Code of Civil Procedure (LLB -307)

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
SEMESTER: FIFTH
BBALLB III A+B+C & BALLB III A+B+C
NAME OF THE SUBJECT: CODE OF CIVIL
PROCEDURE
UNIT-I
TOPIC: DEFINITIONS
FACULTY NAME: Ms. Ridam Aggarwal
(Assistant Professor)

Introduction
• Scheme of the Act:- It consolidates the law relating to
procedure of Civil Courts.
• It has 158 sections in the first part (the main part) and
51 ORDERS in the second part containing Rules and 8
appendices .
• The Sections contain the fundamental principles, and
thus create jurisdiction hence a substantive law whereas
the Rules deal with the detailed procedure as to how
the jurisdiction should be exercised.

DEFINITIONS

Decree – S.2(2)
• The formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard
to all or any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of a plaint
and the determination of any question within section 144, but shall not
include—
(a) any adjudication from which an appeal lies as an appeal from an order,
or
(b) any order of dismissal for default.
Explanation.—A decree is preliminary when further proceedings have to be
taken before the suit can be completely disposed of. It is final when such
adjudication completely disposes of the suit. It may be partly preliminary
and partly final;

Judgment & Order – S.2(9) &
S.2(14)
• S. 2(9) - “Judgment” means the statement
given by the Judge of the grounds of a decree
or order.
• S. 2(14) - “Order” means the formal
expression of any decision of a Civil Court
which is not a decree.

Foreign Court & Foreign Judgment
• S.2(5)- “Foreign Court” means a Court situate
outside India and not established or continued
by the authority of the Central Government;
• S.2(6)- “Foreign Judgment” means the
judgment of a foreign Court.

Section 13 & 14 related to Foreign
Judgment
• S. 13 - When foreign judgment not conclusive.—
A foreign judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between parties under whom
they or any of them claim litigating under the same title except—
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognise the law of India in
cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to
natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India

Section 13 & 14 related to Foreign
Judgment Cont.
S. 14 - Presumption as to foreign judgments-
The Court shall presume upon the production
of any document purporting to be a certified
copy of a foreign judgment, that such judgment
was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the
record; but such presumption may be displaced
by proving want of jurisdiction.

Mesne Profit – S.2(12)
• “Mesne Profits” of property means those
profits which the person in wrongful
possession of such property actually received
or might with ordinary diligence have received
therefrom, together with interest on such
profits, but shall not include profits due to
improvements made by the person in wrongful
possession.

Affidavit – Section 139
• Affidavit under Section 139 of the CPC is a statement in
writing, made before an officer of the court authorized to
administer oaths.
• The person making the affidavits known as the deponent for
he ‘deposes’ to the facts contained therein.
• For instance, interrogatories are answered by way of
affidavit. Where a party is bound to disclose documents in
answer to interrogatories, it is called affidavit of documents.
A declaration of facts that have been reduced to writing and
affirmed before an officer competent to administer oaths is
an affidavit.

Affidavit – Section 139 Cont.
• An affidavit must contain only such facts that are known to the
deponent or such information that he believes to be correct. Rule
3 of Order 19, CPC provides that affidavits shall be confined to
such facts as the deponent is able of his own knowledge to prove,
except on interlocutory applications, on which statements of his
belief may be admitted, provided the grounds for the same are
state.
• Affidavits are not included within the purview of the definition of
“evidence” as has been given in Section 3 of the Evidence Act,
and the same can be used as “evidence” only if, for sufficient
reasons, the Court passes an order under Order XIX of the Code
of Civil Procedure, 1908

Plaint
• A suit is instituted by presentation of plaint
before the Court. A ‘plaint’ is written
application made by plaintiff against defendant
seeking relief from the Court.
• A plaint is pleading and should conform to the
rules of pleading.
• Along with plaint, plaintiff shall file
documents on which he relies for the relief.

Written Statement
• Pleading include written statement (ws).
• Written statement is pleading on behalf of
defendant wherein he
• gives his defence or reply to the allegation made
by plaintiff.
• A written statement is pleading therefore should
conform to rules of pleading.
• WS shall be presented within 30 (maximum 90)
days from service of summons.

Suit
• ‘Suit’ is not defined in the Act. A suit is
initiated by presenting a ‘plaint’.
• In a suit, there are two parties, ie., plaintiff &
defendant.
• Plaintiff institutes the suit against the
defendance by presenting a plaint before the
court of law.
• In suit, plaintiff has claimed certain remedies
against the defendant.

Stages in a Suit
• Institution of Suit
• Issue of Summons
• Written Statement
• Discovery
• Issues
• Trial
• Judgment & Decree
(execution proceeding/appeal)

1. Institution of Suit
• A suit is instituted by plaintiff.
• Suit is not defined in the Code but a suit is
initiated by presenting plaint in the court.
• Plaint contains concise statement of the facts
& claim/relief. It is accompanied with
necessary documents on which plaintiff relies.
• Provisions related to this are under section 26,
Order I, II, III, IV, VI, VII.

2. Issue of Summons
• After institution of suit, Court issues summons
to defendant to appear before Court & enter
into his defence.
• Provisions for summons are Section 27,28,29
and Order III.

3. Written Statement
• After summons is served, defendant has to
appear before the Court and at first hearing has
to submit his written statement, ie., WS.
• In WS, defendant has to reply to the
allegations made in the plaint & take his
defence.
• Provisions for WS are under Order VIII.

4. Discovery
• Parties to a suit, ie., plaintiff & defendant are
entitled to know the nature & particulars of the
case.
• If pleading is not clear or is vague, opponent
will not be in a position to give proper reply.
• Under Section 30 & Order XI, a party to suit
can ask opposite party for ‘discovery of
documents or by interrogatories’.

5. Issues
• Court has to settle issues between the plaintiff
& defendant.
• It is finding of actual matter of controversy
between parties to the suit.
• Suits are settled or framed by considering facts
mentioned in plaint, written statement & other
documents submitted by parties.
• Order XI contains provisions for issues.

6. Trial
• Trial is the stage where Court can receive
evidence produced by the parties.
• First it is for plaintiff. Then, the defendant has to
produce evidence before the Court. Evidence
includes all statements & documents permitted by
the Court to be produced as evidence.
• Provisions related to Trial are in Order XVIII and
Indian Evidence Act, 1872 is also applicable.

7. Judgment
• After trial, when Court has heard both the
parties, a judgment will be pronounced in an
open court.
• About Judgment, a notice shalle be given to
parties. Judgment covers the finding of Courts
on all issues involved in the suit. On such
judgment, decree shall follow.
• Provisions related to Judgment & Decree are
under Section 33 & Order XX.

Execution Proceeding/Appeal
• After Judgment & Decree-
• Plaintiff who is Decree Holder can file execution
proceedings against the defendant, ie., judgment
debtor, before the same court. It is an independent
proceeding in comparison to a suit. Execution
Proceeding is possible for execution of an order or
decree.
• If the plaintiff or the defendant or both are not
satisfied with the decision of the court, they can file
an appeal before the Appellate Court.

TOPIC: IMPORTANT CONCEPTS

Caveat – S. 148A
• S.148A – Right to Lodge Caveat
(1) Where an application is expected to be made, or has been made, in a suit
or proceeding instituted, or about to be instituted, in a Court , any person
claiming a right to appear before the Court on the hearing of such application
may lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom
the caveat has been lodged (hereinafter referred to as the caveator) shall serve
a notice of the caveat by registered post, acknowledgement due, on the person
by whom the application has been, or is expected to be, made, under sub-
section (1).
(3) Where, after a caveat has been lodged under sub-section (1), any
application is filed in any suit or proceeding, the Court, shall serve a notice of
the application on the caveator.

