BLS LLB 5 Years Sem 9 CPC 2019-20 Question Paper with Solutions

Stay of suit is the suspension of the trial of a suit. Its principal provision is section 10, which enacts res sub judice: no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or before the Supreme Court.

Section 46 defines a precept as an order issued by the court which passed a decree, upon the application of the decree-holder, to any other court which would be competent to execute the decree, asking that court to attach any property of the judgment-debtor specified in the precept and lying within its jurisdiction. Its object is to prevent the judgment-debtor from disposing of that property before the decree can be transferred for execution.

Order VIII Rule 1 requires the defendant to present a written statement of his defence within thirty days from the date of service of summons on him. The proviso allows the court, where he fails to do so, to permit him to file it on such other day as it may specify, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but not later than ninety days from the date of service of summons.

An ex parte decree is a decree passed in the absence of the defendant. Order IX Rule 6(1)(a) provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte and may proceed to pass a decree.

Misjoinder of parties means the joining as a party to the suit of a person who ought not to have been joined, that is, one against whom, or by whom, no right to relief arises out of the same act or transaction, and about whom no common question of law or fact arises. Order I Rule 9 provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

The Code speaks of rejection of the plaint, not of the suit, and the provision is Order VII Rule 11. 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, on being required by the court to correct the valuation within a time fixed by the court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time fixed by the court, 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 the provisions of Rule 9.

A counterclaim is a claim by the defendant against the plaintiff, set up in the plaintiff's own suit, which the court tries and decides along with the plaintiff's claim. It was inserted by the Amendment Act of 1976 as Order VIII Rules 6A to 6G.

Rule 6A(1). A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counterclaim against the claim of the plaintiff any right or claim in respect of a cause of action accruing to him 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 his defence has expired, whether such counterclaim is in the nature of a claim for damages or not, provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the court.

Rule 6A(2). Such counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim.

Conclusion. A counterclaim is a cross-suit and not a defence, which is why it is treated as a plaint, carries its own court fee, and by Rule 6D survives the stay, discontinuance or dismissal of the plaintiff's suit. A set-off, being a defence, falls with the suit. The two limits on it are pecuniary jurisdiction and a cause of action accruing before the defence is delivered, and a defendant with a real cross-demand should almost always choose it over a set-off.

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising (i) on a written contract; (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

Rule 2, institution of summary suits. A summary suit is instituted by presenting a plaint which contains, besides the ordinary particulars, (a) a specific averment that the suit is filed under this Order; (b) that no relief which does not fall within the ambit of this rule has been claimed; and (c) the following inscription immediately below the number of the suit in the title of the suit: "(Under Order XXXVII of the Code of Civil Procedure, 1908)". The defendant shall not defend the suit unless he enters an appearance, and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree.

Rule 3, procedure for appearance of defendant.

Rule 6 provides for recovery of the balance after a decree for part of the claim.

Rule 7 provides that, save as provided in the Order, the procedure in suits under it shall be the same as the procedure in ordinary suits.

Conclusion. Order XXXVII reverses the ordinary rule: the defendant has no right to defend and must obtain the court's leave, which is refused where the facts disclose no substantial defence and granted on condition of a deposit where the defence is plausible but improbable. It is confined to the classes in Rule 1(2), essentially negotiable instruments and liquidated demands on a writing, an enactment or a guarantee, and the plaint must say on its face that it is filed under the Order. Ten days to appear, ten more to apply for leave.

Rule 1A requires the inquiry into means to be made in the first instance by the chief ministerial officer of the court, unless the court otherwise directs; the court may adopt his report or make its own inquiry.

Rule 2 requires the application to 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, signed and verified as a pleading. Rule 3 requires it to be presented in person, unless exempted. Rule 4 allows the applicant to be examined on oath as to the merits of the claim and the property he owns.

Rule 5, rejection. The court shall reject the application where it is not framed and presented as required by Rules 2 and 3; where the applicant is not an indigent person; where he has, within two months before the presentation of the application, disposed of any property fraudulently or in order to be able to apply; where there is no cause of action; where he has entered into an agreement with reference to the subject-matter under which another person has obtained an interest; where the suit appears to be barred by any law; and where any other person has entered into an agreement to finance the litigation.

Rules 10 to 12, the court fee. Where the plaintiff succeeds, the court fee is calculated as if he had not been permitted to sue as an indigent person, and is recoverable by the State Government from the party ordered by the decree to pay it, and is a first charge on the subject-matter of the suit. Where he fails, or is dispaupered, or the suit is withdrawn or dismissed, the court shall order him to pay the court fee. Rule 15 bars a fresh application on the ground of indigency in respect of the same right to sue where a previous application has been refused, but preserves his right to sue in the ordinary manner on paying the fee.

Conclusion. Suing in forma pauperis defers the court fee; it does not remit it. Explanation I fixes the test by reference to the fee itself and excludes both exempt property and the subject-matter of the suit; Rule 5 is the gate, and the two grounds most often taken under it are means and a fraudulent disposal within two months. If the plaintiff succeeds the fee is recovered from the party the decree makes liable and is a first charge on the subject-matter, and Order XLIV carries the same scheme into appeals.

Section 94 lists the supplemental proceedings by which the court may make interlocutory orders in order to prevent the ends of justice from being defeated: (a) issue a warrant to arrest the defendant and, on default of security, commit him to the civil prison; (b) direct him to furnish security to produce property or order its attachment; (c) grant a temporary injunction, and in case of disobedience commit the person guilty to the civil prison and order his property to be attached and sold; (d) appoint a receiver; and (e) make such other interlocutory orders as may appear to the court to be just and convenient.

Order XXXIX, temporary injunctions and interlocutory orders.

Rule 1 permits a temporary injunction where it is proved by affidavit or otherwise (a) that property in dispute is in danger of being wasted, damaged or alienated by any party, or wrongfully sold in execution; (b) that the defendant threatens to remove or dispose of his property with a view to defrauding his creditors; or (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute.

Rule 6, power to order interim sale: the court may order the sale of any movable property which is the subject-matter of the suit, or attached before judgment, and which is subject to speedy and natural decay or which it is otherwise desirable to sell at once.

Rule 7, detention, preservation and inspection of property: the court may, on the application of any party, make an order for the detention, preservation or inspection of any property which is the subject-matter of the suit, and for that purpose authorise any person to enter upon or into any land or building in the possession of any other party, and authorise samples to be taken, observations made or experiments tried.

Rule 8 requires notice of an application under Rule 6 or 7, except where the object would be defeated by the delay.

Rule 9, when a party may be put in immediate possession of land the subject-matter of the suit, where the land is liable to sale for arrears of revenue and the party in possession fails to pay.

Section 2(14) defines "order" as the formal expression of any decision of a civil court which is not a decree. An appeal from an order lies only where the Code or another law expressly allows it, and the two places to look are section 104 and Order XLIII Rule 1.

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

(ff) an order under section 35A, compensatory costs for a false or vexatious claim or defence;

(ffa) an order under section 91 or 92 refusing leave to institute a suit of the nature referred to in those sections;

(g) an order under section 95, compensation for obtaining an arrest, attachment or injunction on insufficient grounds;

(h) an order under any of the provisions of the Code imposing a fine or directing the arrest or detention in the civil prison of any person, except where such arrest or detention is in execution of a decree;

(l) an order under Order XXII Rule 10 giving or refusing to give leave to continue a suit;

(n) an order under Order XXXIII Rule 5 or 7 rejecting an application for permission to sue as an indigent person;

(p) orders in interpleader suits under Order XXXV Rules 3, 4 or 6;

(q) an order under Order XXXVIII Rules 2, 3 or 6, arrest or attachment before judgment;

(r) an order under Order XXXIX Rules 1, 2, 2A, 4 or 10, granting, refusing or vacating a temporary injunction, or an order under Rule 2A for disobedience;

(s) an order under Order XL Rule 1 or 4, appointing or removing a receiver;

(u) an order under Order XLI Rule 23 or 23A remanding a case, where an appeal would lie from the decree of the appellate court;

(w) an order under Order XLVII Rule 4 granting an application for review.

Order XLIII Rule 2 applies the rules of Order XLI to appeals from orders, so far as may be.

If B sues for specific performance alone, that is, for a decree directing A to execute the conveyance, he has a choice of three courts: Pune, Mumbai or Nashik.

Pune, because the property is situate there. Section 16(d) puts a suit for the determination of any other right to or interest in immovable property in the court within whose local limits the property is situate.

