-rule (3)
shall be paid by the Court or by the parties summoning the witness
as may be prescribed by the High Court.
(5) The District Judge shall prepare a panel of commissioners to
record the evidence under this rule.
(6) The commissioner shall record evidence either in writing or
mechanically in his presence and shall make a memorandum which
shall be signed by him and the witnesses and submit the same to
the Court appointing such commissioner.
(7) Where any question put to a witness is objected by a party or his

m
pleader and the commissioner allows the same to be put, the
commissioner shall take down the question together with his
decision.";
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"19. Power to get statements recorded on commission —
Notwithstanding anything contained in these rules, the Court may,

a
instead of examining witnesses in open Court, direct their
statements to be recorded on commission under rule 4A of Order
XXVI.".
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a
"6A. Preparation of decree.—(1) Every endeavour shall be made to

n
ensure that the decree is drawn up as expeditiously as possible and,
in any case, within fifteen days from the date on which the

y
judgment is pronounced.

d
(2) An appeal may be preferred against the decree without filing a

u
copy of the decree and in such a case the copy made available to
the party by the Court shall for the purposes of rule 1 of Order XLI

t be treated as the decree. But as soon as the decree is drawn, the

S
judgment shall cease to have the effect of a decree for the purposes
of execution or for any other purpose.

6B. Copies of judgments when to be made available.—

Where the judgment is pronounced, copies of the judgment shall be
made available to the parties immediately after the pronouncement
of the judgment for preferring an appeal on payment of such
charges as may be specified in the rule made by the High Court."
29. Amendment of Order XXVI —
"4A. Commission for examination of any person resident within the
local limits of the jurisdiction of the Court —Notwithstanding
71

anything contained in these rules, any Court may, in the interest of

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justice or for the expeditious disposal of the case or for any other
reason, issue commission in any suit for the examination, on
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 interrogatories or otherwise, of any person resident within the local
limits of its jurisdiction, and the evidence so recorded shall be read
in evidence.
30. Amendment of Order XXXIX — In the First Schedule, in Order
XXXIX, rule 1 shall be renumbered as sub-rule (1) of that rule and
after sub-rule (1) as so renumbered, the following sub-rule shall be
inserted, namely:—
"(2) The Court shall, while granting a temporary injunction to
restrain such act or to make such other order for the purposes of
staying and preventing the wasting, damaging, alienation, sale,
removal or disposition of property or dispossession of the plaintiff,
or otherwise causing injury to the plaintiff in relation to any
property under disposition in the suit under sub-rule (1) direct the
plaintiff to give security or otherwise as the Court thinks fit.".

"9. Registry of memorandum of appeal —(1) The Court from whose

m
decree an appeal lies shall entertain the memorandum of appeal
and shall endorse thereon the date of presentation and shall

o
register the appeal in a book of appeal kept for that purpose.

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THE END

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