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

Five, there must be a formal expression of the adjudication. The decree is the formal document drawn up; it is not the judgment.

What the Code deems to be a decree, and what it excludes

The definition then does two more things, and both are examinable.

It deems two things to be decrees, even though they might not otherwise satisfy every element: the rejection of a plaint, and the determination of any question within section 144, which is restitution. So an order rejecting a plaint under Order VII Rule 11 is a decree, and is therefore appealable as one. That single sentence answers a very common exam question.

It expressly excludes two things. First, any adjudication from which an appeal lies as an appeal from an order. Second, any order of dismissal for default. So a suit dismissed because the plaintiff did not appear produces no decree at all, which is why the remedy there is an application to set the dismissal aside under Order IX rather than an appeal.

Preliminary, final, and both at once

The Explanation to section 2(2) provides that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of; it is final when the adjudication completely disposes of the suit; and it may be partly preliminary and partly final.

That last clause is the one students leave out, and it is the whole of an exam answer on its own. A decree in a suit for possession and mesne profits can decide possession outright while directing an enquiry into the profits: final as to one, preliminary as to the other.

Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211, decided on 20 March 1995, is the case to use here.

Facts. A partition suit. A preliminary decree declared the parties' shares in the joint family property. The dispute that reached the Supreme Court was about when time began to run for executing the final decree, which turned on what a final decree in a partition suit actually is and when it comes into existence.

Held. In a partition suit the preliminary decree only declares the rights and the shares of the parties. The final decree is what divides the property by metes and bounds, meaning by actual measured boundaries, and it must be engrossed on stamped paper before it can be executed. The suit continues until the final decree is passed; the final decree implements the preliminary one.

Why it matters here. It is the clearest illustration of the Explanation. A partition suit is the standard example precisely because the two stages are so visibly separate: first who owns what share, then which land is whose.

The terms the paper actually asks for

These are the ones that have come up as one-or-two-sentence questions. Each answer below is the section's own words, tightened to what will fit in two sentences.

Decree-holder, section 2(3): any person in whose favour a decree has been passed, or an order capable of execution has been made. Note that it is not limited to a plaintiff, and not limited to decrees.

Judgment-debtor, section 2(10): any person against whom a decree has been passed, or an order capable of execution has been made. The mirror image of the last one.

Mesne profits, section 2(12): the profits which the person in wrongful possession of property actually received, or might with ordinary diligence have received, together with interest on those profits, but not including profits due to improvements made by that person in wrongful possession. Three things to keep: wrongful possession, what he might have received with ordinary diligence and not merely what he did, and the exclusion of his own improvements.

Legal representative, section 2(11): a person who in law represents the estate of a deceased person, including any person who intermeddles with the estate, and where a party sues or is sued in a representative character, the person on whom the estate devolves. The intermeddler limb is the part worth remembering: you can become a legal representative by meddling, without inheriting anything.

Foreign Court, section 2(5): a Court situated outside India and not established or continued by the authority of the Central Government. Foreign judgment, section 2(6): the judgment of a foreign Court. Both are dealt with in [Foreign Judgments].

Judge, section 2(8): the presiding officer of a Civil Court. Short, and asked as a two-mark question. Note that it is defined by the office held and not by the court's grade, so a Civil Judge and a District Judge are equally "Judges" for the Code.

Government Pleader, section 2(7): includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by the Code on the Government Pleader, and also any pleader acting under his directions.

Pleader, section 2(15): any person entitled to appear and plead for another in Court, and it includes an advocate, a vakil and an attorney of a High Court.

District, section 2(4): the local limits of the jurisdiction of a principal Civil Court of original jurisdiction, called a District Court, and it includes the local limits of the ordinary original civil jurisdiction of a High Court.

Public officer, section 2(17): a person falling within any of eight described classes, which include every Judge, every member of an All-India Service, commissioned or gazetted officers of the armed forces while serving under the Government, court officers with specified duties, persons empowered to keep another in confinement, and officers whose duty concerns offences, public safety, or Government property and revenue. For a two-mark answer, give the definition and two or three examples rather than attempting all eight.

Movable property, section 2(13): includes growing crops. Signed, section 2(20): save in the case of a judgment or decree, includes stamped. Rules, section 2(18): the rules and forms in the First Schedule, or made under section 122 or section 125.

Distinguish: decree, judgment and order

The practical test a court applies: has this decision conclusively determined the rights of the parties in the matters in controversy in a suit? If yes it is a decree, whatever it is called. If no it is an order.

What it does not mean

A decree is not the judgment. The judgment gives the grounds; the decree is the formal expression of the result. They are separate documents and only one of them is executable.

"Conclusively determines" does not mean unappealable. It means final as regards the court that expressed it. Almost every decree is appealable.

Not every court order is an "order" under section 2(14) for appeal purposes. Being an order tells you it is not a decree. Whether you can appeal from it is a different question, answered by section 104 and Order XLIII.

A dismissal for default is not a decree, by the express exclusion, so there is nothing to appeal from.

Rejection of a plaint IS a decree, by the express inclusion, so there is.

Mesne profits are not rent. They are what a person in wrongful possession got or could have got. A tenant lawfully in possession pays rent, not mesne profits.

Quick revision

Section 2, twenty clauses, governing the whole Code unless the context is repugnant.

Decree, section 2(2): formal expression of an adjudication conclusively determining rights in the matters in controversy in a suit. Five elements: adjudication, in a suit, determination of rights in controversy, conclusive as regards that court, formal expression.

Deemed decrees: rejection of a plaint, and determinations under section 144. Excluded: adjudications appealable as orders, and dismissals for default.

Preliminary, final, or partly preliminary and partly final. Shankar Balwant Lokhande: preliminary declares the shares, final divides by metes and bounds and is engrossed on stamped paper.

Judgment, section 2(9): the statement of the grounds of a decree or order. Order, section 2(14): the formal expression of any decision that is not a decree.

Mesne profits, section 2(12): wrongful possession, actually received or receivable with ordinary diligence, plus interest, minus the possessor's own improvements.

Legal representative, section 2(11): represents the estate, and includes an intermeddler.

Test yourself

1. Define "decree" in two sentences. Under section 2(2), a decree 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. It may be preliminary or final, and it is deemed to include the rejection of a plaint and the determination of any question within section 144.

2. What is meant by mesne profits? Under section 2(12), mesne profits of property are the profits which the person in wrongful possession of that property actually received, or might with ordinary diligence have received, together with interest on those profits. They do not include profits due to improvements made by the person in wrongful possession.

3. Is an order rejecting a plaint appealable? Yes. Section 2(2) expressly deems the rejection of a plaint to be a decree, and a decree is appealable.

4. A suit is dismissed because the plaintiff did not appear. Can he appeal? No. Section 2(2) expressly excludes any order of dismissal for default from the definition of a decree, so there is no decree to appeal from. The remedy is an application under Order IX to set the dismissal aside.

5. Can one decree be both preliminary and final? Yes. The Explanation to section 2(2) says a decree may be partly preliminary and partly final, which happens where the court disposes of part of the suit outright and directs further proceedings on the rest, as in a decree granting possession while ordering an enquiry into mesne profits.

6. Who is a legal representative? Under section 2(11), a person who in law represents the estate of a deceased person, including anyone who intermeddles with the estate, and, where a party sued or was sued in a representative character, the person on whom the estate devolves on that party's death.

7. What is the difference between a judgment and a decree? The judgment, under section 2(9), is the Judge's statement of the grounds of a decree or order, so it contains the reasoning. The decree, under section 2(2), is the formal expression of the adjudication, so it contains the result and it is the document that is executed.

"Expressly barred." A statute says in terms that no civil court shall have jurisdiction over this class of case. That is the easy version, though even there the bar is not absolute, as Dhulabhai shows.

"Impliedly barred." No section says so, but the scheme of the Act shows Parliament meant the special forum to be the only one, typically by creating a complete machinery with its own remedies and appeals.

"Subject to the provisions contained herein." Section 9 gives jurisdiction over the subject matter. It does not tell you which particular court. That is [Place of Suing], sections 15 to 20, and pecuniary and territorial limits come from other statutes.

Kinds of jurisdiction

The syllabus topic says "jurisdiction and its kind", so know the four, and know which of them a defect in is fatal.

Subject-matter jurisdiction. Whether this class of court can hear this kind of case at all. A small causes court cannot try a title suit.

Pecuniary jurisdiction. Whether the value of the suit is within this court's limit. Section 15 requires the suit to be filed in the court of the lowest grade competent to try it.

Territorial jurisdiction. Whether the cause of action or the property or the defendant falls within this court's local limits. Sections 16 to 20.

Original and appellate jurisdiction. Whether the court is hearing the matter first, or on appeal from another.

The distinction that carries marks: a defect in subject-matter jurisdiction is inherent and goes to the root, so the decree is a nullity and can be attacked at any time. Defects in pecuniary or territorial jurisdiction are treated far more leniently, and are largely cured by section 21 unless they caused a failure of justice. That is dealt with in [Objections to Jurisdiction].

The leading case

Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, decided by a bench presided over by Hidayatullah CJ.

Facts. The appellants were tobacco dealers doing business in Ujjain. Under notifications issued by the State Government under the Madhya Bharat Sales Tax Act 1950, sales tax was levied on them and collected. They said the levy was unconstitutional, being contrary to the prohibition in Article 301, and filed civil suits for a refund of the tax paid. The State answered that the Sales Tax Act provided its own machinery and that the civil court's jurisdiction was therefore excluded.

Held. The Court laid down principles governing when a statute excludes the civil court, of which these are the ones an answer must carry. Where a statute gives finality to the orders of a special tribunal, the civil court's jurisdiction is excluded if the statute provides an adequate remedy to do what a civil court would normally do in a suit. Even then, exclusion does not cover cases where the provisions of the particular Act have not been complied with, or where the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Where there is an express bar, the scheme of the Act and the adequacy of the remedies it provides are relevant, but not decisive, in deciding whether the civil court survives.

Why it matters here. It converts the phrase "expressly or impliedly barred" into something a student can actually apply. The question is never simply "does the statute say no civil court". It is whether the special forum can give the same relief, and whether it stayed within the Act and within basic judicial procedure. Where it did not, the civil court comes back.

A worked example

Rekha runs a shop in Bhandup. The municipal authority levies a charge on her under a State Act which sets up a tribunal to hear objections and says the tribunal's decision "shall be final". Rekha wants to sue in the City Civil Court to recover what she has paid.

Step one, is it a suit of a civil nature? Yes. It concerns money and property rights, and nothing about it is religious or purely political.

Step two, is there an express bar? The Act gives finality to the tribunal's orders, which points towards exclusion.

Step three, apply Dhulabhai. Does the Act provide an adequate remedy that does what a civil court would do, that is, can the tribunal order a refund? If it can, the civil court is excluded and Rekha must go to the tribunal. If the Act gives no power to refund, the civil suit survives, because a finality clause only excludes the civil court to the extent the statute actually replaces it.

Step four, the exceptions. Even if the remedy is adequate, Rekha can come to the civil court if the authority acted outside the Act, or if the tribunal ignored the fundamental principles of judicial procedure, for instance by deciding without hearing her.

Change one fact. Suppose Rekha's complaint is that the levy itself is unconstitutional. A tribunal created by the same Act is generally in no position to hold its parent Act invalid, which is one of the situations in which the civil court's jurisdiction is not taken away.

A Maharashtra point our readers need

Until recently Maharashtra had its own section 9A, inserted into the Code in its application to this State. It required a court, where jurisdiction was challenged, to decide that issue as a preliminary issue before granting or continuing interim relief.

Section 9A was deleted by the Code of Civil Procedure (Maharashtra Amendment) Act 2018, Maharashtra Act 61 of 2018. The saving provisions that came with the deletion say that where consideration of a preliminary issue framed under section 9A was pending when the amendment commenced, that issue is deemed to be an issue framed under Order XIV and is to be decided along with all the other issues at the final disposal of the suit; and that pending revisional proceedings challenging a decision upholding jurisdiction stand abated.

Why this is in the book. Every student reading this will practise in Maharashtra, and a good deal of older material still describes section 9A as live law. It is not. The current position here is the ordinary one: jurisdiction is an issue like any other, framed under Order XIV, unless the court thinks fit to try it as a preliminary issue in the ordinary way.

What it does not mean

Section 9 does not tell you which court to file in. It answers whether a civil court can hear this kind of case at all. Which particular court is sections 15 to 20.

A finality clause is not the end of the argument. Dhulabhai is the answer to that.

"Civil nature" is not decided by the questions the court must answer along the way. Explanation I settles that: a contested right to property or office is civil even if the answer turns entirely on a religious question.

An implied bar is not inferred from the mere existence of a tribunal. It requires a scheme showing the special forum was meant to be exclusive, with adequate remedies.

Quick revision

Section 9: all suits of a civil nature, except where cognizance is expressly or impliedly barred. The burden is on the party asserting the bar.

Explanation I: a contested right to property or office is civil even if it depends entirely on religious questions. Explanation II: it does not matter that the office carries no fees or is not attached to a place.

Kinds: subject-matter, pecuniary, territorial, original and appellate. A subject-matter defect is inherent and makes the decree a nullity; pecuniary and territorial defects are largely cured by section 21.

Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78: finality excludes the civil court only where the statute gives an adequate remedy, and never where the Act was not complied with or the tribunal ignored fundamental principles of judicial procedure.

Maharashtra: section 9A is deleted, by Maharashtra Act 61 of 2018.

Test yourself

1. State section 9 in two sentences. Courts have jurisdiction to try all suits of a civil nature, subject to the provisions of the Code, except suits of which their cognizance is expressly or impliedly barred. The burden of showing the bar lies on the party who asserts it.

2. A suit turns entirely on whether a religious ceremony was validly performed, but the relief claimed is a right to an office. Is it a suit of a civil nature? Yes. Explanation I to section 9 provides that a suit in which the right to property or to an office is contested is of a civil nature notwithstanding that the right may depend entirely on the decision of questions as to religious rites or ceremonies, and Explanation II adds that it is immaterial whether fees attach to the office.

3. A statute says a tribunal's decision "shall be final". Does that always exclude the civil court? No. Following Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, exclusion follows only if the statute provides an adequate remedy to do what a civil court would normally do, and even then the civil court is not excluded where the provisions of the Act have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure.

4. Name the kinds of jurisdiction and say which defect is fatal. Subject-matter, pecuniary, territorial, and original as against appellate. A defect in subject-matter jurisdiction is inherent and makes the decree a nullity. Defects as to the place of suing or pecuniary limits are largely cured by section 21 unless there has been a consequent failure of justice.

5. What is the position of section 9A in Maharashtra? It has been deleted, by the Code of Civil Procedure (Maharashtra Amendment) Act 2018, Maharashtra Act 61 of 2018. Issues of jurisdiction pending as preliminary issues under it are deemed to be issues framed under Order XIV and are decided with the other issues at the final disposal of the suit.

Two, the matter in issue must be directly and substantially in issue in both. Not merely overlapping. The same central question.

Three, the same parties, or parties claiming under them.

Four, litigating under the same title, meaning in the same capacity.

Five, the previously instituted suit must be pending in a court in India competent to grant the relief claimed, or in a court outside India established by the Central Government, or before the Supreme Court.

And the Explanation removes foreign proceedings. A suit pending before a genuinely foreign court does not stop an Indian court trying a suit on the same cause of action. That is a deliberate refusal to let a party park a dispute abroad in order to freeze the Indian courts. Contrast the position after judgment: once a foreign court has actually decided, section 13 may make its decision conclusive here. See [Foreign Judgments].

What exactly is stayed

This is where most marks are lost, because section 10 does not say the suit is dismissed, and it does not say the court can do nothing.

The words are "shall not proceed with the trial". The later suit stays alive on the file. The court is stopped from trying it. Everything that is not the trial remains available, which is why a court can still, for example, deal with interim applications in the stayed suit.

Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd, (1998) 5 SCC 69, decided on 5 May 1998 by Agrawal and Nanavati JJ, is the case on that word.

Facts. The Federation asked the Bank in June 1989 to open an irrevocable letter of credit for about Rs. 3.78 crore in favour of a rice mill. The arrangement was that documents drawn under the letter of credit would be tendered to the Bank, forwarded to the Federation for acceptance, and then paid by the Bank on the Federation's behalf. Litigation followed, and the question was whether the bar in section 10 applied to a summary suit filed under Order XXXVII.

Held. It does not. The Court declined to give the word "trial" in section 10 the widest possible meaning, holding that a broad reading was unnecessary once the objects of section 10 and of Order XXXVII were considered, and that the very object of providing a separate summary procedure would be frustrated if section 10 were applied to summary suits.

Why it matters here. It fixes the meaning of "trial", which is the operative word of the section, and it shows the section being read purposively rather than literally. It is also the natural link to [Summary Procedure] later in the book.

A worked example

Nisha sues Omkar in the Bombay City Civil Court in January, claiming that a plot in Chembur is hers and asking for possession. In March, Omkar sues Nisha in the same court claiming a declaration that the same plot is his.

Does section 10 apply? Work through it. Two suits, and Nisha's was instituted first. The matter directly and substantially in issue in both is the ownership of the same plot. The parties are the same, and each is litigating in his or her own right, so under the same title. Nisha's suit is pending in a competent court. All the conditions are met, so the court shall not proceed with the trial of Omkar's suit.

What happens to Omkar's suit? It is stayed, not dismissed. It waits. When Nisha's suit is decided, that decision will bind Omkar's suit by res judicata under section 11, and his suit will then be disposed of accordingly. This is the pairing described above: section 10 holds the door while section 11 walks through it.

Change one fact. Suppose Nisha's earlier suit is not about ownership at all, but a money claim on an unconnected loan. Now the matter in issue is not directly and substantially the same, and section 10 does not apply. Omkar's suit proceeds.

Change another. Suppose Nisha's earlier suit is pending in a court in Portugal. The Explanation applies: the pendency of a suit in a foreign court does not preclude an Indian court from trying a suit on the same cause of action. Omkar's suit proceeds here.

And another. Suppose Omkar's suit is a summary suit under Order XXXVII on a dishonoured cheque. On Indian Bank, section 10 does not bar the court from proceeding with it.

What it does not mean

The later suit is not dismissed. It is stayed. It remains on the file and revives when the earlier suit is decided.

It is not about which suit was decided first. That is section 11. Section 10 is about which was instituted first, and the two sections are deliberately opposite on this.

It does not stop everything. Only the trial. Interim matters in the stayed suit are not shut out, and on Indian Bank a summary suit under Order XXXVII is outside the bar.

The parties cannot waive it between themselves. The section commands the court.

A pending foreign suit is no bar at all, by the Explanation.

Quick revision

Section 10, res sub judice, a matter under judgment.

Conditions: two suits; the other instituted earlier; the matter directly and substantially in issue in both; same parties or those claiming under them; same title; the earlier suit pending in a competent court in India, or a court outside India established by the Central Government, or the Supreme Court.

Effect: the later court shall not proceed with the trial. Stay, not dismissal.

Explanation: a suit pending in a foreign court is no bar.

Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd, (1998) 5 SCC 69: "trial" is not read at its widest, and section 10 does not bar a summary suit under Order XXXVII.

Contrast with section 11: instituted first against decided first; stayed against barred. The full table is in [Res Judicata].

Test yourself

1. State section 10 in two sentences. No court shall proceed with the trial of a suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or parties claiming under them litigating under the same title, where that earlier suit is pending in a competent court. The later suit is stayed rather than dismissed.

2. Suit A is filed in January and suit B in March, but B is decided first. Which section applies to which? Section 10 looks at institution, so while both are pending it is suit B, the later-instituted one, whose trial is stayed. Section 11 looks at decision, so once B has been decided it is B that becomes the "former suit" for res judicata under Explanation I.

3. A suit on the same cause of action is pending before a court in Portugal. Can an Indian court try the Indian suit? Yes. The Explanation to section 10 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.

4. Does section 10 bar a summary suit under Order XXXVII? No. In Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd, (1998) 5 SCC 69, the Supreme Court held that the word "trial" in section 10 is not to be given its widest meaning, and that applying the section to summary suits would frustrate the very object of providing a separate summary procedure.

5. Can the parties agree to let both suits be tried together anyway? No. Section 10 is addressed to the court, in the words "no Court shall proceed", so it is not a right the parties can waive between themselves.

Held. The Supreme Court disagreed and allowed the landlord to raise the point. Das Gupta J stated the principle that res judicata rests on the need to give finality to judicial decisions, and held that the principle applies between two stages of the same litigation as well as between two suits, so that a matter decided at an earlier stage cannot ordinarily be reopened later in the same proceeding. But an interlocutory order, meaning an order made along the way which does not finally dispose of the case, stands differently: where such an order has not been appealed against, it can still be challenged in an appeal from the final decree.

Why it matters here. Two things. It is the authority for the finality rationale, which is the "why" of the whole section. And it establishes that section 11 is not only about a second suit: the same principle governs a party who tries to re-argue at the trial's later stages something the court settled earlier in that same case.

First, how this Code is numbered

Skip this if you already know it. If you do not, nothing below will make sense, because the Code is numbered in two separate systems and this chapter uses both.

The Code of Civil Procedure has a body and a schedule. The body is divided into sections, numbered 1 to 158. The sections carry the principles: what a court may do, who may sue, what is barred. Res judicata is section 11, and it lives in the body.

Attached to the Code is the First Schedule, which is divided into Orders, numbered with roman numerals from Order I to Order LI. Each Order is divided into Rules, numbered from 1. The Orders carry the machinery: how a plaint is drawn, how a summons is served, how a decree is executed. So "Order VII Rule 11" means Rule 11 inside Order VII, and Order VII is the Order about the plaint.

Two consequences matter. Section 11 and Order XI are different provisions with the same number in different systems, so always read whether a number is a section or an Order. And the two are amended differently: Parliament amends the sections, while the High Courts have power to amend the Rules in the Schedule, which is why local practice can differ on a Rule but not on a section.

A few words this chapter uses. A suit is a civil case started by presenting a plaint. A plaint is the document in which the plaintiff sets out the claim. The written statement is the defendant's reply to it. An issue is a specific disputed point the court frames for decision. A decree is the formal expression of the court's decision that determines the rights of the parties. Revision is the High Court's power under section 115 to correct a subordinate court that has gone outside its jurisdiction. An Explanation in a statute is a numbered part attached to a section that settles how it is to be read; it is not commentary and it has full legal force. In limine means at the threshold, so a petition dismissed in limine is one thrown out at the first hearing without a full hearing. Bona fide means in good faith, genuinely.

The provision itself

Section 11 of the Code of Civil Procedure 1908 provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

The section carries eight Explanations. Six were in the Code as enacted in 1908; Explanations VII and VIII were inserted by the Code of Civil Procedure (Amendment) Act 1976. Every one of them has been examined, so learn them by number and not merely by sense.

Six of the eight need saying properly, because a table row is not a treatment.

Explanation I is not a technicality. Two suits are filed, the second is decided first, and it is that second-filed suit which becomes the "former suit" for res judicata. Students routinely get this backwards because the word "former" sounds like it is about filing. It is about deciding.

Explanation II removes an argument that would otherwise be available constantly. A losing party will say the earlier court was too junior for its decision to bind, pointing out that an appeal lay from it to a higher court. Explanation II shuts that down: competence is judged on the court's own power to try the suit, not on whether somebody could have appealed from it.

Explanation III supplies what section 11 leaves unsaid, namely how a matter gets to be "directly and substantially in issue". It must have been alleged by one party and denied or admitted by the other, expressly or by implication. A point nobody raised and nobody met is not in issue under Explanation III. Note the tension with Explanation IV, which deems a point nobody raised to have been in issue if it might and ought to have been raised. They are reconciled like this: Explanation III governs what was actually litigated, and Explanation IV adds a deemed category on top of it.

Explanation V catches the plaintiff who claimed much and got little. If the plaint asked for possession and damages and the decree granted possession while saying nothing about damages, the damages are deemed refused. The plaintiff cannot file a second suit for the damages the first court passed over in silence.

Explanation VI is the representative-suit rule and it is examined more than students expect. Where people litigate in good faith about a public right, or about a private right claimed in common for themselves and others, everybody interested in that right is deemed to claim under those who litigated. So a decision in a properly brought representative suit binds the whole class, including members who never appeared and may never have heard of the case. The safeguard is in the words bona fide: the earlier litigation must have been conducted in good faith, and a collusive suit does not bind the class.

Explanations VII and VIII were both inserted by the 1976 amendment, and each closes a gap the courts had struggled with. Explanation VII applies section 11 to execution proceedings, so a question decided at one stage of executing a decree cannot be reopened at a later stage of executing that same decree. Explanation VIII deals with courts of limited jurisdiction: an issue decided by such a court which was competent to decide that issue now operates as res judicata even in a later suit that court could never have tried. Before 1976 the fourth condition swallowed these cases, because a small causes court cannot try a title suit, so nothing it decided bound anyone later.

Explanation IV is the whole of what is called constructive res judicata, and it is dealt with separately below because it is where most of the case law and most of the exam questions live.

Broken down: the five conditions

A plea of res judicata succeeds only if all five conditions are made out. Failure on any one of them defeats the plea entirely.

One. The matter must be directly and substantially in issue in both suits. A matter is directly and substantially in issue when the decision of the case turns on it. It is only collaterally or incidentally in issue when the court touches it on the way to deciding something else. A finding on a collateral matter does not bind anybody later. So if a court, while deciding who owns a house, remarks on the age of a boundary wall without needing to, that remark binds nobody.

Two. The parties must be the same, or must claim under the same parties. "Claiming under" covers a purchaser from a party, an heir, an assignee. The technical word is privies, meaning people so connected to a party that the law treats them as standing in that party's shoes. A total stranger to the first suit is not bound and cannot be met with the plea.

Three. The parties must have litigated under the same title. Title here does not mean ownership. It means the capacity in which a person sued or was sued. A man who sues in his personal capacity and loses is not barred from suing again as the trustee of a temple, because the second suit is brought in a different character altogether.

Four. The court which decided the former suit must have been competent to try the subsequent suit. This is the condition that catches out the small causes court and the court of limited pecuniary jurisdiction: if the earlier court could not have tried the present suit at all, its decision does not bar that suit under the main part of section 11.

Write both halves of this condition, because half of it is out of date on its own. The rule in the main part of the section is as stated above. Explanation VIII then carves out a large exception: where the earlier court was a court of limited jurisdiction and was competent to decide the particular issue, its decision on that issue operates as res judicata even though it could never have tried the later suit. So the safe formulation for an exam is: the earlier court must have been competent to try the subsequent suit, except where Explanation VIII applies, in which case competence to decide the issue is enough. An answer that gives only the first half is describing the law as it stood before 1976.

Five. The matter must have been heard and finally decided. A suit dismissed for default, withdrawn, or compromised is not "heard and finally decided" on the matter in issue. A decision on a preliminary point which disposes of the suit without touching the merits does not bar a later suit on those merits.

Be careful about appeals here, because the loose version of this rule is wrong. Take the three situations separately. Where the appeal is still pending, the earlier decision is not yet final in the sense section 11 requires. Where the appeal has been decided on the merits, the trial court's decree merges into the appellate decree, and it is the appellate court's decision that operates as res judicata. Where the appeal has been dismissed on a preliminary ground such as limitation, so the appellate court never reached the merits, the dismissal confirms the trial court's decision on the merits and that decision does operate as res judicata: Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332, discussed below.

Constructive res judicata: Explanation IV

Explanation IV extends the bar from what was decided to what should have been raised. Any matter which might and ought to have been made a ground of attack or defence in the former suit is deemed to have been directly and substantially in issue in it.

The purpose is to stop litigation by instalments. Without it, a defendant could keep one good defence in his pocket, lose, and start again on the defence he held back. The word "ought" is doing real work: the ground must have been one the party was aware of and could properly have taken at that time.

The leading authority is State of Uttar Pradesh v. Nawab Hussain, AIR 1977 SC 1680.

Facts. Nawab Hussain was a Sub-Inspector of Police. He was dismissed from service. He first filed a writ petition in the High Court challenging the dismissal on the ground that the enquiry against him was vitiated, because he had not been given a reasonable opportunity to be heard. The writ petition was dismissed. He then filed a civil suit challenging the same dismissal, this time on the fresh ground that he had been appointed by the Inspector General of Police and could not lawfully be dismissed by the Deputy Inspector General, a subordinate authority.

Held. The Supreme Court held the suit barred by constructive res judicata. The ground about the dismissing authority's competence was available to him when he filed the writ petition, and he could and ought to have taken it then. The Court also held expressly that the doctrine of constructive res judicata applies to writ petitions.

Why it matters here. It is the case that shows the bar operates on grounds never argued at all. It also links Explanation IV to the constitutional side of the doctrine, which is where the next case sits.

Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457, is the constitutional anchor.

Facts. The petitioners claimed they had been in possession of land as tenants and had been dispossessed while they were away during the communal disturbances of 1947. They first went to the Allahabad High Court by writ petition under Article 226. Those petitions were dismissed. They then came to the Supreme Court under Article 32 on the same facts asking for the same relief.

Held. Where a High Court has heard a writ petition under Article 226 and dismissed it on the merits, a later petition under Article 32 on the same facts is barred by res judicata. The Court was careful about the qualification: a petition dismissed not on the merits, for instance for delay or because an alternative remedy existed, creates no such bar.

Why it matters here. It shows res judicata is not procedural housekeeping confined to civil suits. It is treated as a rule of fundamental importance resting on public policy, and it reaches constitutional litigation. It is also the case that teaches the distinction the exam likes: dismissed on the merits bars, dismissed on a preliminary ground does not.

Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332, is the case to cite for the conditions themselves, and it settles a question about appeals that the section does not answer.

Facts. The appellant filed two suits in the court of the Civil Judge about title to the same property. While those were pending, the respondent filed two suits in the Munsif's court about the same property. All four were consolidated and tried together by the Civil Judge, who disposed of them by a common judgment but drew a separate decree in each suit. Appeals followed, and two of them were dismissed as time barred, so the appellate court never reached the merits.

Held. The Supreme Court set out the conditions: the matter directly and substantially in issue in both, the same parties or their privies, litigating under the same title, a court competent to try the subsequent suit, and heard and finally decided. On the appeals point it held that where the trial court decided on the merits and the appeal against that decision was dismissed on a preliminary ground, the dismissal confirms the trial court's decision on the merits, and the matter is therefore to be treated as heard and finally decided.

Why it matters here. Where a question is set as "state the essentials of res judicata", this is the authority the essentials come from. And it is the answer to a student who thinks any appeal, however disposed of, destroys finality.

A worked example

Anjali sells a flat in Dadar to Bhavesh in 2019. In 2021 Chetan files a suit against Bhavesh in the City Civil Court claiming that the flat is his, that Anjali never owned it, and that the sale is void. Bhavesh defends the suit on the ground that Anjali was the recorded owner. He does not plead, though he knows it, that Chetan's own claim is founded on a will which was never probated. The court decides in Bhavesh's favour and holds that Anjali was the owner. There is no appeal.

In 2023 Chetan files a fresh suit, this time against Dinesh, to whom Bhavesh has since sold the flat, claiming the same title on the same facts.

Is the second suit barred?

Take the five conditions in order. The matter directly and substantially in issue is the ownership of the same flat, and it was directly and substantially in issue in 2021: condition one is satisfied. The parties are not identical, because the defendant is now Dinesh, but Dinesh is a purchaser from Bhavesh and therefore claims under a party to the former suit: condition two is satisfied through privity. Chetan sued in both suits in his personal capacity asserting his own title, so condition three is satisfied. The City Civil Court was competent to try both suits: condition four is satisfied. The 2021 suit was contested and decided on the merits, so condition five is satisfied.

The second suit is barred by section 11.

Now change one fact. Suppose Chetan now wishes to argue that Bhavesh's own purchase was procured by fraud, a ground he knew about in 2021 and did not take. That does not help him. Explanation IV deems a ground which might and ought to have been raised to have been in issue, and Nawab Hussain is the authority.

Change a different fact. Suppose the 2021 suit had been dismissed because Chetan failed to appear on the date of hearing. There is then no decision on the merits, condition five fails, and section 11 does not bar the second suit. What Chetan faces instead is Order IX Rule 9, which bars a fresh suit on the same cause of action after a dismissal for default, and which is a different rule with its own remedy of an application to set the dismissal aside.

The exceptions, and where the rule stops

A pure question of law, wrongly decided, does not always bind.

Facts. Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 1 SCC 613, arose out of a lease of open land. Whether the tenant could get relief depended on whether a rent control statute applied to land let for building, and that in turn decided whether the particular court had jurisdiction to entertain the application at all. An earlier order between the same parties had decided that question one way. Later authority showed that decision to have been wrong in law.

Held. A decision on a question of law which does not relate to the rights of the parties but goes to the jurisdiction of the court, and which is erroneous, does not operate as res judicata. A court cannot give itself jurisdiction by wrongly deciding that it has it, and a mistaken view of the law on such a question does not become binding between the parties for all time.

Why it matters here. It is the main exception a student can name, and the boundary is the point: an ordinary wrong decision on the facts or on the parties' rights still binds, as Satyadhyan Ghosal shows. It is only a pure question of law going to jurisdiction that escapes.

A judgment obtained by fraud binds nobody. Fraud unravels everything, and a decree procured by fraud on the court can be challenged despite section 11.

A dismissal in limine or for default is not a decision on the merits, as the worked example shows.

A compromise decree does not bar a second suit under section 11, because nothing was decided. That is dealt with below, under the two situations the section does not obviously cover.

And the plea cannot be used to throw out a plaint at the threshold. It has to be pleaded and tried on the documents from the earlier suit. That is the most recent development in this area and it has its own section below, on how the plea is taken and proved.

Two situations the section does not obviously cover

Res judicata between co-defendants

Section 11 speaks of a matter in issue "between the same parties". The usual case is plaintiff against defendant. But a decision can also bind one defendant against another defendant in the same earlier suit, and this is a standing exam question in its own right.

The leading authority is Mahboob Sahab v. Syed Ismail, (1995) 3 SCC 693, decided on 23 March 1995 by Ramaswamy and Hansaria JJ.

Facts. Syed Ismail and Ibrahim said their father had gifted land to them as minors and had then wrongly sold it to the appellant, so they sued for possession on the footing that a minor's property could not be alienated. The appellant's answer was that the gifts were a sham got up to defeat creditors and that his own sale deeds were good. The High Court held part of the dispute concluded by an earlier suit of 1951, applying res judicata as between co-defendants in that suit.

Held. The Supreme Court set that aside and stated the four conditions which must all be satisfied before a decision binds one co-defendant against another. There must be a conflict of interest between those defendants. It must have been necessary to decide that conflict in order to give the plaintiff the relief claimed. The question between them must have been finally decided. And the co-defendants must have been necessary or proper parties to the former suit. On the facts none of this was made out, because in the earlier suit the defendants had jointly admitted the claim, so there had been no conflict between them at all.

Why it matters here. It is the answer to "does res judicata apply between co-defendants", and the safe answer is: yes, but only on those four conditions, and the first of them is usually where the plea fails. The same four conditions have been applied to co-plaintiffs, in Iftikhar Ahmed v. Syed Meharban Ali.

Consent and compromise decrees

A decree passed on a compromise does not operate as res judicata, and the reason follows straight from the fifth condition. Section 11 requires the matter to have been "heard and finally decided". In a compromise decree the court decides nothing: it records what the parties agreed and puts its seal on their agreement. There is no adjudication, so there is nothing for section 11 to bite on. The Supreme Court rejected the contrary argument in Pulvarthi Venkata Subba Rao v. Valluri Jagannadha Rao.

That is not the end of it, though, and this is the part students leave out. A compromise recorded in a decree binds the parties by estoppel instead. Having agreed to it and having had the court act on it, neither party is permitted to turn round and assert the opposite. So the correct answer to "does a consent decree bar a second suit" is: not by res judicata, but usually by estoppel, which is a different route to nearly the same place.

How the plea is actually taken, and how it is proved

None of the above helps a student who is asked what a party actually does. The mechanics are short and they are examinable.

It must be pleaded. Res judicata is a plea taken by the defendant in the written statement. A defendant who does not plead it is generally treated as having given it up, so it is not something a court is expected to discover by itself.

It is then framed as an issue and tried. Because it goes to whether the court may try the suit at all, it is usually taken as a preliminary issue and decided first, since deciding it in the defendant's favour disposes of the whole suit.

It is proved with documents from the earlier suit. The party relying on it must produce certified copies of the plaint, the written statement, the issues and the judgment or decree in the former suit. Nothing less will do, because the court has to compare what was in issue then with what is in issue now, and only those documents show it.

That last point explains the most recent case in this area, and it is why the plea cannot be disposed of on the pleadings alone.

Facts. In Srihari Hanumandas Totala v. Hemant Vithal Kamat, decided in 2021, and again in Keshav Sood v. Kirti Pradeep Sood, decided on 12 September 2023 by Oka and Mithal JJ and reported as 2023 LiveLaw (SC) 799, a defendant applied under Order VII Rule 11(d) to have the plaint rejected outright on the ground that the suit was barred by res judicata.

Held. The plea cannot be decided that way. Rule 11(d) permits a plaint to be rejected only where the suit appears from the statement in the plaint itself to be barred by some law. Deciding res judicata requires the court to look at the pleadings, the issues and the judgment in the earlier suit, and none of those is part of the plaint.

Why it matters here. It ties the doctrine to the procedure. Res judicata is a defence to be pleaded and tried on evidence, not a shortcut for throwing out a plaint at the threshold.

Distinguish: res judicata and res sub judice

These two sit side by side in the Code, at sections 11 and 10, and are confused constantly. The distinction is a standing exam question in its own right.