Mumbai, because of the proviso to section 16, which is the provision this problem is set on: a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. A decree for specific performance is obeyed by the defendant executing a document; the relief can therefore be entirely obtained through his personal obedience, and the proviso opens the court of his residence. A resides at Mumbai. Section 20(a) gives the same result independently.

Two further points on the choice. The suit must also satisfy pecuniary jurisdiction under sections 6 and 15, and be filed in the court of the lowest grade competent to try it, the consideration being Rs. 25,00,000. And section 21 governs any objection: it must be taken in the court of first instance at the earliest possible opportunity and, where issues are settled, at or before settlement, and no appellate or revisional court will entertain it unless there has been a consequent failure of justice. So A cannot keep the point in reserve.

Limitation. Article 54 of the Schedule gives three years for a suit for specific performance of a contract, running from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Here the refusal at Nashik is the starting point, unless the agreement fixed a date.

(ii) Which court will execute the decree, and why

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

Section 46 supplies an interim measure while the transfer is obtained. The court which passed the decree may, on B's application, issue a precept to the Pune court to attach the bungalow, and that attachment lasts two months unless extended or converted into an attachment in due course of execution. That prevents A from selling the property while the transfer is pending.

How the decree is actually worked out. For a decree for specific performance, Order XXI Rule 34 applies: where the decree is for the execution of a document and the judgment-debtor neglects or refuses to obey it, the decree-holder may prepare a draft, the court settles it, and, on the expiry of the time allowed, the court executes the document on the judgment-debtor's behalf; by section 36 of the Specific Relief Act and the Registration Act, a conveyance so executed has the same effect as one executed by the party. Where the decree also awards possession, Order XXI Rule 35 applies: possession is delivered by removing any person bound by the decree who refuses to vacate, if necessary by breaking open a lock or door with the assistance of a police officer.

Section 47 confines all questions between the parties relating to the execution, discharge or satisfaction of the decree to the executing court, and forbids a separate suit; and the executing court cannot go behind the decree.

D has suffered heart attack but could not communicate to his Advocate, so he could not tell the court about it. The Court passes an ex parte decree against Mr.

D.

For full marks, cover: the four remedies with provisions and limitation periods; that the heart attack is textbook sufficient cause and what must be filed to prove it; and for (ii), Order IX Rule 8, dismissal, with the consequence in Rule 9(1) that a fresh suit is barred.

(i) Mr. D's remedies

2. Appeal under section 96(2). An appeal lies from an original decree passed ex parte; thirty days to the District Court under Article 116(b), ninety days to the High Court under Article 116(a).

3. Review under section 114 and Order XLVII Rule 1, within thirty days under Article 124.

4. A suit to set aside the decree for fraud, which is not available here, since nothing suggests fraud.

Two decisions. Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787: a defendant may pursue both the Rule 13 application and a first appeal, but once the application is dismissed on merits he cannot re-agitate the ground of non-appearance in the appeal. C. Prabhakar Rao v. Sama Mahipal Reddy (2025 INSC 311): condoning the delay in filing the application and setting aside the decree are separate exercises, and an order condoning delay does not by itself restore the suit.

Note also Order IX Rule 7, the remedy before the decree: where the suit is adjourned after being set down for ex parte hearing, the defendant may appear and, on showing good cause for his previous non-appearance, be heard in answer to the suit as if he had appeared on the day fixed. It is spent once the decree is passed.

Conclusion. Mr. D's remedy is an application under Order IX Rule 13 within thirty days, and a heart attack that also prevented him from reaching his advocate is the classic sufficient cause; he must prove it with the hospital record and the doctor's certificate rather than assert it. Had the absence been on the other side, the answer changes in kind: the suit would have been dismissed under Rule 8, and by Rule 9(1) Mr. C would have been barred from ever suing again on the same cause of action.

Section 60(1) makes liable to attachment and sale all saleable property, movable or immovable, belonging to the judgment-debtor or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf.

The words in italics are the only route open to Mr. E: he must show that the wife holds the flat in trust for Mr. F or on his behalf, that is, that the transaction was benami and that Mr. F is the real owner. The mere facts that Mr. F resides in the flat and that he is the husband of the owner prove nothing; residence is not ownership.

The wife's remedy if the flat is attached. Order XXI Rule 58 provides that 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 such property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection; and by sub-rule (4) the order made shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Sub-rule (5) bars a separate suit where the claim or objection has been adjudicated upon. So the question would be tried in the execution itself, and the order would be appealable.

A separate route Mr. E should consider. If the flat was transferred to the wife after the debt arose and with intent to defeat or delay creditors, section 53 of the Transfer of Property Act, 1882 makes the transfer voidable at the option of any creditor so defeated or delayed, and a suit may be brought by one creditor on behalf of all. That is a suit, not an execution application.

(ii) The Rs. 3,00,000 in the bank

Yes, and this is the most straightforward of the three. Mr. E should take garnishee proceedings against the bank.

Step 3, the order. Rule 46B: where the garnishee does not pay into court and does not appear, or appears but does not dispute the debt, the court may order him to comply with the notice, and that order is executable as though it were a decree against him. Rule 46C: where he disputes liability, the court may order the issue to be tried as though it were an issue in a suit.

Rule 46F protects the bank: payment made by the garnishee under the order, or execution levied against him, is a valid discharge as against the judgment-debtor, to the amount paid or levied, even if the decree is subsequently set aside or reversed. So the bank cannot be made to pay twice, and that is the answer to the question whether it is "obliged" to pay: once the debt has been attached under Rule 46 and a Rule 46A notice has been served, the bank must not pay Mr. F, and on an order under Rule 46B it must pay into court.

Advice to Mr. E: apply for attachment of the account under Rule 46 first; only then apply under Rule 46A. The Supreme Court has held that an executing court must attach the debt under Rule 46 before proceeding against the garnishee under Rule 46A; the second step cannot be taken without the first. Ask for attachment of the balance standing to the credit of Mr. F on the date of service of the order, and act quickly, since an account can be emptied.

If what Mr. F holds against Mr. G is itself a decree, the route is different: Order XXI Rule 53 governs the attachment of a decree, and the attachment is made by an order of the court which passed the decree sought to be attached, or by notice where the decrees were passed by different courts.

Rule 46I extends the garnishee rules to negotiable instruments, and makes clear that they do not apply to a debt secured by a mortgage or a charge.

Conclusion. The three limbs have three different answers. The flat is not attachable as it stands, because section 60 reaches only property of the judgment-debtor or held in trust for him, and the Benami Act's exception for a spouse makes that very hard to prove; the wife's objection would be tried under Order XXI Rule 58. The bank balance and the debt from Mr. G are both attachable by the same route, and the order matters: attach the debt under Rule 46 first, then notice the garnishee under Rule 46A, with Rule 46F protecting him once he pays.

For full marks, cover: what prescription is and how it differs from limitation generally; section 25 in full with its three sub-sections; section 26; section 27 and adverse possession under Articles 65 and 112; the essentials of each; section 15 of the Indian Easements Act, 1882; and Ravinder Kaur Grewal.

I. What prescription is

Prescription is the acquisition of a right by long and uninterrupted enjoyment, or the loss of a right by long non-assertion. Part IV of the Limitation Act, 1963, headed "Acquisition of Ownership by Possession", contains sections 25, 26 and 27, and these three are the only places in the Act where it does something other than bar a remedy.

Everywhere else the Act is procedural: it bars the remedy and leaves the right alive. In Part IV it is substantive: section 25 creates a right, and section 27 extinguishes one.

Two kinds of prescription are recognised:

Sub-section (2), and this is the provision candidates forget. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. So the twenty years must be the twenty years immediately preceding, or nearly preceding, the suit; a person who enjoyed the easement for twenty years, stopped, and sues five years later, fails.

Sub-section (3). Where the property over which a right is claimed belongs to the Government, sub-section (1) shall be read as if for the words "twenty years" the words "thirty years" were substituted.

The essentials of a prescriptive easement, drawn from the words of the section:

1. The enjoyment must be peaceable, that is, not by force;
2. It must be open, that is, not by stealth, and known to the servient owner;
3. It must be as of right, that is, as an easement and not by permission;
4. It must be without interruption, and the interruption that counts is the servient owner's obstruction, submitted to for a year;

The substantive law is in the Indian Easements Act, 1882, whose section 15 enacts a corresponding prescriptive period of twenty years and whose section 4 defines an easement. Sections 25 and 26 of the Limitation Act and section 15 of the Easements Act are read together.

