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Cpc.model answer-5SEM

Llb 3 years (Karnataka State Law University)

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1. Discuss the rules in CPC relating to transfer of suits.

Introduction:-
As a general rule, a plaintiff as a right to choose his own forum where a suit can be filed
in more than one court, normally, this right of the plaintiff cannot be curtailed, controlled or
interfered with. But the said right is controlled by the power vested in superior courts to transfer
a case pending in one inferior court to another or to recall the case to itself for hearing and
disposal.

Section 22 allows the defendant to make an application for transfer of a suit, whereas
section 23 indicates the court to which such an application can be made. Section 24 embodies
general power of transfer of any suit, appeal or other proceedings at any stage either on an
application of any party or by a court of its own motion.

Section 22 and 23 of the code deal with the right of a defendant to apply for the transfer
of a suit. Where the plaintiff has the choice of two or more courts in which he may institute a
suit, a defendant, after notice to the other side, may at the earliest opportunity apply to a court to
have the suit transferred from the court in which it is filed to another court.

Before transfer is ordered under section 22, two conditions must be satisfied, i) the
application must be made at the earliest possible opportunity and in all cases, where issues are
settled, at or before the settlement of issues, and ii) notice must be given to the other side. The
provision as to notice is mandatory such notice may be given by the party making an application
or by the court.
Transfer application lies in following courts.
1) Where several courts having jurisdiction are subordinate to the same appellate court, an
application for transfer can be made to that appellate court,
2) Where such courts are subordinate to the same High court, an application can be made to
that High court, and
3) Where such courts are subordinate too different High courts, an application can be made
to the High court within the local limits of whose jurisdiction, the court in which the suit
is instituted is situate,
4) The Supreme court may transfer any suit, appeal or other proceeding from one High court
to another High court, or from one Civil court in the state to another Civil court in any
other State.

Notice: - when an application for transfer is made under section 22, notice of such application
must be given by the defendant to the other side. The word “ after notice to the other parties”
indicate that notice must be given prior to making of application.

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Suo Motu Transfer:- over and above an application by a party to the suit, appeal or other
proceeding, a High Court or a District Court has power to transfer a suit, appeal or other
proceeding even suo moru.

Application for transfer after hearing: - It is no doubt, true that an application for a transfer
can be made “at any stage”. At the same time, however, as the discretionary power of a suit,
appeal or other proceedings requires to be exercised in the interest of justice, the court may
refuse such prayer if it is made mala fide or with or with a view to obviate an adverse decision
after the hearing is over.

MANEKA SANJAY GANDHI V. RANI JETHMALANI

It is submitted that the following observation of Krishna Iyer, J. in the leading above
case, “assurance of a fair trial is the first imperative of the dispensation of justice and the
criterion for the court to consider when a motion for transfer is made is not the hypersensitivity
or relative convenience of a party or easy availability of legal service or like mini-grievances.
Something more substantial, more compelling, more imperiling, from the point of view of public
justice and its attendant environment, is necessitous if the court is to exercise its power of
transfer. This is the cardinal principle although the circumstances may be myriad and vary from
case to case.

Conclusion: - As discussed above, the power of transfer must be exercised with extreme caution
and circumspection and in the interest of justice.

2. Briefly describe the content of plaint.

Meaning:-
The expression “plaint” has not been defined in the code. However, it can be said to be a
statement of claim, a document, by presentation of which the suit is instituted. Its object is to
state the grounds upon which the assistance of the court is sought by the plaintiff. It is a pleading
of the plaintiff.

