CPC 1

CPC 5th Semester
Harinath Janumpally- [email protected]

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CPC 5th Semester
PAPER-I: SYLLABUS
CIVIL PROCEDURE CODE AND LAW OF LIMITATION
Unit-I: Codification of Civil Procedure and Introduction to CPC Principal features

of the Civil Procedure Code Suits Parties to Suit Framing of Suit Institution
of Suits Bars of Suit - Doctrines of Sub Judice and Res Judicata Place of Suing
Transfer of suits Territorial Jurisdiction of Jurisdictional Bars
Summons Service of Foreign summons.
Unit-II: Pleadings Contents of pleadings Forms of Pleading Striking out /

Amendment of Pleadings - Plaint Essentials of Plaint - Return of Plaint- Rejection of
Plaint Production and marking of Documents-Written Statement Counter claim
Set off Application of Sec. 89 - Framing of issues.
Unit-III: Appearance and Examination of parties & Adjournments Ex-parte

Procedure -Summoning and Attendance of Witnesses Examination Admissions
Production, Impounding, Return of Documents Hearing Affidavit Judgment
and Decree Concepts of Judgment, Decree, and Interim Orders and Stay
Injunctions Appointment of Receivers and Commissions Costs - Execution
Concept of Execution General Principles of Execution Power of Execution
Power of Executing Courts Procedure for Execution Modes of Execution -- Arrest
and detention Attachment and Sale.
Unit-IV: Suits in Particular Cases Suits by or against Government Suits relating

to public matters; Suits by or against minors, persons with unsound mind, - Suits by
indigent persons -- Interpleaded suits Incidental and supplementary proceedings -
Appeals, Reference, Review and Revision Appeals from Original Decrees Appeals
from Appellate Decrees Appeals from Orders General Provisions Relating to
Appeals.
Unit-V: Law of Limitation Concept of Limitation Object of limitation - General

Principles of Limitation Extension Condonation of delay Sufficient Cause
Computation of limitation -- Acknowledgment and Part -payment- Legal Disability
Provisions of the Limitation Act, 1963 (Excluding Schedule)
Suggested Readings:
1. Mulla, The Code of Civil Procedure, LexisNexis, Butteworths, Wadhwa.
2. C.K. Takwani: Civil Procedure, Eastern Book Co., Lucknow.
LexisNexis.
4. B.B. Mitra: Limitation Act, Eastern Law House, Calcutta, Allahabad.
5. 5.Sanjiva Row: Limitation Act, (in 2 Vols), Law Book Co., Allahabad.
6. Sanjiva Row: Code of Civil Procedure, (in 4 Vols), Law Book Co. Allahabad.
8. AIR Commentaries on Limitation Act, W.W. Chitaley, AIR Ltd., Nagpur.

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CPC 5th Semester
ANSWERS TO IMPORTANT QUESTIONS

1. Place of suing
Answer: Jurisdiction of Civil Courts and Place of Suing:
Ubi jus ibi remedium
The fundamental principle of English Law that wherever there is a right, there is a remedy has been
adopted by the Indian legal system. It means, whenever the rights of a person is infringed or curtailed or
the person is stopped by anyone in enjoying the rights so guaranteed to him, there must be some judicial
forum having authority to adjudicate on the matter and the rights so guaranteed should be restored or
compensated as per the case.
To get the rights restored or claiming compensation or damage sustained, person has to approach the
appropriate forum, which has the authority to adjudicate on the matter and award the relief so sought.
So, the forum must have jurisdiction to deal with that matter.
Jurisdiction generally means the power or authority of the court of law to hear and determine a cause
or a matter. In other words, jurisdiction is meant the authority which a court has to decide the matters
that are litigated before it or to take cognizance of matters presented in a formal way for its decision.

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CPC 5th Semester
The extent of jurisdiction will be determined with reference to the subject-matter, pecuniary value and
the local limits. So, while the question of jurisdiction of a court is determined, the nature of the case, the
pecuniary value of the suit, and the territorial limitation of the court need to be taken into consideration.
Not only that, there may be a situation wherein the forum approached may have competency to deal
with the subject-matter, the suit is falling well within the pecuniary limitation and within the local limits
assigned with that court as well, but if the court is not competent to grant the relief sought then also the
court cannot be considered as the court having jurisdiction as observed in Official Trustee V. Sachindra
Nath, AIR 1969 SC 823; the supreme court observed:
jurisdiction to try the suit brought but must also have the authority to pass the order sough
Jurisdiction of a Civil Court: Section 9 of the Code of Civil Procedure:
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I- A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or
ceremonies.
Explanation ll- For the purposes of this section, it is immaterial whether or not any fees are attached to
the office referred to in Explanation I or whether or not such office is attached to a particular place.
As mentioned under Sec-9 of the Code, the civil courts have jurisdiction to deal with all matters provided it
is a matter of civil nature and it is not expressly or impliedly barred.
The word civil is not defined in the Code; however as per dictionary meaning it pertains to the private
rights and remedies as distinguished from criminal and political. The word nature indicates the
fundamental quality of a thing or person, its identity or the essential character. Hence, the suit of civil
nature may be understood as a suit in which the fundamental question for determination, the matters in
controversy primarily relating to the private rights and obligations, not to be related to political or
religious rights and obligations; and if it is so the civil courts have the jurisdiction provided it is not
expressly or impliedly barred.
However, the court cannot try any suit if its cognizance is either expressly or impliedly barred. A Suit is
said to be expressly barred if it is barred by any enactment for the time being in force. It is open to the
legislature to bar the jurisdiction of civil court with respect to a particular class of suit keeping itself within
the ambit of power conferred on it by the Constitution of India.
The development of the tribunal has taken away the jurisdiction of the civil court with respect to the
subject matter allotted to that tribunal on the first stage, however if any question of law so raised, or any
provision of the act which has so created the tribunal that can be looked into by the civil court. Thus,
matters falling within the exclusive jurisdiction of the Revenue Courts or under the Code of Criminal
Procedure or matters dealt with by special tribunals under the relevant statutes, e.g. by Industrial
Tribunal, Cooperative Tribunal, Income Tax Tribunal, Motor Accident Claims Tribunal, etc., are expressly
barred from the cognizance of the Civil Courts.
A suit is said to be impliedly barred when it is barred by the general principle of law. In fact, certain
suits, though of a civil nature, are barred from the cognizance of a civil court on the ground of public
policy. The principle underlying is that a court ought not to countenance matters which are injurious to
and against the public weal. Thus, no suit shall lie for recovery of costs incurred in a criminal prosecution
or for enforcement of a right upon a contract hit by Section 23 of the Indian Contract Act, 1872; or against
any judge for acts done in the course of his duties, etc.
Kinds of Jurisdiction and Place of Suing: Sections 15 -21
There are basically three kinds of jurisdictions on the basis of which the place of suing may be
determined. These are
1. Pecuniary Jurisdiction (Section 15)
2. Territorial Jurisdiction (Sections 16 20)
3. Subject Matter Jurisdiction (Section 21)
4. Original and Appellate Jurisdiction

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CPC 5th Semester
5. Exclusive and Concurrent Jurisdiction

6. General and Special Jurisdiction, and
7. Legal and Equitable Jurisdiction.
If the matter put forth by the litigant for adjudication in front of the court, and the court have all these
(pecuniary, territorial and Subject-Matter) jurisdiction, then only that court can try the matters so brought
by the litigants. In case, the court does not have any of the above mentioned jurisdictions and still try the
suit, it will be either termed as arbitrary/irregular/illegal exercise of jurisdiction or lack of jurisdiction
which may turn the decision void or voidable depending upon the situations.
A. Pecuniary Jurisdiction: Sec-15:

Every suit shall be instituted in the Court of the lowest grade competent to try it.
The words competent to try indicate the competency of the court with respect to the pecuniary
jurisdiction. It means, the courts of lowest grade that has the jurisdiction with respect to pecuniary value
shall try the suit at first.
Now, the biggest question is who will determine the valuation of the suit for the purpose of
determining the pecuniary jurisdiction of the court. In general, it is the valuation done by the plaintiff is
considered for the purpose of determining the pecuniary jurisdiction of the court, unless the court from
the very face of the suit finds it incorrect. So, if the court finds that the valuation done by the plaintiff is
not correct, that is either undervalued or overvalued, the court will do the valuation and direct the party
to approach the appropriate forum.
and not the amount for which ultimately decree may be passed. Thus, if the pecuniary jurisdiction of the
court of lowest grade is, say, Rs. 10,000/- and the plaintiff filed a suit for accounts wherein the plaintiff
valuation of the suit is well within the pecuniary jurisdiction of the court but court latter finds on taking
the accounts that Rs. 15,000/- are due, the court is not deprived of its jurisdiction to pass a decree for that
amount.
Usually, a court will accept a valuation of the plaintiff in the plaint and proceed to decide the matter on
merits on that basis, however, that does not mean that plaintiff in all cases are at liberty to assign any
arbitrary value to the suit, and to choose the court in which he wants to file the suit.
If it appears to the court that the valuation is falsely made in the plaint for the purpose of avoiding the
jurisdiction of the proper court, the court may require the plaintiff to prove that the valuation is proper.
Next important question is the status of decision given by the court that does not have the pecuniary
jurisdiction in the matter. That is, what if the Court proceeded with the matter and later come to know
that it did not have the pecuniary jurisdiction. (The matter will be dealt under heading irregular exercise
of jurisdiction).
Pecuniary jurisdiction in the state of Telangana is prescribed as per Section 16 of the TELANGANA CIVIL
COURTS ACT, 1972.
(1) The pecuniary jurisdiction of a District Judge, shall subject to the provisions of the Code of Civil
Procedure, 1908 and the other provisions of this Act, extend to all original suits and proceedings of a Civil
nature including Land Acquisition original petitions, the amount or value of the subject matter of which
exceeds rupees fifty lakhs.
(2) The pecuniary jurisdiction of a Senior Civil Judge shall extend to all like suits and proceedings of a Civil
nature including Land Acquisition original petitions not otherwise exempted from his cognizance under
any other law for the time being in force, the amount or value of the subject matter of which exceeds
rupees twenty lakhs but does not exceed rupees fifty lakhs.
(3) The pecuniary jurisdiction of Junior Civil Judge shall extend to all like suits and proceedings, not
otherwise exempted from his cognizance under any other law for the time being in force, the amount or
value of the subject matter of which does not exceed rupees twenty lakhs.
B. Territorial Jurisdiction: Sections 16 to 20
Immovable Property: Sec- 16-18

