Civil Procedure Code and Limitation Act Notes | B.A. LL.B. (Five Year Course) Semester 9 | Mumbai University | munotes

In one line

Section 2 of the Code fixes the meaning of twenty words, and the Code then uses those words everywhere else exactly as defined here.

That sounds dull and it is the most profitable chapter in the subject. The first question on every CPC paper asks for six short definitions, and almost all of them come from this one section. It is twelve marks that require no argument, only precision.

Why a statute defines its own words

Ordinary English is too loose for a procedural code. "Judgment", "decree" and "order" are near enough interchangeable in conversation, and the Code needs them to mean three different things, because different consequences follow from each: you appeal from one, execute another, and read the third to find out why.

So section 2 opens with the words "In this Act, unless there is anything repugnant in the subject or context". That qualification matters. The definitions govern the whole Code, but if a particular section plainly uses a word in some other sense, the context wins.

The three that are constantly confused

Learn these three together, because every question on them is really a question about the difference.

A decree, under section 2(2), means 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.

A judgment, under section 2(9), means the statement given by the Judge of the grounds of a decree or order.

An order, under section 2(14), means the formal expression of any decision of a Civil Court which is not a decree.

So the judgment carries the reasons, the decree carries the result, and an order is defined by what it is not. Note the direction of that last definition: the Code defines "decree" positively and then makes "order" the residue. Anything a civil court formally decides is one or the other, and it is an order precisely because it is not a decree.

The five elements of a decree

Take the definition apart and it yields five requirements, all of which must be present.

One, an adjudication. The court must have judicially determined something. An administrative or ministerial act by the court is not an adjudication.

Two, in a suit. The adjudication must be in a suit, which ordinarily begins with a plaint.

Three, it must determine the rights of the parties with regard to all or any of the matters in controversy. Rights here means substantive rights of the parties as parties, not merely procedural steps.

Four, that determination must be conclusive, so far as regards the court expressing it. The words "so far as regards the Court expressing it" are doing real work: the determination has to be final as far as that court is concerned. An appeal may still lie; that does not stop it being a decree.

In one line

A civil court can try every dispute of a civil nature, unless some law has taken that particular dispute away from it.

That is section 9. In the words a student can write in an exam: the Courts shall, subject to the provisions of the Code, have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred.

Why the Code opens this way

Section 9 states a presumption, and the presumption is the whole point. The civil court is the default forum for civil disputes. Anyone who says a civil court cannot hear a case must point to the law that says so; the plaintiff does not have to find a law permitting it.

That is a deliberate constitutional posture. Legislatures create tribunals constantly, for tax, rent, labour, consumer disputes, land revenue, and each one takes some work away from civil courts. If the burden ran the other way, every new tribunal would silently shrink the ordinary citizen's access to an ordinary court. Section 9 forces the exclusion to be shown rather than assumed.

The provision itself

Section 9 provides that the Courts shall, subject to the provisions contained in the Code, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation I provides that 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 II provides that for the purposes of the 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.

Broken down

"Suits of a civil nature." The subject matter must concern civil rights: property, money, contract, status, office. A dispute that is purely religious, about doctrine or ritual with no civil right attached, is not of a civil nature. But Explanation I closes the obvious escape route: if the right to property or to an office is in contest, the suit is civil even though deciding it requires the court to answer a religious question along the way. Explanation II then removes two further quibbles, that the office carries no salary, or that it is not tied to a place.

The structure is worth noticing. The Explanations do not expand what "civil nature" means in general; they stop a defendant converting a property dispute into a religious one merely by pointing at the religious question buried inside it.

In one line

If the very same dispute between the same people is already being tried somewhere else, the second court must wait.

That is section 10. In the words a student can write in an exam: 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 between the same parties, or between parties under whom they claim litigating under the same title, where that suit is pending in a competent court.

The Latin means "a matter under judgment", as against res judicata, which means a matter already judged.

Why the Code has this rule

Two courts trying the same dispute at the same time is worse than wasteful. It is dangerous, because they can reach opposite conclusions, and then the parties hold two decrees pointing in different directions and nobody can say which prevails. Section 10 removes that possibility by making the later court stand still while the earlier one works.

Notice that the rule protects the system at least as much as the parties. Even where both sides are content to run two suits at once, the court is not: the words are "no Court shall proceed", which is a direction to the court, not a right the parties can trade away.

There is a second purpose, and it is the one that connects this section to the next. If the first suit is allowed to finish, its decision will bind the second by res judicata under section 11. So section 10 is the mechanism that feeds section 11: it holds the later suit still long enough for the earlier one to become conclusive.

The provision itself

Section 10 provides that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

The Explanation provides that the pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.

Broken down: the conditions

All of these must be satisfied before a court is obliged to stay.

One, two suits, and the other one was instituted first. Section 10 turns on which suit was filed first. That is the exact opposite of section 11, where Explanation I makes everything turn on which was decided first. Getting these the wrong way round is the standard error on this pair, and it is worth writing the contrast out in an answer to show you know it is deliberate.

In one line

Once a court has finally decided a dispute between two people, neither of them can drag the same dispute back to court a second time.

That is res judicata. The phrase is Latin and it means "a matter already judged". In the words a student can write in an exam: res judicata is the rule in section 11 of the Code of Civil Procedure 1908 which bars a court from trying any suit or issue in which the matter directly and substantially in issue has already been directly and substantially in issue between the same parties, litigating under the same title, in a competent court, and has been heard and finally decided by that court.

Why the Code has this rule at all

Imagine there were no such rule. Ramesh sues Suresh over the ownership of a shop, loses, and the next morning files the same suit again in the court next door. He can do this for the rest of his life. Suresh must appear every time, pay a lawyer every time, and can never treat the matter as closed. Nobody who loses would ever have to accept it, and nobody who wins would ever get the benefit of winning.

So the rule serves three interests at once, and Indian courts describe them through three old maxims. Nemo debet bis vexari pro una et eadem causa, no person should be vexed twice over the same cause. Interest reipublicae ut sit finis litium, it is in the interest of the State that there be an end to litigation. Res judicata pro veritate accipitur, a judicial decision must be accepted as correct.

The first maxim protects the individual defendant from harassment. The second protects the public, because court time spent re-hearing a decided case is court time stolen from someone still waiting. The third protects the judgment itself, and it is the boldest of the three: it says the decision is to be treated as the truth, whether or not it actually was.

That third point matters more than it looks. Res judicata binds even where the earlier decision was wrong. Finality would mean nothing if it could be reopened by showing the first judge had erred. The remedy for a wrong decision is an appeal, taken in time. It is not a fresh suit.

The case for that proposition is Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941, and it is worth knowing properly because it also decides something the section does not say on its face.

Facts. A landlord obtained a decree for eviction against his tenants. The High Court held the tenants to be Thika tenants and sent the case back to the Munsif, who then rescinded the eviction decree. The landlord applied to the High Court in revision under section 115 of the Code. The High Court refused to hear his argument about whether section 28 of the Thika Tenancy Act still applied, holding that the point had already been decided between the parties at the earlier stage and was res judicata.

In one line

Sue for everything your cause of action entitles you to, all at once, because whatever you leave out you lose for good.

That is Order II Rule 2, and section 12 is the short section that makes the bar stick everywhere.

Why the Code has this rule

A defendant who has been sued once about a transaction is entitled to think that the transaction is over. Without this rule, a plaintiff could sue for one instalment this year, another next year, and damages the year after, dragging the same defendant back for the same episode as often as he liked. Each suit would be small, none would be an abuse on its own, and the cumulative effect would be harassment.

So the Code puts the burden on the plaintiff, who after all knows what his own claim is: bring it all now.

Notice the price of the rule. It is harsh, and deliberately so. A plaintiff who genuinely forgets part of his claim loses it. The Code accepts that cost because the alternative, a defendant who can never be sure a matter is finished, is worse.

The provisions

Section 12 provides that where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of that cause of action in any Court to which this Code applies.

Section 12 creates no bar of its own. It takes a bar created by the rules, which for this purpose means Order II Rule 2, and makes it operate across every court governed by the Code, so a plaintiff cannot escape by moving to a different court.

Order II Rule 2 does the work, in three sub-rules.

Rule 2(1). Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. But a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

Rule 2(2), relinquishment of part of a claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

Rule 2(3), omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of them; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

The Explanation provides that for the purposes of the rule, an obligation and a collateral security for its performance, and successive claims arising under the same obligation, shall each be deemed to constitute but one cause of action.

In one line

A judgment given by a court outside India binds the same parties in India too, unless it falls into one of six listed exceptions.

That is section 13 of the Code of Civil Procedure 1908. In the words a student can write in an exam: a foreign judgment is conclusive in India as to any matter directly adjudicated upon between the same parties, or between parties claiming under them litigating under the same title, except in the six cases set out in clauses (a) to (f) of section 13.

Two definitions you need first

The Code defines both terms in section 2, and an answer that uses them loosely loses marks for no reason.

A foreign Court means a court situated outside India and not established or continued by the authority of the Central Government. A foreign judgment means the judgment of a foreign Court.

So a judgment of a court in London, Lisbon or Dubai is a foreign judgment. A judgment of a court in Jammu, or of any court set up under Indian authority anywhere, is not.

Why the Code has this rule at all

Disputes do not stop at borders. An Indian businessman contracts with a Portuguese one, the contract is broken, and one of them sues abroad and wins. If India ignored that judgment entirely, the loser could simply come home and start again, and the winner's years of foreign litigation would count for nothing. If India accepted it blindly, an Indian could be bound by proceedings conducted before a court that never had any business hearing the case, or by a decree obtained through a lie.

Section 13 is the compromise. The starting position is recognition: the foreign judgment is conclusive. The six exceptions are the conditions on which India refuses. So the burden is not on the person relying on the judgment to prove it is good; it is on the person resisting it to bring the case within one of the six.

Notice how the section connects back to res judicata. Its opening words, "between the same parties, or between parties under whom they or any of them claim, litigating under the same title", are the same words section 11 uses. A foreign judgment which passes section 13 operates in India very much as res judicata does. That is why the two sit within a page of each other in the Code.

The provision itself

Section 13 provides that 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 in six cases:

In one line

Sections 15 to 20 answer the question "which court do I file in", once section 9 has told you that a civil court can hear the case at all.

Keep those two apart. Section 9 is about whether a civil court has the case. This chapter is about which civil court.

The three filters, applied in order

Every suit has to pass three tests before it lands in a particular court, and students lose marks by mixing them.

Subject matter. Can this class of court try this class of case? A small causes court cannot try a title suit however small the value.

Pecuniary limit. Is the value within this court's ceiling? That is section 15.

Territory. Is this dispute within this court's local limits? That is sections 16 to 20.

Sections 15 to 20 are about the last two. Do them in that order and the answer falls out.

Section 15: the lowest competent court

Section 15 provides that every suit shall be instituted in the Court of the lowest grade competent to try it.

The rule exists to protect the higher courts from work that the lower ones can do, so that a District Court is not clogged with small claims. Notice its shape: it is a rule of procedure, telling a plaintiff where to start, and it is not a limit on the higher court's power. That is why a decree passed by a court higher than the lowest competent one is not a nullity, and why an objection about pecuniary limits falls under section 21(2), needing an early objection and a failure of justice. See [Objections to Jurisdiction].

Sections 16 to 18: suits about immovable property

Section 16 provides that, subject to pecuniary or other limits, suits of six kinds shall be instituted in the Court within whose local limits the property is situate:

• recovery of immovable property, with or without rent or profits
• partition of immovable property
• foreclosure, sale or redemption of a mortgage of or charge upon immovable property
• determination of any other right to or interest in immovable property
• compensation for wrong to immovable property
• recovery of movable property actually under distraint or attachment

The logic is simple: land does not move, the court nearest it can inspect it, and the local records are there.

The proviso to section 16 is the part examiners like. Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, and the relief sought can be entirely obtained through the defendant's personal obedience, the suit may be instituted either where the property is situate or where the defendant actually and voluntarily resides, carries on business, or personally works for gain.

In one line

If you want to complain that the case was filed in the wrong court, you must do it early, in the trial court, and you must show it actually cost you something.

That is section 21. In the words a student can write in an exam: no objection as to the place of suing, or as to pecuniary limits, or as to the local limits of an executing court, shall be allowed by any Appellate or Revisional Court unless it was taken in the court of first instance at the earliest possible opportunity, and where issues are settled at or before their settlement, and unless there has been a consequent failure of justice.

Why the Code refuses a late objection

Picture the alternative. A defendant notices on day one that the suit has been filed in the wrong district. He says nothing. He defends the case for four years, loses, and only then complains about the address on the plaint. The whole trial is wasted, the plaintiff starts again elsewhere, and the defendant has bought himself four years and a second chance for free.