Caveat – S. 148A Cont.
(4) Where a notice of any caveat has been served on the
applicant, he shall forthwith furnish the caveator at the
caveator’s expense, with a copy of the application made by
him and also with copies of any paper or document which has
been, or may be, filed by him in support of the application.
(5) Where a caveat has been lodged under sub-section (1),
such caveat shall not remain in force after the expiry of ninety
days from the date on which it was lodged unless the
application referred to in sub-section (1) has been made before
the expiry of the said period.

Res Sub-Judice – S.10
• Stay of Suit –
-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
a) between the same parties,
b) or between parties under whom they or any of them claim litigating under the
same title
-where such suit is pending in the same or any other Court in India have
jurisdiction to grant the relief claimed,
-or in any Court beyond the limits of India established or continued by he Central
Government and having like jurisdiction, or before the Supreme Court.
-Explanation.—The pendency of a suit in a foreign Court does not preclude the
Courts in 6 [India] from trying a suit founded on the same cause of action.

Res Judicata – S. 11
-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
a) between the same parties,
b) or between parties under whom they or any of them claim,
-litigating under the same title,
-in a Court competent to try such subsequent suit or the suit in
which such issue has been subsequently raised, and has been
heard and finally decided by such Court.

Res Judicata – S. 11 Cont.
Explanation I.—The expression “former suit” shall denote a suit
which has been decided prior to a suit in question whether or not it was
instituted prior thereto.
Explanation II.—For the purposes of this section, the competence of a
Court shall be determined irrespective of any provisions as to a right of
appeal from the decision of such Court.
Explanation III.—The matter above referred to must in the former suit
have been alleged by one party and either denied or admitted, expressly
or impliedly, by the other.
Explanation IV.—Any matter which might and ought to have been
made ground of defence or attack in such former suit shall be deemed
to have been a matter directly and substantially in issue in such suit.

Explanation V.—Any relief claimed in the plaint, which is not
expressly granted by the decree, shall for the purposes of this section,
be deemed to have been refused.
Explanation VI.—Where persons litigate bona fide in respect of a
public right or of a private right claimed in common for themselves and
others, all persons interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so litigating .
Explanation VII.—The provisions of this section shall apply to a
proceeding for the execution of a decree and references in this section
to any suit, issue or former suit shall be construed as references,
respectively, to a proceeding for the execution of the decree, question
arising in such proceeding and a former proceeding for the execution of
that decree.

Explanation VIII. —An issue heard and finally
decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res
judicata in a subsequent suit, notwithstanding that
such Court of limited jurisdiction was not competent
to try such subsequent suit or the suit in which such
issue has been subsequently raised.

Inherent Powers - Section 151
S. 151 – Saving of inherent powers of Court-
Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court
to make such orders as may be necessary for the
ends of justice or to prevent abuse of the process
of the Court.

Restitution – S. 144
—(1) Where and in so far as a decree [or an order] is [varied or
reversed in any appeal, revision or other proceeding or is set aside or
modified in any suit instituted for the purpose, the Court which passed
the decree or order] shall, on the application of any party entitled to any
benefit by way of restitution or otherwise, cause such restitution to be
made as will, so far as may be, place the parties in the position which
they would have occupied but for such decree [or order] or [such part
thereof as has been varied, reversed, set aside or modified]; and for this
purpose, the Court may make any orders, including orders for the
refund of costs and for the payment of interest, damages, compensation
and mesne profits, which are properly [consequential on such variation,
reversal, setting aside or modification of the decree or order].

Restitution – S. 144 Cont.
Explanation.—For the purposes of sub-section
(1), the expression “Court which passed the decree
or order” shall be deemed to include,—
(a) where the decree or order has been varied or
reversed in exercise of appellate or revisional
jurisdiction, the Court of first instance;
(b) where the decree or order has been set aside by a
separate suit, the court of first instance which
passed such decree or order.

Restitution – S. 144 Cont.
(c) where the Court of first instance has ceased to
exist or has ceased to have jurisdiction to execute, it,
the Court which, if the suit wherein the decree or
order was passed were instituted at the time of
making the application for restitution under this
section, would have jurisdiction to try such suit.
(2) No suit shall be instituted for the purpose of
obtaining any restitution or other relief which could
be obtained by application under sub-section (1).

TOPIC: EXECUTION OF DECREE & JUDGMENT

Introduction
• When a person obtains a decree from a court of law against another
person, his next step is to get the decree satisfied. The proceeding by
which he moves the court for satisfaction of decree is called
execution proceedings.
• Execution is the medium by which a decree holder constrains the
judgment-debtor to do the command of the decree or order as the
case may be. It empowers the decree holder to recover the products
of the judgment. The execution is finished when the judgment-
creditor or decree holder gets cash or other thing granted to him by
judgment, decree or order.
• The term “execution” has not been defined in the code. The
expression “execution” simply means the process for enforcing or
giving effect to the judgment of the court. The principles governing
execution of decree and orders are dealt with in Sections 36 to 74
and Order 21 of the Civil Procedure Code.

Classification Of Order 21
• Applications for execution and the process to
be applied.
• Stay of executions.
• Mode of executions.
• Sale of immovable property and movable
property.
• Adjudication of the claims and objections.

APPLICATIONS FOR
EXECUTION

Who Can Make Application For
Execution?
• Application for execution can be made by
• The decree holder himself.
• His legal representative if the decree holder is dead.
• Any person claiming under the decree holder.
• Transferee of Decree holder who has given notice to
transferor and judgement debtor.
• Any one or more of the Decree holders where it is for
benefit of all and no contrary intention is indicated.

Against Whom The Application
For Execution Can Be Made?
• Execution decree can be made only against the
judgement debtor r if he is alive or against
legal representatives of judgement debtor.

What Are The Decrees That May
Be Executed?
• The decree of a court against which no appeal has been
made shall be executed after expiry of the limitation period.
• Where a decree is reversed, modified on appeal, the only
decree capable of the execution is the appellate decree, but
exceptionally where the appellate judgment simply
dismisses the appeal. General rule that the appellate decree
alone is to be executed, does not apply and the court should
look at the later decree for the information of its contents.

Modes Of Execution

What Are The Modes Of Execution
Of A Decree?
The code sets down different methods of execution. After the decree holder
files an application for execution of decree, the executing court can implement
execution.
A decree can be enforced by:
• By delivery of any property specifically decreed.
• By attachment and sale or by sale without attachment of the property.
• By arrest and detention.
• By appointing a receiver.
• By effecting partition.
• Any such manner which the nature of relief requires.
Section 51 of C.P.C lays down the court may on the application of decree
holder subject to such conditions and limitation as may be prescribed, the court
may on the application of the decree holder order execution of the decree.

How Is Decree Related To Payment
Executed?
• By going through Order 21 rule 30 of C.P.C,
every decree for the payment of money,
including a decree for the payment of money
as the alternative to some other relief, may be
executed by detention in the Civil Prison of the
judgment debtor or, by the attachment and sale
of his property, or by both.

How Is Decree Related To Specific
Movable Property Executed?
According to Order 21 rule 31(1) of C.P.C, when the
decree is for any specific movable property, the
execution can take place in any of the following
made:
• By seizure and delivery of the property.
• By detention of the judgement debtor.
• By attachment of his properly.
• By attachment and detention both.

