This document provides an overview of various topics related to the Code of Civil Procedure in India, including appearance and examination of parties, adjournments, commissions, arrest before judgment, attachment before judgment, temporary injunction, appointment of receivers, interest, and costs. It discusses the relevant sections and orders of the Code and provides details on the procedures and grounds for each topic. The document is presented as teaching materials on the Code of Civil Procedure for law students.

1. Dr. Khakare Vikas 1
E-LEARNING MODULES
TOPIC : CODE OF CIVIL PROCEDURE
CLASS: LLB third year and BALLB fifth year
MODULE 4 Appearance, Examinattion and Trial
Submitted by:
Dr. Khakare Vikas
Asso. Prof.
Narayanrao Chavan Law College, Nanded
SRTMUN College code127
CONTENTS NOTES
1 APPEARANCE OF PARTIES AND EFFECTS OF NON
APPEARANCE [Order IX]
On the day fixed in the summons for the defendant to appear an
answer, the parties (plaintiff and defendant) shall attend
Court-house in person or by their pleaders.1
1.1 When neither party appears
Where neither party appears when the suit is called on for
hearing, the Court may make an order that the suit be dismissed.
1.2 Where summons returned unserved
Where summons is issued to defendant(s) but returned unserved
then plaintiff within seven days, apply for issue of fresh
summons. Failure to this, Court shall make order dismissing suit.
1.3 When only plaintiff appears
a. When summons was duly served - If it is proved that the
summons was duly served, the Court may make an order that
the suit be heard ex-parte;
b. When summons not duly serve - if is not proved that
summons was duly served, Court shall direct a second
summons to be issued and served on the defendant.
c. When summons served but not in due time - if it is proved
that the summons was served on the defendant, but not in
sufficient time to enable him to appear and answer on the day
fixed in the summons, the Court shall postpone the hearing of
the suit to future day to be fixed by the Court, and shall direct
notice of such day to be given to the defendant.2
1.4 When defendant appears on day of adjourned hearing
Where the Court has adjourned the hearing of the suit
ex-parte and the defendant, at or before such hearing, appears
and assigns good cause for his previous non-appearance, he may,
upon such terms as the Court directs as to costs or otherwise, be
1
Order IX Rule 1
2
Order IX Rule 6

2. Dr. Khakare Vikas 2
heard in answer to the suit as if he had appeared on the day, fixed
for his appearance.3
1.5 Where only defendant appears:
Where the defendant appears and the plaintiff does not
appear when the suit is called on for hearing, the Court shall
make an order that the suit be dismissed. If the defendant admits
the claim or part thereof, the Court shall pass a decree against the
defendant upon such admission. Where part only of the claim has
been admitted, shall dismiss the suit so far as it relates to the
remainder.4
1.6 Setting aside ex-parte against defendant
Where defendant has remained absent and court proceeded
ex-parte against him. Then defendant has following remedies.
Application to restore: After passing ex-parte decree if
defendant appears and makes application for order to set it aside
and restore suit to its original stage.
Application to set aside order: If defendant appears before
Court on next date for hearing and makes application to set aside
order to proceed ex-parte Court may set aside such order upon it
satisfaction that there was sufficient cause for not appearing
defendant.
Appeal: where ex-parte decree is passed, defendant may prefer
appeal before Appellate Court requesting to set aside ex-parte
order on the ground that there was sufficient cause for his non
appearance and restore suit to its original number and stage.
Review application: After passing ex-parte decree, defendant
may make Review Application to the Court which passed
ex-parte decree, to restore the suit.
2 EXAMINATION OF PARTIES BY THE COURT [ORDER
X]
Ascertainment whether allegations in pleadings are admitted
or denied
At the first hearing of the suit the Court shall ascertain from each
party or his pleader whether he admits or denies such allegations
of factas are made in the plaint or written statement (if any)of the
opposite party, and as are not expressly or by necessary
implication admitted or denied by the party against whom they
are made. The Court shall record such admissions and denials.
3
Order IX Rule 7
4
Order IX Rule 8

