BLS LLB 5 Years Sem 9 CPC 2022-23 Question Paper with Solutions

Under Order XL Rule 3, every receiver so appointed shall (a) furnish such security as the court thinks fit, duly to account for what he shall receive in respect of the property; (b) submit his accounts at such periods and in such form as the court directs; (c) pay the amount due from him as the court directs; and (d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.

Two of these will answer the question: to submit accounts as directed, and to be responsible for loss caused by his wilful default or gross negligence.

Order XXXIII Rule 1A provides that every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of the court, unless the court otherwise directs; and the court may adopt the report submitted by such officer, or may itself make an inquiry into the question.

Res sub judice means "a matter under judicial consideration", and it is enacted in section 10: 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 2(11) defines "legal representative" to mean a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued.

Two periods are excluded by section 12 of the Limitation Act, 1963. By section 12(1), in computing the period of limitation for any appeal, the day from which the period is to be reckoned shall be excluded. By section 12(2), in computing the period for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from shall be excluded; and by section 12(3), where a decree or order is appealed from, the time requisite for obtaining a copy of the judgment shall also be excluded.

Order XXIII governs both, in five rules.

Rule 1, withdrawal of suit or abandonment of part of claim.

Sub-rule (1): at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, abandon his suit or abandon a part of his claim. Where the plaintiff is a minor or a person under disability, neither the suit nor any part of the claim shall be abandoned without the leave of the court, and the application for leave must be accompanied by an affidavit of the next friend and, where he is represented by a pleader, by a certificate of the pleader to the effect that the abandonment is for the benefit of the minor.

Sub-rule (3): where the court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw with liberty to institute a fresh suit.

Rule 3, compromise of suit. Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit. The words "in writing and signed by the parties" were inserted in 1976; before that an oral compromise sufficed.

The proviso requires the court, where one party alleges and the other denies an adjustment or satisfaction, to decide the question, and expressly forbids the adjournment of the hearing for the purpose of deciding it, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation to Rule 3: an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed lawful.

Rule 3A, bar to suit. No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The remedy is to apply to the same court under the proviso to Rule 3.

Order IX governs the appearance of parties and the consequences of non-appearance, in fourteen rules. The scheme is best given as three cases.

Rule 1 requires the parties to attend the court in person or by their pleaders on the day fixed in the summons for the defendant to appear and answer.

Case 1: neither party appears. Rule 3. Where neither party appears when the suit is called on for hearing, the court may make an order that the suit be dismissed. Rule 4 gives the plaintiff two options: he may bring a fresh suit, subject to the law of limitation, or he may apply for an order setting aside the dismissal, and if he satisfies the court that there was sufficient cause for his non-appearance, the court shall set aside the dismissal and appoint a day for proceeding with the suit.

Rule 7 is the remedy before the decree: where the suit is adjourned after being set down for ex parte hearing, and the defendant appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

Rule 13 is the remedy after the decree: the court shall set aside an ex parte decree if the defendant satisfies it that the summons was not duly served or that he was prevented by any sufficient cause from appearing. Article 123 gives thirty days from the date of the decree, or from knowledge of it where the summons was not duly served, and its Explanation provides that substituted service under Order V Rule 20 shall not be deemed to be due service for this purpose. The first proviso to Rule 13 limits the first ground: no decree shall be set aside merely for an irregularity in service where the court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer.

Rules 10, 11 and 12 deal with multiple plaintiffs and defendants: where there are several plaintiffs and one or more appear, the court may permit the suit to proceed; where there are several defendants and some appear, the suit proceeds and the court makes such order as it thinks fit as to those who do not.

Section 17 of the Limitation Act, 1963 provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act,

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him,

the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake, or could, with reasonable diligence, have discovered it; or, in the case of a concealed document, until he first had the means of producing the concealed document or compelling its production.