What Powers Does The Court Have Regarding The
Execution Of Immovable Property?
According to Order 21 rule 35 sub-rule-1 of C.P.C, A court executing a decree
has the power to attach the property and sell the property or portion thereof
which is sufficient to satisfy the decree. After such attachment the first step is
issuing proclamation of sale. Such a proclamation shall be prepared after
notice to both the sides and shall comprise of following details: -
• Time and place of sale.
• Details of property or part thereof to be sold.
• Revenue if any attached to property.
• Encumbrance to which the property is liable.
• Amount to be recovered under the decree.
• Such other particulars which court considers material.
• Service of notice is a mandatory requirement and non-compliance will
vitiate the entire proceedings.

How Is Decree For Specific Performance For
Restitution Of Conjugal Rights Or For An
Injunction Executed?
According to Order (21) rule (32) of C.P.C, “Where the party against
whom a decree for the specific performance of a contract, or for
restitution of conjugal rights or for an injunction, stay has been passed,
has had an opportunity of obeying the decree and if he has wilfully
failed to obey it, the decree may be enforced, in the case of a decree for
restitution of conjugal rights:
• By the attachment of his property, or in the case of a decree for
specific performance of a contract or for an injunction.
• By his detention in Civil Prison.
• By his detention in Civil Prison.
• By the attachment of his property.

Stay Of An Execution Of A Decree
Or An Order

What Are The Objectives And Conditions
Preceding The Stay Of An Execution?
• Rule 5 of CPC provides for the stay of an execution: Where the suit is
pending in any Court decree-holder and judgment-debtor in such
circumstances if the Court is found the rights of parties are required to be
adjudicated by the Court where such suit is pending and unless the rights
are to be determined, the decree cannot be executed in such circumstances,
Court can stay the execution proceeding. Also, when an appeal has been
filed by either of the parties, the appellate court may order stay of
proceedings or stay on an execution of such decree.
• The objective is: to protect the interest of both the parties i.e. the decree-
holder and the judgement-debtor. In case the order gets reversed by the
appellate court, the disputed subject matter will stay the same, thus
protecting the interest if both the parties.

What Are The Objectives And Conditions
Preceding The Stay Of An Execution? Cont.
The conditions preceding the court’s order regarding the stay on
execution of decree:
• The application has been made without unreasonable delay.
• The applicant might suffer from a substantial loss, unless such
stay is applied.
• Security has been given by the applicant for the due
performance of the decree.
This decree is usually passed when both the parties are heard.
However, under Rule 5(3): court have a power to make ex-parte
orders in case of stay of an execution.

Execution Of Claims & Objections

When Does The Court Adjudicates Upon The
Claims To And Objections With Respect To The
Property?
• The court adjudicates upon the claims to or objections in respect of
attachment of property in execution of decree. Such objections are
raised by judgement debtors or third parties on the ground that
property is not liable to attachment. It is necessary to observe and
adjudicate upon these claims before ordering for the sale of the
property as there would be no claim if the property in dispute is
already sold off.
• All questions (including questions relating to right, title or interest in
the property attached) arising between the parties to a proceeding or
their representatives under this rule and relating to adjudication of
claim or objection shall be dealt with by the court dealing with the
claim and not by separate suit.

When Does The Court Adjudicates Upon The Claims
To And Objections With Respect To The
Property? Cont.
The court satisfy all the claims and objections raised, and
further allow the property to be:
• Allow the claim or objection and release the property
from attachment either wholly or to such extent as it
thinks fit, or
• Disallow the claim or objection.
• Continue the attachment subject to any mortgage, charge
or other interest in favour of any person, or
• Pass such order, as in the circumstances of the case it
deems fit.

Resistence To Sale

Remedies Provided If There Is Any
Resistance To Sale.
Where the holder of a decree for possession of immovable
property or purchaser of any such property sold in execution of
decree is resisted or obstructed by any person in obtaining
possession of property, he may make an application complaining
of such resistance or obstruction and the court shall proceed to
adjudicate upon the application in accordance with the provisions
of the Act. The person in possession cannot file application under
this rule but can defend his conduct when application is moved
against him. The right to move such application is conferred on
decree holder or judgement purchaser

UNIT-2
JURISDICTION & PLACE OF SUING

Courts to try all civil suits unless barred – Section 9
• The Courts shall (subject to the provisions herein contained) have jurisdiction to try
all suits of a civil nature excepting suits of which their cognizance is either
expressly or impliedly barred.
• [Explanation I].—A suit in which the right to property or to an office is contested is
a suit of a civil nature, notwithstanding that such right may depend entirely on the
decision of questions as to religious rites or ceremonies.
• [Explanation I].—For the purposes of this section, it is immaterial whether or not
any fees are attached to the office referred to in Explanation I or whether or not
such office is attached to a particular place.]

Types of Jurisdiction
• There are three types of jurisdiction:
– Pecuniary Jurisdiction (S. 3,6 & 15)
– Subject Matter Jurisdiction
– Territorial Jurisdiction (S. 16 to 20)
• All the three types of jurisdictions have to be satisfied and only then can the court
entertain the suit as only then a suit is filed in the correct court.

Pecuniary Jurisdiction
• Section 3 – Subordination of Courts
For the purposes of this Code, the District Court is subordinate to the High Court, and
every Civil Court of a grade inferior to that of a District Court and every Court of Small
Causes is subordinate to the High Court and District Court.

Pecuniary Jurisdiction Cont.
• Section 6 – Pecuniary Jurisdiction
Save in so far as is otherwise expressly provided, nothing herein contained shall
operate to give any Court jurisdiction over suits the amount or value of the subject-
matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction
• Section 15 – Courts in which suits to be instituted
Every suit shall be instituted in the Court of the lowest grade competent to try it.

Subject Matter Jurisdiction
• The subject matter can be defined as the authority vested in a court to understand
and try cases concerning a special type of subject matter. In other words, it means
that some courts are banned from hearing cases of a certain nature. No question of
choices can be decided by the court which do not have subject matter jurisdiction.
• For Example, “Ranveer”, a resident of Sonipat bought a food item of ‘AA’ brand
that was plagued with pests. He should prosecute ‘ZZ’ company in Sonipat District
forum rather than District Civil Court of Sonipat.

Territorial Jurisdiction
• Section 16 - Suits to be instituted where subject-matter situate
Subject to the pecuniary or other limitations prescribed by any law, suits—
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property,
(d) or the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment,
shall be instituted in the Court within the local limits of whose jurisdiction the property
is situate:

Territorial Jurisdiction Cont.
• Provided that a suit to obtain relief respecting, or compensation for wrong to,
immovable property held by or on behalf of the defendant may, where the relief
sought can be entirely obtained through his personal obedience, be instituted either
in the Court within the local limits of whose jurisdiction the property is situate, or
in the Court within the local limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally works for gain.
• Explanation.—In this section “property” means property situate in India.

• Section 17 - Suits for immovable property situate within jurisdiction of different
Courts
Where a suit is to obtain relief respecting, or compensation for wrong to, immovable
property situate within the jurisdiction of different Courts. the suit may be instituted in
any Court within the local limits of whose jurisdiction any portion of the property is
situate
Provided that, in respect of the value of the subject-matter of the suit, the entire claim is
cognizable by such Court.