III. Section 27, extinguishment of right to property

At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

This is the negative or extinctive side of prescription, and the foundation of adverse possession.

Article 65: a suit for possession of immovable property or any interest therein based on title must be brought within twelve years, running from the date the possession of the defendant becomes adverse to the plaintiff. Because time runs from the accrual of adverse possession and not from the plaintiff's knowledge, the burden of pleading and proving when the possession became adverse lies on the defendant.

Article 112: where the plaintiff is the Central or a State Government, the period is thirty years.

The essentials of adverse possession:

1. Possession must be actual and exclusive;

Tacking is permitted between persons in privity: a successor may add his predecessor's period of adverse possession to his own, which follows from section 2(i), by which "plaintiff" includes any person from or through whom the plaintiff derives his right to sue.

IV. Section 25 and section 27 compared

For full marks, cover: the object and the origin of section 89; the section as it stood before 2023 and as it now reads after the Mediation Act, 2023 substituted it; the five modes of alternative dispute resolution; Order X Rules 1A to 1C; Afcons Infrastructure on the working of the section; and the Mediation Act's own pre-litigation mediation.

I. Object and origin

Section 89 was inserted by the Amendment Act of 1999 with effect from 1 July 2002, on the recommendation of the Law Commission and of the Malimath Committee, to give the court a statutory duty to explore a settlement outside the court before subjecting the parties to a trial. Its object is to reduce the burden on the courts, to save the parties time and cost, and to preserve relationships that adversarial litigation destroys.

(b) to Lok Adalat, the court shall refer it under section 20(1) of the Legal Services Authorities Act, 1987, and all other provisions of that Act shall apply;

(c) for judicial settlement, the court shall refer it to a suitable institution or person, which shall be deemed to be a Lok Adalat, and the Legal Services Authorities Act shall apply;

(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

The five modes, since judicial settlement and Lok Adalat are separately named, are arbitration, conciliation, judicial settlement, Lok Adalat and mediation.

III. The section as it now reads: substituted by the Mediation Act, 2023

This is the change that dates an answer. Schedule IV to the Mediation Act, 2023 (Act 32 of 2023) substituted section 89 of the Code with a new section, so that the court's power to refer parties to mediation is now exercised under, and governed by, the Mediation Act. The Act received assent on 14 September 2023 and its provisions were brought into force by notification, the first tranche on 9 October 2023.

Mediation now has its own statute. Where a court refers parties to mediation, the Mediation Act, 2023 governs the appointment of the mediator, the conduct, the confidentiality, the time limits and, most importantly, the enforceability of the outcome: a mediated settlement agreement under that Act is final and binding and enforceable as if it were a judgment or decree of a court.

IV. How the section works in practice: Afcons Infrastructure

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. (2010) 8 SCC 24 the Supreme Court laid down how the old section was to be worked, and much of it survives the substitution.

The stage. The reference is to be considered after the pleadings are complete and before framing issues, when the court has the case before it.

Where the dispute is settled, the settlement is placed before the court, which passes a decree in terms of it. Order XXIII Rule 3 governs a compromise of a suit: where it is proved that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the court shall order it to be recorded and shall pass a decree in accordance therewith. Section 96(3) then bars an appeal from a consent decree, and Order XXIII Rule 3A bars a suit to set it aside on the ground that the compromise was not lawful; the only remedy is an application to the court that recorded it.

Where the reference fails, the matter returns to the court and the suit proceeds. Order X Rule 1C provides that where the presiding officer of a settlement forum is satisfied that it would not be proper to proceed with the matter further, he shall refer the matter back to the court and direct the parties to appear before it on a fixed date.

Court fee. Section 16 of the Court Fees Act, 1870, inserted in 1999: where the court refers the parties to any of the modes of settlement referred to in section 89, the plaintiff shall be entitled to a certificate authorising him to receive back from the collector the full amount of the fee paid on the plaint.

Conclusion. Section 89 makes exploring a settlement a duty of the court rather than an afterthought, and Order X Rules 1A to 1C give it a stage, after the pleadings and before the issues. The modes divide into arbitration and conciliation, which take the dispute away from the court and need the consent of all parties, and Lok Adalat, judicial settlement and mediation, which do not. The section a student must now cite is the substituted one: Schedule IV to the Mediation Act, 2023 replaced section 89, and a settlement reached under that Act is enforceable as a decree.

Explanation I: a suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II: it is immaterial whether or not any fees are attached to the office, or whether or not the office is attached to a particular place.

Cognizance is expressly barred where a statute says so; it is impliedly barred where a statute creates a right and provides a special forum and remedy for it, or where the matter is one of religion, caste or dignity with no civil consequence. The ouster of the civil court's jurisdiction is not readily inferred, and the burden is on the party who asserts it.

II. The types of jurisdiction

Section 16, suits to be instituted where the subject-matter is situate. Subject to the pecuniary or other limitations prescribed, suits for the recovery of immovable property with or without rent or profits, for the partition of immovable property, for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, for the determination of any other right to or interest in immovable property, for compensation for wrong to immovable property, and for the recovery of movable property actually under distraint or attachment, shall be instituted in the court within the local limits of whose jurisdiction the property is situate.

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

Section 17: where the property is situate 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 the entire claim is cognizable by it as regards value.

Explanation: a corporation shall be deemed to carry on business at its sole or principal office in India, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

4. Original and appellate jurisdiction. Original is the power to try a suit at first instance; appellate is the power to hear an appeal from a subordinate court. A District Court has both.

5. Exclusive and concurrent jurisdiction. Exclusive where only one court may try the matter; concurrent where two or more are competent and the plaintiff has the choice, as under sections 19 and 20.

6. Jurisdiction as to persons. Certain persons are outside the ordinary process: the President and the Governors under Article 361 of the Constitution; and foreign sovereigns, ambassadors and envoys, who may be sued only with the consent of the Central Government certified in writing by a Secretary, under sections 86 and 87A.

III. Objections to jurisdiction: section 21

A decree passed by a court which had subject-matter jurisdiction but was wrong as to place or as to pecuniary limits is not a nullity. The defect is an irregularity, and section 21 makes it curable by the failure to object at the right time. That is the whole purpose of the section, and it is the single proposition most often examined on this topic.

The cases to cite. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, is the foundation: a defect of jurisdiction strikes at the very authority of the court, and a decree passed without jurisdiction is a nullity whose invalidity may be set up whenever and wherever it is sought to be enforced, including in execution and in collateral proceedings. Official Trustee v. Sachindra Nath Chatterjee, AIR 1969 SC 823, supplies the second limb: jurisdiction means not merely authority over the subject-matter but authority to pass the particular order sought.

Conclusion. Jurisdiction is authority, it is fixed by law, and consent cannot create it. Of the kinds, the one that decides most problems is the difference in consequence: a decree of a court with no subject-matter jurisdiction is a nullity and may be attacked whenever it is relied on, while a defect as to place or pecuniary limits is an irregularity which section 21 cures unless the objection was taken at or before the settlement of issues and a failure of justice followed.

Rule 2. Where a suit is instituted without a next friend, the defendant may apply and the plaint shall be taken off the file, with costs payable by the pleader or other person who presented it.

Rule 2A. The court may, at any stage, on the defendant's application, order the next friend to give security for the defendant's costs; and where the next friend is not resident in India and does not possess sufficient immovable property in India, the court shall ordinarily so order.

Rule 3A. A suit shall not be defeated merely because the next friend or guardian for the suit has no interest in the subject-matter, and no decree passed in such a suit shall be set aside merely on that ground unless prejudice has been occasioned to the minor.

III. Suits against a person under disability

Rule 5. Every application to the court on behalf of a minor, other than an application under Rule 10(2), shall be made by his next friend or by his guardian for the suit.

Rule 6. The next friend or guardian shall not, without the leave of the court, receive any money or other movable property on behalf of the minor, either by way of compromise before decree, or under a decree or order in favour of the minor. Leave is granted on security being furnished, unless dispensed with for reasons recorded.

Rule 7. 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. The application for leave must be accompanied by an affidavit of the next friend or guardian and, where he is represented by a pleader, a certificate of the pleader, to the effect that the agreement or compromise is, in his opinion, for the benefit of the minor. Any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor.

VI. Retirement, removal and the disability ceasing

Rules 1 to 14, so far as they are applicable, shall extend to persons adjudged, before or during the pendency of the suit, to be of unsound mind, and shall also extend to persons who, though not so adjudged, are found by the court on enquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.

