CPC: Complete Notes

About this subject

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The subject covers the Code of Civil Procedure, 1908, together with the Limitation Act: from how the Code began to how time can make a trespasser an owner. Whenever a tenant refuses to leave, a buyer wants his money back, or two brothers quarrel over the family house, this Code carries the dispute from the first plaint to the final execution of the decree. Connecting every rule to everyday life makes it easier to understand and remember.

Substantive Law and Procedural Law

Substantive law	Procedural law
Creates rights and duties.	Lays down the method by which those rights are enforced in a court.
Examples: the Indian Contract Act, the Transfer of Property Act.	The Code of Civil Procedure, 1908, is the main procedural law for civil cases in India.
Gives the right.	Gives the road to reach it. Also called adjective law, because it is attached to substantive law as an adjective is attached to a noun.

A civil case is a dispute about private rights, such as money, property, contracts or family status. In a criminal case, the State prosecutes a person for an offence.

Why fixed rules of procedure are needed

Without them, every judge would follow his own method and no party would know what to expect. Procedure gives both sides a fair chance to be heard, and it brings the dispute to an end.

But procedure is the servant of justice, not its master. A technical slip should not defeat a genuine claim if the other side can be compensated with costs. The same idea governs the amendment of pleadings.

History and Amendments of the Code

• In early British rule, civil procedure was scattered across many regulations, and different courts followed different practices.
• 1859: the first uniform Code of Civil Procedure. It did not apply to the Supreme Courts in the presidency towns, or to the Presidency Small Cause Courts.
• 1877 and 1882: new Codes followed.
• 1908: the present Code was passed; it came into force on 1 January 1909.

The three most important amendments

Amendment	Effect
1976 (mostly in force from 1 February 1977)	Wide changes to cut delay and to help poorer litigants.
1999 and 2002 (after strong protests by lawyers, both brought into force together only on 1 July 2002)	Fixed time limits for the written statement; limited adjournments; made evidence in chief on affidavit the general rule; added Section 89, which asks courts to send suitable disputes for settlement outside the court.

Later, the Commercial Courts Act, 2015 added stricter rules for commercial disputes of a specified value.

Structure of the Code

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Body of the Code	First Schedule
158 sections.	51 Orders, each divided into rules.
General principles and the powers of the courts.	Detailed procedure.
Only the legislature can amend the sections.	Under Section 122, a High Court can amend the rules for the courts under it, if they are not inconsistent with the body of the Code.

The sections are the foundation of a building; the Orders and rules are the rooms built on it. A rule cannot override a section.

Scope, Extent and Application of the Code

• Preamble: the Code is an Act to consolidate and amend the laws relating to the procedure of the courts of civil judicature. To consolidate means to bring scattered rules together in one place.
• Section 1 (extent): the whole of India except the State of Nagaland and certain tribal areas; even there, the State Government may extend the Code, or any part of it, by notification. The old exception for Jammu and Kashmir has been removed, so the Code now applies there too.
• Section 4 (saving): unless the Code specifically says otherwise, nothing in it affects any special or local law, or any special jurisdiction, power or form of procedure prescribed by another law. Where a special law, such as a rent control law, lays down its own procedure, that procedure prevails.
• Section 141: the detailed procedure is written for suits, but the procedure for suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. An Explanation added in 1976 includes proceedings under Order 9, but excludes writ proceedings under Article 226 of the Constitution.
• The Code is exhaustive only on the matters it deals with. Where it is silent, the court may act under its inherent power, saved by Section 151.

Decree: Section 2(2)

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Five essentials

1. Adjudication: a judicial decision on a matter in dispute.
2. In a suit: a suit begins with a plaint.
3. Rights of the parties: substantive rights, not a mere question of procedure.
4. Conclusive determination: final as far as that court is concerned.
5. Formal expression: drawn up as a separate document.

Inclusions and exclusions

• Deemed to include: the rejection of a plaint, and the determination of any question within Section 144 (restitution).
• Does not include: an adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default. If the court dismisses a suit because the plaintiff did not appear, that is not a decree; his remedy is to apply for restoration.

Preliminary and final decrees

Under the Explanation, a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of, and final when it completely disposes of the suit. It may be partly preliminary and partly final.

Order: Section 2(14), and Decree and Order Compared

An order is the formal expression of any decision of a civil court which is not a decree. An order granting an adjournment, allowing an amendment, or granting a temporary injunction is an order, not a decree.

Point	Decree	Order
Origin	Only in a suit, which begins with a plaint.	Also in a proceeding that begins with an application.
Rights	Conclusively determines the rights of the parties.	May or may not do so.
Kinds	Preliminary or final.	No preliminary order.
Appeal	Every decree is appealable unless an appeal is expressly barred.	Only orders listed in Section 104 and Order 43, Rule 1.
Second appeal	Lies against an appellate decree on a substantial question of law.	None from an appellate order.

Judgment: Section 2(9)

A judgment is the statement given by the judge of the grounds of a decree or order. The judgment contains the reasons; the decree contains the final result.

• Order 20, Rule 4: a judgment of a Court of Small Causes need contain only the points for determination and the decision on them. Other judgments must contain a concise statement of the case, the points for determination, the decision on each point, and the reasons for it.
• The decree must agree with the judgment.

Other Important Definitions

• Decree-holder (Section 2(3)): any person in whose favour a decree has been passed, or an order capable of execution has been made.
• Judgment-debtor (Section 2(10)): any person against whom a decree has been passed, or an order capable of execution has been made. In the loan example, Prince is the decree-holder and Farhan the judgment-debtor.

Legal representative: Section 2(11)

A person who in law represents the estate of a deceased person. It includes any person who intermeddles with the estate (takes the property of the deceased and deals with it without legal authority), and, where a party sues or is sued in a representative character, the person on whom the estate devolves when that party dies.

Mesne profits: Section 2(12)

Mesne means intermediate. Mesne profits are the profits which the person in wrongful possession of property actually received, or might with ordinary diligence have received, together with interest on such profits. They do not include profits due to improvements made by the person in wrongful possession.

Foreign court and foreign judgment

• Foreign court (Section 2(5)): a court situate outside India and not established or continued by the authority of the Central Government.
• Foreign judgment (Section 2(6)): the judgment of a foreign court, such as a court in London or Dubai.

Jurisdiction: Meaning, Source and Kinds

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The first practical question in every dispute is which court can hear it. Jurisdiction means the authority of a court to hear and decide a case. It comes from the Latin juris (of law) and dicere (to speak): the power to speak the law. However honest and learned a court may be, without jurisdiction its decision has no legal force.

Jurisdiction comes only from the Constitution or a statute. The parties cannot create it by agreement, and a court cannot create it for itself.

Kinds of jurisdiction

1. Territorial: every court can try cases only within its fixed local limits.
2. Pecuniary: depends on the money value of the suit. Section 6: nothing in the Code gives a court jurisdiction over a suit whose value exceeds its pecuniary limits.
3. Subject matter: some courts can try only certain kinds of cases; a Court of Small Causes tries petty money claims and cannot try a suit for partition.
4. Original and appellate: hearing a case for the first time, and hearing appeals.
5. Exclusive and concurrent: only one court can hear a matter, or several courts can.

Hierarchy of civil courts

At the top is the Supreme Court, and under it the High Court of each State. In each district, the principal civil court is the District Court, presided over by the District Judge. Below are the civil judges of the senior and junior divisions, and Courts of Small Causes. Section 3 lays down the chain of subordination: the District Court is subordinate to the High Court, and every lower civil court and Court of Small Causes is subordinate to both. This chain matters for revision and transfer of cases.

Section 15: court of the lowest grade

Every suit shall be instituted in the court of the lowest grade competent to try it, so that higher courts are kept free. This is a rule of procedure, not of jurisdiction, so a decree passed by a higher court in breach of Section 15 is not void.

Void Decrees and Irregular Decrees

Void decree	Irregular decree
Court had no jurisdiction over the subject matter, or no authority to pass the order it passed.	Defect relates to the place of suing, pecuniary limits or valuation.
A nullity; consent cannot cure the defect; can be challenged at any stage, even in execution.	Section 21: no appellate or revisional court shall allow the objection unless it was taken in the court of first instance at the earliest possible opportunity and there has been a consequent failure of justice. Section 11 of the Suits Valuation Act, 1887 says much the same about wrong valuation.