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Section 16: Suits to be instituted where subject-matter situate Subject to the pecuniary or other
limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the
Court within the local limits of whose jurisdiction the property is situate :
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held
by or on behalf of the defendant, may where the relief sought can be entirely obtained through his
personal obedience be instituted either in the Court within the local limits of whose jurisdiction the
property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally works for gain.
Section 17: Suits for immovable property situate within jurisdiction of different Courts
Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate
within the jurisdiction of different Court, the suit may be instituted in any Court within the local limits of
whose jurisdiction any portion of the property is situate:
Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by
such Court.
Section 18: Place of institution of suit where local limits of jurisdiction of Courts are uncertain
(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more
Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for
the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose
of any suit relating to that property, and its decree in the suit shall have the same effect as if the property
were situate within the local limits of its jurisdiction: Provided that the suit is one with respect to which
the Court is competent as regards the nature and value of the suit to exercise jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and objection is taken before an
Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a
Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not
allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable
ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a
consequent failure of justice.
Movable Property Section 19: Suits for compensation for wrongs to person or movables
Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was
done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on
business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit
may be instituted at the option of the plaintiff in either of the said Courts.
Illustrations:-
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta
or in Delhi.
Other Suits: Section 20
Section 20: Other suits to be instituted where defendants reside or cause of action arises
Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose
jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for
gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit
actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such

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CPC 5th Semester
case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or
personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation-A corporation shall be deemed to carry on business at its sole or principal office in India or, in
respect of any cause of action arising at any place where it has also a subordinate office, at such place.
Illustrations:-
(a) A is a tradesman in Calcutta; B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A
and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in
Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or
in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi, A, B and C being together at Benaras, B and C make a
joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the
cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but
in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of
the Court.
So, when a suit is related to immovable property, the court within whose local jurisdiction property is
situated have the jurisdiction to try the matter. In case when a part of the property is situated in the local
limit of the other courts as well, I mean when the property is situated in more than one territorial limits of
the courts than in that case the courts in whose territorial limit any portion of the property is situated
have the jurisdiction and in such situation it is the plaintiff who will decide which court to approach.
Where it is not possible to say with certainty that the property is situated within the jurisdiction of the
one or the other of several courts, in such case one of these several courts, if it is satisfied that there is
such uncertainty, may after recording a statement to that effect proceed to entertain and dispose of the
suit.
When suit is related to movable property, as we know moveable property follow the person and hence
suit may be brought at the option of the plaintiff either at the place where the wrong is committed or
where the defendant resides, carries on business or personally works for gain. Where such wrong consists
of series of acts, a suit may be filed at any place where any of the acts has been committed. Similarly,
where a wrongful act is committed at one place and the consequence ensue at another place, a suit may
be instituted at the option of the plaintiff where the action took place or the consequences ensued.
A suit for compensation for wrong (tort) to a person may be instituted at the option of the plaintiff
either where such wrong is committed, or where defendant resides, carries on business or personally
works for gain.
Section 20 provides for all other cases not covered under any of the foregoing rules.
C. Jurisdiction as To Subject-Matter:
Different courts have been empowered to decide different types of suits. Certain courts have no
jurisdiction to entertain certain suits. For examples, suits for testamentary succession, divorce cases,
probate proceedings, insolvency matters, etc. cannot be entertained by a Court of Civil Judge (Junior
Division). This is called jurisdiction as to subject matter.
I mean, every court have been allotted the subject over which the court can entertain the matter, and
the subject which is not within the purview of the court, that court cannot deal with that matters at all.
The subject matter can be defined as the authority vested in a court to understand and try cases
concerning a special type of subject matter. In other words, it means that some courts are banned from
hearing cases of a certain nature. No question of choices can be decided by the court which do not have
subject matter jurisdiction. Section 21 of the Code of Civil Procedure is related to the stage challenging the
plagued with pests. He should pr

Court of Sonipat.
2. Define Sub Judice (Sec 10) and Res judicata (Sec 11) and what the differences are?

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CPC 5th Semester
Answer: In the common law, several principles have been laid down which formed the foundation of the
present legal system in India. The purpose of such doctrines is to assess the Judicial Efficiency and ensure
that the productive pace of getting justice in the court is achieved and maintained. Two of these principles
are discussed in this article, namely, the Doctrine of Res Sub Judice and Res Judicata.
In Latin, Res Judicata means a matter that has been judged. When a case has already been decided and
the final judgment has been given such that the matter is no longer subject to appeal, the doctrine of res
judicata bars or precludes continued litigation of such matter between the same parties.
court or judge. In a scenario when two or more cases are filed between the same parties on the same
subject matter, the competent court has the power to stay proceedings. So, the doctrine of Res Sub Judice
means stay of suit.
used as well as justice for all is obtained, these
doctrines play an important role. They do this by ensuring that a suit ends after the judgment is passed
and that the same suit on the same subject matter is not filed multiple times. This ensures smooth
functioning of the judiciary.
Res Sub Judice

When two or more cases are filed between the same parties on the same subject matter, in two or more
res sub judice aims to prevent courts of concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations with respect to the same cause of action, same subject matter
and same relief claimed.
Application of Res Sub Judice in India

Section 10 of Civil Procedure Code def
issue. In previously instituted suit between the same parties, or between parties under whom they or any
of them claim, litigating under the same title, where such suit is pending in same or any other Court, in
India, Having jurisdiction to grant relief claimed. Explanation: The pendency of a suit in a Foreign Court
Scope and Objective of Section 10

Scope: Section 10 deals with the concept of Res Sub Judice.
Objective: The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously,
trying two parallel cases, in respect of same matter in issue. The two fold objects are:
Avoid wasting Court Resources.
Avoid Conflicting decisions.
Avoiding unnecessary harassment of parties.
Conditions or essentials
The matter in issue in both the cases is to be substantially the same
Previously instituted suit must be pending in the same or any other court competent to grant:
o Relief claimed in the suit.
o Relief claimed in subsequent the suit.
Suits to the parties are to be the same or between parties under whom they or any of them claim,
litigating under the same title.
of CPC.
If suit is pending before a Court and subsequently an application is filed before a Tahsildar, it
Tahsildar
For purpose of institution, the date of presentation of plaint and not the date of admission is
considered. The term suit includes appeal.
Any decree passed in violation of Section 10 is null and void.

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CPC 5th Semester
files suit for balance of accounts in Chennai. Babita sues the agent Papita for accounts and his negligence
in Delhi; while case is pending in Chennai. In this case, Delhi Court is precluded from conducting trail and
Papita can petition Chennai Court to direct stay of proceedings against Delhi Court.
Cases: Escorts Const. Equipment Ltd V Action Const Equipments Ltd 1998
Facts: The defendant had filed for stay of present suit, an application u/s 10 CPC, on ground that the
matter in controversy is pending in Jamshedpur Court also. This was opposed by plaintiff on ground that,
the defendants had raised issue of jurisdiction of Jamshedpur Court to entertain same suit; and that
application u/s 10 CPC can be filed in the present suit, only if objection with respect to lack of jurisdiction
was withdrawn in Jamshedpur Court.
Judgment: Court held that the conditions requisite to invoke Section 10 CPC are:
Matter in issue in both the suits to be substantially the same.
Suit to be between the same parties or parties litigating under them
Previously instituted suit to be in the same Court or a different Court, which has jurisdiction to
grant the relief asked.
There is nothing to the effect that defendant should not question the competency of previously Court in
the previously instituted suit, and there remains the fact that the plaintiff in their defence against Section
10 CPC, had not stated the Jamshedpur Court is competent. Thus relief was granted to the defendant.
Dees Piston Ltd V State Bank of India 1991: In this case, it was held that. When a matter is before a
competent Civil Court, the National Commission will not entertain a petition in respect of identical subject
matter under Consumer Protection Act.
Indian Bank V Maharashtra State Co-Operative Marketing Federation 1998: The court in this case held
that, the object of prohibition in Section 10 CPC, is to, prevent courts of concurrent Jurisdiction from
simultaneously trying two parallel cases avoid inconsistent findings on the matter in issue.
Res Judicata: In case of Res Judicata, a matter once decided cannot be raised again, either in the same
court or in a dif
further claims after the final judgment. It is a common law practice meant to bar re-litigation of cases
between the same parties in the court.
The doct
of Res Judicata evolved from the English Common Law system, and was derived from the overriding
concept of judicial economy, consistency, and finality. From the common law, it got included in the Code
of Civil Procedure, which was later as a whole was adopted by the Indian legal system.
Purpose of Res judicata: Res Judicata aims to prevent;
Injustice to the parties of a case that has been supposedly concluded by providing closure to a
judgment and precluding any further claims
Unnecessary waste of court resources
Multiplying of judgments as further claims would lead to several varied judgments on the same
matter which will lead to confusion
Recovery of damages from the defendant twice for the same injury
Res judicata includes
Claim preclusion: it focuses on barring a suit from being brought again on a legal cause of action,
which has already been, finally decided between the parties.
Issue preclusion: bars the re-litigation of factual issues that have already been necessarily
determined by a judge as part of earlier claim.
clude the process of appeal, an appeal is considered the
appropriate way to challenge a judgment. Once the appeal process is exhausted or barred by limitation,
the res judicata will apply to the decision. Therefore, its application is only on the final decision post
appeals.
Maxims

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CPC 5th Semester
Doctrine of res judicata or rule of conclusive judgment is based on the following three maxims:
Nemo debet lis vexari pro eadem causa no man to be vexed twice for the same cause.
Interest republicae ut sit finis litium it is in the interest of the state that there should be end to
litigation.
Re judicata pro veritate occipitur a judicial decision should be accepted as correct.
In the case of Ashok Kumar v National Insurance Company 1998, the Supreme Court observed that the
first legal maxim takes care of the private interest and the next two of the larger interest of the society.
Res Judicata under Indian law
Res judicata or the rule of conclusiveness of the judgment has been embodied in the Indian law under
Section 11 of the Code of Civil Procedure, 1908. It enacts that once a matter is finally decided by a
competent Court; no party can be permitted to reopen it in a subsequent litigation. Section 11 states that;
directly and substantially in issue in a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and
Judicata as;
decisions. What it says is
that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and
future litigation. When a matter, whether on a question of fact or a question of law, has been decided
between two parties in one suit or proceeding and the decision is final, either because no appeal was
taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be
allowed in a future suit or proceeding between the same parties
Ingredients and essentials of Section 11:
According to this section, no court shall try any suit or issue in which:
The matter in issue (directly and substantially) has been directly and substantially in issue in a
former suit
Such matter in the former suit had been between the same parties or between parties claiming
under them
The matter must be litigated under the same title in a court competent to try such suit or a suit in
which the matter has been subsequently raised and has been heard and finally decided by such
court
Mandatory Provision:
Further, it must be noted that Section 11 is a mandatory provision and not directory in nature. The only
exception in which a former suit can be avoided is by taking recourse of Section 44 of the Indian Evidence
Act, 1872 on grounds of fraud or collusion.
The same was discussed in the case of Beli Ram and Brothers v Chaudri Mohammad Afzal, where the court
held that when it was established that the guardian of the minor had acted in collusion with the
Evidence Act.
Further, in the case of Jallur Venkata Seshayya v. Tahdaviconda Koteswara Rao, 1937 the court held that,
suit.
The following are also to be taken into account:
Former suit denotes a suit which has been decided prior to the suit in question, and not if it was
prior to this suit. I.e. The cut-off is date of judgment and not the date of institution of the suit.
Competency of a court is to be decided, irrespective of the right to appeal from a former suit.
The matter referred to in this suit must have been alleged by one party and either accepted or
refused by the other party (expressly/impliedly).