• Section 18 - Place of Institution of suit where local limits of jurisdiction of Courts
are uncertain
(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of
which of two or more Courts any immovable property is situate, any one of those
Courts may, if satisfied that there is ground for the alleged uncertainty, record a
statement to that effect and thereupon proceed to entertain and dispose of any suit
relating to that property, and its decree in the suit shall have the same effect as if
the property were situate within the local limits of its jurisdiction:
Provided that the suit is one with respect to which the Court is competent as regards the
nature and value of the suit to exercise jurisdiction..

(2) Where a statement has not been recorded under sub-section (1), and an objection is
taken before an Appellate or Revisional Court that a decree or order in a suit relating to
such property was made by a Court not having jurisdiction where the property is
situate, the Appellate or Revisional Court shall not allow the objection unless in its
opinion there was, at the time of the institution of the suit, no reasonable ground for
uncertainty as to the court having jurisdiction with respect thereto and there has been a
consequent failure of justice

• Section 19 - Suits for compensation for wrongs to person or movables
Where a suit is for compensation for wrong done to the person or to movable property,
if the wrong was done within the local limits of the jurisdiction of one Court and the
defendant resides, or carries on business, or personally works for gain, within the local
limits of the jurisdiction of another Court, the suit may be instituted at the option of the
plaintiff in either of the said Courts.

• Section 20 - Other suits to be instituted where defendants reside or cause of action
arises
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the
local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the time
of the commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain, provided that in such case either the leave of the Court is
given, or the defendants who do not reside, or carry on business, or personally works
for gain, as aforesaid, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises.
[Explanation].—A corporation shall be deemed to carry on business at its sole or
principal office in India or, in respect of any cause of action arising at any place where
it has also a subordinate office, at such place.

UNIT-2
INSTITUTION OF SUIT

Section 26 – Institution of Suit
• Every suit shall be instituted by the presentation of a plaint or in such other manner
as may be prescribed.
• In every plaint, facts shall be proved by affidavit:
Provided that such an affidavit shall be in the form and manner as prescribed under
Order VI of rule 15A.

Order VI Rule 15
O6 R15 Verification of pleadings in a commercial dispute —
(1) Notwithstanding anything contained in Rule 15, every pleading in a commercial
dispute shall be verified by an affidavit in the manner and form prescribed in the
Appendix to this Schedule.
(2) (2) An affidavit under sub-rule (1) above shall be signed by the party or by one of
the parties to the proceedings, or by any other person on behalf of such party or
parties who is proved to the satisfaction of the Court to be acquainted with the
facts of the case and who is duly authorised by such party or parties.

Order VI Rule 15 Cont.
(3) Where a pleading is amended, the amendments must be verified in the form and
manner referred to in sub-rule (1) unless the Court orders otherwise.
(4) Where a pleading is not verified in the manner provided under sub-rule (1), the
party shall not be permitted to rely on such pleading as evidence or any of the matters
set out therein.
(5) The Court may strike out a pleading which is not verified by a Statement of Truth,
namely, the affidavit set out in the Appendix to this Schedule.

Order VI – Institution of Suit
R1 Suit to be commenced by plaint
(1) Every suit shall be instituted by presenting 3 [plaint in duplicate to the Court] or
such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as
they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the
requirements specified in sub-rules (1) and (2)].
R2 Register of suits
The Court shall cause the particulars of every suit to be entered in a book to be kept for
the purpose and called the register of civil suits. Such entries shall be numbered in
every year according to the order in which the plaints are admitted.

PLEADING, PLAINT, WRITTEN STATEMENT & SUIT

Pleading
• Pleading means, the formal statement of cause of action or defence. Civil Procedure
Code defined pleading as ‘pleading means plaint and written statement’.[ Order VI,
Rule 1]
• Object of pleading is as under:
i) To give information to both sides as to the case. Both parties are entitled to know
case against them.
ii) To bring parties to definite issues.
iii) To avoid unnecessary pleadings and thereby reduce time of litigation and expenses.

Rules of Pleading
1. Pleading to state material facts and not evidence. Every pleading shall contain, and
contain only a statement in a concise form of the material facts on which the party
pleading relies for his claim or defence as the case may be, but not the evidence by
which they are to be proved. [O.VI R.2]
2. Every pleading shall, when necessary, be divided into paragraphs, numbered
consecutively, each allegation being, so far as is convenient, contained in a separate
paragraph.[O.VI R.2]
3. Dates, sums and numbers shall be expressed in a pleading in figures as well as in
words. [O.VI, R.2]
4. In all cases in which the party pleading relies on any misrepresentation, fraud, breach
of trust, wilful default, or undue influence, and in all other cases in which particulars
may be necessary beyond such as are exemplified in the forms aforesaid, particulars
(with dates and items if necessary) shall be stated in the pleading. [O.VI, R.4]

Rules of Pleading Cont.
5. If there is any condition precedent which plaintiff or defendant wants to be contested
must be distinctly specified in the pleading. [O. VI, R. 6]
6. Where a contract is alleged in any pleading, a bare denial of the same by the opposite
party shall be considered only as a denial in fact of the contract and not the denial of
the legality or sufficiency in law of such contract. [O.VI, R.8]
7. Wherever the contents of any document are material, it shall be sufficient in any
pleading to state the effect thereof as briefly as possible, without setting out the whole
or any part thereof. [O.VI R.9]
8. Wherever it is material to allege malice, fraudulent intention, knowledge or other
condition of the mind of any person, it shall be sufficient to allege the same as a fact
without setting out the circumstances from which the same is to be inferred. [O. VI,
R.10]

Rules of Pleading Cont.
9. Wherever any contract or any relation between any persons is to be implied from a
series of letters or conversations or otherwise from a number of circumstances it shall
be sufficient to allege such contract or relation as a fact, and to refer generally to such
letter, conversations or circumstances. There is no need to state details. [O.VI, R. 12]
10. Neither party need in any pleading allege any matter of fact which
the law presumes in his favour or as to which the burden of proof lies
upon the other side unless the same has first been specifically denied. [O.VI, R. 13]
11. Every pleading shall be signed by the party and his pleader.
Pleading may be signed by person duly authorised by party to suit. [O.VI, R. 14]
12. Every pleading shall be verified at the foot by the party. It shall state the date on
which and the place at which it was signed [O.VI, R.15]

Striking Out Pleading
• The Court may at any stage of the proceedings order to be struck out or amended any
matter in any pleading:
a) Which may be unnecessary, scandalous, frivolous or vexatious, or
b) Which may tend to prejudice, embarrass or delay the fair trial of the suit, or
c) Which is otherwise an abuse of the process of the Court. [O.VI, R. 16]

Amendment of Pleading
• The Court may at any stage of the proceeding allow either party to alter or amend his
pleadings in such manner and on such terms as may be just.
• The Court may allow amendment in the pleading when:
a) It is necessary for determination of real question in controversy,
b) It is just and proper,
c) It is necessary in the interest of justice.

Plaint
• A suit is instituted by presentation of plaint before the Court. A ‘plaint’ is written
application made by plaintiff against defendant seeking relief from the Court.
• A plaint is pleading and should conform to the rules of pleading.
• Along with plaint, plaintiff shall file documents on which he relies for the relief.

