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Code of Civil Procedure (LLB -307)

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The paper will focus on the civil procedures followed in instituting a suit. The students will be familiarised with certain important concepts and practical skill development activity will provide insights into the actual working of the court procedures.

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Code of Civil Procedure (LLB -307)

  1. 1. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) SEMESTER: FIFTH BBALLB III A+B+C & BALLB III A+B+C NAME OF THE SUBJECT: CODE OF CIVIL PROCEDURE UNIT-I TOPIC: DEFINITIONS FACULTY NAME: Ms. Ridam Aggarwal (Assistant Professor)
  2. 2. Introduction • Scheme of the Act:- It consolidates the law relating to procedure of Civil Courts. • It has 158 sections in the first part (the main part) and 51 ORDERS in the second part containing Rules and 8 appendices . • The Sections contain the fundamental principles, and thus create jurisdiction hence a substantive law whereas the Rules deal with the detailed procedure as to how the jurisdiction should be exercised. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  3. 3. DEFINITIONS Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  4. 4. Decree – S.2(2) • 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 may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include— (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.—A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  5. 5. Judgment & Order – S.2(9) & S.2(14) • S. 2(9) - “Judgment” means the statement given by the Judge of the grounds of a decree or order. • S. 2(14) - “Order” means the formal expression of any decision of a Civil Court which is not a decree. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  6. 6. Foreign Court & Foreign Judgment • S.2(5)- “Foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government; • S.2(6)- “Foreign Judgment” means the judgment of a foreign Court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  7. 7. Section 13 & 14 related to Foreign Judgment • S. 13 - When foreign judgment not conclusive.— 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 Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  8. 8. Section 13 & 14 related to Foreign Judgment Cont. S. 14 - Presumption as to foreign judgments- The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  9. 9. Mesne Profit – S.2(12) • “Mesne Profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  10. 10. Affidavit – Section 139 • Affidavit under Section 139 of the CPC is a statement in writing, made before an officer of the court authorized to administer oaths. • The person making the affidavits known as the deponent for he ‘deposes’ to the facts contained therein. • For instance, interrogatories are answered by way of affidavit. Where a party is bound to disclose documents in answer to interrogatories, it is called affidavit of documents. A declaration of facts that have been reduced to writing and affirmed before an officer competent to administer oaths is an affidavit. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  11. 11. Affidavit – Section 139 Cont. • An affidavit must contain only such facts that are known to the deponent or such information that he believes to be correct. Rule 3 of Order 19, CPC provides that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided the grounds for the same are state. • Affidavits are not included within the purview of the definition of “evidence” as has been given in Section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  12. 12. Plaint • A suit is instituted by presentation of plaint before the Court. A ‘plaint’ is written application made by plaintiff against defendant seeking relief from the Court. • A plaint is pleading and should conform to the rules of pleading. • Along with plaint, plaintiff shall file documents on which he relies for the relief. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  13. 13. Written Statement • Pleading include written statement (ws). • Written statement is pleading on behalf of defendant wherein he • gives his defence or reply to the allegation made by plaintiff. • A written statement is pleading therefore should conform to rules of pleading. • WS shall be presented within 30 (maximum 90) days from service of summons. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  14. 14. Suit • ‘Suit’ is not defined in the Act. A suit is initiated by presenting a ‘plaint’. • In a suit, there are two parties, ie., plaintiff & defendant. • Plaintiff institutes the suit against the defendance by presenting a plaint before the court of law. • In suit, plaintiff has claimed certain remedies against the defendant. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  15. 15. Stages in a Suit • Institution of Suit • Issue of Summons • Written Statement • Discovery • Issues • Trial • Judgment & Decree (execution proceeding/appeal) Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  16. 16. 1. Institution of Suit • A suit is instituted by plaintiff. • Suit is not defined in the Code but a suit is initiated by presenting plaint in the court. • Plaint contains concise statement of the facts & claim/relief. It is accompanied with necessary documents on which plaintiff relies. • Provisions related to this are under section 26, Order I, II, III, IV, VI, VII. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  17. 17. 