ALLIED LAWS - CPC

CIVIL PROCEDURE CODE, 1908

Substantive law - determines the rights and liabilities of parties

e.g. Indian Contract Act, TopA etc.

Adjective or Procedural Law - Practice / method for enforcing

the rights and liabilities
e.g. Cr PC, CPC, Indian Evidence Act etc.

The CPC directs each activity in Civil Courts and the gatherings
till the execution of DECREE and ORDER

Civil nature = suit relating to right to property, right to worship,

special contracts, rent, injunction, dissolution of marriage,
dissolution of partnership etc.

not civil nature = matters relating to industrial dispute, income

tax, cooperative societies, public policy, caste questions,
electricity etc.

Applicability = 1.1.1909
158 sections
51 orders including Rules

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Decree sec. 2(2) of CPC, 1908

a) Operative part of judgement
b) Conclusively DETERMINES the rights of the parties
c) Either preliminary or final
d) Formal expression of an adjudication which conclusively
determines the rights of the parties with regard to all or any
of the matter in controversy in the suit
e) A Decree is what the court orders a party to do …………
Order
Formal expression of any decision of a civil court which is not a
decree
Difference between Decree and Order
Decree is given in a suit which determines the substantive legal
rights of the parties concerned
Order is given in the course of proceedings, determines the
procedural legal rights of the parties concerned

Decree can be passed only in a suit

Order may be passed either in a suit or an application

Every decree is appealable unless otherwise barred

Every order is not appealable

A decree may be preliminary or final

An order cannot be “Preliminary Order”

Cause of Action = disputed fact

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ORDER V = ISSUE AND SERVICE OF SUMMONS TO DEFENDANT

Issue of Summons = Rule 1 to 8
Service of Summons = Rule 9 to 30

Civil Rights
order = in Roman Letters
Rule = in Arabic numbers

SUBPOENA OR SUMMONS
Sec 131, IT Act, 1961 = summons to both assesse / witness
CPC, 1908 = Summons for DEFENDANT / WITNESS

Purpose :to appear and answer the claim and to file written statement (the defendants should
do these)
Time :not beyond 30 days from institution of plaint
Time limit for written statement :within 30 days from service of summon (in exceptional cases
it goes upto 90 days) ( in exception cases of COMMERCIAL DISPUTE 120 days)

1. Summons

When a suit has been duly instituted, a summon may be issued to the defendant to appear and
answer the claim on a day to be therein specified
Provided that NO SUCH SUMMON SHALL BE ISSUED WHEN THE DEFENDANT HAS APPEARED AT
THE PRESENTATION OF THE PLAINT AND ADMITTED THE PLAINTIFF’S CLAIM.

Plaint means a statement of grievance made to a court for the purpose of asking redress

Where the summon has been issued, the Court may direct the defendant to FILE THE WRITTEN
STATEMENT OF HIS DEFENCE, if any, on the date of his appearance

A defendant may appear

a) In person
b) By a pleader duly instructed and able to answer all the material questions relating to the suit
c) By a pleader accompanied by some person able to answer all such questions

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PLEADER MEANS any person entitled to appear and plead for another in court - includes an
advocate, vakil, attorney of a High Court

EACH SUMMONS SHALL BE SIGNED BY THE JUDGE OR SUCH OFFICERS AS HE APPOINTS, AND
SHALL BE SEALED WITH THE SEAL OF COURT

ISSUED TO ANSWER THE CLAIM WITHIN 30 DAYS FROM THE

DATE OF SERVICE OF SUMMONS

TO FILE WRITTEN STATEMENT THIS TIME LIMIT CAN BE

EXTENDED UPTO 90 DAYS BY THE COURT

30 & 90

2. Copy or Statement Annexed to Summons - copy of plaint and a concise statement (if
permitted)

3. Court may order DEFENDANT OR PLAINTIFF to appear in person

If necessary - on a specified date. Personal Attendance is not necessary when summons are
issued to produce documents only.

4. No party to be ordered to appear in person unless RESIDENT WITHIN CERTAIN LIMITS

No party shall be ordered to appear in person unless he resides
a) WITHIN THE LOCAL LIMITS OF COURT’S ORDINARY ORIGINAL JURISDICTION
Or
b) Place – less than 50 miles or where there is railway / steamer / public conveyance for 5/6 th
of distance from residence to court, less than 200 miles distance from the court-house

5. Summons to be EITHER SETTLE ISSUE or FOR FINAL DISPOSAL

At the time of issuing the summons, the court will decide whether it shall be for
a) FOR THE SETTLEMENT OF ISSUES ONLY
Or
b) FOR THE FINAL DISPOSAL OF THE SUIT

Note : In every suit heard by a COURT OF SMALL CAUSES, the summons shall be for the
FINAL DISPOSAL OF THE SUIT

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6. Fixing the day of appearance of DEFENDANT

Considering the following
a) Current business of the Court
b) Place of residence of defendant
c) Time necessary for the service of summons
d) As to allow the defendant sufficient time to enable him to appear and answer on such day

7. Summons to order defendant to produce documents relied on by him - in his possession

8. On issue of summons for final disposal, defendant to be directed to produce his WITNESSES

SERVICE OF SUMMONS TO DEFENDANT

9. Delivery or transmission of summons for service

Delivered / sent to the proper officer to be served by him or one
of his subordinates to
a) Defendant resides within the jurisdiction of the court
Or
b) An agent resident within that jurisdiction who is empowered to accept the summons

Also through courier service as approved by the Court.

Summons may be delivered by RPAD, by Speed Post, Fax, E-Mail to DEFENDANT / HIS
AGENT as approved and as per rules made by the HIGH COURT

EXPENSES FOR THESE SHALL BE BORNE BY THE PLAINTIFF

9A. SUMMONS GIVES TO THE PLAINTIFF FOR SERVICE

a) The court may, IN ADDITION TO THE SERVICE OF SUMMONS UNDER RULE 9 (stated above),
on the application of the plaintiff for the issue of a summons for the appearance of the
defendant - permit - effect service of summons
b) Deliver to the defendant personally
c) If not accepted - on the application of the party, RE-ISSUE such summons

Court can deliver SUMMON TO DEFENDANT THROUGH PLAINTIFF also, when plaintiff makes
an application. When Defendant refuse to accept, the court will reissue the summons.

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10. Mode of service - made by DELIVERING OR TENDERING signed by the judge or such officer as he
appoints in this behalf, and sealed with seal of the Court

11. Service on Several Defendants - if more than 1 defendant - made on each defendant

12. Service to be on Defendant in person when practicable, or on his agent

Defendant -in person - otherwise, agent empowered to accept service

13. Service on agent by whom DEFENDANT CARRIES ON BUSINESS

Suit relating to business / work - defendant who does not reside within the local limits of the
jurisdiction of the court - service on MANAGER / AGENT is sufficient
e.g. Master of ship shall be deemed to be the AGENT OF THE OWNER OR CHARTERED

14. Service on agent in charge in suits for IMMOVABLE PROPERTY

No defendant / no agent is available - then, made on any agent of the defendant INCHARGE OF
THE PROEPRTY

15. Where service may be on an adult member of defendant’s family

If the defendant is absent from his residence - there is no likelihood of his being found at the
residence within REASONABL E TIME - No agent empowered to accept the service of the
summons on his behalf - then
IT MAY BE MADE ON ANY ADULT MEMBER OF THE FAMILY, whether male or female who is
RESIDING WITH HIM (not to servant).
Service to minor member of the family is NOT VALID. Similarly, service to a SERVANT not valid.