Section 10 requires the earlier suit to be previously instituted, which is the mirror image of Explanation I to section 11, where what matters is which suit was previously decided. A student who remembers only "one is pending and one is decided" will still get a question on Explanation I wrong.

Distinguish: res judicata and estoppel

Both stop a party from saying something. They are not the same thing.

Res judicata ousts the court's jurisdiction to try the suit. Estoppel is a rule of evidence which shuts the mouth of a party. That difference in kind is the answer an examiner is looking for.

What it does not mean

It is not the same as "the same case cannot be filed twice". The bar operates on the matter in issue, not on the suit's label. Two suits with different reliefs and different causes of action can still be barred if the matter directly and substantially in issue is the same one already decided.

It does not require the earlier decision to be correct. A wrong decision binds. The remedy was an appeal.

It does not require the same relief to have been claimed. Explanation V deems any relief claimed in the plaint and not granted by the decree to have been refused.

It is not confined to civil suits. Daryao applies it to writ petitions, Explanation VII applies it to execution proceedings, and Explanation VIII applies it across courts of limited jurisdiction.

It is not the same as section 12 or Order II Rule 2. Section 12 bars a fresh suit where a plaintiff is precluded by rules from instituting one. Order II Rule 2 bars a claim the plaintiff omitted from an earlier plaint when he ought to have joined it, and it operates on claims and reliefs, whereas Explanation IV to section 11 operates on grounds of attack and defence. Confusing the two is a standing error.

Quick revision

Section 11, Code of Civil Procedure 1908. Latin for "a matter already judged".

Five conditions, all required: matter directly and substantially in issue in both; same parties or privies; same title, meaning same capacity; court competent to try the later suit; heard and finally decided.

Eight Explanations. I, "former" means decided first, not filed first. II, competence ignores any right of appeal. III, the matter must have been alleged and met. IV, constructive res judicata, might and ought. V, relief not granted is deemed refused. VI, bona fide representative suits bind the whole class. VII, execution. VIII, courts of limited jurisdiction. VII and VIII were added by the 1976 amendment.

Three maxims: no one vexed twice, the State wants an end to litigation, a decision is accepted as true.

Appeals: pending means not yet final; decided on the merits means the appellate decree binds; dismissed on a preliminary ground means the trial court's decision stands and binds.

Co-defendants: four conditions, and conflict of interest is the one that usually fails. Compromise decree: no res judicata, because nothing was decided, but estoppel instead.

Procedure: plead it in the written statement, get it framed as a preliminary issue, prove it with certified copies of the plaint, written statement, issues and judgment in the earlier suit. It cannot be decided on an Order VII Rule 11(d) application.

Cases: Satyadhyan Ghosal for finality and for stages of the same case, Sheodan Singh for the conditions and for appeals dismissed on a preliminary ground, Daryao for writ petitions, Nawab Hussain for constructive res judicata, Mathura Prasad for the pure question of law exception, Mahboob Sahab for co-defendants, Keshav Sood for the rule that it cannot be decided under Order VII Rule 11(d).

Compare with section 10: decided against pending, barred against stayed.

Test yourself

1. In two sentences, what is res judicata? It is the rule in section 11 of the Code of Civil Procedure 1908 that no court shall try a 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. Its purpose is to give finality to judicial decisions and to prevent a party being vexed twice over the same cause.

2. Suit A is filed in January and suit B in March. Suit B is decided first. Which is the "former suit"? Suit B. Explanation I provides that "former suit" denotes a suit decided prior to the suit in question, whether or not it was instituted prior to it.

3. A defendant had a good defence, knew about it, and did not plead it. He loses, and raises it in a later suit. Can he? No. Explanation IV deems any matter which might and ought to have been made a ground of defence to have been directly and substantially in issue. The authority is State of Uttar Pradesh v. Nawab Hussain, AIR 1977 SC 1680.

4. Give one situation where a decision does not operate as res judicata even though the parties and the property are the same. Any of these will do: the earlier suit was dismissed for default rather than decided on the merits; the earlier decision was on a pure question of jurisdiction and was erroneous, following Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 1 SCC 613; the earlier decree was obtained by fraud; the party sued in a different capacity the second time.

5. State two differences between res judicata and res sub judice. Res judicata applies where the earlier suit has been decided, res sub judice where it is still pending. Res judicata bars the later suit altogether, res sub judice only stays its trial while the earlier suit continues.

6. Can a plaint be rejected under Order VII Rule 11(d) on the ground that the suit is barred by res judicata? No. Rule 11(d) allows rejection only where the suit appears from the statement in the plaint itself to be barred by law, and deciding res judicata requires the pleadings, issues and judgment of the earlier suit to be examined. See Srihari Hanumandas Totala v. Hemant Vithal Kamat (2021), followed in Keshav Sood v. Kirti Pradeep Sood, 12 September 2023, 2023 LiveLaw (SC) 799.

7. The earlier suit was decided on the merits, and the appeal against it was dismissed because it was filed out of time. Is the trial court's decision res judicata? Yes. The dismissal of the appeal on a preliminary ground confirms the trial court's decision on the merits, so the matter counts as heard and finally decided: Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332.

8. Two defendants in an earlier suit disagreed with each other. When does that decision bind one of them against the other later? Only if all four conditions in Mahboob Sahab v. Syed Ismail, (1995) 3 SCC 693, are satisfied: a conflict of interest between those defendants, a need to decide that conflict in order to grant the plaintiff relief, a final decision on the question between them, and both being necessary or proper parties to the former suit.

9. Does a compromise decree operate as res judicata? No, because the court decided nothing; it only recorded what the parties agreed, so the matter was never heard and finally decided. But the compromise binds the parties by estoppel, which usually produces the same result by a different route.

10. Where must the plea be raised, and what must be produced to prove it? It must be pleaded in the written statement, and it is usually framed and tried as a preliminary issue. To prove it the party must produce certified copies of the plaint, the written statement, the issues and the judgment or decree in the earlier suit.

11. What is the difference between a section and an Order of this Code? The sections are the body of the Code, numbered 1 to 158, and they carry the principles. The Orders are in the First Schedule, numbered in roman numerals up to Order LI, each divided into Rules, and they carry the procedure. Parliament amends the sections; the High Courts have power to amend the Rules.

The Code's own illustration

Order II Rule 2 carries an illustration, and it is worth learning because it is the clearest statement of the rule anywhere.

A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.

Three years of rent under one tenancy are successive claims under the same obligation, and the Explanation deems them one cause of action. Having sued on that cause of action for part, A has lost the rest.

The crucial difference between sub-rules (2) and (3)

This is the distinction that separates a good answer from an average one.

Sub-rule (2) is about the CLAIM, meaning the subject matter of what you are owed. Omit part of the claim and it is gone. There is no leave of the court available.

Sub-rule (3) is about the RELIEFS you ask for on the same cause of action. Omit a relief and it is gone unless you obtained the leave of the Court.

So the Code is stricter about splitting the claim than about omitting a relief, because a plaintiff may have a good reason to defer a relief, and the court can sanction it in advance. Nothing sanctions splitting the claim itself, except the express permission in Rule 2(1) to relinquish part in order to bring the suit within a court's pecuniary jurisdiction, and a plaintiff who does that has given the relinquished part up permanently.

The leading case, and it is about proof

Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, decided on 22 April 1964.

Facts. The plaintiff sued for recovery of possession of property and for mesne profits, saying he was the absolute owner and the defendant was in wrongful possession. In his plaint he referred to an earlier suit brought by himself and his mother against the same defendant, in which mesne profits for the same property up to 10 February 1950 had been claimed and decreed. The defendant pleaded that the present suit was barred by Order II Rule 2, and the trial court dismissed the suit as barred.

Held. The plea failed, and the reason is entirely practical. A plea under Order II Rule 2 cannot be made out except on proof of the plaint in the previous suit which is said to create the bar. The defendant must file the pleadings of the earlier suit in evidence and thereby prove to the court that the cause of action in the two suits is the same.

Why it matters here. It converts a doctrine into a burden of proof, and puts that burden squarely on the defendant. Knowing that an earlier suit existed is not enough; even the plaintiff mentioning it in his own plaint was not enough. Without the earlier plaint in evidence the court cannot compare the two causes of action, and if it cannot compare them it cannot find the bar.

Note how closely this tracks the modern rule about res judicata, where the plea likewise has to be proved from the earlier record and cannot be decided on the plaint alone. Both bars are about comparing two proceedings, and you cannot compare what is not before the court.

Distinguish: Order II Rule 2 and Explanation IV to section 11

These two are confused constantly, because both punish a party for not raising something earlier.

The short version: Order II Rule 2 is about what you asked for; constructive res judicata is about what you argued. A plaintiff who sued for possession and forgot mesne profits meets Order II Rule 2. A defendant who had a good defence and kept it in his pocket meets Explanation IV.

A worked example

Sanjay lets a shop to Tanvi. Tanvi stops paying, and by January the rent for three years is outstanding and Sanjay also wants her out.

Sanjay sues only for one year's rent. On the Explanation to Order II Rule 2, successive claims under the same obligation are one cause of action, so the three years are one claim. Having sued for part, Rule 2(2) bars him from suing for the other two years. The Code's own illustration is this case.

Sanjay sues for all three years' rent but not for possession. Possession is a relief on the same cause of action. Rule 2(3) bars a later suit for it, unless he obtained the leave of the Court when he filed the first suit.

Sanjay's claim is worth more than the court's pecuniary limit. Rule 2(1) lets him relinquish part of the claim to bring the suit within jurisdiction. He may do that, but the relinquished portion is gone for good under Rule 2(2); it is a price, not a device.

Sanjay files the second suit anyway, and Tanvi pleads the bar. On Gurbux Singh, Tanvi must put the plaint in the earlier suit in evidence. If she merely asserts that an earlier suit existed, or relies on Sanjay having mentioned it, the plea fails for want of proof.

And a last turn. Suppose Tanvi wants to raise the bar by having the plaint rejected at the threshold. She cannot, for the same reason the same device fails for res judicata: the earlier plaint is not part of this plaint. See [Res Judicata] on Order VII Rule 11(d).

What it does not mean

It does not bar a suit on a different cause of action. The whole rule turns on the cause of action being the same.

It does not apply to the defendant. A defendant's failure to raise a defence is Explanation IV to section 11, not this rule.

Leave is not available for splitting the claim. Only for omitting a relief, under sub-rule (3).

Section 12 is not an independent bar. It only carries the bar created by the rules into every court to which the Code applies.

The bar is not established by assertion. On Gurbux Singh, the earlier plaint must be proved.

Quick revision

Section 12: a plaintiff precluded by the rules from a further suit on a cause of action cannot bring it in any court to which the Code applies.

Order II Rule 2(1): a suit must include the whole claim; part may be relinquished to fit the court's jurisdiction. Rule 2(2): what is omitted or relinquished cannot be sued for later. No leave available. Rule 2(3): omitting one of several reliefs on the same cause of action bars it later, unless the leave of the Court was obtained. Explanation: an obligation and its collateral security, and successive claims under the same obligation, are one cause of action.

The Code's illustration: three years' rent, sued for one, the other two are lost.

Gurbux Singh v. Bhooralal, AIR 1964 SC 1810: the plea cannot be made out except on proof of the plaint in the previous suit, which the defendant must file in evidence.

Against Explanation IV to section 11: claims and reliefs, not grounds; cause of action, not matter in issue.

Test yourself

1. State Order II Rule 2 in two sentences. Every suit must include the whole of the claim the plaintiff is entitled to make on his cause of action, and a plaintiff who omits or relinquishes part of it cannot sue for that part afterwards. Where he is entitled to several reliefs on the same cause of action and omits one, he cannot sue for it later except with the leave of the Court.

2. Rent is due for 1905, 1906 and 1907 and the landlord sues only for 1906. Can he later sue for the rest? No. By the Explanation, successive claims arising under the same obligation are one cause of action, so the omitted years fall within Rule 2(2) and are barred. This is the Code's own illustration to the rule.

3. What is the difference between sub-rules (2) and (3)? Sub-rule (2) bars a claim or part of a claim that was omitted or relinquished, and no leave of the court is available. Sub-rule (3) bars a relief omitted on the same cause of action, but only where the plaintiff did not obtain the leave of the Court.

4. What must a defendant prove to succeed on a plea under Order II Rule 2? He must file the pleadings of the previous suit, in particular the earlier plaint, in evidence, so as to prove the identity of the cause of action in the two suits. On Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, the plea cannot be made out except on proof of that plaint.

5. How does Order II Rule 2 differ from constructive res judicata? Order II Rule 2 applies to a plaintiff and bars claims and reliefs omitted from the earlier plaint, turning on identity of the cause of action. Explanation IV to section 11 bars grounds of attack or defence which might and ought to have been raised, turning on the matter in issue, and it has no leave-of-the-court escape.

6. What does section 12 add? Nothing of its own. It provides that where a plaintiff is precluded by the rules from a further suit on a cause of action, he cannot institute such a suit in any court to which the Code applies, so the bar cannot be evaded by choosing a different court.

Section 14 then supplies a presumption. On production of a document purporting to be a certified copy of a foreign judgment, the court shall presume that the judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record. That presumption may be displaced by proving want of jurisdiction.

Read sections 13 and 14 together and the practical position is this: produce the certified copy and competence is assumed in your favour; the other side must then prove otherwise.

Broken down: the six exceptions

(a) Not by a court of competent jurisdiction. Competence here is not decided by the foreign court's own view of itself. An Indian court asks whether that court had jurisdiction by the rules Indian law recognises, which in the main means the defendant's presence, residence or submission to that court. A defendant who never set foot in the country, never traded there and never agreed to be sued there is not bound merely because a court there was willing to hear the case.

(b) Not given on the merits. The court must have applied its mind to the truth or falsehood of the claim. This is the exception that generates most of the case law, and it is dealt with under International Woollen Mills below.

(c) Founded on an incorrect view of international law, or a refusal to apply Indian law. Two limbs. The defect must appear on the face of the proceedings: an Indian court does not re-try the foreign case to hunt for it. The second limb bites where the foreign court was bound to apply Indian law to the question and declined to, for instance by applying its own divorce law to a marriage governed by Indian personal law.

(d) Opposed to natural justice. This is about the procedure, not the outcome. It means the party was not given notice, or not given a hearing, or the court was biased. A student who writes that a judgment is against natural justice because it is harsh has answered a different question. An unjust result reached by a fair procedure does not fall in clause (d).

(e) Obtained by fraud. Fraud vitiates everything, and this is the widest of the six. The fraud that matters is very often a lie about the facts on which the foreign court's jurisdiction depended, which is Satya v. Teja Singh below.

(f) Sustains a claim founded on a breach of a law in force in India. A foreign court may happily enforce a contract that Indian law forbids, for instance a wagering agreement or a transaction that breaches Indian exchange control. India will not lend its courts to enforcing the result.

The cases

Fraud, and why it is usually fraud about jurisdiction

Satya v. Teja Singh, AIR 1975 SC 105, decided on 1 October 1974 by Chandrachud and Khanna JJ.

Facts. Satya and Teja Singh married at Jullundur in July 1955 by Hindu ceremonies. Both were Indian citizens living in India, and they had two children. In January 1959 the husband went to the United States to study forestry, leaving his wife and children behind. He later obtained a decree of divorce from a court in Nevada. That court took jurisdiction on his assertion that he was a bona fide resident of, and domiciled in, Washoe County, Nevada, intending to make Nevada his home for an indefinite period. The wife claimed maintenance in India, and the husband produced the Nevada decree to say she was no longer his wife.

Held. The assertion of Nevada domicile was a misrepresentation of the very fact on which the Nevada court's jurisdiction rested. That was a fraud on that court, which had been given jurisdiction by a trick. The decree was therefore not conclusive in India, and Satya remained his lawful wife and could claim maintenance.

Why it matters here. It is the leading Indian case on clause (e), and it teaches the shape the fraud usually takes. The lie is rarely about the merits of the dispute. It is about where the party lived, because that is what lets a convenient foreign court take the case at all. So clause (e) and clause (a) tend to arrive together.

On the merits, and the trap in the words "ex parte"

International Woollen Mills v. Standard Wool (U.K.) Ltd, (2001) 5 SCC 265, decided on 25 April 2001.

Facts. An Indian buyer ordered greasy fleece wool from an English seller, shipped to Mumbai in September 1996. The buyer said the wool was of inferior quality and refused to pay. The seller sued in the Central London County Court. The buyer did not appear, and a decree for 49,895.50 dollars was passed ex parte in April 1998. The seller then sought to enforce it in India.

Held. A foreign judgment passed merely for default of appearance, where the court did not consider whether the claim was true, is not a judgment given "on the merits of the case" under clause (b). The Court observed that this makes Indian law different from systems which treat such default judgments as final and conclusive. It also held that the burden of showing a decree is not on the merits lies on the party who alleges it.

Why it matters here. It corrects the commonest error students make on this topic. The test is not whether the defendant turned up. It is whether the foreign court applied its mind to the claim. A decree entered as an administrative consequence of silence is not on the merits; a decree where the judge heard the plaintiff's evidence and decided the claim was made out can be on the merits even though the defendant never appeared.

A worked example

This is, almost word for word, the problem MU set in December 2023.

Avinash and Yash are independent businessmen with offices in India and in Portugal. A dispute arises out of a business transaction between them. Avinash says a court in Portugal has pronounced judgment in his favour.

First, what is that court and that judgment called in India? The Portuguese court is a foreign Court under section 2(5), because it sits outside India and was not established by the authority of the Central Government. Its decision is a foreign judgment under section 2(6). Its effect in India is governed by section 13.

Second, on what grounds can Yash attack it? Any of the six in section 13, and in practice he would look first at these three. That the Portuguese court had no jurisdiction over him by the rules Indian law recognises, under clause (a), which is the strongest ground if he never traded in or submitted to Portugal. That the decree went against him only because he did not appear and the court never examined the claim, under clause (b), following International Woollen Mills. That he was never served or never heard, under clause (d).

Third, and this is the part most answers miss: what can Avinash actually do with his judgment in India? There are two routes and they are not interchangeable.

Where the foreign country has been declared a reciprocating territory by the Central Government under section 44A, a certified copy of the decree of a superior court there can be filed in an Indian District Court and executed as if that District Court had passed it. No fresh suit is needed. The Explanation to section 44A limits this to decrees for a sum of money, and expressly excludes sums payable for taxes, fines or other penalties, and excludes arbitration awards altogether. Section 44A(3) then applies section 13 anyway: the executing court must refuse execution if the decree falls within any of clauses (a) to (f).

The territories notified include the United Kingdom, Singapore, Bangladesh, Malaysia, New Zealand, Hong Kong, Fiji, Papua New Guinea, Trinidad and Tobago, the Cook Islands, Aden, and the United Arab Emirates, which was notified in January 2020.

Portugal is not among them. So Avinash cannot execute his Portuguese decree under section 44A at all. His only route is to file a fresh suit in India on the foreign judgment, in which the judgment is his cause of action and is conclusive under section 13 unless Yash brings it within one of the six exceptions.

Distinguish: section 13 and section 44A

The single most useful thing to remember is that section 44A does not replace section 13, it sits on top of it. Reciprocity buys you a shorter procedure, not immunity from the six exceptions.

What it does not mean

It does not mean an Indian court re-tries the foreign case. Section 13 lists six specific defects. A party who simply disagrees with the foreign court's findings has no answer under this section.

It does not mean any ex parte decree fails clause (b). See International Woollen Mills. What fails is a decree entered for default alone.

"Opposed to natural justice" is not "unjust". Clause (d) is about procedure: notice, hearing, an unbiased court.

Section 14's presumption is about competence only, and only on production of a certified copy. It presumes nothing about the merits, about fraud, or about anything else in section 13.

A foreign award is not a foreign judgment. Arbitration awards are governed by the Arbitration and Conciliation Act 1996, and section 44A expressly excludes them.

Quick revision

Sections 13, 14 and 44A of the Code of Civil Procedure 1908, with the definitions in sections 2(5) and 2(6).

Section 13: a foreign judgment is conclusive, except on six grounds. Not by a competent court; not on the merits; incorrect view of international law or refusal to apply Indian law; opposed to natural justice; obtained by fraud; sustains a claim founded on a breach of Indian law.

Section 14: on a certified copy, competence is presumed until the contrary is proved.

Section 44A: a money decree of a superior court of a notified reciprocating territory is filed in a District Court and executed as its own. Not taxes, fines or penalties. Never an arbitration award. The six exceptions still apply, by section 44A(3).

Cases: Satya v. Teja Singh for fraud, and note that the fraud was about domicile, which is jurisdiction. International Woollen Mills for the merits, and note that default of appearance alone is not a decision on the merits.

The link back: section 13's opening words are section 11's words, so a foreign judgment that survives section 13 works in India much as res judicata does.

Test yourself

1. In two sentences, what is a foreign judgment and what is its effect in India? A foreign judgment is the judgment of a court situated outside India which was not established or continued by the authority of the Central Government, as defined in sections 2(5) and 2(6). Under section 13 it is conclusive in India as to any matter directly adjudicated upon between the same parties litigating under the same title, unless it falls within one of the six exceptions in clauses (a) to (f).

2. Name the six exceptions in section 13. Not pronounced by a court of competent jurisdiction; not given on the merits; founded on an incorrect view of international law or a refusal to recognise Indian law where applicable; proceedings opposed to natural justice; obtained by fraud; sustains a claim founded on a breach of a law in force in India.

3. A decree was passed abroad because the Indian defendant never appeared. Is it conclusive? Not if it was passed merely for default of appearance without the court considering the truth of the claim, because it is then not a judgment on the merits under clause (b): International Woollen Mills v. Standard Wool (U.K.) Ltd, (2001) 5 SCC 265. But if the foreign court examined the plaintiff's evidence and decided the claim was made out, it can be on the merits despite the defendant's absence. The burden of showing a decree is not on the merits is on the party alleging it.

4. What kind of fraud defeats a foreign judgment, and give the case. Fraud on the foreign court, characteristically a misrepresentation of the facts on which that court's jurisdiction depended. In Satya v. Teja Singh, AIR 1975 SC 105, the husband obtained a Nevada divorce by asserting a Nevada domicile he did not have, and the decree was held not conclusive in India.

5. Avinash holds a money decree from a court in Portugal. Can he file it in an Indian District Court and execute it? No. Section 44A is available only for decrees of superior courts of territories the Central Government has notified as reciprocating, and Portugal is not among them. He must file a fresh suit in India on the foreign judgment, where it will be conclusive under section 13 unless the other side brings it within one of the six exceptions.

6. If the decree had come from a court in Singapore instead, what would change? Singapore is a notified reciprocating territory, so a certified copy of a decree of its superior courts could be filed in a District Court and executed as if that court had passed it, provided the decree is for a sum of money and is not for taxes, a fine or a penalty, and is not an arbitration award. The six exceptions in section 13 would still apply, because section 44A(3) requires the executing court to refuse execution if the decree falls within any of them.

7. What does section 14 presume, and what displaces it? On production of a document purporting to be a certified copy of a foreign judgment, the court shall presume that it was pronounced by a court of competent jurisdiction, unless the contrary appears on the record. The presumption is displaced by proving want of jurisdiction.

The idea behind the proviso is that if the court does not need to touch the land, only to order the defendant to do something, then having the defendant is enough. The Explanation adds that "property" in the section means property situate in India.

Section 17 deals with immovable property lying within the jurisdiction of different courts. The suit may be instituted in any court within whose limits any portion of the property is situate, provided that the entire claim, in respect of value, is cognizable by that court.

Section 18 deals with uncertainty about which of two or more courts the property falls in. Any one of those courts may, if satisfied there is ground for the uncertainty, record a statement to that effect and then proceed, and its decree has the same effect as if the property were within its limits.

Section 19: wrongs to the person or to movables

Section 19 provides that where a suit is for compensation for a wrong done to the person or to movable property, and the wrong was done within the limits of one court while the defendant resides, carries on business or personally works for gain within the limits of another, the suit may be instituted at the option of the plaintiff in either.

The Code gives two illustrations, and they are the neatest statement of the section:

A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi.

So for a tort against the person or goods, the plaintiff chooses between the place of the wrong and the place of the defendant.

Section 20: everything else

Section 20 is the residuary provision, and in practice it is the one most often used, because contract and money suits fall here.

Subject to the limitations already stated, every suit shall be instituted in a court within whose local limits:

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, so resides or works, provided that either the leave of the Court is given, or the defendants who do not so reside acquiesce in the institution; or

(c) the cause of action, wholly or in part, arises.

The Explanation provides that a corporation is deemed to carry on business at its sole or principal office in India, or, in respect of a cause of action arising at a place where it also has a subordinate office, at that place.

Three points deserve pulling out.

"Actually and voluntarily resides" excludes a temporary or forced presence. A defendant does not become suable in a district because he was passing through it.

Clause (c) is very wide. The cause of action need arise only in part within the local limits. In a contract case that can mean the place where the contract was made, where it was to be performed, or where payment was to be made, and each may be a different district. That is why so many suits can properly be filed in more than one place, and it is what makes [Transfer of Suits] necessary.

The corporation Explanation has two limbs, and the second is the useful one: a company can be sued at a subordinate office, but only in respect of a cause of action arising at that place. A student who states only the principal-office limb has given half the rule.

The Code's illustrations to section 20

A is a tradesman in Calcutta and B carries on business in Delhi. B, through his agent in Calcutta, buys goods from A and asks A to deliver them to the railway company. A delivers them in Calcutta. A may sue B for the price either in Calcutta, where the cause of action arose, or in Delhi, where B carries on business. That is clause (c) against clause (a).

A resides at Simla, B at Calcutta and C at Delhi. The three being together at Benaras, B and C make a joint promissory note payable on demand and give it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue at Calcutta, where B resides, or at Delhi, where C resides; but in each of those cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court. That illustrates clause (b) and the proviso exactly.

A worked example

Meera lives in Thane. She contracts in Mumbai with Nilesh, who lives and works in Nashik, for goods to be delivered in Pune, payment to be made in Mumbai. The goods are never delivered and she wants to sue for the price paid.

Filter one, subject matter. A money claim on a contract. An ordinary civil court can try it.

Filter two, pecuniary. Section 15: the lowest grade of court competent to try a claim of that value.

Filter three, territory. This is not a suit about immovable property, so section 16 is out. It is not compensation for a wrong to person or goods, so section 19 is out. Section 20 applies.

Under clause (a), Nashik, because Nilesh resides and works there. Under clause (c), Mumbai, where the contract was made and where payment was to be made, and Pune, where delivery was to be made, since the cause of action arose at least in part at each. So Meera may properly file in Nashik, Mumbai or Pune.

Note what does not appear on that list: Thane. Where the plaintiff lives is irrelevant under section 20. That is the commonest mistake on this topic.

Change one fact. Suppose Nilesh is a company with its principal office in Nashik and a branch in Pune, and the contract was made at the Pune branch. By the Explanation, the company is deemed to carry on business at Pune for a cause of action arising there, so Pune is available under clause (a) as well as clause (c).

Change another. Suppose Meera sues both Nilesh in Nashik and a second defendant living in Mumbai, and files at Mumbai. Only one defendant resides there, so she needs clause (b): either the leave of the Court, or Nilesh's acquiescence.

And another. Suppose instead the dispute is about a flat in Chembur, and she wants a declaration of her title to it. Now section 16(d) applies and the suit belongs where the property is situate, in Mumbai, whatever anyone's residence.

Last one. Suppose the flat straddles the boundary between two courts' limits. Section 17 lets her file where any portion lies, provided the whole claim is within that court's value limit. And if it is genuinely unclear which side of the line it falls on, section 18 lets a court record a statement of the uncertainty and proceed.

What it does not mean

Where the plaintiff lives does not matter. Section 20 speaks of the defendant's residence and the cause of action, never the plaintiff's.

"Cause of action wholly or in part" is not the whole cause of action. A part is enough, which is why several courts are often available.

Section 15 is not a jurisdictional bar in the strong sense. Filing above the lowest grade is an irregularity dealt with by section 21(2), not a nullity.

The section 16 proviso is not a general escape. It applies only where the relief can be entirely obtained through the defendant's personal obedience.

A company is not suable at every branch. Only at the principal office, or at a subordinate office where the cause of action arose there.

Quick revision

Order of work: subject matter, then section 15 for value, then sections 16 to 20 for territory.

Section 15: the court of the lowest grade competent to try the suit.

Section 16: six classes of suit about immovable property go where the property is situate. Proviso: relief obtainable entirely through the defendant's personal obedience may instead be sought where the defendant resides or works.

Section 17: property in two jurisdictions, file where any portion lies, if the whole claim is within that court's value limit. Section 18: uncertainty, the court records a statement and proceeds.

Section 19: compensation for wrongs to person or movables, at the plaintiff's option, where the wrong was done or where the defendant resides or works. Illustrations: the beating and the defamation.

Section 20: (a) all defendants reside or work; (b) any defendant does, with leave of the court or the others' acquiescence; (c) the cause of action arises wholly or in part. Explanation: a corporation carries on business at its principal office in India, and at a subordinate office for a cause of action arising there.

Test yourself

1. In which court must a suit be instituted, as to value? In the Court of the lowest grade competent to try it, under section 15.

2. Where is a suit for partition of immovable property filed? In the Court within the local limits of whose jurisdiction the property is situate, under section 16(b), subject to pecuniary and other limits.

3. A, living in Delhi, defames B in Calcutta. Where may B sue? Either in Calcutta, where the wrong was done, or in Delhi, where A resides. Section 19 gives the plaintiff the option, and this is the Code's own illustration to that section.

4. State the three limbs of section 20. A suit may be filed where all the defendants actually and voluntarily reside, carry on business or personally work for gain; or where any one of several defendants does so, provided the leave of the Court is given or the other defendants acquiesce; or where the cause of action arises wholly or in part.

5. Where is a company deemed to carry on business? At its sole or principal office in India, and, in respect of a cause of action arising at a place where it also has a subordinate office, at that place.

6. Does it matter where the plaintiff resides? No. Sections 19 and 20 look to the defendant's residence or place of business and to where the cause of action arose. The plaintiff's own residence is not a ground for choosing a court.

7. Immovable property lies within the limits of two different courts. Where may the suit be filed? In any Court within whose local limits any portion of the property is situate, under section 17, provided that in respect of the value of the subject matter the entire claim is cognizable by that Court.

Broken down: three requirements

Each objection under section 21 must clear all three.

One, taken in the court of first instance. Not for the first time on appeal, and not in revision. The trial court is where it belongs, because that is the only stage at which the problem can still be cheaply fixed.

Two, at the earliest possible opportunity, and where issues are settled, at or before their settlement. The settlement of issues is the outer limit. A defendant who lets issues be framed without objection has lost the point.

Three, a consequent failure of justice. The word "consequent" ties it to the defect: the injustice must flow from the case having been tried in that court. Losing is not a failure of justice.

The case everyone misquotes

Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, decided on 14 April 1954.

Facts. The plaintiffs sued for possession of about twelve acres of land together with mesne profits, and valued the suit in the plaint at Rs. 2,950, being Rs. 1,950 for the possession relief and Rs. 1,000 for past mesne profits. The Subordinate Judge at Monghyr dismissed the suit. On that valuation the appeal lay to the District Court, which heard it and dismissed it. On second appeal the High Court's Stamp Reporter found the correct valuation was Rs. 9,980, at which figure the first appeal should have gone to the High Court and not to the District Court. The plaintiffs then argued, for the first time, that the District Court's decree was a nullity because that court had no jurisdiction over an appeal of that value.

Held. The argument failed. A decree passed by a court which would have had no jurisdiction but for an over-valuation or under-valuation is not to be treated as null and void. Section 11 of the Suits Valuation Act 1887 requires an objection based on over-valuation or under-valuation to be shown to have prejudicially affected the disposal of the case on its merits, and the Court held that a mere change of forum is not a prejudice within that provision, nor is an error in a finding of fact. There was no prejudice here, not least because the plaintiffs had themselves chosen the forum by their own valuation. The appeal was dismissed.

Why it matters here. Two reasons, and the second is the one that wins marks.

First, it states the principle that a decree passed by a court without jurisdiction is a nullity whose invalidity can be set up whenever and wherever it is relied on, even in execution and even collaterally, and that such a defect cannot be cured by consent.

Second, and this is where nearly every answer goes wrong, that principle did not decide the case. The Court upheld the decree. A wrong valuation is not the kind of defect that produces a nullity, because the legislature has expressly provided in section 11 of the Suits Valuation Act that it must be shown to have caused prejudice. So Kiran Singh is authority both for the nullity principle and for its limits, and a student who cites it only for the first half is citing it against himself.

The distinction the whole topic rests on

Put simply: subject-matter defects kill a decree, place and value defects do not. Section 21 is about the second column only. Nothing in it saves a decree of a court that never had power over the subject at all.

A worked example

Farhan sues Gopal in the City Civil Court at Mumbai over a contract. The cause of action arose entirely in Pune and Gopal lives and works in Pune, so on sections 16 to 20 the suit belonged in Pune.

Gopal files his written statement, says nothing about it, issues are framed, the trial runs for three years and Gopal loses. On appeal he takes the point for the first time.

He fails, on section 21(1). The objection was not taken in the court of first instance at the earliest opportunity, and certainly not before the settlement of issues. He does not even reach the question of failure of justice.

Change one fact. Suppose Gopal had raised it in his written statement and the court had wrongly rejected it, and suppose that trying the case in Mumbai meant his key witnesses, all elderly and in Pune, could not attend and he lost for want of their evidence. Now both limbs are satisfied: the objection was timely, and there is a failure of justice consequent on the place of suing. The appellate court can act on it.

Change a different fact. Suppose the objection is not about place at all, but that Farhan filed a title suit worth crores in a court of small causes, which cannot try title suits whatever their value. That is an inherent defect of subject-matter jurisdiction. Section 21 has nothing to say about it, the decree is a nullity on Kiran Singh's principle, and Gopal can raise it at any time, even when the decree is put in execution.

And a last one. Suppose Gopal, having lost, files a fresh suit to have the Mumbai decree declared invalid because the suit should have been in Pune. Section 21A bars it in terms.

What it does not mean

Section 21 does not confer jurisdiction on a court that lacks it. It only restricts who may complain, and when. The suit was still in the wrong place; the Code has simply decided that a late complaint is worth less than a finished trial.

"Failure of justice" is not "I lost". It must be a failure consequent on the place, value or local limits.

A decree is not a nullity merely because the value was wrong. That is the actual holding in Kiran Singh, and it is the opposite of what the case is usually quoted for.

Section 21A does not bar an appeal. It bars a separate suit attacking the decree on a place-of-suing ground. The proper route was always an objection in the trial court and then an appeal.

Quick revision

Section 21: an objection as to place of suing (1), pecuniary limits (2), or the local limits of the executing court (3) is allowed by an appellate or revisional court only if it was taken in the court of first instance at the earliest opportunity, and where issues are settled at or before settlement, and there has been a consequent failure of justice. Subsections (2) and (3) came in with the 1976 amendment.

Section 21A: no separate suit to set aside a decree on a place-of-suing ground. "Former suit" means the one decided first, as in Explanation I to section 11.

Kiran Singh v. Chaman Paswan, AIR 1954 SC 340: under-valuation did not make the District Court's decree a nullity, because section 11 of the Suits Valuation Act requires prejudice and a mere change of forum is not prejudice. The nullity principle it states applies to inherent want of jurisdiction, not to valuation.

The line to hold: subject-matter defect equals nullity; place or value defect equals curable.

Test yourself

1. What must a party show to have an objection as to the place of suing allowed on appeal? Two things, under section 21(1): that the objection was taken in the court of first instance at the earliest possible opportunity, and where issues are settled at or before their settlement; and that there has been a failure of justice consequent on it.

2. A decree is passed by a court which, because of an under-valuation, was not competent to hear the appeal. Is the decree a nullity? No. In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, the Supreme Court held that a decree passed by a court which would have had no jurisdiction but for over-valuation or under-valuation is not null and void, because section 11 of the Suits Valuation Act requires the objection to have prejudicially affected the disposal of the case on its merits, and a mere change of forum is not such prejudice.

3. When is a decree a nullity for want of jurisdiction? Where the defect is inherent, that is, where the court had no jurisdiction over the subject matter at all. Such a defect goes to the root of the court's authority, cannot be cured by consent, and can be set up whenever and wherever the decree is relied on, including in execution and in collateral proceedings.

4. What does section 21A bar? A suit 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.

5. Two suits are filed, and the one filed second is decided first. Which is the "former suit" for section 21A? The one decided first. The Explanation to section 21A defines "former suit" as a suit decided prior to the decision in the suit whose decree is questioned, whether or not it was instituted earlier, which is the same rule as Explanation I to section 11.

6. Does section 21 apply to an objection that the court could not try that class of case at all? No. Section 21 covers the place of suing, pecuniary limits, and the local limits of the executing court. An inherent want of subject-matter jurisdiction is outside it, and such a decree is a nullity however late the point is taken.

Three features are worth pulling out.

It is the defendant's section. The plaintiff chose; this is the answer to that choice.

It carries a time limit in the same words as section 21: at the earliest possible opportunity, and where issues are settled, at or before their settlement. The reasoning is identical, and worth carrying over from [Objections to Jurisdiction]: a party who lets the trial run cannot complain about the venue afterwards.

It applies only where the suit could properly have been filed in more than one court. If only one court had jurisdiction, there is no choice to complain about and section 22 has no work to do.

Section 23 then says where that application goes. Where the several competent courts are subordinate to the same appellate court, the application is made to that appellate court. Where they are subordinate to different appellate courts but the same High Court, it goes to the High Court. Where they are subordinate to different High Courts, it goes to the High Court within whose limits the court in which the suit was brought is situated.