Conclusion. Section 17 does not extend a period; it holds that the period never began. Time runs from when the plaintiff discovered the fraud, the concealment or the mistake, or could with reasonable diligence have discovered it, and in the case of a concealed document from when he first had the means of producing it. Two things limit it: he must plead the fraud with particulars under Order VI Rule 4 and prove the date, and the proviso protects a purchaser for value who had no notice, so the property may be gone even where the section is made out.

The essentials, remembered as nec vi, nec clam, nec precario, not by force, not by stealth, not by permission:

1. Possession actual and exclusive;
2. Open and notorious, so that the owner may know of it;
3. Hostile, in denial of the owner's title and to his knowledge;
4. Continuous and uninterrupted for the statutory period;
5. The identity of the property and the date the possession became adverse pleaded with precision.

Conclusion. Article 65 gives twelve years and Article 112 thirty, and section 27 makes the consequence a real one by extinguishing the owner's title rather than merely barring his suit. What decides these cases is the quality of the possession, not its duration: it must be actual, open, hostile to the owner's knowledge and unbroken, and possession enjoyed by leave never becomes adverse until a hostile title is asserted and brought home to the owner. Since Ravinder Kaur Grewal the possessor who completes the period can sue on it.

(3) Duty of the court. Where, after a caveat has been lodged, any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator.

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

(5) Life of the caveat. A caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged, unless the application referred to in sub-section (1) has been made before the expiry of that period.

Conclusion. A caveat is preventive and it buys one thing, notice. Any person claiming a right to appear may lodge one, party or not, and once he has, the court shall notify him of the application and the applicant shall furnish him the papers at his own expense. It lapses after ninety days, with no renewal and no extension. An order made in the teeth of a subsisting caveat is not a nullity, but it is routinely recalled, and that is the practical value of lodging one.

Order XXXV, the procedure: Rule 1, the plaint must state that the plaintiff claims no interest other than for charges or costs, the claims of the defendants severally, and that there is no collusion between the plaintiff and any defendant. Rule 2, the court may order the thing claimed to be placed in its custody. Rule 3, a court in which a defendant is suing the plaintiff over the same subject-matter shall stay that suit.

Rule 4, at the first hearing the court may declare the plaintiff discharged from all liability, award him costs and dismiss him from the suit, and may adjudicate the title or direct an issue to be tried, making one claimant plaintiff. Rule 5 bars an interpleader suit by an agent against his principal or by a tenant against his landlord. Rule 6 allows the plaintiff's costs to be secured by a charge on the thing claimed.

Conclusion. The interpleader suit is the remedy of a person who holds something two others want and who wants none of it himself. The five requisites of section 88 are strict, especially that he claims no interest and is willing to pay or deliver, and Rule 1 makes him say so on oath and deny collusion. Rule 4 lets him out at the first hearing with his costs, and Rule 5 marks the outer limit by forbidding an agent to interplead against his principal or a tenant against his landlord.

For full marks, cover: that the remedy is a temporary injunction under Order XXXIX Rule 1(c); the three tests by name; sections 94(c) and 95 and Order XXXIX Rules 1, 2, 3, 3A, 4 and 2A; and the alternative of a receiver under Order XL.

(i) The remedy

Ajay's remedy is a temporary injunction restraining Ashok from dispossessing him, applied for in the pending suit.

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

(ii) The fundamental principles

The three tests. All three must be satisfied; failure on any one is fatal.

1. A prima facie case. Ajay must show that there is a serious question to be tried and that on the material before the court there is a probability of his being entitled to the relief. He need not prove his case; he must show it is not frivolous. Here he must place on record his title or his possession, and the fact that the property is the subject-matter of the pending suit.

2. The balance of convenience. The inconvenience likely to be caused to Ajay by refusing the injunction must outweigh that likely to be caused to Ashok by granting it. Preserving an existing possession pending trial is almost always less disruptive than allowing it to be disturbed and then restored.

Rule 4. The order may be discharged, varied or set aside on the application of any party dissatisfied with it; and where it was obtained ex parte on a knowingly false or misleading statement in a material particular, the court shall set it aside unless it considers that not necessary in the interests of justice.