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CPC 5th Semester
Any matter which might or ought to have been made ground of attack/defence in such former suit
shall be deemed to have been a matter directly and substantially in issue in such suit (constructive
res judicata).
If any relief was claimed in plaint and was not granted expressly, it would be deemed to have been
refused in such former suit.
when persons litigate bonafide in respect of a public/private right claimed in common for
themselves and others, all persons interested for the purpose of section 11, will be deemed as
claiming under persons litigating, it is also to be remembered that, a court of limited jurisdiction
where the former suit was instituted and decided upon, shall operate as res judicata, even if the
court of limited jurisdiction is not competent to try the subsequent suit. This section 11 applies to
execution proceedings also.
Public Interest Litigations:
In case of res judicata, a Public Interest Litigation can be applicable only when the former suit was
bonafide in nature and that it will not act as a shield in cases where public good is threatened or
questioned.
In the case of Rural litigation and Entitlement Kendra v State of Uttar Pradesh, the Supreme Court
observed that the writ petition before them was not an inter-party dispute and the controversy in
it was whether mining was to be allowed or not. Thus it was a matter that decided the social
safety and providing hazardous free environment. It was further discussed by the court that this
matter was of grave public importance and therefore, res judicata could not be used as a shield.
Further in the case of Ramdas Nayak v Union of India, court observed that, by invoking re judicata,
it was high time for the court to end repetitive litigations coming under the grab of public interest
litigations.
In Slochana Amma v. Narayana Nair 1994, the court held, the doctrine of res judicata applies to
quasi-judicial proceedings before tribunals also.
In the case of Govindaswamy v. Kasturi Ammal 1998, it was held by the court that, the doctrine of
res judicata applies to the plaintiff as well as the defendant.
The court held in the case of Umayal Achi v MPM Ramanathan Chettiar that the correctness or
otherwise of a judicial decision has no bearing upon whether or not it operates as res judicata.
Applications of res judicata
The doctrine of res judicata can be invoked even in the subsequent stage of the same proceedings. In the
case of Y.B. Patil v. Y.L.Patil, the court held that once an order is made in the course of the proceedings, it
becomes final and therefore would be binding upon the parties at any subsequent stages of the same
proceedings.
This doctrine can also apply against co-defendants. In the case of Mahaboob Sahab v Syed Ismail, the
court held the following four conditions must be satisfied for the application of res judicata:
There must be a conflict of interest between the defendants concerned.
it must be necessary to decide such conflicts, in order to give relief to the plaintiff
The questions between the defendants to be finally decided.
Co-defendants to be necessary and proper parties to the suit.
Non-application of res judicata
Habeas corpus petitions: In the case of Sunil Dutt v Union of India, it was held that habeas corpus,
filed under fresh grounds and changed circumstances will not be barred by a previous such
petition.
Dismissal of writ petition in limine: In Pujari Bai v Madan Gopal, it was held res judicata not
applicable when dismissed in limine (without speaking orders) or on grounds of laches or
availability of alternate remedies.
of Sayed Mohammad v Musa Ummer.

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CPC 5th Semester
Public Interest Litigations: As said by SC in Rural Litigation and Entitlement Kendra vs. State of
Utter Pradesh, when the matter is of grave public importance the res judicata could not be used as
a shield.
When the judgment is influence by fraud and collusion, the judgment will not attract res judicata
as per Section 44 of the Indian Evidence Act, 1872 on grounds of fraud or collusion.
Conclusion: With the ever-increasing cases in the courts and the heightened burden on the courts
because of several frivolous and repetitive suits, it is inevitable that to ensure smooth functioning of the
judicial system as well as for providing justice to needy parties that these two doctrines are rigorously
implemented. These doctrines are not and must not be used for the purpose of avoidance of justice.
Rather, the purpose is to make the judiciary more efficient.
The doctrine of Res Sub Judice operates as a stay from the same subject matter in issue being parallel
instituted in two different Courts and the twin objectives of Section 10 CPC are:
Avoiding conflicting decisions and findings.
Avoiding wastage of Court resources and time.
The doctrine of Res Judicata, on the other hand, aims to ensure that a matter once closed after exhaustion
of all remedies is not re-opened. This is important as if it was not in place, the cases would go on in
perpetuity and there would be no conclusion in any matter.
Res Sub Judice is discussed in Section 10, CPC; while Res Judicata is discussed in Section 11, CPC.
Res Subjudice applies to the proceedings pending in the court, i.e., matters pending judicial
inquiry; while Res Judicata applies to matters already adjudicated upon.
Res Subjudice stays the latter suit instituted in the court which has the same matter directly and
substantially in issue in the previous suit; while Res Judicata bars the trial of a suit in which the
matter is directly and substantially in issue has already been adjudicated upon in a previous suit.
In the case of Res Subjudice, the previously instituted suit must be pending in the same court in
which the subsequent suit was brought or in a different court having jurisdiction to grant the relief
claimed; while in Res Judicata, No such requirement is needed.
3. Who can be joined as parties in a civil suit? (Parties to suit) and effect of non-joining of a necessary
party to a suit?
Answer: In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who is
sued, is necessary. In each case there are two categories; first one is the necessary party and the other is
proper party. A necessary party is one whose presence is indispensable to the constitution of the suit,
against whom the relief is sought and without whom no effective order can be passed. A proper party is
one in whose absence an effective order can be passed, but whose presence is necessary for a complete
and final decision on the question involved in the proceeding.
There are some example of the necessary party and proper party:-
Necessary parties:-
In a suit for partition, all sharers are necessary party,

In a suit for the declaration to set aside public auction, purchaser of property in a public auction is
a necessary party,
In an action against selection and appointment by an authority, candidates who are selected and
appointed are directly affected and, therefore, they are necessary parties.
Proper parties:-
In a suit for possession, by a landlord against his tenant, a sub-tenant is only a proper party,
In a suit for partition, by a son against their father, grandsons are proper parties to the suit,

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CPC 5th Semester
In a land acquisition proceedings, the local authority for whose benefit land in sought to be
acquired by the Government is a proper party.
One of the essentials of suit is parties and every suit must have two parties:
Plaintiff and
The defendant.
Joinder of Plaintiffs: Plaintiff is the person who brings an action at law by filing a declaration in the
common law procedure, or a complaint under code procedure.
According to Rule 1 of Order 1 of the Code of Civil Procedure, all persons may be joined in one suit
as plaintiffs where
a). any right to relief of , or arising out of, the same act or transaction or series of acts or transactions is
alleged to exist in such persons, whether jointly, severally or in the alternative, and
b). if such persons brought separate suits, any common question of law or fact would arise.
Where the interests of two plaintiffs are identical and not antagonistic they can sue joint.
All persons having a common cause of action are entitled to join as plaintiffs. But separate cause
of action in respect of several plaintiffs could not be joined. Similarly, persons who have
individual causes of action cannot join as plaintiffs.
Co-plaintiffs may also be joined so as to award relief to one or other of them.
Several persons having distinct shares in certain properties can join in a suit against in possession
under a deed of gift sought to be set aside.
Co-sharer landlords can sue tenants collectively even if they collect rent separately and the rent
refers to different periods.
All co-owners must join in a suit to recover their property.
A Hindu widow and her daughters can sue in one suit for maintenance and for the marriage
expenses of the daughters.
All members of a firm are proper parties to a suit on a pronote in favour of the firm when the
obligation on it was contracted.
Joint suit by two or more pre-emptors to exclude a stranger from entering the property, in
exercise of their right of pre-emption, is maintainable.
Misjoinder of Plaintiffs: Two or more persons may be joined as plaintiffs in one suit if the right to relief
alleged to exist in each plaintiff arises from the same act or transaction and there is a common question of
law or of fact. Where there are more plaintiffs than one, and they are joined together in one suit, but the
right to relief in respect of or arising out of the same act or transaction or series of acts or transactions
alleged to exist in such persons does not arise out of the same act or transaction and if separate suits were
brought, no common question of law or fact would arise, it is considered
Joinder of Defendants: Defendant is a person who is being accused or alleged in a civil action or who is
prosecuted in criminal action. According to Rule 3 of Order 1 of the Code of Civil Procedure, all persons
may be joined one suit as defendants where
a). any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
b). if separate suits were brought against such persons, any common question of law or fact would arise.
The plaintiff is not obliged to implead a person as a defendant in the suit, against whom no reliefs is
sought. The plaintiff cannot compel to implead unwanted and unnecessary parties who are neither
necessary nor proper parties for deciding the dispute in the suit. To bring a person as party-defendant is
not a substantive right but one of procedure and the court has discretion in its proper exercise.
The general principle regarding the joinder of defendants would seem to be that there must be a cause
of action in which all the defendants are more or less interested, although the relief asked against them
may vary; and separate causes of action against separate defendants cannot be joined in an action.

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CPC 5th Semester
Misjoinder of Defendants: Misjoinder of defendants takes place where two or more persons are joined as
defendants in one suit, but the right to relief alleged to exist against such of them does not arise from the
same act or transaction and there is no common question of law or of fact. A misjoinder of defendants
and causes of action takes place where in a suit there are two or more defendants and two or more causes
of action, but different causes of action have been joined against different defendants separately.
Effect of non-joining of a necessary party to a suit: In the absence of necessary parties, the court may
dismiss the suit, as it shall not be able to pass an effective decree. But a suit can never be dismissed due to
absence of non-necessary parties. The underlying logic is that the burden of providing relief should rest
upon all the defendants. It would be unfair if only some of the defendants had to discharge this burden.
Therefore, the plaintiff has to implead all those parties from whom he is claiming relief to the suit.
4. Counter claim and set off explain and distinguish.

