BLS LLB 5 Years Sem 9 CPC 2024-25 Question Paper with Solutions

Section 2(2) defines "decree" as the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and it may be either preliminary or final. It is deemed to include the rejection of a plaint and the determination of any question within section 144, but does not include any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default.

Res sub judice means "a matter under judicial consideration". Section 10 enacts it: 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.

Cause of action means the bundle of essential facts which the plaintiff must prove in order to succeed, that is, every fact which, if traversed, he would have to establish in order to support his right to the judgment of the court. The Code does not define it, but Order VII Rule 1(e) requires the plaint to state the facts constituting the cause of action and when it arose.

Section 148A(1) provides that where an application is expected to be made, or has been made, in a suit or proceeding instituted or about to be instituted in a court, any person claiming a right to appear before the court on the hearing of such application may lodge a caveat. He need not already be a party to the suit or proceeding.

Section 144(1) provides that where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding, or is set aside or modified in any suit instituted for the purpose, the court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order.

So the applicant is any party entitled to a benefit by way of restitution, that is, the party against whom the decree was executed and who has lost something under it, and his legal representatives and transferees.

Section 4 of the Limitation Act, 1963 provides:

Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens.

Explanation. A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.

The principle is the maxim lex non cogit ad impossibilia, the law does not compel a man to do that which he cannot do. A litigant who has the whole prescribed period cannot be penalised for failing to file on a day when no court was open to receive his papers.

Five points of substance:

5. It does not help where the period expired earlier. If limitation ran out on a Saturday and the court was closed on the following Monday, section 4 gives nothing: the expiry itself must fall on a closed day.

Conclusion. Section 4 of the Limitation Act answers a narrow question completely: where the prescribed period expires on a day the court is closed, the proceeding may be brought on the day it reopens, and by the Explanation a court closed for any part of its working hours is closed for the whole day. Two limits define it. It does not help where the period expired earlier, because the expiry itself must fall on a closed day. And it applies to a suit, which section 5 does not, which is why it matters more than its length suggests.

What the notice must state. The name, description and place of residence of the plaintiff, the cause of action, and the relief which he claims.

Section 80(2), the exception for urgent relief. A suit to obtain an urgent or immediate relief against the Government or a public officer may be instituted, with the leave of the court, without serving the notice; but the court shall not grant relief in the suit, whether interim or otherwise, except after giving the Government or the public officer a reasonable opportunity of showing cause. The proviso: if, after hearing the parties, the court is satisfied that no urgent or immediate relief need be granted, it shall return the plaint for presentation after complying with sub-section (1).

A foreign award is an arbitral award made outside India in a commercial dispute, which is recognised and enforced in India under Part II of the Arbitration and Conciliation Act, 1996. The Code of Civil Procedure is engaged because, once such an award is held enforceable, it is deemed to be a decree of the court and is executed under Order XXI.

The two Chapters of Part II:

Chapter I, the New York Convention awards, sections 44 to 52. Section 44 defines a foreign award as an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after 11 October 1960, (a) in pursuance of an agreement in writing for arbitration to which the New York Convention applies, and (b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may by notification declare to be territories to which the Convention applies.

Section 48, conditions for enforcement. Enforcement may be refused only on the grounds there set out, at the request of the party against whom it is invoked, on proof that: the parties were under some incapacity, or the agreement is not valid under the law to which the parties have subjected it; the party was not given proper notice of the appointment of the arbitrator or of the proceedings, or was otherwise unable to present his case; the award deals with a difference not contemplated by or not falling within the terms of the submission, or contains decisions on matters beyond the scope of the submission; the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement or with the law of the country where the arbitration took place; or the award has not yet become binding, or has been set aside or suspended by a competent authority of the country in which it was made. Enforcement may also be refused if the court finds that the subject-matter is not capable of settlement by arbitration under Indian law, or that enforcement would be contrary to the public policy of India.

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 such a suit where any suit is pending in which the rights of all parties can properly be decided.

The five requisites:

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

Rule 4, the first hearing. The court may declare the plaintiff discharged from all liability, award him his costs and dismiss him from the suit; or may retain all parties until the final disposal. Where the admissions or other evidence enable it to do so, it may adjudicate the title; otherwise 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 bars an interpleader suit by an agent against his principal, or by a tenant against his landlord, to compel them to interplead with persons other than those claiming through them.