3. Dr. Khakare Vikas 3
2.1 Oral examination of party, or companion of party
At the first hearing of the suit, the Court shall, with a view to
elucidating matters in controversy in the suit examine orally such
of the parties to the suit appearing in person or present in Court,
as itdeems fit; and may orally examine any person, able to
answer any material question relating to the suit, by whom any
party appearing in person or present in Court or hispleader is
accompanied.
3 ADJOURNMENTS [ORDER XVII]
Court may grant time and adjourn hearing
The Court may, if sufficient cause is shown, at any stage of the
suit grant time to the parties or to any of them, and may from
time to time adjourn the hearing of the suit.
In every such case the Court shall fix a day for the further
hearing of the suit and may make such order, as it thinks fit with
respect to the costs occasioned by the adjournment.
No adjournment shall be granted at the request of a party, except
where the circumstances are beyond the control of that party.
The fact that the pleader of a party is engaged inanother Court,
shall not be a ground for adjournment.
Where the illness of a pleader or his inability to conduct the case
for any reason, other than his being engaged in another Court, is
put forward as a ground for adjournment, the Court shall not
grant the adjournment unless it is satisfied that the party applying
for adjournment could not have engaged another pleader in time.
4 COMMISSIONS [Section 75 to 78; Order XXVI]
Subject to such conditions and limitations as may be
prescribed, the Court may issue a commission5
4.1 Commission to examine witness:
Any Court may in any suit issue a commission for the
examination on interrogatories or otherwise of any person
resident within the local limits of its jurisdiction who is exempted
under this Code from attending the Court or who is from sickness
or infirmity unable to attend it.6
4.2 Commission to make local investigation:
In any suit in which the Court deems a local investigation to
be requisite or proper for:
i. the purpose of elucidating any matter in dispute, or
ii. of ascertaining the market-value of any property, or
iii. the amount of any mesne profits or damages or annual net
profits,
5
Section 75
6
Order XXVI Rule 1

4. Dr. Khakare Vikas 4
the Court may issue a commission to such person as it thinks fit
directing him to make such investigation and to report thereon to
the Court.7
4.3 Commission for scientific investigation
Where any question arising in a suit involves any
scientific investigation which cannot, in the opinion of the Court,
be conveniently conducted before the Court, the Court may, if it
thinks it necessary or expedient in the interests of justice so to do,
issue a commission to such person as it thinks fit, directing him
to inquire into such question and report thereon to the Court. 8
4.4 Commission for performance of a ministerial act:
Where any question arising in a suit involves the
performance of any ministerial act which cannot, in the opinion
of the Court, be conveniently performed before the Court, the
Court may, if, for reasons to be recorded, it is of opinion that it is
necessary or expedient in the interests of justice so to do, issue a
commission to such person as it thinks fit, directing him to
perform that ministerial act and report thereon to the Court.9
4.5 Commission for the sale of movable property
Where in any suit, it becomes necessary to sell any
movable property which is in the custody of the Court pending
the determination of the suit and which cannot be conveniently
preserved, the Court may, if, for reasons to be recorded, it is of
opinion that it is necessary or expedient in the interests of justice
so to do, issue a commission to such person as it thinks fit,
directing him to conduct such sale and report thereon to the
Court. Every such sale shall be held, as far as may be, in
accordance with the procedure prescribed for the sale of movable
property in execution of a decree.10
4.6 Commission to examine or adjust accounts
In any suit in which an examination or adjustment of the
accounts is necessary, the Court may issue a commission to such
person as it thinks fit directing him to make such examination or
adjustment.11
7
Order XXVI Rule 9
8
Order XXVI Rule 10A
9
Order XXVI Rule 10B
10
Order XXVI Rule 10C
11
Order XXVI Rule 11