Section 21 exists to stop exactly that. It does not make the wrong court right. It refuses to let a party who sat on the point use it as a lottery ticket after the result goes against him. That is why the section has two conditions and both must be satisfied: the objection must have been taken early, and there must have been a failure of justice.

The second condition is the one people forget, and it is the harder of the two. An objection taken punctually still fails if the wrong forum made no difference to the outcome.

The provision itself

Section 21(1): no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless the objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

Section 21(2): the same rule for an objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction.

Section 21(3): the same rule for an objection as to the competence of the executing Court with reference to the local limits of its jurisdiction, taken in the executing court at the earliest opportunity.

Subsections (2) and (3) were added by the amending Act of 1976. Before that, section 21 covered only the place of suing, and courts had extended the same reasoning to pecuniary objections by analogy. The 1976 amendment put both beyond argument.

Section 21A then bars a separate suit: no suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or parties claiming under them litigating under the same title, on any ground based on an objection as to the place of suing. Its Explanation defines "former suit" the same way Explanation I to section 11 does, as a suit decided earlier, whether or not it was instituted earlier.

In one line

Where a case could properly have been filed in more than one court, or has ended up in an unsuitable one, the Code lets it be moved.

Sections 22 to 25 hold three different powers, and the exam confusion between them is entirely about who applies, and to whom.

Why the Code has these sections

The rules on place of suing in sections 15 to 20 often give a plaintiff a genuine choice of courts. Where a cause of action arises partly in Nagpur and partly in Mumbai, either will do, and the plaintiff picks. That choice belongs to the plaintiff and the Code does not take it away.

But the plaintiff's convenience is not the only thing that matters. The defendant may face real hardship in the chosen court, witnesses may all be elsewhere, two connected suits may be running in different districts, or the atmosphere in one place may make a fair trial doubtful. So the Code provides a way to move a case without disturbing the underlying rule that the plaintiff chose a court he was entitled to choose.

Notice what these sections are not. They do not cure a want of jurisdiction. Transfer presupposes that the court has jurisdiction; the question is only whether some other competent court is a better place. A court with no jurisdiction does not need transferring, it needs to return the plaint.

The three powers, and who invokes each

Learn that table. Almost every question on this topic is really asking which of the three columns applies to the facts given.

Section 22, the defendant's objection to the plaintiff's choice

Section 22 provides that where a suit may be instituted in any one of two or more Courts and is instituted in one of them, any defendant, after notice to the other parties, may at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court. The Court to which the application is made, after considering the objections of the other parties, shall determine in which of the several Courts having jurisdiction the suit shall proceed.

In one line

A suit is a civil proceeding begun by presenting a plaint, and the cause of action is the bundle of facts the plaintiff must prove to win it.

Almost everything else in this subject hangs off that second idea. Where you can sue depends on where the cause of action arose. What you must include in one suit depends on what belongs to one cause of action. Whether a second suit is barred depends on whether it is on the same cause of action.

The four essentials of a suit

The Code nowhere prints a list headed "essentials of a suit", so this is the settled analysis rather than a quotation, and an answer is safest if it states the four and then anchors each to a provision.

One, opposing parties. There must be at least one plaintiff and one defendant. A person cannot sue himself, and a court will not decide a dispute nobody is contesting.

Two, a subject matter in dispute. There must be a real controversy, and it must be of a civil nature, which is section 9. See [Jurisdiction of Civil Courts].

Three, a cause of action. Dealt with below. It is the reason the plaintiff is entitled to come to court at all.

Four, relief claimed. The plaintiff must ask the court for something. A suit that asks for nothing gives the court nothing to do, and Order VII Rule 1 requires the plaint to state the relief which the plaintiff claims.

How a suit begins

Section 26 provides that every suit shall be instituted by the presentation of a plaint, or in such other manner as may be prescribed. Order IV Rule 1 carries the same rule into the rules.

That single sentence has consequences worth noticing. A suit begins on presentation, not on service, not on the defendant's appearance, and not when the court takes it up. That date is what matters for limitation, and it is what matters for section 10, where everything turns on which suit was instituted first. See [Res Sub Judice].

Cause of action

What it is

A cause of action is the bundle of essential facts which the plaintiff must prove, if traversed, in order to get the relief he asks for. It is not the section of law he relies on, and it is not the evidence by which he proves those facts. It is the facts themselves.

Two tests make it concrete.

The pleading test. Would the plaint disclose a case if you deleted this fact? If deleting it destroys the claim, it is part of the cause of action. If the claim survives without it, the fact is background.

In one line

A defendant who is himself owed money by the plaintiff does not have to start his own case to get it: he can raise it inside the plaintiff's suit, either as a set-off, which reduces the claim, or as a counterclaim, which is a suit of his own fought inside the same file.

Why the Code allows this

Suppose Anil sues Bhavna for Rs. 80,000 on an unpaid invoice, and Bhavna is separately owed Rs. 50,000 by Anil. Without these rules Bhavna must defend Anil's suit, lose or win it, and then file a fresh suit of her own, with a second set of fees, a second set of witnesses, and the risk that Anil is insolvent by the time she gets there.

That is wasteful for the parties and worse for the court, which must hear the same relationship twice. So the Code lets the defendant bring the cross-claim into the existing suit, and provides in both cases that the court can pronounce one final judgment on both claims.

The two devices differ in ambition. A set-off is defensive: it goes only so far as to wipe out or reduce what the plaintiff claims. A counterclaim is offensive: it is a cross-suit, and it can exceed the plaintiff's claim and survive the plaintiff abandoning his.

Set-off: Order VIII Rule 6

Rule 6(1) provides that where, in a suit for the recovery of money, the defendant claims to set off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set off.

Rule 6(2) provides that the written statement shall have the same effect as a plaint in a cross-suit, so as to enable the Court to pronounce a final judgment on both the original claim and the set-off.

Rule 6(3) applies the rules about written statements to a written statement answering a claim of set-off.

The five conditions, from the rule itself

One, the suit must be for the recovery of money. Set-off has no place in a suit for possession or an injunction.

Two, the sum claimed must be ascertained. A figure, not a claim for damages to be assessed.

Three, it must be legally recoverable, so not a time-barred or otherwise unenforceable debt.

Four, it must not exceed the pecuniary limits of the court's jurisdiction.

Five, both parties must fill the same character in the set-off as they do in the suit.

In one line

Order I decides who may be in a suit, and its most important rule is that leaving out a necessary party is fatal while leaving out anyone else is not.

Why the Code regulates this

Two opposite dangers. If a court decides a dispute without someone whose rights it settles, that person is bound by nothing and can start again, so the judgment solves nothing. If the court lets every remotely interested person in, the trial becomes unmanageable and the real dispute is lost.

So Order I is a filter with a floor. The floor is the necessary party, who must be there. Above the floor the Code is permissive: people may be joined where their claims share a transaction and a common question, and the court has wide power to add and strike out as the case develops.

Joinder of plaintiffs and defendants

Rule 1 provides that all persons may be joined in one suit as plaintiffs where (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in them, whether jointly, severally or in the alternative, and (b) if they brought separate suits, any common question of law or fact would arise.

Rule 3 provides exactly the same two conditions for joining persons as defendants.

Both conditions must be satisfied, and they are cumulative. A shared transaction without a common question is not enough, and a common question without a shared transaction is not enough. Two passengers injured in the same bus crash satisfy both; two people who separately bought defective goods from the same shop on different days satisfy the second but not the first.

Rule 2 lets the Court, where a joinder of plaintiffs may embarrass or delay the trial, put the plaintiffs to their election, or order separate trials, or make such other order as is expedient. Rule 3A gives the same power where the joinder of defendants may embarrass or delay the trial.

Read those alongside Order II Rule 1, which requires every suit to be framed, so far as practicable, so as to afford ground for a final decision on the subjects in dispute and to prevent further litigation concerning them. That is the policy the whole of Order I serves.

Necessary and proper parties

The Code does not define either term in Order I, but the distinction is built into Rules 9 and 10 and it is the highest-yield point in this chapter.

A necessary party is one in whose absence no effective decree can be passed at all: the person whose rights the decree would determine, and against whom the relief is claimed.

In one line

A suit does not die because a party does. It abates only where nobody applies in time to bring the dead party's representative on the record.

Why the Code deals with this

Litigation takes years and people die in the middle of it. If a suit ended whenever a party died, a defendant could simply wait, and a plaintiff's family would lose a claim that was nearly won. If it carried on regardless, a decree would be passed against somebody who was not there to defend it.

So the Code asks one question first, and everything follows from the answer: does the right to sue survive? If it does, the suit continues, with the estate represented. If it does not, the suit is at an end because there is nothing left to litigate.

The governing rule: Rule 1

Rule 1: the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

That is the principle, and it is what makes abatement the exception rather than the rule. A right to sue survives in most civil matters: a debt, a claim to property, a contract. What does not survive is a purely personal action, on the old maxim actio personalis moritur cum persona, an action which is personal dies with the person, of which defamation and personal injury claims are the classic examples.

One of several parties dies: Rule 2

Rule 2: where there are more plaintiffs or defendants than one and any of them dies, and the right to sue survives to the surviving plaintiffs alone, or against the surviving defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of, or against, the survivors.

Note that no application is needed and there is no question of abatement. The Court simply records the death and the suit goes on. Rule 2 applies only where the right to sue survives to or against the survivors alone, which is the case with joint rights.

A sole party dies, or the right does not survive to the survivors: Rules 3 and 4

Rule 3(1): where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs alone, or where a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court shall, on an application made in that behalf, cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

Rule 3(2): where within the time limited by law no such application is made, the suit shall abate so far as the deceased plaintiff is concerned; and on the defendant's application the Court may award him the costs he incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

In one line

A suit is instituted by presenting a plaint, and the court then issues a summons telling the defendant to appear and answer.

Those are the two halves of this chapter, and the second is far longer than the first, because a great deal can go wrong with getting a piece of paper into somebody's hands.

Institution: sections 26 and Order IV

Section 26(1): every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

Section 26(2): in every plaint, facts shall be proved by affidavit.

Order IV Rule 1(1) repeats the rule in the rules: every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints.

Rule 1(2): every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

Rule 1(3): the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).

Order IV Rule 2: the Court shall cause the particulars of every suit to be entered in a book kept for the purpose, called the register of civil suits, and the entries shall be numbered in every year according to the order in which the plaints are admitted.

Two consequences worth noting. Institution is by presentation, which fixes the date for limitation and for section 10 res sub judice. And by Rule 1(3) a plaint that does not comply with Orders VI and VII is not duly instituted at all, which is the link back to [Pleadings] and [The Plaint].

The summons: section 27 and Order V Rule 1

Section 27: where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim, and may be served in the manner prescribed, on such day not beyond thirty days from the date of the institution of the suit.

Order V Rule 1(1): when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of the summons on him.

First proviso: no such summons shall be issued where the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim. There is nothing to summon him for.

Second proviso: where he fails to file the written statement within the thirty days, he shall be allowed to file it on such other day as the Court may specify, for reasons to be recorded in writing, but not later than ninety days from the date of service. That is the same limit as Order VIII Rule 1, and the commercial-dispute variant is dealt with in [The Written Statement].

In one line

A pleading is the written statement of a party's case, and Order VI lays down one governing rule for all of them: state the material facts, and nothing else.

Why the Code regulates this so tightly

A trial can only be fair if each side knows in advance what case it has to meet. Surprise is the enemy: a defendant who first learns the real allegation in the witness box cannot answer it, and a court cannot frame issues on a case that has not been stated.

So pleadings do three jobs at once. They define the dispute, so the court knows what to try. They give notice, so neither side is ambushed. And they fix the boundaries, so that at the end nobody can be given relief on a case never pleaded.

That last point is the one to carry into every other chapter of this Module. Issues are framed from the pleadings, evidence is led on the issues, and the judgment answers the issues. If a fact never entered the pleadings, it never enters the judgment.

What counts as a pleading

Rule 1: "Pleading" shall mean plaint or written statement.

That is the whole definition, and it is narrower than students expect. An affidavit is not a pleading. An application is not a pleading. A written argument is not a pleading. Only the plaint and the written statement, together with anything the Code treats as one, such as a written statement in answer to a counterclaim.

The governing rule: material facts, not evidence

Rule 2(1): every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party relies for his claim or defence, but not the evidence by which they are to be proved.

Take the three commands separately, because each is a separate marking point.

Material facts, not law. The facts that constitute the cause of action or the defence. A party pleads what happened, not which section entitles him to relief. Getting the legal label wrong does not sink a properly pleaded case.

Facts, not evidence. This is the distinction the rule exists for, and it is the one most often asked. Plead that the goods delivered were defective; do not plead that the storekeeper will say so and that there is a photograph. Older writers put it as facta probanda against facta probantia: the facts to be proved, not the facts by which they are proved.