Rule 2A, disobedience. In the case of disobedience of an injunction, the court may order the property of the person guilty to be attached and may order him to be detained in the civil prison for a term not exceeding three months. No attachment shall remain in force for more than one year, at the end of which, if the disobedience continues, the property may be sold and compensation awarded out of the proceeds.

Section 95 protects Ashok in the converse case: where it appears that there were no sufficient grounds for granting the injunction, or the suit is dismissed and there was no reasonable or probable ground for instituting it, the court may on his application award him reasonable compensation not exceeding its pecuniary jurisdiction, and such an order bars any further suit for compensation for the same injury.

For full marks, cover: that the commission is one for local investigation, section 75(b) and Order XXVI Rule 9; all seven clauses of section 75; the powers under Rule 16; that the report is evidence under Rule 10(2); and the tenancy point under section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948.

(i) The type of commission

The commission that fits is a commission for local investigation, under section 75(b) read with Order XXVI Rule 9.

Section 75 empowers the court, subject to such conditions and limitations as may be prescribed, to issue a commission for seven purposes:

(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);

(g) to perform any ministerial act (Rule 10C).

Clauses (e), (f) and (g) were inserted by the Amendment Act of 1976.

The status of the report, Rule 10. The commissioner shall return the commission with his report in writing signed by him, and the evidence taken by him. Rule 10(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; and the court or, with its permission, any of the parties may examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report. Rule 10(3): where the court is for any reason dissatisfied with the proceedings of the commissioner, it may direct such further inquiry as it thinks fit.

Conclusion. The commission that fits is one for local investigation under section 75(b) and Order XXVI Rule 9, because the questions that will decide the suit, the identity of the land, its boundaries, its extent and who is actually on it, cannot be answered from the record. The commissioner may examine parties and witnesses and enter the land under Rule 16, and his report and evidence are evidence in the suit under Rule 10(2), but he decides nothing. And the tenancy question itself is not for the civil court: section 85 of the Bombay Tenancy Act commits it to the Mamlatdar.

The general rule, which the prohibition expresses, is that an appeal is a rehearing on the record made in the trial court. The appellate court decides on the evidence which was before the court below. Additional evidence is the exception, and the burden of bringing the case within an exception lies on the party who asks. Section 107(1)(d) confers the corresponding power on the appellate court to take additional evidence or to require such evidence to be taken.

(ii) When the court may allow it

The three grounds in Order XLI Rule 27(1):

(a) Where the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. The appellate court here corrects a wrong ruling of the trial court on admissibility. This is really a complaint against that ruling, not an application to lead fresh evidence.

Rules 28 and 29, the procedure. Where additional evidence is directed to be taken, the Appellate Court may either take such evidence itself, or direct the court from whose decree the appeal is preferred, or any other subordinate court, to take it and send it (Rule 28); and the Appellate Court shall specify the points to which the evidence is to be confined and record those points in its proceedings (Rule 29).

Conclusion. No, a party is not ordinarily entitled to produce additional evidence in appeal; Order XLI Rule 27(1) begins by saying so. He gets in only through one of the three exceptions, and the burden is on him: that the trial court wrongly refused the document, that despite due diligence it was not within his knowledge, or that the appellate court itself requires it to pronounce judgment. The principle in Parsotim is that the requirement must be the court's and not the party's, and Rule 27(2) obliges the court to record its reasons for admitting anything.

For full marks, cover: the concept and the object; section 115(1) with its three clauses; the substituted proviso of 2002, which is the most examinable part; sub-sections (2) and (3) and the Explanation; who may invoke it and how; the meaning of "case decided" and of "material irregularity"; the comparison with appeal, review and reference; and Article 131's ninety days.

I. The concept

Revision is the supervisory jurisdiction of the High Court over the subordinate courts within its jurisdiction, exercised to keep them within the bounds of their authority. It is not an appeal. It goes to jurisdiction, not to the correctness of a finding, and it is exercised at the discretion of the High Court.

The object, in the classic phrase, is to prevent subordinate courts from acting arbitrarily, capriciously, illegally or irregularly in the exercise of their jurisdiction, and to ensure that they act within the limits of their authority.

