BLS LLB 5 Years Sem 9 CPC 2025-26 - ATKT 60/40 Question Paper with Solutions

A counterclaim is a claim made by the defendant against the plaintiff in the same suit, in respect of a cause of action accruing to him either before or after the filing of the suit but before he has delivered his defence and before the time limited for delivering his defence has expired. It is permitted by Order VIII Rules 6A to 6G and, by Rule 6A(2), has the effect of a cross-suit, so that the court may pronounce a final judgment both on the claim and on the counterclaim.

A receiver is an officer of the court, appointed under section 51(d) read with Order XL, to take custody of, preserve and manage property which is the subject-matter of a suit or which is being proceeded against in execution, where the court thinks it just and convenient. He holds the property for the benefit of whoever is ultimately found entitled, and not for any party.

Under section 46, the court which passed a decree may, upon the application of the decree-holder, issue a precept to any other court which would be competent to execute the decree, requiring it to attach any property of the judgment-debtor specified in the precept and lying within its jurisdiction. It is issued to prevent the judgment-debtor from disposing of that property while the decree is being transferred for execution.

Explanation I to Order XXXIII Rule 1 provides that a person is an indigent person if he is not possessed of sufficient means, other than property exempt from attachment in execution of a decree and the subject-matter of the suit, to enable him to pay the fee prescribed by law for the plaint in such suit; or, where no such fee is prescribed, if he is not entitled to property worth one thousand rupees, other than the exempt property and the subject-matter of the suit.

Under section 88 and Order XXXV, an interpleader suit is one instituted by a person who claims no interest in some debt, sum of money or other property other than for charges or costs, and who is ready to deliver it to the rightful claimant, against two or more persons who claim it adversely to one another, so that the court may decide to whom it belongs.

Explanation II. Where a guardian has been appointed to the property of a minor or other person under disability, and that guardian is capable of giving a discharge without the concurrence of the court, time runs against the person under disability.

Conclusion. Section 7 is not a rule that stands on its own; it decides whether section 6 operates at all. Ask one question of the facts: can somebody give a valid discharge without the disabled person joining in? If he can, time runs against everybody and the disability is worth nothing. If he cannot, time runs against nobody until it ceases. Explanation I makes that the ordinary answer in a Mitakshara family, because the karta can usually give the discharge, and whatever section 7 does allow is then cut down to three years by section 8.

Rule 46A, notice to the garnishee. The court may, in the case of a debt other than one secured by a mortgage or a charge, which has been attached under Rule 46, upon the application of the attaching creditor, issue notice to the garnishee calling upon him either to pay into court the debt due from him to the judgment-debtor, or so much of it as will satisfy the decree and the costs of execution, or to appear and show cause why he should not do so. The application must be on affidavit verifying the facts and stating the deponent's belief that the garnishee is indebted to the judgment-debtor.

Rule 46B, order against the garnishee. 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, trial of a disputed question. Where the garnishee disputes liability, the court may order that any issue necessary for determining his liability be tried as though it were an issue in a suit, and shall determine it.

Conclusion. A garnishee order is how a decree reaches the one asset a judgment-debtor most often has, which is money somebody else owes him. Two steps and they must be in order: attach the debt under Rule 46, then notice the garnishee under Rule 46A on an affidavit. The debt must be presently due and ascertained, so a claim for damages cannot be garnished; and Rule 46F is what makes the garnishee safe to pay, because payment under the order discharges him against the judgment-debtor even if the decree is later reversed.

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

Rule 3 requires the applicant to present the application in person, unless exempted.

Rule 5, rejection of the application. The court shall reject it 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, 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 with him to finance the litigation.

Rule 6 requires notice to the opposite party and to the Government Pleader before the application is allowed. Rule 7 governs the procedure at the hearing.

Rules 10 to 12, recovery of 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 to pay it, and it is a first charge on the subject-matter of the suit. Where he fails, or is dispaupered, or the suit is withdrawn, 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 an earlier application has been refused, but preserves the right to sue in the ordinary manner on payment of the fee.