Answer:
Counterclaim under Order 8, Rules 6A to 6G:
In every lawsuit, there is a plaint by the plaintiff and a written statement by the defendant. In the
written statement defendant can make a plea of set-off and counterclaim against the plaintiff.
A defendant in a lawsuit may, in addition to the right of pleading a set-off under Order 8 Rule 6,
claim a right of counterclaim against the plaintiff in his written statement.
Counterclaim means a claim made by the defendant in a suit against the plaintiff. It is a claim
independent of and separable from, the claim of the plaintiff which can be enforced by a cross-
action. Generally, it is a cause of action against the plaintiff but in favour of the defendant. It is
treated as plaint of the defendant against the plaintiff and governed by the rules applicable to the
plaints. A plaintiff may file a written statement against the counterclaim of the defendant.
Doctrine of Counterclaim explained: Defendant has a plea to defeat the relief sought by the plaintiff
against him is a counterclaim. Therefore, in addition to his right of set-off, a defendant in a suit may set up
a counterclaim. It may be set up only in respect of a claim for which the defendant is entitled to file a
separate suit.
The main objects of counterclaim are as follows:-
1. To save the time of the courts,
2. For avoiding the multiplicity of the suit,
3. For excluding the inconvenience to the parties to the litigation,
4. For deciding the all disputes between the same parties to avoid the multiplicity of the suit,
5. To avoid prolong trials, etc.
Definition of set-off under CPC, 1908:

Set off is the - -
claim which partly or wholly offsets the original claim. 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.
It is a plea in defence, available to the defendant. By adjustment, set-off either wipes out or reduces the
Under order 8 of the code a defendant files a written statement in reply of the plaint of the plaintiff, in
this if any situation arises where the plaintiff files a suit of recovery of money from the defendant, but at
same time defendant also has some debt on the plaintiff, in this case, the defendant may claim for the set
off the amount against the plaintiff recoverable by him. For the setting off the amount, the defendant has
to state the fact in the written statement led by him. Provisions regarding the set-off have defined under
Order 8 Rule 6 of CPC.
Set-off means a claim by the defendant against the plaintiff or a plea in defence available to the
defendant. It is a cross-claim between the parties to the suit regarding their recovery of money. It is the
destruction of the debts of which two persons are reciprocally debtors to one other. As the case may be

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CPC 5th Semester
where there are mutual debts between the parties (plaintiff and defendant), one debt may be settled
against the other.
Essential conditions for set-off:-

A defendant may claim a set-off if he satisfies the below conditions -
1. The suit must relate to recovery of money;
2. The sum of money must be ascertained or definite;
3. Above said sum must be recoverable legally;
4. The sum of money must be recoverable by the defendant or by all the defendants, in case of more than
one defendant;
5. It must be recoverable from the plaintiff by the defendant;
6. It must not exceed the pecuniary limits of the court in which the suit is brought;
7. Both the parties must fi -off, the same character as they fill in the
plainti suit;
Examples of Set-off:
A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1000. The two
claims being both definite, pecuniary demands may be set off.
A sues B for compensation on account of trespass. B holds a promissory note for Rs. 1,000
from A and claims to set off that amount against any sum that A may recover in the suit. B may
do so, for as soon as A recovers, both sums are definite pecuniary demands.
Effect of set-off:-
In the claim of set-off, there are two suits, one by the plaintiff, and the other by the defendant against the
plaintiff, they are tried together, no separate suit is necessary. In such a case, when the defendant claims
set-off, he will stand in the position of the plaintiff in regarding to the amount claimed by him. In such a
case, if the plaintiff t is dismissed for default, or he withdraws his suit, etc. it
does not affect the claim of the defendant for set-off and a decree may be passed by the court in favour of
the defendant if he is able to prove his claim.
At last, we can say about the set-off, that it is the extinction of debts of which two persons are
reciprocally debtor to one another. For example; if a person A sues B for Rs. 2000, B claims for Rs. 1000
against the A , and here two claims may be set-off, it is an extinction of the debt of the one person
against the other (Rs 1000).
The distinction between set-off and counter-claim may now be noted:

1. Set off is been defined in rule 6 order 8 of CPC whereas counterclaim is been defined in 6A-6G of
order 8.
2. Set off has 2 types, one is equitable set-off and other is legal set off. Counterclaim has no such
classification.
3. Set- -
action.
4. Set-off must be for an ascertained sum or must arise
claim. A counter-claim need not arise out of the same transaction.
5. Set-off is a statutory ground of defence and has to be pleaded in the written statement. It can be
sued as a shield and not as a sword. Counter-claim, on the other hand, does not afford any
his claim against the plaintiff as effectually as in an independent action. It is a sort of cross-action.
6. If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to establish his
plea has to prove that set-off was barred when the plaintiff commenced the action. It is not
enough to prove that it was barred at the time when it was pleaded. In the case of a counter-
claim, it is enough for the plaintiff to prove that the counter-claim was barred when it was
pleaded.

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CPC 5th Semester
7. An equitable set-off is a claim by the defendant in defence, which generally cannot exceed the
-
in nature of the cross action. Under the provision rule 6-F of Order 6, if in any suit a set off or
counter claim is established as a defence against plaintiffs claim and any balance is found due to
the defendant as the case may be the court may give judgment to the party entitled to such
balance.
5. What is Plaint? Essentials of Plaint, Differentiate between return and rejection of plaint.
Answer: A plaint is
is the first step towards the initiation of a suit. In fact, in the very plaint, the contents of the civil suit are
laid out.
Through such a plaint, the grievances of the plaintiff are spelled out, as well as the possible causes of
action that can arise out of the suit. A plaint which is presented to a civil court of appropriate jurisdiction
contains everything, including facts to relief that the plaintiff expects to obtain.
which outlines the essentials of a suit, and sets the legal wheels up and running.
Order VII of the CPC particularly deals with a plaint. A few of the essentials of a plaint implicit in it are
those only material facts, and not all facts or the law as such is to be stated, the facts should be concise
and precise, and no evidence should be mentioned.
Essentials of Plaint: Order 7 rule 1-8 defines the essentials of plaint as follows:-
1. Plaint should contain name of that court in which suit is brought.
2. Plaint should contain name, description and residence of plaintiff.
3. Plaint should contain name, description and residence of defendant.
4. When plaintiff or defendant is minor or person of unsound mind, plaint should contain a
statement to that effect.
5. Plaint should contain those facts, which have constituted cause of action. In addition to this, it
should also be described in plaint when cause of action has arisen.
6. Plaint should contain those facts, which show the court has jurisdiction.
7. Plaint should contain that relief, which plaintiff claims.
8. When plaintiff has allowed set off or has relinquished a portion of his claim, plaint should contain
that amount, which has been so allowed or so relinquished.
9. Plaint should contain statement of value of subject-matter of suit not only for purpose of
jurisdiction, but also for purpose of court-fees.
10. h.
Return of Plaint by the Court

The CPC empowers the civil courts to return the plaint to the plaintiff if the court believes that the plaint is
not properly filed. Return is different from rejection and it needs to be noted. Return of plaint does not
connote that the plaint had mistaken or that the rules for drafting the plaint were not conformed to.
It simply means that the court is not empowered to try the suit for which the plaint is filed. On the
contrary, the plaint is rejected if the essential requirements of a plaint are not provided in the plaint or if
the certain elements are vague and ambiguous.
Grounds for Return of Plaint
According to Order 7 Rule 10(1) of CPC, a plaint is returned on the sole ground of lack of jurisdiction with
the concerned court.
For instance, a plaint is filed in the city civil court by A against his employer for unlawful
retrenchment from a job. Since there are specific labour courts to deal with these cases, the city
civil court does not have the jurisdiction to adjudge and hence, plaint can be returned by the
court. Under this rule, the court can return the plaint for lack of jurisdiction but the plaintiff has
every right to file the plaint again in the appropriate forum.

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CPC 5th Semester
Rejection of Plaint by the Court

Order 7 Rule 1 lays down the contents of a plaint and some of these contents cannot be missed by the
pleader. If such content is missed, the court is empowered to reject the plaint and the plaintiff has to
resubmit the plaint after making necessary modifications. Rejection, however, is not the first option
before the court.
Law is not to humiliate the victim; it is to give an opportunity to a vigilante and bona fide victim to
claim remedies. Therefore, CPC allows amendment of the plaint at any time before the judgment is passed
so that the court does not have to reject the plaint.
Grounds for Rejection
Order 7 Rule 11 lays down the specific grounds for rejection of the plaint. There are six grounds for which
a plaint can be rejected under this provision and they are as follows:
1. When the plaintiff has omitted or abstained from unveiling the cause of action, i.e. the overt act or
omission by the defendant that led the plaintiff to file this suit.
2. When the plaintiff has intentionally or unintentionally undervalued the plaint. Undervaluation
means showing that the value of a property is less so that the valuation of the suit is at a lesser
amount and the court can exercise jurisdiction on the matter which, otherwise, could not have
exercised if the suit was correctly valued.
3. Under the Stamps Act, every legal document is required to be drafted on a stamp paper of the
requisite value which depends on several factors such as nature of the document (whether it is
plaint, rent agreement, etc.), valuation of the suit, etc. If it is not filed on the stamp paper of the
value specified by law, the court may ask the plaintiff to submit the stamp paper and if he fails to
do that, it can be rejected.
4. When the filing of the suit is barred by law and it is evident from the statement of the plaint, the
court shall reject the plaint. For instance, under the Insolvency and Bankruptcy Code, 2016, when
a company is unable to pay its debts, its creditors can initiate an insolvency process. It means the
company is given time to revive, make profits and repay its creditors. This period is called
moratorium and under Section 13 of the Code, every suit is barred against the company during the
period of moratorium.
5. It is required to be filed in duplicate. It means the plaintiff has to file two copies of the plaint, one
for the court and other for the defendant. If the plaintiff has not filed the plaint in duplicate, the
court is empowered to reject it.
6. Order 7 Rule 9(1) requires that the plaintiff submits as many copies as the court asks for to be
submitted to the defendants. It is usually the number of copies as there is the number of
defendants and such copies have to be submitted. If the plaintiff fails to submit the required
number of copies of the plaint, it becomes a ground for rejection of the plaint.
7. Order 7 Rule 9(1A) requires that the plaintiff submits the requisite fees that will be incurred by the
court to serve the summons to the defendants. In a criminal case, the summons is served at the
cost of the state. However, in a civil suit, the fees need to be paid by the plaintiff. If such payment
is not made within 7 days from the date of order of payment, the plaint is liable to be rejected.
Differences between rejection and return:
1. Difference as to modes: Rejection of plaint can be on application or Suo Moto, Return of plaint is
always on Suo Moto
2. Difference as to second appeal: In case of rejection of plaint second appeal can be filed whereas,
Second appeal is not allowed where plaint is returned under order vii rule 10.
3. Difference as to decree: Order rejecting plaint amounts to a decree and Order returning a plaint is
not a decree.
4. Difference as to revision: Where plaint is rejected revision cannot be filed and Revision can be filed
in case of a plaint is returned.
5. Difference as to nature: Order of rejection of plaint is not exhausted in nature and Order of return
of plaint is an exhausted in nature.