Suits of a Civil Nature: Section 9

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Section 9: the courts shall, subject to the provisions of the Code, have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. Cognizance means the power to take up and hear a matter.

Two conditions: (1) the suit must be of a civil nature; (2) its cognizance must not be barred. The word shall makes the civil court the ordinary forum for every civil wrong, expressed in the maxim ubi jus ibi remedium: where there is a right, there is a remedy.

Meaning of a suit of a civil nature

The Code does not define it. It is a suit whose main question is a private legal right, such as a right to property, to an office, to money or to a legal status. A dispute about a purely religious, social or political matter is not civil.

• Explanation I: a suit in which the right to property or to an office is contested is a suit of a civil nature, even if that right depends entirely on questions about religious rites or ceremonies.
• Explanation II (added in 1976): it does not matter whether any fees are attached to the office, or whether it is attached to a particular place. So a suit claiming the office of priest of a temple is civil, even if the office carries no fee.

Express and implied bar

• Express bar: a statute says in clear words that civil courts shall not try the suit. Many tenancy and revenue laws say that certain questions shall be decided only by a special authority, such as a Collector or another revenue officer.
• Implied bar: a statute creates a new right and also gives a special remedy for it, or the suit is against public policy.

There is a strong presumption in favour of the jurisdiction of civil courts; any exclusion must be clearly shown and strictly read.

Res Sub Judice: Section 10

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Res sub judice means a matter under judicial consideration. Section 10 says that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit. Five conditions:

1. Two suits, one instituted earlier.
2. The matter in issue in the later suit is directly and substantially in issue in the earlier one.
3. The same parties, or parties under whom they claim.
4. Litigating under the same title.
5. The earlier suit is pending in a competent court: the same or another court in India competent to grant the relief claimed, the Supreme Court, or a court outside India established by the Central Government.

The court must then stay the trial of the later suit. Note:

• Section 10 bars only the trial of the later suit, not its filing.
• The court can still pass interim orders in the later suit, such as an injunction.
• Explanation: a suit pending in a foreign court does not stop an Indian court from trying a suit on the same cause of action.

The object is to avoid conflicting decisions and needless harassment.

Res Judicata: Section 11

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If Prince loses a suit against Farhan, he cannot file the same suit again before another judge. The doctrine of res judicata (a thing already decided) stops him. It rests on three maxims:

• Nemo debet bis vexari pro una et eadem causa: no one should be vexed twice for the same cause.
• Interest reipublicae ut sit finis litium: it is in the interest of the State that litigation should end.
• Res judicata pro veritate accipitur: a judicial decision must be accepted as correct.

Section 11 says that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit, and has been heard and finally decided. Five conditions:

1. Directly and substantially in issue in both suits: under Explanation III, alleged by one party and denied or admitted by the other. A matter only collaterally or incidentally in issue does not count.
2. Same parties, or parties under whom they claim: a person who buys from Farhan after the suit is filed is bound by a decision against Farhan.
3. Same title, that is, the same capacity: if Farhan first sued for himself and later sues as trustee of a temple, the title is different.
4. Former court competent to try the later suit: Explanation II judges competence without regard to any right of appeal. Explanation VIII (added in 1976): an issue decided by a court of limited jurisdiction, competent to decide that issue, binds even if that court could not have tried the later suit.
5. Heard and finally decided: a suit withdrawn or dismissed for default does not count, but Order 9, Rule 9, or Order 23, Rule 1, may still bar a fresh suit.

Other Explanations

• Explanation I: former suit means a suit decided earlier, whether or not it was filed earlier.
• Explanation V: a relief claimed but not expressly granted is deemed refused.
• Explanation VI: binds all persons interested in a representative suit fought in good faith.
• Explanation VII: applies Section 11 to execution proceedings.

Constructive res judicata: Explanation IV

Any matter which might and ought to have been made a ground of defence or attack in the former suit is deemed to have been directly and substantially in issue in it. A party must bring all his grounds in one suit and cannot keep some in his pocket for a second round.

Res judicata beyond Section 11

As a rule of general law, the courts also apply res judicata between two stages of the same proceeding, between co-defendants in certain conditions, and to writ petitions.

Res Sub Judice and Res Judicata Compared

Res sub judice (Section 10)	Res judicata (Section 11)
A matter still pending.	A matter already decided.
Only stops the trial of the later suit.	Bars the trial of the later suit or issue altogether.

Both rest on the same idea: no one should be troubled twice over the same matter.

Res judicata	Estoppel
Arises from a decision of the court.	Arises from the conduct of a party, and stops him from denying what he earlier represented. Now in Section 121 of the B.S.A., 2023.

Foreign Judgments: Sections 13, 14 and 44A

Section 13: a foreign judgment is conclusive as to any matter directly adjudicated upon between the same parties, litigating under the same title, except where:

1. it was not pronounced by a court of competent jurisdiction;
2. it was not given on the merits;
3. it appears on the face of the proceedings to rest on a wrong view of international law, or to refuse to recognise the law of India where it applies;
4. the proceedings were opposed to natural justice;
5. it was obtained by fraud;
6. it sustains a claim founded on a breach of any law in force in India.

Section 14: on production of a certified copy of a foreign judgment, the court shall presume that it was pronounced by a court of competent jurisdiction, unless the contrary appears on the record; but want of jurisdiction can be proved to displace this.

Section 44A: a reciprocating territory is a country notified by the Central Government, such as the United Kingdom, Singapore or the United Arab Emirates. A money decree of a superior court of such a territory can be executed in India as if the District Court had passed it, but execution shall be refused if any exception in Section 13 applies. For other foreign decrees, the decree-holder must file a fresh suit on the foreign judgment.

Place of Suing: Sections 15 to 20

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Sections 15 to 20 decide where to sue, and the rule depends on the kind of suit.

Immovable property: Section 16

Suits for the recovery of immovable property (such as land or a house), for partition, for foreclosure, sale or redemption of a mortgage, for any other right or interest in it, or for compensation for a wrong to it, must be instituted where the property is situated, because a court can give an effective decree about land only where the land is.

Proviso: where the property is held by the defendant, and the relief can be entirely obtained through his personal obedience, he may also be sued where he resides or carries on business. This rests on the maxim that equity acts in personam (against the person).

Sections 17, 18 and 19

• Section 17: where the property lies within the limits of different courts, the suit may be filed in any of them.
• Section 18: uncertain boundaries.
• Section 19: for compensation for a wrong to a person or to movable property, the plaintiff may sue where the wrong was done or where the defendant lives.

The residuary rule: Section 20

For all other suits, such as suits on contracts, the suit may be filed:

1. where the defendant actually and voluntarily resides, carries on business or personally works for gain;
2. where there are several defendants, where any of them resides, with the leave of the court or the consent of the others; or
3. where the cause of action, wholly or in part, arises.

Explanation: a corporation carries on business at its sole or principal office in India; but for a cause of action arising where it has a subordinate office, it carries on business at that place.

Choice of court by agreement

Only partly possible. Where two or more courts have jurisdiction, the parties may agree to sue in only one of them, and that does not violate Section 28 of the Indian Contract Act. But they can never confer jurisdiction on a court that has none.

Place of Suing: Exclusion Clauses and Section 21A

Section 21A: no suit shall be filed to set aside a decree merely on an objection to the place of suing.

Institution of Suit

Section 26: every suit is instituted by the presentation of a plaint, or in such other manner as may be prescribed. Since 2002, every plaint must be supported by an affidavit, though that affidavit is not evidence at the trial. Order 4 Rule 1: the plaint is presented in duplicate to the court or an officer appointed for the purpose, and a suit is not duly instituted unless the plaint complies with Orders 6 and 7.

The four essentials of every suit:

1. Parties.
2. Cause of action: the bundle of facts the plaintiff must prove.
3. Subject matter, such as money or property.
4. Relief claimed.

Once the plaint is registered, the court issues summons to the defendant. In a commercial dispute of a specified value, Section 12A of the Commercial Courts Act, 2015 requires the plaintiff first to try pre-institution mediation, unless he seeks urgent interim relief; the Supreme Court has held this mandatory.

Unit 3 (Pleadings): Parties to a Suit

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Joinder of parties

Order 1 Rule 1: persons may be joined as plaintiffs if (i) their right to relief arises from the same act or transaction, or series of acts or transactions, and (ii) a common question of law or fact would arise if they sued separately. Order 1 Rule 3 applies the same two tests to defendants.