Rule 6 allows the court to provide for the original plaintiff's costs by giving him a charge on the thing claimed.

Conclusion. The interpleader suit is the remedy of a person who holds something two other people want and who wants none of it himself. Where the five requisites of section 88 are made out, Order XXXV Rule 4 lets the court discharge him at the first hearing with his costs, and then decide the title between the claimants. The proviso to section 88 and the two bars in Rule 5 are the limits: no interpleader where a pending suit can decide the same rights, and none by an agent against his principal or a tenant against his landlord.

Rahul denied this claim, stating he had made all payments and had receipts to prove it. However, Priya initiated eviction proceedings against him in March 2022.

After several hearings, Priya failed to appear in court, and the case was dismissed in November 2022. In January 2023, Priya decided to file a fresh suit against Rahul for eviction, claiming the same grounds.

Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

So Priya had exactly one route, and it was not a fresh suit. She had to apply to the same court to set aside the dismissal, showing sufficient cause for her absence. Article 122 of the Limitation Act gives thirty days from the date of the dismissal for that application, which on these facts expired around December 2022.

Order IX Rule 9(2) adds a procedural safeguard: no order shall be made under sub-rule (1) unless notice of the application has been served on the opposite party.

(b) The significance of the bar of limitation here

This is where the question is subtler than it looks, and the answer should say so plainly.

The cause of action must be the same for Rule 9 to bite. If, since November 2022, fresh rent has fallen due and remained unpaid, or a fresh notice to quit has been given and the tenancy determined afresh, that is a new cause of action, and a suit on it is not barred by Rule 9. The rule bars a fresh suit in respect of the same cause of action, no more. On the facts as stated, Priya intends to sue "claiming the same grounds", so the bar applies.

Conclusion. No. Priya's suit was dismissed under Order IX Rule 8 because she did not appear, and Order IX Rule 9(1) precludes a fresh suit on the same cause of action. The bar is not the Limitation Act, which would not have stopped her; it is the Code. Her one route was an application to the same court to set the dismissal aside on sufficient cause, and Article 122 gave her thirty days, which had run out before January 2023. She may still apply, but only with an application under section 5 explaining both the absence and the delay.

The suit is heard ex parte and a decree is passed against him. 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. That is what the court did.

Four consequences follow, and they should be listed.

1. He loses the right to contest. No written statement having been filed, Order VIII Rule 10 empowers the court to pronounce judgment against him, or to make such order in relation to the suit as it thinks fit.

2. The plaintiff must still prove his case. An ex parte decree is not a decree by consent or by default of pleading; A had to lead evidence of the contract, the breach and the sum due, and the court had to be satisfied on that evidence. This matters to B, because it is the evidence he can attack on appeal.

3. He cannot lead evidence in defence. In Kanchhu v. Prakash Chand (2025 INSC 542) the Supreme Court held that a defendant set ex parte is not entitled to produce evidence in his defence; his only right is to cross-examine the plaintiff's witnesses in an attempt to disprove the plaintiff's case.

1. Order IX Rule 13, application to set aside the ex parte decree. The court shall set it aside if the defendant satisfies it that the summons was not duly served or that he was prevented by any sufficient cause from appearing. Thirty days under Article 123. On these facts this route fails. The problem says B failed to appear "without any valid reason". There is no defect in service and there is no sufficient cause, so neither ground in Rule 13 is available to him.

2. Appeal under section 96(2). Available, and this is the remedy that remains open. In the appeal B cannot complain that he was absent, because he has no excuse for it; what he can do is attack the decree on the merits, arguing that the evidence A led did not establish the claim, that the plaint discloses no cause of action, that the court lacked pecuniary or territorial jurisdiction, or that the claim was time-barred.

3. Review under section 114 and Order XLVII Rule 1, within thirty days under Article 124, on the ground of discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason.

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

Asha believes that this construction is illegal and seeks a temporary injunction to stop Ravi from continuing the construction until the matter is resolved in court. She files a suit for a temporary injunction under Section 37 of the Code of Civil Procedure, 1908, to prevent Ravi from obstructing her business.

For full marks, cover: the correct provisions, since the paper cites the wrong one; the three tests, prima facie case, balance of convenience and irreparable injury; Order XXXIX Rules 1, 2, 3, 3A and 4; and for (b), the effect on both sides including Rule 2A and section 95.