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CPC 5th Semester
6. Written Statement.
Answer: Introduction
In legal dictionary, the word written statement means a pleading for defence.
And it is a term of specific connotation ordinarily signifying a reply to the plaint which is filed by
the plaintiff.
In other words, a written statement is the pleading of the defendant wherein he deals with every
material fact alleged by the plaintiff along with any new facts in his favour or that takes legal
objections against the claim of the plaintiff.
Who may file written statement?
A written statement may be filed by the defendant or his authorized agent. In case of more than one
defendant, the common written statement filed by them must be signed by all of them.
Time limit for filing written statement:
A written statement should be filed within 30 days from the service of the summons on him. The said
period, however, can be extended up to 90 days (Rule 1). A defendant should file a written statement of
his defence in the said period.
6. Modes of Execution of a Decree.

Answer: Introduction:
When a person obtains a decree from a court of law against another person, his next step is to get
the decree satisfied. The proceeding by which he moves the court for satisfaction of decree is called
execution proceedings. There are various modes under C.P.C by which a decree can be executed.
ned in the code. The expression
process for enforcing or giving effect to the judgment of the court. The principles governing execution of
decree and orders are dealt with in Sections 36 to 74 and Order 21 of the Civil Procedure Code.
Meaning:
Definition:
According to Oxford Dictionary Execution is the enforcement of the decree and orders by
the process of court, so as to enable the decree holder to recover the fruits of the judgment.
Execution means the process by which a decree is adjusted or satisfied.
Relevant Provisions:
Sections 36 74 and order 21 of the C.P.C are the relevant provisions to the concerned topic.
Modes of Execution of Decree: Following are the different modes of execution of a decree.
Decree for Payment of Money: According to Order 21 R
payment of money, including a decree for the payment of money as the alternative to some other
relief, may be executed,
o By detention in the Civil Prison of the judgment Debtor or,
o By the attachment and sale of his property, or
o By both.
Decree for Specific Movable Property: According to Order 21 Rule 31 Sub R
the decree is for any specific movable or for any share in specific movable property, it may be
executed,
o By the seizure if practicable, of movable or share and
o By the delivery thereof to the party to whom it has been adjudged, or as to such person as
he appoints to receive delivery on his behalf, or

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CPC 5th Semester
o By the detention in the Civil Prison of the Judgment Debtor, or

o By the Attachment of this property, or
o By both (Prison & attachment of Property)
Decree for specific performance or restitution of conjugal rights or for an injunction: According to
Order 21 Rule 32
of a contract, or for restitution of conjugal rights or for an injunction, stay has been passed, has
had an opportunity of obeying the decree and if he has wilfully failed to obey it, the decree may
be enforced, in the case of a decree for restitution of conjugal rights,
o By the attachment of his property, or in the case of a decree for specific performance of a
contract or for an injunction.
o By his detention in Civil Prison, or
o By the attachment of his property, or
o By both
Decree for Immovable Property:
According to Order 21 Rule 35 Sub-rule-
property, possession, thereof shall be delivered to the party to whom it has been adjudged, or to such
person as he may appoint to receive delivery on his behalf and if necessary,
o By removing / dispossessing any person bound by the decree who refuses to vacate the property.
Power of Court to enforce Execution:
The provisions of Section 51 of C.P.C, enumerates in general terms the various modes, in which the
court may in its discretion order the execution of a decree according as the nature of the relief granted
may require. This section states generally the powers of the court in regard to the execution of decree
leaving the detail to be determined by the rules.
Section 51 of C.P.C:
Section 51 of the C.P.C lays down the court may on the application of decree holder subject to such
conditions and limitation as may be prescribed, the court may on the application of the decree holder
order execution of the decree.
o By delivery of any property specifically decreed.
o By attachment and sale or by sale without attachment of any property.
o By arrest and detention in prison.
o By appointing a receiver.
o In such other manner as the nature of the relief granted may require.
Court by which decree may be executed:
According to Section 38 of C.P.C, a decree may be executed either by the court which passed it, or
by the court to which it is sent for execution.
What decrees may be executed:
o The decree of a court against which no appeal has been made shall be executed after expiry of
the limitation period.
o Where a decree is reversed, modified on appeal, the only decree capable of the execution is the
appellate decree, but exceptionally where the appellate judgment simply dismisses the appeal.
General rule that the appellate decree alone is to be executed, does not apply and the court
should look at the later decree for the information of its contents.
Conclusion:
In the conclusion we can say that execution means the process by which a decree is adjusted or
satisfied. Decrees can be executed by various modes. Decree for payment of money can be executed by
the detention in the civil prison of the judgment debtor, or by attachment and sale of his property or by
both. Similarly various decrees i.e. decree for specific movable property, for specific performance, for
execution of document, for immovable property can also be executed by above explained modes.
6. Filing E.P for attachment and sale of property and arrest (arrest and detention).
Properties which can be attached / can't be attached by a Civil Court under CPC

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CPC 5th Semester
Answer:
A civil suit is instituted against an individual who causes some kind of harm or wrongful act to the
plaintiff. Usually, in a civil suit compensation is awarded to the complainant, the person who suffered
harm because of the action of the defendant. Hence, a civil lawsuit can be brought over a residential
eviction after a broken lease, a contract dispute, injuries caused due to car accidents, or countless other
harms or disputes. The main objective of instituting a civil suit is to compensate for the harm caused to
the aggrieved, unlike the criminal suit which emphasizes punishment for the wrongdoer.
There are three stages of every civil suit. It starts with the institution of a suit, adjudication of a suit and
finally the implementation of a suit. The implementation of the suit is a step in which the results of the
adjudication are put into action, hence this stage is known as execution. In this process, the order or
judgment passed by the court is enforced or given effect. It is the enforcement of the decree and gives the
benefit to the decree-holder in whose favour the decree has been passed. Section 38 of CPC states as to
who can execute the decree. A decree may be executed either by the court which passed it, or by the
Court to which it is sent for execution. Section 37 gives further explanation of certain expressions. In a
proceeding for the arrest of Judgment Debtor, if the Decree Holder satisfies the Court that the Judgment
Debtor has sufficient means to satisfy the decree, the Court cannot refuse to order arrest, on the ground
that there is an alternative remedy of attachment available to the Decree Holder for realization of the
decretal amount.
The Code of Civil Procedure, 1908 provides various modes of execution of a decree subject to some
conditions and limitations: Section 51 of CPC provides the following modes of execution of decrees subject
to such conditions and limitations as may be prescribed.
(a) By delivery of any property specifically decreed;

(b) By attachment and sale or by the sale without attachment of any property;
(c) By arrest and detention in prison for such period not exceeding the period;
(d) By appointing a receiver;
(e) In such other manner as the nature of the relief granted may require.
Attachment of property is one of the modes of execution applied by the court of justice. An executing
court is competent to attach the property if it is situated within the jurisdiction of the court. The place
where a judgment debtor carries out his business is not relevant.
Nature, Scope and Objective
Attachment of property is one of the modes of execution of a decree in a civil suit. In a decree, the court
may require a person (defendant) to pay the required amount to the decree-holder. In cases where the
defendant fails to pay the required sum, the court can, in the execution of its decree, attach the movable
and immovable property of the defendant and recover the amount which is due by the disposal of these
assets. However, there are some assets which cannot be attached to recover the due amount.
Property which can be attached
Attachment is a legal term which refers to the action of seizing property in anticipation of a favourable
ruling for a plaintiff who claims to owed money by the defendant. Decree Holder is Dominus litis (person
to whom the suit belongs) and he has the right to choose the mode of execution from those available to
him. Neither the Court nor the Judgment debtor can force or persuade him to choose a particular mode of
execution. This can be referred from the case V. Dharmavenamma v. C. Subrahmanyam Mandadi.
In the process of attachment, the court at the request of the decree-holder designates specific property
owned by the debtor to be transferred to the creditor or sold for the benefit of the creditor. Sections 60 to
64 and Rules 41-57 of Order 21 of CPC 1908, deals with the matter of attachment of property.
Section 60 of CPC, 1908 describes the property which can and cannot be attached while execution.
Several types of property are liable for attachment and sale in execution of a decree like lands, houses or
other buildings, goods, money, banknotes, cheques, bills of exchange, hundis, government securities,
bonds or other securities etc., and things on which he has a disposing power. There is express mention of
particulars which shall not be liable for attachment or sale. The decree as mentioned in this section is only

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CPC 5th Semester
a money decree and it does not include a mortgage decree. Therefore, it is important that the property
not only belongs to the judgment-debtor but also he has disposing power on it.
In M. Balarajan vs. M. Narasamma, it was held that the said house of the Judgment-debtor was liable to
be sold for execution of the decree as his contention of agricultural produce was declined.
Section 61 grants partial exemption to agricultural produce- The state Government may by general or
special order published in the Official Gazette declare any piece of agricultural land for the purpose until
next harvest season for the due cultivation of land and support of the Judgment-debtor and his family,
exempt that property from being attached or sold in execution of the decree.
Section 62 talks about seizure of property in case of dwelling house. No person executing under the
code will enter the premises of a dwelling house after sunset and before sunrise. No door of such dwelling
house can be broken without the knowledge of the Judgment-debtor. Where a woman resides in such
house and she is not allowed to appear in public. The person executing has to give her a notice to be at
liberty to withdraw and also reasonable time to do the same. Once she withdraws he has the power to
enter the premises.
Section 63 says that where the property attached in execution of decree is going on in several courts
then the final decision of the court of higher grade prevails and where the court are at same grades then
the court where the case of attachment came first will hold a higher value.
Property which cannot be attached
Some kind of property which cannot be attached and sold in execution of a decree is expressly mentioned
in Section 60 of the Code of Civil Procedure. They are particulars like wearing apparel, cooking vessels,
beds, tools of artisans, books of accounts, any right of personal service, wife and children, stipends and
gratuities allowed to pensioners of the Government etc. and many more.
When arrest and detention may be ordered?