Conclusion. Order XXXIII is the procedural answer to the objection that court fee puts justice out of reach, and it is the expression in the Code of Article 39A. What it gives is time, not remission: the fee is deferred, it is a first charge on the subject-matter under Rule 10, and it is recovered from whoever the decree makes liable. The gate is Rule 5, and the two grounds most often taken under it are that the applicant has means and that he disposed of property within two months in order to apply.

The types:

Preliminary decree. Where an adjudication decides the rights of the parties but the suit cannot be completely disposed of until further proceedings are taken. It declares the rights and leaves something to be worked out. The Code expressly provides for preliminary decrees in suits for possession and mesne profits (Order XX Rule 12), administration suits (Rule 13), suits for pre-emption (Rule 14), dissolution of partnership (Rule 15), accounts between principal and agent (Rule 16), partition (Rule 18) and suits on mortgages (Order XXXIV Rules 2, 4 and 7). There is no bar on more than one preliminary decree in a partition suit.

Final decree. One which completely disposes of the suit, either because the suit needed no preliminary decree, or because the matters left open by the preliminary decree have now been worked out. There may be more than one final decree in a suit.

Partly preliminary and partly final. Where one decree does both, for example a decree for possession, which is final, together with a direction for an inquiry into mesne profits, which is preliminary.

The provision is Order IX Rule 6(1)(a): 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.

Two points about the nature of such a decree:

It is a decree on merits, not a decree by default. The court does not simply give the plaintiff what he asks for. The plaintiff must still prove his case by evidence; the court records that evidence and decides on it. What the defendant loses is the opportunity to contest.

It is a valid and executable decree until it is set aside. It binds the parties and can be executed.

On these facts the decree is regular in form: the summons was served, Mr. Y did not appear, no written statement was filed, and the court proceeded under Rule 6(1)(a) and also under Order VIII Rule 10, which permits the court to pronounce judgment where the written statement is not filed within the time permitted.

(b) The remedies available to Mr. Y

Four, and they are cumulative in the sense that more than one may be pursued.

3. Review under section 114 read with Order XLVII Rule 1, on the ground of discovery of new and important matter, a mistake or error apparent on the face of the record, or any other sufficient reason. The period is thirty days under Article 124.

4. A suit to set aside the decree on the ground of fraud. Available only where the decree was obtained by fraud, for example by suppressing service. Not available on these facts.

Two decisions to cite.

In Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787 the Supreme Court held that a defendant may file both an application under Order IX Rule 13 and a first appeal; but where the application is dismissed on merits, he cannot in the appeal re-agitate the ground of his non-appearance, though he may still challenge the decree on the merits of the case.

In C. Prabhakar Rao v. Sama Mahipal Reddy (2025 INSC 311) the Court held that condoning the delay in filing the Order IX Rule 13 application and setting aside the decree are separate exercises. An order condoning delay does not by itself restore the suit; the court must go on and record a finding on sufficient cause for non-appearance.

For full marks, cover: that the answer is yes, section 4 of the Limitation Act, 1963; the Explanation on partial closure; the maxim lex non cogit ad impossibilia; and the two limits, that section 4 does not extend the period and does not apply where the court was open but the litigant did not go.

(a) Does the Act address it?

Yes. Section 4 of the Limitation Act, 1963 covers exactly this case.

(b) The provision and the reason

Section 4, expiry of prescribed period when court is closed.

Section 4 does not extend the period of limitation; it extends the time for doing the act. The period remains what the Schedule prescribes. The section only allows the filing to be made on the reopening day. This distinction matters where some other consequence turns on the date of expiry rather than the date of filing.

The Explanation covers partial closure. If the court is closed during any part of its normal working hours on that day, it is deemed closed for the whole day. So a court that sits for an hour and then rises for a bandh, a strike or a local holiday is "closed" for section 4.

The section applies to a suit as well as to an appeal or application. That is worth saying because section 5, which permits condonation of delay for sufficient cause, applies only to appeals and applications and expressly not to suits, and not to applications under Order XXI. Section 4 is one of the few provisions that helps a plaintiff whose suit is on the last day.

For full marks, cover: that the proceeding the Code provides is review, section 114 and Order XLVII; the three grounds; who may apply and to which court; the thirty day period under Article 124; and the Order XLVII Rules 3, 4 and 7 procedure.