Concise form, and "contain only". A pleading that buries the case in narrative fails the rule as surely as one that omits the case.

The formal requirements

Rule 2(2): every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as convenient, in a separate paragraph.

In one line

The plaint is the document that starts a suit, and Order VII Rule 1 lists the nine things it must contain.

Why the Code prescribes the contents

A plaint has to do three things before a judge has even read the facts. It must show the court that it is the right court, show the defendant what the case against him is, and show everyone what is being asked for. Rule 1 is simply those three requirements broken into nine items.

Read the list that way and it stops being something to memorise. Items (a), (f) and (i) are about the court. Items (b), (c) and (d) are about the parties. Item (e) is the case. Items (g) and (h) are the claim.

The nine particulars

Rule 1 provides that the plaint shall contain the following particulars:

(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 (i) a statement of the value of the subject matter for the purposes of jurisdiction and of court fees, so far as the case admits

Three of these repay a second look.

(e) has two limbs. Not only the facts constituting the cause of action, but when it arose. That date is what a court uses to see, on the face of the plaint, whether the suit is within time. See [Bar of Limitation and Condonation of Delay].

(f) is a pleading requirement, not an argument. The plaint must plead the facts that show jurisdiction, for instance where the defendant resides or where the cause of action arose, not merely assert that the court has jurisdiction. See [Place of Suing].

(h) exists because of Order II Rule 2. A plaintiff who relinquishes part of his claim to bring the suit within a court's pecuniary limit must say so, because that relinquishment is permanent. See [Bar to Further Suit].

Rule 2 adds that in money suits the plaint shall state the precise amount claimed; but where the plaintiff sues for mesne profits, or for an amount which will be found due on taking unsettled accounts, or for movables in the defendant's possession, or for debts whose value he cannot estimate after reasonable diligence, the plaint shall state approximately the amount or value sued for.

In one line

The written statement is the defendant's answer to the plaint, and its governing rule is that a denial must be specific, because whatever is not specifically denied is taken to be admitted.

Why the Code insists on specific denials

A trial is expensive, so the Code tries to shrink the dispute before it starts. If the defendant admits that a contract was made and disputes only whether the goods were defective, then the contract needs no evidence at all and the trial is about one thing.

That only works if the defendant is made to say, allegation by allegation, what he accepts and what he disputes. A written statement that says "the defendant denies each and every allegation in the plaint" tells the court nothing and shrinks nothing. So Order VIII Rule 3 forbids exactly that, and Rule 5 supplies the sanction: what is not denied is treated as admitted.

That is the whole architecture of this Order. Rule 3 says deny specifically; Rule 5 says the price of not doing so is admission.

Time to file: Rule 1, and its two different limits

Rule 1 provides that the defendant shall, within thirty days from the date of service of summons, present a written statement of his defence.

The ordinary proviso: where he fails to do so within thirty days, he shall be allowed to file on such other day as the Court may specify, for reasons to be recorded in writing, but not later than ninety days from the date of service of summons.

The commercial-disputes proviso, inserted for commercial disputes of a specified value: where he fails within thirty days, he may be allowed to file on such other day as the Court specifies, for reasons recorded in writing and on payment of such costs as the Court deems fit, but not later than one hundred and twenty days from service; and on the expiry of one hundred and twenty days the defendant forfeits the right to file the written statement, and the Court shall not allow it to be taken on record.

Learn both, and learn the difference, because it is exactly the sort of thing an examiner separates the careful from the careless with.

Rule 1A adds a documents duty. Where the defendant bases his defence on a document, or relies on any document in his possession or power in support of his defence, set-off or counterclaim, he must enter it in a list and produce it in Court when the written statement is presented, delivering the document and a copy with it. Where such a document is not in his possession or power, he must, wherever possible, state in whose possession or power it is.

In one line

Order IX answers one question in every combination: who turned up, and what the court does about the ones who did not.

There are only four combinations, and the whole Order is built on them. Both parties appear, and the suit proceeds normally. Neither appears. Only the plaintiff appears. Only the defendant appears. Learn the four and the Order becomes simple.

Why the Code deals with this so carefully

Non-appearance is not always defiance. A defendant may never have been served. A summons may have arrived too late to be answered. A plaintiff may be ill on the day. The Code therefore refuses to treat absence as a decision on the merits, and every consequence in this Order is reversible on proof of sufficient cause.

That is the thread running through it: a party who does not appear loses the day, not the case. What the Code will not do is let an absent party ambush the other side later, so each remedy comes with conditions and with notice.

The four combinations

Two words in that table decide most problems. Against neither party, the Code says may. Against a plaintiff who fails to appear, it says shall.

Only the plaintiff appears: Rule 6

Rule 6(1) provides that where the plaintiff appears and the defendant does not when the suit is called on for hearing:

(a) Where the summons was duly served, the Court may make an order that the suit be heard ex parte.

(b) Where it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served.

(c) Where the summons was served but not in sufficient time to enable the defendant to appear and answer on the day fixed, the Court shall postpone the hearing to a future day and direct notice of that day to be given to the defendant.

Rule 6(2): where it was the plaintiff's own default that the summons was not duly served or not served in time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

The structure is worth noticing. An ex parte hearing is available only in case (a). Proof of due service is the gateway, and the burden of it is on the plaintiff. In cases (b) and (c) the court does not proceed at all; it tries again.

In one line

Four Orders, one purpose: to find out before the trial what is really in dispute and what documents exist, so that the trial is about the genuine differences and nothing else.

Order X examines the parties. Order XI extracts answers and documents. Order XII secures admissions. Order XIII gets the documents on the record.

Why the Code puts all this before the trial

A trial is the most expensive way to establish anything. Much of what a case appears to be about turns out not to be disputed at all once somebody asks the parties directly. And a case can be decided quickly if the other side's own documents or admissions settle it.

So the Code front-loads. Every device in these four Orders is a way of shrinking the trial before it begins: by pinning down admissions, by compelling answers on oath, by forcing disclosure of documents, and by putting the documents that matter on the record and shutting out the ones nobody produced.

Order X: examination of the parties by the Court

Rule 1: at the first hearing the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact in the opposite party's plaint or written statement as are not expressly or by necessary implication admitted or denied by him. The Court shall record such admissions and denials.

Read that carefully. It is aimed precisely at what the pleadings left ambiguous. Order VIII Rules 3 to 5 required specific denials and deemed the rest admitted, and Order X Rule 1 is where the judge cleans up whatever survived that. The record it produces feeds directly into the framing of issues, because Order XIV Rule 1(5) requires issues to be framed after examination under Order X Rule 2. See [Framing of Issues and Disposal at the First Hearing].

Rules 1A, 1B and 1C are the alternative dispute resolution gateway. After recording the admissions and denials, the Court shall direct the parties to opt for one of the modes of settlement outside the court specified in section 89(1), and shall fix a date for their appearance before the forum they choose. Where the presiding officer of that forum finds it is not proper to proceed, he shall refer the matter back, and the Court shall then proceed with the suit.

Rule 2 allows the Court, at the first hearing or any later hearing, to examine orally any party appearing in person or present in Court, or any person able to answer material questions relating to the suit, with a view to elucidating matters in controversy. Rule 3 requires the substance of that examination to be reduced to writing by the Judge and to form part of the record. Rule 4 provides that where a party or person refuses or is unable to answer a material question, the Court may pronounce judgment against him or make such order as it thinks fit.

In one line

An issue is a point one side affirms and the other denies, and framing the issues is the moment the court turns two piles of pleadings into a list of questions it will answer.

Why this stage exists

Up to now each side has said what it wants to say. Neither document is organised around what the court must decide, and each contains a good deal that is not in dispute at all. The trial cannot start until somebody converts them into a short list of contested questions.

That is what framing issues does, and everything downstream depends on it. Evidence is led on the issues. Arguments answer the issues. The judgment decides the issues. A fact that never became an issue never gets evidence and never gets decided, which is why [Pleadings] matters so much: an unpleaded fact cannot become an issue.

When an issue arises: Rule 1

Rule 1(1): issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

Rule 1(2): material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue, or a defendant must allege in order to constitute his defence.

Rule 1(3): each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

Rule 1(4): issues are of two kinds, issues of fact and issues of law.

Put those together and the test has three parts. The proposition must be material, meaning necessary to the claim or to the defence. It must be affirmed by one side. And it must be denied by the other. Miss any one and there is no issue.

That last requirement is why Order VIII Rules 3 and 5 matter here. An allegation the defendant does not specifically deny is admitted, and an admitted proposition is not denied by anybody, so no issue arises on it and no evidence is needed. The written statement is therefore the document that decides how long the trial will be. See [The Written Statement].

When and how the court frames them: Rules 1(5), 3 and 4

Rule 1(5): at the first hearing of the suit the Court shall, after reading the plaint and the written statements, after examination under Order X Rule 2, and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or law the parties are at variance, and thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

Rule 1(6): nothing in the rule requires the Court to frame and record issues where the defendant at the first hearing makes no defence.

In one line

Three Orders run the trial: Order XVI brings the witnesses, Order XVII controls adjournments, and Order XVIII governs the order in which the parties present their cases and how evidence is recorded.

Who begins, and in what order

Order XVIII Rule 1: the plaintiff has the right to begin, unless the defendant admits the facts alleged by the plaintiff and contends that, either in point of law or on some additional facts alleged by him, the plaintiff is not entitled to any part of the relief he seeks, in which case the defendant has the right to begin.

The principle behind it is that the party on whom the burden lies opens. Where the defendant admits the plaintiff's facts and says "so what", there is nothing for the plaintiff to prove and the burden has moved.

Rule 2(1): on the day fixed for the hearing, the party having the right to begin shall state his case and produce his evidence in support of the issues he is bound to prove.

Rule 2(2): the other party shall then state his case and produce his evidence, and may then address the Court generally on the whole case.

Rule 2(3): the party beginning may then reply.

That is the shape of a civil trial in three sub-rules, and it is worth reproducing in an answer exactly in that order.

Order XVI: summoning witnesses

Rule 1(1): on or before such date as the Court appoints, and not later than fifteen days after the issues are settled, the parties shall present in Court a list of witnesses they propose to call to give evidence or produce documents, and obtain summonses for their attendance.

Rule 1(2): a party seeking a summons shall file an application stating the purpose for which the witness is proposed to be summoned.

Rule 1(3): the Court may, for reasons to be recorded, permit a party to call a witness not named in the list, if that party shows sufficient cause for the omission.

Rule 1(4): summonses may be obtained on application within five days of presenting the list.

Rule 1A is the practical escape hatch: subject to Rule 1(3), any party may, without applying for a summons, simply bring any witness to give evidence or produce documents. A party who can persuade his witness to attend does not need the Court's process at all.

Rule 2 requires the party applying for a summons to deposit a sum sufficient to defray the witness's travelling and other expenses. Rule 6 allows a person summoned merely to produce a document to comply by causing it to be produced instead of attending personally.

In one line

Section 33 says the whole of it: after the case has been heard the Court pronounces judgment, and on that judgment a decree follows.

Two documents, in that order, and the second is drawn from the first. Everything in Order XX is the detail of how.

Why they are two documents

A judgment explains and a decree operates. The judgment is where the judge sets out the case, the points for determination, the decision and the reasons. The decree is a short formal document recording what the court has actually ordered, and it is the decree, not the judgment, that goes to the execution court.

Keeping them separate is what allows the execution court to do its job without re-reading the reasoning, and it is why section 2(2) defines a decree as the formal expression of an adjudication while section 2(9) defines a judgment as the statement of the grounds.

Pronouncing the judgment: Rule 1

Rule 1(1) provides that the Court, after the case has been heard, shall pronounce judgment in open Court, either at once or as soon thereafter as may be practicable; and where judgment is to be pronounced on a future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders.

The proviso sets the timetable, and it is examinable. Where judgment is not pronounced at once, every endeavour shall be made to pronounce it within thirty days from the conclusion of the hearing. Where that is not practicable on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day, which shall not ordinarily be beyond sixty days from the conclusion of the hearing, and due notice of the day so fixed shall be given.

For a commercial dispute before a Commercial Court, Commercial Division or Commercial Appellate Division, judgment shall be pronounced within ninety days of the conclusion of arguments, and copies issued to all parties, by electronic mail or otherwise.

So there are three periods to keep apart: thirty days as the endeavour, sixty days as the outer limit in exceptional circumstances, and ninety days in commercial matters.

Signing, and what a judgment must contain

Rule 3: the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it, and once signed shall not afterwards be altered or added to, save as provided by section 152 or on review.

That is a short rule with long consequences. A signed judgment is fixed. The only two doors left open are section 152, which allows the correction of clerical or arithmetical mistakes and errors from any accidental slip or omission, and review under section 114 and Order XLVII. A party who simply dislikes the judgment has neither door; he has an appeal.