II. Section 115(1): the provision

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding.

This is the single most important change to section 115 and no answer is current without it. Before 2002 the section reached a very wide class of interlocutory orders. Since 2002 an interlocutory order can be revised only if reversing it would finally dispose of the suit. Older textbooks and older case law are misleading on the point.

Sub-section (2): the High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate to it.

Sub-section (3): a revision shall not operate as a stay of suit or other proceeding before the court, except where such suit or other proceeding is stayed by the High Court.

Explanation: "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.

The settled limit, from a long line beginning with the Privy Council in Rajah Amir Hassan Khan v. Sheo Baksh Singh (1884) and Balakrishna Udayar v. Vasudeva Aiyar (1917): the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. It is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. 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.

V. Practical aspects

Who may invoke it. Either on the application of a party or by the High Court of its own motion. The words of the section are permissive: it is a discretionary jurisdiction, and the High Court may decline to interfere even where a ground is made out, if no failure of justice has occurred.

Limitation. Article 131 of the Limitation Act gives ninety days from the date of the decree, order or sentence sought to be revised, and section 12(2) excludes the time requisite for obtaining copies.

No stay unless ordered. By sub-section (3) the mere filing of a revision does not stay anything.

Conclusion. Revision is supervision, not appeal. It lies only to the High Court, only where no appeal lies, and only on the three jurisdictional grounds, so a court that had jurisdiction to decide a question had jurisdiction to decide it wrongly and its error is not revisable. Since the proviso was substituted in 2002 an interlocutory order can be revised only where reversing it would finally dispose of the suit, which is the single fact that dates an answer on this section. The period is ninety days and the filing does not stay anything.

Section 37 defines "the court which passed a decree" to include, where the court of first instance has ceased to exist or to have jurisdiction, the court which would have jurisdiction to try the suit at the time of execution.

Section 39: the court which passed the decree may, on the decree-holder's application, transfer it for execution to another competent court where the judgment-debtor resides, carries on business or personally works for gain, or where his property is situated, or for any other sufficient reason recorded in writing. Sub-section (4), added by the Amendment Act of 2002: the court which passed the decree cannot execute it against a person or property outside its own jurisdiction.

Section 46, precept: an interim attachment by another court, lasting two months, pending transfer.

Section 44A: a decree of a superior court of a reciprocating territory, filed in a District Court, is executed as if it had been passed by that District Court.

III. The application: Order XXI Rules 10 to 25

The proviso governs money decrees: 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 institution of the suit, 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: by seizure and delivery, or by detention of the judgment-debtor, or by attachment of his property, or both. Rule 35, immovable property: by 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.

Rules 41 to 53 govern attachment of movables, debts (Rule 46) and the garnishee procedure (Rules 46A to 46I); Rule 54 governs attachment of immovable property by an order prohibiting transfer or charge, proclaimed and affixed on the property and in the court house.

Sale, Rules 64 to 73 and 89 to 94. Rule 64 empowers the sale; Rule 66 requires the proclamation stating the time and place, the property, the revenue assessed, any encumbrance and the amount to be recovered; Rule 68 requires fifteen days to elapse after the proclamation for immovable property and seven days for movables; Rule 72 forbids the decree-holder to bid without the express permission of the court; 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 the sale; Rule 94 provides for the certificate.

Mode 5, any other manner the relief requires. Rule 32 enforces decrees for specific performance, restitution of conjugal rights and injunction by attachment of property, or detention, or both, save that a decree for restitution of conjugal rights is enforceable by attachment only. Rule 34 allows the court to execute a document on the judgment-debtor's behalf. Section 54 commits the partition of an undivided estate assessed to land revenue to the Collector. Rules 18 and 19 provide for cross-decrees and cross-claims.

V. Questions arising, and limitation

Section 47: all questions between the parties or their representatives relating to the execution, discharge or satisfaction of the decree shall be determined by the executing court and not by a separate suit.

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, in which case its invalidity may be set up whenever and wherever it is sought to be enforced.