2. Issue of Summons • After institution of suit, Court issues summons to defendant to appear before Court & enter into his defence. • Provisions for summons are Section 27,28,29 and Order III. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  18. 18. 3. Written Statement • After summons is served, defendant has to appear before the Court and at first hearing has to submit his written statement, ie., WS. • In WS, defendant has to reply to the allegations made in the plaint & take his defence. • Provisions for WS are under Order VIII. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  19. 19. 4. Discovery • Parties to a suit, ie., plaintiff & defendant are entitled to know the nature & particulars of the case. • If pleading is not clear or is vague, opponent will not be in a position to give proper reply. • Under Section 30 & Order XI, a party to suit can ask opposite party for ‘discovery of documents or by interrogatories’. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  20. 20. 5. Issues • Court has to settle issues between the plaintiff & defendant. • It is finding of actual matter of controversy between parties to the suit. • Suits are settled or framed by considering facts mentioned in plaint, written statement & other documents submitted by parties. • Order XI contains provisions for issues. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  21. 21. 6. Trial • Trial is the stage where Court can receive evidence produced by the parties. • First it is for plaintiff. Then, the defendant has to produce evidence before the Court. Evidence includes all statements & documents permitted by the Court to be produced as evidence. • Provisions related to Trial are in Order XVIII and Indian Evidence Act, 1872 is also applicable. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  22. 22. 7. Judgment • After trial, when Court has heard both the parties, a judgment will be pronounced in an open court. • About Judgment, a notice shalle be given to parties. Judgment covers the finding of Courts on all issues involved in the suit. On such judgment, decree shall follow. • Provisions related to Judgment & Decree are under Section 33 & Order XX. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  23. 23. Execution Proceeding/Appeal • After Judgment & Decree- • Plaintiff who is Decree Holder can file execution proceedings against the defendant, ie., judgment debtor, before the same court. It is an independent proceeding in comparison to a suit. Execution Proceeding is possible for execution of an order or decree. • If the plaintiff or the defendant or both are not satisfied with the decision of the court, they can file an appeal before the Appellate Court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  24. 24. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: IMPORTANT CONCEPTS
  25. 25. Caveat – S. 148A • S.148A – Right to Lodge Caveat (1) 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 in respect thereof. (2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made, under sub- section (1). (3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  26. 26. Caveat – S. 148A Cont. (4) 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 made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application. (5) Where a caveat has been lodged under sub-section (1), such 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 the said period. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  27. 27. Res Sub-Judice – S.10 • Stay of Suit – -No Court shall -proceed with the trial of any suit in which -the matter in issue is also directly and substantially in issue in a previously instituted suit a) between the same parties, b) 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 have jurisdiction to grant the relief claimed, -or in any Court beyond the limits of India established or continued by he Central Government and having like jurisdiction, or before the Supreme Court. -Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in 6 [India] from trying a suit founded on the same cause of action. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  28. 28. Res Judicata – S. 11 -No Court shall -try any suit or issue -in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit a) between the same parties, b) or between parties under whom they or any of them claim, -litigating under the same title, -in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  29. 29. Res Judicata – S. 11 Cont. Explanation I.—The expression “former suit” shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II.—For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  30. 30. Res Judicata – S. 11 Cont. Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI.—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating . Explanation VII.—The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  31. 31. Res Judicata – S. 11 Cont. Explanation VIII. —An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  32. 32. Inherent Powers - Section 151 S. 151 – Saving of inherent powers of Court- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  33. 33. Restitution – S. 144 —(1) 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] or [such part thereof as has been varied, reversed, set aside or modified]; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly [consequential on such variation, reversal, setting aside or modification of the decree or order]. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  34. 34. Restitution – S. 144 Cont. Explanation.—For the purposes of sub-section (1), the expression “Court which passed the decree or order” shall be deemed to include,— (a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance; (b) where the decree or order has been set aside by a separate suit, the court of first instance which passed such decree or order. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  35. 35. Restitution – S. 144 Cont. (c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute, it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1). Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  36. 36. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: EXECUTION OF DECREE & JUDGMENT