In one line

Costs are what the losing side pays towards the winner's expenses, and the Code has three separate provisions: section 35 for ordinary costs, section 35A for costs punishing a false or vexatious case, and section 35B for costs punishing delay.

Keep those three apart. Almost every question on this topic is really asking which of the three applies.

Why the Code gives the court this power

Litigation costs money whether or not you were right. If a person is dragged into court on a claim that fails, and has to pay his own lawyer for the privilege, then winning has cost him. Costs exist to shift some of that burden onto the party who caused it.

But costs also do a second job, and sections 35A and 35B are entirely about that job: they discipline conduct. One punishes a party for advancing a case he knew was false; the other punishes a party for wasting a hearing. Those are penalties, and the Code treats them quite differently from ordinary costs.

Section 35: ordinary costs

Section 35(1): subject to such conditions and limitations as may be prescribed and to any law 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, out of what property, and to what extent costs are to be paid, and to give all necessary directions. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

Section 35(2): where the Court directs that costs shall not follow the event, it shall state its reasons in writing.

Three points.

The discretion is real but not arbitrary. The general principle, expressed in sub-section (2) by implication, is that costs follow the event: the loser pays. A court departing from that must record why.

A court without jurisdiction can still award costs. That is expressly provided, and it makes sense: a defendant dragged before the wrong court has still incurred expense.

For commercial disputes the Code now sets this out at length. The Court has discretion whether costs are payable, in what amount, and when; "costs" means reasonable costs of witnesses' fees and expenses, legal fees and expenses, and other expenses of the proceedings; and the general rule is that the unsuccessful party pays the costs of the successful party, with any departure to be for reasons recorded in writing. The Code's own illustration is instructive: where a plaintiff wins his money decree but his claim for damages is found frivolous and vexatious, the Court may impose costs on the successful plaintiff for having raised it.

In one line

A plaintiff may walk away from his suit, but whether he can come back depends entirely on whether he asked the court's permission first.

That single distinction is the whole of Rule 1, and it is what almost every exam question on this Order is testing.

Why the Code draws the line there

A plaintiff is not forced to continue a suit he no longer wants. But a defendant who has been sued, has engaged a lawyer, and has filed a written statement has an interest too: he is entitled to have the matter finished, not dropped and started again at the plaintiff's convenience.

So the Code lets the plaintiff leave whenever he likes, and then makes him choose. Leave without permission and it is final: he pays costs and can never sue again on that subject matter. Leave with permission, which is granted only on limited grounds, and he keeps the right to sue afresh.

Withdrawal without permission: Rule 1(1) and 1(4)

Rule 1(1): at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, abandon his suit or abandon a part of his claim.

The proviso protects those under disability: where the plaintiff is a minor or another person to whom Order XXXII Rules 1 to 14 extend, neither the suit nor any part of the claim may be abandoned without the leave of the Court. Rule 1(2) requires that application to be supported by an affidavit of the next friend, and where the minor is represented by a pleader, by the pleader's certificate that the proposed abandonment is in his opinion for the minor's benefit.

Rule 1(4) states the price. Where the plaintiff abandons a suit or part of a claim under sub-rule (1), or withdraws without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award, and shall be precluded from instituting any fresh suit in respect of that subject matter or that part of the claim.

Withdrawal with permission: Rule 1(3)

Rule 1(3): where the Court is satisfied

(a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of the claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw with liberty to institute a fresh suit in respect of that subject matter or part of the claim.

Two grounds only, and the first is the one to be precise about. A formal defect is a defect of form rather than of substance: a defect in the frame of the suit, in verification, in valuation, in the joinder of parties, in the description of property. It is not a weakness in the case. A plaintiff who discovers his evidence is thin has no formal defect and no route under clause (a).

In one line

Before you sue the Government, or a public officer for something done in his official capacity, you must give two months' written notice, and your plaint must say that you did.

Why the Code requires it

The purpose is to give the Government a chance to look at the claim and settle it without litigation. A department served with a proper notice can examine the file, take advice, and pay or explain, which is cheaper for everyone than a suit. It also protects a public officer from being sued at once for an act done in the course of his duty.

That purpose is worth stating in an answer, because it explains the shape of the section: two months to consider, a notice that contains enough to be considered, and an exception where waiting would defeat the claim.

Who is named: section 79

Section 79 provides that in a suit by or against the Government the authority to be named as plaintiff or defendant shall be:

(a) in the case of a suit by or against the Central Government, the Union of India; and (b) in the case of a suit by or against a State Government, the State.

So the party is the Union of India or the State by name, not a Ministry, not a department, and not a Secretary. Naming the wrong entity is a common and easily avoided error.

The notice: section 80(1)

Section 80(1) provides that, save as otherwise provided in sub-section (2), no suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by him in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of, the proper authority.

Who gets the notice:

(a) for a suit against the Central Government, except where it relates to a railway, a Secretary to that Government (b) where it relates to a railway, the General Manager of that railway (c) for a suit against any other State Government, a Secretary to that Government or the Collector of the district

and in the case of a public officer, the notice is delivered to him or left at his office.

What the notice must state, and this is the part exam answers must reproduce:

• the cause of action
• the name, description and place of residence of the plaintiff
• the relief which he claims

And the plaint shall contain a statement that such notice has been so delivered or left. That last requirement is a pleading requirement and it is separate from the notice itself. A plaintiff who gave a perfect notice and forgot to plead it has still not complied with the section.

In one line

Some people cannot sue or be sued in the ordinary way, either because the law does not treat them as competent, or because they are not a natural person at all, and Orders XXVIII to XXXII say how each of them appears in court.

The four situations, and the idea behind each

A minor or a person of unsound mind cannot conduct litigation, so the Code supplies a human being to do it for him and then supervises that person closely. Order XXXII.

A corporation is a person in law but not in fact, so the Code says who may sign for it and on whom process may be served. Order XXIX.

A firm is not a legal person at all, and the Code allows the convenience of suing in the firm name while preserving the reality that the partners are the parties. Order XXX.

A trustee, executor or administrator represents others, so the Code allows him to sue and be sued without joining the beneficiaries. Order XXXI.

Order XXXII: minors and persons of unsound mind

Rule 1: every suit by a minor shall be instituted in his name by a person who shall be called the next friend of the minor. The Explanation provides that "minor" means a person who has not attained majority within the meaning of section 3 of the Indian Majority Act 1875.

So a minor plaintiff sues in his own name, and the next friend is the person who conducts the suit. The minor is the party; the next friend is not.

Rule 2(1): where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. Rule 2(2) requires notice of that application to be given to that person and the Court to hear his objections.

Note where the costs fall. Not on the minor, who did nothing, but on the adult who put the plaint in.

Rule 2A allows the Court, at any stage, to order the next friend to furnish security for the defendant's costs.

Rule 3: where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for that minor. So the terminology divides cleanly: a minor plaintiff sues by a next friend; a minor defendant defends by a guardian for the suit, appointed by the Court.

Rule 3A is a protection against technical challenges: a decree against a minor shall not be set aside merely on the ground that the next friend or guardian for the suit had an interest adverse to that of the minor, unless prejudice has been caused to the minor's interests by reason of that interest.

In one line

A person too poor to pay the court fee may sue without paying it, if the court is satisfied he is indigent and that his case is not one of the seven kinds the Code shuts out.

Why the Code provides for this

Court fees are charged as a proportion of the claim, so the bigger the wrong done to you the more it costs to complain about it. For a person with nothing, that turns the court into a place he cannot enter, and a right that cannot be enforced is not much of a right.

Order XXXIII is the Code's answer. It does not give the indigent person a better case; it removes the fee as a barrier to bringing the case he has. Notice how carefully it is fenced: an inquiry into means, a list of grounds for rejection, notice to the Government and to the opposite party, and provisions for recovering the fee at the end. The Code is generous about access and careful about abuse.

Who is an indigent person

The Explanation to Rule 1 defines it. A person is an indigent person if:

(a) he is not possessed of sufficient means, other than property exempt from attachment in execution of a decree and the subject matter of the suit, to enable him to pay the fee prescribed by law for the plaint in that suit; or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees, again excluding property exempt from attachment and the subject matter of the suit.

Two exclusions run through both limbs and they are worth stating in any answer: property exempt from attachment is not counted, and the subject matter of the suit is not counted. It would be absurd to tell a man he can afford the fee because of the very property he is suing to recover.

Any property acquired after the presentation of the application and before its decision is taken into account in deciding the question.

The procedure

Rule 2: the application must contain the particulars required in a plaint, together with a schedule of any movable or immovable property belonging to the applicant with its estimated value, and it must be signed and verified as a pleading.

Rule 3: the application shall ordinarily be presented by the applicant in person, unless he is exempt from appearing in court, in which case it may be presented by an authorised agent.

Rule 1A: the inquiry into the means of an indigent person shall, in the first instance, be made by the chief ministerial officer of the Court, unless the Court otherwise directs, and the Court may adopt his report or make its own inquiry.

In one line

A mortgage suit is decided in two stages: a preliminary decree that works out how much is owed and gives a period to pay, and a final decree that says what happens if it is not paid.

Order XXXIV is where the preliminary decree really lives. If you understand the two-stage structure here, the Explanation to section 2(2) stops being an abstraction.

Why the Code proceeds in two stages

A mortgage dispute is not really about who is right. It is usually common ground that money was lent and that land was given as security. What is in dispute is how much is outstanding today, and that cannot be known until an account is taken of principal, interest, costs and expenses.

So the Code does the accounting first, then gives the party a genuine opportunity to pay, and only if he does not pay does it move to the consequence. The preliminary decree does the first two things; the final decree does the third.

That structure also explains why the periods are generous. The whole point of a redemption period is that a person should not lose land over a debt he could have paid.

The three kinds of mortgage suit

Two are the lender's remedies and one is the borrower's. The procedure in each is a mirror of the others, which is why Rules 4 and 7 are drafted by reference back to Rule 2.

Rule 1 requires that all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage, subject to the exceptions the rule states.

Section 16(c) places such a suit where the property is situate: a suit for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property is instituted in the Court within whose local limits the property lies. See [Place of Suing].

The preliminary decree in a foreclosure suit: Rule 2

Rule 2(1): in a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree:

(a) ordering that an account be taken of what was due to the plaintiff at the date of the decree for (i) principal and interest on the mortgage, (ii) the costs of the suit awarded to him, and (iii) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage security, with interest on them; or

In one line

Execution is the process by which the winner actually gets what the decree gave him, and this chapter answers the first two questions: what execution is, and which court does it.

Why execution is a separate stage at all

A decree is a piece of paper. It declares that the plaintiff is entitled to possession, or to Rs. 5,00,000, but it does not by itself move anybody out of a house or take money out of an account. The trial establishes the right; execution enforces it.

That separation is deliberate and it matters practically. The suit may have taken five years; the judgment-debtor may have moved to another State, or sold his property, or have nothing left. Execution is a fresh set of problems, and the Code gives it its own machinery, in sections 36 to 74 and in Order XXI, which is the longest Order in the Code.

Notice what that means for this Module. The syllabus expresses Module III in terms of Order XXI, but the powers exercised under it come from the sections, and none of sections 36 to 74 appears in any printed range of the syllabus. They are examined all the same.

The vocabulary

Two definitions from section 2 govern the whole of this Module, and they are set out in [Definitions].

Decree-holder, section 2(3): any person in whose favour a decree has been passed or an order capable of execution has been made.

Judgment-debtor, section 2(10): any person against whom a decree has been passed or such an order made.

Note that neither is confined to a plaintiff or a defendant. A defendant who wins his counterclaim is a decree-holder.

Section 36 then extends the whole machinery: the provisions of the Code relating to the execution of decrees, including provisions relating to payment under a decree, shall so far as applicable be deemed to apply to the execution of orders, including payment under an order. So an executable order is enforced exactly as a decree is.

Which court may execute: section 38

Section 38: a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

Two courts, and no more. Everything else in this part of the Code is about how a decree gets from the first to the second, which is [Transfer of a Decree for Execution].

"The Court which passed a decree": section 37

This is the question MU asked, and the answer is not the obvious one, because the expression is extended by the section.

Section 37: the expression "the Court which passed a decree", or words to that effect, shall in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include:

In one line

A decree is passed where the suit was tried, and the judgment-debtor's property or person is often somewhere else, so sections 39 to 46 let the decree travel.

Why the Code allows it

Section 38 gives only two possibilities: the court that passed the decree, or the court to which it is sent. If a decree could never be sent, a decree-holder would be helpless the moment the judgment-debtor moved district, and a defendant could defeat any decree by keeping his property elsewhere.

But transfer is not automatic either, because sending a decree to another court takes it away from the court that knows the case. So section 39 lists the grounds, and the Code adds safeguards at both ends: certified copies, certificates of what remains unsatisfied, and a bar on transferring beyond the Code's reach.