Particulars of Plaint:-
i) The name of the court in which the suit is brought,
ii) The name, description and place of evidence of the plaintiff and defendant,
iii) Where the plaintiff or defendant is a minor or a person of unsound mind, a statement
of that effect,
iv) The facts constituting the cause of action and when it arose,
v) The facts showing that the court has jurisdiction,
vi) A statement of the value of the subject-matter of the suit for the purpose of
jurisdiction and court-fee,
vii) The relief claimed by the plaintiff , simply or in the alternative,

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viii) Where the plaintiff files a suit in a representative capacity, the facts showing that the
plaintiff has an actual existing interest in the subject-matter and that he has taken
steps that may be necessary to enable him to file such suit,
ix) Where the suit is for recovery of money, the precise amount claimed,
x) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or relinquished,
xi) Where the suit is for accounts or mense profits or for movable in the possession of the
defendant or for debts which cannot be determined, the approximate amount or value
thereof,
xii) Where the subject-matter of the suit is immovable property a description of the
property sufficient to identify it, e.g. boundaries, survey numbers, etc.,
xiii) The interest and liability of the defendant in the subject-matter of the suit,
xiv) Where the suit is time-barred, the ground upon which the expression from the law of
limitation is claimed.

There must be two parties in every suit, namely, the plaintiff and the defendant. There
may, however, be more than one plaintiff or more than one defendant. But there must be at least
one plaintiff and one defendant in every suit. All particulars, such as name, father’s name, age,
place of residence, etc., which are necessary to identify the parties, must be stated in the plaint.

Every suit presupposes the existence of a action against the defendant because if there is
no cause of action the plaint will have to be rejected. Even though the expression “cause of
action” has not been defined in the code, it may be described as “a bundle of essential facts,
which it is necessary for the plaintiff to prove before he can succeed” or “which gives the
plaintiff right to relief against the defendant”. Thus “cause of action” means every fact, which it
is necessary to establish to support a right or obtain a judgment. To put in differently, cause of
action gives occasion for and forms the foundation of the suit.

Conclusion:- as above mentioned points are important for a plaint if anyone is missing from
those points the plaint may be dismissed by the judge.

3. Explain the different modes of service of summons.

Meaning:-
When the plaintiff files a suit, the defendant has to be informed that the suit has been
filed against him, and that he is required to appear in the court to defend it. The intimation which
is sent to the defendant by the court is technically known as “summons”.Though the said
expression has not been defined in the code, according to the dictionary meaning. “A summons
is a document issued from the office of a court of justice, calling upon the person to whom it is
directed to attend before a judge or officer of the court for a certain purpose”.
Mode of Service of Summons. Rules 9-30

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The service of summons is of primary importance as it is a fundamental rule of the law of

procedure that a party must have a fair and reasonable notice of the legal proceedings initiated
against him so that he can defend himself. The code prescribes five principle mode of serving a
summons to a defendant.

i) Personal or direct service.

ii) Service by court.
iii) Service by plaintiff.
iv) Substituted service.
v) Service by post.

Personal or direct service: - Rule 10 to 16 and 18deal with personal or direct service of
summons upon the defendant. This is an ordinary mode of service of summons. Here the
following principles must be remembered.

a) Wherever it is practicable, the summons must be served to the defendant in person or to

his authorized agent.
b) Where the defendant is absent from his residence at the time of service of summons and
there is no likelihood of him being found at his residence within a reasonable time and
he has no authorised agent, the summons may be served on any adult male or female
member of the defendant’s family residing with him. A servant cannot be said to be a
family member.
c) In a suit relating to any business or work agent a person, not residing within the territorial
jurisdiction of the court issuing the summons, it may be served to the manger or agent
carrying on such business or work.
d) In a suit for immovable property, if the service of summons cannot be made on the
defendant personally and the defendant has no authorised agent, the service may be made
on any agent of the defendant in charge of property.
e) Where there are two or more defendants, service of summons should be made on each
defendant.

Service by Court- Rule 9

Summons to defendant residing within the jurisdiction of the court shall be served
through court officer or approved courier service. Summons can also be served by register post,
courier service, fax, e-mail or by any other permissible means of transmission. Where the
defendant is residing outside the jurisdiction of the court, the summons shall be served through
the officer of the court within whose jurisdiction the defendant resides. The court shall treat
refuse of acceptance as a valid service. Where summons is properly addressed, prepaid and duly
sent by registered post acknowledgment due (RPAD) there will be a presumption of a valid
service of summons even in the absence of an acknowledgment slip.