A note on the words used. The Code of Civil Procedure has no proceeding called "re-examination of a judgment". Re-examination in a civil trial means the re-examination of a witness by the party who called him, under section 137 of the Evidence Act, now section 142 of the Bharatiya Sakshya Adhiniyam, 2023. What Rita wants, an application to the same court to look at its own decree again, is review, and that is how the question is answered.

(a) The legal requirements for a review

An error apparent on the face of the record must be self-evident, needing no elaborate argument to establish. An error that has to be reasoned out by a long process is not apparent. A review is not an appeal in disguise, and an erroneous view of law or of evidence is not by itself a ground.

"Any other sufficient reason" has been read ejusdem generis, as meaning a reason analogous to the two specified grounds (Chhajju Ram v. Neki, and approved thereafter).

Who may apply and where. A person aggrieved, which includes a person not a party who is prejudicially affected. By section 114 the application goes to the court which passed the decree, and in practice to the same Judge where he is still available; where he is not, his successor in that court hears it. (Order XLVII Rule 2, which used to deal expressly with this, was repealed by the Amendment Act of 1956; do not cite it.) Rule 5 governs a review in a court consisting of two or more Judges.

Limitation. Article 124 of the Schedule gives thirty days from the date of the decree or order.

Step 4, draft the application in the form of a plea to the same court. By Order XLVII Rule 3, the form of the application shall be as nearly as may be the same as the form of a memorandum of appeal; it must therefore set out concise grounds. It should be supported by an affidavit and accompanied by the certified copy and the new material relied on.

Step 5, consider whether to appeal instead. She must decide between review and appeal, because once an appeal is preferred and disposed of, review is barred. Where her complaint is that the court took a wrong view of the law or of the evidence, the remedy is an appeal under section 96, not review.

Step 6, the hearing. Rule 4(1): where the court sees no sufficient ground, it shall reject the application. Rule 4(2): where it thinks there is sufficient ground, it shall grant the application, but a review on the ground of discovery of new evidence shall not be granted without strict proof of the allegation. Rule 4(2) proviso requires notice to the opposite party before the application is granted, so that he may be heard. Rule 7 makes an order rejecting the application non-appealable, while an order granting a review is appealable on the limited grounds set out in that rule.

For full marks, cover: Order XXXII Rule 15, which applies the whole of Order XXXII to persons of unsound mind; suing by a next friend; who may be a next friend and the disqualifications; leave of the court for money and for compromise under Rules 6 and 7; and section 6 of the Limitation Act, which is the second half of the answer.

(a) The provisions

Order XXXII Rule 15 is the gateway. It provides that Rules 1 to 14 of Order XXXII, 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.

Rule 4, who may act. 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 person under disability and, where he is to be next friend, provided he is not a defendant. No person shall act as next friend without his consent, and where there is a guardian appointed by a competent authority, no other person shall act without the leave of the court.

Rule 5. Every application to the court on behalf of such a person, except an application under Rule 10(2), shall be made by the next friend.

Rule 6, receipt of money. The next friend shall not, without the leave of the court, receive any money or other movable property on behalf of the person under disability, either by way of compromise or under a decree. Leave is given on security being furnished.

Rule 7, compromise. No agreement or compromise entered into by a next friend on behalf of such a person shall have effect without the leave of the court, expressly recorded in the proceedings. Any such agreement without leave is voidable at the instance of the person under disability. The application for leave must be accompanied by an affidavit of the next friend and a certificate of his pleader that the compromise is for the benefit of the person under disability.

Applied to Rajesh: if the money was lent while he was already of unsound mind, the three year period under Article 19 (money payable for money lent) or Article 35 (a demand promissory note) does not shut him out; it runs afresh after he recovers. But section 8 caps that extension at three years from the cessation of the disability, and section 9 is the trap: if the money was lent while he was of sound mind and he became insane afterwards, time keeps running and section 6 gives him nothing. In that case his only protection is that a next friend may sue on his behalf at once.