When a decree may be sent: section 39

Section 39(1): the Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction:

(a) if the person against whom the decree was passed actually and voluntarily resides, or carries on business, or personally works for gain, within the local limits of that other Court; or (b) if that person has not property within the local limits of the Court which passed the decree sufficient to satisfy it, and has property within the limits of that other Court; or (c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the Court which passed it; or (d) if the Court which passed the decree considers, for any other reason which it shall record in writing, that the decree should be executed by that other Court.

Section 39(2): the Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

Section 39(3) defines competence for this purpose: a Court is deemed to be of competent jurisdiction if, at the time of making the application for transfer, it would have jurisdiction to try the suit in which the decree was passed.

Section 39(4) is the limit that matters most: nothing in the section authorises the Court which passed the decree to execute it against a person or property outside the local limits of its own jurisdiction.

So the grounds are four, the court may also act on its own motion but only downwards to a subordinate court, and competence is judged as at the date of the transfer application.

The mechanics: sections 41 to 46 and Order XXI Rules 4 to 9

Order XXI Rule 6: where a decree is sent to another Court, the Court which passed it shall send a copy of the decree, a certificate stating that satisfaction of the decree has not been obtained by execution within its own jurisdiction, or, where it has been executed in part, the extent to which satisfaction has been obtained and what part remains unsatisfied, and a copy of any order for the execution of the decree or, if no such order has been made, a certificate to that effect.

In one line

Every dispute about executing, discharging or satisfying a decree is decided by the executing court itself, and not by a separate suit.

Why the Code forbids a separate suit

Without section 47 a judgment-debtor could answer every step of execution with a fresh suit. Attachment could be met with a suit for a declaration that the decree was satisfied; a sale could be met with a suit about who was entitled to the property. Each new suit would take years, and a decree would become a licence to litigate rather than a way of ending litigation.

So the Code concentrates all of it in one place: the court that is executing. That court is already seised of the matter, it has the record, and it can decide the point in the execution proceeding itself.

The provision is therefore a bar on one thing and a grant of jurisdiction over the same thing. It is worth saying both halves in an answer.

The provision

Section 47(1): all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

Section 47(3): where a question arises as to whether any person is or is not the representative of a party, that question shall, for the purposes of the section, be determined by the Court.

Explanation I: for the purposes of the section, a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the suit.

Explanation II: (a) a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree was passed; and (b) all questions relating to the delivery of possession of that property to that purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree.

Note: Explanation II has been omitted in Uttar Pradesh by a State amendment. It is in force here, and it is the one that brings the auction purchaser inside the section.

The three conditions

For section 47 to apply, all three must be satisfied, and an answer that gives fewer than three is incomplete.

One, the question must arise between the PARTIES to the suit, or their representatives. A stranger to the suit is outside the section entirely. If a third party claims the attached property belongs to him, that is not a section 47 question; it is a claim under Order XXI Rule 58.

In one line

Section 51 lists the five ways a decree can be enforced, and the proviso to it is the reason a person is very rarely sent to prison for a debt.

Why the Code lists the modes

A decree can be for many things: money, possession of land, delivery of goods, an injunction, specific performance. Each needs a different instrument. So the Code sets out a menu and leaves the choice, in the first instance, to the decree-holder, who applies for the mode he wants under Order XXI Rule 11(2).

But the Code does not leave the choice entirely to him. Imprisonment is on the menu, and the Code hedges it with conditions so severe that it becomes the exception. That is deliberate: a civil decree is about recovering money, not punishing poverty.

The five modes: section 51

Section 51: subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree:

(a) by delivery of any property specifically decreed (b) by attachment and sale, or by the sale without attachment, of any property (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section (d) by appointing a receiver (e) in such other manner as the nature of the relief granted may require

Clause (e) is the residuary provision, and it is what allows the Code to cope with decrees the draftsman did not anticipate. Clause (d) connects this chapter to [Appointment of Receivers], Order XL.

The proviso: when a judgment-debtor may be imprisoned

This is the most examined part of section 51 and the answer must reproduce its structure.

Where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied of one of three things:

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree, (i) is likely to abscond or leave the local limits of the Court's jurisdiction, or (ii) has, after the institution of the suit, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part of it, and refuses or neglects, or has refused or neglected, to pay it; or

In one line

A judgment-debtor may be arrested and held in the civil prison, but the Code protects when the arrest may be made, whose door may be opened, who may not be arrested at all, and how long the detention may last.

Why the Code hedges it so heavily

Detention in execution is not punishment. The judgment-debtor has committed no offence. He is being held to make him pay, and that is only defensible where he actually can pay and will not. Everything in this chapter follows from that.

Notice the structure. The conditions for ordering detention are in the proviso to section 51 and are strict. The manner of arrest is in section 55 and is hedged with three provisos. Who is exempt is sections 56 and 135. The duration is section 58, and it is short. And section 58(2) makes clear that release does not wipe out the debt, so detention is a lever, not a settlement.

How the arrest is made: section 55

Section 55(1): a judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall as soon as practicable be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering detention is situate, or, where that prison does not afford suitable accommodation, in any other place the State Government appoints.

Then come three provisos, and they are a favourite of examiners because they are concrete.

First proviso: for the purpose of making an arrest, no dwelling-house shall be entered after sunset and before sunrise.

Second proviso: no outer door of a dwelling-house shall be broken open unless the dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access to it. But where the officer has duly gained access, he may break open the door of any inner room in which he has reason to believe the judgment-debtor is to be found.

Third proviso: if a room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer shall give notice to her that she is at liberty to withdraw, and, after allowing reasonable time and facility for her to withdraw, may enter that room for the purpose of making the arrest.

Section 55(3) provides that where the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, that officer shall at once release him.

Section 55(4) allows the Court to release a judgment-debtor who is arrested in execution of a decree for the payment of money, on his furnishing security or on such terms as the Court thinks fit, where he applies to be declared an insolvent.

In one line

Attachment is the act by which a court takes hold of a judgment-debtor's property so that it cannot be disposed of, and section 60 says what may be attached and, in a long list of exemptions, what may not.

Why attachment comes before sale

Attachment does not transfer anything to the decree-holder. It freezes. Its function is to preserve the property until it can be sold and to stop the judgment-debtor defeating the decree by selling first.

That is why section 64 is the operative sanction, and why the list of exemptions in section 60 is so long and so specific: freezing a man's property is easy to do and hard to undo, so the Code protects the things he cannot live or work without.

What may be attached: section 60(1)

Section 60(1): the following property is liable to attachment and sale in execution of a decree: lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as thereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether held in his own name or by another person in trust for him or on his behalf.

Two ideas do the work. The property must be saleable, and the judgment-debtor must either own it or have a disposing power over it exercisable for his own benefit. The final words defeat the obvious trick: property held by somebody else in trust for him, or on his behalf, is still attachable.

What may not be attached: the proviso to section 60(1)

The proviso is a list, and an examiner asking "what property is exempt from attachment" wants the list. These are the principal items:

(a) the necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as by religious usage cannot be parted with by any woman (b) tools of artisans, and where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as the Court thinks necessary to enable him to earn his livelihood (c) houses and other buildings, with their materials, sites and appurtenant land, belonging to an agriculturist, a labourer or a domestic servant and occupied by him (d) books of account (e) a mere right to sue for damages (f) any right of personal service (g) stipends and gratuities allowed to pensioners of the Government, a local authority or any other employer, and political pensions (h) the wages of labourers and domestic servants, whether payable in money or in kind (i) salary to the extent of the first one thousand rupees and two thirds of the remainder, in execution of any decree other than a decree for maintenance

In one line

Sale is the step that turns attached property into money, and the Code surrounds it with three protections: an accurate proclamation before it, three routes to set it aside after it, and a rule that title passes only when the sale becomes absolute.

Why the Code is so careful about it

An execution sale is a forced sale. The owner does not want to sell, he has no say in the terms, and a badly conducted auction can strip him of a house worth crores for a fraction of its value while leaving most of the decree unpaid. Nobody gains from that except a bargain hunter.

So the Code tries to secure a fair price: full disclosure to bidders so they can value the property, a proper auction, a deposit to keep out frivolous bidders, and a window in which the sale can be undone. And it deliberately delays the passing of title, so that the property can still be released if the judgment-debtor finds the money.

The order for sale, and how it is conducted

Rule 64: any Court executing a decree may order that any property attached by it and liable to sale, or such portion of it as may be necessary to satisfy the decree, shall be sold, and that the proceeds, or a sufficient portion of them, be paid to the party entitled under the decree.

The words "such portion as may be necessary" matter. The court is not to sell more than the decree requires.

Rule 65: save as otherwise prescribed, every sale in execution shall be conducted by an officer of the Court or by such other person as the Court may appoint, and shall be made by public auction in the manner prescribed.

The proclamation of sale: Rule 66

This is the most examined rule in the chapter, because it is where most sales go wrong.

Rule 66(1): where property is ordered to be sold by public auction, the Court shall cause a proclamation of the intended sale to be made in the language of the Court.

Rule 66(2): the proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor, and shall state the time and place of sale, and specify as fairly and accurately as possible:

(a) the property to be sold, or where a part would be sufficient to satisfy the decree, that part (b) the revenue assessed on the estate, where the property is an interest in an estate paying revenue to the Government (c) any incumbrance to which the property is liable (d) the amount for the recovery of which the sale is ordered (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property

In one line

A decree-holder who is physically blocked when he goes to take possession does not have to file a fresh suit: Rule 97 lets him complain to the executing court, and Rule 101 requires that court to decide every question, including title.

The problem the rules solve

A decree for possession is worth nothing if the bailiff arrives and finds somebody standing in the doorway saying "the decree is not against me". Before 1976 the decree-holder's remedy in a contested case was often a separate suit, which meant starting again after already winning.

The Code now handles it inside the execution proceeding. Two situations are covered, and they are mirror images:

Rule 97, the decree-holder is resisted or obstructed and complains. Rule 99, a stranger has been dispossessed by the decree-holder and complains.

Both then run through the same machinery: Rule 101 for what is decided, Rules 98 and 100 for the order, and Rule 103 for the status of that order.

Resistance: Rule 97

Rule 97(1): where the holder of a decree for the possession of immovable property, or the purchaser of any such property sold in execution of a decree, is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

Rule 97(2): where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions contained in this set of rules.

Two things to note. The remedy belongs to the auction purchaser as well as the decree-holder. And sub-rule (2) is mandatory: the Court shall adjudicate. It cannot send the applicant away to file a suit.

Dispossession of a stranger: Rule 99

Rule 99(1): where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession, or, where the property has been sold in execution, by the purchaser, he may make an application to the Court complaining of such dispossession.

Rule 99(2): the Court shall proceed to adjudicate upon the application.

So the rules cut both ways. Rule 97 protects the decree-holder against obstruction; Rule 99 protects a stranger who has been thrown out under a decree that was never against him.

What the court decides: Rule 101

This is the rule that changed the law, and it should be quoted.

Rule 101: all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99, or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application AND NOT BY A SEPARATE SUIT; and for that purpose the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

In one line

Order XXXVIII lets a court freeze a defendant's property, or hold him to security, before any decree has been passed, where he is about to make himself judgment-proof.

Why the Code allows something so drastic

A suit takes years. A defendant who can see the result coming has every incentive to sell everything and leave. If the court could act only after the decree, the decree would frequently be worthless, and the more obviously guilty the defendant, the more time he would have to arrange it.

But the plaintiff has proved nothing yet. An attachment before judgment can ruin a defendant who turns out to owe nothing at all. So the Code makes the power available only on a narrow and specific finding about the defendant's conduct and intention, and it hedges it with security, compensation and time limits.

Section 94 is the enabling section: it provides that in order to prevent the ends of justice from being defeated, the Court may, if so prescribed, (a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply, commit him to civil prison; and (b) direct the defendant to furnish security to produce any property belonging to him and to place it at the disposal of the Court, or order the attachment of any property.

Arrest before judgment: Rules 1 to 4

Rule 1: where at any stage of a suit, other than a suit of the nature referred to in section 16 clauses (a) to (d), the Court is satisfied, by affidavit or otherwise:

(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 Court's jurisdiction, or (ii) is about to abscond or leave them, or (iii) has disposed of or removed from those limits his property or any part of it; or

(b) that the defendant is about to leave India in circumstances affording reasonable probability that the plaintiff will thereby be obstructed or delayed in the execution of any decree that may be passed against him,

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.

The proviso is a practical safeguard: the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim.

In one line

Two short Orders, each protecting one side against the other's use of the litigation itself as a weapon: Order XXIV lets a defendant stop the interest clock by paying the money in, and Order XXV lets a defendant demand security from a plaintiff who may not be around to pay costs.