Section 24, the general power

Section 24 is much wider and it is the one used in practice.

On the application of any party, after notice and hearing, or of its own motion without such notice, the High Court or the District Court may at any stage transfer any suit, appeal or other proceeding pending before it to any court subordinate to it and competent to try it; or withdraw any suit, appeal or other proceeding pending in any subordinate court and either try it itself, or transfer it to another competent subordinate court, or send it back to the court it came from.

Four things separate section 24 from section 22.

No time limit. "At any stage".

The court may act on its own motion, and without notice, which section 22 does not allow.

It covers appeals and other proceedings, not only suits.

It includes the power to withdraw and to retransfer, so the High Court or District Court can pull a case up, look at it, and send it back.

Where a case has been transferred or withdrawn, the court that is thereafter to try it may, subject to any special directions, either retry it or proceed from the point at which it was taken over.

Section 25, across State lines

Section 24 works downwards within one hierarchy: a High Court can reach its own subordinate courts, a District Court its own. Neither can reach into another State.

That is what section 25 is for. It gives the Supreme Court power to transfer a suit, appeal or other proceeding from a High Court or other civil court in one State to a High Court or other civil court in another State. It is the only route when the two courts sit under different High Courts in different States.

A worked example

Priya, who lives in Mumbai, sues Ravi, who lives in Nagpur, on a contract made in Mumbai and to be performed in Nagpur. On sections 16 to 20 either court will do, and she files in Mumbai.

Ravi wants it moved to Nagpur. His route is section 22. He must apply after notice to Priya, at the earliest possible opportunity, and in any event at or before the settlement of issues. Under section 23, because the Bombay City Civil Court and the Nagpur court are subordinate to the same High Court, the application goes to the High Court.

Ravi does nothing until after issues are framed. He is out of time under section 22. His remaining hope is to persuade the High Court to act under section 24, which has no time limit, but that is a discretion and not an objection he is entitled to press.

A related suit between the same parties is pending before another judge in the same district. Either party, or the District Court itself, can move under section 24 to have the two tried together. No notice is even required if the court acts on its own motion.

Now change the geography. Suppose the second suit is pending in Bengaluru, under the Karnataka High Court. Section 24 cannot reach it, because neither High Court is superior to the other. The only route is section 25, an application to the Supreme Court.

And a caution. Suppose the Mumbai court had no jurisdiction at all. None of these sections is the answer. Transfer assumes jurisdiction; where there is none the plaint is returned under Order VII Rule 10 to be presented to the proper court.

What it does not mean

Transfer does not cure a want of jurisdiction. These sections move a case between courts that could each have tried it.

Section 22 is not available to the plaintiff. He made the choice.

Section 24 is not confined to suits, and unlike section 22 it is not confined to cases where the plaintiff had a choice.

A District Court cannot transfer to another District. Section 24 reaches only courts subordinate to the court exercising the power. Across States, only section 25 will do.

Inconvenience alone is not a ground made out. These are discretionary powers exercised on the balance of convenience and the interests of justice, not on a party's preference.

Quick revision

Section 22: a defendant may apply to transfer where the suit could have been filed in more than one court, at the earliest opportunity and at or before the settlement of issues. Section 23 says where the application goes: same appellate court, that court; different appellate courts under one High Court, the High Court; different High Courts, the High Court where the suit was brought.

Section 24: the High Court or District Court, on application or of its own motion, at any stage, may transfer or withdraw any suit, appeal or proceeding to or from a court subordinate to it, try it itself, or retransfer it. The receiving court may retry or continue from where it stopped.

Section 25: the Supreme Court transfers between States.

None of them cures a want of jurisdiction.

Test yourself

1. A suit could have been filed in either of two courts and was filed in one. Who can apply to move it, and by when? Any defendant, under section 22, after notice to the other parties, at the earliest possible opportunity, and in all cases where issues are settled at or before their settlement.

2. Where is a section 22 application made? Under section 23: to the appellate court where the competent courts are subordinate to the same appellate court; to the High Court where they are subordinate to different appellate courts but the same High Court; and where they are subordinate to different High Courts, to the High Court within whose limits the court in which the suit was brought is situated.

3. Give three ways section 24 is wider than section 22. It may be exercised at any stage rather than only up to the settlement of issues; the court may act on its own motion and without notice; and it covers appeals and other proceedings as well as suits, and includes powers to withdraw, to try the matter itself, and to retransfer.

4. Two connected suits are pending in Mumbai and Bengaluru. Which section moves one to the other, and to which court do you apply? Section 25, and the application is to the Supreme Court, because the two courts are under different High Courts in different States and section 24 reaches only courts subordinate to the transferring court.

5. The court in which the suit was filed had no jurisdiction at all. Is transfer the remedy? No. Sections 22 to 25 presuppose that the court has jurisdiction and are about choosing between competent courts. Where the court has no jurisdiction the plaint is returned under Order VII Rule 10 for presentation to the proper court.

The proof test. Is this a fact the plaintiff must prove, if the defendant denies it, to succeed? Those facts, taken together, are the cause of action.

What it does for you, in four places

This is why the concept is worth real attention.

It decides where you can sue. Section 20(c) allows a suit where the cause of action arises wholly or in part. See [Place of Suing].

It decides what must go into one suit. Order II Rule 1 requires every suit to be framed so far as practicable to afford ground for a final decision on the subjects in dispute and to prevent further litigation about them. Order II Rule 2 then requires the suit to include the whole of the claim arising from that cause of action.

It decides what a second suit may contain. Whatever was omitted from the first is barred. See [Bar to Further Suit].

It decides when time starts. Limitation ordinarily runs from when the cause of action accrues. See [Bar of Limitation and Condonation of Delay].

Joinder of causes of action

Order II Rule 3 provides that a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and plaintiffs jointly interested in causes of action against the same defendant or defendants jointly may unite them in one suit.

Sub-rule (2) adds a practical consequence students forget: where causes of action are united, the jurisdiction of the Court as regards the suit depends on the aggregate value of the subject matters at the date of institution. Join two claims of Rs. 60,000 each and you may have taken the suit out of a court competent to try either of them alone.

So Rule 2 says you must join everything belonging to one cause of action, and Rule 3 says you may join several causes of action. The first is compulsory and its price is losing what you leave out; the second is permissive and its price is that the values add up.

A worked example

Ujjwal lends Vidya Rs. 5,00,000 in March under a written agreement, repayable in June with interest. She does not repay. Separately, in August, Vidya's car damages Ujjwal's compound wall.

What is the cause of action on the loan? The facts Ujjwal must prove: that he lent the money, that there was an agreement to repay by June with interest, and that she has not repaid. Those facts and no others. The agreement being in writing is evidence of the terms, not a separate fact in the bundle.

Where can he sue on it? Section 20: where Vidya resides or works, and where the cause of action arose wholly or in part, which will include where the loan was made and where repayment was due.

Must he claim the interest in the same suit? Yes. Interest under the same agreement is part of the same claim, and the Explanation to Order II Rule 2 deems successive claims under the same obligation to be one cause of action. If he sues only for the principal, the interest is gone. See [Bar to Further Suit].

May he join the wall claim? The damage to the wall is a separate cause of action, arising from different facts entirely. Order II Rule 3 permits him to unite it in the same suit against the same defendant. He is not obliged to.

What if he does join it? By Rule 3(2), the court's jurisdiction is then judged on the aggregate value of both claims. If the loan claim alone was within the limit of a particular court and the two together are not, joining them sends the suit up to a higher court.

And if he sues only on the loan and later sues on the wall? Perfectly good. Order II Rule 2 bars only what belonged to the same cause of action, and these are two.

What it does not mean

A cause of action is not a section of law. It is the facts. Citing the wrong provision does not destroy a suit; failing to plead a necessary fact does.

It is not the evidence. The facts you must prove are the cause of action; the documents and witnesses that prove them are not.

A suit does not begin when the defendant is served. It is instituted on presentation of the plaint, under section 26 and Order IV Rule 1.

Joinder of causes of action is not compulsory. Order II Rule 3 permits it. What is compulsory is including the whole claim on one cause of action, under Rule 2.

Joining claims is not free. Rule 3(2) makes jurisdiction depend on the aggregate value.

Quick revision

Essentials of a suit: opposing parties; a subject matter of a civil nature; a cause of action; and relief claimed.

Section 26 and Order IV Rule 1: every suit is instituted by presenting a plaint. Institution is by presentation, which fixes the date for limitation and for section 10.

Cause of action: the bundle of essential facts the plaintiff must prove, if traversed, to obtain the relief claimed. Not the law, not the evidence.

It governs four things: where you may sue, section 20(c); what one suit must contain, Order II Rules 1 and 2; what a later suit may contain, Order II Rule 2; and when limitation begins.

Order II Rule 3: several causes of action may be united against the same defendant, and jurisdiction then depends on the aggregate value at the date of institution.

Test yourself

1. What are the essentials of a suit? Opposing parties, a subject matter in dispute which is of a civil nature, a cause of action, and relief claimed by the plaintiff.

2. How is a suit instituted? By the presentation of a plaint, or in such other manner as may be prescribed, under section 26 of the Code and Order IV Rule 1.

3. Define cause of action in two sentences. A cause of action is the bundle of essential facts which the plaintiff must prove, if traversed, in order to obtain the relief he claims. It does not include the provisions of law relied on, nor the evidence by which those facts are proved.

4. Name two things that depend on the cause of action. Where the suit may be filed, since section 20(c) allows a suit where the cause of action arises wholly or in part; and what a later suit may contain, since Order II Rule 2 bars any part of the claim on that cause of action which was omitted or relinquished. Limitation and the framing of the suit under Order II Rule 1 also depend on it.

5. May a plaintiff join two unrelated claims against the same defendant in one suit? Yes. Order II Rule 3 permits a plaintiff to unite several causes of action against the same defendant in the same suit. But by Rule 3(2) the jurisdiction of the court as regards the suit then depends on the aggregate value of the subject matters at the date of institution.

6. What is the difference between Order II Rule 2 and Order II Rule 3? Rule 2 is compulsory: a suit must include the whole of the claim arising on one cause of action, and anything omitted is lost. Rule 3 is permissive: several distinct causes of action may be united in one suit, with the consequence that jurisdiction is judged on their aggregate value.

The Code's own illustrations, which are the best explanation of condition five

The rule carries illustrations, and three of them exist purely to teach the "same character" requirement.

A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administration to B's effects. C pays Rs. 1,000 as surety for D. D then sues C for the legacy. C cannot set off the Rs. 1,000, because neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment.

A dies in debt to B. C takes out administration to A's effects and B buys part of the effects from C. In a suit by C against B for the purchase money, B cannot set off the debt, because C fills two different characters, as vendor in this suit and as A's representative in the debt.

A sues B on a bill of exchange. B says A wrongfully failed to insure B's goods and claims compensation as a set-off. The amount not being ascertained cannot be set off. That is condition two.

A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. Both being definite pecuniary demands, they may be set off. That is the rule working as intended.

Legal and equitable set-off

The set-off described in Rule 6 is called legal set-off, and its conditions are the five above.

Courts also recognise equitable set-off, which is not in the rule. It allows a defendant to set off an unascertained sum where the cross-demand arises out of the same transaction, or out of transactions so closely connected that it would be inequitable to make him pay first and sue afterwards. The distinction is a standing exam question, and the table below sets it out.

Counterclaim: Order VIII Rules 6A to 6F

Rule 6A(1) provides that a defendant may, in addition to his right of pleading a set-off under Rule 6, set up by way of counterclaim against the plaintiff's claim any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit, but before the defendant has delivered his defence or before the time limited for delivering it has expired, whether the counterclaim is in the nature of a claim for damages or not. The proviso adds that the counterclaim shall not exceed the pecuniary limits of the court's jurisdiction.

Rule 6A(2): the counterclaim has the same effect as a cross-suit, so the Court can pronounce a final judgment in the same suit on both the claim and the counterclaim.

Rule 6A(3): the plaintiff may file a written statement in answer to the counterclaim within the time the court fixes.

Rule 6A(4): the counterclaim shall be treated as a plaint and governed by the rules applicable to plaints.

The remaining rules complete the machinery.

Rule 6B: a defendant relying on a ground as supporting a counterclaim must state specifically in his written statement that he does so by way of counterclaim.

Rule 6C: where the plaintiff says the counterclaim ought to be tried as an independent suit instead, he may apply, at any time before issues are settled on the counterclaim, for an order excluding it, and the court may make such order as it thinks fit.

Rule 6D, and this is the rule to remember above all the others: if the plaintiff's suit is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with. That is the clearest proof that a counterclaim is a cross-suit and not merely a defence.

Rule 6E: if the plaintiff makes default in replying to the counterclaim, the court may pronounce judgment against him on it.

Rule 6F: where a set-off or counterclaim is established and a balance is found due to either party, the court may give judgment for that balance.

Distinguish: set-off and counterclaim

The one-line test: ask what happens if the plaintiff walks away. A set-off dies with the suit; a counterclaim carries on. That single question answers most exam problems on the pair.

A worked example

Anil sues Bhavna in the City Civil Court for Rs. 80,000, the price of goods delivered in March.

Bhavna is owed Rs. 50,000 by Anil on a promissory note. That is an ascertained sum, legally recoverable, within the court's limits, and both are suing in their own right. She may claim it as a legal set-off under Rule 6, in a written statement at the first hearing. If Anil's claim succeeds in full, the decree will be for the balance of Rs. 30,000, by Rule 6F.

Bhavna instead says the goods were defective and claims Rs. 2,00,000 in damages. That is not ascertained, so it is no legal set-off. But it arises from the same transaction, so she may press it as an equitable set-off, at the court's discretion, and because it exceeds Anil's claim she would in practice raise it as a counterclaim under Rule 6A, which has no ceiling below the court's pecuniary limit and can produce a decree in her favour.

Anil, seeing the counterclaim, withdraws his suit. Rule 6D: the counterclaim may nevertheless be proceeded with. Bhavna's claim is unaffected. Had she pleaded only a set-off, it would have gone with the suit.

Anil says the damages claim is too complicated to be tried here. His route is Rule 6C, an application before issues are settled on the counterclaim, asking the court to exclude it so it can be brought as an independent suit.

Anil ignores the counterclaim entirely. Rule 6E: the court may pronounce judgment against him on it.

Change a fact. Suppose Bhavna's Rs. 50,000 is owed to her not personally but as the executrix of her late father's estate. The "same character" condition in Rule 6 fails, exactly as in the Code's own first illustration, and there is no legal set-off. A counterclaim remains open to her.

What it does not mean

A set-off is not a counterclaim. It cannot exceed the plaintiff's claim and it does not survive the suit.

Legal set-off is not available for unliquidated damages. That is equitable set-off, and it needs the same transaction.

A counterclaim is not merely a defence. Rule 6A(4) treats it as a plaint, so it needs court fee and it is pleaded like a plaint.

A counterclaim is not open indefinitely. The cause of action must accrue before the defendant delivers his defence, or before the time for delivering it expires.

Equitable set-off is not a right. It is allowed at the court's discretion.

Quick revision

Set-off, Order VIII Rule 6. Five conditions: suit for recovery of money; ascertained sum; legally recoverable; within the court's pecuniary limits; both parties in the same character. Pleaded at the first hearing, not later without permission. Has the effect of a plaint in a cross-suit.

Equitable set-off: unascertained sums allowed where the cross-demand arises from the same or a closely connected transaction. Discretionary, and not in the rule.

Counterclaim, Rules 6A to 6F. Any right or claim, damages included, accruing before or after the suit but before the defence is delivered; not exceeding the court's pecuniary limits; treated as a plaint; must be stated specifically as a counterclaim (6B); may be excluded on the plaintiff's application before issues (6C); survives the stay, discontinuance or dismissal of the suit (6D); default by the plaintiff may lead to judgment against him (6E); the court may decree the balance (6F).

The test that settles most problems: if the plaintiff walks away, a set-off dies and a counterclaim lives.

Test yourself

1. State the conditions for a legal set-off. The suit must be for the recovery of money; the sum claimed must be ascertained; it must be legally recoverable from the plaintiff; it must not exceed the pecuniary limits of the court's jurisdiction; and both parties must fill the same character as they fill in the plaintiff's suit. It is claimed by a written statement at the first hearing, and not afterwards without the court's permission.

2. Give two differences between set-off and counterclaim. A set-off is a defence that can only reduce or extinguish the plaintiff's claim, while a counterclaim is a cross-suit which may exceed it and produce a decree for the defendant. And if the plaintiff's suit is stayed, discontinued or dismissed, the set-off falls with it whereas the counterclaim may nevertheless be proceeded with under Order VIII Rule 6D.

3. A defendant claims unliquidated damages arising out of the very transaction sued upon. Can he set it off? Not as a legal set-off, because the sum is not ascertained. He may claim an equitable set-off, which allows an unascertained sum where the cross-demand arises from the same transaction or from closely connected transactions, but that is at the discretion of the court and not a right.

4. When must the cause of action for a counterclaim have accrued? Either before or after the filing of the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.

5. The plaintiff withdraws his suit after a counterclaim is filed. What happens to the counterclaim? It may nevertheless be proceeded with. Order VIII Rule 6D expressly provides that where the plaintiff's suit is stayed, discontinued or dismissed, the counterclaim survives.

6. What must a defendant do to raise a counterclaim properly? He must state specifically in his written statement that he relies on the ground by way of counterclaim, under Rule 6B, and the counterclaim is then treated as a plaint and governed by the rules applicable to plaints under Rule 6A(4).

A proper party is one whose presence helps the court to decide the whole matter completely, but in whose absence a decree can still be made.

Rule 9 provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The proviso, added in 1976, is the whole point: nothing in this rule shall apply to non-joinder of a NECESSARY party.

So the rule and its proviso divide the world in two. Misjoinder never defeats a suit. Non-joinder of a proper party never defeats a suit. Non-joinder of a necessary party does.

The court's power to add and strike out: Rule 10

Rule 10(1) deals with a suit brought in the name of the wrong plaintiff. Where a suit is instituted in the name of the wrong person as plaintiff, or it is doubtful whether it is in the name of the right plaintiff, the Court may at any stage, if satisfied that it was instituted through a bona fide mistake and that substitution is necessary for determining the real matter in dispute, order another person to be substituted or added as plaintiff on such terms as it thinks just.

Note the two conditions: bona fide mistake, and necessity for determining the real dispute. A deliberate choice of the wrong plaintiff is not covered.

Rule 10(2) is the general power. The Court may at any stage, on the application of either party or without any application, order that the name of any party improperly joined be struck out, and that the name of any person who ought to have been joined, or whose presence may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved, be added.

Those last words define the proper party in the Code's own language, and they are worth quoting in an answer.

Rule 10(3): nobody may be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under disability, without his consent.

Rule 10(4): where a defendant is added, the plaint shall be amended and amended copies of the summons and plaint served on the new defendant.

Rule 10(5) matters for limitation: subject to the Limitation Act, proceedings as against a person added as defendant are deemed to have begun only on the service of the summons on him. So adding a defendant late can expose the claim against him to a limitation objection, because time is not measured from the original filing.

Rule 10A allows the Court, in its discretion, to request a pleader to address it on any interest likely to be affected by its decision where the party holding that interest is not represented.

Representative suits: Rule 8

Rule 8(1) provides that where there are numerous persons having the same interest in one suit, one or more of them may, with the permission of the Court, sue or be sued or defend on behalf of or for the benefit of all so interested; and the Court may itself direct that one or more of them do so.

Rule 8(2): in every such case the Court shall, at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service or, where that is not reasonably practicable because of the number of persons or any other cause, by public advertisement.

Rule 8(3): any person on whose behalf the suit is instituted or defended may apply to be made a party.

Rule 8(4) protects the class from being sold out: no part of the claim may be abandoned, no such suit withdrawn, and no agreement, compromise or satisfaction recorded, unless the Court has given notice to all persons interested in the manner of sub-rule (2).

The reason all of this matters beyond Order I is that a decision in a properly constituted representative suit binds the whole class, by Explanation VI to section 11. The safeguards in Rule 8, permission, notice and the bar on quiet compromise, are the price of that binding effect. See [Res Judicata].

Order III: who may appear

Order III deals with recognised agents and pleaders. Any appearance, application or act in a court, unless otherwise expressly provided, may be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting on his behalf. Recognised agents include persons holding powers of attorney to act on behalf of parties, and where a party is not resident within the jurisdiction, persons carrying on trade or business for him within the local limits.

The practical point is that appearing "by pleader" is appearing by a person authorised to act, and the acts of a duly appointed pleader bind the party.

A worked example

A landlord, Praveen, wants possession of a flat. The flat was let to Qadir, who has since sublet part of it to Rina. Praveen sues only Qadir.

Is Rina a necessary party? If Praveen wants a decree for possession that will actually put him back in the flat, then yes: Rina is in possession of part, and no effective decree for possession of that part can be made without her. Her absence is a non-joinder of a necessary party, and by the proviso to Rule 9 the suit can fail for it.

Suppose instead Rina merely visits the flat and claims nothing. She is at best a proper party. Rule 9's main part applies and the suit is not defeated; the court decides as between Praveen and Qadir.

The court notices Rina's absence at the framing of issues. Rule 10(2) lets it add her of its own motion, without any application. The plaint is then amended under Rule 10(4) and amended copies served on her.

Rina is added two years after the suit was filed and pleads limitation. Rule 10(5): as against a person added as defendant, the proceedings are deemed to have begun only on the service of the summons on her. Praveen cannot rely on the original filing date against Rina.

Change the facts entirely. Suppose two hundred flat purchasers in one building have the same complaint against one builder. Rule 8 lets one or a few sue on behalf of all, with the Court's permission and after notice to all of them, personally or by public advertisement. If the representatives later want to settle, Rule 8(4) stops them doing so without fresh notice to the class, and the eventual decision binds every purchaser by Explanation VI to section 11.

What it does not mean

Misjoinder does not defeat a suit. Rule 9 says so expressly, and the answer to a misjoined party is to strike the name out under Rule 10(2).

Non-joinder of a proper party does not defeat a suit either. Only a necessary party, by the proviso to Rule 9.

Rule 10(2) is not confined to applications. The court may act on its own.

Adding a defendant does not backdate the claim against him. Rule 10(5) fixes the start at service of the summons on him.

A representative suit is not a shortcut. Permission, notice and the Rule 8(4) restrictions are conditions, and it is those conditions that justify binding people who never appeared.

Quick revision

Order I Rules 1 and 3: plaintiffs, and defendants, may be joined where the right to relief arises out of the same act or transaction or series of transactions and a common question of law or fact would arise. Both conditions, cumulative.

Rules 2 and 3A: the Court may order separate trials, or put plaintiffs to their election, where joinder would embarrass or delay the trial.

Rule 9: no suit shall be defeated by misjoinder or non-joinder, and the court decides between the parties before it. Proviso: this does not apply to non-joinder of a NECESSARY party.

Rule 10(1): wrong plaintiff may be substituted where the suit was brought by bona fide mistake and substitution is necessary to determine the real dispute. Rule 10(2): the Court may at any stage, with or without an application, strike out a party improperly joined and add anyone who ought to have been joined or whose presence is necessary to enable it effectually and completely to adjudicate on all the questions involved. Rule 10(5): as against an added defendant, proceedings begin only on service of the summons.

Rule 8: representative suits, on the Court's permission or direction, where numerous persons have the same interest; notice to all, personally or by public advertisement; no abandonment, withdrawal or compromise without such notice. The decision binds the class by Explanation VI to section 11.

Order III: a party may act in person, by a recognised agent, or by a pleader.

Test yourself

1. When may several persons be joined as defendants? Under Order I Rule 3, where any right to relief in respect of or arising out of the same act or transaction, or series of acts or transactions, is alleged to exist against them, whether jointly, severally or in the alternative, and where, if separate suits were brought against them, a common question of law or fact would arise. Both conditions must be satisfied.

2. What is the difference between a necessary and a proper party? A necessary party is one in whose absence no effective decree can be passed, so the suit cannot proceed without him. A proper party is one whose presence enables the court to adjudicate completely on all the questions involved, but in whose absence a decree can still be made.

3. Does the omission of a party defeat the suit? Order I Rule 9 provides that no suit shall be defeated by misjoinder or non-joinder of parties, and the court may deal with the matter as regards the parties before it. But the proviso, added in 1976, excepts non-joinder of a necessary party, and such an omission can defeat the suit.

4. Can the court add a party without an application? Yes. Order I Rule 10(2) allows the court, at any stage of the proceedings and either upon or without the application of either party, to strike out a party improperly joined and to add any person who ought to have been joined or whose presence is necessary to enable the court effectually and completely to adjudicate upon all the questions involved.

5. A defendant is added three years into the suit. From when do proceedings against him run? From the service of the summons on him. Order I Rule 10(5) provides that, subject to the Limitation Act, proceedings as against a person added as defendant are deemed to have begun only on service of the summons.

6. What safeguards apply to a representative suit? The court's permission or direction is required under Rule 8(1); notice of the institution of the suit must be given at the plaintiff's expense to all persons interested, personally or by public advertisement, under Rule 8(2); any of them may apply to be made a party under Rule 8(3); and no part of the claim may be abandoned, no such suit withdrawn, and no compromise recorded without notice to all interested persons under Rule 8(4).

Rule 4(1) does the same for a defendant: where one of several defendants dies and the right to sue does not survive against the survivors alone, or a sole or sole surviving defendant dies and the right to sue survives, the Court shall, on an application, cause the legal representative to be made a party and proceed with the suit.

Rule 4(2): a person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

Rule 4(3): where no application is made within the time limited by law, the suit shall abate as against the deceased defendant.

Rule 4(4) is a useful discretion: the Court may, whenever it thinks fit, exempt the plaintiff from substituting the legal representatives of a defendant who failed to file a written statement, or who filed one and then failed to appear and contest at the hearing; and judgment may be pronounced against that defendant notwithstanding his death, with the same force as if it had been pronounced before he died.

So the whole architecture is: the right survives, somebody must apply in time, and if nobody does, the suit abates as to that party.

Marriage and insolvency

Rule 7: the marriage of a female plaintiff or defendant shall not cause the suit to abate, and the suit may notwithstanding be proceeded with to judgment. Where the decree is against a female defendant, it may be executed against her alone. Where the husband is by law liable for the debts of his wife, the decree may, with the leave of the Court, be executed against him also.

Rule 8: the insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors shall not cause the suit to abate, unless the assignee or receiver declines to continue the suit or, where required by the Court, to give security for the costs within the time the Court directs. Where the assignee or receiver neglects or refuses to continue and give security, the defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency, and the Court may make an order dismissing the suit and awarding the defendant the costs he incurred in defending it, to be proved as a debt against the plaintiff's estate.

The pattern is the same in all three. Death, marriage and insolvency do not by themselves end a suit. Something further has to happen, or fail to happen, before it does.

Assignment, and the pleader's duty

Rule 10 deals with assignment, creation or devolution of an interest during the pendency of a suit. In such a case the suit may, by leave of the Court, be continued by or against the person to or upon whom that interest has come or devolved.

Rule 10A places a duty on the lawyer: where a pleader appearing for a party comes to know of that party's death, he shall inform the Court, and the Court shall thereupon give notice of the death to the other party. This exists because the opposite side often has no way of knowing, and the clock for substitution is running.

The consequence of abatement: Rule 9

Rule 9(1): where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

Rule 9(2): the plaintiff, or the person claiming to be the legal representative of a deceased plaintiff, or the assignee or receiver of an insolvent plaintiff, may apply to set aside the abatement or dismissal; and if it is proved that he was prevented by sufficient cause from continuing the suit, the Court shall set it aside on such terms as to costs as it thinks fit.

Rule 9(3): section 5 of the Limitation Act applies to such applications, so delay in making the application can itself be condoned on sufficient cause.

The Explanation preserves something important: nothing in the rule bars, in any later suit, a defence based on the facts which constituted the cause of action in the suit that abated. So abatement bars a fresh suit, but the same facts may still be pleaded defensively.

Compare this with Order IX Rule 9, where a dismissal for the plaintiff's non-appearance likewise bars a fresh suit and likewise has an application to set aside as its only remedy. The Code uses the same device in both places. See [Appearance and Consequences of Non-appearance].

A worked example

Ishaan sues Jyoti and Kabir jointly for possession of land. Two years in, Jyoti dies.

First question: does the right to sue survive? A claim to land plainly survives. Rule 1 therefore means the suit does not abate merely because Jyoti died.

Second question: does it survive against Kabir alone? If the liability was joint and the whole claim can be pursued against Kabir, Rule 2 applies: the Court records the death and the suit proceeds against Kabir. Nothing further is needed.

If it does not survive against Kabir alone, Rule 4(1) applies: on an application, Jyoti's legal representative is brought on the record. Under Rule 4(2) that representative may make any defence appropriate to his character as legal representative, which includes saying the estate has no assets.

Nobody applies within the time limited by law. Rule 4(3): the suit abates as against Jyoti. And under Rule 9(1) no fresh suit may be brought on the same cause of action.

Ishaan says he did not know she had died. Two things help him. Rule 10A obliged Jyoti's pleader, on learning of her death, to inform the Court, which was then to notify the other side. And Rule 9(2) allows him to apply to set aside the abatement on proof that he was prevented by sufficient cause from continuing, with section 5 of the Limitation Act available under Rule 9(3) for delay in making even that application.

Change one fact. Suppose Jyoti had never filed a written statement and had never appeared. Rule 4(4) allows the Court to exempt Ishaan from substituting her representatives altogether, and judgment may be pronounced against her notwithstanding her death.

Change another. Suppose instead of dying Jyoti marries. Rule 7: marriage does not cause the suit to abate, and it proceeds to judgment; a decree against her may be executed against her alone, and against her husband only with the leave of the Court where he is by law liable for her debts.

And another. Suppose Ishaan is adjudged insolvent. Rule 8: the suit does not abate unless the assignee or receiver declines to continue it, or fails to give security for costs when required. Only then may Jyoti and Kabir apply to have it dismissed.

Finally. Suppose Kabir sells his interest in the land during the suit. Rule 10: the suit may, by leave of the Court, be continued against the purchaser to whom the interest has devolved.

What it does not mean

Death does not end a suit. Rule 1: not if the right to sue survives.

Rule 2 requires no application. The Court simply records the death where the right survives to or against the survivors alone.

Abatement is not automatic in the sense of being unavoidable. It follows only from a failure to apply within the time limited by law, and Rule 9(2) allows it to be set aside for sufficient cause.

Abatement does not bar a defence. The Explanation to Rule 9 preserves the same facts as a defence in a later suit; it bars only a fresh suit.

Marriage and insolvency do not abate a suit either, unless the further conditions in Rules 7 and 8 are met.

Quick revision

Rule 1: death does not abate a suit if the right to sue survives. What does not survive is a purely personal action.

Rule 2: where one of several parties dies and the right survives to or against the survivors alone, the Court records the death and the suit proceeds. No application needed.

Rules 3 and 4: where a sole party dies, or the right does not survive to the survivors alone, the legal representative is brought on the record on an application; if none is made within the time limited by law, the suit abates. Rule 4(2): the representative may make any defence appropriate to that character. Rule 4(4): the Court may exempt the plaintiff from substituting the representatives of a defendant who never filed a written statement or never contested.

Rule 7: marriage does not abate a suit. Rule 8: insolvency of a plaintiff does not abate it unless the assignee or receiver declines to continue or to give security.

Rule 10: on assignment or devolution of an interest, the suit may be continued by leave of the Court. Rule 10A: a pleader must inform the Court of his client's death.

Rule 9: abatement or dismissal bars a fresh suit on the same cause of action; it may be set aside on proof that the applicant was prevented by sufficient cause; section 5 of the Limitation Act applies; and the Explanation preserves the same facts as a defence in a later suit.

Test yourself

1. Does a suit abate on the death of a party? Not if the right to sue survives. Order XXII Rule 1 provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives, and abatement follows only where no application to bring the legal representative on the record is made within the time limited by law.

2. One of several defendants dies and the right to sue survives against the others alone. What happens? Under Rule 2 the Court causes an entry to that effect to be made on the record, and the suit proceeds against the surviving defendants. No application for substitution is required.

3. What is the effect of abatement? Under Rule 9(1) no fresh suit may be brought on the same cause of action. The remedy is an application under Rule 9(2) to set aside the abatement, which the Court shall grant if it is proved that the applicant was prevented by sufficient cause from continuing the suit, and section 5 of the Limitation Act applies to such applications.

4. Does abatement prevent the same facts being used later? Not as a defence. The Explanation to Rule 9 provides that nothing in the rule bars, in any later suit, a defence based on the facts which constituted the cause of action in the suit which abated.

5. What is the effect of the marriage of a female party? Under Rule 7 the marriage does not cause the suit to abate and it may be proceeded with to judgment. A decree against a female defendant may be executed against her alone, and where her husband is by law liable for her debts, it may with the leave of the Court be executed against him also.

6. What duty does a pleader have when his client dies? Under Rule 10A, where a pleader appearing for a party comes to know of that party's death he shall inform the Court, and the Court shall give notice of the death to the other party.

Rule 1(2): a defendant may appear (a) in person, (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions.

Rule 1(3): every summons shall be signed by the Judge or an officer he appoints, and sealed with the seal of the Court.

Rule 2: every summons shall be accompanied by a copy of the plaint.

So three time periods sit close together and must be kept apart: thirty days from institution to issue the summons, thirty days from service to file the written statement, and ninety days from service as the outer limit for that written statement.

How a summons is served

The Code gives a ladder of methods, and the higher rungs are used only when the lower ones fail.

Personal service is the norm. Rule 12: service shall, wherever practicable, be made on the defendant in person, unless he has an agent empowered to accept service. Rule 15: where the defendant is absent from his residence at the time of service and there is no likelihood of his being found within a reasonable time, and he has no agent empowered to accept service, service may be made on any adult member of the family, whether male or female, residing with him. An explanation makes clear that a servant is not a member of the family for this purpose.

Rule 16: the person serving the summons shall require the person served to sign an acknowledgement.

Rule 17: where the defendant or his agent refuses to sign the acknowledgement, or cannot be found and there is no agent or other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which he ordinarily resides or carries on business or personally works for gain, and shall report the circumstances.

Rule 19: where the serving officer's return is not verified by affidavit, or where the summons was affixed under Rule 17, the Court shall examine the serving officer on oath, or cause him to be so examined, and may make such further inquiry as it thinks fit, before declaring the summons duly served.

Rule 20, substituted service. Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy in some conspicuous place in the Court-house, and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

Rule 20(1A): where the Court orders service by advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

Rule 20(2), and this is the crucial line: service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

Rule 20(3): where service is substituted, the Court shall fix such time for the appearance of the defendant as the case may require.

Rule 9 allows service by the Court by post, courier, fax, electronic mail or other approved means, and Rule 9A allows the Court to permit the plaintiff to effect service in addition.

Section 28 and Rule 21 deal with a defendant residing outside the jurisdiction: the summons may be sent to the court within whose jurisdiction he resides, which proceeds as if it had issued the summons itself and returns it with the record of its proceedings.

A worked example

Lata presents her plaint on 1 March.

When must the summons issue? Under section 27, on a day not beyond thirty days from the institution of the suit, so by about 31 March. It must be signed by the Judge or his appointed officer, sealed, and accompanied by a copy of the plaint under Rule 2.

The summons requires what of the defendant? To appear and answer the claim, and to file his written statement within thirty days from the date of service, extendable for reasons recorded but not beyond ninety days from service.

The process server finds the defendant absent, and hands the summons to his adult daughter living with him. Good service under Rule 15, provided the defendant was absent, there was no likelihood of finding him within a reasonable time, and he had no agent empowered to accept service. Had the server handed it to a servant, it would not be good service, because the explanation to Rule 15 excludes servants from "member of the family".

The defendant refuses to sign. Rule 17 applies: the server affixes a copy on a conspicuous part of the house and reports the circumstances, and under Rule 19 the Court examines him on oath before holding the summons duly served.

The defendant is deliberately avoiding service. Rule 20 applies: the Court shall order substituted service, by affixing a copy at the Court-house and on the house where he last resided, or in such other manner as it thinks fit, which may include newspaper advertisement in a daily paper circulating in the locality where he was last known to reside.

He later says he never actually saw it. Rule 20(2) answers him: substituted service ordered by the Court is as effectual as personal service. That, and not any fiction about actual knowledge, is what allows the suit to proceed. Compare the second proviso to Order IX Rule 13, where an ex parte decree will not be set aside merely for an irregularity in service if the defendant in fact had notice and time. See [Appearance and Consequences of Non-appearance].

The defendant lives in another State. Section 28 and Rule 21: the summons may be sent to the court there, which serves it and returns it with the record of its proceedings.

What it does not mean

A plaint is not duly instituted merely by handing it in. Order IV Rule 1(3) requires compliance with Orders VI and VII.

A summons is not a formality. It is the instrument by which the Court acquires the defendant before it, and defective service is what produces ex parte decrees that are later set aside.

A servant is not a member of the family for the purposes of Rule 15.

Substituted service is not second-class service. Rule 20(2) makes it as effectual as personal service.

Newspaper advertisement is not at large. Rule 20(1A) requires a daily newspaper circulating in the locality where the defendant was last known to reside, carry on business or work for gain.

Quick revision

Section 26 and Order IV Rule 1: a suit is instituted by presenting a plaint, in duplicate, complying with Orders VI and VII; otherwise it is not duly instituted. Facts in the plaint are proved by affidavit. Order IV Rule 2: entered in the register of civil suits, numbered yearly in order of admission.