Necessary and proper parties

Necessary party	Proper party
Without him, no effective decree can be passed at all.	His presence is not essential, but helps the court decide all the questions completely.

Representative suit (Order 1 Rule 8)

Where many persons have the same interest, one or more of them may, with the permission of the court, sue or be sued on behalf of all. Notice goes to all interested persons, and the decree binds them all. For example, a few residents of a colony may sue on behalf of all residents to stop a builder from blocking their common passage.

Misjoinder and non-joinder

Misjoinder is joining a person who should not have been joined; non-joinder is leaving out a person who should have been joined.

• Order 1 Rule 9: no suit shall be defeated by misjoinder or non-joinder; the court may decide the matter as regards the parties actually before it. The proviso excludes the non-joinder of a necessary party, so if a necessary party is left out and never added, the suit may fail.
• Order 1 Rule 10(2): the court may, at any stage, strike out a party improperly joined, and add any person who ought to have been joined or whose presence is necessary to decide all the questions effectively.
• Order 1 Rule 13: such objections must be taken at the earliest opportunity and, where issues are settled, at or before their settlement; otherwise, unless the ground arose later, they are deemed waived.

Pleadings: Meaning and Basic Rules

Order 6 Rule 1: pleading means a plaint or a written statement. Pleadings let each side know the other's case before trial, narrow down the real points of dispute, and ensure nobody is taken by surprise.

Four rules follow: (1) plead facts, not law; (2) plead only material facts, those needed to make out the claim or defence; (3) plead facts, not evidence; (4) plead concisely. The rule also requires numbered paragraphs, and dates, sums and numbers in figures as well as in words.

Special rules

• Rule 4: a party alleging misrepresentation, fraud, breach of trust, wilful default or undue influence must give full particulars; a bare statement that Farhan committed fraud is not enough.
• Rule 15: every pleading must be signed and verified; since 2002, the person verifying must also file a supporting affidavit.
• Rule 16: the court may strike out anything unnecessary, scandalous, frivolous or vexatious, or an abuse of its process.

Amendment of Pleadings

Order 6 Rule 17: the court may, at any stage of the proceedings, allow either party to amend his pleadings on just terms, and all amendments necessary for determining the real questions in controversy shall be made. The proviso (2002): no amendment after the trial has commenced, unless the court concludes that, in spite of due diligence, the party could not have raised the matter earlier.

Five guiding principles

1. Amendments are allowed liberally when needed to decide the real dispute and the other side can be compensated with costs.
2. An amendment that changes the whole nature of the suit is usually refused.
3. An amendment that takes away a right accrued to the other side (for example, by reviving a time-barred claim) is usually refused, though this is a matter of discretion.
4. An amendment generally relates back to the date of the original pleading.
5. Courts are more liberal with a written statement than with a plaint.

The Plaint and Its General Rules

The plaint is the document by which a suit begins. Under Order 7 Rule 1 it must state: the name of the court; the name, description and residence of each party, and whether a party is a minor or of unsound mind; the facts constituting the cause of action and when it arose; the facts showing jurisdiction; the relief claimed; any set-off allowed or claim given up; and the value of the subject matter for jurisdiction and court fees.

Order 7 Rule 7: the relief must be specifically stated, but the court may give general or other relief as if asked for. Order 7 Rule 14: the plaintiff must produce the documents on which he sues or relies; a document not produced in time cannot later be received in evidence without the leave of the court.

Frame of Suit: Order 2 Rule 2

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Order 2 deals with the frame of a suit. Under Order 2 Rule 2, every suit shall include the whole of the claim the plaintiff is entitled to make in respect of the cause of action. A part omitted or given up cannot be sued for later. A plaintiff entitled to several reliefs on one cause of action who sues for only one without the leave of the court cannot later sue for the relief left out.

Return of Plaint

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Order 7 Rule 10: a plaint filed in the wrong court shall, at any stage of the suit, be returned for presentation to the court in which it should have been filed; the judge endorses on it the dates of presentation and return and the reasons. Rule 10A (added in 1976): where the defendant has appeared, the court may fix a date for appearance in the proper court, so fresh summons are not needed. Unless the Rule 10A procedure was followed, an order returning a plaint is appealable under Order 43.

Rejection of Plaint

Order 7 Rule 11: the plaint shall be rejected where:

1. it does not disclose a cause of action;
2. the relief is undervalued and not corrected within the time allowed;
3. it is insufficiently stamped and the stamp is not made up within the time allowed;
4. the suit appears from the plaint itself to be barred by any law, for example limitation;
5. it is not filed in duplicate;
6. the plaintiff does not supply the copies required for service.

Rejection is a deemed decree, appealable as a decree. Under Rule 13, it does not by itself bar a fresh plaint.

Return and rejection compared

Point	Return of plaint	Rejection of plaint
Ground	Filed in the wrong court	Plaint defective in itself
Effect	Presented in the proper court	The suit ends
Appeal	Appealable as an order	Appealable as a decree

Drafting a Plaint

The five parts of a plaint:

1. Heading: names the court.
2. Title: names the parties with descriptions and addresses.
3. Body: short numbered paragraphs stating the facts in the order they happened, ending with paragraphs on cause of action, jurisdiction, valuation and court fee, and limitation.
4. Prayer: each relief stated clearly.
5. Signature, verification and affidavit.

Practical rules: simple, exact language; one allegation per paragraph; facts, not arguments; full particulars of any fraud; and every relief arising from the cause of action, so that Order 2 Rule 2 does not shut out a later claim. If Farhan breaks his promise to sell a plot to Prince, the plaint should ask for specific performance and, in the alternative, a refund of the advance with interest.

The Written Statement

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The written statement is the defendant's reply.

• Order 8 Rule 1: to be presented within 30 days from service of summons; the court may extend the time for reasons recorded, but not beyond 90 days from service. For ordinary suits, the Supreme Court has held this limit directory, so a later written statement may be accepted in exceptional cases, with costs. In commercial suits, the limit is 120 days, after which the right to file is lost.
• Order 8 Rule 2: the defendant must specially plead every ground showing the suit is not maintainable or the transaction is void or voidable, and every fact that would otherwise take the plaintiff by surprise, such as fraud, limitation, release or payment.
• Order 8 Rule 9: no pleading after the written statement, except in answer to a set-off or counterclaim, unless the court permits. Such a later pleading of the plaintiff is a replication.

Set-off and Counterclaim

Set-off (Order 8 Rule 6): in a suit for money, the defendant may claim a set-off of an ascertained sum legally recoverable from the plaintiff, if the sum is within the pecuniary limits of the court and both parties fill the same character as in the suit. The written statement then has the effect of a plaint in a cross-suit. This is legal set-off. Courts also allow equitable set-off, even for an unascertained sum, where both claims arise from the same transaction.

Counterclaim (Order 8 Rules 6A to 6G, added in 1976) is wider. The defendant may set up any claim against the plaintiff, for money or not, whose cause of action arose before or after the suit was filed but before the defence is filed, within the pecuniary limits of the court. It is treated as a plaint and can proceed even if the suit is dismissed or withdrawn.

Point	Set-off	Counterclaim
Nature	A shield reducing the plaintiff's claim	A sword: an independent claim
Scope	Only money, in a money suit	Any relief
Amount	Legal set-off: ascertained sum	Need not be ascertained

A counterclaim also survives even if the main suit fails.

The Doctrine of Non-Traversal

To traverse is to deny. A fact alleged in the plaint and not denied in the written statement is taken as admitted.

• Order 8 Rule 3: a general denial is not enough; each allegation of fact not admitted must be dealt with specifically, except as to damages.
• Order 8 Rule 4: a denial must not be evasive; it must answer the point of substance.
• Order 8 Rule 5: an allegation neither denied (specifically or by necessary implication) nor stated to be not admitted is taken as admitted, except against a person under a disability, such as a minor. The court may still require proof.

Unit 4 (Summons and Hearing of Suit): Issue of Summons

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• Section 27: once a suit is duly instituted, a summons may issue to the defendant to appear and answer the claim. Its reference to service within 30 days of institution has been read by the Supreme Court as the time within which the plaintiff must take steps for service.
• Order 5 Rule 1: the summons calls on the defendant to appear and to file his written statement within 30 days from service. No summons is needed if the defendant appears when the plaint is presented and admits the claim.
• Every summons is signed by the judge or an authorised officer, sealed with the court's seal, and accompanied by a copy of the plaint.
• It may issue for settlement of issues or for final disposal; in the latter case the defendant must bring all his witnesses that day.