16. Person served to sign acknowledgement

When the serving officer delivers / tenders a copy of the summons to the defendant personally -
or to his agent - the officer shall require the signature of the person to whom the copy is
delivered or tendered to an acknowledgement of service endorsed on the original summons

17. Procedure when defendant refuse to accept service or cannot be found

(service by AFFIXTURE)
If refuses to sign
Or
If not present in the residence (unlikely to be found within a reasonable time) (no agent is
empowered)
Then, serving officer shall AFFIX A COPY OF THE SUMMONS TO THE OUTER DOOR OR SOME
OTHER CONSPICUOUS PLACE (2 witnesses) - return the original to court

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18. When service by Affixture is done,

Endorsement of time and manner of service - time, when and the manner in which summon
was served - name and address of the witnesses
Court may examine him also

19. Simultaneous issues of summons for service by post in addition to personal service
May be served by RPAD
If it is returned (refused to take)
The court issuing the summons shall DECLARE THAT THE SUMMONS HAD BEEN DULY SERVED
ON THE DEFEDANT . (deemed service)

20. Substituted Services

Court has reason to believe that - defendant is keeping out of the way for purpose of avoiding
service or for any other reason, summons cannot be served in the ORDINARY WAY - shall order
the summons to be SERVED BY AFFIXING A COPY THEREOF IN SOME CONSPICUOUS PLACE IN
THE COURT-HOUSE and also upon some conspicuous part of the house in the DEFENDANT is
known to have LAST
RESIDED OR CARRIED ON BUSINESS OR
PERSONALLY WORKED FOR GAIN - or in such other manner as the Court
thinks fit.
2 witnesses
COURT CAN ALSO ORDER PAPER PUBLICATION

21. Service of Summons where Defendant resides within jurisdiction of another Court (WHEN
DEFENDANT RESIDES OUTSIDE THE JURISDICTION OF COURT ISSUING SUMMONS)
Service of summons may be made by
a) Court Officers
b) Fax
c) Courier service
d) THROUGH ANOTHER COURT WHERE THE DEFENDANT RESIDES (currently). That court will
serve the summon and get the acknowledgement and send it to the original court which
issued summons

Either officers carry it personally or by post

To any court (other than HIGH COURT)
Place where defendant resides

24. Service on Defendant in Prison = delivered or sent by post to OFFICER IN CHARGE OF THE
PRISON
Summons to prisoner for giving evidence - excluded by State Govt Amendment Act

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25. Service where defendant resides out of India and has no agent
Defendant resides out of INDIA - no agent in INDIA to accept service - summons shall be
addressed to the defendant at the place where he is residing and sent to him BY POST, if there is
postal communication between such place and the place where the COURT IS SITUATED.
Note : IF DEFENDANT RESIDES IN BANGLADESH / PAKISTAN, the summons may be sent for
service, to any Court in that Country (other than HIGH COURT) having jurisdiction in the place
where the defendant resides

26. Service in Foreign Territory through Political Agent or Court

Political agent has been appointed
Court has been established
IN ANY FOREIGN TERRITORY
(POWER TO SERVE SUMMONS)
To defendant actually / voluntarily RESIDES / CARRIES ON BUSINESS / PERSONALLY WORKS FOR
GAIN

26A. Summons may be served through emabssies, high commissions, consulate generals, or
through Ministry of External Affairs

27. Service on Civil Public officer or on servant of Railway Company or Local Authority
(other than Indian Military / Naval / Airforce) - HEAD OF OFFICE
together with copy to defendant

28. Service on Soldiers, Sailors or Airmen

Commanding Officer

29. Duty of person to whom summons is delivered or sent for service

He shall be BOUND TO SERVE IT
TO RETURN UNDER HIS SIGNATURE
That is deemed to be EVIDENCE OF SERVICE OF SUMMONS

30. Substitution of letter of Summons

a) The court may, SUBSTITUTE FOR A SUMMONS, A LETTER SIGNED BY THE JUDGE OR SUCH
OFFICERS AS HE MAY APPOINT IN THIS BEHALF - where the defendant is , OF A RANT
ENTITLING HIM TO SUCH MARK OF CONSIDERATION
b) A letter substituted shall be treated in all aspects as a
SUMMONS

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FAILURE TO APPEAR AND CONSEQUENCES

a) Court may attaché the property or any part thereof
b) Sell his attached property and impose a fine upto Rs.500
c) May issue warrant of arrest
d) Court cannot send the court officer to bring the person by reasonable force

ORDER XVI = SUMMONING AND ATTENDANCE OF WITNESSES

RULE = 1 to 21

Purpose = to give evidence or produce documents

Plaintiff and Defendants SUBMIT A LIST
Within 15 days from the DATE WHEN ISSUE WAS SETTLED
Strangers to suit can be called as witness - if court thinks it
necessary
1. List of Witnesses and Summons to Witnesses (summons to attend to give evidence or
produce doments)

Court shall appoint a date of presentation of list of witnesses by parties (both plaintiff and
defendant) which shall not be later than 15 days after the date on which the issues are
settled.

a) NOT LATER THAN 15 DAYS after the date on which the issues are settled, THE PARTIES
SHALL PRESENT IN A COURT A LIST OF WITNESSESS i.e. parties shall present list of
witnesses atleast 15 days after the date of settlement of issue.
Parties to the suit may produce witnesses WITHOUT SUMMONS also.

b) Party (PLAINTIFF / DEFENDANT) desirous of obtaining any summons for the attendance of
any person - file application - purpose to be mentioned
c) Court - may permit - any party to call any witness even to persons other than appearing
in the list - provided the party shows sufficient cause for the omission of such persons as
witnesses

2. Expenses of witnesses to be PAID INTO THE COURT on applying for summons.

When expert is summoned, reasonable remuneration will be fixed by court

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3. Tender of expenses to witness

4. Produce where insufficient sum paid in. Expenses of witnesses detained more than 1 day

5. Time, Place and Purpose of attendance to be specified in summons

Time, place, attendance is required for the above purpose, documents. Attendance is required
to give evidence
Can also be to produce documents, if specified

6. Summons to produce document

He causes such document to be produced - instead of personal attendance - deemed to be
complied with summon

7. Persons may be summoned for giving evidence or to produce document

8. summons to witnesses may be served through PLAINTIFF / DEFENDANT. When refused, the
court will reissue the summons

9. Time for Serving Summons

Service of summons - sufficient time - reasonable time for preparation and for travel
Summons to witness shall be served in manner as of defendant

Summons cannot be served on servant, neighbor or any other person not related to the
defendant