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Service by plaintiff- Rule-9A

The court may also permit service of summons by the plaintiff in addition to service of
summons by the court.

Substituted service- Rule 17, 19-20

“Substituted service” means the service of summons by a mode which is substituted for
the ordinary mode of service of summons. There are two modes of substituted service. They are:

Where the defendant or his agent refuses to sign the acknowledgment, or where the
serving officer, after due and reasonable diligence, cannot find the defendant who is absent from
his residence at the time of service of summons and there is no authorised agent nor any person
on whom service can be made, the service of summons can be made by affixing a copy on the
outer door or some other part of the house in which the defendant ordinarily resides or carries on
business or personally works for gain.

Where the court is satisfied that there is reason to believe that the defendant avoids
service for any other reason the summons cannot be served in ordinary way, the service may be
effected in the following manner-

By affixing a copy of the summons in some conspicuous place in the courthouse, and also
upon some conspicuous part of the house in which the defendant is known to have last resided,
carried on business for personally worked for gain, or in such manner as the court thinks fit.

Where the court can orders service by an advertisement in a news paper, the newspaper
should be a daily newspaper circulating in the locality in which the defendant is last known to
have actually or voluntarily resided, carried on business or personally worked for gain.

Service by Post:-

When an acknowledgement purporting to be signed by the defendant or his agent is

received by the court, or the defendant or his agent refused to take delivery of summons when
tendered to him, the court issuing the summons shall declare that the summons had been duly
served on the defendant. The same principle applies in a case where the summons was properly
addressed, prepaid and duly sent by registered post, acknowledgment due, and the
acknowledgment is lost or not received by the court within thirty days from the date of issue of
the summons. Where the summons sent by registered post is returned with an endorsement
“refused”, the burden is on the defendant to prove that the endorsement is false.

Conclusion:- These are the five method of serving the summons to the defendants and it will be
done one after one initially the court will send summons through post if it fails to serve the
summons to the defendant then the remaining method will be adopted one after one by the
plaintiff through the court.

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4. Explain consequences of appearance and non appearance of parties in a suit.

Meaning:-

The Provision of the Code of Civil Procedure are based on a general principle that, as far
as possible, no proceeding in a court of law should be conducted to the detriment of any party in
his absence. Order 9 of the Code enacts the law with regard to the appearance of the parties to
the suit and the consequence of their non-appearance. It is also provides a remedy for setting
aside an order of dismissal of the suit as also the setting aside of an ex parte decree passed
against the defendant.

Appearance of parties: Rule 1 & 12

Rule 1 requires the parties to the suit to attend the court in person or by their pleaders on
the day fixed in the summons for the defendant to appear. Rule 12 provides that where a
plaintiff or a defendant, who has been ordered to appear in person, does not appear in person or
show sufficient cause for non-appearance, the court may dismiss the suit, if he is the plaintiff, or
proceed ex parte if he is the defendant.

Where neither party appears: Rule 3

Where neither the plaintiff nor the defendant appears, when the suit is called out for
hearing, the court may dismiss it. The dismissal of the suit under Rule 3, however, does not bar a
fresh suit in respect of the same cause of action. The plaintiff may also apply for set aside such
dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance, it
shall pass an order setting aside the dismissal of the suit and shall fix a day for proceeding with
the suit.

Where only plaintiff appears: Rule 6, 10

Where the plaintiff appears and the defendant does not appear, the plaintiff has to prove
service of summons on the defendant. If the service of summons is proved, the court may
proceed ex parte against the defendant and may pass a decree in favour of the plaintiff, if the
plaintiff proves his case. This provision, however, is confirmed to first hearing and does not per
se apply to subsequent hearing

Where there are two or more plaintiffs and one or more of them appear and the others do
not appear, the court may permit the suit to proceed as if all the plaintiffs had appeared, or make
such order as it think fit.