Two consequences. A person need not have been adjudged of unsound mind under the Mental Healthcare Act, 2017; the court may hold its own enquiry. And once Rule 15 applies, the entire machinery built for minors is available.

Rule 16 applies the Order to minor defendants in appeals and to persons of unsound mind, and Order XXXIIA, inserted in 1976, deals with suits relating to matters concerning the family.

VIII. Next friend and guardian for the suit compared

Section 8: the extension under sections 6 and 7 shall not exceed three years from the cessation of the disability, and does not apply to suits to enforce rights of pre-emption.

Section 9: once time has begun to run, no subsequent disability stops it, subject only to the proviso about letters of administration granted to a debtor.

Majority is 18, or 21 where a guardian of the person or property was appointed by a court under the Guardians and Wards Act, 1890 before the minor attained 18, under section 3 of the Indian Majority Act, 1875.

The cases to cite. Ram Chandra Arya v. Man Singh, AIR 1968 SC 954, is the authority for the consequence: a suit instituted against a person of unsound mind without a guardian for the suit being appointed under Order XXXII Rule 3 read with Rule 15 produces a decree that is a nullity as against him, and an execution sale under such a decree is void. That is what makes the appointment jurisdictional rather than formal.

For full marks, cover: the meaning and location; which court executes, sections 37 to 39, 44A and 46; the application under Order XXI Rules 10 to 22; section 51's five clauses and its proviso; each mode with its rules; sections 55 to 60 and 64; section 47 and the rule that the executing court cannot go behind the decree; and Article 136.

I. Meaning and location

Execution is the process by which a decree-holder compels the judgment-debtor to obey the decree and so obtains the fruits of his litigation. The word is not defined in the Code. The law is in sections 36 to 74 and in Order XXI, which with its 106 rules is the longest Order in the Code. Section 36 applies those provisions, so far as applicable, to orders as well as to decrees.

II. Which court executes

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

Section 44A: a certified copy of a decree of a superior court of a reciprocating territory, filed in a District Court with the certificate of satisfaction, may be executed as if it had been passed by that District Court, and the court shall refuse execution if the decree falls within any of the exceptions in section 13(a) to (f).

III. The application: Order XXI Rules 10 to 22

Rule 10: application to the court which passed the decree or, where it has been sent for execution, to that court.

Rule 11(1): an oral application suffices for the immediate execution of a money decree by arrest, where the judgment-debtor is within the precincts of the court.

Rule 11(2): in every other case, a written application, signed and verified, stating the number of the suit, the parties, the date of the decree, whether an appeal has been preferred, whether any payment or adjustment has been made, previous applications and their results, the amount due, and the mode in which the assistance of the court is required.

Rule 17 governs the procedure on receiving the application and requires defects to be allowed to be remedied.

The proviso: where the decree is for the payment of money, detention shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause, the court is satisfied for reasons recorded in writing that he is likely to abscond, or has dishonestly transferred, concealed or removed his property since the suit was instituted, or has committed some other act of bad faith in relation to his property, or has or has had since the decree the means to pay and refuses or neglects to pay, or that the decree is for a sum he was bound in a fiduciary capacity to account for.

Mode 1, delivery of property specifically decreed. Rule 31, movables: seizure and delivery, or detention, or attachment, or both. Rule 35, immovable property: delivery of possession, removing any person bound by the decree who refuses to vacate, breaking open a lock or door if necessary with police assistance, and giving reasonable warning and facility to withdraw to women who by custom do not appear in public. Rule 36, symbolic possession where a tenant not bound to relinquish is in occupation.

Sale: Rule 64 empowers it; Rule 66 requires the proclamation; Rule 68 requires fifteen days after the proclamation for immovable property and seven days for movables; Rule 72 forbids the decree-holder to bid without the court's express permission; Rules 89, 90 and 91 allow the sale to be set aside on deposit, for material irregularity or fraud causing substantial injury, and for want of saleable interest; Rule 92 confirms it; Rule 94 provides the certificate.

Mode 3, arrest and detention. Section 55: no dwelling house shall be entered after sunset and before sunrise, no outer door broken open unless the judgment-debtor occupies it and refuses access, and reasonable facility must be given to a woman who does not appear in public to withdraw. Section 56: no woman shall be arrested or detained in the civil prison in execution of a decree for the payment of money. Section 58: detention up to three months where the decree is for a sum exceeding five thousand rupees, six weeks where it exceeds two thousand but not five thousand; by section 58(1A) no order of detention shall be made where the decretal amount does not exceed two thousand rupees; and release does not discharge the debt.

The executing court cannot go behind the decree. It must take the decree as it stands, however erroneous, unless the decree is a nullity for want of jurisdiction.

Order XXI Rule 2: a payment or adjustment out of court must be certified or recorded, and one not so certified shall not be recognised by any court executing the decree; Article 125 gives thirty days.

Stay of execution: Order XXI Rule 26 allows the transferee executing court to stay for a reasonable time to let the judgment-debtor move the proper court; Rule 28 makes an order of the court which passed the decree, or of the appellate court, binding on the executing court; Rule 29 allows a stay where a suit by the judgment-debtor against the decree-holder is pending; and Order XLI Rule 5 governs a stay pending appeal, on the three conditions of substantial loss, no unreasonable delay and security.

Limitation. Article 136 gives twelve years from the date the decree becomes enforceable, except three years for a decree granting a mandatory injunction; Article 127 gives sixty days to set aside a sale in execution.

For full marks, cover: the three stages; Order VII Rules 14, 17 and 18 and Order VIII Rules 1A to 1C for production with the pleadings; Order XIII Rules 1 to 11 for production at the hearing, admission, endorsement, impounding and return; the Stamp Act on impounding; Order XI and Order XVI Rule 6; and the consequence of non-production.

Documents pass through a civil suit in three stages, and the Code deals with each separately: production, admission and impounding, and return.

I. Production with the pleadings

Order VII Rule 14, the plaintiff.

Sub-rule (1): where a plaintiff sues upon a document, or relies on a document in his possession or power as evidence in support of his claim, he shall enter it in a list and produce it in court when the plaint is presented, and shall at the same time deliver the document and a copy to be filed with the plaint.

Rule 1A(3): a document not so produced shall not, without the leave of the court, be received in evidence on his behalf at the hearing.

Rule 1A(4) saves the same three cases: a document produced for cross-examination, one handed to a witness to refresh his memory, and one produced in reply to the plaintiff's case.

Rule 1B requires documents to be filed with the pleading in the case of a set-off or counterclaim; Rule 1C applies Rule 1A to such documents.

II. Production at the hearing: Order XIII

Rule 1: the parties shall produce, at or before the settlement of issues, all the documentary evidence in original where the copies have been filed with the pleadings. Sub-rule (3) exempts documents produced for cross-examination or to refresh a witness's memory.

Rule 3: the court may at any stage reject any document which it considers irrelevant or otherwise inadmissible, recording its reasons.

The commonest occasion is an insufficiently stamped instrument. Under the Indian Stamp Act, 1899, an instrument not duly stamped is inadmissible in evidence; section 33 of that Act obliges every person having authority to receive evidence to impound it, and section 35 permits it to be admitted on payment of the duty and the penalty. A document suspected of being forged or fabricated may also be impounded so that it is available for a prosecution.

Impounding is not rejection. A rejected document goes back to the party who produced it under Rule 7. An impounded document is retained by the court, usually because a public duty attaches to it, unpaid stamp duty to be recovered or a forgery to be investigated.

IV. Return of documents: Order XIII Rules 7, 9, 10 and 11

V. Two related powers

Order XI Rules 12 to 14, discovery and production. A party may apply for an order that the opposite party make discovery on affidavit of the documents in his possession or power relating to the matter in question; and the court may order the production of documents in the possession or power of a party. Rule 21 provides for the dismissal of a suit or the striking out of a defence for failure to comply.

Order XVI Rule 6, summons to produce a document. A person may be summoned to produce a document without being summoned to give evidence, and he shall be deemed to have complied with the summons if he causes the document to be produced instead of attending personally.

VI. Why the scheme is written this way

The whole design has one object: to fix the documentary case of each side at the earliest stage and to stop trial by ambush. The 1999 amendments, in force from 2002, are what tightened it; before them documents were routinely produced for the first time in the middle of the evidence.

The cases to cite. Avinash Kumar Chauhan v. Vijay Krishna Mishra, (2009) 2 SCC 532, is the case on impounding: where a document is insufficiently stamped, the court is bound to impound it under section 33 of the Indian Stamp Act and cannot admit it in evidence until the duty and penalty are paid, and the objection may be taken at any stage. Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1, is the procedural counterpart: objections to the admissibility of a document should ordinarily be marked and deferred to the judgment stage rather than tried as they arise, so that the trial is not derailed.