10. Procedure whose witness fails to comply with summons

a) Court feels that such evidence / production is material - such person - without lawful
excuse - failed to attend / produce documents - intentionally avoided service -
COURT MAY ISSUE A PROCLAMATION (DECLARATION) requiring him to attend to give
evidence at a time and place to be named therein
A copy of such PROCLAMATION shall be affixed on the outer door or other conspicuous
part of the house in which he ordinarily resides

b) At the time of issuing such PROCLAMATION, or at any time afterwards

COURT may in its DISCRETION
Issue a warrant (either with or without bail) for ARREST OF SUCH PERSON AND
May make an order for the ATTACHMENT OF HIS PROPERTY to such amount as it thinks fit
(NOT EXCEEDING THE AMOUNT OF THE COSTS OF ATTACHMENT AND OF ANY FINE)

Arrest warrant and order for attaching the property may also be issued

Small Causes Court cannot attach the property

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11. If WITNESS APPEARS, attachment may be withdrawn

Any time after attachment of his property - such person appears and satisfies the court -
lawful excuse - no notice of proclamation in time to attend - then, court shall release the
property from attachment

12. Procedure, if witness fails to appear or satisfy court

a) Not appear - appears but fails to satisfy court - PENALTY MAXIMUM Rs.500 - court may
order his property - all the cost of such attachment plus Fine
(COST OF ATTACHMENT + FINE)
b) Notice to be issued before imposing FINE

Impose fine uptoRs.500 ; order attachment and sale of property ; Issue Show Cause
Notice before imposing fine

13. Mode of Attachment

The provisions of ATTACHMENT AND SALE OF PROPERTY IN THE EXECUTION OF A DECREE shall
deemed to be applied to
Any attachment and sale under this Order

DECREE = COURT DECISION

14. COURT MAY OF ITS OWN ACCORD SUMMON AS WITNESSES STRANGERS TO SUIT (as
witness)
Court
At any time thinks it
Necessary to examine any person (including a party to the suit) (and not called as a witness by
a party to the suit)
THE COURT MAY
ON ITS OWN MOTION
Cause such person
To be summoned as a witness to give evidence / produce documents in HIS POSESSION on a
day to be appointed and may examine him as a WITNESS

15. Duty of persons summoned give evidence or produce document

a) Shall attend at the time and place named therein
b) Produce document - in person / cause it to be produced

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16. When they may Depart

a) Unless the court directs - each and every hearing - unless the suit has been disposed of
b) Sometimes, court may require any person furnish security to attend at the next /
subsequent hearings - until the suit disposed of - if any default after getting security,
ORDER HIM TO BE DETAINED IN THE CIVIL PRISON

17. Application of Rules 10 to 13

If a person departs without lawful excuse - the directions of court - deemed to be non-
compliance - attachment etc. (stated above) all the procedures will follow

18. Procedure where witness APPREHEND cannot give evidence or produce document
If a person arrested under a warrant is brought before the court in custody - if he produces
evidence / document - may release him - if not so, order him to be detained in the civil
prison

19. No witness to be ordered to attend in person unless resident within certain limits
a) Within the local limits of the Court’s ordinary original jurisdiction
b) 100 to 500 kms from the court house (500 kms where railway / steamer facility available)
Provided that when transport by air is available and the witness is paid the fare by air, he
may be ordered to attend in person

20. Consequence of refusal of party to give evidence when called on by Court

WHEN ANY PARTY TO A SUIT PRESENT IN COURT REFUSES
Without lawful excuse
To give evidence / produce document
COURT MAY PRONOUNCE JUDGEMENT AGAINST HIM OR MAKE
SUCH ORDER IN RELATION TO THE SUIT AS IT THINKS FIT

21. Rules as to Witnesses to apply to parties summoned

Where any party to a suit is required to give evidence / produce a document, the provisions
as to WITNESSES shall apply to him so far as they are applicable

Question and Answer

1. As per order XVI of CPC, the list of witnesses must be filed, by the parties
AFTER THE FRAMING OF ISSUED
2. If an application is received by the court to examine a witness not within India, the court
may issue
COMMISSION AND LETTER OF REQUEST

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3. Order 16A
ATTENDANCE OF WITNESS CONFINED OR DETAINED IN PRISON
4. Court may make an order - requiring OFFICER IN CHARGE OF THE PRISON
DISTANCE NOT MORE THAN 25 KMS
5. Commission to examine witness provided in order / rule
ORDER 26 RULE 1
6. Court may issue commission for which of the following
To examine any person
To make a local investigation
To make a partition
For dismissal of appeal for default
7. Order 26 Rule 13
COMMISSION TO MAKE PARTITIONS
8. Commission to make local investigation
ORDER XXVI Rule 9

ORDER XXI - ATTACHMENT OF ASSETS / PROPERTIES

EXECUTION OF DECREES AND ORDERS

In Income Tax, Second schedule gives powers of attachment (TRO)

ORDER = FORMAL EXPRESSION OF ANY DECISION OF A CIVIL COURT
DECREE = ALSO FORMAL EXPRESSION WHICH ADJUDICATES AND WHICH CONCLUSIVELY
DETERMINES THE RIGHTS OF THE PARTIES WITH REGARD TO CONTROVERSIES IN THE SUIT.

DECREE MAY BE PRELIMINARY OR FINAL

THE DECREE WHICH IS ISSUED PENDING FURTHER PROCEEDINGS, IT IS PRELIMINARY DECREE.

JUDGEMENT DEBTOR = is a person against whom decree is passed. Against the person, an
order capable of execution is passed

DECREE HOLDER = any person in whose favour the decree is passed or an order capable of
execution has been made

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Execution petition to be filed before the court which passed the decree

The court which executes the decree cannot modify the decree. It has to execute, discharge
and satisfy the decree. The pecuniary, territorial or subject matter cannot be questioned.

In case of joint decree holders, either 1 or all the decree holders file execution petitions

Who has to execute the decree

The court which passes the decree
Or
By another court to which a decree has been sent for execution

In execution of decree, the person can be ARRESTED and DETAINED IN CIVIL PRISON and CAN
BE RELEASED ON THE GROUNDS OF SICKNESS etc.

Woman and Minor cannot be ARRESTED

Mesne Profit = A person who is in wrongful possession of property actually receives

or might have received profits like rent etc. together with interest with ordinary diligence.
Such profits are called MESNE PROFITS

If such person made improvements and derives profits, such profits are NOT CALLED MESNE
PROFITS.