Conclusion. Rajesh does not lose his claim; he loses only the ability to conduct it himself. Order XXXII Rule 15 brings the whole of the minors' machinery to bear, so the suit is filed in his name by a next friend, and the court supervises that person at the two points that matter, the receipt of the money under Rule 6 and any compromise under Rule 7. On limitation, section 6 will help him only if he was of unsound mind when the money became recoverable; if he became so afterwards, section 9 is fatal and the suit must be brought at once.

For full marks, cover: section 3 as the source of the obligation and section 2(j) for the difference between period and prescribed period; then sections 12 to 15 as exclusions, 16 and 17 as postponements of the starting point, 18 and 19 as fresh starts, and 4, 5, 6 to 9 as the surrounding machinery; and the COVID exclusion ordered by the Supreme Court.

The framework

Section 3(1) is the obligation: subject to sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Limitation is therefore a duty of the court, not merely a plea of the defendant.

Section 2(j) then distinguishes the two figures the Act works with. The "period of limitation" is the period prescribed by the Schedule. The "prescribed period" is that period as computed in accordance with the provisions of the Act. Computation is the process of getting from the first to the second, and sections 4 to 24 are how it is done.

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

Section 13, exclusion of time in cases where leave to sue or appeal as an indigent person is applied for. The time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded, and the court may, on payment of the court fees, treat the suit or appeal as having the same force as if the fees had been paid in the first instance.

Section 14, exclusion of time of proceeding bona fide in a court without jurisdiction.

Sub-section (1): in computing the period for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant, shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

Sub-section (2) applies the same rule to applications.

(5) In computing the period for a suit by a receiver or interim receiver in insolvency, the period beginning with the date of the insolvency petition and ending with three months after the appointment.

II. Postponement of the starting point: sections 16 and 17

These do not take days out; they decide that the clock had not started.

Section 16, effect of death on or before the accrual of the right to sue. Where a person who would have been entitled to sue dies before the right accrues, the period runs from the time there is a legal representative capable of instituting the suit; and where a person against whom a right to sue accrues dies before it accrues, the period runs from the time there is a legal representative against whom the plaintiff may institute the suit. Sub-section (3) excludes suits for possession founded on adverse possession, and suits for pre-emption.

Section 18, effect of acknowledgment in writing. 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 the property or right is claimed, or by a person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. The Explanations provide that the acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, and though it is accompanied by a refusal to pay or is coupled with a claim to set-off.

Section 19, effect of payment on account of debt or of interest on legacy. Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay, or by his agent duly authorised, 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.

Sections 6, 7 and 8: legal disability, disability of one of several persons, and the three year cap on the extension.

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

The cases to cite. Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department, (2008) 7 SCC 169, is the leading modern statement on section 14: the section is to be given a liberal construction to advance the cause of justice, and what it requires is that the earlier proceeding was prosecuted with due diligence and in good faith in a court unable to entertain it for a defect of jurisdiction or other cause of a like nature. It also draws the line the answer turns on, that section 14 excludes time while section 5 condones delay, and the two are not interchangeable.

For full marks, cover: the whole of Order XXXII rule by rule; Rule 15 extending it to persons of unsound mind; the difference between a next friend and a guardian for the suit; the leave requirements in Rules 6 and 7; Rule 12 on the disability ceasing; and section 6 of the Limitation Act as the companion provision.

The scheme and its reason

A minor and a person of unsound mind cannot conduct litigation: they cannot instruct a pleader, verify a pleading, admit a fact, or judge a settlement. But they can own property and be owed money, and they can be sued. Order XXXII, containing sixteen rules, supplies a person to act for them and then supervises that person. Rule 15 extends the whole Order to persons of unsound mind.

I. Suits by a person under disability

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. No court order is required to appoint a next friend; he simply files the suit.

Rule 3. Where the defendant is a minor, the court shall, on being satisfied of the fact of his minority, appoint a proper person to be guardian for the suit. The order shall be made on the application of the plaintiff, supported by an affidavit verifying the minority, and notice of the application must be given to the minor and to the person with whom the minor resides, or to his father or other natural guardian, or, where there is none, to the person in whose care the minor is. Sub-rule (5) provides that no order shall be made without such notice.