Service of Summons

1. Personal service on the defendant or his authorised agent.
2. If the defendant cannot be found, on an adult member of his family living with him.
3. By speed post with registration and proof of delivery, a courier approved by the High Court, or fax or electronic mail, at the plaintiff's expense. This wording dates from 20 December 2025, when it replaced registered post and plain speed post.
4. Affixing: if the defendant refuses the summons, or cannot be found after due diligence, the serving officer affixes a copy on the outer door or another conspicuous part of his house.
5. Substituted service (Order 5 Rule 20): if satisfied that the defendant is keeping out of the way to avoid service, or cannot be served in the ordinary way, the court may order a copy to be affixed in the court house and at his last known residence, or published in a newspaper. It is as effective as personal service.

Special modes: a public officer through the head of his office; a soldier through his commanding officer; a prisoner through the officer in charge of the prison; a company at its registered office.

Summons to Witnesses

• Section 30: the court may summon persons to give evidence or produce documents.
• Order 16 Rules 1 and 2: each party files a list of witnesses not later than 15 days after the issues are settled, and deposits their expenses.
• Section 32: if a witness fails to attend, the court may issue a warrant for his arrest, attach and sell his property, fine him up to ₹5,000, and order security for his appearance.
• Section 133 exempts high dignitaries from personal appearance, such as the President, Governors, Ministers, and judges of the Supreme Court and High Courts. Section 132 exempts women who, by the customs and manners of the country, ought not to be compelled to appear in public. Such persons may be examined on commission.

Appearance and Examination of Parties

Parties appear in person or through pleaders.

• Order 10 Rule 1: at the first hearing, the court ascertains whether each party admits or denies the other's allegations of fact, and records admissions and denials.
• Order 10 Rule 2: the court may orally examine any party to clarify the matters in controversy. This is not evidence in the ordinary sense; it only finds the real points of dispute. If Farhan has pleaded that he does not admit the loan, the judge may simply ask whether he received the money.
• Order 10 Rule 1A (in force since 2002): the court directs the parties to choose a mode of settlement outside the court.

Consequences of Non-Appearance (Order 9)

Situation	Rule	Consequence
Neither party appears	Rule 3	Court may dismiss the suit.
Summons not served because the plaintiff failed to pay the process fee	Rule 2	Court may dismiss, unless the defendant appears anyway.
Only the plaintiff appears; summons duly served	Rule 6	Court may proceed ex parte (in the defendant's absence) and decide on the plaintiff's evidence. If not duly served, a fresh summons issues.
Only the defendant appears	Rule 8	Court shall dismiss, unless the defendant admits the claim or part of it.

Remedies against dismissal for default

• Dismissal under Rule 2 or 3: under Rule 4, the plaintiff may bring a fresh suit (subject to limitation) or apply to restore the suit by showing sufficient cause.
• Dismissal under Rule 8: Rule 9 bars a fresh suit on the same cause of action. The plaintiff may only apply to set aside the dismissal; on sufficient cause for his absence, the court shall restore the suit, on terms.

Ex Parte Proceedings

▶ Watch this part of the lecture (1:23:40)

Even ex parte, the plaintiff must still prove his case. Under Order 9 Rule 7, a defendant who appears at an adjourned hearing and shows good cause for his earlier absence may be heard as if he had appeared on the first day. Even without good cause, he may join from the stage the proceedings have reached.

Setting Aside an Ex Parte Decree

Order 9 Rule 13: the defendant applies to the court that passed the decree, which shall set it aside if he shows that (i) the summons was not duly served, or (ii) he was prevented by sufficient cause from appearing.

• Time: Rule 13 itself sets no time limit. Under Article 123 of the Limitation Act, 1963, the application must be made within 30 days of the decree or, where the summons was not duly served, of his knowledge of the decree. For this limit, substituted service under Order 5 Rule 20 is not due service.
• Proviso (1976): a mere irregularity in service is not enough if the defendant knew of the hearing date in time to appear.
• No decree is set aside without notice to the other side.

Sufficient cause: a cause beyond the party's control despite reasonable care, such as serious illness, an accident on the way to court, or a genuine mistake about the date. Deliberate absence or plain negligence is not enough. The words are read liberally, because a decision on merits is better than one by default.

Other remedies of the defendant: an appeal under Section 96(2) (but once such an appeal is disposed of otherwise than by withdrawal, no Rule 13 application lies); a review under Order 47; or a separate suit if the decree was obtained by fraud.

Point	Dismissal for default	Ex parte decree
Suffered by	Plaintiff	Defendant
Remedy	Order 9 Rule 4 or Rule 9	Order 9 Rule 13, or appeal
Nature	Not a decree	A full decree, passed after the plaintiff proves his case

Settlement of Issues

▶ Watch this part of the lecture (1:29:38)

After the pleadings, the court fixes exactly what is in dispute: the settlement (framing) of issues.

• Order 14 Rule 2: all issues are ordinarily decided together; but where the case can be disposed of on an issue of law alone relating to jurisdiction or a legal bar to the suit, that issue may be tried first.
• Issues are framed from the pleadings, the statements of the parties and the documents, and may be amended at any time before the decree.
• Issues matter because the trial is confined to them and the judgment must answer each of them.

Hearing of the Suit (Order 18)

• Right to begin: the plaintiff begins, unless the defendant admits the facts and relies only on a point of law or on additional facts, in which case the defendant begins.
• Each party states his case and produces evidence; then arguments are heard.
• A witness's evidence has three parts: examination in chief (by the party calling him), cross-examination (by the other side) and re-examination.
• Order 18 Rule 4 (since 2002): examination in chief on affidavit; cross-examination may be taken by the court or a commissioner. The court may recall a witness at any stage.

First Hearing and Framing of Issues

The first hearing is not simply the first date on the summons. It is the day the court first applies its mind to the case, by examining the pleadings and the parties under Order 10 and framing the issues. Under Order 14, Rule 1(5), at the first hearing the court reads the plaint and written statement, examines the parties if needed, and frames the issues on which they differ.

Order 15, Rule 1: where the parties are not at issue on any question of law or fact, the court may at once pronounce judgment, so a suit can end at the first hearing.

Admissions (Order 12)

• A party may give notice admitting the other side's case in whole or in part, and may call upon the other side to admit documents or facts.
• Rule 2A: such a document is deemed admitted unless denied or stated to be not admitted.
• A party who unreasonably refuses to admit a document or fact may have to pay the costs of proving it.

Judgment on admissions (Rule 6)

The most important rule. Where admissions of fact are made, in the pleading or otherwise, orally or in writing, the court may at any stage, on application or on its own, give such judgment as it thinks fit on them. The admission must be clear and unconditional, and the power is discretionary.

Affidavits (Order 19)

• Rule 1: the court may order any fact to be proved by affidavit; but where a party genuinely wants to cross-examine a witness who can be produced, affidavit evidence alone should not be allowed.
• Rule 2: the deponent may be called for cross-examination.
• Rule 3: confined to facts within the deponent's knowledge, except on interlocutory applications, where a belief may be stated with its grounds.
• Uses: the plaint is supported by affidavit (Section 26); pleadings are verified by affidavit; evidence in chief is on affidavit (Order 18, Rule 4).
• A false affidavit is punishable as false evidence.

Adjournments (Order 17)

Needless adjournments are a main cause of delay.

• Rule 1: adjournment only on sufficient cause, with reasons recorded and costs ordered.
• Proviso (since 2002): not more than three adjournments to a party during the hearing of the suit.
• Once evidence begins, the hearing continues day to day; a pleader's engagement in another court is no ground.
• Rule 2: party absent on the adjourned date: the court may proceed under Order 9.
• Rule 3: party given time is present but fails to produce evidence: the court may decide the suit at once.