Conclusion. Documents pass through three stages and the Code deals with each separately: production with the pleadings, admission and impounding at the hearing, and return after the suit. The whole design exists to fix each side's documentary case early and stop trial by ambush, and the sentence that enforces it is the same in both Orders: a document that ought to have been produced and was not shall not be received in evidence without the leave of the court. Impounding is not rejection, because a rejected document goes back and an impounded one is kept.

Order VI Rule 1 provides that "pleading" shall mean plaint or written statement. Rule 2 requires every pleading to contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and to be divided into paragraphs, numbered consecutively, each containing as nearly as may be a separate allegation.

The pre-requisite is the notice under section 80(1): no suit shall be instituted against the Government, including the Government of a State, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of, the officer named in the section; and the plaint shall contain a statement that such notice has been so delivered or left.

Understand it providerly

The notice must state the name, description and place of residence of the plaintiff, the cause of action, and the relief claimed. It goes to a Secretary to the Central Government, or the General Manager in a railway matter; to a Secretary to the State Government or the Collector of the district; and, against a public officer, to that officer.

A next friend is the person through whom a minor sues. Order XXXII Rule 1: every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Rule 4(1): any person who is of sound mind and has attained majority may act as next friend, provided his interest is not adverse to that of the minor and he is not a defendant in the suit.

The suit is dismissed. Order IX Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim or part of it, in which case the court shall pass a decree against him upon such admission and shall dismiss the suit as to the remainder.

Section 18(1) of the Limitation Act, 1963 provides that where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of that property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

Section 2(6) defines "foreign judgment" as the judgment of a foreign court, and section 2(5) defines "foreign court" as a court situate outside India and not established or continued by the authority of the Central Government.

Section 109, when appeals lie to the Supreme Court. Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies (i) that the case involves a substantial question of law of general importance, and (ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

Three points about the section as it now stands. The old monetary tests were removed by the Amendment Act of 1973, so value is no longer a criterion. The appeal lies only from a judgment, decree or final order, so no appeal lies under the Code from an interim or interlocutory order. And the two limbs of the certificate are cumulative: a substantial question of law of general importance and the High Court's opinion that it needs to be decided by the Supreme Court.

Rule 7: where the certificate is granted, the applicant shall, within such time as the court may allow, furnish security for the costs of the respondent, and deposit the amount required to defray the expense of translating, transcribing, indexing and transmitting to the Supreme Court a correct copy of the record.

Rule 8: on due compliance, the court shall declare the appeal admitted, give notice to the respondent, transmit the record, and give the parties a certificate that the appeal has been admitted.

Rule 13: notwithstanding the grant of a certificate, the decree appealed from shall be unconditionally executed unless the court otherwise directs; but the court may, on special cause shown, stay execution, or permit execution on security being given by the decree-holder for the restitution of any property taken.

Rule 15 governs the procedure to enforce an order of the Supreme Court: the party in whose favour it is made applies by petition to the court from which the appeal was preferred, and that court shall transmit the order to the court which passed the first decree or to such other court as the Supreme Court directs, which shall execute it in the same manner as its own decree.

Section 36 applies the provisions relating to the execution of decrees, so far as applicable, to the execution of orders, so the modes are the same for both.

Section 51 lists them. Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree:

(a) by delivery of any property specifically decreed;

(b) by attachment and sale, or by sale without attachment, of any property;

(c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require.

Attachment and sale. Section 60 decides what is attachable and its proviso what is exempt, including salary to the extent of the first one thousand rupees and two thirds of the remainder. Section 64 makes a private transfer of attached property void as against claims enforceable under the attachment. Rule 54 governs attachment of immovable property by an order prohibiting transfer or charge; Rules 41 to 53 movables, debts and the garnishee procedure. Sale is under Rules 64 to 73: Rule 66 proclamation, Rule 68 a fifteen day interval for immovable and seven days for movable property, Rule 72 no bidding by the decree-holder without leave, and Rules 89 to 92 setting aside and confirmation.

Arrest and detention. Section 55 on the manner, forbidding entry into a dwelling house after sunset and before sunrise; section 56, no woman shall be arrested or detained in the civil prison in execution of a money decree; section 58, detention up to three months where the decree exceeds five thousand rupees and six weeks where it exceeds two thousand but not five thousand, with no detention at all where the amount does not exceed two thousand rupees under sub-section (1A), and release not discharging the debt; Rule 37, a notice to show cause before the warrant.

Two Orders, and they should be taken separately.

I. Corporations: Order XXIX

Rule 1, subscription and verification of pleading. 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, service on corporation. Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served (a) on the secretary, or on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or, if there is no registered office, then at the place where the corporation carries on business.

Rule 3, power to require personal attendance of officer of corporation. The court may, at any stage of the suit, require the personal appearance of the secretary or of any director or other principal officer who may be able to answer material questions relating to the suit.

Rule 2, disclosure of partners' names. Where a suit is instituted by partners in the name of the firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. Where the plaintiffs fail to comply, all proceedings in the suit may, upon an application for that purpose, be stayed.

Rule 3, service. Where persons are sued as partners in the name of their firm, the summons shall be served either (a) upon any one or more of the partners, or (b) at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management of the partnership business there, as the court may direct; and such service shall be deemed good service upon the firm, whether all or any of the partners are within or without India. The proviso: in the case of a partnership dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within India whom it is sought to make liable.

Conclusion. The two Orders do different jobs because a corporation and a firm are different things. A corporation is a legal person and sues in its own name, so Order XXIX is only about who signs its pleadings, how it is served and whose attendance may be required. A firm is not a legal person, and Order XXX is a rule of convenience that lets the partners be described compendiously, which is why they must appear individually under Rule 6 and why Order XXI Rule 50 decides whose property a decree against the firm may reach.

Rule 2 requires the precise amount to be stated in a money suit, or an approximate figure where the claim is for mesne profits or on unsettled accounts. Rule 3 requires immovable property to be described sufficiently to identify it, with boundaries or survey numbers. Rule 6 requires the plaint to show the ground of exemption where the suit is filed after the period of limitation. Rule 7 requires the relief to be specifically stated. Rule 14 requires the plaintiff to produce with the plaint every document on which he sues or relies, and by sub-rule (3) a document not so produced shall not be received in evidence on his behalf without the leave of the court.

Rule 11 lists the six grounds on which the plaint shall be rejected, of which the two that matter are (a) no cause of action and (d) barred by any law; Rule 13 provides that rejection does not preclude a fresh plaint on the same cause of action; and Rule 10 requires the plaint to be returned where the court lacks jurisdiction.

II. The written statement: Order VIII

A written statement is the defendant's pleading in answer to the plaint.

Rule 5, specific denial: every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted, shall be taken to be admitted, except against a person under disability; and by sub-rule (2), where no pleading is filed, the court may pronounce judgment on the basis of the facts contained in the plaint.

Rule 1A requires the defendant to produce with the written statement every document on which he bases his defence, with the same sanction as Order VII Rule 14(3). Rule 6 allows a set-off, Rules 6A to 6G a counterclaim, and Rule 9 provides that no pleading subsequent to the written statement, other than by way of defence to a set-off or counterclaim, shall be presented except by the leave of the court. Rule 10 provides that where a written statement is not filed within the time permitted, the court shall pronounce judgment against him or make such order as it thinks fit.

III. Common to both: Order VI

Rule 2: a concise statement of the material facts and not the evidence, in numbered paragraphs, with dates, sums and numbers in figures as well as in words.

Rule 4: particulars where fraud, misrepresentation, breach of trust, undue influence or wilful default is pleaded.

The Limitation Act extends time in three distinct ways, and a good answer separates them before giving the sections.

I. Section 5, extension of the prescribed period on sufficient cause

Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation: the fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause.

Three limits and they must be stated. It applies to an appeal and an application only, never to a suit; it does not apply to applications under Order XXI, that is, to execution applications; and by section 29(2) it applies to a special or local law only so far as that law does not expressly exclude it.

Section 7: where one of several persons jointly entitled is under a disability and a discharge can be given without his concurrence, time runs against all; where no such discharge can be given, time runs against none until one becomes capable of giving a discharge or the disability ceases. Explanation I applies it to the manager of a Hindu undivided family governed by Mitakshara law; Explanation II to a guardian appointed to the property of a minor.