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

For full marks, cover: the meaning and nature; sections 96 to 99A and 107; the four cases where no first appeal lies; Order XLI rule by rule; and the limitation Articles 116 and 117. Contrast with the second appeal under section 100 at the end.

I. Meaning and nature

An appeal is the judicial examination by a higher court of the decision of a subordinate court, at the instance of a party aggrieved. An appeal from an original decree is a first appeal, and the law is in sections 96 to 99A and Order XLI.

Three propositions on its nature: an appeal is a creature of statute, there being no inherent right of appeal; it is a continuation of the suit, and by section 107(2) the appellate court has the same powers and duties as a court of original jurisdiction; and the right of appeal is a substantive right which vests on the date the suit is instituted.

II. Sections 96 to 99A

Section 99. No decree shall be reversed or substantially varied, nor shall any case be remanded, on account of any misjoinder or non-joinder of parties or causes of action, or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court. The proviso excludes non-joinder of a necessary party. Section 99A applies the same to orders under section 47.

III. Order XLI

Rule 1, form. Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court, accompanied by a copy of the judgment, setting forth concisely and under distinct heads the grounds of objection, without any argument or narrative, numbered consecutively.

Rule 2. No ground not set forth in the memorandum may be urged without leave, and the court shall not rest its decision on any other ground unless the party affected has had sufficient opportunity to contest it.

Rule 3. A memorandum not drawn up as prescribed may be rejected or returned for amendment.

Rule 19 allows readmission of an appeal dismissed for default on sufficient cause.

Rule 21, rehearing. Where an appeal is heard ex parte and judgment pronounced against the respondent, he may apply to have the appeal reheard, and if he satisfies the court that notice was not duly served or that he was prevented by sufficient cause from appearing, the court shall rehear it.

Rule 22, cross-objections. A respondent, though he may not have appealed, may support the decree on any ground decided against him, and may file cross-objections within one month from the date of service of notice of the day fixed for hearing. Cross-objections are dealt with as if they were an appeal, and by sub-rule (4) they may be heard and determined even if the original appeal is withdrawn or dismissed for default.

Rules 23, 23A, 24 and 25, remand. Where the trial court disposed of the suit on a preliminary point and the decree is reversed, the appellate court may remand (Rule 23); Rule 23A extends the power where a retrial is considered necessary; Rule 24 allows the appellate court to determine the case finally where the evidence is sufficient; Rule 25 allows it to frame issues and refer them for trial.

Article 117: appeal from a decree or order of a High Court to the same court, thirty days.

Section 12(2) of the Limitation Act excludes the day of pronouncement and the time requisite for obtaining copies; section 5 allows condonation on sufficient cause; Order XLI Rule 3A governs the application.

The cases to cite. Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, states the duty of the first appellate court: it is a court of both fact and law, its judgment must reflect a conscious application of mind and must record findings supported by reasons on all the issues arising with the contentions of both sides, and it cannot simply affirm the trial court. Madhukar v. Sangram, (2001) 4 SCC 756, is to the same effect: sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence.

For full marks, cover: section 27 and Order V Rule 1 with the 30 and 90 day periods; every mode with its rule; substituted service and why it is a last resort; service on special classes; the 2025 change from registered post to speed post; and the link with Order VIII Rule 1 and SCG Contracts.

I. What a summons is

A summons is the document issued by the court, signed by the Judge or such officer as he appoints and sealed with the seal of the court, by which the defendant is called upon to appear and answer the claim. Section 27 provides that where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed on such day not beyond thirty days from the date of the institution of the suit.

Rule 10: service is made by delivering or tendering a copy of the summons signed by the Judge and sealed.

Rule 12: wherever practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service.

Rule 13: in a suit relating to any business or work against a person not residing within the local limits, service on the manager or agent carrying on that business or work is good service.

Rule 14: where the suit relates to immovable property and service cannot be made on the defendant in person and he has no agent, service may be made on any agent of the defendant in charge of the property.

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.