Rule 1(c), added in 1976, fits: where it is proved by affidavit or otherwise that the defendant threatens to dispossess the plaintiff or otherwise to cause injury to the plaintiff in relation to any property in dispute in the suit, the court may grant a temporary injunction to restrain such act. Ravi's extension threatens injury to Asha in relation to the property in dispute, namely her right of access and, if she claims one, her easement of way and of light and air.

Rule 2(1) fits too: in a suit for restraining the defendant from committing a breach of contract or other injury of any kind, the plaintiff may at any time after the commencement of the suit apply for a temporary injunction to restrain the defendant from committing the injury complained of.

Second, the three tests. All three must be satisfied; failing on any one is fatal.

3. Irreparable injury. She must show injury that cannot be adequately compensated in money. Permanent obstruction of the only entrance to a shop, and the consequent loss of a customer base built up over time, is the classic example: the loss is continuing, is difficult to quantify, and may destroy the business rather than merely reduce it.

Third, the equitable requirements. She must come promptly, since delay and acquiescence defeat an equitable claim, and with clean hands, making full and frank disclosure. If she has known of the construction for months and said nothing, that will be held against her.

Fourth, procedure. By Order XXXIX Rule 3 the court shall give notice of the application to Ravi except where it appears that the object of granting the injunction would be defeated by the delay; if she asks for an ex parte injunction, the court must record its reasons and she must, on the same day or the next day, deliver to Ravi a copy of the application, the affidavit and the plaint, and file an affidavit of that delivery. By Rule 3A, where an injunction is granted without notice, the court shall endeavour to dispose of the application finally within thirty days, and must record its reasons if it cannot.

(b) The implications if the injunction is granted

For Ravi:

She gets the protection she asked for, but she takes on obligations with it.

She will ordinarily be required to give an undertaking as to damages, or security. The court commonly makes the injunction conditional on it.

She is exposed to compensation under section 95 of the Code. Where it appears to the court that there were no sufficient grounds for granting the injunction, or the suit is dismissed and it appears that there was no reasonable or probable ground for instituting it, the court may, on Ravi's application, award him reasonable compensation not exceeding the pecuniary limits of its jurisdiction. An order under section 95 bars any further suit for compensation in respect of the same injury.

She must prosecute the suit diligently. An interim order obtained and then allowed to sleep while the suit stagnates is routinely vacated, and courts take a dim view of a plaintiff who has got what he wanted at the interim stage and lost interest in the trial.

And the injunction settles nothing finally. It preserves the position until the trial; the rights of both parties are decided only by the decree.

25,000 and acknowledged his outstanding debt in writing, stating, "I acknowledge that I still owe Rs. 75,000 to Amit and will repay it soon." However, Ravi did not make any further payments, and the loan remained unpaid.

Amit is considering whether he can still file a suit against Ravi for the remaining amount in 2024.

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

Section 19, effect of payment on account of debt: 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 shall be computed from the time when the payment was made, provided that an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making it.

Ravi's act of 15 December 2020 satisfies both sections at once. It is a written and signed acknowledgment of liability for Rs. 75,000, and it is a part payment of Rs. 25,000 with the payment acknowledged in writing. It was made before the prescribed period expired, which is the precondition in both sections.

So a fresh period of three years ran from 15 December 2020, and on the ordinary working it would have expired on 15 December 2023. On that working alone, a suit in 2024 would be time-barred.

Step 2: the COVID exclusion, which changes the answer.

The mechanism. Section 19 does not add days to the running period. It wipes out the time already run and begins a fresh period of the same length from the date of the payment. If the original three years had been running since 1 January 2018 or since 1 January 2021, that history is irrelevant once section 19 operates; the clock is reset to 15 December 2020.

The two conditions in section 19 are strict:

The payment must be made before the prescribed period expires. A payment made after limitation has run gives nothing under the Limitation Act. Here it was made in time.

An acknowledgment of the payment must appear in the handwriting of, or in a writing signed by, the person making it. A bare payment, unaccompanied by any writing, does not attract section 19; it is the writing that proves it was a payment on account of that debt. Here Ravi's signed statement supplies it.

The payment must be "on account of a debt", not in full satisfaction. A payment tendered and accepted as full and final settlement discharges the debt and there is nothing left to sue for. Ravi's own words, "I still owe Rs. 75,000", make clear that it was on account.