Where only defendant appears: Rule 7-11

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Where the defendant appears and the plaintiff does not appear, and the defendant does
not admit the plaintiffs claim, wholly or partly, the court shall pass an order dismissing the suit.
But if the defendant admits the plaintiff’s claim as a whole or a part thereof, the court will pass a
decree against the defendant upon such admission and dismiss the suit for the rest of the claim.

Rule 9 precludes the plaintiff thereafter from filling a fresh suit on the same cause of
action. He may, however, apply for an order to set aside the order of dismissal. And if the court
is satisfied that there was sufficient cause for his non-appearance the court may set aside the
order of dismissal and fix a day for proceeding with the suit.

Where summons is not served: Rules 2 & 5

It is the fundamental rule of the law of procedure that a party must have a fair and
reasonable opportunity to represent his case. And for that purpose, he must have a notice of the
legal proceedings initiated against him. The service of summons on the defendant is, therefore, a
condition precedent to a fair trial. If the summons is not served on the defendant or it does not
give him sufficient time to represent his case effectively, no decree can be passed against him.

Rule 2 of Order 9 enacts that the suit may be dismissed where the summons is not served
on the plaintiff’s failure to pay costs for service of summons to defendant or to present copies of
the plaint. No such order, however, can be in spite of such failure by the plaintiff if the defendant
appears in person or by his authorised agent on the day fixed for him to appear. The plaintiff may
file a fresh suit even after the dismissal of the suit under Rule 2 in respect of action or may apply
for an order to set aside such dismissal. And if the court is satisfied that there was sufficient
cause for such failure, the court shall set aside such order of dismissal and shall fix a day for
proceeding with the trial.

5. Who is an indigent person? State the necessary conditions for leave to sue as a pamper.

Meaning:-

A person is an “indigent person” if he is not possessed of efficient means to enable him to

pay the fee prescribed by law for the plaint in such suit, or where no such fee is prescribed, when
he is not entitled to property worth one thousand rupees. In both the cases, the property exempted
from attachment in execution of a decree and the subject-matter of the suit should be excluded.

Nature and scope:-

Order 33 provides for filing of sits by indigent persons. It enables persons who are too
poor to pay court fees and allows them to institute suits without payments of requisite court fees.

Object:-

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Generally, a plaintiff suing in a court of law is bound to pay court fees prescribed under
the court fees act at the time of presentation of plaint. But a person may be too poor to pay the
requisite court-fees. This order exempts such person from paying the court-fee at the first
instance and allows him to prosecute his suit in forma pauperis, provided he satisfies certain
conditions laid down in this order.

Every application for permission to sue an indigent person should contain the following
particulars:

1) The particulars required in regard to plaints in suits,

2) A schedule of any movable or immovable property belonging to the applicant with the
estimated value thereof,
3) Signature and verification as provided in Order 6 Rule 14.

The application should be presented by the applicant to the court in person unless exempted by
the court. Where there are two or more plaintiffs, it can be presented by any one of them. The
suit commences from the moment an application to sue in forma pauperis is presented.

Rejection of application:-

The court will reject an application for permission to sue as an indigent person in the following
cases.

i) Where the application is not framed and presented in the prescribed manner,
ii) Where the applicant is not an indigent person,
iii) Where the applicant has, within two months before the presentation of the
application, disposed of any property fraudulently or in order to get permission to sue
as an indigent person, or where there is no cause of action,
iv) Where the applicant has entered into an agreement with reference to the subject-
matter of the suit under which another person has obtained interest,
v) Where the suit appears to be barred by law,
vi) Where any other person has entered into an agreement with the applicant to finance
costs of the litigation.

Inquiry:-

In the first instance, an inquiry into the applicant should be made by the chief ministerial
officer of the court. The court may adopt the report submitted by such officer or may itself make
an inquiry.

Where the permission is granted:-

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Where an application to sue as a indigent person is granted, it shall be deemed to be a

plaint in the suit and shall proceed in the ordinary manner, except that the plaintiff will not have
to pay court fees or process fees. The court may assign pleader to an indigent person if he is not
represented by a pleader. The central government or the state government may make provisions
for rendering free legal aid and services to indigent persons to prosecute their cases. A defendant
can also plead set-off counter-claim as an indigent person.