Under Section 51(c) of CPC, it is given that when a decree-holder moves the court for executing a decree,
the court can execute such decree by the arrest and detention of the judgment debtor.
1. Under Rule 30, a decree for the payment of money can be executed by the arrest and detention of
the judgment debtor.
2. Under Rule 31, where the decree is for a specific moveable party, it can be executed by the arrest
and detention of the judgment debtor.
3. Under Rule 32, where the decree is for specific performance of the contract or an injunction, the
court can execute the decree by arrest and detention of the judgment debtor.
Who cannot be arrested?
There are certain classes of persons that are exempted from arrest and detention under the various
provisions of CPC. Such persons include:
1. Women, as per Section 56,
2. Judicial officers, as per Section 135(1),
3. Where a matter is pending, their pleaders, mukhtars, revenue-agents, and witnesses acting in
obedience to a summons, under Section 135(2),
4. Members of legislatures, as per Section 135A,
5. Classes of persons, whose arrest according to the State Government, might be attended with danger
or inconvenience to the public, under Section 55(2), and
6. Where the decretal amount is less than two thousand rupees, under section 58(1A).
Conclusion: In a civil suit, the decree-holder has the benefit of deciding the mode of execution of a decree
passed by the court as against the judgment-debtor. The judgment-creditor can choose from the various
provisions mentioned in the Code. He cannot be forced or persuaded to choose a particular mode by the
court or any other person. Attachment is the first step in the process of execution and sale of the property
will be carried out after the process of attachment. Sometimes, the sale can be proceeded with, without
an attachment of the property as well. This does not make the sale irregular in nature. But naturally, the
correct procedure to be followed is attachment followed by the sale of the property.

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CPC 5th Semester
Attachment of Property, being one of the modes of execution of a decree recognises the right of the
decree-holder. Various amendments have been carried out in the Code to protect the interest of both
Judgment-debtor and judgment-creditor.
8. Kinds of Appeals (V.Imp. Appeal against Appellate Decree / Second appeal).

a dispute. This application of mind is made by the judge, who hears the case. A judge, though trained to
decide such disputes while applying the correct law and expounding it to fit into the facts, is ultimately a
the human being, it is not immune to errors or mistakes. These errors can only be checked by way of
giving the right of appeals to the parties to the suit. This point outs
vitality of its proper functioning for a judicial system to survive.
Who may appeal?
An appeal can be filed by any of the following persons having a legal grievance against a decision:
1. Any party to the suit adversely affected by the decree, or, if such party is dead, by his legal
representative,
2. Any transferee of the interest of such party, who, so far as such interest is concerned is bound by
the decree, provided his name is entered on the record of the suit.
3. An auction-purchaser may appeal from an order in execution setting aside the sale on the ground
of fraud.
Kinds of Appeal: Appeals can be divided into following four classes according to the provisions of the
Code of Civil procedure.
1. Appeals from original decrees,
2. Appeals from appellate decrees (Second Appeals),
3. Appeals from Orders, and
4. Appeals to the Supreme Court (Article 132).
1. Appeal from Original Decree

Section 96 of the Code provides that the first way of challenging the decree, passed by a court exercising
decisions
of such court. It also provides that, an appeal may lie from an original decree passed ex parte, i.e., without
hearing the other party. No appeal will lie from a decree passed by the Court with the consent of parties.
This kind of appeal is -
examine and re-appreciate the evidence, in the first appeal. The right to institute the suit is an inherent
right, but the right of appeal is statutory. (Baldev Singh v. Surendra Mohan Sharma, AIR 2003 SC 225).
Time Limit for Appeal: Appeal to High Court is 90 days and appeal to any other court is 30 days, from the
date of decree or order.
2. Appeals from Appellate Decrees/Second Appeal
Section 100-103 and 108 of CPC deals with the second appeal. This part of the code contains provisions
clearly denotes, it is an appeal filed against the order of an appellate court. Second here denotes the
number of appeals, in laymen terminology. Section 100 provides that an appeal shall lie to the High Court
from every decree passed in appeal by any Court subordinate to the High Court if the High Court is
satisfied that the case involves a substantial question of law. It must be noted that second appeal only lies
on the substantial question of law, not on the question of facts.
In State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594, the Supreme Court explained the term
intended to refer only to questions of law of general importance, but refers to impact or effect of the
question of law on the decision in the lies

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CPC 5th Semester
Substantial question of law means not only substantial questions of law of general importance but
Any question of law which
affects the final decision in a case is a substantial question of law as between the parties. A question of
law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a
The jurisdiction of the High Court is now confined to entertain only such appeals as involve a
substantial question of law set out in the memorandum of appeal and formulated by the High Court.
Time Limit: Time limit to file an appeal to High Court is 90 days from the date of decree or order.
3. Appeals from Orders:
It is a general rule created under the Code that only decrees are appealable and orders are non-
appealable. However, there can be circumstances where an order can largely affect the rights of the
parties to a suit and therefore, Section 104 was enacted to provide a list of orders from which an appeal
lies.
4. Appeals to the Supreme Court:
Article 132 provides for an appeal to the Supreme Court of any judgment, order or decree from civil or
criminal cases or any other proceedings. Supreme Court is the topmost forum in the hierarchy of the
Court. It is primarily the Court of appeal. It is the highest forum for appeal in the country. The power of
appellate jurisdiction is given to the Supreme Court, by the Indian Constitution under Article 132, 133, 134,
134A.
9. Inter pleader suits.

Section 88 and order XXXV of the Civil Procedure Code 1908 deals with the provision of interpleader suit.
The interpleader suit is suits in which several claimants who are claiming the property against each other.
In such type of suit the matter in dispute is the title to the movable or immovable property or money
which is claimed by two or more persons against each other. The main object of an interpleader suit is to
get claims of revel dependent and dedicated.
For example
"A" dies leaving behind one crore rupees cash in a bank account. He had two wives and their children.
Both claim to recover the said amount. In order to have genuine claimant, owner, the banker shall file a
suit before the court and will get the order about the real owners.
Meaning and definition of interpleader suit

Dictionary meaning of Interplead is to go to trial with each other in order to determine a right on which
the action of a third party depends. It is a civil procedure that allows a plaintiff or a defendant to initiate a
lawsuit in order to compel two or more other parties to litigate a dispute
Where interpleader suit may be reinstituted (Section 88 of CPC)

Where two or more persons claim adversely to one another the same debts, sum of money or other
property, movable or immovable, from another person, who claims no interest therein other than for
charges or costs and who is ready to pay or deliver it to the rightful claimant such other person may
institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the
person to whom the payment or delivery shall be made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all parties can properly be decided, no
such suit of interpleader shall be instituted.
Object of interpleader suit -

The main object of filing an interpleader suit is to get claims of rival dependents adjudicated.
Conditions
a. There must be debt, sum of money or other movable or immovable property in dispute

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CPC 5th Semester
b. There must be two or more persons claiming it adversely to one another

c. All defendants can claim each other for the property or money.
d. The person from whom such debt, money or movable or immovable property is claimed must not
be claiming interest therein other than charges and cost and he must be ready and willing to pay
or deliver it to the rightful claimant.
e. There must be no suit pending on same subject.
f. This suit cannot be filed twice if the judgment is given in Res judicata.
Who cannot file interpleader suit - (Order XXXL Rule 5)

An agent cannot sue his principal or a tenant his landlord for the purpose of compelling them to
interplead with persons other than persons claiming through such principles or landlords.
10. Review and Revision.

Answer: Review:
Section 114 of Civil Procedure Code defines the provision of review. In case of review, the party who is not
happy or aggrieved with the order of the court can file an application for review in the same court which
has passed the decree. This provision has been made so as to facilitate the court to review their own
decree or judgment and rectify the same in case any error has been made while passing the judgment.
It was held in case of Ram Baksh v. Rajeshwari Kunwar, AIR 1948 AII 213 that the option of review is
still there even if the appeal has been dismissed on any ground.
Order 47 of the CPC defines the procedure to be followed in case of review. In the following situation,
the application for review can be filed by the parties:
1. The decree or judgment is appealable however; no appeal has been preferred under the law.
2. In case of no provision for appeal has been mentioned in the law for certain decree or judgment.
3. The Court of Small Causes has passed the decision.
Object: Any human being can make a mistake or error and so do the judges. So, the procedure of Review
has been embedded in the legal system to correct the mistakes and prevent any miscarriage of justice as
held in the case of S.Nagraj v. State of Karnataka. The review application is not an appeal or revision
made to the superior court, but it is a request to recall and reconsider the decision made before the same
court.
The law defines certain grounds on which application for review can be filed:
1. Where there are new discoveries of the facts, which were not in knowledge or could not produce
at the time of passing of decree due to ignorance.
2. In case, the error is found on the face of the record and does not require the argument of the
entire case again. These errors are not related to wrong decisions made by the court.
3. Any other case, in which case the delusion of the court can be considered as sufficient ground.
The Apex court in the case of S. Nagraj & Ors. V. State of Karnataka & Anr., 1993 Supp SCC 595 held that
any other sufficient ground has an expanded meaning. An order passed in case of misinterpretation of the
true facts can be considered as sufficient ground.
Time limit: Section 124 of Limitation Act provided that once the decree or order is passed, parties shall file
the application within 30 days from the date of passing such decree. The decree or order which is passed
after review shall be final and binding to the parties. It is important to note that the entertaining the
application filed by parties for review is at the discretion of the court. Court can either entertain or reject
the application. In case, the court does not find any sufficient ground to entertain an application, it can
reject the same.
As defined in the law, even the Supreme Court can review its judgment under Article 137 of the
Constitution of India.