Order XXIV: payment into court

Why it exists

Suppose a defendant accepts he owes Rs. 1,00,000 and offers it, but the plaintiff insists on Rs. 5,00,000 and sues. The suit runs three years. If nothing could be done, the defendant would pay interest for three years on money he was willing to hand over on day one, and would pay the costs of a trial he never wanted.

Order XXIV lets him take that away. He deposits what he says is due, and from the moment the plaintiff has notice of the deposit, interest stops running on that sum. If the court later finds the deposit was enough, the plaintiff pays the costs of the litigation he insisted on.

The four rules

Rule 1: the defendant in any suit to recover a debt or damages may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim.

Rule 2: notice of the deposit shall be given through the Court by the defendant to the plaintiff, and the amount shall, unless the Court otherwise directs, be paid to the plaintiff on his application.

Rule 3, and this is the operative sanction: no interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited is in full of the claim or falls short of it.

Read Rule 3 carefully. The interest stops even if the deposit turns out to be too small. It stops on the sum deposited, from the date the plaintiff receives notice.

Rule 4(1), where the plaintiff accepts it as part satisfaction: he may prosecute his suit for the balance; and if the Court decides that the deposit was a full satisfaction of the claim, the plaintiff shall pay the costs of the suit incurred after the deposit, and also the costs incurred before it so far as they were caused by the excess in his claim.

That is the sting. A plaintiff who refuses a sufficient deposit and presses on pays for the rest of the case himself, and may pay for part of the earlier costs too, to the extent his own inflated claim caused them.

Rule 4(2), where he accepts it as full satisfaction: he shall present a statement to that effect, which is filed, and the Court shall pronounce judgment accordingly; and in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation.

In one line

A commission is a court's delegation of a particular task to somebody else, called a Commissioner, who does it and reports back, because the task cannot conveniently be done in the courtroom.

Why the Code allows it

Some things a court needs simply cannot happen in front of the judge. A witness may be too ill to attend, or live a thousand miles away. The dispute may turn on the state of a wall that has to be looked at. Accounts may run to years of entries that no judge can add up from the bench. Property may have to be divided on the ground with measuring tape.

None of that is adjudication. It is fact-gathering and mechanical work, and the Code lets the court send somebody to do it and bring back the material. The judge still decides; the Commissioner only supplies what the judge cannot conveniently obtain himself.

The seven purposes: section 75

Section 75: subject to such conditions and limitations as may be prescribed, the Court may issue a commission:

(a) to examine any person (b) to make a local investigation (c) to examine or adjust accounts (d) to make a partition (e) to hold a scientific, technical or expert investigation (f) to conduct the sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit (g) to perform any ministerial act

The first four were in the Code as enacted; clauses (e), (f) and (g) were added by the 1976 amendment. That is worth knowing, because a question asking for "the purposes for which a commission may be issued" wants all seven, and the older ones alone will read as an incomplete answer.

Commission to examine a witness: Rules 1 to 8

Rule 1: 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.

The proviso: a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary to do so.

The Explanation is a practical shortcut worth remembering: the Court may accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.

Rule 2: an order for the issue of such a commission may be made by the Court of its own motion or on the application of any party or of the witness.

In one line

A temporary injunction is an order made while the suit is still running which stops a party doing something, so that the subject matter of the dispute still exists when the court finally decides it.

Why the Code allows it

A suit takes years, and the defendant keeps possession of the property throughout. If he can cut down the trees, sell the land, or demolish the building while the case is pending, the plaintiff may win a decree about something that no longer exists.

So the court is given power to freeze the position. But the plaintiff has proved nothing yet, and an injunction can be as damaging to an innocent defendant as the threatened act would be to the plaintiff. The Code therefore hedges the power: notice before granting, reasons if notice is dispensed with, a thirty-day clock, compensation for a wrongly obtained injunction, and attachment and imprisonment for disobeying one.

Section 94(c) is the enabling provision: in order to prevent the ends of justice from being defeated, the Court may, if so prescribed, grant a temporary injunction and, in case of disobedience, commit the person guilty of it to civil prison and order that his property be attached and sold.

Section 95 is the counterweight, and it is dealt with at the end of this chapter.

When a temporary injunction may be granted: Rule 1

Rule 1: where in any suit it is proved by affidavit or otherwise:

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in 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, or (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,

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property, or dispossession of the plaintiff or other injury to him in relation to property in dispute, as the Court thinks fit, until the disposal of the suit or until further orders.

Three grounds, and it is worth noticing what they have in common and how they differ.

Clauses (a) and (c) are about property in dispute in the suit. Clause (b) is not: it is about the defendant's own property, and it is aimed at a defendant putting his assets beyond the reach of creditors. Clause (b) therefore overlaps with attachment before judgment under Order XXXVIII Rule 5, and the difference is that clause (b) restrains, while Order XXXVIII attaches. See [Attachment before Judgment].

In one line

An interpleader suit is one brought by a person who holds property he does not claim, against two or more people who both claim it from him, so that the court can decide which of them is entitled and he can hand it over safely.

The word is worth unpacking. To interplead is to plead against one another. The plaintiff drops out; the defendants fight.

Why the Code provides for it

Consider a warehouse keeper holding goods, and two people each demanding them, each threatening to sue him if he gives them to the other. He is in an impossible position through no fault of his own. If he guesses wrong he pays twice: once by delivering the goods, and again in damages to the true owner.

An interpleader suit takes him out of the dispute. He puts the property before the court, says he claims nothing, and asks the court to decide between the claimants and to protect him. He is then discharged, usually with his costs.

Notice how unusual that makes the suit. In an ordinary suit the plaintiff wants something from the defendants. Here the plaintiff wants nothing except to be let go, and the real contest is between the defendants.

The provision: section 88

Section 88: where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs, and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made, and of obtaining indemnity for himself.

The proviso: where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.

The conditions, which are what an exam answer needs

Break the section into its elements and there are five, all of which must be present.

One, there must be a debt, a sum of money, or other property, movable or immovable.

Two, two or more persons must claim it adversely to one another. Not merely two people interested in it: their claims must conflict, so that satisfying one defeats the other.

Three, the person holding it must claim no interest in it, other than for charges or costs. This is the heart of the thing. A holder who has a claim of his own is not a stakeholder; he is a party to the dispute and must fight it out.

In one line

A special case is a question of fact or law that the parties agree to put to the court for its opinion, having settled in advance what will follow from the answer.

There is no plaintiff suing a defendant in the ordinary sense. There is an agreement, a question, and an agreed consequence.

Why the Code provides for it

Sometimes the parties do not really disagree about the facts at all. Two people may accept exactly what happened and differ only about what the law makes of it. Litigating that in the ordinary way means pleadings, issues, witnesses and a trial, all to reach a point that could have been reached in a morning's argument.

Order XXXVI lets them skip to the argument. They agree the facts in writing, frame the question, and agree what each will do depending on the answer. The court then decides the question and gives effect to their agreement.

It is worth seeing what the parties give up in exchange. Under Rule 4 they become subject to the jurisdiction of the Court and bound by the statements contained in the agreement. They cannot later dispute the facts they themselves set down.

The enabling section

Section 90: where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

That is the whole section. The manner prescribed is Order XXXVI.

What the agreement must contain: Rule 1

Rule 1(1): parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating that question in the form of a case for the opinion of the Court, and providing that upon the finding of the Court with respect to that question:

(a) a sum of money, fixed by the parties or to be determined by the Court, shall be paid by one of them to the other; or (b) some property, movable or immovable, specified in the agreement, shall be delivered by one of them to the other; or (c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.

Rule 1(2): every case so stated shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised.

Two features of Rule 1 deserve emphasis.

The agreement must specify the consequence. It is not enough to ask the court an abstract question. One of the three outcomes in clauses (a), (b) and (c) must be provided for, so that the court's answer actually disposes of something.

In one line

A summary suit is one in which the defendant cannot defend as of right: he must first obtain the leave of the Court to defend, and if he does not get it, the plaintiff is entitled to judgment at once.

Why the Code reverses the usual position

Most defences to a claim on a cheque or a written contract are not defences at all. The money is owed, the document says so, and the defence exists only to buy two or three years. Ordinary procedure rewards that: the defendant files a written statement, issues are framed, and the case joins the queue.

Order XXXVII removes the reward. In the classes of case where the claim is on a document or a fixed sum, and where a genuine defence is therefore uncommon, the burden is reversed. The defendant must come forward and show he has something worth trying. If he has, he gets leave and the suit proceeds normally. If he has not, the plaintiff gets his decree in weeks.

Notice that this is a procedural shortcut, not a lower standard of proof. A defendant with a real defence loses nothing except the ability to delay.

Which courts, and which suits: Rule 1

Rule 1(1): the Order applies to (a) High Courts, City Civil Courts and Courts of Small Causes; and (b) other Courts. The proviso allows a High Court, by notification in the Official Gazette, to restrict the operation of the Order in the courts in clause (b) to such categories of suits as it thinks proper, and to restrict, enlarge or vary those categories later.

Rule 1(2): subject to sub-rule (1), the Order applies to the following classes of suits:

(a) suits upon bills of exchange, hundies and promissory notes (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising (i) on a written contract, or (ii) on an enactment, where the sum sought is a fixed sum of money or in the nature of a debt other than a penalty, or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only (iv) a suit for recovery of receivables instituted by any assignee of a receivable

The common thread is worth stating in an answer: every one of these is a claim for a definite sum resting on a document or a statute. Nothing that requires damages to be assessed can come here.

How a summary suit is instituted: Rule 2

Rule 2(1): a suit to which the Order applies may, if the plaintiff desires to proceed under it, be instituted by presenting a plaint which shall contain:

In one line

Where a court sees that a case could be settled, section 89 requires it to formulate the terms of a possible settlement and send the parties out to one of four forums to try.

Why the Code has this at all

Litigation is slow, expensive and adversarial, and a great many civil disputes are not really about principle. Two neighbours arguing about a wall, or a family about a partition, may be far better served by a settlement than by a decree that leaves them enemies.

Section 89 is the Code's attempt to build that into the process rather than leave it to chance. Notice its structure, because it is unusual: the court does not merely refer the parties out. It first formulates the terms of a possible settlement itself, gives them to the parties, takes their observations, and may then reformulate them. Only after that does it refer.

That design is deliberate. Parties who are told to go and settle often have no idea what a settlement would look like. Parties handed a draft by the judge have something to react to.

The provision

Section 89(1): where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations, and after receiving those observations the Court may reformulate the terms of a possible settlement and refer the same for:

(a) arbitration (b) conciliation (c) judicial settlement including settlement through Lok Adalat (d) mediation

Those four are the whole list, and an answer that gives three of them is short. A useful way to hold them is that two are governed by the arbitration statute, one by the legal services statute, and one is now governed by its own Act.

Section 89(2) then routes each of the four:

(a) where the dispute is referred for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act 1996 apply as if the proceedings were referred for settlement under that Act

(b) where it is referred to Lok Adalat, the Court shall refer it in accordance with section 20(1) of the Legal Services Authorities Act 1987, and all the other provisions of that Act apply

(c) where it is referred for judicial settlement, the Court shall refer it to a suitable institution or person, who shall be deemed to be a Lok Adalat, and all the provisions of the Legal Services Authorities Act apply as if the dispute had been referred to a Lok Adalat

(d) where it is referred for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed

Note on the Order number

The syllabus prints this topic as "Appointment of Receivers (Order XV)". Order XV of the Code is headed Disposal of the Suit at the First Hearing and has nothing to do with receivers. The provisions on receivers are Order XL.

That is worth knowing for two reasons. If you look up Order XV you will find the wrong thing. And an examiner asking about receivers is asking about Order XL, whatever the syllabus prints, because that is where the law is.

In one line

A receiver is a person appointed by the court to take charge of property during a dispute, so that the property is preserved and its income collected while the parties fight about who owns it.

He is an officer of the court, not the agent of either party. That single fact explains all his duties.

Why the Code allows it

Litigation about property takes years, and someone must hold it meanwhile. Ordinarily that is whoever is already in possession, which is usually the defendant. But that is not always safe: he may have no interest in preserving what he expects to lose, he may pocket the rents, or the property may be a business that needs running rather than merely holding.

An injunction can stop a party doing something. It cannot make anyone collect rent, repair a building or run a factory. That is what a receiver is for, and it is why he is the most intrusive of the interim remedies: he does not restrain the parties, he displaces them.

The Code accordingly makes it a matter of the court's judgment rather than a party's right, and hedges it with security, accounts and personal liability.

The power: Rule 1

Rule 1(1): where it appears to the Court to be just and convenient, the Court may by order:

(a) appoint 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 (d) confer upon the receiver all such powers, as to bringing and defending suits and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents, as the owner himself has, or such of those powers as the Court thinks fit

Three things to take from Rule 1(1).