5. Dr. Khakare Vikas 5
4.7 Commission to make partition of immovable property
Where a preliminary decree for partition has been passed, the
Court may, issue a commission to such person as it thinks fit to
make the partition or separation according to the rights as
declared in such decree.12
5 ARREST BEFORE JUDGMENT [Order XXXVIII Rule 1- 4]
Application for arrest may be made by the plaintiff.
Application must be supported with an affidavit stating grounds
for making such application.
5.1 Grounds for application for arrest before judgment
Where Court is satisfied that,
(a) That the defendant, with intent to delay the plaintiff, or to
avoid any process of the Court or to obstruct or delay the
execution of any decree that may be passed against him:
i. Has absconded or left the local limits of the
jurisdiction of the Court, or
ii. Is about to abscond or leave the local limits of the
jurisdiction of the Court, or
iii. Has disposed of or removed from the local limits of the
jurisdiction of the Court his property or any part
thereof,
Or
(b) That the defendant is about to leave India under
circumstances affording reasonable probability that the plaintiff
will or may thereby be obstructed or delayed in the execution of
any decree that may be passed against the defendant in the suit.13
5.2 The Court may issue a warrant to arrest the defendant and bring
him before the Court to show cause why he should not furnish
security, for his appearance.
Where the defendant fails to show such cause the Court shall
order him:
i. To deposit in Court money or other property sufficient answer
the claim against him, or
ii. To furnish security for his appearance at any time when called
upon while the suit is pending and until satisfaction of any
decree that may be passed against him in the suit, or
iii. Make such order as it thinks fit in regard to the sum which may
have paid by the defendant under the provision to the last
12
Order XXVI Rule 13
13
Order XXXVIII Rule 1

6. Dr. Khakare Vikas 6
preceding rule.
5.3 Surety:
Defendant may require to provide surety for appearance of
defendant.
5.4 Arrest:
Where the defendant fails to comply with any order, the Court
may commit him to the civil prison until the decision of the suit
or, where a decree is passed against the defendant, until the
decree has been satisfied.
5.5 Duration of arrest
A person cannot be detained for a longer period than six
months. Where or value of subject matter is not more than fifty
rupees, person cannot be detained more than six weeks.14
6 ATTACHMENT BEFORE JUDGMENT [Order XXXVIII
Rule 5 to12]
Object of this provision is to prevent any attempt on the
part of the defendant in a suit to defeat the realization of decree
that may eventually be passed against him.
6.1 Grounds for application for attachment before judgment
Where Court is satisfied that, that the defendant, with
intent to obstruct or delay the execution of any decree that may
be passed against him,
a. Is about to dispose of the whole or any part of his
property, or
b. Is about to remove the whole or any part of his
property from the local limits of the jurisdiction of the
Court.15
6.2 Court may direct the defendant, within a time to be fixed by
it, either
i. To furnish security, in such sum as may be specified in the
order, to produce and place at the disposal of the Court, when
required, the said property or the value of the same, or such
portion thereof as may be sufficient to satisfy the decree, or
ii. To appear and show cause why he should not furnish security.
6.3 Attachment:
Where the defendant fails to show cause why he should
not furnish security, or fails to furnish the security required,
14
Order XXXVIII Rule 4
15
Order XXXVIII Rule 5

7. Dr. Khakare Vikas 7
within the time fixed by the Court, the Court may order that the
property specified, or such portion thereof as appears sufficient to
satisfy any decree which may be passed in the suit, be attached.
6.4 Removal of attachment
Order the attachment to be withdrawn when :
i. The defendant furnishes the security required, together with
security for the cost of the attachment, or
ii. When the suit is dismissed.
7 TEMPORARY INJUNCTION [Order XXXIX Rule 1 to 5]
Temporary injunction is order of Court directing party to suit to
do or refrain from doing certain act for the time being.
7.1 Grounds of temporary injunction:
Where in any suit it is proved by affidavit or otherwise
that there are following grounds exists:
a. That any property in dispute in a suit is in danger of
being:
i. wasted,
ii. damaged or
iii. alienated by any party to the suit, or
iv. wrongfully sold in a execution of a decree, or
b. That the defendant threatens, or intends, to remove or
dispose of his property with a view to defrauding his
creditors,
c. That the defendant threatens to dispossess, the plaintiff
or otherwise cause injury to the plaintiff in relation to
any property in dispute in the suit.16
7.2 Principles:
The Court has to use this discretion judiciously and on the
well settles principles which includes...
1. Prima facie case,
2. Balance of convenience,
3. Irreparable injury and,
4. Other factors.
7.3 Duration of order:
An order of temporary injunction is applicable while the
suit is pending or till further order of the Court. If temporary
injunction is not vacated, it is automatically vacate by judgment.
8 APPOINTMENT OF RECEIVER [Order XL]
16
Order XXXIX Rule 1