Particulars of Plaint - [Order VII, Rule 1]
a. The name of the Court in which the suit is brought;
b. The name, description and place of residence of the plaintiff;
c. The name, description and place of residence of the defendant, so far as they can be
ascertained;
d. Where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect;
e. The facts constituting the cause of action and when it arose;
f. The facts showing that the Court has jurisdiction; g. The relief which the plaintiff
claims;
h. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or relinquished; and
i. A statement of the value of the subject-matter of the suit for the
purposes of jurisdiction and of Court fees, so far as the case admits. [O.VII, R.1]

Rejection of Plaint
• Where it does not disclose a cause of action;
• Where the relief claimed is undervalued, and the plaintiff, on being required by the
Court to correct the valuation within a time to be fixed by the Court, fails to do so;
• Where the relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply
the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
• Where the suit appears from the statement in the plaint to be barred by any law;
• Where it is not filed in duplicate;
• Where the plaintiff fails to comply with provisions of Rule 9 (fails to
• provide copies of plaint). [ O. VII, R 11]

Written Statement
• Pleading include written statement.
• Written statement is pleading on behalf of defendant wherein he
• gives his defence or reply to the allegation made by plaintiff.
• A written statement is pleading therefore should conform to rules of pleading.
• WS shall be presented within 30 (maximum 90) days from service of summons.

Contents of Written Statement
1. New facts: New facts must be specifically pleaded. The defendant must raise by his
pleading all matters which
a. Show the suit not be maintainable, or
b. Show that the transaction is either void or voidable in point of law, c. And all such
grounds of defence as.[ Order VIII Rule 2]
2. Denial: Denial to be specific. Defendant should not deny generally. But he must deal
each allegation of fact to which he does not admit the truth. If is not so denied
specifically, it shall be taken to be admitted.[ Order VIII Rule 3, 5]
3. Denial should not be evasive. It should answer the point of substance.[ Order VIII
Rule 4]

UNIT-2
APPEARANCE & NON APPEARANCE OF PARTIES

Introduction
• Order IX of the Code of Civil Procedure, 1908 (hereinafter referred to as the
“Code”) deals with issues as regards the appearance of parties to the suit and
consequences apropos their non-appearance.

Order XI Rule 1
• Order IX, Rule 1 of the Code stipulates that parties to a suit are to present
themselves before the court on the date fixed in the summons issued by the court to
the defendant; summons are issued, firstly, to secure the appearance of the
defendant (in person or through pleader) and, secondly, to enable the defendant to
answer the claim of the plaintiff.

Order XI Rule 2
• Order IX, Rule 2 of the Code states that, where the plaintiff fails to pay the court-
fee or postal charges chargeable for the service of summons to the defendant or fails
to present the copies of the plaint as required by Order VII, Rule 9 of the Code,
then, the suit of the plaintiff can be dismissed, regards being had to the discretion of
the court. An appeal cannot be preferred against an order passed by the court
dismissing the suit under Order IX, Rule 2 of the Code; only a revision under
Section 115 of the Code can be preferred against such an order dismissing the suit.

Order XI Rule 3
• Order IX, Rule 3 of the Code further states that, where on the date fixed for the
hearing of the suit, neither of the parties to the suit appears, then, the suit can be
dismissed. Dismissal under this rule does not amount to a decree and no appeal as
such lies from it; the plaintiff can either bring a fresh suit or can apply under Order
IX, Rule 4 of the Code to set aside the dismissal.

Order XI Rule 4
• Order IX, Rule 4 of the Code stipulates that, when a suit is dismissed under Order
IX, Rule 2, or, Order IX, Rule 3, of the Code, then, a fresh suit on the same cause of
action is not barred if within limitation. An application for restoration of suit under
Order IX, Rule 4 is to be preferred within 30 days of dismissal of the suit. Once the
application for setting aside the dismissal is allowed, the defendant is entitled to get
notice of restoration and the date of further hearing; the requirement of notice to the
defendant is mandatory (and not directory) and non-service of notice is sufficient
enough to get the decree set aside.

Order XI Rule 5
• Order IX, Rule 5 of the Code states that, a suit shall be dismissed where the
plaintiff after the return of summons being not served, fails to apply for fresh
summons within a period of 7 (seven) days reckoning from the date on which the
earlier summons were returned as un-served. However, the court shall not dismiss
the suit, if the plaintiff satisfies the court that:
(a) despite best endeavours, the plaintiff failed to discover the residence of the
defendant;
(b) defendant is avoiding the service of process; and/or,
(c) there is sufficient cause favouring the plaintiff to pray for the extension of the time
for the service of summons upon the defendant. Where a suit is dismissed under
Order IX, Rule 5 of the Code, the plaintiff is not prevented from bringing a fresh
suit.

Order XI Rule 6
• Order IX, Rule 6 of the Code provides for the procedure that is to be adopted
when on the first date of hearing of the suit only the plaintiff appears and the
defendant does not appear despite the summons being duly served on the defendant,
or, summons being duly served on the defendant but not within sufficient time, or,
when summons were not duly served. Under Order IX, Rule 6 of the Code, the
defendant can be proceeded against ex parte provided summon were duly served
upon him within sufficient time.

Order XI Rule 7
• Order IX, Rule 7 of the Code contemplates a situation where by the case was
proceeded ex parte since the defendant did not appear before the court of law, or,
where the defendant failed to appear before the court of law after filing of the
written statement, but, thereafter the defendant appears before the court of law and
assigns good cause for his previous non-appearance, and thereby, prays for the
setting aside of the ex parte order.

Order XI Rule 8
Order IX, Rule 8 of the Code deals with a situation where by the suit is dismissed in
default, for, only the defendant appears before the court of law and the plaintiff fails to
appear. Under Order IX, Rule 8 of the Code, a suit cannot be dismissed for non-
appearance of the plaintiff if:
(a) the defendant admits the whole of the claim of the plaintiff; or
(b) the defendant admits the claim of the plaintiff only in part and not in whole; the
court, therefore, shall decree the suit accordingly in favour of the plaintiff, as against
the defendant.

Order XI Rule 9
• Order IX, Rule 9 of the Code states that, where a suit is dismissed either in part,
or, in whole, under Order IX, Rule 8 of the Code, then, a fresh suit on the same
cause of action is barred. An application for restoration of the suit under Order IX,
Rule 9 is allowable provided it is made within 30 days of the dismissal of the
suit. An appeal can be preferred under Order XLIII, Rule 1(c) of the Code against
an order rejecting an application under Order IX, Rule 9 of the Code; however, a
revision may lie from against an order restoring a suit dismissed in default.

Order XI Rule 10
• Order IX, Rule 10 of the Code provides that where there are more plaintiffs than
one, and one or more of them appear before the court of law on the date fixed,
while the others do not appear, then, the court may permit the suit to be proceeded
as if all the plaintiffs have appeared, or may pass such an order as the it thinks just.

Order XI Rule 11
• Order IX, Rule 11 of the Code provides that where there are more defendants than
one, and one or more of them appear before the court of law while the others do not
appear, then, the court may permit the suit to be proceeded as if all the defendants
have appeared, or may pass such an order as it thinks just.

Order XI Rule 12
• Order IX, Rule 12 of the Code states that when the plaintiff and/or the defendant,
who have been ordered to appear before the court of law in person, neither appear
nor show sufficient cause for non-appearance, then, such plaintiff and/or defendant
are to be subjected to all the Rules as provided for in Order IX of the Code in this
behalf, which are as such applicable apropos the plaintiffs and/or the defendants,
who do not appear.

Order XI Rule 13
Order IX, Rule 13 of the Code states that an ex parte decree passed against a
defendant can be set aside if the defendant satisfies the court on either of the two
counts:
(a) the summons were not duly served on the defendant, or,
(b) the defendant was prevented by any “sufficient cause” from appearing before the
court when the suit was called out for hearing. The court has the discretion to set
aside the ex parte decree passed against the defendant on such terms as to costs or
otherwise (deposit of decretal amount in the court) as the court deems fit in the
facts and circumstances of each case.