Section 27: the summons is issued on a day not beyond thirty days from institution. Order V Rule 1: it requires the defendant to appear, answer, and file his written statement within thirty days of service, extendable for reasons recorded to ninety days. No summons where the defendant appeared at presentation and admitted the claim. Signed by the Judge and sealed; accompanied by a copy of the plaint.

Service: personally wherever practicable, Rule 12; on an adult member of the family residing with him where he is absent, Rule 15, a servant not being a member of the family; acknowledgement signed, Rule 16; affixation on refusal or where he cannot be found, Rule 17; the serving officer examined on oath, Rule 19.

Substituted service, Rule 20: where the defendant is keeping out of the way to avoid service or service cannot be made in the ordinary way, by affixing at the Court-house and on his last known house, or otherwise as the Court thinks fit; newspaper advertisement must be in a daily paper circulating in the locality; and such service is as effectual as personal service.

Section 28 and Rule 21: a defendant in another State is served through the court there.

Test yourself

1. How is a suit instituted? By the presentation of a plaint, or in such other manner as may be prescribed, under section 26 and Order IV Rule 1. The plaint must be presented in duplicate and must comply with Orders VI and VII, failing which the suit is not deemed duly instituted.

2. Within what time must a summons be issued? On a day not beyond thirty days from the date of the institution of the suit, under section 27.

3. What must the summons require of 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, extendable by the Court for reasons recorded in writing but not later than ninety days from service.

4. On whom may a summons be served if the defendant is absent? Under Order V Rule 15, on any adult member of his family, whether male or female, residing with him, where he is absent from his residence at the time of service, there is no likelihood of his being found within a reasonable time, and he has no agent empowered to accept service. A servant is not a member of the family for this purpose.

5. What is substituted service, and when is it ordered? Service ordered by the Court under Order V Rule 20 where it is satisfied that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. It is effected by affixing a copy in a conspicuous place in the Court-house and on a conspicuous part of the house where the defendant last resided, carried on business or worked for gain, or in such other manner as the Court thinks fit, including advertisement in a daily newspaper circulating in that locality.

6. What is the effect of substituted service? Under Order V Rule 20(2) it is as effectual as if service had been made on the defendant personally.

7. When is no summons issued at all? Under the first proviso to Order V Rule 1(1), where the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim.

Rule 2(3): dates, sums and numbers shall be expressed in figures as well as in words.

These look trivial and they are not. Numbered paragraphs are what make it possible for a written statement to answer a plaint line by line, and for a court to frame an issue by reference. Figures and words together is an anti-tampering rule: a figure alone can be altered by a stroke of a pen.

Rule 3: the forms in Appendix A, where applicable, and where not applicable forms of the like character, shall be used for all pleadings.

Rule 3A, inserted for commercial disputes, provides that where forms of pleadings have been prescribed under High Court Rules or Practice Directions for commercial disputes, pleadings shall be in those forms.

Rule 4: when particulars must be given

Rule 4 provides that in all cases in which the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases where particulars are necessary beyond those exemplified in the forms, particulars, with dates and items if necessary, shall be stated in the pleading.

Learn that list of five. The common thread is that each is an allegation against a person's honesty or good faith, and it is unjust to make such a charge in general terms and then look for the details later. "The defendant acted fraudulently" pleads nothing. The rule requires the plaintiff to say what was said, by whom, when, and what was thereby obtained.

Rule 17: amendment of pleadings

Rule 17 provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

The proviso, and this is the part that carries marks: no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial.

So the rule has two halves and they pull in opposite directions. The main part is generous, because the object of a trial is to decide the real dispute and not to punish a drafting error. The proviso is strict, because once the trial has begun an amendment can destroy the other side's preparation. Due diligence is the test, and the burden is on the party seeking to amend.

Rule 18 completes it: a party who obtains leave to amend and does not amend within the time fixed, or within fourteen days if no time was fixed, shall not be permitted to amend afterwards unless the Court extends the time.

A worked example

Yash sues Zoya for the price of machinery, pleading that he delivered it in April and she has not paid.

Zoya's answer is that the machinery never worked. That must be pleaded as a fact in her written statement. If she leads evidence about it without pleading it, the court can refuse to look at it, because no issue arises on an unpleaded fact.

Yash's draft says: "The defendant is a dishonest person who has cheated the plaintiff by fraud." That fails Rule 4. Fraud must be particularised: what representation was made, by whom, when, and what was obtained by it. A general charge of fraud pleads nothing and can be struck out.

Yash's draft also says: "The plaintiff will rely on the delivery challan dated 12 April and on the testimony of his storekeeper." That fails Rule 2(1). The delivery is a material fact and belongs in the pleading; the challan and the storekeeper are the evidence of it and do not.

Yash writes the price as "Rs. 4,50,000". Rule 2(3) requires it in figures and in words.

Half way through the trial Yash discovers a second agreement varying the price. He applies to amend. The proviso to Rule 17 bites: the trial has commenced, so he must satisfy the court that despite due diligence he could not have raised it earlier. If the document was in his own file all along, he will fail.

The court allows the amendment but Yash does nothing for a month. Rule 18: no time having been fixed, he had fourteen days, and he may not amend now unless the court extends the time.

What it does not mean

A pleading is not an affidavit or an application. Rule 1 confines the word to the plaint and the written statement.

"Material facts, not evidence" does not mean bare assertion. Where Rule 4 applies, particulars with dates and items are part of the material facts.

Pleading the wrong section is not fatal. Facts are pleaded, law is argued.

Amendment is not available for the asking after trial begins. The proviso to Rule 17 requires due diligence to be shown.

Leave to amend does not last indefinitely. Rule 18 gives fourteen days if the order fixes no time.

Quick revision

Order VI Rule 1: a pleading means a plaint or a written statement, and nothing else.

Rule 2(1): material facts, concisely, and only those; not the evidence by which they are proved. Facta probanda, not facta probantia. Rule 2(2): numbered paragraphs, one allegation each so far as convenient. Rule 2(3): dates, sums and numbers in figures and in words.

Rule 3: the forms in Appendix A. Rule 3A: prescribed forms in commercial disputes.

Rule 4: particulars, with dates and items, must be given for misrepresentation, fraud, breach of trust, wilful default and undue influence, and wherever else particulars are necessary.

Rule 17: amendment at any stage, as necessary to determine the real questions in controversy; but not after the trial has commenced unless, despite due diligence, the party could not have raised the matter earlier.

Rule 18: amend within the time fixed, or fourteen days if none is fixed.

Test yourself

1. What is a pleading? Under Order VI Rule 1, a pleading means a plaint or a written statement.

2. State the rule in Order VI Rule 2 in two sentences. Every pleading shall contain, and contain only, a statement in concise form of the material facts on which the party relies for his claim or defence, but not the evidence by which those facts are to be proved. Pleadings must be divided into consecutively numbered paragraphs, and dates, sums and numbers must be expressed in figures as well as in words.

3. Give the difference between material facts and evidence, with an example. Material facts are the facts a party must establish to succeed, and evidence is the means by which they are established. That goods were delivered on a given date and were defective is a material fact and must be pleaded; the delivery challan and the storekeeper who will speak to it are evidence and must not be.

4. In which cases must particulars be pleaded? Under Order VI Rule 4, in all cases where the party relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases where particulars are necessary beyond those exemplified in the forms. Particulars must include dates and items where necessary.

5. Can pleadings be amended after the trial has begun? Only exceptionally. Order VI Rule 17 allows amendment at any stage as may be necessary to determine the real questions in controversy, but its proviso bars an application made after the commencement of trial unless the Court concludes that in spite of due diligence the party could not have raised the matter before trial began.

6. A party obtains leave to amend and the order fixes no time. How long has he? Fourteen days from the date of the order, under Order VI Rule 18, after which he may not amend unless the Court extends the time.

A specimen plaint

Written from Rule 1, item by item, so the shape of the document is visible. The bracketed notes are ours and would not appear in a real plaint.

IN THE CITY CIVIL COURT AT BOMBAY

[item (a), the name of the Court]

S. C. Suit No. ____ of 2026

Meera Deshpande, aged 34 years, occupation business,

residing at 12 Sahyadri Apartments, Thane West, Thane 400601

... Plaintiff

[item (b), name, description and place of residence]

versus

Nilesh Kulkarni, aged 41 years, occupation trader,

residing at 8 Gokhale Road, Nashik 422001

... Defendant

[item (c), the same for the defendant, so far as ascertainable]

PLAINT

1. The Plaintiff is a dealer in industrial fittings and the Defendant is a trader carrying on business at Nashik.

2. By an agreement made at Mumbai on 4 March 2026, the Defendant agreed to sell and deliver to the Plaintiff 200 units of brass valves for a total price of Rs. 4,50,000 (Rupees Four Lakh Fifty Thousand only), delivery to be made at Pune on or before 30 April 2026, the price being paid in advance at Mumbai.

[item (e), the facts constituting the cause of action, with dates and with the sum in figures and words as Order VI Rule 2(3) requires]

3. The Plaintiff paid the said sum of Rs. 4,50,000 (Rupees Four Lakh Fifty Thousand only) to the Defendant at Mumbai on 6 March 2026.

4. The Defendant has failed and neglected to deliver the said goods or any part of them. The Plaintiff called upon the Defendant to deliver or to refund by notice dated 15 May 2026, to which the Defendant has not replied.

5. The cause of action arose on 30 April 2026, when the Defendant failed to deliver, and continued thereafter.

[item (e), second limb, when the cause of action arose]

6. The agreement was made at Mumbai and the price was payable at Mumbai, and the cause of action has therefore arisen, wholly or in part, within the local limits of the jurisdiction of this Hon'ble Court. This Hon'ble Court has pecuniary jurisdiction to try this suit.

[item (f), the facts showing jurisdiction, not a bare assertion]

7. The Plaintiff values the suit for the purposes of jurisdiction and of court fees at Rs. 4,50,000 and has paid court fees accordingly.

[item (i)]

8. The Plaintiff has neither allowed any set-off nor relinquished any portion of his claim.

[item (h)]

9. The Plaintiff therefore prays that this Hon'ble Court be pleased:

(a) to direct the Defendant to pay to the Plaintiff the sum of Rs. 4,50,000 with interest thereon at such rate and for such period as this Hon'ble Court deems fit;

(b) to award costs of this suit;

(c) to grant such further and other relief as the nature and circumstances of the case may require.

[item (g), the relief claimed]

Mumbai

Dated this ___ day of _____ 2026

Plaintiff

Advocate for the Plaintiff

Notice what is not in it. No law is cited. No evidence is described. No mention of the delivery challan or of who will give evidence. That is Order VI Rule 2 doing its work: material facts, and only those.

Return of the plaint: Rule 10

Rule 10(1): subject to Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. The Explanation declares that a Court of appeal or revision may direct the return of the plaint after setting aside the decree.

Rule 10(2): on returning a plaint the Judge shall endorse on it the date of its presentation and of its return, the name of the party presenting it, and a brief statement of the reasons for returning it.

Rule 10A softens the practical consequence. Where the defendant has already appeared and the Court thinks the plaint should be returned, it must first intimate its decision to the plaintiff. The plaintiff may then apply naming the court he proposes to go to and asking the Court to fix a date for the parties' appearance there. Where it does so, the receiving court need not serve a fresh summons, because the notice of the date operates as one.

The point of Rule 10A is to stop a plaintiff losing the defendant's attendance and starting again from nothing merely because the first court was the wrong one.

Rejection of the plaint: Rule 11

Rule 11 provides that the plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action (b) where the relief claimed is undervalued and the plaintiff, required by the Court to correct the valuation within a fixed time, fails to do so (c) where the relief is properly valued but the plaint is written on insufficiently stamped paper and the plaintiff, required to supply the stamp paper within a fixed time, fails to do so (d) where the suit appears from the statement in the plaint to be barred by any law (e) where it is not filed in duplicate (f) where the plaintiff fails to comply with Rule 9

The proviso provides that time fixed for correcting the valuation or supplying stamp paper shall not be extended unless the Court, for reasons recorded, is satisfied that the plaintiff was prevented by a cause of an exceptional nature and that refusing an extension would cause grave injustice.

The three words that decide most questions on Rule 11

"Shall". Rejection is not discretionary. Once a ground is made out the plaint must be rejected.

"From the statement in the plaint". Clause (d) is confined to what appears on the face of the plaint. The court does not look at the written statement, at documents filed by the defendant, or at the record of some other case. That is why a plea of res judicata cannot be decided under Rule 11(d): establishing it requires the pleadings, issues and judgment of the earlier suit, none of which is part of this plaint. The authority is in [Res Judicata].

"Cause of action" in clause (a) means the plaint, read as a whole and taken at its highest, discloses no right to sue. It is not an occasion to weigh whether the plaintiff will succeed.

Return against rejection

That fourth row is the highest-yield line in this chapter, and it comes from [Definitions]: because rejection is deemed a decree, an appeal lies from it as of right.

What it does not mean

Rejection is not dismissal of the suit on the merits. Rule 13 preserves the right to present a fresh plaint on the same cause of action, so a rejected plaint is not res judicata.

Return is not a punishment. It presupposes a court that lacks jurisdiction, and Rule 10A exists to make the move as painless as possible.

Rule 11(d) is not a general shortcut. It works only where the bar appears from the plaint itself.

Item (f) of Rule 1 is not satisfied by asserting jurisdiction. The facts showing it must be pleaded.

A plaint is not an argument. Order VI Rule 2 governs it: material facts, not evidence, not law.

Quick revision

Order VII Rule 1, nine particulars: the Court; the plaintiff; the defendant; a statement where either is a minor or of unsound mind; the facts constituting the cause of action and when it arose; the facts showing jurisdiction; the relief claimed; any set-off allowed or claim relinquished; and the value for jurisdiction and court fees.

Rule 2: money suits state the precise amount; mesne profits, unsettled accounts, movables in the defendant's possession, and debts of unascertainable value are stated approximately.

Rule 10: the plaint is returned at any stage to be presented to the proper court, with the judge's endorsement of dates, the party and the reasons. Rule 10A: where the defendant has appeared, the court intimates first and may fix a date of appearance in the new court, which then serves as the summons.

Rule 11: the plaint shall be rejected where it discloses no cause of action; on failure to correct an undervaluation; on failure to supply stamp paper; where the suit appears from the statement in the plaint to be barred by any law; where it is not filed in duplicate; and on failure to comply with Rule 9.

Rejection is a decree under section 2(2) and is appealable as one, but a fresh plaint may still be presented under Rule 13.

Test yourself

1. What must a plaint contain? The nine particulars in Order VII Rule 1: the name of the court; the name, description and residence of the plaintiff and of the defendant; a statement where either is a minor or of unsound mind; the facts constituting the cause of action and when it arose; the facts showing the court has jurisdiction; the relief claimed; any set-off allowed or portion of the claim relinquished; and a statement of the value of the subject matter for jurisdiction and court fees.

2. On what grounds shall a plaint be rejected? Where it discloses no cause of action; where the relief is undervalued and the plaintiff fails to correct it in the time fixed; where it is insufficiently stamped and he fails to supply the stamp paper in the time fixed; where the suit appears from the statement in the plaint to be barred by any law; where it is not filed in duplicate; and where the plaintiff fails to comply with Rule 9.

3. Is an order rejecting a plaint appealable? Yes. Section 2(2) deems the rejection of a plaint to be a decree, and a decree is appealable.

4. Can a plaintiff whose plaint has been rejected sue again on the same cause of action? Yes. Order VII Rule 13 preserves the right to present a fresh plaint on the same cause of action, so rejection does not operate as res judicata.

5. What is the difference between return and rejection of a plaint? Return under Rule 10 happens because the suit was filed in the wrong court, and the same plaint is handed back for presentation to the proper court. Rejection under Rule 11 is for a defect in the plaint itself, and it is deemed to be a decree under section 2(2), although a fresh plaint may still be filed.

6. Can the court reject a plaint under Rule 11(d) by looking at the written statement? No. Clause (d) applies only where the suit appears to be barred from the statement in the plaint, so the court is confined to the plaint itself and cannot decide the question on the defendant's material.

Rule 2: what must be specially pleaded

Rule 2 provides that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint. The rule then gives examples: fraud, limitation, release, payment, performance, or facts showing illegality.

Two things follow.

Those six examples are a list worth memorising, because they are the ones an examiner asks for. Fraud, limitation, release, payment, performance, illegality.

The test behind them is surprise. Any defence that would ambush the plaintiff, or that introduces facts the plaint never touched, must be pleaded. A defendant who wants to say the claim is time barred cannot spring it in argument; limitation is expressly named.

Rule 3: denial must be specific

Rule 3 provides that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiff. He must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

The exception for damages is small but examinable: a defendant is not required to traverse the quantum of damages allegation by allegation, because damages are for the court to assess.

Rule 3A, which applies to suits before a Commercial Division or a Commercial Court, prescribes the manner of denial in detail. The defendant must state which allegations he denies, which he is unable to admit or deny but requires the plaintiff to prove, and which he admits. Where he denies a fact he must state his reasons, and if he intends to put forward a different version of events he must state his own version. If he disputes jurisdiction he must give reasons and, if able, say which court ought to have it. If he disputes the valuation he must give reasons and, if able, his own valuation.

Rule 3A is worth reading even for an ordinary suit, because it spells out what "specific" has always meant.

Rules 4 and 5: evasive denial, and the consequence of silence

Rule 4 deals with evasive denial. Where a defendant denies an allegation of fact, he must not do so evasively but must answer the point of substance. The Code's own examples make the point: if it is alleged that he received a certain sum, it is not enough to deny that he received that particular amount, but he must deny that he received that sum or any part of it, or set out how much he did receive.

Rule 5 supplies the sanction. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted, except as against a person under disability. The Court retains a discretion to require any fact so admitted to be proved otherwise than by such admission.

So the chain runs: plead specifically (Rule 3), do not be evasive (Rule 4), and if you fail, it is admitted (Rule 5).

A specimen written statement

Drafted as the answer to the specimen plaint in [The Plaint]. Note how it tracks the plaint paragraph by paragraph, which is exactly what Order VI Rule 2(2)'s numbered paragraphs make possible.

IN THE CITY CIVIL COURT AT BOMBAY

S. C. Suit No. ____ of 2026

Meera Deshpande ... Plaintiff

versus

Nilesh Kulkarni ... Defendant

WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT

1. With reference to paragraph 1 of the plaint, the Defendant admits that the Plaintiff is a dealer in industrial fittings and that the Defendant is a trader carrying on business at Nashik.

[Rule 3, admissions stated as admissions, so no evidence is needed on them]

2. With reference to paragraph 2, the Defendant admits that an agreement was made at Mumbai on 4 March 2026 for the supply of 200 units of brass valves at a total price of Rs. 4,50,000 (Rupees Four Lakh Fifty Thousand only). The Defendant denies that delivery was to be made on or before 30 April 2026, and says that the agreed date of delivery was 30 June 2026, as recorded in the Defendant's letter dated 5 March 2026, which is produced with this Written Statement.

[Rule 3A's discipline: deny, give the reason, and state the Defendant's own version. Rule 1A: the document is produced with the Written Statement.]

3. With reference to paragraph 3, the Defendant admits receipt of Rs. 4,50,000 at Mumbai on 6 March 2026.

[Rule 4: the point of substance answered, not evaded]

4. With reference to paragraph 4, the Defendant denies that he has failed or neglected to deliver the goods. The Defendant says that he tendered delivery at Pune on 28 June 2026 and that the Plaintiff refused to take delivery. The Defendant admits receipt of the notice dated 15 May 2026 and says that it was premature.

5. With reference to paragraph 5, the Defendant denies that any cause of action arose on 30 April 2026 or at all.

6. Without prejudice to the above, the Defendant says that the suit is barred by limitation, and further says that the Plaintiff has released the Defendant from the said claim by his letter dated 2 August 2026.

[Rule 2: limitation and release are among the six matters that must be specially pleaded, or they are lost]

7. Save as expressly admitted above, the Defendant denies each and every allegation contained in the plaint as if the same were set out herein and traversed seriatim.

[Note: a general traverse of this kind is customary and is NOT a substitute for the specific denials above. Standing alone it would fail Rule 3, and everything would be admitted under Rule 5.]

8. The Defendant therefore prays that the suit be dismissed with costs.

Nashik

Dated this ___ day of ______ 2026

Defendant

Advocate for the Defendant

A worked example

Take that written statement and change one thing at a time.

Suppose paragraph 2 had said only "the contents of paragraph 2 are denied". That is a general denial, not a specific one. Under Rule 3 it is insufficient, and under Rule 5 the allegations in that paragraph could be taken as admitted. The delivery date would then be 30 April 2026, and the defence collapses.

Suppose the defendant had not pleaded limitation at all and raised it in argument. Rule 2 names limitation expressly among the matters that must be raised by the pleading. Unpleaded, it takes the plaintiff by surprise, and the court can decline to try it because no issue arises.

Suppose the defendant said "I did not receive Rs. 4,50,000". Under Rule 4 that is evasive if he in fact received a smaller sum. He must deny receiving that sum or any part of it, or state how much he did receive.

Suppose he files on the ninety-fifth day after service in an ordinary suit. The outer limit under the ordinary proviso to Rule 1 is ninety days.

Suppose the same delay in a commercial dispute of a specified value. He is within the one hundred and twenty day limit, but he needs reasons recorded and must pay such costs as the court thinks fit. Had he filed on the one hundred and twenty-first day, he would have forfeited the right and the court could not take it on record at all.

What it does not mean

A general traverse is not a defence. It is customary as a closing paragraph and it does not satisfy Rule 3.

Silence is not neutrality. Under Rule 5 an allegation not specifically denied or stated to be not admitted is taken to be admitted.

Rule 5 is not absolute. It does not operate against a person under disability, and the court may still require an admitted fact to be proved.

The ninety-day limit is not universal. Commercial disputes of a specified value run to one hundred and twenty days, with forfeiture after.

Damages are the exception to specific denial, under Rule 3.

Quick revision

Order VIII Rule 1: written statement within 30 days of service; extension for reasons recorded up to 90 days in an ordinary suit; in a commercial dispute of a specified value, for reasons and costs, up to 120 days, after which the right is forfeited and the court shall not take it on record.

Rule 1A: documents relied on are listed and produced with the written statement; where not in the defendant's power, he states whose they are.

Rule 2: matters that must be specially pleaded, being anything showing the suit not maintainable, that the transaction is void or voidable, or that would surprise the plaintiff or raise facts not arising out of the plaint. The six named examples: fraud, limitation, release, payment, performance, illegality.

Rule 3: denial must be specific, allegation by allegation, except damages. Rule 3A prescribes the manner of denial in commercial matters: deny, be unable to admit, or admit; give reasons; give your own version; give reasons on jurisdiction and on valuation.

Rule 4: no evasive denial; answer the point of substance.

Rule 5: what is not specifically denied or stated to be not admitted is taken to be admitted, except against a person under disability, and the court may still require proof.

Test yourself

1. Within what time must a written statement be filed? Within thirty days from the date of service of the summons. The court may allow a later day for reasons recorded in writing, but not later than ninety days from service in an ordinary suit; and in a commercial dispute of a specified value, for reasons recorded and on payment of costs, not later than one hundred and twenty days, after which the defendant forfeits the right and the court shall not take the written statement on record.

2. What must be specially pleaded in a written statement? All matters showing the suit not to be maintainable, or that the transaction is void or voidable in point of law, and all grounds of defence which if not raised would be likely to take the plaintiff by surprise or would raise issues of fact not arising out of the plaint. The rule names fraud, limitation, release, payment, performance and facts showing illegality as examples.

3. Is a general denial of the whole plaint sufficient? No. Order VIII Rule 3 provides that it is not sufficient to deny generally the grounds alleged, and the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

4. What happens to an allegation the defendant does not deal with? Under Order VIII Rule 5 it is taken to be admitted, unless it is not specifically denied or stated to be not admitted, except as against a person under disability. The court may nevertheless require any fact so admitted to be proved otherwise than by the admission.

5. What is an evasive denial, with an example? A denial that avoids the substance of the allegation. Under Rule 4, where the plaintiff alleges receipt of a certain sum, it is not enough for the defendant to deny that he received that particular amount; he must deny receiving that sum or any part of it, or state how much he did receive.

6. What must a defendant do with documents he relies on? Under Rule 1A he must enter them in a list and produce them in court when the written statement is presented, delivering the document and a copy to be filed with it, and where a document is not in his possession or power he must, wherever possible, state in whose possession or power it is.

Only the defendant appears: Rule 8

Rule 8 provides that where the defendant appears and the plaintiff does not, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part of it, in which case the Court shall pass a decree against the defendant upon that admission, and where only part is admitted, shall dismiss the suit as to the remainder.

The exception is neat and often missed: a defendant who turns up and admits the claim gets a decree passed against himself even though the plaintiff never appeared. The court does not dismiss a claim the defendant accepts.

The consequence that catches people: Rule 9

Rule 9(1) provides that where a suit is wholly or partly dismissed under Rule 8, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. But he may apply to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance, the Court shall set the dismissal aside on such terms as to costs as it thinks fit and appoint a day for proceeding with the suit.

Rule 9(2): no such order shall be made unless notice of the application has been served on the opposite party.

This is where Order IX meets the definitions. A dismissal for default is expressly excluded from the definition of a decree by section 2(2), so there is nothing to appeal. The plaintiff's only route is the application under Rule 9, and if he does not take it, Rule 9(1) bars a fresh suit on the same cause of action. See [Definitions].

Distinguish this bar from res judicata: it is not that the matter was decided, because nothing was decided. It is a separate statutory preclusion attached to the plaintiff's own absence. See [Res Judicata], condition five.

Neither party appears, and the service defaults: Rules 2 to 5

Rule 3: where neither party appears when the suit is called on, the Court may dismiss it.

Rule 4: where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may, subject to the law of limitation, bring a fresh suit; or he may apply to set the dismissal aside, and on proof of sufficient cause the Court shall set it aside and appoint a day for proceeding.

Compare that with Rule 9 and the difference is sharp. After a Rule 3 dismissal a fresh suit is expressly allowed; after a Rule 8 dismissal it is barred. The reason is that a Rule 8 dismissal happens when the defendant did attend and the plaintiff did not, so the defendant's wasted attendance is the thing being protected.

Rule 2 allows dismissal where the summons was not served because the plaintiff failed to pay the court fee or postal charges, or to present copies of the plaint under Order VII Rule 9, with a proviso that no such order shall be made if the defendant nevertheless attends.

Rule 5 deals with a summons returned unserved: if the plaintiff fails for seven days from the return to apply for a fresh summons, the Court shall dismiss the suit as against that defendant, unless the plaintiff satisfies the Court that he failed despite his best endeavours to discover the defendant's residence, or that the defendant is avoiding service, or that there is other sufficient cause.

Setting aside an ex parte decree: Rule 13

Rule 13 provides that where a decree is passed ex parte against a defendant, he may apply to the Court which passed it to set it aside. If he satisfies the Court either that the summons was not duly served, or that he was prevented by sufficient cause from appearing, the Court shall set the decree aside as against him, on such terms as to costs, payment into court or otherwise as it thinks fit, and appoint a day for proceeding with the suit.

Three qualifications follow, and each is examinable.

First proviso: where the decree is of such a nature that it cannot be set aside against that defendant only, it may be set aside as against all or any of the other defendants also.

Second proviso: no Court shall set aside an ex parte decree merely on the ground of an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer. So the question is substance, not form: did he actually know in time.

Explanation: where there has been an appeal against the ex parte decree and the appeal has been disposed of on any ground other than the appellant's withdrawal of it, no application lies under Rule 13. A defendant must therefore choose his route, because appealing and losing shuts this door.

Rule 9 against Rule 13

These are the two remedies and students mix them constantly.

A worked example

Sunil sues Tara. The summons is issued and the suit is called on for hearing.

Tara does not appear and the summons was duly served. Rule 6(1)(a): the court may order the suit to be heard ex parte. If it does and a decree follows, Tara's remedy is Rule 13.

Tara does not appear and service is not proved. Rule 6(1)(b): no ex parte hearing. The court shall direct a second summons.

Tara was served, but only the evening before. Rule 6(1)(c): the hearing is postponed and notice of the new date given to her. If the delay was Sunil's fault, Rule 6(2) makes him pay the costs of the postponement.

Sunil does not appear and Tara does. Rule 8: the suit shall be dismissed. But if Tara says she admits owing half the sum, the court passes a decree against her on that admission and dismisses the rest.

Sunil then wants to sue again on the same claim. Rule 9(1) bars a fresh suit. His only route is an application to set the dismissal aside on sufficient cause, with notice to Tara under Rule 9(2). He cannot appeal, because a dismissal for default is not a decree under section 2(2).

An ex parte decree is passed against Tara and she says the summons went to her old address. Rule 13 applies. But if the court is satisfied she in fact had notice of the hearing date and time to answer, the second proviso stops her relying on the irregularity in service.

Tara instead appeals the ex parte decree and the appeal is dismissed on the merits. The Explanation to Rule 13 now bars an application to set the decree aside. Had she withdrawn the appeal instead, the door would still be open.

What it does not mean

Non-appearance is not a decision on the merits. Everything in this Order is reversible on sufficient cause.

A dismissal for default is not a decree, by section 2(2), so it is not appealable. The remedy is an application.

Rule 9's bar is not res judicata. Nothing was decided; it is a separate statutory preclusion.

A Rule 3 dismissal does not bar a fresh suit. Rule 4 expressly allows one, subject to limitation. Only a Rule 8 dismissal attracts the Rule 9 bar.

An irregularity in service does not automatically set aside an ex parte decree. The second proviso to Rule 13 asks whether the defendant in fact had notice and time.

Quick revision

Four combinations: neither appears, Rule 3, suit may be dismissed; only the plaintiff, Rule 6; only the defendant, Rule 8, suit shall be dismissed unless he admits the claim.

Rule 6: ex parte only where due service is proved, (a); second summons where service is not proved, (b); postponement where served too late, (c); costs against the plaintiff for his own default, (2).

Rule 8: dismissal, unless the defendant admits the claim, in which case a decree passes against him on the admission.

Rule 9: after a Rule 8 dismissal the plaintiff is barred from a fresh suit on the same cause of action; his remedy is an application on sufficient cause, with notice to the other side. There is no appeal, because section 2(2) excludes a dismissal for default from the definition of a decree.

Rule 4: after a Rule 2 or Rule 3 dismissal a fresh suit is allowed, subject to limitation, or the dismissal may be set aside.

Rule 5: seven days to apply for a fresh summons after an unserved return.

Rule 13: an ex parte decree is set aside where the summons was not duly served or the defendant was prevented by sufficient cause. Provisos: it may be set aside as against other defendants where inseparable; and not merely for an irregularity in service where the defendant had notice and time. Explanation: no application where an appeal against the decree has been disposed of otherwise than by withdrawal.

Test yourself

1. What happens if neither party appears? Under Order IX Rule 3 the court may make an order dismissing the suit, and under Rule 4 the plaintiff may then bring a fresh suit subject to limitation, or apply to set the dismissal aside on proof of sufficient cause.

2. The defendant does not appear. Can the court hear the suit ex parte? Only if it is proved that the summons was duly served, under Rule 6(1)(a), and even then the power is discretionary. If service is not proved the court shall direct a second summons, and if the summons was served too late the court shall postpone the hearing and give notice of the new date.

3. The plaintiff does not appear and the defendant does. What is the consequence? Under Rule 8 the court shall dismiss the suit, unless the defendant admits the claim or part of it, in which case a decree is passed against him on the admission and the suit is dismissed as to the remainder.

4. Can that plaintiff sue again on the same cause of action? No. Rule 9(1) precludes a fresh suit on the same cause of action. He may apply to set the dismissal aside on satisfying the court that there was sufficient cause for his non-appearance, and no order may be made without notice to the opposite party.

5. On what grounds may an ex parte decree be set aside? Under Rule 13, on the defendant satisfying the court either that the summons was not duly served, or that he was prevented by sufficient cause from appearing when the suit was called on for hearing.

6. Is an irregularity in the service of summons enough to set aside an ex parte decree? No. The second proviso to Rule 13 provides that no court shall set aside an ex parte decree merely on that ground if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the claim.

7. The defendant appealed the ex parte decree and the appeal was dismissed. Can he now apply under Rule 13? No. The Explanation to Rule 13 bars an application where an appeal against the ex parte decree has been disposed of on any ground other than the appellant's withdrawal of the appeal.

Order XI: interrogatories

Rule 1: in any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties, with a note at the foot stating which of them each person must answer.

Two provisos matter. No party may deliver more than one set of interrogatories to the same party without an order for that purpose. And interrogatories which do not relate to any matter in question in the suit are deemed irrelevant, even though they might be admissible in oral cross-examination. That second proviso is the one to quote: interrogatories are not cross-examination in advance, and the test of relevance is narrower.

Rule 2: the particular interrogatories proposed must be submitted to the Court, which shall decide within seven days of the filing of the application. In deciding, the Court takes into account any offer by the party sought to be interrogated to deliver particulars, make admissions or produce documents. Leave is given only as to such interrogatories as the Court considers necessary either for disposing fairly of the suit or for saving costs.

Rule 8 requires interrogatories to be answered by affidavit within the time the Court allows. Rule 11 allows the Court to require a further answer where an answer is insufficient. Rule 21 is the sanction: where a party fails to comply with an order to answer interrogatories, the plaintiff's suit may be dismissed for want of prosecution, or the defendant's defence struck out and he placed in the same position as if he had not defended.

Order XI: discovery and inspection of documents

Rule 12: any party may, without filing any affidavit, apply for an order directing any other party to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question in the suit. The Court may refuse or adjourn the application if satisfied that discovery is not necessary, or not necessary at that stage, or make such order, generally or limited to classes of documents, as it thinks fit. The proviso is the governing test: discovery shall not be ordered where the Court is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

That test, "fairly disposing of the suit or saving costs", appears in both halves of Order XI and is the answer to any question about the limits of discovery.

Rule 13: the discovery is made by an affidavit of documents.

Rules 14, 15 and 18 deal with inspection: the Court may order production of documents in a party's possession, a party may give notice requiring inspection of documents referred to in the other side's pleadings or affidavits, and the Court may order inspection where the other party refuses.

Rule 22: any party may at the trial use in evidence any one or more of the answers of the opposite party to interrogatories, without putting in the others.

Order XII: admissions

Admissions are the cheapest form of proof, and Order XII is built to encourage them.

Rule 1: any party may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of the other party.

Rule 2: either party may call on the other to admit any document, saving all just exceptions; and a party who refuses or neglects to admit after such notice shall pay the costs of proving that document, whatever the result of the suit, unless the Court otherwise directs. Rule 2A provides that a document is deemed admitted if not denied in the pleadings or by an express refusal within the time fixed.

Rule 4: a party may by notice call on any other party to admit any specific fact, and a party refusing or neglecting to admit within six days or such further time as the Court allows bears the costs of proving that fact, unless the Court otherwise directs.

Rule 6, and this is the one worth remembering: where admissions of fact have been made, either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion, and without waiting for any other question between the parties to be determined, make such order or give such judgment as it may think fit having regard to those admissions. A judgment so pronounced is followed by a decree.

That rule allows a case to end at once where the defendant has admitted enough to decide it, and it does not require the rest of the case to be tried first.

Order XIII: production, impounding and return of documents

That heading is MU's own phrase. It has set "Production, impounding and return of documents" as a full essay question at least three times, so treat the three words as the three parts of the answer.

Rule 1, production: the parties or their pleaders shall produce, at or before the settlement of issues, all documentary evidence in original where the copies have been filed along with the plaint or written statement. Documents not produced then shall not be received in evidence on behalf of that party at the hearing, without the leave of the Court.

Rule 3: the Court may reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds.

Rule 4: every document admitted in evidence shall be endorsed with the suit number, the name of the party producing it, the date on which it was produced, and the signature or initials of the Judge.

Rule 8, impounding, and this is the middle word of the essay: notwithstanding anything contained in Rule 5 or Rule 7 of this Order or in Rule 17 of Order VII, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the Court thinks fit.

To impound is to take a document out of the parties' hands and hold it. The commonest reason is that the document appears to be insufficiently stamped or forged, so that it must be preserved as it stands rather than returned to the person who might alter or destroy it. Note the opening words: the power operates notwithstanding the rules that would otherwise govern the return or rejection of documents.

Rule 9, return: any person, whether a party to the suit or not, who wants back a document he produced and which was placed on the record is entitled to receive it back, unless the document is impounded under Rule 8: where no appeal is allowed, when the suit has been disposed of; and where an appeal is allowed, when the Court is satisfied that the time for appealing has elapsed and no appeal was preferred, or, if one was preferred, when the appeal has been disposed of.

So Rule 8 and Rule 9 lock together: impounding is precisely the exception to the right of return, which is why the examiner asks the three together.

Rule 10 gives the Court power to send for the record of any suit or proceeding from its own records or from another Court.

Section 30 of the Code is the source of all of this, empowering the Court to make such orders as may be necessary or reasonable in all matters relating to the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence. See [Affidavits and Exemption from Personal Appearance], where the rest of section 30 is set out.

A worked example

Manish sues Nandini on a contract, alleging delivery and non-payment. Her written statement denies the contract in general terms and says nothing about a letter she is known to have written.

At the first hearing the Court under Order X Rule 1 asks her, in terms, whether she admits or denies the delivery, and records her answer. Under Rules 1A to 1C it then directs the parties to opt for a mode of settlement under section 89 and fixes a date before that forum.

Manish wants her account of the meeting on oath, before trial. He applies under Order XI Rule 1 for leave to deliver interrogatories, submitting the proposed questions under Rule 2; the Court decides within seven days, and grants leave only as to those it considers necessary for fairly disposing of the suit or saving costs. Questions that do not relate to a matter in question in the suit are deemed irrelevant even though he could have asked them in cross-examination.