Appeals by indigent person:-

A person unable to pay court fees on memorandum of appeal may apply allow him to
appeal as an indigent person. The necessary inquiry as prescribed in Order 33 will be made
before granting or refusing the prayer. But where the appellant was allowed to sue as an indigent
person in the trial, no fresh inquiry will be necessary if he files an affidavit that he continues to
be an indigent person.

6. Under what circumstance a reference can be made to high court?

Nature and Scope:-

Section 113 of the Code empowers a subordinate court to state a case and refer the same
for the opinion of the high court. Such as option can be sought when the court itself feels some
doubt about a question of law. The High Court may make such order thereon as it thinks fit. Such
opinion can be sought by a court when the court trying a suit, appeal or execution proceedings
entertain reasonable doubt about a question of law.

Object:-

The underlying object for the provision for reference is to enable subordinate courts to
obtain in non-appealable cases the opinion of the High Court in the absence of a question of law
and thereby avoid the commission of an error which could not be remedied later on.

Conditions:-

The right of reference, however, is subject to the conditions prescribed by Order 46, Rule
1 and, unless they are fulfilled, the High Court cannot entertain a reference from a subordinate
court. The rule requires the following conditions to be satisfied to enable a subordinate court ton
make a reference:

i) There must be a pending suit or appeal in which the decree is not subject to appeal or
a pending proceeding in execution of such decree,
ii) A question of law or usage having the force of law must arise in the course of such
suit, appeal or proceeding, and
iii) The court trying the suit or appeal or executing the decree must entertain a reasonable
doubt on such question.

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Question of law on which a subordinate court may entertain a doubt may be divided into two
classes.

i) Those which relate to the validity of any Act, Ordinance or Regulate and
ii) Other questions.

In the latter case, the reference is optional, but in the former case it is obligatory if the following
conditions are fulfilled.

i) It is necessary to decide such question in order to dispose of the case,

ii) The subordinate court is of the view that the impugned Act, Ordinance or Regulation
is ultra vires, and
iii) There is no determination either by the Supreme Court or by the High Court to which
such court is subordinate that such Act, Ordinance or Regulations is ultra vires.

Who may Apply:-

Only a court can refer a case either on an appeal of a party or suo motu. ‘Court’ means a
Court of Civil Judicature. A tribunal or persona designata cannot be said to be a ‘Court’ and no
reference can be made by them.

Power and Duty of High Court:-

The jurisdiction of the High Court is consultative. In dealing with and deciding the
reference the High Court is not confined to the questions referred by a subordinate court. If a
new aspect of law arises, the High Court can consider it. The High Court may answer the
question referred to it and send back the case to the referring court for disposal in accordance
with law. It may also refuse to answer the reference or even to quash it. The High Court,
however, cannot make any order on merits nor can it make suggestions.

7. Explain the circumstances in which the delay will be condoned under the limitation act.

Introduction:-

Generally, laws are divided in two categories substantive law and procedural law.
Substantive law deals with rights and liability of subjects, while procedural law lay down
procedure for enforcement of those rights and liabilities.

A bold statement that substantive law determines rights while procedural law deals with
remedies is not wholly valid. The reason is that neither the entire law of remedies belongs to
procedure nor the rights are merely confined to substantive law. Rights are sometimes hidden in
procedure. There is thus no clear cut division between the two.

Object:-

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The object and utility of law of limitation has never been a matter of doubt or dispute. A
law of limitation is a statute of repose, peace and justice. It is a matter of repose because it
extinguishes State demands and quits title. It seeks to obtain peace and security by raising a
presumption that a right not exercised for a long time is non-existent. It is intended to do justice
inasmuch as it takes into consideration ground reality that the right of parties should not be in
stake of constant doubt, dispute or uncertainty.

Starting point of limitation:-

Limitation starts running from the date right to sue accrues in favour of a party. “Right to
Sue”, means right to seek relief, i.e. right to approach a court of law. Thus, there can be no “right
to sue” until there is n accrual of right asserted in the suit, appeal or other proceedings.