Order XI Rule 13 Cont.
• It is important to note that, the second proviso to Order IX, Rule 13 of the Code
states that, the court shall not set aside an ex parte decree merely on the ground of
irregularity in the service of the summons in a case where the defendant had
sufficient notice of the date of hearing of the suit, and had enough time to appear
and answer the claim of the plaintiff. An application under Order IX, Rule 13 of the
Code must be preferred within 30 days from the date of the decree, or, where the
summons were not duly served, within 30 days from the date of the knowledge of
the decree.

Order XI Rule 14
• Order IX, Rule 14 of the Code states that, no ex parte decree can be set aside
without notice to the opposite party. Moreover, in the case of, Mahesh
Yadav v. Rajeshwar Singh, it was held that, an order setting aside an ex
parte decree is a judicial order and therefore, it must be supported by reasons.

COMMISSIONS – S. 75 & Order XXVI

Introduction
Under CPC, a commissioner is appointed to fulfil certain functions which are essential
for the Court, in order to dispense full and complete justice. Section 75 and order 26 of
the code provides the key provisions which relates to the commissioner. In this article,
we will try to answer the most basic questions which comes to our mind when we begin
to understand the concept of issue of commission and appointment of commissioner.

Issue of Commission By The Court - Meaning
• Commission is instruction or role given by the Court to a person to act on behalf of
the Court and to do everything that the Court requires to deliver full and complete
justice. Such person who carries out the commission is known as a Court
commissioner.
• For example, whenever the Court has to do a local investigation, a commissioner is
appointed who conducts the local investigation. Similarly, to record the evidence of
a witness who cannot come to the Court for evidence, the Court can issue a
commission for recording of such evidence.

Who Can Appoint A Commissioner?
• Under CPC, the Court which issues the commission can appoint the commissioner.
Section 75, provides that “the Court” can issue commission provided the limitations
and restrictions applicable. Therefore, the Court who has to decide the suit can
appoint the commissioner.
• Commissioner is appointed to carry out the functions for which the commission is
issued. Court has the discretionary power to appoint the commissioner and such
power can be exercised on the application of any of the parties or the Court can
issue the commission suo moto.

Who Can Be Appointed As A Commissioner?
• Generally, there is a panel of commissioners which is formed by the High Court in
which advocates are selected who are competent to carry out the commission issued
by the Court.
• The person appointed as commissioner should be independent, impartial,
disinterested in the suit and the parties involved in it. Such a person should have the
requisite skills to carry out the commission.

Who Can Be Appointed As A Commissioner? Cont.
• It will be a complete waste of time and resources of the Court and the parties if a
person who cannot read and understand the accounts and documents is appointed as
commissioner to adjust accounts. Similarly, a person who does not have the
qualifications to conduct scientific investigation should not be appointed as a
commissioner for such task.
• The District judge supervises the subordinate Courts who have to take special care
while appointing a commissioner. The same person should not be appointed by the
Court in all commissions and a person who hangs about the Court should not be
appointed.

What Is The Procedure For Appointment Of Commissioner?
1. Every High Court has the power (Article 227) to make rules and regulations which
is to be followed by the subordinate Courts. Procedure for appointment of a
commissioner is provided in High Court rules each state.
2. For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides
procedure for appointment of Commissioner. The following procedure is followed
by the Delhi High Court:
• A panel of not more than 4 commissioners is to be formed which consists of
young persons including a lady lawyer, appointed by the Court for recording of
evidence.
• The District Court notifies the bar about the number of vacancies of commissioners
and the bar forward the applications received for the same to the Court who then
forwards it to the High Court with their recommendation.
• The term of such appointment is generally 3 years which can be extended by an
order of the High Court but no commissioner can be appointed after 6 years of such
appointment.

Functions of Commissioner
• To examine witnesses: Order 26 Rule 1-8
R1 - Cases in which Court may issue commission to examine witness
R2 - Order for commission
R3 - Where witness resides within Court's jurisdiction
R4 - Persons for whose examination commission may issue
R5 - Commission or request to examine witness not within India
R6 - Court to examine witness pursuant to Commission
R7 - Return of commission with depositions of witnesses
R8 - When depositions may be read in evidence

Functions of Commissioner Cont.
• To make local investigations: Order 26 Rule 9-10
R9 - Commissions to make local investigations
R10 – Procedure of Commissioner
• To adjust accounts: Order 26 Rule 11-12
R11 - Commission to examine or adjust accounts
R12 - Court to give Commissioner necessary instructions.

Functions of Commissioner Cont.
• To make partition: Order 26 Rule 13-14
R13 - Commission to make partition of immovable property
R14 – Procedure of Commissioner
• To hold investigation: Order 26 Rule 10-A
• To sell the property: Order 26 Rule 10-C
• To do ministerial work: Order 26 Rule 10-B
• Powers of the commissioner: Order 26 Rule 16-18
R16 – Questions objected to before the Commissioner.
R18 – Parties to appear before Commissioner

Whether The Commissioner Will Be Entitled To A
Remuneration?
• There is no provision in the CPC which expressly provides for remuneration to the
commissioner but Rule 15 of order 26 provide for the expenses which might be
incurred by the commissioner.
• While issuing commission, the Court directs the applicant to deposit a sum of
amount which can be used by the commissioner to account for the expenses which
might be incurred by him while carrying out the commission.
• The Court has the discretionary power to make directions make any other direction
regarding the remuneration

What Are The Limitations On The Commissioner?
• Commissioner has to assist the Court in carrying out the judicial functions but he
cannot do the judicial functions on behalf of the Court. For example, a
commissioner cannot value the suit property because it is a judicial function and
only the Court has the power to do so. A commissioner can assist the Court by
producing the documents such as plans of the suit property by which the Court can
ascertain the value.
• It is not the objective of issuing a commission to procure evidence for the parties.
Therefore, if a party has the apprehension that the opposite party will tamper with a
document which is relevant to the case, the Court should not appoint a
commissioner to seize such documents.

Evidentiary Value Of The Report Submitted By The
Commissioner?
• According to order 26 rule 10 (2) of the CPC, the report and the evidence submitted
by commissioners forms a part of the record but if the evidence is submitted
without the report of the commissioner, such evidence does not form part of the
record.
• The report forms an important part of the case and can only be challenged on
sufficient grounds. The Court has the final say on how much reliance should be
placed on the report submitted by the Court.

General Provisions relating to Appeal, Appeal from Original
& Appellate Decrees

General Provisions Relating To
Appeal

Introduction
• Appeal can be defined as judicial examination of the decision by a higher court of
the decision of the inferior court. Section 96-99 and Rules 23 to 33 of Order 41
enumerate the powers of an appellate court while hearing first appeals. Further
Section 100-103, 107-108 and Order 42 deals with Second Appeal.
• Every person has been given right the of appeal against decree. However, right of
appeal is not an inherent right. Rather it can only be availed where it is expressly
granted by law. Appeal lies against a decree and not against a judgment. Rights of
appeal are substantive right and they are not mere matters of procedure. Further
right of appeal is governed by the law prevailing at the date of the suit and not by
law that prevails at the date of the decision or at the date of filling of the appeal. An
appeal lies under section 96 CPC only from a decree because the decree marks the
stage at which the jurisdiction of the court which the appeal is made begins. As
such unless a decree is drawn up, no appeal lies from a mere finding, but if the
finding amount to a decree, an appeal would lie.