Property is in wrongful possession of a person - he received or might have received PROFIT

WITH INTEREST - exclude the profit made due to improvement - it is like a compensation
against lawful right

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Order XXI and SUBSISTENCE

Sec 60 to 63 r.w.order XXI
SECTION 60 = PROPERTY LIABLE TO ATTACHMENT AND SALE IN
EXECUTION OF DECREE
SUBSITENCE MEANS the action or fact of maintaining or
supporting oneself, especially at a minimal level

1. The following property is liable to attachment and sale in execution of a decree

a) Lands
b) Houses
c) Other buildings
d) Goods
e) Money
f) Bank notes
g) Cheques
h) Bills of exchange
i) Hundis
j) Shares – equity, preference, bonus
k) Promissory notes
l) Government securities
m) Bonds or other securities for money / debts
n) Shares in a corporation
All other saleable property, movable or immovable BELONGING TO THE JUDGEMENT
DEBTOR OR ANY PERSON ON HIS BEHALF

2. The following shall not be liable to such attachment or sale

a) Necessary wearing apparel
b) Cooking vessels
c) Beds and bedding of the judgement-debtor / his wife / children
d) Personal ornaments (religious usage, mangal sutra)
e) Tools of artisans where the judgement-debtor is an agriculturist, his implements of
husbandry and such cattle and seed-gain as may, in the opinion of the court, be
necessary to enable him to earn his livelihood as such
f) Houses and other buildings and the land immediately appurtenant thereto belonging to
an agriculturists and occupied by him
g) Books of accounts
h) A mere right to sue for damages
i) Any right of personal service

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j) Stipends and gratuities allowed to pensioners of the government, or payable out of any
service family pension fund
k) The wages of labourers and domestic servants, whether payable in money or kind
l) Salary to the extent of first 100 RUPEES and 1/2 of the remainder

(amendment 1/3 of the salary is attached irrespective of the amount)

In execution of decree for NON-MAINTENANCE CASES, salary to the extent of Rs.1000

and 2/3 of the remainder ARE NOT LIABLE FOR ATTACHMENT.

In the execution of MAINTENANCE, salary to the extent of 1/3 cannot be ATTACHED

alongwith land and building.

Salary attachment can be continued for 24 months

m) Pay and allowances of persons to whom the Indian Army Act 1911 or the Burma Army
Act 1950 applies
n) All compulsory deposits and sums to which the PF Act applies
o) An expectancy of succession of survivorship or contingent or possible right or interest
(CHANCE)
p) A right to future maintenance (SEC 6 of TRANSFER OF PROPERTY ACT0
q) Any allowance declared by any Indian law to be exempt from liability to attachment or
sale in execution of decree
r) Where the judgement-debtor is a person liable for the payment of land revenue, any
movable property which is exempt from sale for the recovery of an ARREAR of such
revenue
s) Money payable on insurance policy

SEC 61 = PARTIAL EXEMPTION OF AGRICULTURAL PRODUCE

ATTACHMENT BEFORE JUDGEMENT
Agricultural produce and production of agricultural produce
cannot be attached before judgement

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State govt may exempt any class of agricultural produce

from liability of attachment or sale in execution of decree
until the next harvest

The state government may, declare that such portion of agricultural produce, as may
appear to the state govt. ……………..UNTIL NEXT HARVEST …………….for cultivation
………………..TO SUPPORT JUDGEMENT-DEBTOR and his family -
EXEMPT FROM LIABILITY TO ATTACHMENT OR SALE IN EXECUTION OF DECREE

NOTE :
a) If judgement Debtor does not have adequate
assets for attachment
He has to file an application to the court
stating the inadequacy with a period of 30
days

b) Consequences of NON-COMPLIANCE to
decree
Maximum Detention for 6 weeks in CIVIL
PRISON where the Decree is more than
Rs.2000 but below Rs.5000

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Attachment of agricultural implements and

livestock
The agricultural implements and livestock
conveniently removed will be left in the
custody of respectable person

SEC 62 = SEIZURE OF PROPERTY IN DWELLING HOUSE

a) Person authorizing seizure of movable property shall not, enter any dwelling house
after sunset and before sunrise
b) Outer door of a dwelling house shall not be broken open unless judgement debtor is
present in house and he refuses or in any way prevents access thereto, but
When the person executing such process has duly gained access to any dwelling
house break open the door of any room in which he has reason to believe any such
property to be kept
c) Room in a dwelling house is in the actual occupancy of the woman - customs of the
country - does not appear in public - give notice to such woman - reasonable
time

CLANDESTINE REMOVAL IS NOT PERMITTED (SECRET)

Entry in dwelling house only sunrise to sunset

Break open the door only if Judgment Debtor is present and he prevent or refuses to
access
May break open the door of any room after entry
Notice to women if there is women in the room

When entry is prevented, BREAK OPEN POWER is given

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SEC 63 = PROPETY ATTACHED IN EXECUTION OF DECREES

OF SEVERAL COURTS
Any property
Not in the custody of any court
If attached
Decrees of more than 1 court
COURT OF HIGHEST GRADE
IF THERE IS NO DIFFERENCE, the court under whose decree the property was first
attached

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ORDER XIX - AFFIDAVITS

Rule 1 deals with power to order any point to be proved by affidavit.

Court may permit a party to file an affidavit to adduce evidenceat any

time.

It is at the time of filing of plaint, written statement or at the time of

framing of issues.

Who administer the oath to the DEPONENT ?

a) Any court or magistrate
b) Any notary
c) Any officer or other person whom a High Court may appoint
d) Any officer appointed by any other court empowered by State Govt

Any particular fact or facts may be proved by affidavit provided that where either
partybonafide desires the production of a witness for cross examination, and that
such witness can be produced

Affidavits shall be confined to

Facts as the deponent is able of his own knowledge to prove
EXCEPTION : on interlocutory applications - statements of his belief

AFFIDAVIT IS A SELF-SERVING STATEMENT ; it has no evidential value

An affidavit is a written statement of the deponent on oath duly affirmed

Before any court or magistrate ……………..

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Rule 2 = Power to order attendance of deponent for cross examination

(deponent = SAAKSHI)

a) Application evidence may be given by AFFIDAVIT

b) Court may, at the instance of either party, order the ATTENDANCE OF THE
DEPONENT (SAAKSHI) FOR CROSS EXAMINATION
c) If deponent is exempted from personal appearance in the court, no need

Rule 3 =Matters to which affidavits shall be confined

a) Affidavits shall be confined to such facts as the deponent is able of his OWN
KNOWLEDGE (FACTS) to prove, except on INTERLOCUTORY applications, on which
statements of his BELIEF may be admitted ; grounds to be stated
b) Costs of every affidavit shall be paid by the party filing the same

c) Affidavits in answer to interrogations shall be filed

within 10 days of order
Affidavits shall be confined to facts as the deponent is able to prove out of his own
knowledge, except on interlocutory petitions on which statements of his belief may
be admitted.

The cost of affidavit containing hearsay or of argumentative matter be paid by the

deponent if court so directs.

It must not relate to inferences

Affidavit is a declaration made by the person

It must be in writing and must be in first person

It must have been sworn or affirmed before magistrate or any other authorized
officer

It must be signed by deponent

Affidavit filed in reply to interrogatories to be filed within 10 days of the order.

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The aggrieved party can neither cross examine nor adduce any evidence to
contradict it, as it is a CONCLUSIVE PROOF

Affidavit has no evidentiary value and not recognized by the Indian Evidence Act

Rule relating to affidavits are contained in ______________________

(Answer : ORDER XIX )

Order XIX CPC deals with AFFIDAVITS

Who has to sign the affidavit - Ans. : DEPONENT

NO INFERENCES
NO PRESUMPTION
NO HEAR SAY
NO ARGUMENTATIVE NATURE
WRITING IN FIRST PERSON

Interrogation order - no question of cross examination

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ORDER XXVI = COMMISSIONS

RULE 1 TO 18
Rule 1 to 8 = Commission to examine witnesses
Rule 9 to 10 = commission for local investigations
Rule 10A to 10C = scientific investigation, performance of
ministerial act, sale of movable property
Rule 11 to 12 = examine accounts
Rule 13 to 14 = make partitions
Rule 15 to 18 = General Provisions

Sec. 131(1)(d) = INCOME TAX ACT = AO / INVESTIGATION OFFICER TO ISSUE

COMMISSION TO THE OTHER OFFICERS OUTSIDE THE JURISDICTION.