The court may direct service by speed post with registration and proof of delivery, or by an approved courier service, or by fax message or electronic mail service, or by any other means as may be provided by the rules made by the High Court. The words "speed post with registration and proof of delivery" replaced "registered post acknowledgement due" throughout Order V by the Repealing and Amending Act, 2025, with effect from 20 December 2025. Where the summons is properly addressed, prepaid and sent, and the acknowledgment is lost or not received within thirty days, or the defendant refuses to take delivery, the court shall declare that the summons has been duly served.

Rule 19A, which formerly provided for simultaneous service by registered post, was deleted by the Amendment Act of 1999 and must not be cited.

3. Service by the plaintiff, "dasti": Rule 9A.

The court may, in addition to the ordinary mode, permit the plaintiff to effect service of the summons on the defendant personally, and the plaintiff shall then deliver or tender a copy signed by the Judge and sealed, and take an acknowledgment. Where the defendant refuses to acknowledge, or cannot be found, the plaintiff shall affix a copy as in Rule 17 and file an affidavit.

4. Substituted service: Rule 20.

Rule 21: a summons may be sent for service to another court, whether within or outside the State, having jurisdiction where the defendant resides. Rule 22 and 23 govern the duty of the receiving court. Rule 24: where the defendant is confined in a prison, the summons is delivered to the officer in charge of the prison. Rule 25: where the defendant resides outside India and has no agent empowered to accept service, the summons shall be addressed to him at the place where he is residing and sent to him by post or by any courier service, or by fax or electronic mail, if there is postal or other communication between that place and the place where the court is situate. Rule 26 provides for service in a foreign territory through a political agent or court, and Rule 26A for summonses to be sent to officers of foreign countries.

6. Service on special classes of defendant.

Rule 27: a public officer, or a servant of a railway company or local authority, may be served by sending the summons to the head of the office in which he is employed.

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

That is why substituted service is a last resort: the court must record its satisfaction that the defendant is evading service or that the ordinary mode has failed, and an order made without material showing that is bad. An ex parte decree that follows such an order is liable to be set aside under Order IX Rule 13 on the first of its two grounds, and the Explanation to Article 123 of the Limitation Act provides that 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.

IV. The interlock with the written statement

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, and the proviso allows extension, for recorded reasons, to a maximum of ninety days from the date of service. In SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. (2019) 12 SCC 210 the Supreme Court held that in suits governed by the Commercial Courts Act, 2015 the 120 day limit is mandatory, the right to file the written statement is forfeited thereafter, and the court has no power to extend it.

Order IX Rule 6(1)(a) completes the chain: the court may proceed ex parte only if it is proved that the summons was duly served.

For full marks, cover: the definition and classification with section 37 of the Specific Relief Act; sections 94(c) and 95 of the Code; Order XXXIX Rules 1 and 2 verbatim; the three tests; Rules 2A, 3, 3A, 4 and 5; section 41 of the Specific Relief Act; and section 151 as the residual power.

I. What a temporary injunction is

An injunction is a judicial process by which a party is ordered to refrain from doing, or to do, a particular act. A temporary or interim injunction is one which continues until a specified time or until the further order of the court, may be granted at any stage of a suit, and is designed to preserve the subject-matter of the suit in its existing condition until the rights of the parties are decided.

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,

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

Clause (c) was inserted by the Amendment Act of 1976, and is the clause under which most injunctions are now granted.

Rule 2, injunction to restrain repetition or continuance of breach. In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

IV. Procedure: Rules 3, 3A, 4 and 5

Rule 3. Before granting an injunction the court shall give notice of the application to the opposite party, except where it appears that the object of granting the injunction would be defeated by the delay. Where an ex parte injunction is granted, the court shall record the reasons for that opinion, and shall require the applicant, on the same day that the injunction is granted or on the day immediately following, to deliver to the opposite party a copy of the application, the affidavit, the plaint and any other documents filed in support, and to file, on the day on which the injunction is granted or the day immediately following, an affidavit stating that the copies have been so delivered or sent.