Section 8: nothing in sections 6 or 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected, the period within which any suit must be instituted or application made. Section 8 is a cap on sections 6 and 7, not an independent rule.

Section 9: once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it, subject only to the proviso about letters of administration granted to a debtor.

III. Section 4, where the last day falls on a closed day

Section 88 provides that where two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs, and who is ready to pay or deliver it to the rightful claimant, that person may institute a suit of interpleader against all the claimants, for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made, and of obtaining indemnity for himself. The proviso bars the suit where a suit is pending in which the rights of all parties can properly be decided.

The five requisites:

1. A debt, sum of money or other property, movable or immovable, in dispute;
2. Two or more persons claiming it adversely to one another;
3. The person from whom it is claimed claiming no interest in it other than for charges or costs;

Rule 4, procedure at the first hearing. The court may declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs and dismiss him from the suit; or, if justice requires it, retain all parties until the final disposal. Where the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed; or it may direct an issue to be framed and tried, and may make one claimant plaintiff in place of or in addition to the original plaintiff.

Rule 5, agents and tenants may not institute interpleader suits. Nothing in this Order shall enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with persons other than persons making claim through such principals or landlords.

Rule 6, charge for the plaintiff's costs. The court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed, or in some other effectual way.

This is a suit for money due under a contract, that is, an ordinary money suit. It is not a suit about immovable property, so sections 16 to 18 do not apply, and it is not a suit for compensation for a wrong to the person or to movables, so section 19 does not apply. It is governed by the residuary provision, section 20.

Section 20: subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction:

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

(b) any of the defendants, where there are more than one, so resides or carries on business, provided that in such case either the leave of the court is given, or the defendants who do not so reside acquiesce in such institution; or

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

The Explanation: a corporation shall be deemed to carry on business at its sole or principal office in India, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

A practical point on which city to choose. A will normally sue where B has assets, because a decree has to be executed, and by section 39(4) the court which passed the decree cannot execute it against property outside its own jurisdiction; a decree obtained far from the defendant's assets has to be transferred under section 39 before it can be worked. On these facts, if B's business is at Delhi, Delhi is the sensible forum even though all three are open.

Two limits on the choice.

Pecuniary and subject-matter jurisdiction still apply. Section 6 denies a court jurisdiction over a suit exceeding its pecuniary limits, and section 15 requires the suit to be instituted in the court of the lowest grade competent to try it.

Limitation. Article 15 of the Schedule governs a suit for the price of goods sold and delivered where no fixed period of credit is agreed upon: three years, from the date of the delivery of the goods. Where a fixed period of credit was agreed, Article 14 gives three years from when the period of credit expires. So on these facts time runs from the delivery at Chennai, unless credit was agreed.

Conclusion. A may sue at Mumbai, Chennai or Delhi, and additionally wherever B resides or carries on business. The suit is an ordinary money claim, so section 20 governs, and clause (c) opens every place where any part of the cause of action arose: the contract at Mumbai, the delivery at Chennai and the failure to pay at Delhi. In practice he should sue where B has assets, because section 39(4) will otherwise force him to transfer the decree, and an exclusive jurisdiction clause, if the contract has one, will confine him to the court it names.

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

The words "before the expiration of the prescribed period" are a condition precedent. An acknowledgment made after the period has run gives no fresh period, revives nothing, and has no effect whatever under the Limitation Act. That is the first and most important half of the answer.

But D is not necessarily without a remedy, and the remedy is in the Contract Act.

Section 25(3) of the Indian Contract Act, 1872 provides that an agreement made without consideration is void, unless it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. The illustration in the Act is exactly this case:

Where section 25(3) is attracted, the suit is on the new promise and not on the old debt. The old debt supplies the consideration which the section dispenses with; the cause of action is the fresh promise, and limitation runs afresh from the date of that promise, the applicable Article being Article 113, the residuary, three years from when the right to sue accrues. And the promise may be to pay wholly or in part, so a promise to pay Rs. 50,000 out of Rs. 1,50,000 is enforceable to that extent and no further.

Two further points on these facts.

The original period. A suit on a promissory note payable on demand, not accompanied by any writing restraining or postponing the right to sue, is governed by Article 35: three years from the date of the note. Note the trap: time runs from the date of the note, not from the date of any demand. If the note was payable at a fixed time after date, Article 34 applies and time runs from when it falls due.

Even after limitation, the debt itself is not extinguished. Section 3 bars the remedy, not the right, and only section 27 extinguishes a right, and that only in a suit for possession of property. So if D holds any security or pledge for this loan he may still realise it, and if C voluntarily pays, he cannot recover the payment back.

Section 19 would apply if C had made a part payment. Where payment on account of a debt is made before the expiration of the prescribed period by the person liable to pay, a fresh period is computed from the date of the payment, provided that an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making it.

Section 20 identifies who may sign for the purposes of sections 18 and 19, and provides that an acknowledgment or payment by one of several joint contractors does not, without more, bind the others.

Conclusion. The letter written after limitation had run gives D nothing under the Limitation Act, because section 18 requires the acknowledgment to be made before the period expires. His only hope is section 25(3) of the Indian Contract Act, which enforces a written signed promise to pay a time-barred debt, and whether he has one turns on the words of the letter: a bare admission that the loan exists is not a promise. Had the letter come before the period expired, section 18 would have given a fresh three years from the date C signed it.

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

The five conditions, applied:

1. Two suits, one previously instituted. Mumbai, 18 October 2018, precedes Bangalore, 18 December 2018. Satisfied.
2. The matter in issue in the later suit is directly and substantially in issue in the earlier. The problem says the Bangalore suit is on the same facts and cause of action. Satisfied.
3. The same parties, or parties under whom they claim, litigating under the same title. AB and CD are the same two people. That they have exchanged the roles of plaintiff and defendant makes no difference, and saying so expressly earns a mark: the section speaks of a suit "between the same parties", not of the same plaintiff.

Once both suits are before one court, they may be consolidated under section 151 and tried together on common evidence, with one set of findings. That is often the most satisfactory result, because each party is both a claimant and a defendant on the same facts.

What Mr. AB may not do is ask the Mumbai court to restrain CD from proceeding at Bangalore. Section 41(b) of the Specific Relief Act, 1963 bars an injunction restraining a person from prosecuting a proceeding "in a court not subordinate to that from which the injunction is sought", and the Bangalore court is not subordinate to the Mumbai court. An anti-suit injunction lies against foreign proceedings (Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd., (2003) 4 SCC 341), not against a coordinate Indian court.

(ii) The order the court will pass against Mr. CD

The Bangalore court will stay the trial of CD's suit. It will not dismiss it and it will not reject the plaint.

This is the point of the question and the answer must be precise about it. Section 10 bars the trial, not the institution. The plaint at Bangalore was validly presented and validly registered; what the court is forbidden to do is proceed with the trial. So:

What happens when the Mumbai suit is decided. The findings in it will bind the parties, and the Bangalore suit will then be governed by section 11, res judicata: any matter directly and substantially in issue in the Mumbai suit and heard and finally decided there cannot be re-tried at Bangalore. In practice the Bangalore suit will then be disposed of on that footing.

Section 10 and section 11 compared:

The Code provides for it because a court cannot leave the court house, and there are matters that no amount of oral evidence will settle as well as an inspection will: the position of a boundary, the extent of an encroachment, the identity of a field, the state of a building, the amount of mesne profits, the correctness of a running account. A commission lets the court borrow the eyes of a person on the spot, at the cost of the party who asks for it, without turning the trial into a site visit. It also allows the evidence of a witness who cannot attend to be taken where he is.

II. Section 75: the seven purposes

Subject to such conditions and limitations as may be prescribed, the court may issue a commission:

(a) to examine any person (Order XXVI Rules 1 to 8);

(b) to make a local investigation (Rule 9);

(c) to examine or adjust accounts (Rules 11 and 12);

(d) to make a partition (Rules 13 and 14);

(e) to hold a scientific, technical or expert investigation (Rule 10A);

(f) to conduct a sale of property which is subject to speedy and natural decay and which it is desirable to sell at once (Rule 10B);

Rule 4A, inserted in 1999, is a general power: notwithstanding anything in the foregoing rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue a commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.

Rule 5: a commission for the examination of a person residing at any place not within India may be issued in the manner there provided.

Rules 6, 7 and 8: the court to which the commission is issued shall examine the witness and return the evidence, together with the commission and the depositions, to the court which issued it; and the evidence so taken shall form part of the record, and may be read in evidence in the suit, provided the witness is beyond the jurisdiction, or is dead, or unable from sickness or infirmity to attend, or is exempted, or is a Government servant who cannot attend, or where the court in its discretion dispenses with proof of any of those circumstances.