Purpose of issuing the Commission

a) Examination of any person
i) Resides in jurisdiction of court or beyond
ii) Exempted to attend or not able to attend due to sickness or infirmity
iii) Person in service of the government

b) Investigation in local limits

i) Market value of any property
ii) Amount of any mesne profits or damages or annual net profits
COURT IS BOUND IF STATE GOVERNMENT MADE RULES FOR PERSON TO
WHOM COMMISSION TO BE ISSUED

c) Examination or adjustment of accounts

d) Crop valuation
e) Commission by High Court at the instance of foreign Tribunals
f) Make a partition
g) Have scientific, technical, expert investigation
h) Deal the sale of property which is in possession of the court to proceed the suit
pending
i) Perform any ministerial act

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ALLIED LAWS - CPC

To whom commission is issued

a) Any person (in the jurisdiction) whom the court thinks fit to execute it
b) Any court (NOT HIGH COURT) of other state, where person to be examined,
resides
c) Letter of request or summon – to examine a witness OUTSIDE INDIA

Court may issue commission in 5 cases

a) Suffers from sickness or exempted
b) Resides beyond the jurisdiction of the court
c) Is about to leave India
d) Is a govt. servant & appearance affects his official duty
e) Resides outside India

Powers of the Commissioner

a) Examine parties and witnesses
b) Call for documents, records
c) Enter any premises connected to the dispute
d) Proceed exparte
e) Common and examine witnesses - in this regard, deemed to be civil court

Commissions to examine witnesses

1. Cases in which court may issue commission to examine witness
Any court may issue a commission for the examination on interrogatories
(written question) – commission for interrogatories cannot be issued

Any person resident within the local limits of jurisdictional court who is
EXEMPTED from attending the court e.g. SICKNESS, INFIRMITY

Court on its own motion and

At the instance of parties to the suit
To examine any person / witness

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ALLIED LAWS - CPC

Any court may in any suit issue a commission for the examination on
interrogatories or otherwise of any person resident within the local limits of its
jurisdiction who is EXEMPTED under this code from attending the court or who
is SICKNESS or INFIRMITY unable to attend it PROVIDED that a COMMISSION
FOR EXAMINATION ON INTERROGATORIES SHALL NOT BE ISSUED UNLESS THE
COURT, FOR REASONS TO BE RECORDED, THINKS IT NECESSARY TO DO SO.

e.g. the court may, for the purpose of this rule, accept a certificate purporting
to be signed by a REGD MEDICAL PRACTITIONER as evidence of the sickness or
infirmity of any person, WITHOUT CALLING THE RMP as a witness

2. Order for Commission

Such commission for the examination of witness may be made by the court
EITHER OF ITS OWN MOTION
Or
APPLICATION, SUPPORTED BY AFFIDAVIT of any party to the Suit
or
of the Witness to be examined supported by affidavit

When parties to the suit seek issue commission, it must be in the form of
AFFIDAVITS

3. Where witness resides within Court’s jurisdiction

The same may be issued to any person - court thinks fit to execute it.
Person – within the court jurisdiction

4. Persons for whose examination commission may issue

a) Any court may in any suit issue a commission to
i) Any person resident beyond the local limits of its jurisdiction
ii) Any person who is about to leave such limits before the date on
which he is required to be examined in court
iii) Any person who is in government service and cannot in the opinion of
the court, detriment to the public service

Note : a person cannot be ordered to attend a court in person - but

his evidence is necessary (court thinks) - commission shall be issued
for his examination

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ALLIED LAWS - CPC

b) Such commission may be issued to any court (NOT TO HIGH COURT) - local
limits - person resides
Commission may be issued to any court in whose jurisdiction such person
resides, his pleader , person appointed by court

Court directs whether the commission shall be returned to itself or to any

subordinate court

5. Commission or request to examine witness NOT WITHIN INDIA

Person residing at any place - outside India - evidence of such person is
necessary - court may issue such commission or a letter of request

6. Court to examine witness pursuant to commission

Every court receiving a commission for the examination of any person (witness)
- shall examine him

7. Return of commission with depositions of witnesses

If commission duly executed - it shall be returned - together with the evidence
taken under it - to the court from which it was issued - evidence taken under it
shall form part of the record of the suit

8. When depositions may be read in evidence

Shall not be read as evidence without the consent of the party against whom the
same is offered, unless (depositions taken under commission cannot be read in
the suit proceedings without affording opportunity to the other party)

It shall not be done without the consent of the party against whom the same is
offered UNLESS

a) The person who gave the evidence is beyond the jurisdiction of the court
b) Dead or unable from sickness or infirmity to attend personally
c) Exempted from personal appearance in court
d) Is a person in government service, who cannot, in the opinion of the court,
detriment to the public service
e) Not CEASED at the time of reading the same - court in its discretion
authorizes the evidence of any person being read as evidence

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ALLIED LAWS - CPC

9. Commissions to make local investigations

a) Elucidating (interpret) any matter in dispute
b) Ascertaining the market value of any property
c) Ascertaining the amount of any profits or damages or annual net profits
(ascertaining the MESNE PROFIT)

Issue commission to such person as it thinks fit - directing him to make such
investigation and to report thereon to the court

STATE GOVERNMENT HAS MADE RULES AS TO THE PERSONS TO WHOM

SUCH COMMISSION SHALL BE ISSUED - COURT SHALL BE BOUND BY SUCH
RULES
Commission cannot be issued
a) For the purpose of collecting evidence on fact
b) To execute a decree
c) General examining a person
d) To ascertain the compensation to be paid to witness, for ascertaining the
whereabouts
e) Not for seizure of account books in possession of any party

10. Procedure for Commissioner

a) Commissioner - after such local inspection - writing the evidence taken by
him - shall return such evidence with his report in writing signed by him -
to the court
b) This report and the depositions of the persons are evidence in the suit and
shall form part of record - the commissioner may be examined in person
c) Any of the parties to the suit (with permission of the court) may examine the
commissioner personally in the open court - in connection with his report
d) If court is not happy with the proceedings of the commissioner - it may
direct such further inquiry to be made

Report and depositions to be evidence in suit, commissioner may be

examined in person, commissions to examine accounts

10A. Commission for scientific investigations

Any question arising in a suit involves any scientific investigation - commission to
such person - directing him to inquire into such question and report thereon to the
court.