Where no other suitable person is available, the court may appoint one of its own officers to be guardian, and shall direct that the costs be paid by the plaintiff or out of the property of the minor.

Rule 4, who may be next friend or guardian. Any person of sound mind who has attained majority may act, provided that the interest of such person is not adverse to that of the minor, and provided that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff. Where a guardian appointed by a competent authority exists, no other person shall act without the leave of the court. No person shall be appointed guardian for the suit without his consent in writing.

III. The controls

Rules 8 and 9, retirement and removal. A next friend shall not retire without first procuring a fit person to be put in his place and giving security for costs. The court may remove a next friend or guardian whose interest becomes adverse, who is connected with a party with an adverse interest, who does not do his duty, or for any other sufficient cause, and shall appoint another before the suit proceeds.

Rule 10, stay of proceedings on removal or retirement. On the retirement, removal or death of the next friend, further proceedings shall be stayed until a new next friend is appointed. Where the next friend is not a guardian appointed by a competent authority and an application is made under sub-rule (2) by such a guardian or by the minor on attaining majority, the court may remove the next friend.

Rule 11. A guardian for the suit may apply for his discharge, and the court may permit him to retire or remove him.

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.

Conclusion. The scheme of Order XXXII is to supply a person who can do what the party under disability cannot, and then to watch him. The distinction that decides most questions is between the next friend, who needs no order and acts for the plaintiff, and the guardian for the suit, who is appointed by the court after notice and acts for the defendant, and the consequences of the office being vacant differ accordingly: a plaint without a next friend is taken off the file, while a decree against a person under disability with no guardian appointed is a nullity as against him.

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 the provisions relating to the execution of decrees, so far as applicable, to the execution of orders as well, which answers the first half of the question directly.

II. Which court may execute: sections 37 to 39 and 46

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 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 the execution.

III. The application: Order XXI Rules 10 to 25

Rule 10. Application is made to the court which passed the decree or, where it has been sent for execution, to that court. Rule 11(2) requires a written application in the prescribed form, signed and verified, stating the number of the suit, the names of the parties, the date of the decree, whether any appeal has been preferred, whether any payment has been made, previous applications and their results, the amount due, and, importantly, the mode in which the assistance of the court is required. Rule 17 deals with the procedure on receiving an application, Rule 22 with notice to show cause where the application is made more than two years after the decree or against a legal representative, and Rules 23 to 25 with the procedure thereafter.

IV. Section 51: the modes

Section 51 provides that, 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;

What may be attached. Section 60(1): 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 held in his own name or by another in trust for him.

What may not. The proviso to section 60(1) exempts, among others: necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman; tools of artisans, and where the judgment-debtor is an agriculturist, his implements of husbandry, cattle and seed grain; houses and other buildings belonging to an agriculturist, a labourer or a domestic servant and occupied by him; books of account; a mere right to sue for damages; any right of personal service; stipends and gratuities allowed to pensioners of the Government; wages of labourers and domestic servants; salary to the extent of the first one thousand rupees and two thirds of the remainder; a mere expectancy of succession by survivorship; and a right to future maintenance.

Rule 72 forbids the decree-holder to bid or purchase without the express permission of the court. Rules 89 to 91 allow the sale to be set aside: Rule 89 on deposit of the purchase money with five per cent for the purchaser; Rule 90 for material irregularity or fraud in publishing or conducting it, coupled with substantial injury; Rule 91 at the instance of the purchaser on the ground that the judgment-debtor had no saleable interest. Rule 92 confirms the sale, and Rule 94 provides for the certificate of sale.

Mode 3: arrest and detention

Section 55, manner of arrest: the judgment-debtor may be arrested at any hour and on any day, but no dwelling house shall be entered after sunset and before sunrise, no outer door broken open unless the house is in his occupancy and he refuses access, and where a room is occupied by a woman who by custom does not appear in public, reasonable time and facility must be given to her to withdraw. Sub-section (4) provides that where the judgment-debtor pays the amount and the costs of arrest to the officer, he shall be released at once.