Sections 18 and 19 compared:

Conclusion. Yes, Amit can sue in 2024, but only because of a direction no textbook prints. On sections 18 and 19 alone the acknowledgment and part payment of 15 December 2020 started a fresh three years that expired on 15 December 2023 and the suit would be barred. The Supreme Court's order of 10 January 2022 excludes 15 March 2020 to 28 February 2022 from every period, and since the fresh period began inside that window the whole three years survived to 1 March 2022 and runs to about 1 March 2025. An answer that gives only the first working reaches the wrong result.

For full marks, cover: the two routes, section 44A for reciprocating territories and a fresh suit for the rest; section 2(5), 2(6) and 2(11) definitions; section 13 with all six clauses, and section 14; section 44A in full with its three sub-sections and its Explanations; the list of reciprocating territories with the UAE notification of 2020; and the limitation position after Bank of Baroda v. Kotak Mahindra Bank.

I. The two routes

A foreign judgment cannot be enforced in India merely because it was pronounced. There are exactly two routes, and the answer must begin by separating them.

Route 1: execution under section 44A. Available only where the decree is of a superior court of a reciprocating territory. The decree is filed in a District Court and is executed as if it had been passed by that District Court. No fresh suit is needed.

III. Section 13: when a foreign judgment is conclusive

Section 13 provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, or between parties under whom they or any of them claim, litigating under the same title, except:

(a) where it has not been pronounced by a court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.

Section 44A(3). The provisions of section 47 shall apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree if it is shown to the satisfaction of the court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

The steps in practice:

1. Confirm the country is a notified reciprocating territory and that the court which passed the decree is one of the superior courts specified in the notification for that territory. If either fails, section 44A is unavailable and a fresh suit is the only route.
2. Confirm the decree is for a sum of money and is not for taxes, a fine or a penalty, and is not an arbitration award (Explanation 2).
3. Obtain a certified copy of the decree and the certificate of satisfaction or adjustment under sub-section (2).
4. File them in the District Court having jurisdiction, that is, the court within whose jurisdiction the judgment-debtor resides or carries on business or has property.

Where section 44A is unavailable, the decree-holder files a suit on the foreign judgment in the competent Indian court. The judgment is the cause of action; the court does not retry the dispute, but examines whether the judgment is conclusive under section 13. If it is, the court passes its own decree, and that decree is then executed in the ordinary way.

Limitation. In Bank of Baroda v. Kotak Mahindra Bank Ltd. (2020) 17 SCC 664 the Supreme Court settled the position: for a decree of a reciprocating territory, an application under section 44A is governed by Article 136, twelve years, but the period runs according to the limitation law of the cause country, that is, the country whose court passed the decree, and the application must be filed within the period of limitation prescribed in the cause country; if the decree-holder first takes execution proceedings in the cause country, the period in India runs from the date of the final decision there. For a fresh suit on a foreign judgment from a non-reciprocating country, the period is three years under Article 101 from the date of the judgment.

For full marks, cover: the meaning of a plaint and section 26; Order VII Rule 1's nine particulars, given as a list; Rules 2 to 8 on special cases; Rules 9 to 10B on admission, return and transfer; Rule 11's six grounds for rejection; Rules 13 and 14 to 18; and then the second half of the question, why each requirement does work.

I. What a plaint is

A plaint is the statement of claim in writing by which a suit is instituted. It is not defined in the Code. Section 26(1) provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed, and section 26(2), inserted in 2002, requires that in every plaint facts shall be proved by affidavit. Order VI applies to it as a pleading, so it must contain a concise statement of the material facts and not the evidence, and Order VII contains the rules specific to it.

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

Rule 3, where the subject-matter is immovable property, the plaint shall contain a description sufficient to identify it, and where it is capable of identification by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

Rule 4 requires a plaintiff suing in a representative character to show that he has an actual existing interest in the subject-matter and that he has taken the steps necessary to enable him to institute a suit concerning it.

Rule 5 requires the plaint to show that the defendant is or claims to be interested in the subject-matter and that he is liable to be called upon to answer the plaintiff's demand.

Rule 10, return of the plaint. The plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted, and on returning it the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it. Rule 10A requires the court, where it is about to return a plaint after the defendant has appeared, to intimate its decision to the plaintiff, who may then apply for a date to be fixed for the plaint's presentation in the proper court and for notice of it. Rule 10B governs the power of the appellate court in such cases.