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CPC 5th Semester
Revision
empowered with the

revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908.
Object: The object behind empowering the High Court with revisional jurisdiction is to prevent arbitrary,
illegal or irregular exercise of jurisdiction by the subordinate court. Under Section 115 the High Court is
empowered to keep an eye on the proceedings of subordinate courts that the proceedings are being
conducted in accordance with the law, under its jurisdiction for which it is bound for and in furtherance of
justice as held in the case of Major S.S Khanna v. Brig. F.J. Dillion.
But, the judges of the subordinate courts have absolute jurisdiction to decide a case and even when
revision, the High Court can correct the jurisdictional error when committed by the subordinate court. The
provision of revision provides an opportunity to the aggrieved party to get their non-appealable orders
rectified.
Conditions: Section 115 of the Code of Civil Procedure Code lays down all the conditions when the High
Court can exercise its revisional jurisdiction:
1. The case must be decided.
2. The revisional jurisdiction is exercised when no appeal lies in the case decided by the subordinate
court.
3. The subordinate court has decided such case by:
Exercise of jurisdiction which is not vested to that court by law, or
It has failed to exercise the vested jurisdiction, or
Illegal exercise of the vested power or with immaterial irregularity.
The High Court is not entitled to vary or reverse the order or decision of the subordinate court unless
such order is in favour of the party who has applied for revision. Also, the revisional jurisdiction is not to
be exercised if in that matter appeal lies to the High Court.
So, by analysing Section 115, we can observe that the revision is done mainly on jurisdictional errors by
the subordinate Courts.
11. Grounds for extension of period of limitation? Describe condonation, when does the condonation
comes to an end? (Section 5).
Answer: Law of Limitation in India
The word limitation itself says the meaning. The word limitation in its literal term means a restriction or
the rule or circumstances which are limited. The law of limitation has been prescribed the time limit which
is given for different suits to the aggrieved person within which they can approach the court for redress or
justice.
The basic concept of limitation is relating to fixing or prescribing of the time period for barring legal
the period of limitation computed in accordance with the provisions of this Act.
The Law of Limitation signifies to prevent from the last date for different legal actions which can take
place against an aggrieved person and to advance the suit and seek remedy or righteous before the court.
Where a suit is initiated after the bar of limitation, it will be hit by the law of limitation. The main and the
fundamental aim of the law of limitation are to protect the lengthy process of penalizing a person
indirectly without doing any offence.
According to the provisions provided under the act, it is the litigation which is initiated, the Appeal
which is entertained and the request which are made after the specified term which shall be dismissed
even though the limitation is not raised as a defence.

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CPC 5th Semester
When a court is closed on the expiry date for filing any suit or which may be initiated on the reopening
day of the court. An appeal or application shall be admitted by the court after the specified period if the
litigant convinces to the court by showing adequate cause for the failure to prepare a pill application
within the specified period then the court can admit his appeal or application. It is the duty of a litigant to
give appropriate cause for his failure for the filling of a suit, appeal or application. Beside all this, it is the
act which provides that where a person who is having an authority to file any suit or to make any request
for the execution of defence who is a minor or insane or an idiot during the specified time of filing is to be
considered. He may be initiated to file a suit or application which shall be filed within the same time after
his disability has come to an end, or at the time during which the specified term is to be considered she
may initiate the legal actions or applications within the same term after both in capacities of disabilities of
his have come to an end. Where else if the incapacity or disability continues of that person till his death,
then the act rest the authorities of that person on the legal representatives to initiate the legal actions or
make any application after his death within the same period.
Grounds for extension of period of limitation:
Section 5 of the Limitation Act provides that any appeal or any application other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the
prescribed period if the appellant satisfies the Court that he had sufficient cause for not preferring the
appeal or making the application within such period.
It is the duty of the Court to record the reasons for extending the time under this section.
In the matter of condonation of delay in extension of prescribed period, the duration of delay is
insignificant. The Court has to take into account whether there is acceptable explanation or pardonable
explanation as sufficient cause for not preferring an appeal. Court has no power to extend the period of
limitation on equitable grounds.
Section 5 of the Limitation Act provides that an appeal may be admitted after the prescribed period if
the appellant satisfies the Court that he had sufficient cause for not preferring it within the limitation.
Illustrations of sufficient cause for extension of limitation: Based on different judgments, the following
are the grounds to condone delay under sufficient cause.
1. Illness of the party may said to be a good excuse for delay in the presentation of an appeal.
2. Legal disability: If a person was disabled (as he was minor or insane), the period of limitation will
start after the disability is removed. [Section 6(1)].
3. Illness of his wife and sister-in-law is sufficient cause under the exceptional circumstances.
4. Remained confined under medical advice, to bed being a patient of heart disease is sufficient
cause for condonation of delay in appeal.
5. Prevention of the appellant from filing the appeal on account of her having had abortion and
consequent haemorrhage is sufficient cause to condone the delay in appeal.
6. Delay due to accident was accepted as sufficient cause.
7. Delay due to non-supply of information to party by counsel in ex parte decree is sufficient cause
for condonation of delay.
8. Delay in getting certified copy of the judgment and decree is sufficient cause to condone the delay
in appeal.
9. Exigencies of military service are considered as sufficient cause.
10. The imprisonment of a party may constitute a sufficient cause for excusing delay in preferring an
appeal.
11. Mistake by a lawyer not due to negligence is a good ground for condoning the delay.
12. Mistake of Court is sufficient cause to condone the delay.
13. Pendency of writ petition before Apex Court is sufficient ground for condoning the delay in
availing of those remedies.
14. Poverty, backwardness, illness are sufficient causes for condonation of delay.
Illustrations of not sufficient causes:

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CPC 5th Semester
1. Absence of plea of wrong advice in lower court is not sufficient cause to condone the delay.
2. Absence of counsel is not a sufficient cause.
3. Ignorance of law is not sufficient cause.
4. The business of a party in itself is not a sufficient ground to condone the delay in appeal.
5. Correspondence not sufficient to condone of delay.
6. Delay on part of State Government due to lack of fund cannot be considered as sufficient cause.
7. Every negligence or inaction or mistake on the part of an advocate does not constitute sufficient
cause.
8. Failure to apply for copy before the commencement of the vacation cannot be considered to be a
sufficient ground to excuse the delay.
9. Illiteracy by itself is not a ground for condonation of delay.
10. Lack of reasonable skill of legal practitioner is not sufficient cause.
11. Late discovery of evidence is not sufficient cause.
IMPORTANT CASES
12. Place of Suing:
resident of
(Jan-2015).
B.
ch place the suit can be filed? (Dec-2015).
Issue:
Where the suit should be filed?
Answer: The suit can be filed at the place of the defendant or where the cause of action arises.
Rule:
CPC Section 19: Suits for compensation for wrongs to person or movables.
Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was
done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on
business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit
may be instituted at the option of the plaintiff in either of the said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or
in Delhi.
Section 20 of the Code of Civil Procedure: Other suits to be instituted where defendants reside or cause
of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose
jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for
gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such
case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or
personally works for gain, as aforesaid, acquiesce in such institution; or
(c)The cause of action, wholly or in part, arises.
Explanation-- A Corporation shall be deemed to carry on business at its sole or principal office in India or,
in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
Illustrations

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CPC 5th Semester
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A
and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in
Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or
in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benaras, B and C make a
joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the
cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but
in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of
the Court.
Application:
The position with respect to the institution of the trade mark infringement suit under the provisions of the
Burger King Corporation vs Techchand Shewakramani & Ors, where the issue that came up for
consideration of their lordship was with respect to the entertainment of the suit under Section 20 of the
Civil Procedure Code and Section 134 of the Trade Mark Act, where there is no credible and strong
apprehension at the time of filing of the suit and cause of action is quia timet cause of action passed on an
imminent lounge of franchise by the Defendants in Delhi.
In this case, the court rightly held that Section 134 of the Trade Mark and Section 62 of the Copyright Act
are in addition to and not exclusion of Section 20 of the CPC so far as jurisdictional forums are concerned,
and if the plaintiff is successful in making out the cause of action within the jurisdiction of the court under
Section 20 of the CPC, he is not required to make reference to Section 134 of the Trade Mark Act.
Conclusion:
Case A: In the given case the plaintiff can file the case where the defendant is residing i.e. at
Bangalore or at the place of cause of action i.e. at Hyderabad.
Case B: In this case the defamatory statements are made in Hyderabad and the case can be filed
13. Jurisdiction:
A. A suit for maintenance is filed in the Ju -2015).
-
instrument. Is the suit maintainable? (May 2019 and May - 2016).
Issue:
cases like maintenance, adoptions, divorce etc. are dealt in Family Courts (under Subject Matter
Jurisdiction).
Case: Can a suit for recov
to deal up to 20 lakhs of amount under pecuniary jurisdiction.
Rule:
As per Section 16 of the TELANGANA CIVIL COURTS ACT, 1972.
(1) The pecuniary jurisdiction of a District Judge, shall subject to the provisions of the Code of Civil
Procedure, 1908 and the other provisions of this Act, extend to all original suits and proceedings of a Civil
nature including Land Acquisition original petitions, the amount or value of the subject matter of which
exceeds rupees fifty lakhs.
(2) The pecuniary jurisdiction of a Senior Civil Judge shall extend to all like suits and proceedings of a Civil
nature including Land Acquisition original petitions not otherwise exempted from his cognizance under
any other law for the time being in force, the amount or value of the subject matter of which exceeds
rupees twenty lakhs but does not exceed rupees fifty lakhs.

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CPC 5th Semester
(3) The pecuniary jurisdiction of Junior Civil Judge shall extend to all like suits and proceedings, not
otherwise exempted from his cognizance under any other law for the time being in force, the amount or
value of the subject matter of which does not exceed rupees twenty lakhs.
Application:
financial limit of the court. Section 15 of the Code of Civil Procedure commands the organisation of the
suit in the court of the lowest grade. It refers to pecuniary jurisdiction of civil court. It is a course of the
method and it does not affect the jurisdiction of the court. The main objective of establishing pecuniary
jurisdiction is to prevent the court of a higher level from getting burdened and to provide assistance to the
ain Rs 5000 in Bombay. The Bombay High Court has

original jurisdiction and small causes court with the jurisdiction up to Rs 50000. So, a suit to obtain Rs 5000
should ideally be dealt with small causes court. In the case of Karan Singh Vs Chaman Paswan the plaintiff
filed a suit in the subordinate court involving an amount of Rs 2950, but the court rejected the case. Later
his next appeal was allowed by the High Court, but it ordered him to pay the deficit amount. The appellant
contested that the decision of the district court will be a nullity, but the High Court dismissed the claim.
Later the Supreme Court confirmed the decision of the High Court declaring that the decision of district
Conclusion:
Case A: Maintenance like matrimonial issues are dealt in Family Courts, this case should be filed in
a Family Court.
Case B: As per Section 16 of the Telangana Civil Courts, 1972 the Court of Junior Civil Judge is
competent to deal this case.
Hierarchy of Civil Courts in India

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CPC 5th Semester
14. Non-joining of a necessary party:

A. What is the effect of non-joining of a necessary party in a suit? (Jan 2019).
the pleadings and what is the effect of non-joinder of a
necessary party in a civil suit? (May 2016).
Issue:
Can the suit be continued without all necessary parties? No, the court either may dismiss the suit or allow
to add necessary parties to the suit.
Rule:
Rule 9 Order I of Code of Civil Procedure 1908 "Misjoinder and non-joinder"
No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every
suit deal with the matter in controversy so far as regards the rights and interests of the parties actually
before it:
Provided that nothing in this rule shall apply to nonjoinder of a necessary party.
Application:
In the absence of necessary parties, the court may dismiss the suit, as it shall not be able to pass an
effective decree. But a suit can never be dismissed due to absence of non-necessary parties. The
underlying logic is that the burden of providing relief should rest upon all the defendants. It would be
unfair if only some of the defendants had to discharge this burden. Therefore, the plaintiff has to implead
all those parties from whom he is claiming relief to the suit.
Non-joinder can be defined as an omission to join some person as a party to a suit, whether as plaintiff
or as defendant, who ought to have been joined according to the law. In other words, non-joinder means
an omission to join a party to the suit. The Code does not define non-joinder, but lays down "No suit shall
-joinder of parties, and the court may in every suit deal with the matter in