  37. 37. Introduction • When a person obtains a decree from a court of law against another person, his next step is to get the decree satisfied. The proceeding by which he moves the court for satisfaction of decree is called execution proceedings. • Execution is the medium by which a decree holder constrains the judgment-debtor to do the command of the decree or order as the case may be. It empowers the decree holder to recover the products of the judgment. The execution is finished when the judgment- creditor or decree holder gets cash or other thing granted to him by judgment, decree or order. • The term “execution” has not been defined in the code. The expression “execution” simply means the process for enforcing or giving effect to the judgment of the court. The principles governing execution of decree and orders are dealt with in Sections 36 to 74 and Order 21 of the Civil Procedure Code. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  38. 38. Classification Of Order 21 • Applications for execution and the process to be applied. • Stay of executions. • Mode of executions. • Sale of immovable property and movable property. • Adjudication of the claims and objections. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  39. 39. APPLICATIONS FOR EXECUTION Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  40. 40. Who Can Make Application For Execution? • Application for execution can be made by • The decree holder himself. • His legal representative if the decree holder is dead. • Any person claiming under the decree holder. • Transferee of Decree holder who has given notice to transferor and judgement debtor. • Any one or more of the Decree holders where it is for benefit of all and no contrary intention is indicated. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  41. 41. Against Whom The Application For Execution Can Be Made? • Execution decree can be made only against the judgement debtor r if he is alive or against legal representatives of judgement debtor. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  42. 42. What Are The Decrees That May Be Executed? • The decree of a court against which no appeal has been made shall be executed after expiry of the limitation period. • Where a decree is reversed, modified on appeal, the only decree capable of the execution is the appellate decree, but exceptionally where the appellate judgment simply dismisses the appeal. General rule that the appellate decree alone is to be executed, does not apply and the court should look at the later decree for the information of its contents. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  43. 43. Modes Of Execution Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  44. 44. What Are The Modes Of Execution Of A Decree? The code sets down different methods of execution. After the decree holder files an application for execution of decree, the executing court can implement execution. A decree can be enforced by: • By delivery of any property specifically decreed. • By attachment and sale or by sale without attachment of the property. • By arrest and detention. • By appointing a receiver. • By effecting partition. • Any such manner which the nature of relief requires. Section 51 of C.P.C lays down the court may on the application of decree holder subject to such conditions and limitation as may be prescribed, the court may on the application of the decree holder order execution of the decree. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  45. 45. How Is Decree Related To Payment Executed? • By going through Order 21 rule 30 of C.P.C, every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by detention in the Civil Prison of the judgment debtor or, by the attachment and sale of his property, or by both. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  46. 46. How Is Decree Related To Specific Movable Property Executed? According to Order 21 rule 31(1) of C.P.C, when the decree is for any specific movable property, the execution can take place in any of the following made: • By seizure and delivery of the property. • By detention of the judgement debtor. • By attachment of his properly. • By attachment and detention both. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  47. 47. What Powers Does The Court Have Regarding The Execution Of Immovable Property? According to Order 21 rule 35 sub-rule-1 of C.P.C, A court executing a decree has the power to attach the property and sell the property or portion thereof which is sufficient to satisfy the decree. After such attachment the first step is issuing proclamation of sale. Such a proclamation shall be prepared after notice to both the sides and shall comprise of following details: - • Time and place of sale. • Details of property or part thereof to be sold. • Revenue if any attached to property. • Encumbrance to which the property is liable. • Amount to be recovered under the decree. • Such other particulars which court considers material. • Service of notice is a mandatory requirement and non-compliance will vitiate the entire proceedings. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  48. 48. How Is Decree For Specific Performance For Restitution Of Conjugal Rights Or For An Injunction Executed? According to Order (21) rule (32) of C.P.C, “Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights or for an injunction, stay has been passed, has had an opportunity of obeying the decree and if he has wilfully failed to obey it, the decree may be enforced, in the case of a decree for restitution of conjugal rights: • By the attachment of his property, or in the case of a decree for specific performance of a contract or for an injunction. • By his detention in Civil Prison. • By his detention in Civil Prison. • By the attachment of his property. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  49. 49. Stay Of An Execution Of A Decree Or An Order Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  50. 50. What Are The Objectives And Conditions Preceding The Stay Of An Execution? • Rule 5 of CPC provides for the stay of an execution: Where the suit is pending in any Court decree-holder and judgment-debtor in such circumstances if the Court is found the rights of parties are required to be adjudicated by the Court where such suit is pending and unless the rights are to be determined, the decree cannot be executed in such circumstances, Court can stay the execution proceeding. Also, when an appeal has been filed by either of the parties, the appellate court may order stay of proceedings or stay on an execution of such decree. • The objective is: to protect the interest of both the parties i.e. the decree- holder and the judgement-debtor. In case the order gets reversed by the appellate court, the disputed subject matter will stay the same, thus protecting the interest if both the parties. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  51. 51. What Are The Objectives And Conditions Preceding The Stay Of An Execution? Cont. The conditions preceding the court’s order regarding the stay on execution of decree: • The application has been made without unreasonable delay. • The applicant might suffer from a substantial loss, unless such stay is applied. • Security has been given by the applicant for the due performance of the decree. This decree is usually passed when both the parties are heard. However, under Rule 5(3): court have a power to make ex-parte orders in case of stay of an execution. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  52. 52. Execution Of Claims & Objections Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  53. 53. When Does The Court Adjudicates Upon The Claims To And Objections With Respect To The Property? • The court adjudicates upon the claims to or objections in respect of attachment of property in execution of decree. Such objections are raised by judgement debtors or third parties on the ground that property is not liable to attachment. It is necessary to observe and adjudicate upon these claims before ordering for the sale of the property as there would be no claim if the property in dispute is already sold off. • All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relating to adjudication of claim or objection shall be dealt with by the court dealing with the claim and not by separate suit. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  54. 54. When Does The Court Adjudicates Upon The Claims To And Objections With Respect To The Property? Cont. The court satisfy all the claims and objections raised, and further allow the property to be: • Allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit, or • Disallow the claim or objection. • Continue the attachment subject to any mortgage, charge or other interest in favour of any person, or • Pass such order, as in the circumstances of the case it deems fit. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  55. 55. Resistence To Sale Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  56. 56. Remedies Provided If There Is Any Resistance To Sale. Where the holder of a decree for possession of immovable property or purchaser of any such property sold in execution of decree is resisted or obstructed by any person in obtaining possession of property, he may make an application complaining of such resistance or obstruction and the court shall proceed to adjudicate upon the application in accordance with the provisions of the Act. The person in possession cannot file application under this rule but can defend his conduct when application is moved against him. The right to move such application is conferred on decree holder or judgement purchaser Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  57. 57. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-2 JURISDICTION & PLACE OF SUING