The test is "just and convenient". The Code lays down no list of grounds. That is deliberate, and it means an answer should state the test in those words and then say what courts look for in practice: a strong prima facie case, a real danger to the property or its income, and the absence of any less drastic remedy that would do.

In one line

A first appeal is a rehearing on both facts and law, and that is what separates it from every other remedy against a decree.

Why a first appeal exists

A trial judge sees the witnesses and forms views quickly, and he can be wrong about the facts as easily as about the law. A system that allowed challenge only on points of law would leave most errors uncorrected, because most errors are factual.

So the Code gives one full reconsideration. The appellate court may go through the evidence again, disagree with the findings, and substitute its own. That generosity is confined to the first appeal: by the time a case reaches a second appeal the facts have been decided twice, and section 100 restricts it to a substantial question of law. See [Appeals from Appellate Decrees].

The right of appeal: section 96

Section 96(1): save where otherwise expressly provided by the Code or by any other law in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

Then three limits, and they are the standard short question on this section.

Section 96(2): an appeal may lie from an original decree passed ex parte.

Section 96(3): no appeal shall lie from a decree passed by the Court with the consent of parties. A party cannot agree to a decree and then complain about it.

Section 96(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.

Note the structure. Sub-section (1) gives the right, and it attaches to a decree, which is why [Definitions] matters here: a dismissal for default is not a decree and cannot be appealed, while the rejection of a plaint is deemed to be one and can. Sub-section (2) confirms that losing by absence does not forfeit the appeal, though the defendant also has the separate remedy of Order IX Rule 13.

Section 97 is the trap that costs litigants their case: where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal preferred from the final decree.

So a preliminary decree must be appealed when it is passed. A party who waits for the final decree and then attacks the preliminary one has lost the point. See [Definitions] for the preliminary and final distinction.

Section 98(1): where an appeal is heard by a Bench of two or more Judges, it shall be decided in accordance with the opinion of those Judges or of the majority.

In one line

A second appeal lies to the High Court only where the case involves a substantial question of law, and the High Court must formulate that question before hearing it.

Why the second appeal is so much narrower

By the time a case reaches a second appeal the facts have been examined twice: once at trial and once on a full rehearing in first appeal. A third look at the same evidence would add delay without adding accuracy, and it would turn the High Court into a second trial court for every small dispute in the State.

So the Code draws a line. Facts stop at the first appeal. The High Court comes in only where something has gone wrong in law, and only where that question is substantial.

This is the single most important contrast in the appeals chapters, and an answer that does not draw it has missed the point of section 100.

The provision: section 100

Section 100(1): save as otherwise expressly provided by the Code or any other law 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.

Section 100(2): an appeal may lie under this section from an appellate decree passed ex parte.

Section 100(3): in an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved.

Section 100(4): where the High Court is satisfied that a substantial question of law is involved, it shall formulate that question.

Section 100(5): the appeal shall be heard on the question so formulated, and the respondent shall at the hearing be allowed to argue that the case does not involve such question. The proviso preserves a power: nothing in the sub-section takes away the Court's power to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if satisfied that the case involves such a question.

Take the sequence in sub-sections (3), (4) and (5) as a procedure, because that is what it is.

The appellant must state the question precisely. A memorandum that merely complains about the findings does not comply.

The Court must formulate it. This is a judicial act, not a formality. If the Court is not satisfied that a substantial question of law arises, the appeal fails at that stage.

The hearing is confined to the formulated question, and the respondent may argue that no such question arises at all. The proviso then allows the Court to go outside the formulated question, but only on recorded reasons and only for another substantial question of law.

In one line

An appeal lies from a decree as of right, but from an order only where the Code expressly says so, and section 104 with Order XLIII Rule 1 is the closed list of those orders.

Why orders are treated differently

A suit generates dozens of orders on the way to a decree: adjournments, discovery, framing of issues, amendments. If every one of them were appealable, no case would ever reach trial, because a determined litigant could appeal his way through years of interlocutory steps.

So the Code reverses the presumption. A decree, which decides rights, is appealable. An order, which is everything else, is not, unless it is one of the specified kinds where an immediate appeal is worth the delay it causes. Everything else waits and can be attacked in the appeal from the decree, which is what section 105 provides.

That design has a name worth using in an answer: the Code prefers one appeal at the end to many appeals along the way.

The list: section 104

Section 104(1): an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(ff) an order under section 35A, compensatory costs for a false or vexatious claim or defence (ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in those sections (g) an order under section 95, compensation for obtaining an arrest, attachment or injunction on insufficient grounds (h) an order under any provision of the Code imposing a fine, or directing the arrest or detention in the civil prison of any person, except where the arrest or detention is in execution of a decree (i) any order made under rules from which an appeal is expressly allowed by rules

The proviso limits appeals under clause (ff): no appeal shall lie against an order for compensatory costs save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

Section 104(2): no appeal shall lie from any order passed in appeal under this section. So there is no second appeal from an order. One appeal and no more.

Clause (i) is the important one, because it is the doorway to Order XLIII. The words "from which an appeal is expressly allowed by rules" mean that the real list of appealable interlocutory orders is in Order XLIII Rule 1.

Note also the exception in clause (h): an arrest or detention in execution of a decree is not appealable under this section, because execution has its own regime and section 47 questions produce appealable determinations of their own. See [Questions to be Determined by the Executing Court].

In one line

An appeal to the Supreme Court from a civil proceeding lies where the High Court certifies that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court.

Why the Code says so little

The right of appeal to the Supreme Court is constitutional, not statutory. Chapter IV of Part V of the Constitution creates it, and Article 136 gives the Supreme Court its own discretionary power to grant special leave from any judgment of any court or tribunal. The Code therefore does not create the right; it regulates the steps a High Court and the parties take when a certified appeal is sought.

That is why this chapter is short, and why an answer should begin by saying where the right actually comes from.

The certificate: section 109

Section 109: subject to the provisions in Chapter IV of Part V of the Constitution and to such rules as may from time to time be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies:

(i) that the case involves a substantial question of law of general importance; and (ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

Both limbs are required, and the difference between them is worth drawing out, because candidates give only the first.

Limb (i) is about the question: it must be a substantial question of law, and it must be of general importance, not merely important to these parties. That is a higher bar than section 100, where a substantial question of law suffices for a second appeal without any requirement of general importance. See [Appeals from Appellate Decrees].

Limb (ii) is about necessity: even a question of general importance does not carry a certificate unless the High Court thinks it needs to be decided by the Supreme Court, for instance because the authorities conflict or the point is unsettled.

Section 112 saves the position under the Constitution and preserves the Supreme Court's powers, providing that nothing in the Code shall be deemed to affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution, or to interfere with any rules made by the Supreme Court.

So the Code's certificate route sits alongside special leave under Article 136, which needs no certificate and is entirely in the Supreme Court's discretion. A party refused a certificate is not shut out; he may petition for special leave.

In one line

Three remedies that are not appeals: reference is a subordinate court asking the High Court a question, review is a court reconsidering its own decision, and revision is the High Court correcting a subordinate court that went wrong about its jurisdiction.

The single sentence that keeps them apart: reference goes up on a question, review stays where it is, and revision comes down on jurisdiction.

Reference: section 113 and Order XLVI

The provision

Section 113: subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit.

The proviso makes one case mandatory. Where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation, or of any provision contained in one, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.

That proviso is the important half. A subordinate court has no power to strike down a statute. If it thinks a statute invalid, it must not simply act on that view; it must refer the question up. The Explanation defines "Regulation" for the purpose.

The procedure: Order XLVI

Rule 1: where, before or on the hearing of a suit or appeal in which the decree is not subject to appeal, or where in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer that statement with its own opinion on the point for the decision of the High Court.

Notice the conditions in Rule 1, because they are what an answer needs: the decree must be not subject to appeal, a question of law or usage having the force of law must arise, and the court must entertain reasonable doubt about it.

Rule 2: the Court may either stay the proceedings or proceed and pass a decree or order contingent upon the High Court's decision, but in either case no decree or order shall be executed until the High Court's copy of the judgment is received.

In one line

The Code cannot foresee everything, so section 151 preserves the court's inherent power to do what justice requires, section 152 lets it correct its own slips, and section 148A lets a person who fears an order behind his back file a caveat so that he is heard first.

Caveat: section 148A

Why it exists

An application for an interim order is often made ex parte, and legitimately so: an injunction that has to wait for notice may be useless. But that cuts both ways. A person who knows litigation is coming may find an injunction made against him before he has heard of the case.

Section 148A is his answer. He lodges a caveat, which is a formal warning to the court that he claims a right to be heard, and the court must then notify him before making any order on the application. The word means "let him beware", and it is a warning to the court and to the applicant rather than to him.

The provision

Section 148A(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 of it.

Note how wide the timing is. A caveat may be lodged before the suit is even filed, and before any application is made. That is the point: it is a precaution against being taken by surprise.

Section 148A(2): the person lodging it, called the caveator, shall serve a notice of the caveat by speed post with registration and proof of delivery on the person by whom the application has been, or is expected to be, made.

Section 148A(3): where, after a caveat has been lodged, any application is filed in the suit or proceeding, the Court shall serve a notice of the application on the caveator.

Section 148A(4): where notice of a caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator's expense, with a copy of the application and with copies of any paper or document which has been or may be filed by him in support of it.

Section 148A(5), and this is the figure to remember: a 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 that period.

So the scheme is: lodge, notify the other side yourself, and the court then notifies you of any application, and the applicant must give you his papers at your own expense. And it lapses after ninety days unless the anticipated application has been made.

In one line

Some facts may be proved on affidavit instead of in the witness box, some persons need never come to court at all, and the Code says exactly who may swear the deponent.

Why the Code has these provisions

Both halves of this chapter exist for the same reason. A trial run entirely on oral evidence, with every party present in person, would be slower than justice can afford and harsher than dignity allows.

So the Code makes two concessions. It lets an interlocutory or uncontroversial matter be proved by a sworn written statement rather than by a witness in the box. And it excuses a defined list of persons from appearing in court, either because their office makes attendance impossible or because compelling their appearance would be an indignity the law does not require.

Neither concession is open-ended, and the limits are where the marks are.

Affidavits: Order XIX

An affidavit is a statement of facts sworn or affirmed before a person authorised to administer the oath. It is written evidence, and Order XIX says when it may be used.

Rule 1, power to order a point to be proved by affidavit: any Court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable.

The proviso is the safeguard, and it must be given with the rule: where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that the witness can be produced, an order shall not be made authorising his evidence to be given by affidavit.

So the right to cross-examine defeats the convenience of an affidavit. A party cannot be made to accept written evidence on a contested fact when he genuinely wants to test the witness and the witness is available.

Rule 2, attendance of the deponent for cross-examination: (1) upon any application, evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent. (2) such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.

Rule 2(2) is the hinge between the two halves of this chapter: a deponent who is exempt under sections 132 or 133 does not have to attend even for cross-examination.

Rule 3, matters to which affidavits are confined: (1) 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 that the grounds thereof are stated. (2) the costs of every affidavit which unnecessarily sets forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall, unless the Court otherwise directs, be paid by the party filing it.

In one line

The Code is a general law, and these three Orders say which parts of it do not apply to Chartered High Courts, to Provincial Courts of Small Causes, and to Presidency Small Cause Courts.

Why the Code needs them

The Code of 1908 had to work across courts that already existed and already had their own rules. The Chartered High Courts of Calcutta, Bombay and Madras were established by charter with their own original jurisdiction and their own practice. Small Cause Courts were created to dispose of small claims quickly, and much of the Code's machinery, designed for substantial suits, would defeat that purpose if applied to them.

So rather than rewrite the Code for each, the draftsman disapplied selected parts. That is all these Orders do, and it is why they are short and largely negative in form.

The hierarchy: sections 3 to 8

Section 3 fixes subordination for the purposes of the 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 to the District Court.

That is the provision that makes revision under section 115 and reference under section 113 work, because both depend on a court being "subordinate" to the High Court. See [Reference, Review and Revision].

Section 5 applies the Code to Revenue Courts only so far as it is not inconsistent with the law in force relating to them, and permits the State Government to declare its application.

Section 6 preserves pecuniary jurisdiction: nothing in the Code shall operate to give any Court jurisdiction over suits the amount or value of whose subject matter exceeds the ordinary limits of its jurisdiction.

Sections 7 and 8 are the disapplying provisions for small causes.

Section 7: the following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, or to courts exercising the jurisdiction of a Court of Small Causes under that Act, or to courts in any part of India to which that Act does not extend exercising a corresponding jurisdiction: so much of the body of the Code as relates to suits excepted from the cognizance of a Court of Small Causes, the execution of decrees in such suits, and the execution of decrees against immovable property; and the following sections, section 9, and sections 91 and 92, among others as the section specifies.