Rule 11, rejection of the plaint. 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 to supply the requisite stamp paper within a time fixed by the court, fails to do so;

IV. How these requirements make litigation clear and effective

The second half of the question is not decoration; it carries marks, and it should be answered element by element.

The name of the court and the facts showing jurisdiction (Rule 1(a) and (f)) put the question of competence in issue at the outset, so that a court which cannot try the suit returns the plaint under Rule 10 at once, instead of trying it and having the decree set aside years later.

The names, descriptions and residences of the parties (Rule 1(b) and (c)) make service of summons possible and make the decree executable. A decree against a person who cannot be identified is worthless.

The statement of minority or unsoundness of mind (Rule 1(d)) triggers Order XXXII, so that a person incapable of conducting litigation is represented by a next friend or a guardian for the suit, and is not bound by a decree passed in his absence in fact.

The grounds of exemption from limitation (Rule 6) force the plaintiff to disclose, on the face of his own pleading, why a suit that looks time-barred is not, and enable the court to apply section 3 of the Limitation Act without a trial where the answer is plain.

The list of documents (Rule 14) fixes the plaintiff's documentary case at the outset and prevents trial by ambush, and Rule 14(3) gives that requirement teeth.

Rule 11 is the filter. A plaint that discloses no cause of action or a suit barred by law is stopped before the defendant is put to the expense of a written statement and a trial. And Rule 13 keeps the filter proportionate: rejection is not a decision on the merits, so a plaintiff whose plaint was badly drawn may draw a better one and file again, subject to limitation.

For full marks, cover: section 5 with its Explanation; the three limits, that it applies to appeals and applications only, not to suits, and not to Order XXI applications; the meaning of "sufficient cause" and the liberal construction rule; the leading cases; the categories of cause accepted and refused; the special position of the Government; and the procedural requirement in Order XLI Rule 3A.

I. The provision

Section 5, extension of prescribed period in certain cases:

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.

3. It applies to a special or local law only so far as that law does not exclude it. Section 29(2) provides that where a special or local law prescribes a different period, sections 4 to 24 apply only in so far as, and to the extent to which, they are not expressly excluded by that law. So section 5 is excluded, for example, by section 34(3) of the Arbitration and Conciliation Act, 1996 beyond the thirty day extension that provision itself allows.

III. What "sufficient cause" means

The expression is not defined. The settled meaning is a cause which is beyond the control of the party invoking it, and which shows that the party was not negligent, not inactive and not wanting in bona fides.

The two guiding propositions:

The expression must receive a liberal construction so as to advance substantial justice, when no negligence, no inaction and no want of bona fides is imputable to the appellant. That formulation is from State of West Bengal v. Administrator, Howrah Municipality (1972) 1 SCC 366 and has been applied ever since.

The counterweight. Liberality is not indulgence. In Basawaraj v. Special Land Acquisition Officer (2013) 14 SCC 81 the Court held that sufficient cause is a condition precedent for the exercise of the discretion; the court has no power to extend the period on equitable grounds where sufficient cause is not shown; and the discretion, though wide, must be exercised judiciously and on sound principle, not arbitrarily. In Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project (2008) 17 SCC 448 the Court added that the law of limitation may harshly affect a particular party, but it has to be applied with all its rigour when the statute so prescribes, and that a valuable right accrues to the other side on the expiry of the period.

IV. How courts decide: the factors

In practice a court asks five questions.

1. Is the delay explained, or merely asserted? The applicant must set out what happened, when, and why, on affidavit. A bald statement that the delay was due to "circumstances beyond control" is no explanation at all.

2. Is the whole period accounted for? The rule is that every day's delay must be explained, applied sensibly rather than pedantically: a short delay fully explained is readily condoned, and a long delay with a gap in the account is not.

Usually refused: ignorance of the law; ignorance of the date of the decree where the party was present in court; mere poverty, unless it caused a specific inability that is proved; delay in obtaining legal advice or in arranging funds, without more; negligence of the party himself; and administrative delay for its own sake.

VI. The Government as an applicant

The courts have moved a long way on this and both positions should be given.

In G. Ramegowda, Major v. Special Land Acquisition Officer (1988) 2 SCC 142 and in State of Haryana v. Chandra Mani (1996) 3 SCC 132 the Supreme Court held that the State is an impersonal machinery working through its officers, that decisions are taken at a slow pace by a hierarchy of bureaucrats, and that a certain amount of latitude is not impermissible; what is to be seen is whether there was reasonable and acceptable explanation, not whether the State was as prompt as a private litigant.