8. Dr. Khakare Vikas 8
Receiver is a person appointed by the Court to take care of
property and business.
8.1 Grounds
Where it appears to the Court to be just and convenient,
the Court may by order:
a. Appointment a receiver of any property, whether
before or after decree;
b. Remove any person from the possession or custody of
the property;
c. Commit the same to the possession, custody or
management of the receiver.
8.2 Powers of receiver:
Court confer upon the receiver all such powers, as to bringing
and defending suits and for the realization, management,
protection, preservation and improvement of the property.
8.3 Duties of receiver
a. Furnish such security (if any) as the Court thinks fit,
duly to account for what he shall receive in respect of
the property;
b. Submit his accounts at such periods and in such form
as the Court directs;
c. Pay the amount due from him as the Court directs; and
d. Be responsible for any loss occasioned to the property
by his wilful default or gross negligence.17
9 INTEREST [Section 34]
Court may award interest on principal amount where a
decree is for payment of money. Such interest may be in addition
to interest adjudged.
9.1 Interest may be payable
From date of suit to date of decree.
From date of decree to the date of payment.
From any earlier date as the Court thinks fit.
9.2 Rate of interest
The rate of interest is at the discretion of the Court.
Court may consider agreement between the parties, it may be 6%
p.a. or rate of the interest advanced by Nationalized Bank.
10 COST [Section 35, 35A, 35B, Order XX A]
‘Cost’ means ‘cost of suit/litigation’.
10.1 Types of cost:
Cost may be of following types:
17
Order XL Rule 3

9. Dr. Khakare Vikas 9
i. General cost;
ii. Compensatory cost;
iii. Cost for causing delay; and
iv. Miscellaneous cost.
10.2 General cost:
Subject to such conditions and limitations as may be
prescribed, and to the provisions of law for the time being in
force, the costs of and incident to all suits shall be in the
discretion of the Court, and the Court shall have full power to
determine by whom or out of what property and to what extent
such costs are to be paid, and to give all necessary directions for
the purposes aforesaid. The fact that the Court has no jurisdiction
to try the suit shall be no bar to the exercise of such powers.
Where the Court directs that any costs shall not follow the event,
the Court shall state its reasons in writing.18
10.3 Compensatory cost:
If any suit or other proceedings including an execution
proceedings but excluding an appeal or a revision any party
objects to the claim of defence on the ground that the claim or
defence or any part of it is, as against the objector, false or
vexatious to the knowledge of the party by whom it has been put
forward, and if thereafter, as against the objector, such claim or
defence is disallowed, abandoned or withdrawn in whole or in
part, the Court if it so thinks fit, may, after recording its reasons
for holding such claim or defence to be false or vexatious, make
an order for the payment to the object or by the party by whom
such claim or defence has been put forward, of cost by way of
compensation.19
10.4 Cost for causing delay:
A Court may allow costs for causing delay:
If, on any date fixed for the hearing of a suit or for taking
any step therein, a party to the suit:
a. Fails to take the step which he was required by or
under this Code to take on that date, or
b. Obtains an adjournment for taking such step or for
producing evidence or on any other ground,
the Court may, for reasons to be recorded, make an order
requiring such party to pay to the other party such costs
10.5 Miscellaneous cost
A Court may grant miscellaneous cost for :
a. Expenditure incurred for the giving of any notice
required to be given by law before the institution of the
suit;
18
Section 35
19
Section 35A

10. Dr. Khakare Vikas 10
b. Expenditure incurred on any notice which, though not
required to be given by law, has been given by any
party to the suit to any other party before the institution
of the suit;
c. Expenditure incurred on the typing, writing or printing
of pleadings filed by any party;
d. Charges paid by a party for inspection of the records of
the Court for the purposes of the suit;
e. Expenditure incurred by a party for producing
witnesses, even though not summoned through Court,
and
f. In the case of appeals, charges incurred by a party for
obtaining any copies of judgments and decrees which
are required to be filed along with the memorandum of
appeal.20
Questions for practice.
1. State effects of appearance and non appearane of party to suit.
2. When court may proceed ex-parte against defendant?
3. What remedies are available to defendant in case of ex-parte order against him?
4. Write provisions as to adjournment.
5. Foe what purposes court may issue commission?
6. When court may pass order for arrest before judgment?
7. When court may pass order for attachment before judgment?
8. What are grounds for issuing temporary injunction?
9. What is cost? What type of cost may be awarded by the court?
urther study:
For more information and study read Code of Civil Procedure 1908 with commentary and case
laws.
20
Order XX A