Section 56, absolute prohibition: the court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

In Jolly George Verghese v. Bank of Cochin (AIR 1980 SC 470) the Supreme Court, reading section 51 with Article 21 and with Article 11 of the International Covenant on Civil and Political Rights, held that mere omission to pay is not enough: there must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition, or a present means to pay coupled with refusal. Simple inability to pay cannot be visited with imprisonment.

Mode 4: appointment of a receiver

Equitable execution, under section 51(d) and Order XL. The court appoints a receiver of the judgment-debtor's property, who collects the rents and profits and applies them to the decree. It is used where the property yields income and a sale would be wasteful or where attachment alone would not realise the money.

Mode 5: any other manner the relief requires

The residuary clause covers:

Partition of an estate assessed to land revenue, which under section 54 is made by the Collector, not by the civil court.

The executing court cannot go behind the decree. It must take the decree as it stands, however erroneous, and cannot question its correctness. The single exception is where the decree is a nullity, passed by a court wholly without jurisdiction, in which case its invalidity may be set up whenever and wherever it is sought to be enforced.

Limitation. Article 136 gives twelve years from the date the decree or order becomes enforceable for an application for execution, except that for a decree granting a mandatory injunction it is three years. Articles 125 to 129 give the short periods for applications under Rules 89, 90 and 91.

Delay. In Rahul S. Shah v. Jinendra Kumar Gandhi (2021) the Supreme Court recorded that execution proceedings routinely outlast the suits that produced the decrees, and issued directions to all trial courts, including that an executing court dispose of execution proceedings within six months of filing, extendable only for reasons recorded in writing, and that objections be decided expeditiously and not by successive applications.

For full marks, cover: each of the three separately with its section, its Order, who invokes it, on what grounds 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.

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.

Rule 2 allows the court either to stay proceedings or to pass a decree contingent upon the High Court's decision. Rule 3 empowers the High Court to answer the question and to send back a copy of its judgment, upon which the referring court shall dispose of the case conformably. Rule 4 allows the High Court to alter, cancel or set aside any decree passed in the case, and to make such order as it thinks fit. Rule 4A, inserted in 1976, extends the power of reference to any other court, and Rule 6 deals with the power to refer to the High Court questions as to the jurisdiction of Small Cause Courts. Rule 7 provides that costs consequent on the reference shall be costs in the case.

The essentials: a pending suit, appeal or execution proceeding; a question of law or usage having the force of law; a reasonable doubt entertained by the court; and, for Rule 1, a decree not subject to appeal. The referring authority is always the court; a party may apply, but he cannot refer.

II. Review: section 114 and Order XLVII

Section 114. Subject as aforesaid, any person considering himself aggrieved may apply for a review of judgment to the court which passed the decree or made the order, in three situations:

Order XLVII Rule 2, which formerly dealt with the case where the Judge who passed the decree was no longer attached to the court, was repealed in 1956 and must not be cited; Rule 3 requires the form of the application to be as nearly as may be that of a memorandum of appeal; Rule 4(1) requires rejection where there is no sufficient ground; Rule 4(2) requires the court, before granting the application, to give notice to the opposite party, and forbids granting a review on the ground of discovery of new evidence without strict proof of the allegation; Rule 5 deals with the constitution of the Bench; Rule 7 makes an order rejecting an application non-appealable and an order granting one appealable on limited grounds; Rule 8 requires the registration of the order and the rehearing; and Rule 9 provides that no application for review of an order made on an application for review shall be entertained.

Limitation. Article 124 gives thirty days from the date of the decree or order.

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". And an error apparent must be self-evident, not one that has to be established by a long process of reasoning on points where there may conceivably be two opinions.

Sub-section (2): the High Court shall not 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 the suit or other proceeding, except where the suit or proceeding is stayed by the High Court.

The Explanation provides that "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.

Revision may be invoked on the application of a party or by the High Court of its own motion. The power is discretionary and supervisory, not appellate: it goes to jurisdiction and not to the correctness of the finding. A finding of fact, however erroneous, is not revisable unless it is arrived at without jurisdiction or by a material irregularity in the exercise of jurisdiction.

Where section 115 is barred, Article 227 of the Constitution, the High Court's power of superintendence, may still be available, but it is sparingly exercised. 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, and restated that supervisory jurisdiction must stay within supervisory limits.