Rule 3A. Where an injunction has been granted without giving notice to the opposite party, the court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted, and where it is unable to do so, it shall record its reasons for such inability.

In the case of disobedience of any injunction granted under Rule 1 or Rule 2, or of a breach of any of the terms on which it was granted, the court may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release. No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the court may award such compensation as it thinks fit to the injured party, and shall pay the balance to the party entitled.

VI. The bars: section 41 of the Specific Relief Act

The cases to cite. Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, is the case this question is set to elicit, and it is what the three tests come from: a prima facie case means a serious question to be tried, not a certainty of success; irreparable injury means injury that cannot be adequately compensated in money; and balance of convenience means the comparative mischief of granting against refusing. All three must be satisfied together. Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727, adds that the discretion is the trial court's and an appellate court will not reassess the material afresh, and Gujarat Bottling Co. v. Coca Cola Co., (1995) 5 SCC 545, that the relief is equitable, so conduct, delay and acquiescence all count against the applicant.

Conclusion. A temporary injunction preserves the subject-matter until the rights are decided, and it is granted on the three tests together, not on any one of them. Order XXXIX Rules 1 and 2 give the occasions and section 151 fills the gaps; Rule 3 forbids an ex parte order unless delay would defeat the object and requires reasons; Rule 3A puts thirty days on such an order; Rule 4 vacates it for a false statement; and Rule 2A backs it with attachment and up to three months in prison. Section 95 is the answer for the defendant who should never have been enjoined.

Section 67 TPA gives the mortgagee the right to sue for foreclosure or for sale, and which of the two he gets depends on the kind of mortgage. Section 60 TPA gives the mortgagor the right of redemption, exercisable at any time after the principal money has become due, until it is extinguished by the act of the parties or by a decree of a court.

II. Parties: Rule 1

All persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. The Explanation provides that a puisne mortgagee may sue for sale without making the prior mortgagee a party, and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage.

III. Foreclosure: Rules 2 and 3

Rule 4, preliminary decree in a suit for sale. The same account is taken and the same day fixed, but the decree directs that in default of payment the mortgaged property, or a sufficient part of it, shall be sold and the proceeds applied in payment of what is found due.

Rule 5, final decree in a suit for sale. Where, before a final decree debarring the defendant from all right to redeem has been passed, or before the confirmation of a sale held in pursuance of a final decree, the defendant makes payment into court of all amounts due, the court shall pass a final decree directing the plaintiff to deliver up the documents and retransfer. Otherwise the plaintiff may apply for a final decree and the property shall be sold.

Rule 5 gives the mortgagor a right that survives the decree: he may pay up at any time until the sale is actually confirmed. That is the practical difference between foreclosure and sale.

V. Redemption: Rules 7, 8 and 8A

Rule 6 provides for the balance where the net proceeds are insufficient. Rule 9 deals with redemption of one of several mortgages. Rule 10 adds the mortgagee's costs after the decree to the mortgage money. Rule 11 governs interest: up to the date fixed for payment, on the principal at the rate payable on it or, where no rate is fixed, at nine per cent per annum, and on the aggregate of costs, charges and expenses at nine per cent per annum. Rule 12 governs sale of property subject to a prior mortgage. Rule 13 governs the application of proceeds: first the expenses of the sale, then what is due to the plaintiff on the mortgage, then subsequent mortgagees, and the residue to the person entitled.

Rule 14 is the most examined rule in the Order. Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. Sub-rule (2) saves a suit brought by a mortgagee to obtain a decree for sale.

Rule 15 applies the Order, so far as may be, to a charge within the meaning of section 100 of the Transfer of Property Act.

VII. Limitation

The cases to cite. Jayasingh Dnyanu Mhoprekar v. Krishna Babaji Patil, (1985) 4 SCC 162, is the governing principle behind the whole Order: the right of redemption is an incident of the mortgage and cannot be clogged, and it can be extinguished only in a manner known to law, that is by act of parties, by a decree of the court, or by statute. That is why Order XXXIV builds every mortgage suit around a preliminary decree that gives the mortgagor a period to redeem before a final decree can follow.