He also wants her letter. He applies under Rule 12, without any affidavit, for discovery on oath of documents in her possession or power. She answers by an affidavit of documents under Rule 13. He may then seek inspection under Rules 15 and 18.

She does not comply with the order to answer. Rule 21: her defence may be struck out and she may be placed in the same position as if she had not defended.

He serves a notice to admit the letter and she ignores it. Under Order XII Rule 2 she must pay the costs of proving it, whatever the result of the suit.

Her affidavit in answer admits she received the goods and did not pay, but says she is entitled to set off another claim. Manish applies under Order XII Rule 6. The Court may, without waiting for the set-off to be tried, give such judgment as it thinks fit on those admissions.

At the trial he tries to produce an invoice he never filed. Order XIII Rule 1 shuts it out, because documentary evidence had to be produced at or before the settlement of issues, and it can be received now only with the leave of the Court.

What it does not mean

Interrogatories are not cross-examination in advance. The proviso to Order XI Rule 1 makes questions not relating to a matter in question in the suit irrelevant, even if they would be admissible in cross-examination.

Discovery is not automatic. The test is whether it is necessary for fairly disposing of the suit or for saving costs.

Refusing to admit is not free. Under Order XII Rules 2 and 4 it costs the refusing party the expense of proving the document or fact, whatever the outcome.

Order XII Rule 6 does not require the rest of the case to be decided first. The Court may act on admissions at any stage, of its own motion, without waiting.

A document not produced by the settlement of issues is not automatically admissible later. Order XIII Rule 1 requires the Court's leave.

Quick revision

Order X: at the first hearing the Court ascertains and records admissions and denials on what the pleadings left open, Rule 1; then directs the parties to opt for a section 89 mode of settlement, Rules 1A to 1C; may orally examine any party, Rule 2, the substance being reduced to writing, Rule 3; and may pronounce judgment against a party who refuses or is unable to answer a material question, Rule 4.

Order XI, interrogatories: by leave of the Court, Rule 1; only one set without an order; questions not relating to matters in question are irrelevant even if admissible in cross-examination; leave decided within seven days, and only for what is necessary for fairly disposing of the suit or saving costs, Rule 2; answered by affidavit, Rule 8; non-compliance may mean the suit dismissed or the defence struck out, Rule 21.

Order XI, discovery: application without affidavit, Rule 12; ordered only where necessary for fairly disposing of the suit or saving costs; made by an affidavit of documents, Rule 13; inspection under Rules 15 and 18.

Order XII, admissions: notice admitting the case, Rule 1; notice to admit documents, and the cost of proving falls on the party who refuses, Rule 2; notice to admit facts, Rule 4; and Rule 6, judgment on admissions at any stage, on application or of the Court's own motion, without waiting for other questions.

Order XIII, production, impounding and return: documentary evidence produced at or before the settlement of issues, or not received without leave, Rule 1; irrelevant or inadmissible documents rejected with reasons, Rule 3; admitted documents endorsed, Rule 4; Rule 8, the Court may for sufficient cause impound any document or book produced, to be kept in the custody of an officer of the Court for such period and on such conditions as it thinks fit, notwithstanding Rules 5 and 7 and Order VII Rule 17; Rule 9, any person, party or not, is entitled to the return of a document he produced, unless it is impounded under Rule 8, after disposal of the suit or, where an appeal lies, after the time for appealing has passed or the appeal has been disposed of; Rule 10, the Court may send for records.

Test yourself

1. What does the Court do at the first hearing under Order X? It ascertains from each party or his pleader whether he admits or denies such allegations of fact in the opposite party's pleading as are not expressly or by necessary implication admitted or denied, and records those admissions and denials. It then directs the parties to opt for a mode of settlement outside the court under section 89.

2. What are interrogatories, and can a party deliver them as of right? Interrogatories are written questions delivered for the examination of the opposite party, answered on affidavit. They may be delivered only by leave of the Court under Order XI Rule 1, the proposed questions being submitted under Rule 2, and leave is given only as to those the Court considers necessary for disposing fairly of the suit or for saving costs.

3. May a party ask by interrogatory anything he could ask in cross-examination? No. The second proviso to Order XI Rule 1 provides that interrogatories which do not relate to any matter in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

4. What is the test for ordering discovery of documents? The proviso to Order XI Rule 12: discovery shall not be ordered when and so far as the Court is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

5. What happens if a party fails to answer interrogatories as ordered? Under Order XI Rule 21 the Court may dismiss the plaintiff's suit for want of prosecution, or strike out the defendant's defence and place him in the same position as if he had not defended.

6. What is the effect of an admission of fact? Under Order XII Rule 6 the Court may, at any stage of the suit, either on the application of any party or of its own motion, and without waiting for the determination of any other question between the parties, make such order or give such judgment as it thinks fit having regard to the admissions, and a decree follows that judgment.

7. When must documentary evidence be produced? At or before the settlement of issues, under Order XIII Rule 1. Documents not so produced shall not be received in evidence on behalf of that party at the hearing without the leave of the Court.

Rule 3 lists the materials from which issues may be framed: allegations made on oath by the parties or persons present on their behalf or by their pleaders; allegations in the pleadings or in answers to interrogatories; and the contents of documents produced by either party.

Rule 4: where the Court is of opinion that issues cannot be correctly framed without examining some person not before it or some document not produced, it may adjourn for that purpose.

Rule 5 allows the Court to amend or strike out issues at any time before passing a decree, so that the issues as finally framed determine the real questions in controversy. The wording deliberately echoes Order VI Rule 17 on amendment of pleadings, and for the same reason: the object is to decide the real dispute.

The preliminary issue: Rule 2

This is the highest-yield provision in the chapter.

Rule 2(1): notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to sub-rule (2), pronounce judgment on ALL issues.

Rule 2(2): where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part of it may be disposed of on an issue of law only, it may try that issue first if the issue relates to:

(a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force

and it may postpone settling the other issues until that one is determined, and deal with the suit according to the decision on it.

Three things follow, and each is a marking point.

The general rule is that the court decides everything. Rule 2(1) exists so that an appellate court which disagrees with the preliminary point does not have to send the case back for a trial that never happened.

A preliminary issue must be an issue of LAW. A disputed question of fact can never be tried as a preliminary issue under this rule.

Only two subjects qualify: jurisdiction, and a statutory bar to the suit. Limitation and res judicata are the standard examples of the second, since each is a bar created by law. But note the practical limit on res judicata: deciding it needs the record of the earlier suit, which is why it cannot be disposed of on the plaint alone. See [Res Judicata].

Order XV: disposal at the first hearing

Order XV lets a suit end at the first hearing where there is nothing to try.

Where the parties are not at issue on any question of law or of fact, the Court may pronounce judgment at once. Where there are several defendants and one of them is not at issue with the plaintiff, the Court may pronounce judgment as against that defendant and the suit proceeds against the others.

Where the parties are at issue on some question and either party fails, without sufficient cause, to produce the evidence on which he relies, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

The link to Order XIV is direct. If the written statement admits everything, no material proposition is denied, no issue arises under Rule 1, and Order XV lets the court give judgment there and then rather than fixing a trial with nothing to try.

A worked example

Vikas sues Waseem for Rs. 3,00,000 as the price of goods sold and delivered in January. He pleads the contract, the delivery, and the non-payment. Waseem's written statement admits the contract and the delivery, denies that the goods conformed to sample, and pleads that the suit is barred by limitation.

What issues arise? Take each material proposition. The contract and the delivery are affirmed and admitted, so no issue arises on them and no evidence is needed. Conformity to sample is affirmed and denied, so that is an issue of fact. Limitation is affirmed by the defendant and denied by the plaintiff, so that is an issue of law. The court would frame something like: (1) whether the goods conformed to sample; (2) whether the suit is barred by limitation; (3) what relief.

Can limitation be tried first? Yes, potentially. It is an issue of law, and it is a bar to the suit created by a law in force, so it falls within Rule 2(2)(b). The court may try it first and postpone the rest.

And if it decides the suit is in time? It then tries the remaining issues. Note Rule 2(1): even where a case could have been disposed of on the preliminary issue, the court is to pronounce judgment on all issues, so an appellate court disagreeing on limitation does not have to remit the case.

Change one fact. Suppose the limitation plea depends on when delivery actually happened, which is disputed. Now it is not an issue of law only; it cannot be tried as a preliminary issue, because facts must be found first.

Change another. Suppose Waseem's written statement admits everything and raises no defence at all. Rule 1(6) says the court need not frame issues, and Order XV lets it pronounce judgment at the first hearing.

And another. Suppose an issue was framed on conformity to sample, and at trial Vikas produces no evidence on it without sufficient cause. Order XV allows the court to pronounce judgment against him or make such order as it thinks fit.

What it does not mean

An issue is not every disputed sentence. The proposition must be material, meaning necessary to the claim or the defence.

An admitted fact is not an issue. No denial, no issue, and therefore no evidence.

A preliminary issue is not available on a question of fact. Rule 2(2) requires an issue of law only.

Not every issue of law can go first. Only jurisdiction, or a bar to the suit created by law.

Disposal on a preliminary issue is not the norm. Rule 2(1) directs judgment on all issues.

Issues are not fixed for ever. Rule 5 allows them to be amended or struck out at any time before the decree.

Quick revision

Order XIV Rule 1: an issue arises where a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those the plaintiff must allege to show a right to sue, or the defendant to constitute his defence. Each such proposition is a distinct issue. Issues are of fact or of law.

Rule 1(5): issues are framed at the first hearing, after reading the pleadings, after the Order X Rule 2 examination, and after hearing the parties. Rule 1(6): none need be framed where the defendant makes no defence.

Rule 3: issues may be framed from allegations on oath, from the pleadings or answers to interrogatories, and from the contents of documents produced.

Rule 2(1): the Court shall pronounce judgment on all issues, even where the case could be disposed of on a preliminary one. Rule 2(2): an issue may be tried first only if it is an issue of law and relates to (a) jurisdiction or (b) a bar to the suit created by any law.

Rule 5: issues may be amended or struck out at any time before the decree.

Order XV: where the parties are not at issue on any question of law or fact, the court may pronounce judgment at once; and where a party fails without sufficient cause to produce his evidence, the court may pronounce judgment against him.

Test yourself

1. When does an issue arise? Under Order XIV Rule 1(1), when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those which the plaintiff must allege to show a right to sue, or the defendant must allege to constitute his defence.

2. The defendant does not specifically deny an allegation. Does an issue arise on it? No. Under Order VIII Rule 5 an allegation not specifically denied or stated to be not admitted is taken to be admitted, and since the proposition is then not denied by the other party, no issue arises on it under Order XIV Rule 1 and no evidence is needed.

3. When may the court try an issue as a preliminary issue? Only where issues both of law and of fact arise, the court is of opinion that the case or part of it may be disposed of on an issue of law only, and that issue relates either to the jurisdiction of the court or to a bar to the suit created by any law for the time being in force: Order XIV Rule 2(2).

4. Must the court decide the other issues if it can dispose of the case on a preliminary one? As a general rule yes. Order XIV Rule 2(1) requires the court to pronounce judgment on all issues notwithstanding that the case may be disposed of on a preliminary issue, subject only to sub-rule (2).

5. From what materials may issues be framed? Under Order XIV Rule 3, from allegations made on oath by the parties or persons present on their behalf or by their pleaders; from allegations in the pleadings or in answers to interrogatories delivered in the suit; and from the contents of documents produced by either party.

6. When may a suit be disposed of at the first hearing? Under Order XV, where the parties are not at issue on any question of law or of fact the court may pronounce judgment at once; and where there are several defendants and one is not at issue with the plaintiff, judgment may be pronounced against him while the suit proceeds against the others.

Rules 10, 11 and 12 are the sanctions where a summoned witness does not appear: the Court may issue a proclamation requiring his attendance, and may issue a warrant for his arrest, attach and sell his property, or impose a fine, subject to the safeguards those rules contain.

Rule 14 allows the Court, of its own motion, to summon as a witness any person whose evidence appears to it to be necessary, and to examine him as a witness.

Order XVII: adjournments

This Order was tightened deliberately, and its restrictions are the examinable part.

Rule 1(1): the Court may, if sufficient cause is shown, at any stage grant time to the parties and adjourn the hearing, for reasons to be recorded in writing. Proviso: no such adjournment shall be granted more than three times to a party during the hearing of the suit.

Rule 1(2): the Court shall fix a day for further hearing and shall make such orders as to the costs occasioned by the adjournment, or such higher costs as it deems fit.

The proviso to Rule 1(2) then sets out five conditions, and they are worth learning as a list:

(a) once the hearing has commenced it shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court records exceptional reasons for adjourning beyond the following day (b) no adjournment at the request of a party except where the circumstances are beyond that party's control (c) the fact that a party's pleader is engaged in another Court shall not be a ground for adjournment (d) where the illness or inability of a pleader is put forward, other than his being engaged elsewhere, the Court shall not adjourn unless satisfied that the party could not have engaged another pleader in time (e) where a witness is present but a party or his pleader is not, or is present but not ready to examine or cross-examine him, the Court may record the witness's statement and pass such orders as it thinks fit

Rule 2: where the parties or any of them fail to appear on a day to which the hearing is adjourned, the Court may dispose of the suit in one of the modes directed by Order IX, or make such other order as it thinks fit. That is the bridge to [Appearance and Consequences of Non-appearance].

Rule 3: where a party to whom time was granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time was allowed, the Court may proceed to decide the suit forthwith, notwithstanding that failure.

Order XVIII: how evidence is recorded

Rule 4(1): in every case, the examination-in-chief of a witness shall be on affidavit, copies being supplied to the opposite party by the party calling him. The proviso adds that where documents are filed and relied on, their proof and admissibility are subject to the orders of the Court.

That single rule changed the shape of civil trials. Examination-in-chief is now a document, not an occasion, and court time is spent on cross-examination.

Rule 4(2): the cross-examination and re-examination of a witness whose examination-in-chief has been furnished by affidavit shall be taken either by the Court or by a Commissioner appointed by it.

For commercial disputes the Code adds a stricter regime: affidavits of evidence of all witnesses are to be filed simultaneously at the time directed at the first case management hearing; no additional evidence by affidavit without sufficient cause shown and a reasoned order; and a party may withdraw an affidavit before cross-examination of that witness begins without adverse inference, though any admission in the withdrawn affidavit may still be tendered and relied on by the other side.

Rule 5 requires evidence in appealable cases to be taken down in the language of the Court in the form of a narrative, and read over and signed. Rule 17 allows the Court at any stage of a suit to recall any witness and put such questions to him as it thinks fit.

A worked example

Om sues Preeti. Issues are settled on 10 June.

When must the witness list go in? Not later than fifteen days after the settlement of issues, so by 25 June, with an application stating the purpose for each witness and a deposit for expenses under Rule 2. Summonses may be obtained within five days of presenting the list.

Om forgets a witness. Rule 1(3): the Court may permit him to call a witness not in the list, for reasons recorded, if he shows sufficient cause for the omission. And under Rule 1A he may in any event simply bring a willing witness without a summons.

A summoned witness does not turn up. Rules 10 to 12 allow a proclamation, and then a warrant, attachment and sale of property, or a fine.

Who begins? Om, unless Preeti admits his facts and says he is still not entitled to relief, in which case she begins under Rule 1.

How is the evidence given? Om's witnesses give their examination-in-chief on affidavit under Rule 4(1), with copies to Preeti. Their cross-examination is taken by the Court or by a Commissioner under Rule 4(2).

Preeti's counsel is busy in another court and asks for an adjournment. Clause (c) of the proviso to Rule 1(2): that is not a ground. If he is ill, clause (d) applies, and the Court must be satisfied she could not have engaged another pleader in time.

She has already had three adjournments. The proviso to Rule 1(1) forbids more than three to a party during the hearing.

Om's witness is present but Om's pleader is absent. Clause (e): the Court may record the witness's statement and pass such orders as it thinks fit, rather than waste the witness's attendance.

Preeti was given time to produce her evidence and produces none. Rule 3: the Court may decide the suit forthwith notwithstanding that failure.

Neither party appears on the adjourned date. Rule 2: the Court may dispose of the suit in one of the modes directed by Order IX.

What it does not mean

The plaintiff does not always begin. Where the defendant admits the facts and raises a point of law or additional facts, he begins.

A party is not confined to summonsed witnesses. Rule 1A allows a witness to be brought without any summons.

An adjournment is not available on request. Sufficient cause, reasons recorded, a maximum of three to a party, and none for a pleader being engaged elsewhere.

Examination-in-chief is no longer oral. Rule 4(1) requires it on affidavit; the oral part is cross-examination and re-examination.

Withdrawing an affidavit in a commercial dispute does not erase it. Any admission in it may still be tendered by the other side.

Quick revision

Order XVI: witness list within fifteen days of the settlement of issues, with the purpose stated and expenses deposited; summonses within five days of the list; a witness not in the list only for reasons recorded on sufficient cause, Rule 1(3); but under Rule 1A a party may bring any witness without a summons; proclamation, warrant, attachment or fine for non-attendance, Rules 10 to 12; the Court may summon a witness of its own motion, Rule 14.

Order XVII: adjournment only on sufficient cause, for reasons recorded, and not more than three times to a party. Hearing to continue day to day once commenced; no adjournment at a party's request unless circumstances are beyond his control; a pleader engaged elsewhere is not a ground; illness of a pleader only where another could not have been engaged in time; where a witness is present and the party is not, his statement may be recorded. Rule 2: failure to appear, dispose of under Order IX. Rule 3: failure to produce evidence, decide the suit forthwith.

Order XVIII: the plaintiff begins, unless the defendant admits the facts and relies on law or additional facts, Rule 1; state the case and produce evidence, then the other party, then a reply, Rule 2; examination-in-chief on affidavit, cross-examination and re-examination by the Court or a Commissioner, Rule 4; the Court may recall any witness at any stage, Rule 17.

Test yourself

1. Who has the right to begin? The plaintiff, under Order XVIII Rule 1, 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 sought, in which case the defendant begins.

2. Within what time must a list of witnesses be filed? On or before such date as the Court appoints, and in any event not later than fifteen days after the date on which the issues are settled, under Order XVI Rule 1(1). Summonses may be obtained within five days of presenting the list.

3. Can a party examine a witness whose name is not in the list? Yes, in two ways. The Court may permit it for reasons recorded, if sufficient cause is shown for the omission, under Rule 1(3). And under Rule 1A a party may without applying for a summons simply bring any witness to give evidence or produce documents.

4. How many adjournments may a party obtain? Not more than three during the hearing of the suit, under the proviso to Order XVII Rule 1(1), and each only on sufficient cause shown and for reasons recorded in writing.

5. Is the engagement of a pleader in another court a ground for adjournment? No. Clause (c) of the proviso to Order XVII Rule 1(2) states expressly that it shall not be a ground. Where the pleader's illness or inability is relied on instead, the Court shall not adjourn unless satisfied that the party could not have engaged another pleader in time.

6. How is the examination-in-chief of a witness recorded? On affidavit, under Order XVIII Rule 4(1), copies being supplied to the opposite party by the party calling the witness. The cross-examination and re-examination are then taken either by the Court or by a Commissioner appointed by it.

7. A party given time fails to produce his evidence. What may the Court do? Under Order XVII Rule 3 the Court may proceed to decide the suit forthwith, notwithstanding that failure.

Rule 4(1): judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.

Rule 4(2): judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

Those four elements are the standard exam answer to "what must a judgment contain", and the contrast with small causes courts is the part that earns the extra mark. Rule 5 adds that in suits where issues have been framed, the Court shall state its finding or decision, with the reasons, upon each separate issue, unless the finding on any one or more is sufficient for the decision.

Drawing the decree: Rules 6 and 6A

Rule 6(1): the decree shall agree with the judgment. It shall contain the number of the suit, the names and descriptions of the parties and their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

Rule 6(2): the decree shall also state the amount of costs incurred in the suit, and by whom, or out of what property, and in what proportions they are to be paid.

Rule 6(3): the Court may direct that costs payable by one party to the other be set off against any sum admitted or found due from the former to the latter.

Rule 6A(1): every endeavour shall be made to draw the decree as expeditiously as possible and in any case within fifteen days from the date the judgment is pronounced.

Rule 6A(2) solves a practical problem that used to trap appellants. An appeal may be preferred against the decree without filing a copy of the decree, and in that case the copy of the judgment made available by the court is treated as the decree for the purposes of Order XLI Rule 1. But as soon as the decree is drawn, the judgment ceases to have the effect of a decree for the purposes of execution.

So a party is not shut out of an appeal merely because the registry has not yet drawn the decree. The period of limitation for an appeal runs, and Rule 6A(2) lets him file.

Rule 7: the decree shall bear the date of the day on which the judgment was pronounced, even though it is drawn up later.

Some particular decrees

Rule 12 deals with a decree for possession and mesne profits. Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree for possession, and for the rent or mesne profits accrued before the suit, and may direct an inquiry as to rent or mesne profits from the institution of the suit until delivery of possession or until the expiry of three years from the date of the decree, whichever first occurs.

That is the standard example of a decree which is partly preliminary and partly final under the Explanation to section 2(2): final as to possession, preliminary as to the profits still to be ascertained. See [Definitions].

Rule 18 deals with a decree in a suit for partition. Where the decree relates to an estate assessed to the payment of revenue to the Government, it shall declare the rights of the parties but direct the partition to be made by the Collector. In any other case, if the partition cannot be conveniently made at once, the decree shall declare the rights of the parties and give such further directions as may be required.

A worked example

Aarti sues Bipin for possession of a shop and for mesne profits. The hearing concludes on 1 September.

When must judgment be pronounced? Every endeavour is to be made within thirty days, so by about 1 October. If exceptional and extraordinary circumstances make that impracticable, the court fixes a future day, ordinarily not beyond sixty days, and gives due notice of it.

What must the judgment contain? A concise statement of the case, the points for determination, the decision on them, and the reasons, under Rule 4(2), with a finding on each separate issue under Rule 5.

What does the decree look like? It must agree with the judgment, and carry the suit number, the parties with descriptions and registered addresses, the particulars of the claim, the relief granted, and the costs with who pays them. It bears the date the judgment was pronounced, under Rule 7, even though it is drawn later.

Is it preliminary or final? Under Rule 12 the court may decree possession, decree the mesne profits already accrued, and direct an inquiry into profits from the institution of the suit until possession is delivered or three years from the decree, whichever comes first. That decree is final as to possession and preliminary as to the profits.

The registry has not drawn the decree and the appeal period is running. Rule 6A(2): Aarti may prefer her appeal without a copy of the decree, and the copy of the judgment given to her is treated as the decree for Order XLI Rule 1.

A month later the parties notice the decree records the shop's door number wrongly. That is a clerical slip, and section 152 allows it to be corrected. Rule 3 would otherwise forbid any alteration once the judgment is signed.

Bipin says the judge misunderstood his evidence. That is not a slip and it is not a matter for section 152. His remedies are review, on the grounds allowed by Order XLVII, or an appeal.

What it does not mean

The judgment is not the decree. The judgment gives the grounds; the decree is the formal expression that is executed.

A signed judgment cannot be altered. Rule 3 permits only a section 152 correction or a review.

The thirty-day period is not a rigid deadline. It is an endeavour, with sixty days as the outer limit in exceptional and extraordinary circumstances, and ninety days for commercial disputes.

An appeal is not blocked by the absence of a drawn decree. Rule 6A(2) allows the judgment copy to serve.

A decree does not bear the date it was drawn. Rule 7 gives it the date the judgment was pronounced.

Quick revision

Section 33: after the case is heard the Court pronounces judgment, and on that judgment a decree follows.

Order XX Rule 1: judgment in open Court, at once or as soon as practicable; if later, a day fixed with due notice; endeavour within 30 days of the conclusion of the hearing; in exceptional and extraordinary circumstances, a day not ordinarily beyond 60 days; in commercial disputes, within 90 days of the conclusion of arguments.

Rule 3: dated and signed in open Court at the time of pronouncing; not afterwards altered or added to, save under section 152 or on review.

Rule 4: a Small Causes judgment needs only the points for determination and the decision. Any other judgment needs a concise statement of the case, the points for determination, the decision, and the reasons. Rule 5: a finding with reasons on each separate issue.

Rule 6: the decree shall agree with the judgment, and state the suit number, the parties and their registered addresses, the particulars of the claim, the relief granted, and the costs and who pays them. Rule 6A: drawn within fifteen days; an appeal may be filed without a copy of the decree. Rule 7: the decree bears the date the judgment was pronounced.

Rule 12: possession and mesne profits, with an inquiry up to delivery of possession or three years from the decree, whichever is first. Rule 18: partition decrees.

Test yourself

1. What does section 33 provide? That the Court, after the case has been heard, shall pronounce judgment, and that on such judgment a decree shall follow.

2. Within what time must judgment be pronounced? It is pronounced in open court at once or as soon thereafter as practicable. Where it is not pronounced at once, every endeavour must be made to pronounce it within thirty days of the conclusion of the hearing, and where that is impracticable because of the exceptional and extraordinary circumstances of the case, on a day fixed which shall not ordinarily be beyond sixty days. In commercial disputes judgment is to be pronounced within ninety days of the conclusion of arguments.

3. What must a judgment contain? Under Order XX Rule 4(2), a concise statement of the case, the points for determination, the decision on those points, and the reasons for the decision. A judgment of a Court of Small Causes need contain no more than the points for determination and the decision on them.

4. Can a judgment be altered after it is signed? No, save as provided by section 152, which permits the correction of clerical or arithmetical mistakes and errors arising from accidental slips or omissions, or on review. Order XX Rule 3 otherwise forbids alteration or addition once the judgment is signed.

5. What must a decree contain? Under Order XX Rule 6, it must agree with the judgment, and contain the number of the suit, the names and descriptions of the parties and their registered addresses, the particulars of the claim, and a clear specification of the relief granted or other determination of the suit, together with the amount of costs and by whom and in what proportions they are to be paid.

6. The decree has not yet been drawn up but the appeal period is running. What can the appellant do? Under Order XX Rule 6A(2) an appeal may be preferred against the decree without filing a copy of it, and the copy of the judgment made available by the court is treated as the decree for the purposes of Order XLI Rule 1. Once the decree is drawn, the judgment ceases to have the effect of a decree for execution purposes.

7. What date does a decree bear? Under Order XX Rule 7, the day on which the judgment was pronounced, even though the decree is drawn up afterwards.

Order XX Rule 6(2) and (3) connect this to the decree: the decree must state the amount of costs and by whom, or out of what property, and in what proportions they are to be paid, and the Court may direct costs payable by one party to be set off against sums due from him.

Order XXA allows costs in respect of certain specified expenses, including expenditure incurred on notices required to be given by law, on typing and writing or printing of pleadings, on inspecting court records, on producing witnesses, and on obtaining copies.

Section 35A: compensatory costs for a false or vexatious claim or defence

This is the provision MU asked about in December 2023, and it is narrow, so the conditions matter.

Section 35A(1): if in any suit or other proceeding, including an execution proceeding but excluding an appeal or a revision, any party objects to the claim or defence on the ground that it, or any part of it, is as against the objector false or vexatious to the knowledge of the party putting it forward, and if thereafter, as against the objector, that claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court may, if it so thinks fit, and after recording its reasons for holding the claim or defence false or vexatious, order the party who put it forward to pay the objector costs by way of compensation.

Take the conditions in order, because all of them must be present:

One, a suit or proceeding, including execution, but NOT an appeal or a revision. Two, an objection must have been taken by the party who wants the costs. The court does not act on its own. Three, the claim or defence must be false or vexatious TO THE KNOWLEDGE of the party advancing it. A claim that merely fails is not enough; a claim that is weak is not enough. Knowledge is the test. Four, it must afterwards be disallowed, abandoned or withdrawn, wholly or in part. Five, the Court must record its reasons.

Section 35A(2) caps the amount: no order shall exceed three thousand rupees, or the limits of the Court's pecuniary jurisdiction, whichever is less.

Section 35A(3): no person against whom an order has been made under the section shall, by reason of it, be exempted from any criminal liability in respect of the claim or defence.

The cap is the practical point to remember. Section 35A is a penalty rather than an indemnity, which is why it is small and why the conditions are strict.

Section 35B: costs for causing delay

Section 35B(1): if on any date fixed for the hearing of a suit or for taking any step in it, a party (a) fails to take the step he was required by the Code to take on that date, or (b) obtains an adjournment for taking such a step or producing evidence or on any other ground, the Court may, for reasons to be recorded, order him to pay the other party such costs as would reasonably reimburse that other party for the expenses of attending the Court on that date.

Then comes the sting: payment of those costs, on the date next following the order, shall be a CONDITION PRECEDENT to the further prosecution of the suit by the plaintiff, or of the defence by the defendant, according to who was ordered to pay.

The Explanation applies the same rule where separate defences have been raised by different defendants or groups of them.

Section 35B(2): costs ordered under sub-section (1), if paid, shall not be included in the costs awarded in the decree; but if they are not paid, they may be recovered separately.

So section 35B is unlike anything else in the costs provisions. It is not merely an order to pay. It is a gate: fail to pay and you cannot go on with your suit or your defence. And because paid section 35B costs are kept out of the decree, they are a genuine penalty on the delaying party rather than a credit against the final bill.

The three compared

A worked example

Chirag sues Deepa. At the first hearing Deepa is present and ready, and Chirag's advocate seeks an adjournment because he is not prepared.

Section 35B applies. The Court may, for reasons recorded, order Chirag to pay Deepa such costs as would reasonably reimburse her expenses of attending that day. If it does, payment on the next date is a condition precedent to Chirag prosecuting his suit further. If he pays, that sum is not included in the costs in the eventual decree; if he does not pay, it can be recovered separately and he cannot go on.

Later, Deepa raises a defence that the goods were never delivered. Chirag objects at the time that the defence is false to Deepa's knowledge, and points to her own signed receipt. At trial the defence is disallowed.

Now section 35A can apply. There was an objection, the defence was false to her knowledge, and it was disallowed. The Court may, after recording reasons, order her to pay compensatory costs, but not more than Rs. 3,000 or its pecuniary limit, whichever is less.

Chirag wins the suit. Section 35 governs the ordinary costs. The general position is that costs follow the event, so Deepa pays; if the Court decides otherwise it must record its reasons in writing under section 35(2). The decree states the amount and who pays, under Order XX Rule 6(2).

Change one fact. Suppose Deepa's defence was simply wrong rather than knowingly false. Section 35A does not apply at all: without knowledge there is no false or vexatious defence within the section, and the only costs are ordinary costs under section 35.

Change another. Suppose the vexatious defence appeared for the first time in an appeal. Section 35A is expressly unavailable there, because appeals and revisions are excluded.

And another. Suppose the suit was filed in a court that turns out to have no jurisdiction. Section 35(1) still allows that court to award costs, because want of jurisdiction is expressly no bar.

What it does not mean

Costs are not damages. They are a contribution towards the expense of litigating, not compensation for the wrong sued on.

"Costs follow the event" is not an absolute rule. It is the general principle, and a court may depart from it under section 35(2) by recording reasons.

Section 35A is not available for a claim that merely fails. It requires the claim or defence to have been false or vexatious to the knowledge of the party advancing it, and it requires an objection to have been taken.

Section 35A is not available in an appeal or a revision. Expressly excluded.

Section 35B costs are not part of the decree if paid. They are kept out by sub-section (2), which is what makes them a penalty.

Non-payment under section 35B is not merely a debt. It bars the further prosecution of the suit or the defence.

Quick revision

Section 35, ordinary costs: in the discretion of the Court, which decides by whom, out of what property, and to what extent. Want of jurisdiction is no bar. If costs do not follow the event, reasons in writing. In commercial disputes, the general rule that the unsuccessful party pays is spelled out, with any departure for reasons recorded.

Section 35A, compensatory costs: suit or proceeding including execution but excluding appeal and revision; an objection taken; the claim or defence false or vexatious to the knowledge of the party advancing it; afterwards disallowed, abandoned or withdrawn; reasons recorded; capped at Rs. 3,000 or the court's pecuniary limit, whichever is less; no exemption from criminal liability.

Section 35B, costs for delay: on failure to take a step, or on obtaining an adjournment; for reasons recorded; costs equal to the other party's expenses of attending that day; payment is a condition precedent to further prosecution of the suit or defence; if paid, excluded from the decree; if unpaid, recoverable separately.

Order XX Rule 6(2) and (3): the decree states the costs, who pays, and in what proportions, and they may be set off. Order XXA: costs for notices, typing and printing of pleadings, inspection, producing witnesses and obtaining copies.

Test yourself

1. Who decides who pays the costs of a suit? The Court. Under section 35(1) the costs of and incident to all suits are in the discretion of the Court, which has full power to determine by whom, out of what property, and to what extent they are to be paid, and the fact that it has no jurisdiction to try the suit is no bar to the exercise of that power.

2. What is meant by compensatory costs? Costs awarded under section 35A against a party who has put forward a claim or defence which is, as against the objector, false or vexatious to that party's knowledge, and which is afterwards disallowed, abandoned or withdrawn. They are ordered only where an objection was taken and after the Court records its reasons, and they may not exceed three thousand rupees or the limits of the Court's pecuniary jurisdiction, whichever is less.

3. Are compensatory costs available in an appeal? No. Section 35A applies to any suit or other proceeding including an execution proceeding, but expressly excludes an appeal or a revision.

4. What happens if a party ordered to pay costs under section 35B does not pay them? Payment on the date next following the order is a condition precedent to the further prosecution of the suit by the plaintiff, or of the defence by the defendant, according to who was ordered to pay. So non-payment bars him from proceeding, and the unpaid costs may also be recovered separately.

5. Are section 35B costs included in the costs awarded by the decree? Not if they are paid. Section 35B(2) provides that costs ordered under sub-section (1), if paid, shall not be included in the costs awarded in the decree, though if they are not paid they may be recovered separately.

6. What are the various types of costs under the Code? Ordinary costs in the discretion of the court under section 35; compensatory costs for false or vexatious claims or defences under section 35A; and costs for causing delay under section 35B. Order XXA further provides for costs in respect of specified expenses such as notices, typing and printing of pleadings, inspection of records, producing witnesses and obtaining copies.

Clause (b) is wider and correspondingly discretionary, and it is not a licence to have another go: the court has to be satisfied there are sufficient grounds.

Rule 1(5) protects co-plaintiffs: nothing in the rule authorises the Court to permit one of several plaintiffs to abandon or withdraw without the consent of the other plaintiffs.

Rule 1A deals with what happens to a defendant left behind. Where a suit is withdrawn or abandoned and a defendant applies to be transposed as a plaintiff under Order I Rule 10, the Court shall have due regard to the question whether he has a substantial question to be decided against any other defendant.

Rule 2 is the limitation warning, and students miss it constantly: in any fresh suit instituted on permission granted under Rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. So permission preserves the right to sue; it does not stop the clock. A plaintiff who withdraws with liberty after three years may find the fresh suit time barred anyway.

Compromise: Rule 3

Rule 3 provides that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter, the Court shall order the agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance with it, so far as it relates to the parties to the suit, whether or not the subject matter of the agreement is the same as the subject matter of the suit.

Several points repay attention.

"In writing and signed by the parties" was added by amendment, and it is now a condition. An oral compromise is not enough.

"Lawful" is defined negatively by the Explanation: an agreement or compromise which is void or voidable under the Indian Contract Act 1872 shall not be deemed lawful within the rule.

Where the compromise is disputed, the proviso requires the Court to decide the question, and expressly forbids an adjournment for that purpose unless the Court records reasons for granting one.

The decree may go beyond the suit. The words allow a decree in accordance with the compromise even where the compromise covers matters outside the subject matter of the suit, so long as it relates to the parties. That is why parties settling several disputes at once can record the whole settlement.

Rule 3A bars a separate suit: no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The challenge must be made in the same suit, before the same court, under the proviso to Rule 3.

The res judicata consequence sits in [Res Judicata]: because the court in a compromise decree decides nothing and merely records what the parties agreed, such a decree does not operate as res judicata, though it binds by estoppel.

A worked example

Eshan sues Farida for possession of a godown. Half way through, he realises his plaint described the property by the wrong survey number and that the suit is bound to fail as framed.

If he simply withdraws. Rule 1(1) allows it at any time, but Rule 1(4) makes him liable for costs and precludes a fresh suit on the same subject matter. His mistake would cost him the claim entirely.

If he applies under Rule 1(3)(a). A wrong description of the property is a formal defect, so the Court may permit withdrawal with liberty to institute a fresh suit, on such terms as it thinks fit, usually costs.

He obtains that liberty and sues again two years later. Rule 2 applies: he is bound by the law of limitation as if the first suit had never been instituted. The years spent on the first suit do not help him.

Change the facts. Suppose Eshan simply thinks his evidence is weak and wants to gather more. That is not a formal defect, so clause (a) is unavailable, and he would have to persuade the court of sufficient grounds under clause (b), which is discretionary and by no means automatic.

Suppose Eshan is a minor suing through his father. The proviso to Rule 1(1) applies: no abandonment without the leave of the Court, supported by his next friend's affidavit and, where he has a pleader, the pleader's certificate that the abandonment is for the minor's benefit.

Suppose instead the parties settle, and record the settlement in a signed written agreement covering both the godown and an unrelated loan. Rule 3 lets the Court record it and pass a decree in accordance with it, even as to the loan, because it relates to the parties, although it was never the subject matter of the suit.

Farida later says the settlement was obtained by coercion. Coercion makes an agreement voidable under the Contract Act, and by the Explanation such an agreement is not lawful within Rule 3. But she cannot bring a separate suit to set the decree aside: Rule 3A bars it. She must raise it in the same suit, and the proviso to Rule 3 requires the Court to decide the question without an adjournment unless it records reasons.