In such cases, second column of each article fixes the period of limitation, while the third
column specifies time from which the period of limitation starts running.

Expiry of Period of Limitation when Court is closed:-

Section 4 of the limitation Act,1963 states that where the prescribed period for any suit,
appeal or application expires on a day when the court is closed, the suit, appeal or application
may be filed on the day the court reopens.

Extension of period of limitation:-

Section 5 of the Limitation Act provides for extension of time in certain cases. It states
that any appeal or application may be admitted even after the limitation is over, if the appellant
or applicant satisfies the court that he had “sufficient cause” for not filing such appeal or
application within the period of limitation.

In such case, delay in filing an appeal or application can be condoned by a court and the matter
can be heard and decided on merits.

Condonation of delay:-

The general rule laid down in section 3 of the limitation act, 1963 declares that every suit,
appeal or application filed after the period of limitation shall be dismissed.

So far as suit concerned, the rule is absolute and unqualified. Any suit instituted after the
prescribed period of limitation has to be dismissed in as much as there is no provision for
condonation of delay in filing suit.

In respect of appeals and applications, however, the limitation act, 1963 provides for
extension of time and consideration of delay in filing appeals and applications. Section 5
provides that where the appellant or applicant satisfies the court that he had a “sufficient cause”

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for not preferring appeal or making application, the court may condone delay and hear the case
on merits.

While dealing with an application for condonation of delay, the court will keep in view
two conflicting considerations.

i) As far as possible, the court would try to decide every cause on merits rather than
throwing it away on technical ground of delay without entering into real issues in the
case.
ii) The court must also consider an important aspect that non-filing of appeal or
application has created a valuable right in favour of the opposite party which cannot
be defeated or inferred with lightly.

In Union Carbide Corp. v. Union of India. AIR 1992 SC 317

However, the Supreme Court held even if the act is void or ultra vires, the aggrieved party must
approach the court within the period of limitation. Since no period is prescribed specially for
such acts, the residuary provision Article 113 will apply, and a suit must be filed within three
years from the time. When the right to sue accrues, i.e. from the date such order is passed or
action is taken.

8) Short Notes

a) Set off and counter claim

“Set off means” means a claim set up against another. It is a cross-claim which partly
offsets the original clam. It is an extinction of debts of which two persons are reciprocally
debtors to one another by the credits of which they are reciprocally creditors to one another.
Where there are mutual debts between the plaintiff and the defendant, one debt may be settled
against another.

“Counter claim” means may be defined as “ a claim made by the defendant in a suit
against the plaintiff’. It is a claim independent of, and separable from, the plaintiff’s claim
which can be enforced by a cross-action. It is a cause of action in favour of the defendant
against the plaintiff.

Difference between set off and counter claim

a. Set off is statutory defence to a plaintiff’s action, whereas a counter claim is

substantially a cross-action
b. Set off must be for an ascertained sum or it must arise out of the same transaction; a
counter claim need not arise out of the same transaction.
c. Set off is a ground of defence to the plaintiff’s action. In other words, the former is a
ground of defence, a shield, which if established, would afford an answer to the

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plaintiff’s claim in toto (as a whole) or pro tanto (in proportion); the later is a weapon of
defence, a sword, which enables the defendant to enforce the claim against the plaintiff
effectually as an independent action.
d. In the case of a legal set-off, the amount must be recoverable at the date of the suit,
while in the case of a counter-claim the amount must be recoverable at the date of the
written statement.
e. When the defendant demands in a plaintiff’s suit an amount below or up to the suit
claim, it is a set-off strict sensu, but when it is for a larger amount, the claim for excess
amount is really a counter-claim.

b) Kinds of jurisdiction.

Jurisdiction meaning jurisdiction may be defined to be the power or authority of a court

to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it. In
other words, by jurisdiction is meant the authority which a court has to decide matters that are
litigated before it or to take cognizance of matters presented before in formal way for its
decision.