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ALLIED LAWS - CPC

10B. Commission for performance of a ministerial act

Involves the performance of any ministerial act - which cannot in the opinion of the
court - be conveniently performed before the court - the court may for the
reasons to be recorded - issues a commission to such person - directing him to
perform that ministerial act and report thereon to the court

10C. Commission for the sale of movable property

If it becomes necessary to sell any movable property which is in the custody of the
court pending the determination of the suit - which cannot be conveniently
preserved - reasons to be recorded - issue a commission to such person -
directing him to conduct sale and report thereon to the court

11. Commission to examine or adjust accounts

If it is necessary - the court may issue a commission to such a person -
directing him to MAKE SUCH EXAMINATION or ADJUSTMENT

12. Court to give commissioner necessary instructions

a) Instructions - proceedings (court would give necessary instructions to the
Commissioner)
SECOND COMMISSIONER MAY ALSO BE APPOINTED

b) Report of the commissioner shall be evidence in the suit - if court has

reason to be DISSATISFIED with them - court may direct such further inquiry
as shall think fit

Proceedings and report to be evidence

Court may direct further enquiry
Commissions to make partitions

13. Commission to make partition of immovable property

Where a preliminary decree for PARTITION has been passed - commission to
such person - to make the partition or separation according to the rights as
declared in such decree

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ALLIED LAWS - CPC

14. Procedure of commissioner

a) Commissioner - after necessary inquiry - divide the property into as many
shares as may be directed as per the order - allot such shares to the parties -
award sums to be paid for the purpose of equalizing the value of the shares
b) Then, prepare and sign a report - finally, court confirm / modify / set aside
the same at the time giving opportunities to the parties
c) Where the court confirms or modify the report(s) - IT SHALL PASS A DECREE
IN ACCORDANCE WITH THE SAME AS CONFIRMED OR VARIED
d) BUT, WHERE THE COURT SET ASIDE THE REPORT(S), IT SHALL EITHER ISSUE A
NEW COMMISSION OR MAKE SUCH OTHER ORDER AS IT SHALL THINK
FIT.

15. Expenses of commission to be paid into court

Before issuing any commission under this order - court may order such sum -
reasonable - expenses of the commission - to be paid within a time fixed. It
will be paid by the party at whose instance or for whose benefit the
commission is issued

16. Powers of commissioners

a) Examine the parties and any witness - call upon to give evidence
b) Call for and examine documents ……….
c) At any reasonable time ENTER UPON ANY LAND OR BUILDING MENTIONED
IN THE ORDER
16A. Questions objected to before the Commissioner
a) When any question put to a witness is objected to by a party / pleader - in
the proceedings of the commissioner - he shall take down the same in the
report

17. Attendance and Examination of Witnesses before Commissoner

a) As far as the provisions of this code relating to summoning, attendance and
examination of witnesses……………..concerned, COMMISSIONER SHALL BE
DEEMED TO BE A CIVIL COURT (not a judge of civil court - he shall not be
competent to impose penalties - but, such penalties may be imposed if
court gives power)
b) A commissioner may apply to any court (other than High Court) for issue of
any process - then, court may issue such process as it considers reasonable
and proper

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ALLIED LAWS - CPC

18. Parties to appear before Commissioner (commissions issued at the instance of

foreign Tribunals)
a) Court shall direct that the parties to the suit shall appear before
commissioner - whether in person or by their agents or pleaders
b) If not appeared - treated as ABSENT (WHERE ALL OR ANY OF THE PARTIES
DO NOT APPEAR BEFORE THE COMMISSION, THE COMMISSINER MAY
PROCEED IN THEIR ABSENCE)

18A. Application of order to execution proceedings

Provision of Order shall apply - Proceedings in EXECUTION OF DECREE or
Order

18B. Court to fix a time for return of commission

Court - fix a date - commission shall be returned to it after execution - date
shall not be extended - except - sufficient cause for extension

Duties of Commissioner
1. To examine the parties and any witness who has to give evidence
2. He may call for and examine the documents…….
3. At any reasonable time to enter upon or into any land or building
….

19.Cases in which High Court may issue commission to examine

witness
20.To whom commission may be issued
21.Issue, execution, and return of commissions, and transmission of
evidence to Foreign Court

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ALLIED LAWS - CPC

ORDER XLVII - REVIEW

Review = to examine or study again
So, the review of judgement is to EXAMINE OR STUDY AGAIN THE
FACTS AND JUDGEMENT OF THE CASE
Review means RECONSIDERATION of a decision given by the same
court.
Court cannot review its decision SUO-MOTO
REVIEW OF JUDGEMENT and not REVICE OF ORDER
Review application has to be made in the court which passed DECREE
Rule = 1 to 9

There is no power of review in IT Dept - only rectification, appeal,

revision
Review filed in COURT WHICH PASSED THE DECREE / ORDER

After filing review, appeal is preferred, review could be kept pending

till disposal of appeal

Review petition shall be filed before the same court ; in case of HC, it
should be before the same judge or his successors

Form of application for review = same form preferring for appeal

1. Application for Review of Judgement (r.w.s.114)

a) Any person considering himself aggrieved
i) By a DECREE or ORDER for which an appeal is ALLOWED ,but no APPEAL HAS
BEEN PREFERRED
ii) By a DECREE or ORDER for which NO APPEAL IS ALLOWED
iii) By a DECISION on a REFERENCE from a Court of Small Causes

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ALLIED LAWS - CPC

b) From the discovery of NEW AND IMPORTANT matter or evidence, after the exercise
of due diligence was not within his knowledge and could not be produced

or could not be produced by him at the time when the decree was passed or order
was made

Or on account of some mistake or error apparent on the face of the record

Or for any other sufficient reason

DESIRES TO OBTAIN A REVIEW OF THE DECREE PASSED or ORDER MADE AGAINST

HIM
MAY APPLY FOR REVIEW OF JUDGEMENT TO THE COURT WHICH
PASSED THE DECREE or MADE THE ORDER

MISTAKE APPARENT FROM RECORD

c) A party who is not appealing for a decree or order may apply for a REVIEW of
judgement -

d) Note :
The fact that the decision on a QUESTION OF LAW which the judgement of the court
is based
Has been reversed or modified by the subsequent decision of a Superior Court in
ANY OTHER CASE
Shall NOT BE A GROUND for the review of such judgement

JUDGEMENT CAN BE REVIEWED ON GROUNDS OF

MISTAKE OF FACT OR ERROR OR MISTAKE OF LAW ON
THE FACT OF RECORD - APPARENT MISTAKES

WHEN THE IMPORTANT EVIDENCE IS DISCOVERED, NOT

WITHIN THE KNOWLEDGE OF PARTY CONCERNED.

Limitation = within 30 days from the date of order

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ALLIED LAWS - CPC

The aggrieved party to file REVIEW APPLICATION within

30 days from the date of receipt of impugned order.
Before, the same court which passed the impugned
order. If the summon / notice was not duly served, then
from the date of knowledge of the DECREE.