Section 8: save as provided in sections 24, 38 to 41, 75(a), (b) and (c), 76, 77, 157 and 158, and by the Presidency Small Cause Courts Act, the Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.

In one line

The Limitation Act 1963 fixes the time within which a claim must be brought, and its purpose is not to destroy rights but to compel their timely enforcement.

The object, which is what MU asked

Three maxims are traditionally given, and an answer should name them and then say what each is doing.

Interest reipublicae ut sit finis litium, it is in the interest of the State that there be an end to litigation. Society cannot function if any transaction may be reopened at any distance of time.

Vigilantibus non dormientibus jura subveniunt, the law assists the vigilant and not those who sleep over their rights. A person who sits on a claim for twenty years has, in practical terms, abandoned it.

Lex dilationes semper exhorret, the law always abhors delay.

Behind the maxims lie two practical objects worth stating in your own words.

Evidence decays. Witnesses die, memories fade, receipts are lost. A claim tried thirty years after the event is not tried well, and the defendant is the one who suffers, because he must disprove something he can no longer document.

People must be able to close their affairs. A person who has held property or run a business for decades must at some point be safe from stale claims, and be able to sell, mortgage or bequeath what he holds.

So the Act is described as a statute of repose, of peace, and of rest. That phrase is worth using, because it captures what the Act is for better than any description of its mechanics.

The feature that defines the Act: remedy, not right

The Limitation Act bars the REMEDY; it does not extinguish the RIGHT. That single proposition is the most examined feature of the Act, and it has practical consequences.

A time-barred debt is still a debt. It cannot be sued upon, but it does not cease to exist. So:

• if the debtor pays it voluntarily, he cannot recover the money back, because he has paid something he genuinely owed
• a creditor holding security may still be able to realise it, because he is not suing
• a time-barred debt may still be capable of being set off or otherwise relied on, according to the provision under which the question arises

Section 27 is the one exception, and it must always be given with the general rule. At the determination of the period limited to any person for instituting a suit for possession of any property, his right to that property is extinguished. So in the case of adverse possession, limitation does destroy the right. See [Acquisition of Ownership by Possession].

That is the shape of a good answer: the Act bars the remedy and not the right, except under section 27, where the right itself is extinguished.

In one line

Section 3 is the bar, and it is mandatory. Sections 4 and 5 are the only two general reliefs from it: the court being closed on the last day, and sufficient cause for delay in an appeal or application.

The bar: section 3

Section 3(1): subject to the provisions contained in sections 4 to 24 inclusive, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

Three things are packed into that sentence and each earns marks.

"Shall be dismissed." The bar is mandatory. The court has no discretion once it finds the proceeding is out of time.

"Although limitation has not been set up as a defence." It is the court's duty, not the defendant's option. This is what separates limitation from an ordinary defence, and it is why a defendant cannot waive it by silence.

"Subject to sections 4 to 24." The bar is absolute only after the rest of the Act has been applied. The prescribed period is the Schedule's figure as computed under those sections, so exclusions and disability come first and the bar comes last.

Note the asymmetry the section creates. Sufficient cause under section 5 saves an appeal or an application. Nothing saves a suit. A suit filed even one day late is dismissed, subject only to the computation provisions and section 4.

When a suit, appeal or application is "instituted": section 3(2)

The bar depends on a date, so the Act fixes it.

Section 3(2)(a): a suit is instituted:

(i) in an ordinary case, when the plaint is presented to the proper officer (ii) in the case of a pauper, when his application for leave to sue as a pauper is made (iii) in the case of a claim against a company being wound up by the court, when the claimant first sends in his claim to the official liquidator

Section 3(2)(b): any claim by way of set-off or counterclaim is treated as a separate suit and deemed instituted:

(i) in the case of a set-off, on the same date as the suit in which it is pleaded (ii) in the case of a counterclaim, on the date on which the counterclaim is made in court

Section 3(2)(c): an application by notice of motion in a High Court is made when it is presented to the proper officer of that court.

Clause (b) is the one worth dwelling on, because it explains something that otherwise looks arbitrary. A set-off relates back to the date of the plaintiff's suit, while a counterclaim does not: it runs from the day it is actually made. That is consistent with what the two devices are. A set-off is defensive and answers the claim as it stood; a counterclaim is a cross-suit and is treated as filed when it is filed. See [Set-off and Counterclaim].

In one line

Where the person entitled to sue is a minor, insane or an idiot when time would begin to run, the Act does not run the clock against him: he gets the same period after the disability ceases.

Why the Act protects them

Limitation punishes inaction, and that is only fair where the person could have acted. A child of six cannot file a suit, and neither can a person of unsound mind. Running time against them would take away rights for a failure that was never theirs.

But the protection cannot be unlimited either, because the other side must eventually be safe. So the Act balances the two: it defers the start for the person under disability, and then section 8 caps the whole thing at three years. That cap is the hinge of the topic and the part most answers leave out.

Section 6: the basic protection

Section 6(1): where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased as would otherwise have been allowed from the time specified in the third column of the Schedule.

Three conditions, and all three must be present:

One, the person must be entitled to institute a suit or make an application for execution of a decree. Note the narrowness: section 6 covers suits and execution applications. It does not extend to appeals.

Two, the disability must exist AT THE TIME from which the period is to be reckoned. This is the condition that decides most problems. A disability that begins after time has started running does not help at all, because of section 9. A person who is sane when the cause of action accrues and becomes insane a month later gets nothing under section 6.

Three, the disability must be minority, insanity or idiocy. The list is closed.

The Explanation adds that for the purposes of the section, "minor" includes a child in the womb.

Section 6(2), successive or concurrent disabilities: where the person is, at the time from which the period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may sue within the same period after both disabilities have ceased.

So a person who is both a minor and insane, or who is a minor and becomes insane before attaining majority, is protected until both are gone. The second limb is important: the further disability must arrive before the first has ceased. A fresh disability after a clear interval does not qualify, again because of section 9.

In one line

The Schedule gives a number of years. These sections say what is left out of the count, and when the clock starts at all.

That is the organising distinction and an answer should open with it. Sections 12 to 15 are exclusions of time already run. Sections 16, 17 and 23 postpone the start. Sections 18 to 20, in the next chapter, give a fresh start.

Exclusions: sections 12 to 15

Section 12: the days and the copies

Section 12(1): in computing the period of limitation for any suit, appeal or application, the day from which the period is to be reckoned shall be excluded.

So the count begins the day after the cause of action.

Section 12(2): in computing the period for an appeal, an application for leave to appeal, for revision or for review of a judgment, there shall be excluded the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed.

Section 12(3): where a decree or order is appealed from or sought to be revised or reviewed, or an application is made for leave to appeal, the time requisite for obtaining a copy of the judgment shall also be excluded.

Section 12(4): in computing the period for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

The Explanation is the trap: in computing the time requisite for obtaining a copy of a decree or order, any time taken by the court to prepare the decree or order before an application for a copy is made shall NOT be excluded.

That Explanation decides many real cases. The time requisite runs from the party's application for the copy. A litigant who waits a month before applying cannot count that month, however slow the registry was afterwards. This dovetails with Order XX Rule 6A of the Code, which allows an appeal to be filed without a copy of the decree, so a party is not obliged to wait. See [Judgment and Decree].

Section 13: prosecuting a pauper application

Section 13: in computing the period for any suit or appeal where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded; and the court may, on payment of the court fees prescribed, treat the suit or appeal as having the same force and effect as if the court fees had been paid in the first instance.

In one line

An acknowledgment of liability in writing, or a part payment, made before the period expires, starts the whole period running again from that date.

The words to hold on to are fresh period. These sections do not extend the old period; they replace it with a new one of the same length.

Why the Act allows it

Limitation rests on the idea that a claim not pursued has been abandoned. That reasoning collapses if the debtor himself has recently admitted the debt or paid part of it. A creditor who holds a letter written last month saying "I owe you and will pay soon" has not slept on his rights; he has been given a reason to wait.

So the Act treats a fresh admission as a fresh starting point. The conditions are strict, and every one of them exists to make sure the admission is genuine and provable.

Acknowledgment: section 18

Section 18(1): where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of that property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

The four conditions

Take them one at a time, because a question on this section is a question about these four.

One, the acknowledgment must be made BEFORE the expiration of the prescribed period. This is the condition candidates most often miss. An acknowledgment made after the period has expired is worthless under section 18: a dead claim cannot be revived by it. A time-barred debt can be revived only by a fresh promise in writing under section 25(3) of the Indian Contract Act 1872, which is a different provision with different requirements, and section 29(1) of this Act expressly preserves it.

Two, it must be in WRITING and SIGNED. An oral admission, however clear, does not work. Explanation (b) provides that "signed" means signed either personally or by an agent duly authorised in this behalf.

Three, it must be an acknowledgment of LIABILITY in respect of the property or right. It must admit a subsisting jural relationship, not merely refer to a past transaction.

Four, it must be made by the party against whom the right is claimed, or by a person through whom he derives his title or liability.

What still counts as an acknowledgment: Explanation (a)

This is the generous part of the section and it is worth reproducing, because it defeats most of the arguments a debtor makes.

In one line

Part IV of the Act is the part where time creates a title: twenty years of enjoyment gives an easement, and the expiry of the period for a suit for possession extinguishes the owner's right altogether.

Two different things in one Part

Read the Part as two separate ideas, because they work in opposite directions.

Sections 25 and 26 are ACQUISITIVE. Long enjoyment of a way, a watercourse, or light and air over someone else's land makes that enjoyment into a legal right, an easement, which the owner of the land can no longer stop. Something is created.

Section 27 is EXTINCTIVE. When the period for suing to recover possession of property runs out, the owner's right to that property is extinguished. Something is destroyed. What the possessor gains is a consequence: once the true owner has no right left, nobody can turn the possessor out, and his possession has ripened into title. That is adverse possession.

Both are called prescription, and both rest on the same instinct: a state of affairs that has lasted long enough should be recognised as the legal position.

Easements by prescription: section 25

What an easement is

An easement is a right that one person has over land belonging to somebody else, for the benefit of his own land. The land that enjoys the right is the dominant tenement; the land that suffers it is the servient tenement. A right of way across a neighbour's field, a right to run water through his channel, a right to have light come to your window across his plot: these are easements.

Section 25 says how long enjoyment must last before the enjoyment becomes a right.

The section

Section 25(1): where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years; and where any way or watercourse or the use of any water or any other easement, whether affirmative or negative, has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, way, watercourse, use of water or other easement shall be absolute and indefeasible.

Section 25(2): each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.

Section 25(3): where the property over which the right is claimed belongs to the Government, sub-section (1) is read as if for "twenty years" the words "thirty years" were substituted.

In one line

The sections tell you how to count; the Schedule tells you how long, and from when.

The three columns

Every entry in the Schedule has the same three columns, and the third is the one students forget.

Column 1, description of the suit, appeal or application. What the proceeding is. Column 2, period of limitation. The length. Column 3, time from which the period begins to run. The starting point.

Column 3 decides more cases than column 2. Two suits may both have three years, and be decided differently because one runs from the date of the breach and the other from the date the plaintiff had knowledge. Any answer to a problem must give both the period and the starting point, in the Schedule's own words.

Remember the vocabulary from section 2, because the examiner uses it precisely. The "period of limitation" is the figure in column 2. The "prescribed period" is that figure computed under the Act, after applying sections 4 to 24. See [Object and Features of the Limitation Act 1963].

How the Schedule is arranged

The Schedule contains 137 Articles in three Divisions.

FIRST DIVISION, SUITS, Articles 1 to 113, in ten Parts:

Part I, suits relating to accounts, Articles 1 to 5 Part II, suits relating to contracts, Articles 6 to 55 Part III, suits relating to declarations, Articles 56 to 58 Part IV, suits relating to decrees and instruments, Articles 59 and 60 Part V, suits relating to immovable property, Articles 61 to 67 Part VI, suits relating to movable property, Articles 68 to 71 Part VII, suits relating to tort, Articles 72 to 91 Part VIII, suits relating to trusts and trust property, Articles 92 to 96 Part IX, suits relating to miscellaneous matters, Articles 97 to 112 Part X, suits for which there is no prescribed period, Article 113

SECOND DIVISION, APPEALS, Articles 114 to 117.

THIRD DIVISION, APPLICATIONS, in two Parts: Part I, applications in specified cases, Articles 118 to 136 Part II, other applications, Article 137

Knowing the arrangement is not decoration. It is how you find an Article you have not memorised: identify what the proceeding is about, go to the Part, and read down it.

The two residuary Articles

These are the two to know by heart, because they are the answer whenever nothing else fits, and they are asked directly.

Article 113: any suit for which no period of limitation is provided elsewhere in the Schedule, three years, from when the right to sue accrues.