Death, Marriage and Insolvency of Parties (Order 22)

• Rule 1: death does not make the suit abate (come to an end) if the right to sue survives. Most rights about property and money survive; a purely personal claim, such as defamation, usually dies with the person.
• Rule 2: if one of several plaintiffs or defendants dies and the right survives only to or against the others, the suit continues.
• Rules 3 and 4: the legal representative of a deceased plaintiff or defendant must be brought on record within 90 days of death (Article 120, Limitation Act); otherwise the suit abates as against the deceased.
• Rule 4(4): the court may exempt the plaintiff from substituting heirs of a defendant who had not filed a written statement or had not contested.
• Rule 9: no fresh suit on the same cause of action after abatement; but an application within 60 days to set aside the abatement must be allowed on sufficient cause. Section 5 of the Limitation Act applies, so delay can be condoned.
• Rule 6: no abatement if a party dies after the hearing ends but before judgment.
• Rule 7: marriage of a female party does not cause abatement.
• Rule 8: insolvency of a plaintiff does not cause abatement, unless the receiver declines to continue the suit.
• Rule 10: where an interest passes to another during the suit, it may continue by or against him with leave.
• Rule 10A: the pleader of a deceased party must inform the court.

Special Proceedings (Sections 89 to 93)

▶ Watch this part of the lecture (1:37:43)

Part V of the Code, "Special Proceedings", contains Sections 89 to 93.

Section 89: settlement outside court

In force since 2002. Where elements of a settlement acceptable to the parties exist, the court shall formulate the terms of settlement, take the parties' observations, and may refer the dispute to arbitration, conciliation, judicial settlement (including Lok Adalat), or mediation. Arbitration and conciliation are governed by the Arbitration and Conciliation Act, 1996; Lok Adalat by the Legal Services Authorities Act, 1987.

Sections 90 to 93

• Section 90: the friendly suit (studied with special suits).
• Section 91: for a public nuisance or other wrongful act affecting the public, a suit for declaration and injunction by the Advocate General, or by two or more persons with leave of the court, even without special damage.
• Section 92: for public charitable or religious trusts, on alleged breach of trust or where the court's direction is needed for administration, the Advocate General, or two or more interested persons with leave, may sue. The court may remove or appoint trustees, direct accounts, settle a scheme, or grant other relief.
• Section 93: outside presidency towns, these powers of the Advocate General may also be exercised, with prior State sanction, by the Collector or an officer the State appoints.

Withdrawal of Suits (Order 23, Rules 1 and 2)

• Rule 1: the plaintiff may at any time abandon his suit, or part of his claim, against all or any defendants; a minor needs the court's leave.
• Abandoning, or withdrawing without permission, means paying costs and losing the right to sue again on the same subject matter.
• Rule 1(3): withdrawal with liberty to sue again may be permitted where (a) the suit must fail for a formal defect, such as wrong valuation or misjoinder, or (b) there are other sufficient grounds.
• Rule 2: the fresh suit is subject to limitation as if the first had never been filed; but where permission was given for a defect of jurisdiction or like cause, such as misjoinder, Section 14 of the Limitation Act excludes the time spent on the first suit.
• One of several plaintiffs cannot withdraw without the others' consent.
• Rule 1A: on withdrawal or abandonment, a defendant with a substantial question to be decided against another defendant may be transposed as plaintiff.

Compromise of Suits (Order 23, Rules 3 to 3B)

Rule 3: where the court is satisfied that a suit has been adjusted, wholly or partly, by a lawful agreement or compromise in writing and signed by the parties, it shall record it and pass a decree on it.

• The compromise may cover matters beyond the suit, but the decree binds only its parties.
• If a party denies the compromise, the court itself decides.
• An agreement void or voidable under the Indian Contract Act is not lawful.
• Rule 3A (1976): no suit lies to set aside a decree on the ground that the compromise was not lawful.
• Section 96(3): no appeal from a consent decree. So a party alleging fraud must go back to the court that recorded the compromise.
• Rule 3B: compromise in a representative suit needs leave of the court and notice to all persons interested.

Withdrawal and compromise compared

Point	Withdrawal	Compromise
Who acts	Plaintiff alone gives up his claim	Both sides agree on terms
Outcome	Usually no decree	A decree
Effect	Without permission, no fresh suit	Decree binds both sides

Judgment (Order 20)

A judgment is the statement given by the judge of the grounds of a decree or order.

• Rule 1: pronounced in open court, at once or on a future day notified to the parties. A reserved judgment within 30 days of the end of hearing; if not possible for exceptional reasons, ordinarily within 60 days.
• Rule 3: dated and signed in open court; thereafter unalterable except for a clerical or arithmetical mistake, or on review.
• Rule 5: a reasoned finding on each separate issue, unless findings on some issues decide the suit.

Why reasons? They show the judge applied his mind, tell the loser why he lost, and let the appellate court check the decision, even when no written statement is filed.

Contents of a Decree (Order 20, Rules 6 to 6B)

• Rule 6: the decree agrees with the judgment and gives the suit number; names, descriptions and addresses of parties; particulars of the claim; relief granted; and costs and who pays them.
• Rule 6A: to be drawn up within 15 days of judgment; meanwhile an appeal may be filed without the decree, the copy of the judgment being treated as the decree for that purpose.
• Rule 6B: copies of the judgment to be given to the parties immediately after pronouncement.

Kinds of Decree

• Preliminary: decides the rights of the parties, but further proceedings are needed to dispose of the suit completely. Provided for in suits for partition, possession and mesne profits, administration of an estate, dissolution of partnership, accounts, and on mortgages.
• Final: completely disposes of the suit.
• Partly preliminary, partly final: e.g., a final decree for possession with a preliminary decree for inquiry into mesne profits.
• Deemed decrees: rejection of a plaint, and a decision on restitution under Section 144.

Appeals and First Appeals (Section 96 and Order 41)

▶ Watch this part of the lecture (1:51:23)

An appeal is the examination of a lower court's decision by a higher court.

• Section 96(1): first appeal from every decree of a court of original jurisdiction.
• Section 96(2): even from an ex parte decree.
• Section 96(3): none from a consent decree.
• Section 96(4): in petty suits of the kind triable by a Court of Small Causes, valued up to ₹10,000, only on a question of law.
• An appeal lies against the decree, not a mere finding; a winning party cannot appeal merely because a finding is against him.

Procedure and powers in first appeal

• Order 41: filed by a memorandum stating the grounds concisely, with a copy of the judgment.
• An appeal is not itself a stay. Rule 5: stay if substantial loss may result, the application is made without delay, and security is given.
• Rule 22: respondent's cross-objections within one month of notice of the appeal.
• Rule 33: the appellate court may pass any decree that ought to have been passed, even for a non-appealing party.
• Section 107: it may decide finally, remand, frame issues, or take additional evidence.
• Rule 27 (additional evidence), only where: (1) the trial court wrongly refused it; (2) despite due diligence it was not within the party's knowledge or could not be produced earlier; or (3) the appellate court requires it to pronounce judgment, or for any other substantial cause.
• Rule 31: the appellate judgment states the points for determination, decision, reasons, and relief if the decree is reversed or varied.

Appeals from Orders (Sections 104 and 105, Order 43)

Only listed orders are appealable (Section 104, Order 43, Rule 1), e.g., an order returning a plaint, refusing to restore a suit dismissed for default, refusing to set aside an ex parte decree, and orders on temporary injunctions. No second appeal lies from an order passed in appeal. For other orders no appeal lies, but under Section 105 an error in such an order affecting the decision may be raised in the appeal against the decree.

Second Appeal (Section 100)

▶ Watch this part of the lecture (2:02:04)

A second appeal lies to the High Court from an appellate decree of a subordinate court only if the case involves a substantial question of law.

• The memorandum states the question precisely; the High Court formulates it and hears the appeal on it.
• The respondent may argue that no such question arises; for recorded reasons, the High Court may hear another substantial question.
• Section 102: no second appeal where the original suit was for recovery of money up to ₹25,000.
• Section 100A: no further appeal from a single judge of the High Court hearing a first or second appeal.
• A second appeal is not a second chance to argue facts.

Reference (Section 113 and Order 46)

Under Section 113 and Order 46, a subordinate court unsure about a question of law may state a case and refer it to the High Court. Conditions: a pending suit, appeal or execution in which the decree is not appealable; a question of law; and a reasonable doubt about it. Proviso: if the court thinks an Act, Ordinance or Regulation invalid, and the High Court or Supreme Court has not so declared, it must refer. It then decides in conformity with the High Court's opinion.

Review (Section 114 and Order 47)

Review is a fresh look at a decision by the same court. Under Section 114 and Order 47, Rule 1, it is available to a person aggrieved by a decree or order where no appeal is allowed, or an appeal is allowed but not filed. There are three grounds:

1. new and important matter or evidence which, despite due diligence, was not within his knowledge or could not be produced earlier;
2. a mistake or error apparent on the face of the record;
3. any other sufficient reason, meaning one similar to the first two.