What it does not mean

Withdrawal is not free. Without permission it costs the plaintiff the claim, under Rule 1(4).

A formal defect is not a weak case. It is a defect of form, in the frame of the suit, verification, valuation, parties or description.

Permission to sue afresh does not stop limitation. Rule 2 puts the plaintiff in the position he would be in if the first suit had never been filed.

One of several plaintiffs cannot withdraw alone. Rule 1(5) requires the consent of the others.

An oral compromise will not do. Rule 3 requires an agreement in writing and signed by the parties.

A compromise decree cannot be attacked by a separate suit. Rule 3A bars it; the challenge belongs in the same suit.

Quick revision

Order XXIII Rule 1(1): the plaintiff may abandon the suit or part of the claim at any time after institution. Proviso: not where he is a minor or under Order XXXII, without the leave of the Court, supported by the next friend's affidavit and the pleader's certificate.

Rule 1(4): abandonment, or withdrawal without permission, means costs and no fresh suit on that subject matter.

Rule 1(3): permission to withdraw with liberty to sue afresh only where the suit must fail by reason of some formal defect, or there are sufficient grounds for allowing a fresh suit.

Rule 1(5): one of several plaintiffs cannot withdraw without the others' consent. Rule 1A: a defendant may apply to be transposed as plaintiff.

Rule 2: a fresh suit is bound by limitation as if the first suit had never been instituted.

Rule 3: a compromise must be lawful, in writing, and signed by the parties, or the defendant must have satisfied the plaintiff; the Court records it and passes a decree accordingly, even as to matters outside the subject matter, so long as they relate to the parties. Explanation: void or voidable under the Contract Act is not lawful. Proviso: a disputed compromise is decided by the Court, without adjournment unless reasons are recorded.

Rule 3A: no separate suit to set aside a decree on the ground that the compromise was not lawful.

Test yourself

1. May a plaintiff withdraw his suit, and at what cost? Yes. Under Order XXIII Rule 1(1) he may abandon the suit or part of his claim at any time after institution. But under Rule 1(4), where he does so without the permission referred to in Rule 1(3), he is liable for such costs as the Court awards and is precluded from instituting any fresh suit in respect of that subject matter.

2. On what grounds may the Court permit withdrawal with liberty to sue afresh? Only two, under Rule 1(3): where the Court is satisfied that the suit must fail by reason of some formal defect, or 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.

3. What is a formal defect? A defect of form rather than of substance, such as a defect in the frame of the suit, in verification, in valuation, in the joinder of parties or in the description of the property. A weakness in the plaintiff's evidence or in the merits of his case is not a formal defect.

4. Does permission to sue afresh protect the plaintiff on limitation? No. Order XXIII Rule 2 provides that in any fresh suit instituted on such permission, the plaintiff is bound by the law of limitation in the same manner as if the first suit had not been instituted.

5. What are the requirements of a valid compromise under Rule 3? The suit must be shown to have been adjusted wholly or in part by a lawful agreement or compromise in writing and signed by the parties, or the defendant must have satisfied the plaintiff in respect of the whole or part of the subject matter. An agreement void or voidable under the Indian Contract Act is not lawful for this purpose.

6. Can a party file a separate suit to set aside a compromise decree on the ground that the compromise was unlawful? No. Order XXIII Rule 3A bars such a suit. The objection must be raised in the same suit, where the proviso to Rule 3 requires the Court to decide the question, granting no adjournment for the purpose unless it records its reasons.

The exception for urgent relief: section 80(2)

Section 80(2) provides that a suit to obtain urgent or immediate relief against the Government or a public officer in respect of an act purporting to be done in his official capacity may be instituted with the leave of the Court without serving any notice under sub-section (1).

But the concession is carefully fenced. The Court shall not grant relief in the suit, whether interim or otherwise, except after giving the Government or the public officer a reasonable opportunity of showing cause in respect of the relief prayed for. And the proviso requires that where the Court is satisfied, after hearing the parties, that no urgent or immediate relief need be granted, it shall return the plaint for presentation after complying with sub-section (1).

So sub-section (2) does not abolish the notice. It defers it, under the court's supervision, and only for genuine urgency. A plaintiff who obtains leave and then turns out not to need urgent relief gets his plaint back.

Section 82: execution against the Government

Section 82 provides that where a decree is passed against the Union of India, a State, or a public officer in respect of an act purporting to be done in his official capacity, execution shall not be issued on the decree unless it remains unsatisfied for the period of three months computed from the date of the decree.

The reason is the same as for the notice: the Government is given time to pay through its own machinery before its property is touched.

Order XXVII: how such suits are conducted

Order XXVII carries the procedure. The main points are these.

A plaint or written statement in a suit by or against the Government shall be signed by such person as the Government may appoint and verified by any person acquainted with the facts whom the Government authorises.

The Government Pleader in any court is the agent of the Government for the purpose of receiving processes against the Government in that court.

Where the defendant is a public officer sued in respect of an official act, the Court shall, in fixing the day for his appearance, allow a reasonable time for communicating with the Government and for making a reply.

Order XXVII also directs the Court to assist in settlement. Where in a suit by or against the Government it appears that there is a possibility of a settlement, the Court shall grant time to the parties to enable them to arrive at one. That is the same policy as section 80, appearing again at a later stage.

Note also section 2(7), which defines Government Pleader, and Order III, on recognised agents and pleaders generally. See [Definitions] and [Parties to a Suit].

A worked example

Ganesh's shop is demolished by an officer of a State authority acting, he says, under a statutory power. Ganesh wants damages, and he also wants an immediate injunction restraining further demolition.

Whom does he sue? Under section 79(b), the State by name, and where he sues the officer personally for an act purporting to be done in his official capacity, the officer as well.

Must he give notice? Yes, under section 80(1). Two months' written notice, delivered to or left at the office of a Secretary to that Government or the Collector of the district, and delivered to the officer or left at his office. It must state the cause of action, his name, description and place of residence, and the relief claimed.

And in the plaint? He must plead that the notice was so delivered or left. Giving the notice is not enough on its own.

But the demolition is continuing today. Then section 80(2) applies. He may seek the leave of the Court to institute the suit without notice, because he seeks urgent and immediate relief. The Court can grant no relief, interim or otherwise, until the State and the officer have had a reasonable opportunity of showing cause.

Suppose the Court, after hearing both sides, finds there was no real urgency. The proviso to sub-section (2) requires it to return the plaint for presentation after complying with sub-section (1). He has lost time, not the claim.

He wins and obtains a decree. Section 82: no execution may issue until the decree has remained unsatisfied for three months from its date.

Change one fact. Suppose the officer had demolished the shop out of a private grudge and not under any colour of office. The act would not be one "purporting to be done in his official capacity", so section 80 would not protect him and no notice would be needed to sue him personally.

What it does not mean

The notice is not a formality to be waived by consent. It is a statutory condition on instituting the suit.

Section 80(2) does not abolish the notice. It permits institution with leave in cases of genuine urgency, and the plaint goes back if the urgency is not made out.

Giving the notice is not enough. The plaint must state that it was given.

Not every act of a public officer attracts the section. It applies to acts purporting to be done in his official capacity.

A decree against the Government is not immediately executable. Section 82 requires three months.

The department is not the party. Section 79 names the Union of India or the State.

The public officer's two protections: section 81

Section 81: in a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity:

(a) the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree; and (b) where the Court is satisfied that he cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.

Both limbs are narrow and both are worth stating: the protection covers only an act purporting to be done in his official capacity, and the arrest protection falls away once there is a decree to execute. The exemption from personal appearance sits beside the general exemptions in [Affidavits and Exemption from Personal Appearance], and the protection from arrest beside sections 56, 135 and 135A in [Arrest and Detention in Execution].

Quick revision## Quick revision

Section 79: the party is the Union of India for the Central Government, and the State for a State Government.

Section 80(1): two months' written notice before suing the Government, or a public officer for an act purporting to be done in his official capacity. Delivered to or left at the office of a Secretary to the Central Government, the General Manager where it relates to a railway, or a Secretary or the Collector of the district for a State; and on a public officer, to him or at his office. It must state the cause of action, the plaintiff's name, description and place of residence, and the relief claimed. The plaint must state that the notice was given.

Section 80(2): a suit for urgent or immediate relief may be instituted with the leave of the Court without notice; but no relief, interim or otherwise, until the Government or officer has had a reasonable opportunity of showing cause; and if no urgent relief is needed, the plaint is returned for compliance with sub-section (1).

Section 82: no execution against the Union, a State or such a public officer until the decree has remained unsatisfied for three months from its date.

Order XXVII: pleadings signed by a person the Government appoints and verified by a person acquainted with the facts; the Government Pleader is the Government's agent for receiving process; reasonable time allowed to a public officer to communicate with the Government; and the Court is to allow time where a settlement appears possible.

Test yourself

1. Who is named as the party in a suit against the Central Government? The Union of India, under section 79(a). In a suit by or against a State Government, the State is named, under section 79(b).

2. What is the legal requirement regarding notice in suits against the Government? Under section 80(1) no suit may be instituted against the Government, or against a public officer in respect of an act purporting to be done in his official capacity, until two months after a written notice has been delivered to or left at the office of the prescribed authority. The notice must state the cause of action, the name, description and place of residence of the plaintiff, and the relief claimed, and the plaint must contain a statement that the notice was so delivered or left.

3. On whom is the notice served in a suit against a State Government? On a Secretary to that Government, or on the Collector of the district.

4. Can a suit against the Government ever be filed without notice? Yes, under section 80(2), where urgent or immediate relief is sought, with the leave of the Court. But the Court may grant no relief, interim or otherwise, until the Government or the public officer has had a reasonable opportunity of showing cause, and if satisfied after hearing the parties that no urgent or immediate relief need be granted, the Court shall return the plaint for presentation after complying with sub-section (1).

5. When can a decree against the Government be executed? Not until the decree has remained unsatisfied for three months computed from the date of the decree, under section 82.

6. Does section 80 protect a public officer for every act? No. It applies to an act purporting to be done by him in his official capacity. An act done outside any colour of office is not protected, and no notice is required to sue him personally for it.

Rule 4 governs who may act: any person who is of sound mind and has attained majority may act as next friend or be appointed guardian for the suit, provided his interest is not adverse to that of the minor and he is not, in the case of a next friend, a defendant, or in the case of a guardian, a plaintiff. No person shall be appointed guardian for the suit without his consent in writing.

Rule 6: a next friend or guardian shall not, without the leave of the Court, receive any money or other movable property on behalf of the minor by way of compromise or by way of satisfaction of a decree.

Rule 7, and this is the one most often asked: no next friend or guardian for the suit shall, without the leave of the Court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit, unless the leave is so recorded. Any such agreement or compromise entered into without the leave of the Court shall be voidable against all parties other than the minor.

Rule 12 deals with what happens when the minor attains majority: he may elect to proceed with the suit, in which case he applies for an order discharging the next friend and for leave to proceed in his own name; or he may apply to have the suit dismissed on repayment of the costs incurred by the defendant, or paid by his next friend.

Rule 15 applies the whole of Rules 1 to 14, so far as may be, to persons of unsound mind, and to persons who, though not so adjudged, are found by the Court on inquiry to be incapable by reason of any mental infirmity of protecting their interests when suing or being sued.

Order XXIX: corporations

Rule 1: in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary, or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

Rule 2 deals with service: the summons may be served on the secretary, or on any director or other principal officer of the corporation, or by leaving it or sending it by post at the registered office, or, where there is no registered office, at the place where the corporation carries on business.

Rule 3 allows the Court, where it appears that any officer of the corporation is able to answer material questions relating to the suit, to require that officer to appear in person.

Order XXX: partners and firms

Rule 1(1): any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm, if any, of which they were partners at the time of the accruing of the cause of action. Any party may apply for a statement of the names and addresses of the persons who were partners at that time, to be furnished and verified as the Court directs.

That last provision is important. Suing in the firm name is a convenience of nomenclature, not a recognition that the firm is a person. The partners are still the parties, and any party may compel their names to be disclosed.

Rule 1(2): where persons sue or are sued in the firm name, it suffices for any pleading required to be signed or verified by the plaintiff or defendant to be signed or verified by any one of those persons.

Rule 3 provides for service on any one or more of the partners, or at the principal place of business on any person having control or management there.

Rule 4 covers the death of a partner: where two or more persons may sue or be sued in the firm name and any of them dies before the institution of the suit or before a decree, it shall not be necessary to join the legal representative of the deceased as a party.

Rule 10 extends the Order to a person carrying on business in a name or style other than his own, who may be sued in that name or style as if it were a firm name.

Order XXVIII and Order XXXI

Order XXVIII deals with suits by or against military or naval men or airmen. Where such a person, being a party to a suit, cannot obtain leave of absence to prosecute or defend it in person, he may authorise any person to sue or defend in his stead, by a written authority signed by him. The Court may also order that the authorised person be joined.

Order XXXI deals with trustees, executors and administrators. Rule 1 provides that in all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in that property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties. But the Court may, if it thinks fit, order them or any of them to be made parties.

A worked example

Rohan, aged sixteen, is knocked down by a delivery van owned by a partnership trading as "Sagar Traders". His mother wants to sue for damages, and the firm has three partners, one of whom has since died.

How is the suit instituted? In Rohan's own name, by his mother as his next friend, under Order XXXII Rule 1.

If it were filed without a next friend? The defendant could apply under Rule 2 to have the plaint taken off the file, and the costs would fall on the pleader or other person who presented it, not on Rohan.

Whom does he sue? He may sue in the firm name, "Sagar Traders", under Order XXX Rule 1(1), because the partners are liable as partners and were partners at the time the cause of action accrued. The firm may be required to furnish a statement of the partners' names and addresses.

The partner who died before the suit. Order XXX Rule 4: it is not necessary to join his legal representative.

Service on the firm. Under Rule 3, on any one or more of the partners, or at the principal place of business on a person having control or management there.

The firm wants to settle for a small sum. Order XXXII Rule 7 applies: the next friend cannot compromise on the minor's behalf without the leave of the Court expressly recorded in the proceedings, and a compromise entered into without that leave is voidable against every party except the minor. Under Rule 6 she also cannot receive the money without leave.

Rohan turns eighteen during the suit. Rule 12: he may elect to proceed, applying for an order discharging his next friend and for leave to proceed in his own name, or he may apply to have the suit dismissed on repayment of the defendant's costs.

The defendant later says the next friend had an interest adverse to Rohan's. Rule 3A: a decree against a minor is not to be set aside merely on that ground, unless prejudice has been caused to his interests by reason of it.

Change the defendant. Suppose the van belonged to a company instead. Order XXIX applies: pleadings signed and verified by the secretary, a director or other principal officer able to depose to the facts, and service on such an officer or at the registered office.

What it does not mean

A next friend is not the plaintiff. The suit is instituted in the minor's own name; the next friend conducts it.

A next friend and a guardian for the suit are not the same. The first acts for a minor plaintiff; the second is appointed by the Court for a minor defendant.

A firm is not a legal person. Order XXX allows suit in the firm name as a convenience, and the partners' names may be compelled.

A compromise for a minor is not effective merely because it is sensible. Rule 7 requires the leave of the Court expressly recorded, and without it the compromise is voidable against everyone except the minor.

An adverse interest does not by itself upset a decree against a minor. Rule 3A requires prejudice.

Aliens, foreign States and foreign Rulers: sections 83 to 87A

The Code has a short block on parties from outside India, and it is the natural neighbour of everything above.

Section 83, when aliens may sue: alien friends, and alien enemies residing in India with the permission of the Central Government, may sue in any competent Court as if they were citizens of India. Alien enemies residing in India without such permission, or residing in a foreign country, shall not sue.

Section 84, when foreign States may sue: a foreign State may sue in any competent Court, provided the object of the suit is to enforce a private right vested in the Ruler of that State or in any of its officers in his public capacity.

Section 85 allows the Government to specially appoint persons to prosecute or defend on behalf of a foreign Ruler.

Section 86, suits against foreign Rulers, Ambassadors and Envoys: no foreign State may be sued in any competent Court except with the consent of the Central Government, certified in writing by a Secretary to that Government. The proviso: a person may sue as a tenant of immovable property without that consent.

Section 87: the Ruler of a foreign State sues and is sued in the name of his State, unless in giving consent under section 86 the Central Government directs that he be sued in the name of an agent or otherwise. Section 87A defines "foreign State" as a State outside India recognised by the Central Government, and "Ruler" as the person recognised by that Government as its head.

The thread through all six is the same: access to the Indian courts by or against a foreign sovereign is controlled by the Central Government's recognition and consent, and the one thing a private person may always do without consent is sue as a tenant.

Consent by a person under disability: section 147

Section 147: in all suits to which a person under disability is a party, any consent or agreement as to any proceeding shall, if given or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if that person were under no disability and had given the consent himself.

So a minor's next friend can compromise a step in the proceeding, but only with the Court's express leave. Read it with Order XXXII Rule 7 above, which imposes the same requirement on an agreement or compromise on the minor's behalf.

Quick revision## Quick revision

Order XXXII, minors: a minor sues in his own name by a next friend, Rule 1; a plaint filed without one may be taken off the file with costs against the person who presented it, Rule 2; the Court appoints a guardian for the suit for a minor defendant, Rule 3; a decree is not set aside for an adverse interest unless prejudice is caused, Rule 3A; no money received and no compromise without the leave of the Court expressly recorded, and a compromise without leave is voidable against all but the minor, Rules 6 and 7; on majority he may elect to proceed or have the suit dismissed on repaying costs, Rule 12; the Order applies to persons of unsound mind and those incapable of protecting their interests, Rule 15.

Order XXIX, corporations: pleadings signed and verified by the secretary, a director or other principal officer able to depose; service on such an officer or at the registered office; an officer may be required to appear in person.

Order XXX, firms: partners may sue or be sued in the firm name, being partners at the time the cause of action accrued; the names and addresses of the partners may be required; any one partner may sign or verify; service on any partner or at the principal place of business; no need to join the legal representative of a partner who died before the suit or before decree; extended to a person trading in a name other than his own.

Order XXVIII: a soldier, sailor or airman unable to obtain leave of absence may authorise another in writing to sue or defend for him.

Order XXXI: a trustee, executor or administrator represents the beneficiaries, who need not ordinarily be joined, though the Court may order otherwise.

Test yourself

1. How is a suit by a minor instituted? In the minor's own name, by a person called the next friend of the minor, under Order XXXII Rule 1.

2. What happens if a suit is filed for 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, after notice to that person and hearing his objections: Order XXXII Rule 2.

3. What is the difference between a next friend and a guardian for the suit? A next friend conducts a suit for a minor plaintiff and needs no appointment by the Court. A guardian for the suit is appointed by the Court for a minor defendant, on the Court being satisfied of the fact of his minority, and no one may be appointed without his consent in writing.

4. Can a next friend compromise a minor's suit? Not without the leave of the Court expressly recorded in the proceedings, under Order XXXII Rule 7. Any agreement or compromise entered into without that leave is voidable against all parties other than the minor.

5. Can partners be sued in the name of their firm? Yes. Under Order XXX Rule 1, two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm of which they were partners at the time the cause of action accrued, and any party may require a statement of the names and addresses of those partners.

6. A partner dies before the suit is filed. Must his legal representative be joined? No. Order XXX Rule 4 provides that where persons may sue or be sued in the firm name and any of them dies before the institution of the suit or before a decree, it is not necessary to join the legal representative of the deceased as a party.

7. Who signs and verifies pleadings for a corporation? The secretary, or any director or other principal officer of the corporation who is able to depose to the facts of the case: Order XXIX Rule 1.

Rule 6: where the Court sees no reason to reject the application on any of the Rule 5 grounds, it fixes a day for receiving evidence of the applicant's indigency or in disproof of it, giving at least ten days' notice to the opposite party and to the Government Pleader.

Rule 7: on that day the Court examines the witnesses, hears the argument, and then either allows or refuses to allow the applicant to sue as an indigent person.

Rule 8: where the application is granted, it is numbered and registered and shall be deemed the plaint in the suit, and the suit proceeds in the ordinary manner, except that the plaintiff pays no court fee or fees for service of process.

The seven grounds of rejection: Rule 5

This is the list an essay must contain. The Court shall reject an application where:

(a) it is not framed and presented in the manner prescribed by Rules 2 and 3 (b) the applicant is not an indigent person (c) he has, within two months next before presenting the application, disposed of any property fraudulently or in order to be able to apply as an indigent person (d) his allegations do not show a cause of action (e) he has entered into an agreement with reference to the subject matter of the proposed suit under which another person has obtained an interest in it (f) the allegations in the application show that the suit would be barred by any law for the time being in force (g) any other person has entered into an agreement with him to finance the litigation

The proviso to clause (c) softens it: no application shall be rejected if, even after taking into account the value of the property disposed of, the applicant would still be entitled to sue as an indigent person. So the ground bites only where the disposal actually made the difference.

Note the shape of the list. Clauses (a) and (b) are about the application and the applicant. Clauses (d) and (f) are about the merits, and they mirror Order VII Rule 11(a) and (d): no cause of action, or barred by law. Clauses (c), (e) and (g) are all anti-abuse provisions, aimed at a person who has manufactured his poverty, sold an interest in the claim, or found a backer.

What happens to the fee in the end

The Code does not forgive the fee; it postpones it and then recovers it where it can.

Rule 10: where the indigent person succeeds, the Court shall calculate the amount of court fees which would have been paid had he not been permitted to sue as an indigent person, and that amount shall be recoverable by the State Government from any party ordered by the decree to pay it, and shall be a first charge on the subject matter of the suit.

Rule 11: where he fails, or is dispaupered, or the suit is withdrawn or dismissed in the circumstances the rule specifies, the Court shall order him, or any co-plaintiff, to pay the court fees which would have been paid had he not been permitted to sue as an indigent person.

Rule 11A extends that to cases where the suit abates by reason of the death of the plaintiff.

Rule 9 allows the Court, on the application of the defendant or the Government Pleader and after notice, to dispauper the plaintiff, that is, withdraw the permission, where he is guilty of vexatious or improper conduct in the course of the suit, or where his means are such that he ought not to continue to sue as an indigent person, or where he has entered into an agreement under which another person has obtained an interest in the subject matter.

Rule 9A is the access-to-justice provision: where a person is allowed to sue as an indigent person, the Court shall, where the circumstances so require, assign a pleader to him, if he is not represented by one.

Rule 15 provides that an order refusing permission to sue as an indigent person bars a fresh application of the same nature in respect of the same right to sue; but the applicant may still institute a suit in the ordinary manner, on paying the court fees.

Rule 15A and Rule 17 extend the provisions of the Order, so far as may be, to defence by an indigent person and to a person allowed to appeal as an indigent person.

A worked example

Hema's landlord has locked her out of her home. Her claim is worth about Rs. 8,00,000 and the court fee on it is far beyond her. Her only assets are her household utensils and clothing.

Can she apply? Her utensils and clothing are the kind of property exempt from attachment in execution, and the house is the subject matter of the suit. Both are excluded, so on the Explanation to Rule 1 she is not possessed of sufficient means to pay the fee, and she is an indigent person.

What does she file? An application containing the particulars required in a plaint, with a schedule of her property and its estimated value, signed and verified, presented in person under Rule 3.

What happens next? The chief ministerial officer inquires into her means under Rule 1A. If the Court sees no ground for rejection, it fixes a day under Rule 6 and gives at least ten days' notice to the landlord and to the Government Pleader, so both can test the claim of indigency.

The application is granted. Under Rule 8 it is numbered and registered and is deemed the plaint, and the suit proceeds without court fee or process fees. Under Rule 9A the Court may assign her a pleader.

Change one fact. Suppose she transferred her gold to her sister six weeks before applying, in order to qualify. Rule 5(c) applies, since that is within two months and was done to enable her to apply. But by the proviso, if she would still be indigent even counting the gold, the application is not rejected.

Change another. Suppose she agreed with a financier that he would fund the case for a share of the recovery. Rule 5(g) requires rejection, and if the agreement came to light later, Rule 9 allows her to be dispaupered.

She wins. Rule 10: the court fees she would have paid are recoverable by the State Government from the party ordered by the decree to pay them, and they are a first charge on the subject matter.

She loses instead. Rule 11: the Court orders her to pay the court fees she would have paid had she not been permitted to sue as an indigent person.

Her application is refused at the outset. Rule 15 bars a fresh application of the same nature on the same right to sue, but she may still bring an ordinary suit if she can find the fee.

What it does not mean

It is not a waiver of the court fee. The fee is postponed and recovered under Rule 10 or Rule 11 at the end.

It is not decided on the applicant's word. Rule 1A requires an inquiry into means, and Rule 6 requires notice to the opposite party and the Government Pleader.

The subject matter of the suit is not counted in deciding indigency, nor is property exempt from attachment.

Permission is not irrevocable. Rule 9 allows dispaupering for vexatious conduct, improved means, or an agreement giving another an interest in the subject matter.

A refusal does not end the claim. Rule 15 bars a fresh application, not an ordinary suit on payment of the fee.

Quick revision

Indigent person, Explanation to Rule 1: not possessed of sufficient means to pay the prescribed court fee, or, where no fee is prescribed, not entitled to property worth one thousand rupees; in both cases excluding property exempt from attachment and the subject matter of the suit. Property acquired after the application and before its decision counts.

Application: particulars of a plaint plus a schedule of property, signed and verified, Rule 2; presented in person, Rule 3; means inquired into by the chief ministerial officer, Rule 1A; day fixed with ten days' notice to the opposite party and the Government Pleader, Rule 6; allowed or refused after evidence, Rule 7; if allowed, numbered and registered and deemed the plaint, and no court fee or process fee, Rule 8.

Seven grounds of rejection, Rule 5: not framed and presented as prescribed; not an indigent person; property disposed of fraudulently or to qualify within two months, subject to the proviso; no cause of action; an agreement giving another an interest in the subject matter; the suit barred by any law on the applicant's own allegations; and an agreement by another to finance the litigation.

Afterwards: fee recoverable by the State Government and a first charge on the subject matter where he succeeds, Rule 10; payable by him where he fails, Rule 11; dispaupering under Rule 9; a pleader assigned under Rule 9A; a refusal bars a fresh application but not an ordinary suit, Rule 15; extended to defence and to appeals, Rules 15A and 17.

Test yourself

1. Who is an indigent person? A person who 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 pay the fee prescribed by law for the plaint in that suit; or, where no such fee is prescribed, one who is not entitled to property worth one thousand rupees, again excluding exempt property and the subject matter of the suit.

2. What must the application 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 in the manner prescribed for pleadings. It must ordinarily be presented by the applicant in person.

3. State the grounds on which the Court shall reject the application. Where it is not framed and presented as prescribed by Rules 2 and 3; where the applicant is not an indigent person; where within two months before the application he has disposed of property fraudulently or in order to qualify, unless he would still be indigent even counting it; where his allegations show no cause of action; where he has agreed that another shall have an interest in the subject matter; where his own allegations show the suit would be barred by any law in force; and where another person has agreed with him to finance the litigation.

4. What happens if the indigent person succeeds in the suit? Under Rule 10 the Court calculates the court fees which would have been paid had he not been permitted to sue as an indigent person, and that amount is recoverable by the State Government from any party ordered by the decree to pay it, and is a first charge on the subject matter of the suit.

5. Can permission once granted be withdrawn? Yes. Under Rule 9 the Court may, on the application of the defendant or the Government Pleader and after notice, dispauper the plaintiff where he is guilty of vexatious or improper conduct in the course of the suit, or where his means are such that he ought not to continue to sue as an indigent person, or where he has entered into an agreement under which another has obtained an interest in the subject matter.

6. Is an indigent person entitled to a lawyer? Under Rule 9A, where a person is allowed to sue as an indigent person and is not represented by a pleader, the Court shall, where the circumstances so require, assign a pleader to him.

7. If the application is refused, can he apply again? Not by a fresh application of the same nature in respect of the same right to sue, which Rule 15 bars. He may however institute a suit in the ordinary manner, on payment of the court fees.

(b) declaring the amount so due at that date; and

(c) directing that if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix, within six months from the date on which the Court confirms and countersigns the account, or from the date the amount is declared, and thereafter pays such further sums as are adjudged due for subsequent costs, charges and expenses under Rule 10 with subsequent interest under Rule 11, the plaintiff shall deliver up all documents relating to the mortgaged property and, where necessary, retransfer the property and put the defendant in possession.

The important figure is six months, and the important structure is the alternative between taking an account under clause (a) and simply declaring the amount under clause (b).

Rule 3 then provides for the final decree in a foreclosure suit. Where the payment is made, the Court passes a final decree ordering the plaintiff to deliver up the documents and, if necessary, retransfer and deliver possession. Where the payment is not made, the plaintiff may apply for a final decree debarring the defendant from all right to redeem the property.

Sale: Rules 4, 5 and 6

Rule 4(1): in a suit for sale, if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c)(i) of Rule 2(1), and further directing that, in default of payment, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part of it be sold, and the proceeds, after deducting the expenses of the sale, be paid into Court and applied in payment of what was found due, together with subsequent costs, charges, expenses and interest, the balance, if any, being paid to the defendant or other persons entitled.

Rule 4(2): the Court may, on good cause shown and on terms, from time to time and at any time before a final decree for sale is passed, extend the time fixed for payment.

Rule 4(3) allows the Court in a foreclosure suit, in the case of an anomalous mortgage and certain other cases, to decree sale instead.

Rule 5 governs what happens where payment is made before the sale is confirmed, and Rule 6 provides for the recovery of the balance where the net proceeds of the sale are insufficient: the plaintiff may, if the balance is legally recoverable otherwise than out of the property sold, apply for a personal decree against the defendant for that balance.

Rule 6 is the practical answer to the exam question "what if the property does not fetch enough".

Redemption: Rules 7 and 8

Rule 7(1) is the mirror of Rule 2. In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree ordering that an account be taken of what was due to the defendant at the date of the decree for principal and interest, costs of suit awarded to him, and other proper costs, charges and expenses with interest; or declaring the amount so due; and directing that if the plaintiff pays into Court that amount, on or before such date as the Court may fix within six months, together with subsequent sums under Rules 10 and 11, the defendant shall deliver up the documents and, where necessary, retransfer the property and put the plaintiff in possession.

Rule 8 provides for the final decree in a redemption suit: where payment is made, the Court passes a final decree ordering the defendant to deliver up the documents and, where appropriate, to retransfer and deliver possession. Where payment is not made, the consequences depend on the nature of the mortgage: the Court may pass a final decree for foreclosure or direct a sale, according to the case.

Rules 10 and 11 run through all three. Rule 10 provides for the costs, charges and expenses subsequent to the preliminary decree to be added on, and Rule 11 governs the interest payable, on principal and on those subsequent sums.

Rule 14 is a separate and important prohibition: where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. In other words, a money decree does not let him short-circuit Order XXXIV.

A worked example

Sameer mortgages a plot in Panvel to Tanya for Rs. 20,00,000. He does not repay. Tanya sues for sale.

Where is the suit filed? Under section 16(c), in the Court within whose local limits the property is situate, that is Panvel.

Who must be joined? Under Rule 1, all persons having an interest in the mortgage security or in the right of redemption, so any subsequent mortgagee or purchaser of the equity.

What is the preliminary decree? Under Rule 4(1), the Court orders an account of what is due to Tanya for principal and interest, her costs of the suit, and her other proper costs and charges with interest; or declares that amount. It then fixes a date, within six months of the account being confirmed or the amount declared, by which Sameer may pay. And it directs that in default Tanya may apply for a final decree for sale.

Sameer needs longer. Rule 4(2): the Court may, on good cause and on terms, extend the time at any time before the final decree for sale is passed. After that decree, it cannot.

He does not pay. Tanya applies for a final decree directing that the property, or a sufficient part of it, be sold, the proceeds after the expenses of sale being paid into Court and applied to what was found due with subsequent costs and interest, and any balance paid to Sameer.

The plot fetches only Rs. 16,00,000. Rule 6: Tanya may apply for a personal decree against Sameer for the shortfall, provided the balance is legally recoverable otherwise than out of the property sold.

Change the facts. Suppose Sameer sues Tanya for redemption. Rule 7 mirrors the process: the account is of what is due to Tanya, and it is Sameer who must pay into Court within the period fixed, not exceeding six months, whereupon Tanya delivers up the documents and, where necessary, retransfers and gives possession. If he fails to pay, Rule 8 allows a final decree for foreclosure or a direction for sale, according to the nature of the mortgage.

And another. Suppose Tanya had obtained an ordinary money decree against Sameer on the debt and wanted to attach and sell the mortgaged plot in execution of it. Rule 14 forbids it: she cannot bring the mortgaged property to sale otherwise than by instituting a suit for sale to enforce the mortgage.

What it does not mean

A mortgage suit is not decided in one decree. The preliminary decree settles the amount and fixes a period; the final decree gives effect to what follows.

Six months is not the period from the decree. It runs from the date the Court confirms and countersigns the account, or from the date the amount is declared in Court.

The time cannot be extended after the final decree for sale. Rule 4(2) allows extension only before it is passed.

A shortfall is not automatically lost. Rule 6 permits a personal decree for the balance where it is legally recoverable otherwise than out of the property sold.

A money decree does not let a mortgagee sell the property. Rule 14 requires a suit for sale.

Quick revision

Three suits: foreclosure and sale by the mortgagee, redemption by the mortgagor. All persons interested in the security or the right of redemption are joined, Rule 1. The suit goes where the property is situate, section 16(c).

Preliminary decree, Rules 2, 4 and 7: an account taken of principal, interest, costs of suit, and other proper costs, charges and expenses with interest; or the amount declared; and a date fixed for payment, within six months of the account being confirmed or the amount declared, plus subsequent sums under Rules 10 and 11.

Final decree: on payment, documents delivered up and, where necessary, retransfer and possession. On default, foreclosure debars the right to redeem, Rule 3; sale directs the property to be sold, the proceeds applied, and the balance paid to the defendant, Rule 4; redemption may end in foreclosure or sale according to the mortgage, Rule 8.

Rule 4(2): time may be extended on good cause before the final decree for sale. Rule 6: a personal decree for any balance legally recoverable otherwise than out of the property sold. Rule 14: a mortgagee with a money decree may not bring the mortgaged property to sale except by a suit for sale.

Test yourself

1. Name the three kinds of mortgage suit and who brings each. Foreclosure and sale, both brought by the mortgagee, and redemption, brought by the mortgagor.

2. What does the preliminary decree in a suit for sale contain? An order that an account be taken of what is due to the plaintiff for principal and interest, the costs of the suit awarded to him, and other costs, charges and expenses properly incurred with interest, or a declaration of that amount; a direction fixing a date for payment within six months of the account being confirmed and countersigned or the amount declared; and a direction that in default the plaintiff may apply for a final decree for the sale of the mortgaged property or a sufficient part of it.

3. From what date does the six-month period run? From the date on which the Court confirms and countersigns the account taken, or from the date on which the amount is declared in Court, as the case may be.

4. Can the time for payment be extended? Yes. Under Order XXXIV Rule 4(2) the Court may, on good cause shown and on terms it fixes, extend the time from time to time at any time before a final decree for sale is passed.

5. The sale proceeds are insufficient to satisfy the decree. What can the mortgagee do? Under Rule 6 he may apply for a personal decree against the defendant for the balance, if that balance is legally recoverable from him otherwise than out of the property sold.

6. A mortgagee holds an ordinary money decree. May he attach and sell the mortgaged property in execution of it? No. Under Order XXXIV Rule 14, where a mortgagee has obtained a decree for payment of money in satisfaction of a claim arising under the mortgage, he is not entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage.

7. What happens in a redemption suit if the mortgagor does not pay within the period fixed? Under Rule 8 the Court may pass a final decree for foreclosure, or direct a sale of the mortgaged property, according to the nature of the mortgage.

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance; and

(b) where the Court of first instance has ceased to exist, or has ceased to have jurisdiction to execute it, the Court which, if the suit in which the decree was passed were instituted at the time of making the application for execution, would have jurisdiction to try that suit.

Take the two limbs separately, because each answers a real problem.

Limb (a) stops appellate decrees becoming unenforceable in practice. When the High Court allows an appeal and passes a decree, that decree is not executed by the High Court. The trial court executes it. Without this deeming provision a successful appellant would have to go back to a court that never passed the decree and had no power over it.

Limb (b) deals with courts that are abolished or reorganised, which happens whenever districts are redrawn. The decree does not die with the court. The court which would today have jurisdiction to try that suit takes over.

The Explanation to the section adds that the Court of first instance does not cease to have jurisdiction to execute a decree merely because, after the institution of the suit, the local limits of its jurisdiction have been altered and the subject matter has fallen within the limits of another Court.

So the safe two-sentence answer is: the expression means the court that actually passed the decree, and is deemed also to include the court of first instance where the decree was passed in appeal, and the court which would now have jurisdiction to try the suit where the court of first instance has ceased to exist or to have jurisdiction.

How execution is set in motion: Order XXI Rules 10 to 11A

Rule 10: where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree, or, where the decree has been sent to another Court, to that Court or to the proper officer of it.

Rule 11(1) allows an oral application in one narrow case: where a decree is for the payment of money, the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution by the arrest of the judgment-debtor, before the preparation of a warrant, if he is within the precincts of the Court.

Rule 11(2) is the general rule: in all other cases the application shall be in writing, signed and verified, and shall contain in a tabular form the particulars the rule lists, which include the number of the suit, the names of the parties, the date of the decree, whether any appeal has been preferred, whether any payment or adjustment has been made between the parties subsequent to the decree, whether any previous applications for execution have been made and their dates and results, the amount with interest or other relief granted, the name of the person against whom execution is sought, and the mode in which the assistance of the Court is required.