Sub-rule (1): the commissioner shall, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, return such evidence, together with his report in writing signed by him, to the court.

Sub-rule (2): the report of the commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record; but the court, or, with the permission of the court, any of the parties to the suit, may examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

Sub-rule (3): where the court is for any reason dissatisfied with the proceedings of the commissioner, it may direct such further inquiry to be made as it shall think fit.

V. The 1976 additions: Rules 10A, 10B and 10C

In each of these three rules the provisions of Rule 10 as to the report apply, so the report is evidence and forms part of the record.

VI. Accounts and partition: Rules 11 to 14

Rule 11: in any suit in which an examination or adjustment of accounts is necessary, the court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.

Rule 12: the court shall furnish the commissioner with such part of the proceedings and such instructions as appear necessary, and the proceedings and report of the commissioner shall be evidence in the suit; but the court may, for reasons to be recorded, direct such further inquiry as it thinks fit.

Rule 13: where a preliminary decree for partition of immovable property has been passed, and the partition or separation cannot be conveniently made without further inquiry, the court may issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

Rule 16A provides that where a party fails to appear before the commissioner after due service, the commissioner may proceed ex parte. Rule 17 allows the commissioner to apply to the court for the issue of process to compel the attendance of a witness, and Rule 18 requires the parties to appear before him. Rule 18A, inserted in 1976, provides that the commission shall form part of the record. Rule 18B requires the court to fix a date, ordinarily not later than sixty days, for the return of the commission with the report.

Rule 15 provides for the expenses of the commission to be paid into court by the party at whose instance or for whose benefit it is issued, before it issues.

VIII. Commissions issued by and to foreign courts: sections 76 to 78 and Rules 19 to 22

Conclusion. A commission lets a court do what it cannot do from the bench, examine a witness who cannot attend, look at land, go through accounts, divide an estate or take expert evidence. Section 75 lists seven purposes and Order XXVI works each of them out. Two propositions govern them all: the commissioner may examine parties and witnesses and enter land under Rule 16, and his report and the evidence he takes are evidence in the suit and form part of the record under Rule 10(2), but he decides nothing and the court may order a further inquiry.

Section 27, extinguishment of right to property. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

This is the crucial section, and it is the only place in the Act, apart from section 25, where limitation touches the right and not merely the remedy. Everywhere else section 3 bars the suit and leaves the right alive.

Article 65. A suit for possession of immovable property or any interest therein based on title: twelve years, running from the date the possession of the defendant becomes adverse to the plaintiff.

Two Explanations to Article 65 are worth naming. Where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee falls into possession. And where the suit is by a Hindu or Muslim entitled to possession on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies.

3. Hostile, that is, in denial of the owner's title, and to his knowledge;
4. Continuous and uninterrupted for the whole statutory period;
5. Accompanied by animus possidendi, the intention to possess as owner; and
6. Pleaded with precision, stating the identity of the property and the date on which the possession became adverse.

The burden of proof lies on the person claiming adverse possession, and it is a heavy one. Because Article 65 runs from the date the defendant's possession became adverse, and not from any act of the plaintiff, it is the defendant who must plead and prove that date. A plea of adverse possession that does not state when the possession became adverse is no plea at all.

IV. Possession that is never adverse

Permissive possession is never adverse. A tenant, a licensee, a mortgagee in possession, a person let in on sufferance, a servant or caretaker, and a co-owner all hold with the owner's leave or on his behalf, and their possession does not become adverse until they openly assert a hostile title and that assertion is brought home to the owner. This is where the great majority of claims fail.

VI. The effect: a right, not merely a defence

The most important development in this subject is Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729, in which a three judge Bench held that a person who has perfected title by adverse possession may use it as a sword as well as a shield. He may file a suit for a declaration of title based on adverse possession, and if he is dispossessed after perfecting his title, he may sue for possession under Article 65. Earlier decisions holding that the plea was available only as a defence, including Gurudwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669, no longer represent the law.

The reasoning is that section 27 does not merely bar the owner's remedy; it extinguishes his right, and once the right is extinguished the possessor holds a title which the law must protect like any other. That is why this question is framed as the creation of ownership: adverse possession does not merely defeat a claim, it creates a title.

VII. Against the Government

For full marks, cover: each of the three separately with its section, its Order, who invokes it, on what ground and to which court; then a comparison table; and the two settled propositions, that a review is not an appeal in disguise and that section 115 is confined to jurisdictional error, with the substituted proviso of 2002.

These three are the Code's provisions for correcting a decision otherwise than by appeal. They are entirely different from one another, and the surest way to lose marks is to run them together.

I. Reference: section 113 and Order XLVI

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

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

Rule 2: the court may either stay the proceedings or pass a decree contingent upon the decision of the High Court, but no decree shall be executed until the receipt of a copy of the High Court's judgment.

Rule 3: the High Court shall decide the point so referred and transmit a copy of its judgment, and the court which made the reference shall, on receiving it, dispose of the case conformably.

Rule 4: the High Court may, on a reference, alter, cancel or set aside any decree or order passed in the case and make such order as it thinks fit.

Rule 4A, inserted in 1976, extends the power of reference to any other court.

may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

Order XLVII Rule 1, the grounds. Three, and only three:

1. Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or the order made;
2. Some mistake or error apparent on the face of the record;
3. Any other sufficient reason.

The Explanation to Rule 1 provides that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case shall not be a ground for review of that judgment.

Rule 1(2) bars a party who has appealed from applying for review while the appeal is pending, save in the case of a party who has not appealed where another party has.

Rule 2 deals with the position where the Judge who passed the decree is no longer attached to the court.

The two settled propositions. A review is not an appeal in disguise: an erroneous view of law, or a wrong appreciation of evidence, is not an "error apparent on the face of the record", which must be self-evident and must not require a long process of reasoning on points where there may conceivably be two opinions. And "any other sufficient reason" is read ejusdem generis, as a reason analogous to the two specified grounds (Chhajju Ram v. Neki, and approved since).

III. Revision: section 115

Section 115(1). The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit.

The settled limit on the grounds. Section 115 goes to jurisdiction, not to the correctness of a finding. A court which has jurisdiction to decide a question has jurisdiction to decide it wrongly, and a wrong decision on the merits is not revisable. Clause (c), "illegally or with material irregularity", refers to the manner of exercising a jurisdiction the court possesses, that is, to a procedural illegality such as deciding without hearing a party, and not to the conclusion reached. The proposition goes back to the Privy Council in Rajah Amir Hassan Khan v. Sheo Baksh Singh (1884) and Balakrishna Udayar v. Vasudeva Aiyar (1917).

Revision may be invoked on the application of a party or by the High Court of its own motion, and the power is discretionary and supervisory. Article 131 gives ninety days.

Where section 115 is closed, Article 227 of the Constitution, the High Court's power of superintendence over all courts and tribunals, may still be available, but it is exercised sparingly and only to keep subordinate courts within the bounds of their authority. In Kanchhu v. Prakash Chand (2025 INSC 542) the Supreme Court set aside a High Court order under Article 227 recalling a thirty year old ex parte decree, restating that supervisory jurisdiction must stay within supervisory limits and that a litigant who is not vigilant cannot expect indulgence.

Conclusion. Three remedies, told apart by three questions: who moves, to which court, and on what ground. Reference goes up from the subordinate court on a doubtful question of law, and is compulsory where it thinks a statute invalid. Review goes to the same court on three narrow grounds within thirty days, and is not an appeal in disguise. Revision comes down from the High Court on a jurisdictional error where no appeal lies, within ninety days, and since 2002 reaches an interlocutory order only where reversing it would finally dispose of the suit.

Two mischiefs are avoided. The stakeholder is protected against paying the wrong claimant and then being sued by the right one; and the court is saved two suits where one will decide the question for everybody.

II. Section 88

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

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

III. The five requisites

1. There must be some debt, sum of money or other property, movable or immovable, in dispute;
2. Two or more persons must claim it adversely to one another;

Rule 2, payment of thing claimed into court. Where the thing claimed is capable of being paid into court or placed in the custody of the court, the plaintiff may be required to so pay or place it before he can be entitled to any order in the suit.

Rule 3, procedure where the defendant is suing the plaintiff. Where any of the defendants in an interpleader suit is actually suing the plaintiff in respect of the subject-matter of such suit, the court in which the suit against the plaintiff is pending shall, on being informed by the court in which the interpleader suit has been instituted, stay the proceedings as against him; and his costs in the suit so stayed may be provided for in that suit; but if, and in so far as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader suit.