A later reversal of the legal view in another case is not a ground. The application lies within 30 days, to the same judge if possible. An order rejecting review is not appealable, and no review lies against an order made on review.

Revision (Section 115)

Revision is the High Court's power to supervise subordinate courts. Under Section 115, it may call for the record of a case decided by a subordinate court in which no appeal lies to it, and interfere only if that court exercised a jurisdiction not vested in it, failed to exercise a jurisdiction vested in it, or acted illegally or with material irregularity.

• Proviso (since 1 July 2002): no revision of an interim order unless the order, if made in the applicant's favour, would have finally disposed of the suit.
• No revision where an appeal lies; revision does not stay the suit unless the High Court orders.
• Revision is about jurisdiction, not correcting every error.
• In Odisha, a State amendment gives this power to the District Court in cases valued up to five lakh rupees, and the High Court hears the rest.

Appeal, Review and Revision Compared

Point	Appeal	Review	Revision
Forum	Higher court	Same court	High Court
Scope	Facts and law	Limited grounds of Order 47	Jurisdiction only
Nature	Statutory right	Discretionary	Discretionary
Availability	As statute gives	No appeal allowed, or not filed	Only where no appeal lies

Application to Miscellaneous Proceedings (Section 141)

Section 141 applies the procedure for suits, as far as it can be applied, to all proceedings in any court of civil jurisdiction, such as proceedings under the Guardians and Wards Act. The Explanation excludes writ proceedings under Article 226.

Notice and Caveat (Section 148A)

▶ Watch this part of the lecture (2:09:58)

A basic rule of fairness runs through the Code: no order against a person without notice to him. Hence notice before setting aside an ex parte decree, before granting a review, and ordinarily before granting an injunction. Notice to the Government before suit under Section 80 is a special case, studied with suits against the Government.

A caveat (Latin: "let him beware") is the other side of the same idea. Section 148A (added 1976):

• a person expecting an application against him in a suit or proceeding may lodge a caveat;
• he must serve notice of it on the expected applicant, now by speed post with registration and proof of delivery;
• if the application is filed, the court must notify the caveator, and the applicant must give him copies;
• a caveat remains in force for 90 days.

Inherent Powers of the Court (Section 151)

No code can foresee every situation. Section 151 provides that nothing in the Code limits or affects the inherent power of the court to make orders necessary for the ends of justice or to prevent abuse of its process, for example to recall an order obtained by fraud, consolidate suits, or correct its own mistakes.

• Section 148: court may enlarge a time it fixed, up to 30 days in all.
• Section 149: deficient court fee may be made up at any stage.
• Section 152: clerical or arithmetical mistakes and accidental slips or omissions may be corrected at any time.
• Section 153: general power to amend any defect or error in a proceeding.

Special Suits: Suits in Particular Cases

Part IV of the Code (Sections 79 to 88) and several Orders in the First Schedule deal with suits in particular cases. Special rules are needed because some parties need protection (minors, poor persons), some need time (the Government), and some claims need speed (claims on promissory notes). The general procedure still applies, with the changes these rules make.

Suits by or against the Government

Title of the suit: Section 79

• Central Government: the suit is by or against the Union of India.
• State Government: the suit is by or against the State concerned, such as the State of Bihar.

Notice under Section 80

No suit shall be instituted against the Government, or against a public officer for an act purporting to be done in his official capacity, until two months after a written notice has been delivered at the prescribed office. The notice must state the cause of action, the name, description and residence of the plaintiff, and the relief claimed; the plaint must state that notice was given.

Object: the Government deals with a huge number of matters; the notice gives it time to examine the claim and settle a just one without a suit. A suit filed before the two months expire is therefore not maintainable.

• Section 80(2) (added in 1976): a suit for urgent or immediate relief may be filed without notice, with the leave of the court. But the court shall not grant any relief without giving the Government a reasonable opportunity to show cause, and if no urgent relief is needed, it shall return the plaint for presentation after notice.
• Section 80(3): no suit shall be dismissed merely because of a defect in the notice, if the notice identified the plaintiff, was delivered to the proper authority, and substantially indicated the cause of action and the relief.

Other special rules

• Order 27, Rule 5A: where a public officer is sued for an official act, the Government shall be joined as a party.
• Order 27, Rule 5: the court may give the Government extra time to appear, up to two months in total.
• Order 27, Rule 5B (added in 1976): the court shall try to help the parties reach a settlement.
• Section 82: a decree against the Government cannot be executed unless it remains unsatisfied for three months from the date of the decree.

Suits by or against Minors (Order 32)

A minor (a person under 18) cannot protect his own interests in court, so Order 32 gives special protection.

Minor is	Represented by
Plaintiff	Next friend, who institutes the suit in the minor's name (Rule 1)
Defendant	Guardian for the suit, appointed by the court (Rule 3)

• Any adult of sound mind whose interest is not adverse to the minor's may act; usually a parent is chosen.
• Rule 7: no agreement or compromise on behalf of the minor without the leave of the court; a compromise without leave is voidable at the option of the minor.
• On attaining majority, the minor may continue or abandon the suit.
• Rule 15 applies these rules to persons of unsound mind.

Friendly Suits (Section 90 and Order 36)

Where the parties are not really fighting and only want the court to answer one question of fact or law between them, they may file a friendly suit, also called a special case.

• The parties state the question in a written agreement, in the form of a case for the opinion of the court.
• They agree that, depending on the answer, a sum of money shall be paid, property delivered, or an act done or not done.
• The case is registered and decided as a suit, but no appeal lies from the decree.

Interpleader Suits (Section 88 and Order 35)

Section 88: where two or more persons claim, adversely to one another, the same debt, money or property from another person, who claims no interest in it other than for charges or costs and is ready to hand it to the rightful claimant, he may sue all the claimants, to get a decision about who should be paid and to protect himself. Bar: no such suit lies where a suit is already pending in which the rights of all can be decided.

Order 35:

• The plaint must state that the plaintiff claims no interest other than for charges or costs, that the defendants claim separately, and that there is no collusion with any of them.
• The court may take the property into its custody. At the first hearing, it may discharge the plaintiff from all liability, award him costs, and let the suit proceed between the claimants.
• Rule 5: an agent cannot sue his principal, nor a tenant his landlord, to make them interplead with anyone other than persons claiming through them.

Suits by Indigent Persons (Order 33)

▶ Watch this part of the lecture (2:22:14)

Justice should not be only for the rich: Order 33 allows an indigent person to sue without paying court fee at the start.

• Application: must contain the particulars of a plaint and a list of the applicant's property; the Government pleader may oppose it.
• Rejection (Rule 5), for example, where the applicant is not indigent; where, within two months before applying, he disposed of property fraudulently or in order to be able to apply; where the allegations show no cause of action; or where the suit appears to be barred by law.
• If granted, the suit proceeds in the ordinary way. If the indigent plaintiff wins, the State recovers the court fee as a first charge on the subject matter; if he loses, he is ordered to pay it.
• Order 44 gives the same benefit for appeals.

Summary Suits (Order 37)

Some claims are so clear that a full trial is a waste of time; Order 37 provides a quick procedure for them.

• Courts: High Courts, City Civil Courts and Courts of Small Causes, and other courts, where the High Court may limit the kinds of suits covered.
• Suits: (i) suits on bills of exchange, hundis (traditional Indian bills of exchange) and promissory notes; (ii) suits seeking only to recover a debt or a liquidated demand in money (a fixed or easily calculated sum) arising on a written contract, on an enactment, or on a guarantee.

Procedure: leave to defend

1. The defendant must enter appearance within ten days of the summons, failing which the plaintiff gets a decree.
2. If he appears, the plaintiff serves a summons for judgment.
3. Within ten days, the defendant must apply for leave to defend, with an affidavit disclosing his defence.
4. Leave shall not be refused unless the facts disclosed show no substantial defence, or the defence is frivolous or vexatious.
5. Any part of the amount he admits must be deposited before he gets leave.
6. If leave is refused, the plaintiff gets a decree at once.

Rule 4: the court may, in special circumstances, set aside a decree passed in a summary suit.