When further appeal is pending / running, REVIEW

petition cannot be made

Grounds of Review
i) By decree or order from which an appeal is allowed
by the CPC, BUT NO APPEAL IS PREFERRED, REVIEW
application to be filed with the same authority

ii) By a decree or order from which NO APPEAL IS

allowed by CPC

iii) By a decision on a reference from the COURT OF

SMALL CAUSES

POWERS OF THE COURT TO ENTERTAIN REVIEW

PETITIONS
i) Entertaining review petition is the discretionary
power of the court ; NOT MANDATORY
ii) It is not the jurisdiction
iii) It is not implied power of court

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ALLIED LAWS - CPC

REVIEW PETITION
i) Review petition is allowable in every case
ii) Both appealable and non-appealable
iii) Review is maintainable when an appeal is provided, but no appeal is
preferred
iv) When no appeal is approved
2. To whom applications for review may be made
3. Form of application of review - same as form of appeals
4. Application where REJECTED & Application where Granted
a) Where it appears to the Court that THERE IS NOT SUFFICIENT GROUND
FOR A REVIEW, court shall reject the application
b) Court - is of the opinion - application for review should be granted - then, it
will grant PROVIDED THAT
i) No such application shall be granted WITHOUT PREVIOUS NOTICE TO THE
OPPOSITE PARTY - enable him to appear and be heard
ii) No such application shall be granted on the GROUND OF DISCOVERY OF
NEW MATTER OR EVIDENCE with the applicant ALLEGES WAS NOT WITHIN
HIS KNOWLEDGE, OR COULD NOT BE ADDUCED BY HIM WHEN THE decree
or order was passed / made, WITHOUT STRICT PROOF OF SUCH
ALLEGATION

5. Application for REVIEW in court consisting of 2 or more judges

Where the judge(s) who passed the decree / made the order - such judge shall hear the
application - no other judge shall hear them.
6 months (absence)
Judges who passed the orders should review the judgement
6. Application where Rejected
a) Where the application for a REVIEW is heard by more than 1 judge and the court is
equally divided, the APPLICATION SHALL BE REJECTED
b) Where there is a majority, the decision shall be according the opinion of the
majority.

7. Order of rejection NOT APPELABLE

But, objections to order GRANTING application
an order of the court rejecting the application shall not be appealable.
But, an ORDER GRANTING AN APPLICATION - objected by an appeal

If order was passed ex-parte (not appearance of the party), that person may apply for an
order to have the rejected application restored to the file, and where it is proved to the

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ALLIED LAWS - CPC

satisfaction of the court that he was prevented by any sufficient cause from appearing
when such application was called for hearing, the court shall order it to be restored to
the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day
for hearing the same

No order shall be made unless notice of the application has been served on the
OPPOSITE PARTY - where the court is of the opinion that the application for REVIEW
SHOULD BE GRANTED, it shall grant the same, with the previous notice to the opposite
party to ENABLE HIM TO APPEAR AND BE HEARD.

8. Registry of application granted, and order for RE-HEARING

When an application for review is granted
A note thereof shall be made in the register
Court may at once re-hear the case
Make such order in regard to the re-hearing as it thinks fit

9. Bar of certain application

REVIEW OF REVIEW - not allowed

UNDER CPC, the judgement of a court on QUESTION

OF LAW has been reversed or modified by the
subsequent decision of SUPERIOR COURT, it cannot
be a valid ground for review of the JUDGEMENT

S.No. Review Appeal

1 Application the Same Court Application in the higher Court
2 Reconsideration of the same matter by Another judge
the same judge
3 Grounds for review is narrow Grounds - larger
4 No second review Second appeal on QUESTION OF
LAW

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ALLIED LAWS - CPC

Question and Answer

1. An order granting application for review may be objected to
a) Appeal from the order granting the application
b) Appeal from the decree or order finally passed

2. Review of a judgement has been provided under which section

Sec 114
3. Grounds for Review - which order / rule
Order 47 Rule 4
4. Under CPC the judgement of a court on “Question of Law” has been reversed or
modified by the subsequent decision of superior court
IT CANNOT BE A VALID GROUND FOR REVIEW OF THE JUDGEMENT

MISCELLANEOUS

5. Sec 133 = Exemption of other persons

a) State government may, by notification in the official gazette, EXEMPT from
personal appearance in court any person whose RANK, in the opinion of such
government, entitles him to the PRIVILEGE OF EXEMPTION
b) It shall be forwarded to High Court by the State govt. - list of such persons

6. Garnishee is the DEBTOR OF JUDGEMENT DEBTOR

7. DECREE - more than Rs.2000 but below Rs.5000 - maximum period of detention in
civil imprisonment - 6 WEEKS
8. Where the defendant fails to file the written statement within 30 DAYS
Under CPC, he shall be allowed to file the same - reasons to be recorded - not
later than 90 DAYS
9. In a case of one and the same decree, the attachment of salary can continue for a
total period of 24 months
10. A court may make an order requiring the officer-in-charge of the prison to produce
a person before the court to give evidence - condition not more than 25 kms
11. Summons can be served on a particular date
12. Decree means FORMAL EXPRESSION OF AN ADJUDICATION
13. SHARE IN A CORPORATION INCLUDE STOCK, DEBENTURE STOCK, DEBENTURES,
BONDS etc.
14. DASTI SUMONS = PERSIAN WORD =”BY Hand”
15. CPC is the procedural law to establish CIVIL RIGHTS
16. Indian Evidence Act is relevant
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ALLIED LAWS - CPC

17. Dasti Summons can also be served in addition to regular summons. It means a
notice of summons served by PLAINTIFF / DEFENDANT by a specific order by court
and not by RPAD or through process server of the court.
IT IS THE NOTICE SERVED BY A PERSON BY HAND.
DASTI is a Persian word (meaning BY HAND)
18. The Executing COURT cannot modify or vary the terms of decree - follow what has
been directed
19. Application for execution of decree has be made to the court which passed the
decree
20. A party applying for summons shall pay fee towards calling the summons within a

period not later than 7 DAYS

21. SEC 75 OF CPC provides = POWER OF COURT TO ISSUE COMMISSION
22. An order granting application for review may be objected to
c) Appeal from the order granting the application
d) Appeal from the decree or order finally passed

23. Review of judgement - sec.114

24. Review is maintainable
a) When an appeal is provided, but no appeal is preferred
b) When no appeal is approved

25. In execution of DECREE for MAINTENANCE, Salary of a person can be attached to

the extent of
Ans. 1/3

26. In execution of a decree for maintenance u/s.60 of the CPC what portion of salary of
a person CANNOT BE ATTACHED
Ans. 1/3

27. Properties of a judgement debtor which are not liable to be attached have ben
mentioned in
SECTION 60 of CPC
28. Transfer of a decree for execution to another court has been dealt with under CPC
Ans. : Sec 39
29. Which provision provides for adjudication of claims to, or objections to attachment
of property
Ans : ORDER 21 RULE 58
30. Sec 61 deals with
PARTIAL EXEMPTION OF AGRICULTURAL PRODUCE

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ALLIED LAWS - CPC

31. A decree may be executed

ANS : WITHER BY THE COURT WHICH PASSED THE DECREE
OR
BY ANY OTHER COURT TO WHICH A DECREE HAS BEEN SENT FOR EXECUTION

32. Maximum period of detention in civil imprisonment where the decree is for more
than Rs.2000 but less than Rs.5000 is
Ans. : 6 WEEKS

33. The decree as regards the court means

Ans. FORMAL EXPRESSION OF ADJUDIGATION

34. Share in a Corporation include

Ans. : STOCK, DEBENTURE STOCK, DEBENTURES, BONDS etc.