Section 107 – Powers Of Appellate Court
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court
shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial; (d) to take additional evidence or to require
such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall
perform as nearly as may be the same duties as are conferred and imposed by this Code
on Courts of original jurisdiction in respect of suits instituted therein.

Section 108 - Procedure In Appeals From Appellate Decrees
And Orders
The provisions of this Part relating to appeals from original decrees shall, so far as may
be, apply to appeals—
(a) from appellate decrees, and
(b) from orders made under this Code or under any special or local law in which a
different procedure is not provided.

Appeals From Original Decree

Introduction
• As stated above appeals from original decrees are known as first appeal. The
expression “appeal” has not been defined in the Code of Civil Procedure. Right of
appeal is the right of entering a superior court and invoking its aid and interposition
to redress the error of the court below. Thus, appeal is “the judicial examination of
the decision by a higher court of the decision of an inferior court”.
• Explaining the concept of appeal in Bhil Kanji Bhagwan v. Bhil Karsan Bijal (2003
GLH (23) 285) the Gujarat High Court observed:
“Appeal is an application or petition to a higher authority or a Court of law for
reconsideration of the decision of a lower authority or an inferior Court of law. It is an
application or a proceeding for review to be carried out by a higher tribunal of a
decision given by a lower one. An appeal is one in which the question is. whether the
order of the Court from which an appeal is brought was right on the materials which
that Court had before it.”

S. 96 - Appeal From Original Decree
(1) Save where otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie from every decree passed by any
Court exercising original jurisdiction to the Court authorized to hear appeals from
the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognisable by Courts of Small Causes, when the amount or value of the
subject-matter of the original suit does not exceed ten thousand rupees.

S. 97 - Appeal From Final Decree Where No Appeal From
Preliminary Decree
Where any party aggrieved by a preliminary decree passed after the commencement of
this Code does not appeal from such decree, he shall be precluded from disputing its
correctness in any appeal which may be preferred from the final decree.

S. 98 - Decision Where Appeal Heard By Two Or More
Judges
(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be
decided in accordance with the opinion of such Judges or of the majority (if any) of
such Judges.
(2) Where there is no such majority which concurs in a judgment varying or reversing
the decree appealed from, such decree shall be confirmed :
Provided that where the Bench hearing the appeal is composed of two or other even
number of Judges belonging to a Court consisting of more Judges than those
constituting the Bench and the Judges composing the Bench differ in opinion on a point
of law, they may state the point of law upon which they differ and the appeal shall then
be heard upon that point only by one or more of the other Judges, and such point shall
be decided according to the opinion of the majority (if any) of the Judges who have
heard the appeal, including those who first heard it.
(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of
the letters to patent of any High Court.

S. 99. - No Decree To Be Reversed Or Modified For Error Or
Irregularity Not Affecting Merits Or Jurisdiction
No decree shall be reversed or substantially varied, nor shall any case be remanded, in
appeal on account of any misjoinder or non-joinder of parties or causes of action or any
error, defect or irregularity in any proceedings in the suit, not affecting the merits of the
case or the jurisdiction of the Court :
Provided that nothing in this section shall apply to non-joinder of a necessary party.

Order XLI – Appeals From Original Decrees
R1. Form of appeal. What to accompany memorandum. Contents of memorandum.
R2. Grounds which may be taken in appeal.
R3. Rejection or amendment of memorandum.
R3A. Application for condonation of delay.
R4. One of several plaintiffs or defendants may obtain reversal of whole decree where
it proceeds on ground common to all.
R5. Stay by Appellate Court. Stay by Court which passed the decree.
R6. Security in case of order for execution of decree appealed from.
R8. Exercise of powers in appeal from order made in execution of decree.
R9. Registry of memorandum of appeal. Register of appeal.
R10. Appellate Court may require appellant to furnish security for costs. Where
appellant resides out of India.
R11. Power to dismiss appeal without sending notice to Lower Court.

R11A. Time within which hearing under rule 11 should be concluded.
R12. Day for hearing appeal.
R13. Appellate Court to give notice to Court whose decree appealed from.
Transmission of papers to Appellate Court. Copies of exhibits in Court whose decree
appealed from.
R14. Publication and service of notice of day for hearing appeal. Appellate Court may
itself cause notice to be served.
R15. Contents of notice.
R16. Right to begin.
R17. Dismissal of appeal for appellant's default. Hearing appeal ex parte.
R18. Dismissal of appeal where notice not served in consequence of appellant's failure
to deposit costs.
R19. Re-admission of appeal dismissed for default.
R20. Power to adjourn hearing, and direct persons appearing interested to be made
respondents.

R21. Re-hearing on application of respondent against whom ex parte decree made.
R22. Upon hearing respondent may object to decree as if he had preferred a separate
appeal. Form of objection and provisions applicable thereto.
R23. Remand of case by Appellate Court.
R23A. Remand in other cases.
R24. Where evidence on record sufficient, Appellate Court may determine case finally.
R25. Where Appellate Court may frame issues and refer them for trial to Court whose
decree appealed from.
R26. Findings and evidence to be put on record. Objections to finding. Determination
of appeal.
R26A. Order of remand to mention date of next hearing
R27. Production of additional evidence in Appellate Court.
R28. Mode of taking additional evidence.
R29. Points to be defined and recorded.

Appeals From Appellate Decree

Introduction
• The expression ‘appeal’ has nowhere been defined in the Code of Civil Procedure,
1908. An appeal, according to Black’s Law Dictionary is “The complaint to a
superior court of an injustice done or error committed by an inferior one, whose
judgment or decision the court above is called upon to correct or reverse. The
removal of a cause from a court of inferior to one of superior jurisdiction, for the
purpose of obtaining a review and retrial.” In a similar manner, a second appeal lies
against the decree passed by the lower court that heard the first appeal. An appeal is
a statutory and substantive right and not merely a legal right. The recourse to it can
only be taken when it is expressly prescribed by the statute.

S. 100 – Second Appeal
(1) Save as otherwise expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie to the High Court from every decree
passed in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in
any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at
the hearing of the appeal, be allowed to argue that the case does not involve such
question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be recorded, the appeal on any other
substantial question of law, not formulated by it, if it is satisfied that the case involves
such question.

Section 100A, 101 & 102
S. 100A - No further appeal in certain cases
Notwithstanding anything contained in any Letters Patent for any High Court or in any
instrument having the force of law or in any other law for the time being in force,
where any appeal from an original or appellate decree or order is heard and decided by
a Single Judge of a High Court, no further appeal shall lie from the judgment and
decree of such Single Judge.
S. 101 - Second appeal on no other grounds
No second appeal shall lie except on the ground mentioned in section 100.
S. 102 - No second appeal in certain cases
No second appeal shall lie from any decree, when the subject matter of the original suit
is for recovery of money not exceeding twenty-five thousand rupees

S. 103 - Power Of High Court To Determine Issue Of Fact
In any second appeal, the High Court may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the appeal,—
(a) which has not been determined by the lower Appellate Court or both by the Court
of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts by reason of a
decision on such question of law as is referred to in section 100.

Order XLII – Appeals From Appellate Decrees
R1. Procedure.
R2. Power of Court to direct that the appeal be heard on the question formulated by it.
R3. Application of rule 14 of Order XLI.