An order refusing to condone delay is a final order disposing of the appeal, and an appeal lies from it; an order condoning delay is interlocutory and is ordinarily not appealable, though it may be questioned in an appeal against the final decree.

Conclusion. Section 5 is a discretion and not an indulgence. It applies to appeals and applications only, never to a suit and never to an Order XXI application, and it is exercised only on a finding of sufficient cause, which means a cause the party cannot be blamed for. The two authorities pull in opposite directions on purpose: Mst. Katiji says substantial justice is to be preferred to technicality, Basawaraj says the court has no power to condone on equitable grounds where sufficient cause is not shown. A respondent has acquired a right by the expiry, and that is what the discretion is weighed against.

Section 51 lists the modes: the court may, on the application of the decree-holder, order execution (a) by delivery of any property specifically decreed; (b) by attachment and sale, or sale without attachment, of any property; (c) by arrest and detention in prison for a period not exceeding that specified in section 58, where permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require.

The proviso governs money decrees: detention shall not be ordered unless, after an opportunity of showing cause, the court is satisfied for recorded reasons that the judgment-debtor 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.

II. The application: Order XXI Rules 10 to 25

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

1. Delivery of property specifically decreed.

Rule 31, movable property: by seizure and delivery, or by detention of the judgment-debtor, or by attachment of his property, or by both.

Rule 35, immovable property: by delivery of possession, removing any person bound by the decree who refuses to vacate, if necessary by breaking open a lock or door with the help of a police officer, and giving reasonable warning and facility to women who by custom do not appear in public.

Rule 36, symbolic possession where a tenant not bound to relinquish is in occupation, by affixing a copy of the warrant and proclaiming it.

2. Attachment and sale.

Rules 41 to 46 govern the examination of the judgment-debtor as to his property, and the attachment of movables, agricultural produce, debts, shares and negotiable instruments. Rules 46A to 46I contain the garnishee procedure.

Rule 54, attachment of immovable property, by an order prohibiting the judgment-debtor from transferring or charging it, proclaimed by beat of drum and affixed on the property and on the court house.

Rule 37 requires the court, ordinarily, to issue a notice to show cause instead of a warrant of arrest in the first instance. Rules 38 to 40 govern the warrant and the hearing.

Section 55 governs the manner of arrest: no dwelling house may 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 for up to three months where the decree is for a sum exceeding five thousand rupees, and six weeks where it exceeds two thousand but not five thousand; and by section 58(1A) no order of detention shall be made where the decretal amount does not exceed two thousand rupees. Release does not discharge the debt.

Jolly George Verghese v. Bank of Cochin (AIR 1980 SC 470): mere inability to pay is not a ground for detention; there must be an element of bad faith beyond mere indifference, or a present means to pay coupled with refusal.

Order XXI Rule 26, stay by the court executing the decree. The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the court which passed the decree, or to any court having appellate jurisdiction, for an order to stay execution or for any other order relating to the decree or execution which might have been made by that court if execution had been issued by it, or if application for execution had been made to it.

Sub-rule (2) allows the court to require security or to impose conditions, and to make an interim order attaching the property or appointing a receiver, or, in the case of a decree for the delivery of movable property, to order it to be delivered into the court's custody. Sub-rule (3) allows the court, where the property is subject to speedy and natural decay, to direct its sale.

Rule 27, liability of the judgment-debtor discharged. No order of stay of execution shall be made under Rule 26 unless the court making it is satisfied that the property of the judgment-debtor would not be subject to much deterioration, or that some other adequate security has been furnished.

(a) that substantial loss may result to the party applying for stay unless the order is made;

(b) that the application has been made without unreasonable delay; and

(c) that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him.

Sub-rule (2) allows the court which passed the decree to order a stay on sufficient cause where an appeal has been preferred, and sub-rule (4) allows the court to make an ex parte order for stay pending the hearing of the application. Order XLI Rule 6 deals with security in the case of a decree for the payment of money.

Section 47 and section 151. Questions relating to the execution, discharge or satisfaction of the decree between the parties or their representatives are determined by the executing court and not by a separate suit; and the court retains its inherent power under section 151 to stay execution where the ends of justice require it and no express provision applies.