35. As per the customs, SRK does not appear in the public ; PQR the person executing
the process under CPC must
Ans. : GIVE NOTICE TO SRK THAT she is at liberty to withdraw
Give reasonable time to SRK to withdraw
Must observe all precautious to prevent SRK’s Clandestine Removal

36. Any commissioner appointed under order XXVI, may

Ans. Call for and examine documents and other things relevant ………
At any reasonable time enter upon or into any land or building …….
37. Under CPC, power of court to issue commission is covered u/s
Ans. 75
38. Summons and attendance of witness = Order XVI & XVI (A)
39. Witness without summons = permissible

40. RES-JUDICATA
A suit or an issue decided by a competent court cannot be reopened and re-
adjudicated in a subsequent suit between the same parties or parties claiming
through them, in ANOTHER COURT or THE SAME COURT. No man should be vexed
twice for the same cause.
41. RES-SUBJUDICE
Means “under judgement”. Prohibits the plaintiff to file 2 parallel cases on the
same subject matter and restricts the chances of having 2 contradictory judgements
by the 2 courts. To prevent wastage of court’s resources and time.

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ALLIED LAWS - CPC

Res subjudice relates to matter pending judicial enquiry or trial sub judice.
Res judicata relates to a matter already adjudicated or matter in which decision is
already there.

Res subjudice bars to the trial of a suit

Res judicata bars to file a suit

42. If plaintiff himself does not appear, the case is dismissed for default
43. Order of exparte hearing or dismissal for default are REVOCABLE
44. During the pendency of suit, a civil court is competent to grant a TEMPORARY
INJUCTION or PASS SUCH INTERLOCUTORY ORDER as is necessary for the ends of
jusitice
45. Injunction = parties may be restrained from doing any act ………
46. In the first appeal, both question of law and facts can be challenged
47. But, in 2nd appeal (before HC), only question of law is challengeable
48. Reference = A subordinate court can refer the matter of consideration of the HC.
Reference in only NON-APPEALABLE cases. The power of reference is vested in the
court. Reference is always made to the HC (question of law) ; reference is made in a
pending suit
49. Review = own judgement - within 30 days of the original judgement
Same court. If the judge is not available, it will be heard by another judge or his
successor in office.
Review is permissible on the judgement against which APPEAL is allowed, but not
preferred. Therefore, the court can review APPEALABLE CASES when the same is
NOT PREFERRED.
Review is also permissible on the judgement against which NO APPEAL IS ALLOWED.
Therefore, the court can review NON-APPEALABLE cases also.

50. Revision = any party can approach the superior court (generally HC) against order of
the lower court on the ground of its jurisdictional irregularity - within 90 days
The superior court in deciding such application exercises its power of REVISION
To revise = To look again = to look repeatedly at = to go through a matter carefully
and correct where necessary. HC has revisionary powers.
There must be a case decided
The court deciding the case must be subordinate to the HC
No appeal should lie to the HC against the decision
It is mainly because of JURISDICTIONAL ERRORS (parties cannot claim it as a right)
For a revision of decree /order, the limitation period is 90 days
51. Attachment of Moveable Property
a) Delivered to decree holder or receiver
b) Kept under custody for 3 months - then sale as per court’s directions - balance
money after adjusting all dues to judgement debtor

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ALLIED LAWS - CPC

52. Immovable property

a) Possession to decree holder ( in case of illegal occupation)
b) Evacuation will be done by the court

53. Review of a judgement has been provided under which section of the CPC
Ans sec 114

54. Plaint is the pleading of the plaintiff. It means an accusation or charge. The
court can direct plaintiff to present as many copies of plaint and fees for service of
summons - within 7 days
55. When neither party (plaintiff & defendant) appears when the suit is called on
for hearing, the court may make an order that the SUIT BE DISMISSED.
56. Arrest of judgement Debtor
When the judgement debtor fails to comply with the judgement and decree, the
execution proceedigns of the decree commences

He may be arrested at any hour and on any day in execution of decree ……..he shall
be detained in a civil prison in a district in which the court is situated

For the arrest, the officer should not enter the dwelling house after sunset or before
sunrise.

The outer door should not be broken except if the judgment debtor refuses to come
out.

If the decree s payment of money and the debtor pays, the officer should release
him immediately

If the debtor applies to the court to declare insolvent and gives sufficient security to
the court, the court will release him from arrest

The court shall not order for arrest of a women in execution of decree

to pay exceeding Rs.5000, he

If a person detained in civil prison has

may be detained NOT EXCEEDING 3 MONTHS.

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ALLIED LAWS - CPC

If the money to be paid is more than Rs.2000 but

not exceeding Rs.5000,the detention is not
exceeding 6 weeks

if the amount is less than Rs.2000, then he cannot

be detained.

The court may cancel the arrest warrant if the

DEBTOR HAS SERIOUS ILLNESS or SUFFERING
FROM CONTAGIOUS DISEASE

COURT COMPETENT TO EXECUTE DECREE / ORDER

a) Court which passed decree / order
b) The court to which it is sent for execution

No other court can execute a decree.

57. Interlocutory Application - it is an intermediate order passed before the FINAL

DECISION. It may be for an interim sale of movable property.

58. COMMISSION to top level people e.g. DGP etc.

59. CIVIL LITIGATION = RIGHT IN REM
60. BETWEEN PARTIES = RIGHT IN PERSONA
61. The CPC CODE is divided into 2 parts, namely SECTIONS and ORDERS
62. PRINCIPLES contained in sections
63. PROCEDURES w.r.t. matters dealt with by the sections have been specified in the
orders

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ALLIED LAWS - CPC

64. DECREE :
a) For mal expression of an adjudication
b) Determines the rights of the parties w.r.t. ALL OR ANY OF THE MATTERS IN
CONTROVERSY in the suit and may be either PRELIMINARY or FINAL
c) It is RULING of the Court regarding the claims of the parties of the suit
d) e.g. whether property belongs to A or B
e) there must be adjudication of disputes
f) such adjudication must conclusively determine the RIGHTS OF THE PARTIES
w.r.t. all or any of the matters in controversy in the suit
g) COURT PASSES DECREE in a SUIT
h) Preliminary = not completely disposed of the suit
i) Final = disposes of the suit completely

65. ORDER
The formal expression of any decision of a civil court WHICH IS NOT A DECREE is
ORDER.
Discussion of matters issues in the suit and the reasons which led the court to pass
the order
66. DECREE shall be passed only in a suit
ORDER shall be passd in an appeal, application or in an execution

DECREE adjudicates which conclusively determines the RIGHTS OF THE PARTIES

w.r.t. matters in controversy
ORDER may or may not finally determines the rights

Decree = can only be passed in a suit originated by the presentation of a plaint

ORDER = can be passed in a suit originated by the presentation of a plaint,
application or petition

Decree = contains conclusive determination of a right

ORDER = may or may not finally determine a right

Decree = may be final, preliminary, part preliminary , part final

ORDER = cannot be a preliminary order

Decree = there can only be 1 decree ( 1 prel decree and or 1 final decree)
ORDER = any number of orders in a proceeding

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ALLIED LAWS - CPC

67. JUDGEMENT is a state prior to the passing of a decree or an order

68. Interlocutory application means an application to the court in any suit / appeal /
proceeding already instituted in such court, other than a proceeding for execution
of a decree or order.
The orders which are passed in those applications are called as interlocutory orders.

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