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CPC 5th Semester
controversy so far as regards the rights and interests of the parties actually before it. " The proviso to this
Rule however excludes its applicability to cases of non-joinder of necessary parties. Necessary Parties are
those parties in the absence of whom no effective decree can be passed by the court. For instance, in a
suit filed against a partnership firm, all partners would be necessary parties. As against this, non-necessary
parties are those parties in the absence of whom the court can still adjudicate in an effective manner.
If a suit is dismissed straightaway for a non-joinder of necessary parties, the plaintiff will have to file
the suit again, resulting in multiplicity of litigation. The Code, through various legal provisions seeks to
prevent multiplicity of litigation. For this reason, the court may add the necessary parties on its own, or
may even direct the plaintiff to do so. However, since adding necessary parties to the suit is procedural in
nature, the same has to be done at the time of trial, but without prejudice to the plea of limitation of the
parties involved.
Conclusion:
In the absence of a necessary party the court cannot pass an effective decree. The court will allow the
plaintiff to add the necessary parties to the suit.
15. Execution petition:
-2020).
ant in a suit for recovery of immovable property. Can he do so? Explain.
(May-19 and Jan-2018).
Issue:
Can the decree holder choose both attachment and arrest or arrest without going for attachment? No, he
cannot do both at a time, arrest is possible only after exhausting the other options.
In K.M.Kannu Gounder v. Mahboob Ali Sahib and another [(2003) 2 M.L.J 329], the Principal Bench of this
Court has held that "so far as the choice whether the decree holder could adopt and file execution petition
for attachment or for arrest is concerned in the recent times, it has been arrived at by the upper forums of
law that prior to embarking upon arrest, the other procedures kept open, such as attachment, etc., should
be exhausted."
Rule:
The various modes in which execution of a decree may be ordered are given in Section 51 of the Code of
Civil Procedure as follows:
(a) By delivery of any property specifically decreed;
(b) By attachment and sale, or by sale, without attachment of any property;
(c) By arrest and detention of the judgment-debtor;
(d) By appointment of a Receiver; or
(e) In such other manner as the nature of the relief may require.
Rule 37 Order XXI of Code of Civil Procedure 1908 "Discretionary power to permit judgment debtor to
show cause against detention in prison"
(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the
payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be
arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a
notice calling upon him to appear before the Court on a day to be specified in the notice and show cause
why he should not be committed to the civil prison:
Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise that,
with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond
or leave the local limits of the jurisdiction of the Court.

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CPC 5th Semester
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree- holder so
requires, issue a warrant for the arrest of the judgment-debtor.
Rule 38 Order XXI of Code of Civil Procedure 1908 "Warrant for arrest to direct judgment-debtor to be
brought up"
Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to
bring him before the Court with all convenient speed, unless the amount which he has been ordered to
pay, together with the interest thereon and the costs (if any) to Which he is liable, be sooner paid.
Rule 39 Order XXI of Code of Civil Procedure 1908 "Subsistence allowance"

(1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays
into Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the
time of his arrest until he can be brought before the Court.
(2) Where a judgment-debtor is committed to the civil prison in execution of a decree, the Court shall fix
for his subsistence such monthly allowance as he may be entitled to according to the scales fixed under
section 57, or, where no such scales have been fixed, as it considers sufficient with reference to the class
to which he belongs.
(3) The monthly allowance fixed by the Court shall be supplied by the party on whose application the
judgment-debtor has been arrested by monthly payments in advance before the first day of each month.
(4) The first payment shall be made to the proper officer of the Court for such portion of the current
month as remains unexpired before the judgment-debtor is committed to the civil prison, and the
subsequent payments (if any) shall be made to the officer in charge of the civil prison.
(5) Sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil prison
shall be deemed to be costs in the suit :
Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any
sum so disbursed.
Application:
Ganesh vs Sankaran on 3 April, 2006 Madras High Court: The court given the below judgment:
The executing court shall hold an enquiry and give a finding as to the correct means of the judgment
debtor to discharge the decree before ordering arrest under Rule 37 of the C.P.C. The executing court
should follow the procedure laid down in Rule 39 and 40 of the C.P.C. In these petitions, the Executing
Court did not observe the principles laid down by the High Court in 2000 (II)CTC 168, 1995(II) CTC 20 and
by the Supreme Court in AIR 1980 S.C.C. Hence, the order of the Executing Court is liable to be set aside.
Conclusion:
In the given case the decree holder cannot go for arrest of the debtor, first he should try to recover the
money, if it is not possible he can go for the arrest of the debtor provided that he should pay the
necessary charges for the arrest and detention.
16. Limitation period:

A. The limitation period for filing a suit is three years. However, the plaintiff was imprisoned during
the period of such three years. Can he seek condonation of delay in filing the suit after coming out
of jail? Decide. (May-2019).
B. When limitation expires during summer holidays, when the court is closed then when the suit can
be filed? Give reasons. (Jan-2019).
C. A plaintiff, who wants to file a suit in the lower court and whose cause of action is time barred,
files a condone delay petition in the same court. Is that petition is maintainable? (May-2019).
D. A plaintiff, who wants to file a suit in the Lower Court and whose cause of action is time barred,
files a condone delay petition in the same court. Is that petition is maintainable? (May-2016).

32
CPC 5th Semester
E.
for recovery of that property on the basis of title in the year 2012,
is it maintainable? (Dec-2015).
F. A lower court passed a decree in a suit on 12.12.2012 but the certified copy of the decree was
taken by the defendant on 30.12.2012. He wants to file an appeal against it. What is the date
from which the limitation period starts? Explain. (Jan-2015).
Issue:
In case of time barred suits, can the petitioner seek condonation of delay? Yes, he can, but he has to
satisfy the court with sufficient cause for the delay in filing the suit.
Rule:
The basic concept of limitation is relating to fixing or prescribing of the time period for barring legal
the period of limitation computed in accordance with the provisions of this Act.
Grounds for extension of period of limitation:
Section 5 of the Limitation Act provides that any appeal or any application other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the
prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not
preferring the appeal or making the application within such period.
It is the duty of the Court to record the reasons for extending the time under this section.
In the matter of condonation of delay in extension of prescribed period, the duration of delay is
insignificant. The Court has to take into account whether there is acceptable explanation or pardonable
explanation as sufficient cause for not preferring an appeal. Court has no power to extend the period of
limitation on equitable grounds.
Section 5 of the Limitation Act provides that an appeal may be admitted after the prescribed period if
the appellant satisfies the Court that he had sufficient cause for not preferring it within limitation.
Period as prescribed in Schedule 1 of the Act

The period has been prescribed in Schedule 1 to the Act. Generally, it is as follows:
1. 3 years time-period for a suit relating to accounts, contracts, suits relating to movable property,
recovery of a lawsuit under a contract, etc.
2. 12 years time-period for suits relating to possession of the immovable property, and 30 years
time-period for suits relating to the mortgaged property.
3. One year for suit relating to torts (3 years for compensation in certain cases). 30 to 90 days in case
of appeals under the Civil Procedure Code and Criminal Procedure Code.
Application:
Condonation of Delay finds its mention in Section 5 of the Act which elaborates upon Extension of
prescribed period in certain cases. According to it, any appeal or application may be admitted after the
prescribed period if the
not instituting the appeal/application in the prescribed period.
e-to-case basis. The Court has a

wide discretion in determining what constitutes as sufficient cause, depending upon the facts and
circumstances of each case.
In cases regarding non-appearance, adjournment or stay of execution of a decree, the cause must be
someone of justice either.

33
CPC 5th Semester
In
be interpreted liberally so as to pursue substantial justice.
Conclusion:
Case A: Condonation will be allowed because imprisonment of the petitioner is a good ground.
Case B: As per the rule of limitation period, when the limitation expires on any holiday, the next
working day will be considered as the expiry day, so he can file the suit after the holidays of the
court.
Case C: Condonation of delay can be filed in the same court, but there should be a sufficient cause
to convince the court.
Case D: The petition for condonation of delay is filed in same court that is correct and if the court
w the petition, the petitioner has to satisfy the
court.
Case E: For immovable property the period for filing a suit is 12 years as per Schedule 1 (given in
the above notes). In the given case it is exceeding the limitation period of 12 years hence the suit
is not maintainable.
Case F: The limitation period should be calculated from the date of the decree/judgment issued
not from pronouncement of the same.
*****

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CPC 5th Semester

Harinath Janumpally- [email protected]

Unit-I: Codification of Civil Procedure and Introduction to CPC Principal features

Unit-II: Pleadings Contents of pleadings Forms of Pleading Striking out /

Unit-III: Appearance and Examination of parties & Adjournments Ex-parte

Unit-IV: Suits in Particular Cases Suits by or against Government Suits relating

Unit-V: Law of Limitation Concept of Limitation Object of limitation - General

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ANSWERS TO IMPORTANT QUESTIONS

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5. Exclusive and Concurrent Jurisdiction

A. Pecuniary Jurisdiction: Sec-15:

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plagued with pests. He should pr

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Res Sub Judice

Application of Res Sub Judice in India

Scope and Objective of Section 10

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of Sayed Mohammad v Musa Ummer.

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In a suit for partition, all sharers are necessary party,

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4. Counter claim and set off explain and distinguish.

Definition of set-off under CPC, 1908:

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Essential conditions for set-off:-

The distinction between set-off and counter-claim may now be noted:

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Return of Plaint by the Court

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Rejection of Plaint by the Court

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6. Modes of Execution of a Decree.

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o By the detention in the Civil Prison of the Judgment Debtor, or

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(a) By delivery of any property specifically decreed;

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When arrest and detention may be ordered?

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8. Kinds of Appeals (V.Imp. Appeal against Appellate Decree / Second appeal).

1. Appeal from Original Decree

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9. Inter pleader suits.

Meaning and definition of interpleader suit

Where interpleader suit may be reinstituted (Section 88 of CPC)

Object of interpleader suit -

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b. There must be two or more persons claiming it adversely to one another

Who cannot file interpleader suit - (Order XXXL Rule 5)

10. Review and Revision.

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