1. Territorial or local jurisdiction

2. Pecuniary jurisdiction
3. Jurisdiction as to subject matter
4. Original and appellate jurisdiction.

Territorial or local jurisdiction:-

Every court has its own local or territorial limits beyond which it cannot exercise its
jurisdiction. These limits are fixed by the government. The district judge has to exercise
jurisdiction within his district and not outside it. The High Court has jurisdiction over the
territory of a state within which it is situate and not beyond it.

Pecuniary jurisdiction:-
The code provides that a court will have jurisdiction only over those suits the amount
value of the subject matter of which does not exceed the pecuniary limits of its jurisdiction.

Jurisdiction as to subject matter:-

Different courts have been empowered to decide different types of suits. Certain courts
are precluded from entertaining certain suits. Thus, the presidency small causes court has no
jurisdiction to try suits for specific performance of a contract, partition of immovable property,
foreclosure or redemption of a mortgage, etc.

Original and appellate jurisdiction:-

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The jurisdiction of a court may be classified as original and appellate. In the exercise of
original jurisdiction, a court entertains and decides suits and in its appellate jurisdiction, it
entertains and decides appeals. Munsif’s courts, court of civil judge and small cause courts
possess original jurisdiction only; while district courts and high courts have original as well as
appellate jurisdiction.

c) Garnishee Order.
Garnishee means a judgment-debtor’s debtor. He is a person who is liable to pay a debt to
a judgment-debtor or to deliver any movable property to him. A garnishee order is an order
passed by a court ordering a garnishee not to pay money to the judgment-debtor because the
latter is indebted to the garnisher.

Object:-
The primary object of a garnishee order is to make the debt due by the debtor of the
judgment-debtor available to the decree-holder in execution without driving him to suit.

Notice:-
Rule 46-A requires a notice to be issued to a garnishee before a garnishee order is passed
against him. If such notice is not issued and opportunity of hearing is not affordable before
passing an order, the order would be null and void. In the eyes of the law, there is no existence of
such an order and any step taken pursuant to or in enforcement of such an order would also be
void.

Effect:-

The payment made by the garnishee into the court pursuant to such notice shall be treated
as a valid discharge to him as against the judgment-debtor. The Court may direct that such
amount maybe paid to the decree-holder towards the satisfaction of the decree and costs of the
execution.

Failure to comply:-

Where neither the garnishee makes the payment into the court, as ordered, nor appears
and shows any cause in answer to the court may order the garnishee to comply with such notice
as if such order were a decree against him.

Costs:- The costs of garnishee proceedings are at the discretion of the court.

Appeal:- Orders passed in garnishee proceedings are appealable as “decrees”.

9) Solve problems

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a) ketan is a tenant in the house of sameer for last 30 years. Sameer is now in need of the house
for his own occupation. He has filed a petition for eviction against ketan. Ketan contends that he
has become owner by adverse possession. Decide.

Ketan cannot become owner of the property by adverse possession.

When ketan is residing in the house of sameer in the capacity of tenant for 30 years he remains
as tenant as long as he live in that property so he cannot claim ownership by adverse possession.
Since sameer being the owner of the house and he is in need of the same for his own occupation
he will succeed as in the eviction petition filed against ketan.

Under adverse possession a person who is having possession of the property for more than 12
years without any interruption or interferences by any person or persons claiming to be owner of
the property said to have acquired the adverse possession of the property.

b) Mr. Santhosh seeks condonation of delay for not preferring in appeal within the period of
limitation because of engrossing in his marriage. Is it Condonable?

It is condonable

Mr. Santhosh seeks condonation of delay for not preferring in appeal within the period of
limitation because of engrossing in his marriage it is condonable as per the Limitation Act

In respect of appeals and applications, however, the limitation act, 1963 provides for extension
of time and consideration of delay in filing appeals and applications. Section 5 provides that
where the appellant or applicant satisfies the court that he had a “sufficient cause” for not
preferring appeal or making application, the court may condone delay and hear the case on
merits.

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