Rule 11A requires that where an application is for the arrest of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.

Rule 17 governs the procedure on receiving the application: the Court shall ascertain whether the requirements of Rules 11 to 14 have been complied with, and if they have not, may reject the application or allow the defect to be remedied then and there or within a time fixed. Where the defect is remedied, the application is deemed to have been an application in accordance with law and presented on the date when it was first presented.

That last sentence matters for limitation, and it is the sort of detail an examiner likes.

A worked example

Uday obtains a decree for Rs. 6,00,000 against Vandana from the Civil Judge at Kalyan. Vandana appeals to the District Court, which dismisses the appeal and passes its own decree.

Which court executes? Under section 37(a), "the Court which passed the decree" is deemed to include the Court of first instance, so the decree is executed by the Civil Judge at Kalyan, not by the District Court.

Suppose the Kalyan court has since been abolished in a reorganisation. Section 37(b): the court which, if the suit were instituted today, would have jurisdiction to try it, executes the decree.

Suppose instead the local limits have merely been redrawn and the property now falls in another court's area. The Explanation applies: the Court of first instance does not cease to have jurisdiction merely because of that alteration.

How does Uday start? By a written application under Order XXI Rule 11(2), signed and verified, setting out in tabular form the suit number, the parties, the date of the decree, whether an appeal was preferred, any payment or adjustment since the decree, any previous execution applications and their results, the amount with interest, the person against whom execution is sought, and the mode of assistance required.

He wants Vandana arrested. Then Rule 11A applies as well: the application must state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.

His application omits the previous execution applications. Rule 17: the Court may reject it, or allow the defect to be remedied. If it is remedied, the application is treated as having been presented on the date it was first presented, which may save it on limitation.

Change the facts. Suppose Uday had obtained not a decree but an order capable of execution. Section 36 applies the same machinery, so nothing changes.

What it does not mean

Execution is not part of the trial. It is a separate stage with its own machinery, and its own court.

The appellate court does not execute its own decree. Section 37(a) sends it to the court of first instance.

A decree does not die with the court that passed it. Section 37(b) supplies the successor.

A redrawing of local limits does not oust the trial court. The Explanation says so expressly.

An oral application is not generally allowed. Only in the narrow case in Rule 11(1), for a money decree, at the moment the decree is passed, where the judgment-debtor is in the precincts of the Court.

A defective application is not necessarily dead. Rule 17 allows the defect to be remedied, and the application then relates back to its original presentation.

Quick revision

Execution is the enforcement of a decree, governed by sections 36 to 74 and Order XXI.

Section 36: the execution provisions apply to orders as well as decrees.

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

Section 37: "the Court which passed a decree" is deemed to include (a) the Court of first instance where the decree was passed in appellate jurisdiction, and (b) where that court has ceased to exist or to have jurisdiction, the Court which would now have jurisdiction to try the suit. Explanation: a mere alteration of local limits after the institution of the suit does not oust the court of first instance.

Order XXI Rule 10: apply to the court which passed the decree, or the court to which it was sent. Rule 11(1): oral application only for a money decree, at the passing of the decree, for arrest, where the judgment-debtor is in the precincts. Rule 11(2): otherwise a written, signed and verified application in tabular form, with the particulars listed. Rule 11A: grounds for arrest to be stated or affidavited. Rule 17: defects may be remedied, and the application then relates back to the date of first presentation.

Test yourself

1. What is meant by execution? Execution is the process by which a decree-holder compels the judgment-debtor to carry out the mandate of the decree, so that the decree-holder obtains the relief awarded to him. It is governed by sections 36 to 74 of the Code and by Order XXI.

2. What is meant by "the Court which passed a decree"? The court that actually passed it, and by section 37 it is deemed also to include the Court of first instance where the decree was passed in the exercise of appellate jurisdiction, and, where the Court of first instance has ceased to exist or to have jurisdiction to execute the decree, the Court which would have jurisdiction to try the suit if it were instituted at the time of the application for execution.

3. Which courts may execute a decree? Under section 38, the Court which passed it and the Court to which it is sent for execution.

4. Does a change in the local limits of a court's jurisdiction stop it executing its own decree? No. The Explanation to section 37 provides that the Court of first instance does not cease to have jurisdiction to execute a decree merely because, after the institution of the suit, the local limits of its jurisdiction have been altered and the subject matter has fallen within the limits of another court.

5. How is an application for execution made? In writing, signed and verified, in a tabular form containing the particulars listed in Order XXI Rule 11(2). An oral application is allowed only under Rule 11(1), where the decree is for the payment of money and the decree-holder applies at the time of the passing of the decree for the immediate arrest of the judgment-debtor, who is within the precincts of the court.

6. What happens if the execution application is defective? Under Order XXI Rule 17 the Court may reject it, or allow the defect to be remedied then and there or within a time fixed. Where the defect is remedied, the application is deemed to have been made in accordance with law and to have been presented on the date when it was first presented.

7. Do the execution provisions apply to orders? Yes. Section 36 provides that the provisions of the Code relating to the execution of decrees, including provisions relating to payment under a decree, apply so far as applicable to the execution of orders.

That certificate is the safeguard against double recovery. The receiving court is told exactly how much is left.

Order XXI Rule 8: where a decree sent for execution has been executed, or where execution has been stayed, the Court executing it shall certify the fact to the Court which passed the decree.

Section 41 puts the same duty in the sections: the Court to which a decree is sent shall certify to the Court which passed it the fact of execution, or, where it fails to execute, the circumstances attending the failure.

Section 42(1): the Court executing a decree sent to it shall have the same powers in executing it as if it had been passed by itself, and all persons disobeying or obstructing shall be punishable by it in the same way. Its order in executing the decree is subject to the same rules in respect of appeal as if it had passed the decree itself.

Section 42(2) spells out four powers the transferee court has, including the power to send the decree for execution to another Court under section 39, to execute it against the legal representative of the deceased judgment-debtor under section 50, to order attachment of a decree, and to enforce any order as to costs.

Section 42(3) is the corresponding limit: the transferee court shall not have the power to order execution at the instance of a transferee of the decree, nor certain powers reserved to the court which passed it.

Section 43 deals with decrees passed by Civil Courts in places to which the Code does not extend, and section 44 with decrees of Revenue Courts in such places.

Section 44A is the foreign decree provision: a certified copy of a decree of a superior court of a reciprocating territory may be filed in a District Court and executed as if it had been passed by that District Court, and the executing court must refuse execution if the decree falls within any of the exceptions in section 13(a) to (f). Its substance and its limits, including the exclusion of taxes, fines and arbitration awards, are dealt with in [Foreign Judgments].

Section 45 allows a decree to be sent for execution to a Court outside India established by the Central Government, where the State Government has by notification declared that section applicable.

Section 46, precepts. This is the one students overlook and examiners like. The Court which passed a decree may, on the application of the decree-holder, issue a precept to any other Court which would be competent to execute it, requiring that Court to attach any property belonging to the judgment-debtor and specified in the precept. The proviso limits it: no attachment under a precept shall continue for more than two months, unless the period is extended by an order of the Court which passed the decree, or unless before its determination the attachment has been withdrawn.

A precept is therefore a holding device. It freezes property in another district while the decree-holder gets the decree itself transferred, and it lasts two months.

Section 39 against section 46

A worked example

Aisha obtains a money decree in Thane against Bharat, who lives in Thane but owns a warehouse in Solapur and a bank account in Pune.

Can the Thane court attach the Solapur warehouse itself? No. Section 39(4): nothing authorises the court which passed the decree to execute it against property outside its own local limits.

What does she do? She applies under section 39(1)(b), because Bharat has no property within Thane sufficient to satisfy the decree and has property in Solapur. The Thane court may send the decree to the Solapur court, which must be of competent jurisdiction, judged under section 39(3) by whether it could try that suit today.

What travels with the decree? Under Order XXI Rule 6, a copy of the decree, a certificate of non-satisfaction or of the extent of part satisfaction, and a copy of any execution order or a certificate that none was made.

What can the Solapur court do? Under section 42(1), everything the Thane court could have done, as if it had passed the decree itself, and its orders are appealable on the same footing.

Bharat is about to sell the Pune bank balance while the transfer is being arranged. Aisha applies under section 46 for a precept to the Pune court to attach it. That attachment lasts two months unless extended by the Thane court.

The Solapur court executes in part. Under section 41 and Order XXI Rule 8 it must certify the fact of execution back to Thane, so the record of what remains outstanding stays accurate.

Change the facts. Suppose the decree is a money decree of a superior court in Singapore. Aisha does not need section 39 at all: section 44A lets her file a certified copy in a District Court here, and it is executed as if that court had passed it, subject to the section 13 exceptions.

What it does not mean

Transfer is not the court's to order at large. Under section 39(1) it is on the application of the decree-holder; only under sub-section (2), and only to a subordinate court, may it act of its own motion.

A court cannot execute outside its own limits. Section 39(4).

Competence is not judged as at the date of the suit. Section 39(3) fixes it at the time of the transfer application.

A precept is not a transfer. It attaches specified property, for two months, and no more.

The transferee court is not a lesser court. Section 42(1) gives it the same powers as if it had passed the decree, subject to the exceptions in sub-section (3).

Two short sections that complete the Part: sections 40 and 49

Section 40, transfer to another State: where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State. So the receiving State's own rules govern, not ours.

Section 49, transferee: every transferee of a decree holds it subject to the equities, if any, which the judgment-debtor might have enforced against the original decree-holder. A decree can be assigned, but it is assigned with its defences attached; the transferee is in no better position than the person he bought from.

Quick revision## Quick revision

Section 38: executed by the court which passed it, or the court to which it is sent.

Section 39(1), on the decree-holder's application, four grounds: (a) the judgment-debtor resides, carries on business or works for gain there; (b) he has insufficient property here and property there; (c) the decree directs sale or delivery of immovable property situate there; (d) any other reason recorded in writing. 39(2): of its own motion, to a subordinate court. 39(3): competence judged at the time of the transfer application. 39(4): no execution against person or property outside the court's own limits.

Order XXI Rule 6: send a copy of the decree, a certificate of non-satisfaction or part satisfaction, and a copy of any execution order. Rule 8 and section 41: the transferee court certifies back execution, stay, or the circumstances of failure.

Section 42: the transferee court has the same powers as if it had passed the decree, with the exceptions in sub-section (3).

Section 44A: a money decree of a superior court of a reciprocating territory, filed in a District Court, executed as its own, subject to section 13.

Section 46, precept: a direction to another competent court to attach specified property, lasting two months unless extended.

Test yourself

1. On what grounds may a decree be sent to another court for execution? Where the judgment-debtor actually and voluntarily resides, carries on business or personally works for gain within the limits of that court; where he has no property within the limits of the court which passed the decree sufficient to satisfy it but has property within the limits of that other court; where the decree directs the sale or delivery of immovable property situate outside the limits of the court which passed it; or for any other reason which the court which passed the decree records in writing.

2. May the court which passed the decree transfer it without an application? Only to a subordinate court. Section 39(2) allows it to send the decree of its own motion to any subordinate court of competent jurisdiction; a transfer under sub-section (1) is on the application of the decree-holder.

3. When is a court "of competent jurisdiction" for this purpose? Under section 39(3), if at the time of making the application for the transfer it would have jurisdiction to try the suit in which the decree was passed.

4. What must accompany a decree sent for execution? Under Order XXI Rule 6, a copy of the decree, a certificate stating that satisfaction has not been obtained by execution within the jurisdiction of the court which passed it, or the extent to which satisfaction has been obtained and what remains unsatisfied, and a copy of any order for execution or a certificate that none has been made.

5. What powers has the court to which a decree is sent? Under section 42(1) the same powers in executing the decree as if it had been passed by itself, with its orders subject to the same rules as to appeal, subject to the exceptions in section 42(3), which include the power to order execution at the instance of a transferee of the decree.

6. What is a precept, and how long does it last? Under section 46, a precept is an order issued by the court which passed the decree, on the decree-holder's application, to another court competent to execute it, requiring that court to attach property of the judgment-debtor specified in the precept. Such an attachment shall not continue for more than two months unless the period is extended by the court which passed the decree, or unless it is withdrawn before then.

Two, the question must relate to the EXECUTION, DISCHARGE OR SATISFACTION of the decree. Those three words cover a wide field: whether the decree has been paid, whether it is capable of execution, whether it is barred by limitation, whether the property attached is covered by it, whether possession has been delivered.

Three, the question must arise in relation to a DECREE, meaning something the Code treats as executable, which by section 36 includes an executable order.

Who counts as a party

The section is generous, and the two Explanations are the reason.

Explanation I answers a puzzle. If a suit was dismissed, is the losing plaintiff still a "party to the suit" for a question about executing the costs decree against him? The Explanation says yes, both a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties.

Explanation II answers a much more practical one. A stranger buys the property at the court auction. He is not a party to the original suit at all. When he cannot get possession, must he file a fresh suit? The Explanation deems him a party, and deems all questions about delivery of possession to him to be questions relating to execution. So he goes back to the executing court, which is quick, instead of starting a suit, which is not.

Section 47(3) completes the picture: where it is disputed whether a person is a representative of a party at all, that dispute is itself decided by the executing court.

What the executing court cannot do

This is the limit that every answer should state, and it follows from the words of the section rather than from any separate rule.

The executing court decides questions relating to the execution, discharge or satisfaction of the decree. It does not sit in appeal over the decree. It cannot hold that the decree is wrong on the merits, or that the trial court misread the evidence, or that a different relief should have been granted. The remedies for a wrong decree are appeal, review and revision, dealt with in [Reference, Review and Revision] and the appeal chapters.

The one recognised qualification is the nullity principle: a decree passed by a court with no inherent jurisdiction over the subject matter is a nullity, and its invalidity can be set up whenever it is relied on, including in execution. That principle is stated in Kiran Singh, which is discussed with its limits in [Objections to Jurisdiction]. So an executing court may refuse to execute a decree that is a nullity, but it may not refuse to execute a decree that is merely wrong.

Res judicata in execution

Explanation VII to section 11 applies the doctrine of res judicata to execution proceedings: a question decided at one stage of executing a decree cannot be reopened at a later stage of executing that same decree. That Explanation was inserted by the 1976 amendment, and it is set out in [Res Judicata].

Read with section 47 the position is coherent. Section 47 says all execution questions belong to the executing court; Explanation VII says once that court has decided one, it stays decided.

A worked example

Wasim obtains a money decree against Xavier. In execution, Xavier's flat is attached and sold at auction to Yusuf, a stranger.

Xavier says he paid the decree amount before the attachment. That is a question of satisfaction of the decree between the parties. Section 47: it is decided by the executing court, and Xavier cannot bring a separate suit for a declaration that the decree is satisfied.

Xavier says the decree is barred by limitation. A question relating to execution, again for the executing court.

Xavier says the trial judge wrongly believed Wasim's witness. That is not a section 47 question at all. The executing court cannot go behind the decree. His remedies lay in appeal or review, in time.

Xavier says the suit was tried by a court that had no jurisdiction over the subject matter at all. Different again: an inherent want of jurisdiction makes the decree a nullity, and that may be set up even in execution.

Yusuf, the auction purchaser, cannot get possession. He is a stranger to the suit, but Explanation II deems him a party and deems questions about delivery of possession to him to be execution questions. He applies in the executing court; he does not file a suit.

Zoya, Xavier's sister, says the flat was hers all along. She is a stranger, and her objection does not relate to a question between the parties. Section 47 does not apply. Her route is a claim or objection to the attachment under Order XXI Rule 58.

A question arises whether Xavier's son is his legal representative for the purposes of execution. Section 47(3): the executing court decides that too.

The executing court decides against Xavier on the payment question, and later in the same execution he raises it again. Explanation VII to section 11 bars him: res judicata applies between stages of the same execution.

What it does not mean

Section 47 does not let the executing court re-try the suit. It cannot go behind the decree.

It does not cover strangers. A third party claiming the attached property proceeds under Order XXI Rule 58, not under section 47.

"Discharge or satisfaction" is not limited to payment. It covers any question about whether the decree has been carried out or is capable of being carried out.

An auction purchaser is not shut out because he was not a party. Explanation II deems him one for questions about delivery of possession.

A dismissed plaintiff is still a party. Explanation I says so.

Quick revision

Section 47(1): all questions between the parties or their representatives relating to the execution, discharge or satisfaction of the decree are determined by the executing court and not by a separate suit.

Three conditions: between the parties or their representatives; relating to execution, discharge or satisfaction; in relation to a decree, which by section 36 includes an executable order.

Section 47(3): whether a person is a representative of a party is itself decided by that court.

Explanation I: a plaintiff whose suit was dismissed, and a defendant against whom a suit was dismissed, are parties.

Explanation II: an auction purchaser is deemed a party, and questions about delivery of possession to him are execution questions. Omitted in Uttar Pradesh.

Limits: the executing court cannot go behind the decree, except that a decree passed without inherent jurisdiction is a nullity and may be resisted even in execution. A stranger's claim to attached property goes under Order XXI Rule 58.

Explanation VII to section 11 applies res judicata to execution proceedings.

Test yourself

1. What does section 47 provide? That 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.

2. State the conditions for the application of section 47. The question must arise between the parties to the suit or their representatives; it must relate to the execution, discharge or satisfaction of the decree; and it must arise in relation to a decree, which by section 36 includes an order capable of execution.

3. Can the executing court hold that the decree is wrong? No. It cannot go behind the decree, and a party's remedy against a wrong decree is appeal, review or revision. The one qualification is that a decree passed by a court with no inherent jurisdiction over the subject matter is a nullity and may be resisted even in execution.

4. A stranger claims the attached property is his. Is that a section 47 question? No. Section 47 covers questions between the parties to the suit or their representatives. A stranger's claim to attached property is made by way of a claim or objection under Order XXI Rule 58.

5. An auction purchaser cannot obtain possession. Must he file a suit? No. Explanation II to section 47 deems a purchaser of property at a sale in execution to be a party to the suit, and deems all questions relating to the delivery of possession of that property to him or his representative to be questions relating to the execution, discharge or satisfaction of the decree. He therefore applies to the executing court.

6. Is a plaintiff whose suit has been dismissed a party for the purposes of section 47? Yes. Explanation I provides that a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit for the purposes of the section.

7. Can a question decided in execution be reopened later in the same execution? No. Explanation VII to section 11 applies the principle of res judicata to proceedings for the execution of a decree, so a question heard and finally decided at one stage cannot be reagitated at a later stage of that execution.

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

The Explanation provides that in calculating the means of the judgment-debtor for clause (b), there shall be left out of account any property which is by section 60 exempt from attachment in execution of the decree.

Three things follow, and each is worth a sentence in an answer.

Imprisonment requires a hearing. The judgment-debtor must be given an opportunity of showing cause first.

It requires reasons in writing. Not a bare order.

It requires dishonesty, means, or a fiduciary duty. Poverty alone is never enough. Clause (b) is the common ground in practice, and the Explanation makes clear that exempt property does not count as means, so a man cannot be imprisoned because he owns the tools of his trade.

Some particular decrees: Order XXI Rules 30 to 35

Rule 30: a decree for the payment of money may be executed by the detention in civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both.

Rule 31: a decree for the specific movable property, or for a share in it, may be executed by the seizure and delivery of the property, or by the detention of the judgment-debtor, or by the attachment of his property, or by both detention and attachment.

Rule 32 deals with a decree for specific performance, for restitution of conjugal rights, or for an injunction. Where the party against whom it was passed has had an opportunity of obeying and wilfully failed to obey it, the decree may be enforced, in the case of a decree for restitution of conjugal rights by attachment of his property, and in other cases by his detention in civil prison, or by attachment of his property, or by both.

Rule 33 gives the Court a discretion in decrees for restitution of conjugal rights, including the power to order a periodical payment instead.

Rule 34 provides the machinery where the decree is for the execution of a document or the endorsement of a negotiable instrument and the judgment-debtor neglects to comply: the decree-holder may prepare a draft, the Court settles it, and the document is executed by a person nominated by the Court, whereupon it has the same effect as if executed by the judgment-debtor.

Rule 35 deals with a decree for immovable property: possession is delivered to the decree-holder, and if necessary by removing any person bound by the decree who refuses to vacate. Where the person in occupation is not bound by the decree and resists, the decree-holder's remedy is Order XXI Rule 97, which has its own chapter: see [Resistance to Delivery of Possession].

Execution against a legal representative: section 50

The judgment-debtor may die before the decree is satisfied, and MU has asked twice how far his representatives are then liable.

Section 50(1): where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

Section 50(2), and this is the answer to the question as it is usually put: where the decree is executed against such legal representative, he shall be liable ONLY TO THE EXTENT OF THE PROPERTY OF THE DECEASED WHICH HAS COME TO HIS HANDS AND HAS NOT BEEN DULY DISPOSED OF; and for the purpose of ascertaining that liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel the legal representative to produce such accounts as it thinks fit.

So the liability is representative and not personal. The representative is not made a debtor; he answers only for what of the estate reached him and remains undisposed of, and the accounts machinery exists to find out how much that is. Section 52 carries the same idea into a decree passed against a party as legal representative, and section 53 deals with ancestral property in the hands of a son or other descendant.

The definition of legal representative in section 2(11) matters here, because it includes a person who intermeddles with the estate: see [Definitions]. And for the reverse case, the death of a party while the suit is still pending, see [Death, Marriage and Insolvency of Parties].

Stay of execution: Order XXI Rules 26 to 29

Rule 26(1): the Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution for a reasonable time to enable the judgment-debtor to apply to the Court which passed the decree, or to any appellate court, for an order to stay execution or for any other order relating to the decree or execution which might have been made by that court if execution had been issued by it.

Rule 26(2): where the property has already been seized, the Court may order restitution pending the result of the application.

Rule 26(3): before making an order to stay execution, or for restitution, the Court shall require security from the judgment-debtor, or proof that he has given security to the satisfaction of the court which passed the decree, or that there is sufficient cause for not requiring security.

Rule 27: no order of restitution defeats or prejudices any rights or interests acquired in the property before the making of that order.

Rule 28: any order of the Court by which the decree was passed, or of an appellate court, in relation to the execution, shall be binding upon the Court to which the decree was sent.

Rule 29 is the one worth remembering, because it comes up constantly in practice. Where a suit is pending in any Court against the holder of a decree of that Court, or of a Court subordinate to it, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise as it thinks fit, stay execution of the decree until the pending suit has been decided.

That is the answer to a judgment-debtor who has a cross-claim: he does not get to ignore the decree, but the Court may hold execution while his own suit is tried, ordinarily on his giving security.

Rule 24 governs the process for execution, and provides that every such process shall bear the date on which it is issued and be signed and sealed, and shall be delivered to the proper officer to be executed.

A worked example

Chirag holds a money decree for Rs. 4,00,000 against Deepa.

What modes are open to him? Under section 51 and Order XXI Rule 30, attachment and sale of her property, or her detention in civil prison, or both.

He applies for her arrest. The proviso to section 51 bites. The Court must first give Deepa an opportunity of showing cause, and may order detention only if satisfied, for reasons recorded in writing, that she is likely to abscond or has dishonestly disposed of property to obstruct execution, or that she has or has had the means since the decree and refuses or neglects to pay, or that the sum is one she was bound in a fiduciary capacity to account for.

Deepa owns only her cooking vessels, her bedding and the tools of her trade. The Explanation to the proviso: property exempt under section 60 is left out of account in calculating her means. She cannot be imprisoned for having them.

She has a suit pending against Chirag for a larger sum. Order XXI Rule 29: the Court in which that suit is pending may stay execution of Chirag's decree until it is decided, on such terms as to security as it thinks fit.

The decree has been sent to another court and she wants to apply to the court that passed it. Rule 26: the transferee court shall, on sufficient cause, stay execution for a reasonable time to let her apply, but under Rule 26(3) it must require security, or proof of security given, or find sufficient cause for not requiring it.

Change the decree. Suppose it were a decree ordering Deepa to execute a conveyance and she refuses. Rule 34: the decree-holder prepares a draft, the Court settles it, and the document is executed by a person nominated by the Court, with the same effect as if she had executed it.

Or a decree for an injunction which she wilfully disobeys. Rule 32: enforceable by her detention in civil prison, or attachment of her property, or both.

What it does not mean

Imprisonment is not a normal mode for a money decree. The proviso to section 51 requires notice, recorded reasons, and dishonesty, means or a fiduciary obligation.

Owning exempt property is not "means". The Explanation excludes section 60 property from the calculation.

Stay is not automatic on a cross-suit. Rule 29 is a discretion, ordinarily exercised on terms as to security.

A transferee court cannot stay indefinitely. Rule 26 allows a stay for a reasonable time to enable an application to the court which passed the decree.

Release from prison does not discharge the debt. That is section 58(2), dealt with in [Arrest and Detention in Execution].

Quick revision

Section 51, five modes: (a) delivery of property specifically decreed; (b) attachment and sale, or sale without attachment; (c) arrest and detention; (d) appointing a receiver; (e) such other manner as the relief requires.

Section 50: a decree-holder may apply to execute against the legal representative of a judgment-debtor who dies before satisfaction; the representative is liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of, and the Court may compel him to produce accounts to ascertain it.

Proviso: no detention on a money decree without an opportunity to show cause and reasons recorded, and unless satisfied that (a) he is likely to abscond, or has dishonestly transferred, concealed or removed property after the institution of the suit, with the object or effect of obstructing execution; or (b) he has or has had the means since the decree and refuses or neglects to pay; or (c) the sum is one he was bound in a fiduciary capacity to account for. Explanation: property exempt under section 60 is left out of the calculation of means.

Particular decrees: money, Rule 30; specific movable property, Rule 31; specific performance, restitution of conjugal rights and injunction, Rule 32; execution of a document by a court nominee, Rule 34; immovable property, by delivery and removal, Rule 35.

Stay: Rule 26, the transferee court stays for a reasonable time on sufficient cause, and requires security under Rule 26(3); Rule 28, orders of the court which passed the decree bind the transferee court; Rule 29, execution may be stayed where the judgment-debtor has a suit pending against the decree-holder, on terms as to security.

Test yourself

1. In what modes may a decree be executed? Under section 51, by delivery of any property specifically decreed; by attachment and sale, or sale without attachment, of any property; by arrest and detention in prison for a period not exceeding that specified in section 58 where such detention is permissible; by appointing a receiver; or in such other manner as the nature of the relief granted may require.

2. When may a judgment-debtor be detained in prison under a money decree? Only after he has been given an opportunity of showing cause and where the Court, for reasons recorded in writing, is satisfied that with the object or effect of obstructing or delaying execution he is likely to abscond or has dishonestly transferred, concealed or removed property since the institution of the suit; or that he has, or has had since the date of the decree, the means to pay the decree or a substantial part of it and refuses or neglects to pay; or that the decree is for a sum he was bound in a fiduciary capacity to account for.

3. Does property exempt from attachment count as "means"? No. The Explanation to the proviso to section 51 provides that in calculating the means of the judgment-debtor, property which is exempt from attachment under section 60 is left out of account.

4. How is a decree for the execution of a document enforced if the judgment-debtor refuses? Under Order XXI Rule 34 the decree-holder prepares a draft, the Court settles it after hearing objections, and the document is executed by a person nominated by the Court, whereupon it takes effect as if it had been executed by the judgment-debtor.

5. A judgment-debtor has a suit pending against the decree-holder. Can execution be stayed? Yes. Under Order XXI Rule 29, where a suit is pending in any court by the judgment-debtor against the holder of a decree of that court or of a court subordinate to it, that court may, on such terms as to security or otherwise as it thinks fit, stay execution of the decree until the pending suit is decided.

6. On what condition will a transferee court stay execution? Under Order XXI Rule 26 it stays for a reasonable time on sufficient cause being shown, to enable the judgment-debtor to apply to the court which passed the decree or to an appellate court; and by Rule 26(3) it shall first require security from him, or proof of security already given, or be satisfied that there is sufficient cause for not requiring security.

7. A judgment-debtor dies before the decree is satisfied. Can it still be executed, and how far is his representative liable? Yes. Under section 50(1) the decree-holder may apply to the Court which passed the decree to execute it against the legal representative of the deceased. By section 50(2) that representative is liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of, and for ascertaining that liability the executing Court may, of its own motion or on the decree-holder's application, compel him to produce such accounts as it thinks fit.

Who may not be arrested

Section 56: notwithstanding anything in this Part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

That is absolute for a money decree, and it is a two-mark answer on its own.

Section 135 protects certain persons from arrest under civil process: Judges, Magistrates and other judicial officers, and the parties, their pleaders and witnesses, while going to, remaining at, or returning from the Court. Section 135A protects members of legislatures during a session and for the periods the section specifies.

Order XXI Rule 40 adds a further protection at the hearing stage: where the judgment-debtor appears in obedience to a notice to show cause, or is brought before the Court after arrest, the Court shall hear the decree-holder and take all evidence, and shall then either make an order for his detention, or, if satisfied that he is unable to pay, reject the application, and the Court may in an appropriate case release him pending the conclusion of the inquiry.

How long: section 58

Section 58(1): every person detained in the civil prison in execution of a decree shall be so detained:

(a) where the decree is for the payment of a sum of money exceeding five thousand rupees, for a period not exceeding three months; and (b) where the decree is for the payment of a sum exceeding two thousand rupees but not exceeding five thousand rupees, for a period not exceeding six weeks.

Section 58(1A): for the removal of doubts it is declared that no order for detention shall be made where the total amount of the decree does not exceed two thousand rupees.

So there are three bands, and the smallest carries no detention at all. Learn the figures: over Rs. 5,000, three months; over Rs. 2,000 up to Rs. 5,000, six weeks; up to Rs. 2,000, none.

The first proviso to section 58(1) requires release before the expiry of the period in four cases:

(i) on the amount mentioned in the warrant being paid to the officer in charge of the civil prison (ii) on the decree being otherwise fully satisfied (iii) on the request of the person on whose application he was detained (iv) on the omission by that person to pay subsistence allowance

The second proviso adds that release under clause (ii) or clause (iii) requires an order of the Court.

Section 58(2), and this is the rule that decides most exam problems: a judgment-debtor released from detention shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained.

So detention is spent once. The debt survives, and the decree-holder may still attach and sell property; but that judgment-debtor cannot be imprisoned again on that decree.

Section 57 empowers the State Government to fix scales of monthly allowances payable for the subsistence of judgment-debtors, and section 59 provides for release on the ground of serious illness.

The procedure before arrest: Order XXI Rules 37 to 40

Rule 11A requires an application for arrest to state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.

Rule 37(1): notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention of the judgment-debtor, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear and show cause why he should not be committed to the civil prison.

The proviso to Rule 37(1) allows the Court to issue a warrant at once, instead of a notice, if it is satisfied by affidavit or otherwise that the judgment-debtor is likely to abscond or leave the local limits of its jurisdiction with the object of delaying execution.

Rule 37(2): where the judgment-debtor fails to appear in obedience to the notice, the Court may issue a warrant for his arrest.

Rule 38 provides that every warrant shall direct the officer to bring the judgment-debtor before the Court with all convenient speed, unless the decretal amount and costs are paid.

Rule 39 requires subsistence allowance to be deposited: no judgment-debtor shall be arrested unless the decree-holder pays into court such sum as the Judge thinks sufficient for his subsistence from his arrest until he can be brought before the Court, and thereafter monthly. Sums so disbursed are added to the costs of the decree, but the judgment-debtor is not detained for failure to pay them.

So the sequence is: notice first as the rule, warrant only where he is likely to abscond, subsistence money deposited before arrest, and an inquiry under Rule 40 before any order of detention.

A worked example

Esha holds a decree for Rs. 60,000 against Farhan and applies for his arrest.

What happens first? Order XXI Rule 37(1): the Court issues a notice to show cause, not a warrant, unless satisfied that he is likely to abscond, in which case the proviso allows a warrant at once. Her application must state the grounds for arrest under Rule 11A.

Before he is arrested, Esha must deposit subsistence allowance under Rule 39.

At the hearing the Court hears her, takes evidence, and under Rule 40 either orders detention or, if satisfied Farhan is unable to pay, rejects the application. It may order detention only on the section 51 proviso grounds, for reasons recorded.

The arrest itself. Section 55: any hour, any day, but no dwelling-house entered between sunset and sunrise; his outer door broken only if he occupies the house and refuses access; and where an inner room is occupied by a woman who does not appear in public, notice and a reasonable opportunity to withdraw first.

Farhan pays the decree and the costs of arrest to the arresting officer. Section 55(3): the officer shall at once release him.

He does not pay and is detained. The decree exceeds Rs. 5,000, so under section 58(1)(a) detention may not exceed three months.

Esha stops paying subsistence allowance. Clause (iv) of the first proviso to section 58(1): he must be released.

He is released after three months without paying. Section 58(2): he is not discharged from the debt, so Esha may still attach and sell his property, but he cannot be re-arrested under that decree.

Change the judgment-debtor. Suppose the decree were against Farhan's wife instead. Section 56: the Court shall not order the arrest or detention of a woman in execution of a decree for the payment of money.

Change the sum. Suppose the decree were for Rs. 1,800. Section 58(1A): no order for detention may be made at all.

What it does not mean

Arrest is not the first step. Order XXI Rule 37 requires a notice to show cause, unless the judgment-debtor is likely to abscond.

Detention is not punishment. It is a means of enforcing payment, which is why inability to pay defeats it under Rule 40.

A dwelling-house is not open at any hour. The first proviso to section 55 forbids entry between sunset and sunrise.

Release does not discharge the debt. Section 58(2). But it does bar re-arrest on the same decree.

A woman cannot be detained for a money decree at all. Section 56.

Arrest that is not in execution: sections 134 and 136

Section 134: the provisions of sections 55, 57 and 59 apply, so far as may be, to all persons arrested under this Code. So the manner of arrest, the subsistence allowance and release on illness reach an arrest before judgment under Order XXXVIII as well as one in execution.

Section 136: where an application is made for a person to be arrested, or property to be attached, under a provision not relating to the execution of decrees, and that person resides or that property is situated outside the local limits of the Court's jurisdiction, the Court may send the order to a District Court within whose limits he resides or it is situated, and that Court then proceeds as if the application had been made to it. This is the machinery behind an attachment before judgment reaching property in another district. See [Attachment before Judgment].

Quick revision## Quick revision

Section 55: arrest at any hour on any day, brought before the Court as soon as practicable. No dwelling-house entered between sunset and sunrise; no outer door broken unless the judgment-debtor occupies it and refuses access, though inner rooms may be broken into once access is gained; a room occupied by a woman who does not appear in public requires notice and reasonable time to withdraw. Payment of the decree and costs of arrest to the officer means immediate release, section 55(3).

Section 56: no arrest or detention of a woman in execution of a money decree. Sections 135 and 135A: judicial officers, parties, pleaders and witnesses going to, at or returning from Court, and legislators during a session, are protected from arrest under civil process.

Section 58: over Rs. 5,000, up to three months; over Rs. 2,000 and up to Rs. 5,000, up to six weeks; not exceeding Rs. 2,000, no detention at all. Earlier release on payment into the prison, full satisfaction, the decree-holder's request, or failure to pay subsistence allowance; the middle two need a Court order. Section 58(2): release does not discharge the debt, but he may not be re-arrested on that decree.

Order XXI: grounds stated for arrest, Rule 11A; notice to show cause first, warrant only where he is likely to abscond, Rule 37; subsistence allowance deposited before arrest, added to costs but never a ground of detention, Rule 39; inquiry, and rejection if he is unable to pay, Rule 40.

Test yourself

1. At what times may a judgment-debtor be arrested? At any hour and on any day, under section 55(1), but the first proviso forbids entering a dwelling-house for the purpose of an arrest after sunset and before sunrise.

2. May the arresting officer break open a door? Not the outer door of a dwelling-house, unless the house is in the occupancy of the judgment-debtor and he refuses or prevents access. Once access has been duly gained, the officer may break open the door of any inner room in which he has reason to believe the judgment-debtor is to be found. Where a room is in the actual occupancy of a woman who by custom does not appear in public, he must first give her notice and a reasonable opportunity to withdraw.

3. Can a woman be arrested in execution of a decree? Not in execution of a decree for the payment of money. Section 56 provides that the Court shall not order the arrest or detention in the civil prison of a woman in execution of such a decree.

4. For how long may a judgment-debtor be detained? Where the decree is for a sum exceeding five thousand rupees, for not more than three months; where it exceeds two thousand rupees but not five thousand, for not more than six weeks; and where the total amount of the decree does not exceed two thousand rupees, no order of detention may be made at all: section 58.

5. Does release from detention discharge the debt? No. Section 58(2) provides that a judgment-debtor released from detention is not merely by reason of his release discharged from his debt, though he is not liable to be re-arrested under the decree in execution of which he was detained.

6. Is a warrant issued straight away on an application for arrest? No. Order XXI Rule 37(1) requires the Court to issue a notice calling on the judgment-debtor to show cause why he should not be committed to prison. Only where the Court is satisfied, by affidavit or otherwise, that he is likely to abscond or leave the local limits of its jurisdiction with the object of delaying execution may it issue a warrant at once.

7. Who pays for the judgment-debtor's subsistence in prison? The decree-holder, under Order XXI Rule 39, who must deposit a sufficient sum before the arrest and monthly thereafter. Those sums are added to the costs of the decree, but the judgment-debtor is not to be detained for failure to pay them, and under section 58 he must be released if the decree-holder omits to pay the allowance.

The rest of the proviso continues in the same vein, exempting among other things compulsory deposits and provident funds to which the Provident Funds Act applies, an expectancy of succession, a right to future maintenance, and an interest in property which the judgment-debtor cannot alienate.