Reference to High Court, Review & Revision

Reference To High Court

Introduction
• Plenty of cases are heard by the judges in the courts every day and they have to
decide each case in accordance with the law. Hence, there is a possibility that they
might commit certain mistakes. The provision of reference and revision in the Civil
Procedure Code, 1908 are contained in order to rectify the mistake or error
committed in a case.
• A court subordinate to the High Court is empowered to refer the case under Section
113. The court in relation to Section 113 means a court having Original Civil
Jurisdiction. A reference can be made only when there is a question of law or
validity of any Act or Ordinance or of any provision of the Act is involved and can
be sought only in a pending suit, appeal, or other proceedings. Section 115 deals
with revision. It empowers the High Court to call for the record of any case decided
by a court subordinate to it.

Conditions
• Where any matter involving a substantial question of law is referred by the
subordinate court to the High Court for its opinion upon that matter it is known as a
reference. According to Section 113, any court can refer the case to the High Court
for its opinion and the High Court may then make an order as it deems fit subject to
certain conditions and limitations.
• Rule 1 Order XLVI for the purpose of reference provides certain conditions and
limitations that are needed to be satisfied for the High Court to entertain the
reference from the subordinate court. These conditions are given below :
– There should be a pending suit or appeal where the decree is not subject to
appeal.
– There must be a question of law or usage having the force of law.
– The Court that is trying the suit or appeal or executing the decree must
entertain reasonable doubt on that question of law.
• As per proviso to Section 113, the question of law involves questions relating to the
validity/provisions of any Act, Ordinance, or Regulation or other questions.

Who May Apply?
• A subordinate court may refer the case with its own opinion on the point to High
Court
– either on its own motion or;
– on the application of any of the parties.
• It was ruled that Section 113 is not a provision that enables the High Court to take
reference suo moto or to order a reference. It is a provision that enables the
subordinate court to refer the case to the High Court.

Power And Duty Of Referring Court
• To entertain the doubt on the question of law. In Banarsi Yadav vs Krishna Chandra
Dass (AIR 1972 PAT 49) it was held that a subordinate court may refer a case to the
High Court when there is reasonable doubt regarding the constitutional validity of
an Act.
• In A Sreenivasa Rao and Ors v. Govt of Andra Pradesh ( 2002 (4) ALD 881) it was
held that the subordinate court is not empowered and entitled to decide the validity
of any Act, Ordinance or Regulation and Section 113 makes it mandatory for the
subordinate court to refer the pending case to the High Court for determining the
question relating to the validity of an Act, Ordinance or Regulation which is
necessary for the case to be disposed of by stating its reasons and opinions for
referring the case to the High Court for its opinion.

Power & Duty Of High Court
1) To make any order as it thinks fit to when the case is referred to it by the subordinate
court.
2) Answer or refuse to answer the question in a case and send the case back to the
referring court for disposing it.
3) To quash the case referred to it.
• Article 228 and Section 113
– In Ranadeb Choudhuri vs Land Acquisition Judge (AIR 1971 Cal 368) the
court observed, Section 113 of the Civil Procedure Code is a statutory
provision whereas Article 228 is a constitutional provision. Section 113 does
not relate to the interpretation of the constitutional provisions but to the
question of the validity of an Act. Both Section 113 and Article 228 may relate
to a common case but are not coextensive.

Procedure Of Hearing
The following procedure has to be followed at the time of hearing:
• As per Rule 1, the court trying the suit or appeal or executing the decree either on
its own or on an application of the parties will draw up the statement of facts and
point of doubt of the case and pass a decree or order contingent upon the high court
on the points referred.
• After hearing the parties the High Court will decide the points so referred. A copy
of the judgment along with the signature of the registrar will be transmitted to the
referring court as per Rule 3.
• The referring court on receiving the copy will proceed in confirmation with the
High Court’s decision to dispose of the case.
• The High Court has been vested with the power under Rule 5 to make such orders
and to amend, alter, cancel, set aside any decree or order the referring court has
passed or made.
• As per Rule 7, In case the question arises as to the jurisdiction of small causes
court, a record with the statements of the reasons for doubt will be submitted to the
High Court.

Revision

Meaning
• Section 115 refers to the revisional jurisdiction of the High Court. Revision in
general terms means looking over and over again in order to correct the mistake.
According to Section 115, the High Court can call for the record of any case
decided by a subordinate court and the High Court may make such order as it
deems fit and in which no appeal lies under certain conditions.
• If the subordinate court:
– Not having jurisdiction has exceeded the jurisdiction over that case.
– Having jurisdiction has failed to exercise the same.
– Having jurisdiction has acted illegally or with material irregularity. For
instance, some error of procedure is committed that is material in the course of
a trial which may eventually affect the decision of the Court.
• The proviso to this section specifically mentions that the High Court for the purpose
of this section shall not vary/reverse any decree/order against an appeal that lies
either in High Court or any subordinate Court. Further, a revision will not be
considered as a stay of the suit excluding such suit or proceeding which has been
stayed by the High Court.

Case Laws
• The Supreme Court in the case of Salem Advocates Bar Assn v. Union of India (
2005 Insc 381) considered the scope of Section 115 of CPC and observed that the
scope of section 115 is limited and the revisional court should only be satisfied that
the orders passed are within the jurisdiction of Section 115.
• In Radhe Shyam v. Chhabi Nath (Civil Appeal No. 2548 of 2009) the Apex Court
held that even if the scope of section 115 has been curtailed by the CPC
(Amendment) Act, 1999 that does not result in expanding the power of
superintendence of the High Court.

Review

Introduction
• The dictionary meaning of review is to examine or to study again. So, the review of
judgment is to examine or study again the facts and judgment of the case. Review
of judgment is the substantive power of review by the court mentioned in Section
114 of CPC.
• This section doesn't provide any limitations and conditions for review. The
limitations and conditions are provided in Order 47 of the Civil Procedure Code.
Order XLVII contains nine rules which impose some condition for the review. The
power to review is conferred by law and inherent power to review vests in court
only. A Government officer has no inherent power to review his/her orders. All
decrees or orders cannot be reviewed. The right of review has been conferred by
Section 114 and Order 47, Rule 1 of the Code.

Section 114 - Review
Subject as aforesaid, any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Code, but from which
no appeal has been preferred
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review
of judgment to the Court which passed the decree or made the order, and the Court
may make such order thereon as it thinks fit.

Grounds For Review
• Discovery of new and important matter or evidence: The party seeking review
must show that he exercised greatest care in adducing all possible evidence and that
the new evidence is such as is relevant and that if it had been given in the suit it
might possibly have altered the judgment. It is not only the discovery of new and
important evidence which entitles a party to apply for a review, but the discovery of
any new and important matter which was not within the knowledge of the party
when the decree was passed or order made.
• Mistake or error apparent on the face of the record: It is not limited to a mistake
of fact. It may be of law. Failure to consider a ruling is not such an error. It should
be an error which can be seen by a mere perusal of the record without reference to
any other matter.
• Any other sufficient reason: These words have been interpreted by their Lordships
of the Judicial Committee to mean a reason sufficient on grounds at least analogous
to those specified in (1) and (2). It might be added that a review application should
be filled before the appeal is lodged. An appeal may be filed after an application for
review, but once the appeal is heard, the review cannot proceed. On the other hand,
if the application for review is granted and a new decree is passed, the appeal
cannot be heard and it must be dismissed for the decree appealed from is
superseded by a new decree.

THANK YOU!

Code of Civil Procedure (LLB -307)

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Code of Civil Procedure (LLB -307)