Rule 4, procedure at first hearing. At the first hearing the court may:

(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or

(b) if it thinks that justice or convenience so requires, retain all parties until the final disposal of the suit.

(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader suit against A and C.

(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute an interpleader suit against A and C.

Rule 6, charge for plaintiff's costs. Where the suit is properly instituted, the court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed, or in some other effectual way.

V. The character of the suit

The distinctive feature is that the real contest is between the defendants. The plaintiff is a stakeholder who wants out, and Rule 4 lets him out at the first hearing, with his costs. Thereafter the court proceeds as though the claimants were plaintiff and defendant against each other, and Rule 4(3)(b) allows the court to make one claimant the plaintiff.

Conclusion. The interpleader suit is unusual in that its plaintiff asks for nothing but to be let go, and the Order is built around that: he must swear that he claims no interest and that there is no collusion, he may be made to bring the thing into court, and Rule 4 discharges him at the first hearing and turns one of the claimants into the plaintiff. The two bars in Rule 5 rest on estoppel, because a tenant cannot put his landlord to proof of title nor an agent his principal, and they do not touch a claim made through the landlord or principal.

Order V Rule 1(1): when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant; the proviso allows the court, for reasons to be recorded in writing, to extend that time, but not later than ninety days from the date of service of summons.

Rule 1(2): the summons shall be signed by the Judge or such officer as he appoints and shall be sealed with the seal of the court.

Rule 1(3): the court may not issue a summons where the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim.

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

Rule 5: the summons shall specify whether it is for the settlement of issues only or for the final disposal of the suit.

Rule 6: the day for the defendant's appearance shall be fixed with regard to his place of residence, allowing sufficient time for him to appear.

Rule 15: where the defendant is absent from his residence at the time service is sought and there is no likelihood of his being found within a reasonable time, and he has no agent, service may be made on any adult member of the family, whether male or female, who is residing with him. The Explanation provides that a servant is not a member of the family.

Rule 16: the serving officer shall require the person served to sign an acknowledgment on the original.

Rule 17, affixation: where the defendant or his agent refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent or other person on whom service can be made, the officer shall affix a copy on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall return the original with a report.

Rule 18: the serving officer shall, in all cases, endorse or annex a return stating the time and manner in which the summons was served, the name and address of the person identifying the defendant, and the witness to the delivery or tender.

3. Service by the plaintiff, "dasti": Rule 9A. The court may, in addition to the ordinary mode, on the application of the plaintiff, permit him to effect service of the summons on the defendant personally. He delivers or tenders a copy signed by the Judge and sealed and takes an acknowledgment; where the defendant refuses to acknowledge, or cannot be found, the plaintiff shall affix a copy as under Rule 17 and file an affidavit of what he has done.

4. Substituted service: Rule 20. 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.

Rules 22 and 23: the receiving court shall, where the summons is in a language different from that of its own records, have it translated, shall proceed as if it had issued the summons, and shall return it to the issuing court with the record of its proceedings.

Rule 25: where the defendant resides outside India and has no agent in India empowered to accept service, the summons shall be addressed to him at the place where he is residing and sent by post, courier, fax or electronic mail, if there is postal or other communication between that place and the place where the court is situate.

Rules 26 and 26A: service in a foreign territory through a political agent or court, and summonses to be sent to officers of foreign countries.

6. Service on special classes of defendant.

Rule 24: on a prisoner, through the officer in charge of the prison.

Rule 27: on a public officer, or on a servant of a railway company or local authority, by sending the summons to the head of the office in which he is employed, together with a copy to be retained by the defendant.

Rule 28: on a soldier, sailor or airman, through his commanding officer.

That is why the Order sets a hierarchy: personal service first, then service on an agent or an adult family member, then affixation, then service by post or electronic means, and only at the end substituted service, which the court may order only after satisfying itself that the defendant is evading service or that the ordinary mode has failed. An order for substituted service made without material showing evasion is bad, and an ex parte decree that follows it is liable to be set aside under Order IX Rule 13 on the ground that the summons was not duly served.

The Explanation to Article 123 of the Limitation Act reinforces the point: substituted service under Order V Rule 20 shall not be deemed to be due service for the purpose of computing the thirty days to apply to set aside an ex parte decree, so time runs from the defendant's knowledge of the decree.

IV. What follows service

Conclusion. A writ of summons is how a court proves that the defendant had a real chance to know of the suit, and Order V ranks its modes with personal service first and substituted service last, available only on the court's recorded satisfaction that he is evading service. That ranking has consequences after the decree: an ex parte decree is liable to be set aside where the service was bad, and by the Explanation to Article 123 substituted service is not treated as due service in computing the thirty days to apply.

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

Order XXXVIII contains the machinery: Rules 1 to 4 for arrest and Rules 5 to 13 for attachment.

II. Arrest before judgment: Rules 1 to 4

Rule 1, where the defendant may be called upon to furnish security for appearance. Where at any stage of a suit, other than a suit of the nature referred to in section 16 clauses (a) to (d), the court is satisfied, by affidavit or otherwise:

Note the exclusion. The rule does not apply to a suit of the nature referred to in section 16(a) to (d), that is, to suits for the recovery, partition, foreclosure, sale or redemption of immovable property, or for the determination of any other right to or interest in it, because in those suits the property itself is before the court.

Rule 2, security. Where the defendant fails to show cause why he should not furnish security, the court shall order him either to deposit in court money or other property sufficient to answer the claim, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree passed against him. Where he offers to deposit money or property, and it is other than money, the court may refuse the offer and require security. Sub-rule (2): every surety shall bind himself, in default of the defendant's appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.

Rule 3: a surety may apply to be discharged from his obligation, and on his doing so the court shall summon the defendant to furnish fresh security.

Section 55, on the manner of arrest, and section 56, that no woman shall be arrested in execution of a decree for money, are read alongside; and section 55's protections, that no dwelling house shall be entered after sunset and before sunrise and that a woman who by custom does not appear in public must be given reasonable time and facility to withdraw, apply to an arrest under this Order too.

III. Attachment before judgment: Rules 5 to 13

Rule 5, where the defendant may be called upon to furnish security for the production of property. 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,

Rule 6, attachment where cause not shown or security not furnished. Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. Where he shows such 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: save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree, so Order XXI Rules 41 to 57 apply.

Rule 8: where any claim is preferred to property attached before judgment, it shall be adjudicated upon in the manner provided for the adjudication of claims to property attached in execution of a decree, that is, under Order XXI Rule 58.

Rule 9, removal of attachment when security furnished or suit dismissed. 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 13, small cause court not to attach immovable property. Nothing in this Order shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.

IV. The conditions, stated together

For both arrest and attachment the court must be satisfied of two things:

1. The defendant's act or intended act: absconding, leaving the jurisdiction, leaving India, disposing of property, or removing property; and
2. The intent behind it, namely to delay the plaintiff, to avoid the process of the court, or to obstruct or delay the execution of any decree that may be passed.

The second is the harder and it is where most applications fail. It is not enough that the defendant is selling property; a man may sell his property for any number of honest reasons. The plaintiff must show, by specific averments on affidavit, that the sale is being made with the intent the rule requires. Mere apprehension, or the fact that the defendant is in financial difficulty, is not enough.

V. The safeguard: section 95

The cases to cite. Raman Tech & Process Engineering Co. v. Solanki Traders, (2008) 2 SCC 302, is the case this answer has been paraphrasing: the power under Order XXXVIII Rule 5 is drastic and extraordinary, to be exercised sparingly and with circumspection, and a plaintiff must establish specific facts showing the defendant's intent to obstruct or delay execution. A mere allegation that the defendant is selling property, or that the plaintiff fears non-payment, is not enough, and an attachment ordered on such material is liable to be set aside. Premraj Mundra v. Md. Maneck Gazi, AIR 1951 Cal 156, collects the classic principles on which courts still act.

Conclusion. Arrest and attachment before judgment are drastic because they operate against a defendant who has not yet been found liable to anything, and the Code hedges them accordingly. Both need proof not merely of the act, disposing of property or preparing to leave, but of the intent to obstruct or delay the execution of a decree that may be passed. Rule 5(4) makes an attachment ordered without first calling on the defendant to furnish security void, Rule 12 exempts an agriculturist's produce outright, and section 95 makes the plaintiff pay where there were no sufficient grounds.