Notice the pattern, because it makes the list memorable: the exemptions protect the necessities of life (a), the means of earning a living (b), (c), (h), (i), rights that are personal and not really property (e), (f), and provision for the future in the pension and provident fund entries.

Section 60(2) makes clear that nothing in the proviso shall be deemed to exempt houses and other buildings belonging to persons other than those mentioned in clause (c).

Section 61 allows the State Government to exempt from attachment such portion of agricultural produce as it thinks necessary for the next season's cultivation and for the support of the agriculturist and his family. Section 62 restricts the seizure of property in a dwelling-house: no outer door may be broken open unless it is in the occupancy of the judgment-debtor and he refuses access, and a room occupied by a woman who by custom does not appear in public must be given notice and time to withdraw, in the same terms as section 55.

The effect of attachment: section 64

Section 64(1): where an attachment has been made, any private transfer or delivery of the property attached, or of any interest in it, and any payment to the judgment-debtor of any debt, dividend or other monies contrary to the attachment, shall be VOID as against all claims enforceable under the attachment.

Section 64(2) is the qualification added by amendment: nothing in the section applies to a private transfer or delivery made in pursuance of a contract for such transfer or delivery entered into and REGISTERED BEFORE the attachment.

The Explanation provides that claims enforceable under an attachment include claims for the rateable distribution of assets under section 73.

Read those three together and the position is exact. A sale after attachment is not a nullity for all purposes; it is void as against the claims enforceable under the attachment. As between the judgment-debtor and his buyer it may stand; it simply cannot defeat the decree-holder. And a buyer under a registered contract predating the attachment is protected.

Section 63 deals with property attached in execution of decrees of several courts: where property is attached in execution of decrees of more than one court, the court which shall receive or realise it and determine any claim is the court of highest grade, or where the courts are of the same grade, the court under whose decree the property was first attached.

How different kinds of property are attached: Order XXI

The mode of attachment depends on what is being attached, and Order XXI provides for each.

Rule 41 allows the Court, on the decree-holder's application, to require the judgment-debtor to be orally examined as to his property, or to require him to file an affidavit stating his assets, which is how a decree-holder finds out what there is to attach.

Rule 43: movable property in the possession of the judgment-debtor is attached by actual seizure.

Rule 46: a debt, share or other movable property not in the judgment-debtor's possession is attached by a written order prohibiting the creditor from recovering the debt, the debtor from paying it, the person in possession from giving it over, and so on. That prohibitory order freezes the debt; Rules 46A to 46-I, next, are how the decree-holder actually gets the money.

Rule 54: immovable property is attached by an order prohibiting the judgment-debtor from transferring or charging it and all persons from taking any benefit from such a transfer or charge, and the order is proclaimed at some place on or adjacent to the property by beat of drum or other customary mode, and a copy affixed on a conspicuous part of the property and of the court-house.

Rule 57: where any property has been attached in execution of a decree and the Court dismisses the application for execution, it shall direct whether the attachment shall continue or cease, and shall record reasons.

Garnishee proceedings: Order XXI Rules 46A to 46-I

MU has asked "What is a garnishee notice?" or "Who is a garnishee?" in at least four papers, so this deserves its own treatment rather than a passing mention.

A garnishee is a person who owes money to the judgment-debtor. The decree-holder cannot sue him, because the debt is not owed to the decree-holder. What these rules do is let the Court order that third person to pay into Court instead of paying the judgment-debtor.

Take the standard example. Fatima holds a money decree against Ganesh. Ganesh has nothing to seize, but Harish owes Ganesh three lakhs. Harish is the garnishee.

Rule 46A(1), the notice: the Court may, in the case of a debt other than a debt secured by a mortgage or a charge which has been attached under Rule 46, upon the application of the attaching creditor, issue notice to the garnishee liable to pay that debt, calling upon him either to pay into Court the debt due from him to the judgment-debtor, or so much of it as will satisfy the decree and the costs of execution, or to appear and show cause why he should not do so.

Rule 46A(2): the application shall be made on affidavit verifying the facts alleged and stating that in the belief of the deponent the garnishee is indebted to the judgment-debtor.

Rule 46A(3): where the garnishee pays the amount into Court, the Court may direct that it be paid to the decree-holder towards satisfaction of the decree and costs.

Two conditions are built into sub-rule (1) and both are examinable: the debt must already have been attached under Rule 46, and a secured debt, one secured by a mortgage or charge, is outside the procedure.

Rule 46B, if he ignores the notice: where the garnishee does not forthwith pay into Court and does not appear and show cause, the Court may order him to comply with the notice, and on that order execution may issue as though the order were a decree against him.

That is the sanction, and it is severe: the garnishee who ignores the notice ends up with an order enforceable against him personally as a decree.

Rule 46C, if he disputes the debt: where the garnishee disputes liability, the Court may order that any issue or question necessary for the determination of liability be tried as if it were an issue in a suit, and make such order as it deems fit on that determination. The proviso: where the sum is beyond the pecuniary jurisdiction of the Court, it shall send the execution case to the Court of the District Judge to which it is subordinate, which then deals with it as if the case had been originally instituted there.

Rules 46D and 46E, if somebody else claims the debt: where it is suggested or appears probable that the debt belongs to a third person, or that a third person has a lien, charge or other interest in it, the Court may order that person to appear and state and prove his claim; and after hearing him, or where he does not appear, the Court may make such order as is provided above or such other order on such terms as it thinks fit with respect to his lien, charge or interest.

Rule 46F, the garnishee's protection: payment made by the garnishee on notice under Rule 46A, or under any such order, is a valid discharge to him as against the judgment-debtor and any other person ordered to appear, although the decree in execution of which the application was made, or the order passed on it, may afterwards be set aside or reversed.

Rule 46F is what makes the procedure workable. Without it no garnishee would dare pay, because he would risk paying twice.

Rule 46G: the costs of a Rule 46A application and of any proceeding arising from it are in the discretion of the Court. Rule 46H: an order under Rule 46B, Rule 46C or Rule 46E is appealable as a decree. Rule 46-I: Rules 46A to 46H apply, so far as may be, to negotiable instruments attached under Rule 51 as they apply to debts.

Claims by strangers: Order XXI Rules 58 to 63

This is where the chapter meets [Questions to be Determined by the Executing Court]. Section 47 covers questions between the parties. A stranger who says the attached property is his proceeds here instead.

Rule 58(1): where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that the property is not liable to attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with these rules. Two provisos limit it: no such claim or objection shall be entertained where, before the claim is preferred or the objection made, the property has already been sold; or where the Court considers the claim or objection designedly or unnecessarily delayed.

Rule 58(2): all questions, including questions relating to right, title or interest in the property attached, arising between the parties to such a proceeding or their representatives and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection, and not by a separate suit.

Rule 58(3): on determining those questions the Court shall, in accordance with the determination and subject to the following rules, either allow the claim or objection and release the property from attachment, or disallow it, wholly or to such extent as it thinks fit.

Rule 58(4), and this is the crucial one: where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

Rule 58(5) preserves a suit where the claim or objection was not entertained under one of the provisos to sub-rule (1).

So the structure mirrors section 47. All questions in one place, no separate suit, and the resulting order treated as a decree so that an appeal lies.

Rules 59 to 61 deal with the mechanics, and Rule 62 with the sale of the property notwithstanding a claim.

A worked example

Ganesh holds a money decree against Harish, a tailor.

What can he attach? Under section 60(1), Harish's land, house, goods, bank balance, debts owed to him, and his shares. Also property held by another in trust for Harish or on his behalf.

What is protected? His and his family's necessary wearing apparel, cooking vessels, beds and bedding; his wife's personal ornaments which by religious usage she cannot part with; his sewing machines as the tools of an artisan under clause (b); his books of account; and his salary to the extent of the first one thousand rupees and two thirds of the remainder, unless the decree is for maintenance.

How is each attached? The goods in his shop, by actual seizure, Rule 43. His bank balance and the debts owed to him, by a written prohibitory order, Rule 46. His house, by an order prohibiting transfer, proclaimed on the property by beat of drum and affixed on the property and the court-house, Rule 54.

Harish sells the house to Indu the day after the attachment. Section 64(1): the transfer is void as against the claims enforceable under the attachment. It does not help him.

Indu says she had a registered contract to buy it from before the attachment. Section 64(2) protects her: the section does not apply to a transfer made in pursuance of a contract for transfer entered into and registered before the attachment.

Harish's brother says the shop goods were always his. He is a stranger to the suit, so section 47 does not apply. His route is a claim or objection under Order XXI Rule 58, and the Court will determine all questions of right, title and interest in the attachment proceeding, not by a separate suit. Its order has the force of a decree, so he can appeal it.

He raises the claim only after the goods have been sold. The first proviso to Rule 58(1): the claim shall not be entertained. But by Rule 58(5), since it was not entertained, his remedy by suit is preserved.

Ganesh does not know what Harish owns. Rule 41: he may apply to have Harish orally examined as to his property, or require him to file an affidavit of assets.

What it does not mean

Attachment does not transfer the property. It prohibits dealings; the transfer happens at the sale.

A post-attachment sale is not void for all purposes. Section 64 makes it void as against the claims enforceable under the attachment.

A pre-existing contract is not defeated where it was entered into and registered before the attachment.

Exempt property is not attachable by consent or waiver of the exemptions, which the Code treats as protections rather than privileges.

A stranger's claim is not a section 47 question. It goes under Order XXI Rule 58, and the resulting order carries the force of a decree.

Quick revision

Section 60(1): land, houses, goods, money, negotiable instruments, securities, debts, shares, and all other saleable property belonging to the judgment-debtor or over which he has a disposing power for his own benefit, including property held by another in trust for him or on his behalf.

Exempt, by the proviso: necessary wearing apparel, cooking vessels, beds and bedding, and religious personal ornaments; tools of artisans and an agriculturist's implements, cattle and seed grain; the house of an agriculturist, labourer or domestic servant occupied by him; books of account; a mere right to sue for damages; a right of personal service; pensions and gratuities; wages of labourers and domestic servants; and salary to the extent of the first Rs. 1,000 and two thirds of the remainder, except under a maintenance decree.

Section 64: a private transfer after attachment is void as against the claims enforceable under the attachment; but not where made under a contract entered into and registered before the attachment. Claims enforceable include rateable distribution.

Modes: examination of the judgment-debtor as to assets, Rule 41; movables in his possession by seizure, Rule 43; debts and movables not in his possession by a prohibitory order, Rule 46; immovable property by a prohibitory order, proclaimed and affixed, Rule 54.

Garnishee, Rules 46A to 46-I: a garnishee is a person who owes money to the judgment-debtor. On the attaching creditor's application on affidavit, and only where the debt has been attached under Rule 46 and is not secured by a mortgage or charge, the Court issues a notice calling on him to pay into Court or show cause, Rule 46A. If he neither pays nor appears, an order is made against him and execution issues as though it were a decree against him, Rule 46B. If he disputes liability the question is tried as an issue in a suit, and beyond the Court's pecuniary jurisdiction the case goes to the District Judge, Rule 46C. A third person claiming the debt is heard, Rules 46D and 46E. Payment by the garnishee is a valid discharge even if the decree is later set aside, Rule 46F. Orders under Rules 46B, 46C and 46E are appealable as decrees, Rule 46H, and the rules extend to negotiable instruments, Rule 46-I.

Order XXI Rule 58: a stranger's claim or objection is adjudicated in the execution proceeding, all questions of right, title and interest decided there and not by a separate suit; not entertained if the property is already sold or the claim was designedly delayed; the order has the force of a decree; and where it was not entertained, a suit survives.

Test yourself

1. What property is liable to attachment? Under section 60(1), lands, houses and other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds, debts, shares in a corporation, and all other saleable property, movable or immovable, belonging to the judgment-debtor or over which he has a disposing power exercisable for his own benefit, whether held in his own name or by another in trust for him or on his behalf.

2. Name six kinds of property exempt from attachment. Necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor and his family, and religious personal ornaments of a woman; tools of artisans and an agriculturist's implements of husbandry, cattle and seed grain; the house of an agriculturist, labourer or domestic servant occupied by him; books of account; a mere right to sue for damages; a right of personal service; pensions, gratuities and political pensions; the wages of labourers and domestic servants; and salary to the extent of the first one thousand rupees and two thirds of the remainder, except under a decree for maintenance.

3. What is the effect of attachment on a subsequent private sale? Under section 64(1) any private transfer or delivery of the attached property, or any payment to the judgment-debtor contrary to the attachment, is void as against all claims enforceable under the attachment. By section 64(2) this does not apply to a transfer made in pursuance of a contract for transfer entered into and registered before the attachment.

4. How is immovable property attached? Under Order XXI Rule 54, by an order prohibiting the judgment-debtor from transferring or charging the property and all persons from taking any benefit from such transfer or charge, the order being proclaimed at or adjacent to the property by beat of drum or other customary mode and a copy affixed on a conspicuous part of the property and of the court-house.

5. A stranger says the attached property is his. What is his remedy? A claim or objection under Order XXI Rule 58, which the executing court adjudicates, determining all questions of right, title and interest between the parties to that proceeding and not by a separate suit. The order made has the same force and is subject to the same conditions as to appeal as if it were a decree.

6. When will such a claim not be entertained? Where, before the claim was preferred or the objection made, the property attached had already been sold, or where the Court considers that the claim or objection was designedly or unnecessarily delayed. In those cases, by Rule 58(5), the party's remedy by suit is preserved.

7. What is a garnishee, and what is a garnishee notice? A garnishee is a person who owes a debt to the judgment-debtor. Under Order XXI Rule 46A, where such a debt, not being one secured by a mortgage or charge, has been attached under Rule 46, the Court may on the attaching creditor's application, made on affidavit verifying the facts and stating the deponent's belief that the garnishee is indebted to the judgment-debtor, issue notice to the garnishee calling upon him either to pay into Court the debt due from him to the judgment-debtor, or so much of it as will satisfy the decree and the costs of execution, or to appear and show cause why he should not do so.

8. What follows if the garnishee neither pays nor appears? Under Rule 46B the Court may order him to comply with the terms of the notice, and on that order execution may issue as though the order were a decree against him. If instead he disputes liability, Rule 46C allows the Court to order the issue to be tried as if it were an issue in a suit, and where the sum exceeds its pecuniary jurisdiction the execution case goes to the Court of the District Judge. A payment made by the garnishee is, by Rule 46F, a valid discharge as against the judgment-debtor even if the decree or order is afterwards set aside or reversed.

Clause (e) is the sweep-up and it states the purpose of the whole rule: a bidder must be able to judge the nature and value of what he is buying.

The second proviso settles a point that comes up constantly: nothing in the rule requires the Court to enter its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both of the parties. So the court does not value the property; it records what the parties say it is worth.

Rule 67 provides for the mode of making the proclamation, and Rule 68 for the time of sale: no sale shall take place until after the expiration of at least fifteen days in the case of immovable property, and seven days in the case of movable property, calculated from the date on which the copy of the proclamation was affixed on the court-house.

Rule 69 allows the Court to adjourn a sale, and provides that where a sale is adjourned for more than thirty days, a fresh proclamation shall be made unless the judgment-debtor consents to waive it.

Deposit and payment by the purchaser: Rules 84 to 86

Rule 84(1): on every sale of immovable property, the person declared to be the purchaser shall immediately deposit twenty-five per cent of the amount of his purchase money to the officer conducting the sale, and in default of such deposit the property shall forthwith be resold.

Rule 85: the full amount of purchase money shall be paid by the purchaser on or before the fifteenth day from the sale of the property.

Rule 86: on default of that payment, the deposit may, after defraying the expenses of the sale, be forfeited to the Government, and the property resold, and the defaulting purchaser forfeits all claim to the property or to any part of the sum for which it may subsequently be sold.

So the two figures to hold are twenty-five per cent immediately and the balance within fifteen days.

Rules 72 and 73 restrict who may bid. Rule 72(1): no holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property. Rule 73: no officer or other person having any duty to perform in connection with any sale shall, directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.

Setting the sale aside: Rules 89, 90 and 91

There are exactly three routes, and an answer should name all three and say who may use each.

Rule 89, deposit. Where immovable property has been sold, any person claiming an interest in the property sold at the time of the sale, or at the time of making the application, or acting for or in the interest of such a person, may apply to have the sale set aside on depositing in Court:

(a) for payment to the purchaser, a sum equal to five per cent of the purchase money; and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount received by the decree-holder since the proclamation.

Rule 89(2): a person who applies under Rule 90 to set aside the sale of his immovable property shall not, unless he withdraws that application, be entitled to make or prosecute an application under Rule 89. He must choose.

Rule 89(3): nothing in the rule relieves the judgment-debtor from liability for costs and interest not covered by the proclamation.

Rule 90, irregularity or fraud. Where immovable property has been sold, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to set the sale aside on the ground of a material irregularity or fraud in publishing or conducting it.

Rule 90(2), and this is the condition that decides these applications: no sale shall be set aside on that ground unless, upon the facts proved, the Court is satisfied that the applicant has sustained SUBSTANTIAL INJURY by reason of the irregularity or fraud.

Rule 90(3): no application shall be entertained on any ground which the applicant could have taken on or before the date on which the proclamation was drawn up. A party who sat through the proclamation stage cannot complain about it afterwards.

Rule 91, no saleable interest. The purchaser may apply to set the sale aside on the ground that the judgment-debtor had no saleable interest in the property.

Notice how the three fit together. Rule 89 is the judgment-debtor's route and needs money, not a complaint. Rule 90 is the complaint route and needs substantial injury. Rule 91 belongs to the disappointed purchaser.

When the sale becomes absolute: Rule 92

Rule 92(1): where no application is made under Rule 89, Rule 90 or Rule 91, or where such an application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.

The proviso protects a pending stranger's claim: where property is sold pending the final disposal of any claim to, or objection to the attachment of, that property, the Court shall not confirm the sale until the final disposal of that claim or objection. That ties back to Order XXI Rule 58, in [Attachment of Property].

Rule 92(2): where such an application is made and allowed, and in the case of a Rule 89 application the deposit is made within sixty days from the date of sale, the Court shall make an order setting aside the sale. The rule also allows a deficiency in the Rule 89 deposit caused by a clerical or arithmetical mistake to be made good within a time fixed by the Court. No order shall be made unless notice of the application has been given to all persons affected.

So the two periods in Rule 89 and Rule 92 must be kept apart: the five per cent and the decree amount are what is deposited, and sixty days from the date of sale is when.

Rule 94: where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the purchaser, and that certificate shall bear the date of the day on which the sale became absolute.

Rule 95: where the property sold is in the occupancy of the judgment-debtor, or of some person on his behalf, and a certificate has been granted, the Court shall, on the purchaser's application, put him in possession.

Section 65 states the effect: where immovable property is sold in execution and the sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold, and not from the time when the sale becomes absolute.

That relation back is worth noticing. Title passes only on confirmation, but once it passes it is treated as having vested from the date of the sale.

Rateable distribution: section 73

Section 73(1): where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction, the assets, after deducting the costs of realisation, shall be rateably distributed among all those persons.

The three conditions worth stating are that the applications must be for money decrees, against the same judgment-debtor, and made before the receipt of the assets. A creditor who applies after the money is in gets nothing under this section.

A worked example

A money decree against Zara is executed and her flat is attached and put up for sale.

What must the proclamation say? Under Rule 66 it is drawn up after notice to both sides, in the language of the Court, and states the time and place and, as fairly and accurately as possible, the property, the revenue if any, any incumbrance, the amount for which the sale is ordered, and anything else material for a purchaser to judge the nature and value. The Court need not give its own valuation but must include the parties' estimates if any are given.

When can the sale happen? Not until fifteen days after the copy of the proclamation was affixed on the court-house, that being immovable property.

The auction is held. Under Rule 84 the successful bidder must immediately deposit twenty-five per cent, failing which the property is resold at once, and under Rule 85 must pay the balance within fifteen days, failing which the deposit is forfeited and the property resold under Rule 86.

Zara finds the money after the auction. Rule 89: she may apply to set the sale aside on depositing five per cent of the purchase money for the purchaser and the amount specified in the proclamation for the decree-holder, less anything he has received since. Under Rule 92(2) the deposit must be made within sixty days of the date of sale.

She instead says the proclamation understated the property. That is Rule 90, material irregularity in publishing the sale. But under Rule 90(2) the sale will not be set aside unless she proves she sustained substantial injury by it, and under Rule 90(3) not at all if it was a ground she could have taken before the proclamation was drawn up.

She tries both routes at once. Rule 89(2): having applied under Rule 90, she cannot make or prosecute a Rule 89 application unless she withdraws the Rule 90 one.

Nobody applies. Rule 92(1): the Court confirms the sale and it becomes absolute. Under Rule 94 the purchaser gets a certificate bearing the date the sale became absolute, and under section 65 the property is deemed to have vested in him from the date of the sale.

The purchaser cannot get in. Rule 95: on his application the Court shall put him in possession, and if he is obstructed, Explanation II to section 47 keeps the dispute in the executing court. See [Questions to be Determined by the Executing Court].

A stranger's claim to the flat was pending when it was sold. The proviso to Rule 92(1): the Court shall not confirm the sale until that claim is finally disposed of.

Three other creditors hold money decrees against Zara. Section 73: if they applied for execution before the sale proceeds were received and remain unsatisfied, the assets are rateably distributed among them after deducting the costs of realisation.

What it does not mean

The court does not value the property. Rule 66's second proviso requires only the parties' estimates, if given.

A sale does not pass title on the fall of the hammer. Title passes when the sale becomes absolute under Rule 92, though section 65 then relates the vesting back to the date of sale.

An irregularity alone does not set a sale aside. Rule 90(2) requires substantial injury, and Rule 90(3) bars grounds available before the proclamation.

The judgment-debtor cannot run both routes. Rule 89(2) makes him choose between the deposit route and the irregularity route.

A decree-holder cannot simply bid. Rule 72 requires the express permission of the Court, and Rule 73 bars anyone with a duty in connection with the sale.

The State's rule-making power over land sales: section 67

Section 67 empowers the State Government to make rules, consistent with the Code, as to the sale of land in execution of decrees, in particular as to the manner in which and the officers by whom such sales are to be conducted. So the Order XXI machinery above can be supplemented locally, and a practitioner checks the State rules alongside it.

Quick revision

Rule 64: sell the attached property, or so much as is necessary to satisfy the decree. Rule 65: by an officer of the Court or a person appointed, by public auction.

Rule 66, proclamation: after notice to both parties, in the Court's language, stating time and place and, as fairly and accurately as possible, the property, the revenue, any incumbrance, the amount to be recovered, and everything material for a purchaser to judge the nature and value. The Court need not give its own estimate but must include the parties' estimates.

Rule 68: not before fifteen days for immovable, seven days for movable, from affixing the proclamation. Rule 69: an adjournment beyond thirty days needs a fresh proclamation unless waived.

Rules 84 to 86: twenty-five per cent immediately or immediate resale; balance within fifteen days or forfeiture and resale. Rules 72 and 73: the decree-holder needs the Court's express permission to bid; officers connected with the sale may not bid at all.

Setting aside, three routes: Rule 89, by any person interested, on depositing five per cent for the purchaser and the proclamation amount for the decree-holder, within sixty days of the sale (Rule 92(2)); Rule 90, for material irregularity or fraud in publishing or conducting the sale, but only on proof of substantial injury, and not on a ground available before the proclamation; Rule 91, by the purchaser, that the judgment-debtor had no saleable interest. A Rule 90 applicant cannot also run Rule 89 without withdrawing.

Rule 92: confirmation makes the sale absolute, but not while a stranger's claim is pending. Rule 94: certificate dated as of the day the sale became absolute. Rule 95: the purchaser is put in possession. Section 65: the property is deemed to have vested from the date of sale.

Section 73: assets are rateably distributed among holders of money decrees against the same judgment-debtor who applied before the assets were received.

Test yourself

1. What must a proclamation of sale contain? It is drawn up after notice to the decree-holder and the judgment-debtor, in the language of the Court, and states the time and place of sale and specifies as fairly and accurately as possible the property to be sold, the revenue assessed where the property is an interest in an estate paying revenue to the Government, any incumbrance to which the property is liable, the amount for the recovery of which the sale is ordered, and 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.

2. Must the Court state its own estimate of the value? No. The second proviso to Order XXI Rule 66 provides that nothing in the rule requires the Court to enter its own estimate of the value, but the proclamation shall include the estimate, if any, given by either or both of the parties.

3. What must the purchaser deposit, and when must he pay the rest? Twenty-five per cent of the purchase money immediately, on being declared the purchaser, failing which the property is forthwith resold; and the full amount of the purchase money on or before the fifteenth day from the date of sale, failing which the deposit may be forfeited and the property resold, the defaulting purchaser forfeiting all claim to it.

4. On what grounds may an execution sale of immovable property be set aside? On deposit under Rule 89, by a person claiming an interest in the property, of five per cent of the purchase money for the purchaser and the amount specified in the proclamation for the decree-holder; on the ground of material irregularity or fraud in publishing or conducting the sale under Rule 90; and by the purchaser under Rule 91 on the ground that the judgment-debtor had no saleable interest.

5. Is an irregularity by itself enough to set aside a sale? No. Rule 90(2) requires the Court to be satisfied on the facts proved that the applicant has sustained substantial injury by reason of the irregularity or fraud, and Rule 90(3) bars any ground which the applicant could have taken on or before the date the proclamation was drawn up.

6. When does the sale become absolute, and when does title pass? Where no application under Rules 89, 90 or 91 is made, or such an application is made and disallowed, the Court confirms the sale and it becomes absolute under Rule 92(1). By section 65 the property is then deemed to have vested in the purchaser from the time when the property was sold, and not from the time when the sale became absolute.

7. What is rateable distribution? Under section 73, where assets are held by a Court and more persons than one have, before the receipt of those assets, applied to it for execution of money decrees against the same judgment-debtor and have not obtained satisfaction, the assets are, after deducting the costs of realisation, rateably distributed among all of them.

Three consequences follow, and each is worth a sentence in an answer.

Questions of title are decided in execution. The executing court would normally have no business going behind the decree, as [Questions to be Determined by the Executing Court] explains for section 47. Rule 101 is an express exception.

No separate suit. The rule says so in terms.

Jurisdiction is conferred by deeming. A court that would otherwise lack pecuniary or subject-matter competence to try a title dispute is deemed to have it for this purpose.

The orders: Rules 98 and 100

Rule 98(1): upon determining the questions referred to in Rule 101, the Court shall, subject to sub-rule (2), either allow the application and direct that the applicant be put into possession, or dismiss the application, or pass such other order as in the circumstances it may deem fit.

Rule 98(2) is the sanction. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by:

• the judgment-debtor, or
• some other person at his instigation or on his behalf, or
• any transferee, where the transfer was made during the pendency of the suit or the execution proceeding,

it shall direct that the applicant be put into possession; and where the applicant is still resisted or obstructed, the Court may, at his instance, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

Rule 100 is the corresponding provision on a Rule 99 application: on determining the Rule 101 questions the Court shall allow the application and direct that the applicant be put back into possession, or dismiss it, or pass such other order as it deems fit.

The transferee pendente lite: Rule 102

Rule 102: nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, or to the dispossession of any such person.

The Explanation: in this rule, "transfer" includes a transfer by operation of law.

This is the doctrine of lis pendens doing its work in execution. A person who bought from the judgment-debtor after the suit began takes subject to the result, so he gets no protection from these rules. Note that Rule 98(2) already names such a transferee as someone whose obstruction is without just cause.

The status of the order: Rules 103, 104 and 106

Rule 103: where an application has been adjudicated upon under Rule 98 or Rule 100, the order made shall have the same force, and be subject to the same conditions as to an appeal or otherwise, as if it were a decree.

That single rule is what makes the procedure a real substitute for a suit. The order is treated as a decree, so it is appealable as a decree and it binds like one.

Rule 104: every order under Rule 101 or Rule 103 is subject to the result of any suit that may be pending on the date of commencement of the proceeding in which the order is made, if in that suit the party against whom the order was made has sought to establish a right to the present possession of the property.

Rule 106 allows an applicant or opponent against whom an order is made ex parte under these rules to apply to set it aside, in the terms and within the time the rule provides.

The limitation periods

The Schedule to the Limitation Act supplies three Articles that belong to this chapter, and they are easy marks in a problem question. See [The Schedule: How to Find a Period of Limitation].

Thirty days is short. A decree-holder who is turned away at the door and does nothing for two months has a limitation problem before he has a possession problem.

A worked example

Bhavesh holds a decree for possession of a flat against Chetan. He goes with the bailiff and finds Deepak in occupation, who refuses to move, saying the decree is not against him.

What does Bhavesh do? Rule 97(1): he applies to the executing court complaining of the resistance or obstruction. He does not file a fresh suit.

Must the court entertain it? Yes. Rule 97(2): the Court shall proceed to adjudicate upon the application.

Deepak says he owns the flat. Rule 101: all questions, including questions of right, title or interest, arising between the parties and relevant to the adjudication shall be determined by that Court and not by a separate suit, and the Court is deemed to have jurisdiction to decide them.

By when must Bhavesh apply? Article 129 of the Schedule: thirty days from the date of the resistance or obstruction.

The court finds Deepak was put there by Chetan to keep Bhavesh out. Rule 98(2): the resistance was without just cause by a person acting on the judgment-debtor's behalf, so the Court shall direct that Bhavesh be put into possession; and if he is still obstructed, the Court may order Chetan, or the person acting on his behalf, to be detained in the civil prison for up to thirty days.

Deepak bought the flat from Chetan after Bhavesh filed the suit. Rule 102: Rules 98 and 100 do not apply to a transferee pendente lite, and the Explanation extends "transfer" to a transfer by operation of law.

Deepak wants to appeal. Rule 103: an order adjudicated under Rule 98 or Rule 100 has the same force and is subject to the same conditions as to appeal as if it were a decree.

Turn the facts round. Suppose Deepak was a genuine stranger with his own tenancy, and the bailiff threw him out anyway. Rule 99: he applies complaining of the dispossession; Rule 101 governs what is decided; Rule 100 allows the Court to put him back into possession; and Article 128 gives him thirty days from the date of the dispossession.

Deepak's own suit for a declaration of title was already pending when Bhavesh applied. Rule 104: the order is subject to the result of that suit.

The order against Deepak was passed ex parte. Rule 106 lets him apply to have it set aside.

What it does not mean

The decree-holder is not sent away to file a suit. Rules 97(2) and 101 keep it in execution.

Rule 101 is not confined to procedural questions. It expressly includes right, title or interest.

Rule 97 is not for the decree-holder alone. An auction purchaser may use it.

Detention is not automatic. Rule 98(2) requires resistance without just cause by the judgment-debtor or someone on his behalf, and a continuing obstruction.

A transferee pendente lite gets no protection. Rule 102.

The order is not a mere execution order. Rule 103 gives it the force of a decree.

Quick revision

Rule 97: a decree-holder or auction purchaser resisted or obstructed in obtaining possession applies to the executing court, which shall adjudicate. Rule 99: a person other than the judgment-debtor who has been dispossessed applies, and the Court shall adjudicate. Rule 101: all questions, including right, title and interest, are decided by that Court and not by a separate suit, the Court being deemed to have jurisdiction. Rule 98: order allowing or dismissing the application; and where the obstruction was without just cause by the judgment-debtor, someone on his behalf, or a transferee pendente lite, the applicant shall be put in possession and the obstructor may be detained in the civil prison up to thirty days. Rule 100: the corresponding order on a Rule 99 application, putting the applicant back into possession. Rule 102: Rules 98 and 100 do not apply to a transferee pendente lite; "transfer" includes transfer by operation of law. Rule 103: the order has the force of a decree. Rule 104: subject to a pending suit. Rule 106: an ex parte order may be set aside. Limitation: Article 129, thirty days from the resistance; Article 128, thirty days from the dispossession; Article 134, one year from when the sale becomes absolute.

Test yourself

1. A decree-holder is obstructed when taking possession. What is his remedy? Under Order XXI Rule 97(1) he may apply to the executing court complaining of the resistance or obstruction, and by Rule 97(2) the Court shall proceed to adjudicate upon the application. The same remedy is available to a purchaser of the property at a sale in execution.

2. Can the executing court decide a question of title in such a proceeding? Yes. Order XXI Rule 101 provides that all questions, including questions relating to right, title or interest in the property, arising between the parties to a proceeding under Rule 97 or Rule 99 and relevant to the adjudication, shall be determined by the Court dealing with the application and not by a separate suit, and that the Court shall be deemed to have jurisdiction to decide them notwithstanding anything to the contrary in any other law.

3. What order may the court pass where the obstruction was without just cause? Under Rule 98(2), where the resistance or obstruction was occasioned without just cause by the judgment-debtor, by a person at his instigation or on his behalf, or by a transferee during the pendency of the suit or execution proceeding, the Court shall direct that the applicant be put into possession; and where he is still resisted, the Court may order the judgment-debtor or the person acting on his behalf to be detained in the civil prison for a term which may extend to thirty days.

4. What is the remedy of a stranger dispossessed under such a decree? Under Rule 99 he may apply complaining of the dispossession, the Court shall adjudicate upon it, the questions are determined under Rule 101, and under Rule 100 the Court may allow the application and direct that he be put back into possession.

5. Does a person who bought from the judgment-debtor during the suit get the benefit of these rules? No. Rule 102 provides that nothing in Rules 98 and 100 applies to resistance or obstruction by a person to whom the judgment-debtor transferred the property after the institution of the suit in which the decree was passed, or to the dispossession of such a person. The Explanation adds that "transfer" includes a transfer by operation of law.

6. What is the status of the order made on such an application? Under Rule 103 an order adjudicated upon under Rule 98 or Rule 100 has the same force, and is subject to the same conditions as to an appeal or otherwise, as if it were a decree. It is subject under Rule 104 to the result of any suit pending when the proceeding commenced in which the party against whom it was made sought to establish a right to present possession.

7. What is the period of limitation for these applications? Thirty days under Article 129 of the Schedule for possession after removing resistance or obstruction, running from the date of the resistance or obstruction; and thirty days under Article 128 for possession by one dispossessed, running from the date of the dispossession. Article 134 gives a purchaser at an execution sale one year for delivery of possession, from when the sale becomes absolute.

Note the exclusion at the start. Suits of the nature referred to in section 16(a) to (d), that is suits for the recovery, partition, foreclosure, sale or redemption of, or the determination of rights in, immovable property, are outside Rule 1. The reason is obvious once seen: the subject matter is land, which cannot be spirited away.

Rule 2 provides that where the defendant fails to show cause, the Court shall order him to furnish security for his appearance. Rule 4 provides for his detention in civil prison where he fails to furnish that security, but not exceeding six months, or six weeks where the suit is for a sum not exceeding fifty rupees, and he shall be released on the suit being disposed of or on his furnishing the security.

Attachment before judgment: Rules 5 to 13

Rule 5(1): where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,

(a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

the Court may direct the defendant, within a time fixed, either to furnish security, in such sum as may be specified, to produce and place at the disposal of the Court, when required, the said property or the value of it or such portion as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

Rule 5(2): the plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value of it.

Rule 5(3): the Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

Rule 5(4), and this is the one that decides appeals: an attachment made without complying with the provisions of sub-rule (1) of this rule shall be void.

Rule 6(1): where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed, the Court may order that the property specified, or such portion as appears sufficient to satisfy any decree, be attached.

Rule 6(2): where he shows cause or furnishes the required security, and the property has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.

Rule 7: the attachment shall be made in the manner provided for the attachment of property in execution of a decree, which is Order XXI. So section 60's exemptions apply here too.

Rule 8: where any claim is preferred to property attached before judgment, it shall be adjudicated upon in the manner provided for claims to property attached in execution, which is Order XXI Rule 58.

Rule 9 is the withdrawal provision: where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.

Rule 10, and this is the sentence to memorise: attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

Rule 11: where property is under attachment by virtue of these rules and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary on an application for execution of that decree to apply for a re-attachment of the property.

Rule 11A applies certain provisions of Order XXI, including those as to attachment and as to claims, to attachment before judgment.

Rule 12 is the limit on what may be attached: nothing in this Order shall be deemed to authorise the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.

Rule 13 provides that where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security or when the suit is dismissed, in the terms already set out in Rule 9.

The two conditions, and why students lose marks on them

Rule 5 requires two things, and an answer that gives one is half an answer.

One, the intention: to obstruct or delay the execution of any decree that may be passed. Not merely that the defendant is selling property. A trader selling stock in the ordinary course of his business is not caught, however worried the plaintiff may be.

Two, the act: about to dispose of, or about to remove from the jurisdiction, the whole or part of his property.

Both must be shown, by affidavit or otherwise, and Rule 5(4) makes an attachment ordered without complying with sub-rule (1) void, which is a strong sanction and a favourite examination point.

A worked example

Jaya sues Kunal for Rs. 15,00,000. Half way through the suit she learns he has listed his only flat for sale and has told a neighbour he intends to move to Dubai.

Can she have the flat attached? She applies under Order XXXVIII Rule 5, supported by affidavit, showing both that he is about to dispose of the property and that he intends to obstruct or delay the execution of any decree that may be passed. She must specify the property and its estimated value under Rule 5(2).

What does the Court do? It may direct Kunal, within a fixed time, to furnish security to produce the property or its value, or to appear and show cause why he should not. It may also order conditional attachment under Rule 5(3).

Kunal furnishes the security. Rule 6(2) and Rule 9: the Court orders the attachment withdrawn.

He does neither. Rule 6(1): the Court may order the property attached, in the manner provided for attachment in execution, Rule 7.

Jaya obtains an attachment without any affidavit and without the Court considering his intention. Rule 5(4): the attachment is void.