Cases on leave to defend

Defence (IDBI Trusteeship)	Result
Substantial defence	Unconditional leave
Triable issue	Ordinarily unconditional leave
Good faith doubtful, or defence plausible but improbable	Leave on conditions, such as a deposit
Frivolous or vexatious	No leave
Admitted amount	Must be deposited first

Injunctions and Temporary Injunctions (Order 39)

▶ Watch this part of the lecture (2:30:16)

Kind	Meaning
Prohibitory	Restrains an act
Mandatory	Directs an act, such as the demolition of a wall
Perpetual	Granted by the final decree, under Sections 36 to 42 of the Specific Relief Act, 1963
Temporary	Granted during the suit, to keep things as they are until the suit is decided; governed by the Code

Sources of the power

• Section 94(c): the court may grant temporary injunctions to prevent the ends of justice from being defeated.
• Order 39, Rule 1: where it is shown that (i) the disputed property is in danger of being wasted, damaged or alienated by a party, or wrongfully sold in execution; (ii) the defendant threatens to remove or dispose of his property to defraud his creditors; or (iii) the defendant threatens to dispossess the plaintiff or otherwise injure him in relation to the disputed property.
• Order 39, Rule 2: an injunction to restrain a breach of contract or other injury.
• Order 39 is not exhaustive. As in the Manohar Lal Chopra case, the court may use its inherent power under Section 151 to grant a temporary injunction in a case the Order does not cover.

The three tests

1. Prima facie case: a serious question to be tried.
2. Balance of convenience: refusing the injunction would cause greater harm than granting it.
3. Irreparable injury: harm which money cannot adequately compensate.

The court also looks at the conduct of the plaintiff: he who seeks equity must do equity.

Procedure and consequences

• Ordinarily, notice must be given before an injunction is granted.
• Rule 3: an ex parte injunction may be granted if delay would defeat its object, with reasons recorded; the applicant must at once send copies to the other side.
• Rule 3A: after an ex parte injunction, the court shall try to decide the application within thirty days.
• Rule 4: the court may vary or set aside the injunction.
• Rule 2A: a person who disobeys an injunction may have his property attached and be detained in civil prison for up to three months.
• Section 95: a defendant against whom an injunction was obtained on insufficient grounds may get compensation up to fifty thousand rupees, within the pecuniary limits of the court.

Execution of Decrees: General Principles

▶ Watch this part of the lecture (2:35:13)

• Section 38: a decree is executed by the court which passed it, or the court to which it is sent for execution.
• Section 39: the court may transfer the decree to another court, for example where the judgment-debtor lives or has property within its limits.
• Section 42: the transferee court has the same powers in executing it as if it had passed the decree itself.
• Order 21, Rule 10: execution begins with an application by the decree-holder. Rule 11: for a money decree, even an oral application may be made when the decree is passed, for the immediate arrest of the judgment-debtor if he is present in court.
• Section 44A: a money decree of a superior court of a reciprocating territory is executed as if passed by the District Court.

Decree	Time to execute (Limitation Act)
Any decree (Article 136)	12 years from the date it becomes enforceable
Mandatory injunction	3 years
Perpetual injunction	No time limit

General principles

1. The executing court cannot go behind the decree. It must take the decree as it stands and cannot question whether it is right or wrong, unless it is a nullity.
2. Section 47: all questions between the parties to the suit, or their representatives, relating to the execution, discharge or satisfaction of the decree shall be determined by the executing court, not by a separate suit. So a plea that the debt is already paid, or that the property cannot be sold, must be raised there. But under Order 21, Rule 2, a payment made out of court is not recognised in execution unless certified or recorded.
3. Section 50: a decree can be executed against the legal representative of a dead judgment-debtor, but only to the extent of the property of the deceased in his hands.

Stay of execution

Order 21, Rule 26	Order 21, Rule 29
The court to which a decree is sent may stay execution for a reasonable time, so that the judgment-debtor can apply to the court that passed the decree	Where the judgment-debtor has sued the decree-holder in the court executing the decree, that court may stay execution until the suit is decided

Delay in execution

Precept and Garnishee Order

Section 46: on the decree-holder's application, the court which passed the decree may send a precept to another competent court, directing it to attach specified property of the judgment-debtor. This prevents him from removing his property before the decree is formally transferred. The attachment lasts only two months, unless extended, or unless the decree is transferred to that court and the decree-holder applies for sale.

A garnishee order (Order 21, Rules 46A to 46I, added in 1976) deals with money owed to the judgment-debtor by someone else, called the garnishee (from an old French word meaning to warn).

• After attaching the debt, the court may call upon the garnishee to pay the money into court, or to show cause why he should not.
• If he neither pays nor appears, the court may order him to pay, and the order is executed like a decree against him.
• If he disputes liability, the court may try that question as an issue.
• Payment into court discharges him from his debt to the judgment-debtor to that extent.

Modes of Execution (Section 51)

The court may order: (1) delivery of property specifically decreed; (2) attachment and sale of property; (3) arrest and detention of the judgment-debtor in civil prison; (4) appointment of a receiver; or (5) any other mode the nature of the relief requires. A decree for possession of a flat is executed by delivery; a money decree usually by attachment and sale.

Order 21, Rule 30: a money decree may be executed by detention, or by attachment and sale, or by both. But the court has a discretion to refuse simultaneous execution against the person and the property.

Arrest and Detention

A person cannot be sent to prison simply because he is too poor to pay his debt. Under the proviso to Section 51, in a money decree the court shall not order detention unless it first gives the judgment-debtor an opportunity to show cause, and then records in writing that it is satisfied of one of three things:

1. he is likely to abscond or leave the local limits of the court; or, after the suit was filed, he dishonestly transferred or concealed his property, or acted in bad faith, to obstruct or delay execution;
2. he has, or has had since the decree, the means to pay a substantial part of the amount, and refuses or neglects to pay; or
3. the decree is for a sum for which he was bound to account in a fiduciary capacity, that is, as a trustee or an agent.

Order 21, Rule 37: the court must first issue a notice to show cause, unless the debtor is likely to abscond. Rule 40 governs the inquiry that follows.

• Section 55: arrest may be made at any hour on any day, but no house shall be entered for this purpose after sunset and before sunrise.
• Section 56: no arrest or detention of a woman in execution of a decree for money.
• Order 21, Rule 39: the decree-holder must pay a subsistence allowance for the person detained.
• Release does not discharge the debt.

Decree amount (Section 58)	Maximum detention
More than 5,000 rupees	Three months
More than 2,000 but not more than 5,000 rupees	Six weeks
2,000 rupees or less	No detention at all

Attachment

▶ Watch this part of the lecture (2:45:58)

Section 60: all saleable property of the judgment-debtor is liable to attachment, such as land, houses, goods, money, cheques, promissory notes, debts and shares. The proviso exempts certain property so that he can live with dignity, for example:

• necessary clothing, cooking vessels, beds and bedding of the judgment-debtor and his family; ornaments that a woman cannot part with by religious usage;
• tools of artisans; implements, cattle and seed-grain of an agriculturist;
• books of account; a mere right to sue for damages; pensions; wages of labourers and domestic servants; provident fund money;
• salary: the first 1,000 rupees and two-thirds of the rest are exempt, but under a decree for maintenance only one-third is exempt. Once a salary has been under attachment for 24 months in all, it is exempt for the next 12 months.

Property	How attached
Movable property in the judgment-debtor's possession	Seizure
Debt	Order prohibiting the creditor from recovering it and the debtor from paying it, except into court
Salary	Order to the employer
Immovable property	Order prohibiting the judgment-debtor from transferring or charging it, proclaimed publicly

• Section 64: a private transfer of attached property after the attachment is void against the claims under the attachment; but a transfer under a contract entered into and registered before the attachment is protected.
• Order 21, Rule 58: if a third person claims the attached property, the executing court itself decides the claim.

Attachment before judgment (Order 38, Rule 5)

Attachment in execution	Attachment before judgment
After the decree (Section 60, Order 21)	Even before the decree (Order 38)
Saleable property is attached so that it can be sold to satisfy the decree	Only where the court is satisfied that the defendant, to obstruct or delay execution, is about to dispose of his property or remove it from its local limits; the court first calls on him to give security or show cause, and if he fails, the property may be attached

Sale

After attachment, the court may order the property to be sold by public auction, conducted by an officer of the court.

• Order 21, Rule 64: only so much of the property shall be sold as is necessary to satisfy the decree.
• Order 21, Rule 66: a proclamation of sale is drawn up after notice to the decree-holder and the judgment-debtor, stating the time and place of sale, the property, any encumbrance, the amount to be recovered, and every other material fact.
• Unless the judgment-debtor consents in writing, a sale cannot take place until at least fifteen days (immovable property) or seven days (movable property) after the proclamation is affixed in the court house.
• At an auction of immovable property, the highest bidder must deposit twenty-five per cent of the price at once and the balance within fifteen days.
• The decree-holder cannot bid without the permission of the court.

Setting aside a sale of immovable property

There are three ways; each application must be made within sixty days of the sale.

Provision	Who applies	Ground or condition
Order 21, Rule 89	Any person with an interest in the property	Deposits the amount due under the proclamation, plus five per cent of the purchase money as compensation for the buyer
Order 21, Rule 90	Decree-holder, buyer, or any person whose interests are affected	Material irregularity or fraud in publishing or conducting the sale; must show substantial injury; cannot raise a ground he could have raised before the proclamation was drawn up
Order 21, Rule 91	Buyer	The judgment-debtor had no saleable interest

If no application succeeds, the court confirms the sale under Rule 92, issues a sale certificate and delivers possession. Under Section 65, the buyer's title relates back to the date of the sale.

The Limitation Act, 1963: General Provisions and the Bar of Limitation

▶ Watch this part of the lecture (2:56:19)

Before any stage of a civil case, from plaint to execution, one question comes first: has the plaintiff come to court in time?

Period of limitation

The law gives every claim a fixed period, called the period of limitation.

• The Act came into force on 1 January 1964.
• Its Schedule has 137 Articles fixing the periods for suits, appeals and applications, e.g. 3 years for a suit for money lent and 90 days for an appeal to a High Court.

Why time defeats a genuine claim

1. Long dormant claims cause more cruelty than justice.
2. Evidence is lost and witnesses die, so a defendant may be unable to prove a payment made long ago.
3. A person with a good claim should pursue it with diligence.

Section 3: the bar of limitation

Subject to Sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The court must check limitation itself, even if the defendant never objects.

• A suit is instituted when the plaint is presented to the proper officer.
• A set-off is treated as instituted on the date of the suit; a counterclaim on the date it is made in court.

Remedy barred, right survives

As a general rule, limitation bars only the remedy. The debt remains but the court will not help recover it, so a debtor who voluntarily pays a time-barred debt cannot claim it back. The important exception is Section 27 (see adverse possession below).

Section 4: court closed

If the period expires on a day the court is closed, filing may be done on the day it reopens.

Condonation of Delay (Section 5)

▶ Watch this part of the lecture (3:00:17)

The court may admit an appeal or application after the prescribed period if the person satisfies it that he had sufficient cause for the delay.

1. Section 5 does not apply to suits: a suit filed even one day late must be dismissed, unless another section saves it.
2. It does not apply to applications under Order 21 of the CPC (execution).
3. Explanation: being misled by an order, practice or judgment of the High Court may be sufficient cause.

Coronavirus pandemic

The Supreme Court excluded 15 March 2020 to 28 February 2022 from limitation for all judicial and quasi-judicial proceedings. Where limitation would have expired in that period, at least 90 days were allowed from 1 March 2022.

The recent stricter approach

Legal Disability (Sections 6 to 8)

Section 6

If a person entitled to sue, or to apply for execution, is a minor, insane or an idiot when the period is to begin, he may sue or apply within the same period after the disability ends.

• Two disabilities: time runs only after both end.
• Disability lasting until death: his legal representative gets the same period from the death.

Section 7: joint claimants

If one of several joint claimants is under disability, time runs against all if the others can give a valid discharge without him; otherwise it waits until one of them can, or until the disability ends.

Section 8: outer limit

• Sections 6 and 7 cannot extend the period by more than 3 years after the disability ends or the person dies.
• So, for a twelve-year claim, the person gets the ordinary period or 3 years after the disability ends, whichever is later.
• These benefits do not apply to suits for pre-emption.

Continuous Running of Time (Section 9)

Once time has begun to run, no later disability or inability to sue stops it.

Proviso: if the debtor is granted letters of administration to his creditor's estate, time for recovering the debt is suspended while the administration continues.

Computation of the Period of Limitation

▶ Watch this part of the lecture (3:05:35)

Section 12

• The first day of the period is excluded.
• In an appeal, revision or review, the day of the judgment is excluded, and so is the time needed to obtain copies of the decree and judgment.

Section 13

Time spent in good faith on an application to sue or appeal as an indigent person is excluded if that application is rejected.

Section 14: wrong court

Time spent prosecuting another civil proceeding is excluded where it was:

1. against the defendant, on the same matter in issue;
2. prosecuted with due diligence and in good faith; and
3. one that court could not entertain because of a defect of jurisdiction or a similar cause.

Section 15

Excludes the time during which filing a suit was stayed by an injunction or order, and the period of a notice required by law.

Section 17: fraud and mistake

For a suit based on fraud, a right concealed by fraud, or a suit for relief from a mistake, time begins only when the plaintiff discovered the fraud or mistake, or could with reasonable diligence have discovered it.

Section 21

A party added later is treated as sued when added; for a mistake made in good faith, the court may fix an earlier date.

Section 22: continuing wrongs

A continuing breach of contract or continuing tort gives a fresh period at every moment it continues.

Acknowledgement and Part Payment (Sections 18 and 19)

Section 18: acknowledgement

If the debtor acknowledges liability in writing, signed by him or his agent, before the period expires, a fresh period begins from the date he signs. The acknowledgement:

1. must be made before the period expires;
2. must be in writing and signed;
3. must admit a subsisting liability;
4. need not state the exact amount; and
5. is valid even if coupled with a refusal to pay (Explanation).

An acknowledgement after expiry cannot revive the claim under this section, though it may be a fresh promise to pay a time-barred debt under Section 25 of the Indian Contract Act.

Section 19: part payment

A part payment of a debt, or of interest on a legacy, made before the period expires starts a fresh period from the date of payment, but the payment must be acknowledged in the handwriting of, or in a writing signed by, the payer.

Point	Acknowledgement (Section 18)	Part payment (Section 19)
Nature	Admission of liability in a signed writing	Actual payment; only its acknowledgement must be in writing
Timing	Before the period expires	Before the period expires
Effect	Fresh period from the date of signing	Fresh period from the date of payment

Acquisition of Ownership by Prescription

▶ Watch this part of the lecture (3:10:13)

Time can make a person the owner of property that was not his: acquisition by prescription.

Easements (Section 25)

An easement is a right to use another's land, such as a right of way or a right to light and air.

• If a person has enjoyed such a right peaceably and openly, as of right and without interruption, for 20 years, the right becomes absolute (30 years against the Government).
• The 20 years must end within 2 years before the suit in which the right is contested.

Adverse possession

• Section 27: when the period for a suit for possession of any property ends, the owner's right to that property is extinguished.
• Article 65: a suit for possession of immovable property based on title lies within 12 years from when the defendant's possession becomes adverse to the plaintiff; 30 years against the Government.
• Article 64: a suit based on previous possession lies within 12 years from dispossession.

Proving adverse possession

• Possession must be actual, open, continuous and hostile to the true owner: nec vi, nec clam, nec precario (without force, secrecy or permission).
• A tenant's or licensee's possession, being permissive, is not adverse unless he openly claims a hostile title to the owner's knowledge.
• The claimant must plead and prove the date from which his possession became adverse.
• The Supreme Court has held that perfected title can be used not only as a shield when sued, but also as a sword, by suing to declare title.

Law Commission of India, Report No. 280 (2023)

• After these calls, the Law Commission, chaired by Justice Ritu Raj Awasthi, reported on adverse possession in May 2023 and found no justification for changing the law.
• It rejected proposals to require good faith or compensation, to lengthen the twelve-year period, and to abolish adverse possession against Government land.
• Reasons: an owner suing on title need prove only his title, while the claimant must prove adverse possession; the Government already has 30 years.
• It recommended keeping the law with only a small drafting change. Two members dissented, urging its removal altogether. The law has not been changed.

Quick revision

• Disability at the start stops the clock (Section 6, within Section 8); a later disability cannot stop a running clock (Section 9).
• Twelve years of adverse possession bar the owner's suit (Article 65) and extinguish his title (Section 27).
• In every problem, follow the suit step by step, from jurisdiction and the plaint to the decree and its execution, and always check limitation.
• Always name the section and support it with the leading case.
• Where two concepts look similar, such as res sub judice and res judicata, or review and revision, write their differences clearly, with an example.