  58. 58. Courts to try all civil suits unless barred – Section 9 • The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. • [Explanation I].—A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. • [Explanation I].—For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.] Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  59. 59. Types of Jurisdiction • There are three types of jurisdiction: – Pecuniary Jurisdiction (S. 3,6 & 15) – Subject Matter Jurisdiction – Territorial Jurisdiction (S. 16 to 20) • All the three types of jurisdictions have to be satisfied and only then can the court entertain the suit as only then a suit is filed in the correct court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  60. 60. Pecuniary Jurisdiction • Section 3 – Subordination of Courts For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  61. 61. Pecuniary Jurisdiction Cont. • Section 6 – Pecuniary Jurisdiction Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject- matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction • Section 15 – Courts in which suits to be instituted Every suit shall be instituted in the Court of the lowest grade competent to try it. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  62. 62. Subject Matter Jurisdiction • The subject matter can be defined as the authority vested in a court to understand and try cases concerning a special type of subject matter. In other words, it means that some courts are banned from hearing cases of a certain nature. No question of choices can be decided by the court which do not have subject matter jurisdiction. • For Example, “Ranveer”, a resident of Sonipat bought a food item of ‘AA’ brand that was plagued with pests. He should prosecute ‘ZZ’ company in Sonipat District forum rather than District Civil Court of Sonipat. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  63. 63. Territorial Jurisdiction • Section 16 - Suits to be instituted where subject-matter situate Subject to the pecuniary or other limitations prescribed by any law, suits— (a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) or the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  64. 64. Territorial Jurisdiction Cont. • Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. • Explanation.—In this section “property” means property situate in India. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  65. 65. Territorial Jurisdiction Cont. • Section 17 - Suits for immovable property situate within jurisdiction of different Courts Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts. the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  66. 66. Territorial Jurisdiction Cont. • Section 18 - Place of Institution of suit where local limits of jurisdiction of Courts are uncertain (1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction: Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  67. 67. Territorial Jurisdiction Cont. (2) Where a statement has not been recorded under sub-section (1), and an objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  68. 68. Territorial Jurisdiction Cont. • Section 19 - Suits for compensation for wrongs to person or movables Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  69. 69. Territorial Jurisdiction Cont. • Section 20 - Other suits to be instituted where defendants reside or cause of action arises Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction— (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  70. 70. Territorial Jurisdiction Cont. (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or (c) The cause of action, wholly or in part, arises. [Explanation].—A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  71. 71. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-2 INSTITUTION OF SUIT
  72. 72. Section 26 – Institution of Suit • Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. • In every plaint, facts shall be proved by affidavit: Provided that such an affidavit shall be in the form and manner as prescribed under Order VI of rule 15A. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  73. 73. Order VI Rule 15 O6 R15 Verification of pleadings in a commercial dispute — (1) Notwithstanding anything contained in Rule 15, every pleading in a commercial dispute shall be verified by an affidavit in the manner and form prescribed in the Appendix to this Schedule. (2) (2) An affidavit under sub-rule (1) above shall be signed by the party or by one of the parties to the proceedings, or by any other person on behalf of such party or parties who is proved to the satisfaction of the Court to be acquainted with the facts of the case and who is duly authorised by such party or parties. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  74. 74. Order VI Rule 15 Cont. (3) Where a pleading is amended, the amendments must be verified in the form and manner referred to in sub-rule (1) unless the Court orders otherwise. (4) Where a pleading is not verified in the manner provided under sub-rule (1), the party shall not be permitted to rely on such pleading as evidence or any of the matters set out therein. (5) The Court may strike out a pleading which is not verified by a Statement of Truth, namely, the affidavit set out in the Appendix to this Schedule. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  75. 75. Order VI – Institution of Suit R1 Suit to be commenced by plaint (1) Every suit shall be instituted by presenting 3 [plaint in duplicate to the Court] or such officer as it appoints in this behalf. (2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable. (3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2)]. R2 Register of suits The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  76. 76. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) PLEADING, PLAINT, WRITTEN STATEMENT & SUIT
  77. 77. Pleading • Pleading means, the formal statement of cause of action or defence. Civil Procedure Code defined pleading as ‘pleading means plaint and written statement’.[ Order VI, Rule 1] • Object of pleading is as under: i) To give information to both sides as to the case. Both parties are entitled to know case against them. ii) To bring parties to definite issues. iii) To avoid unnecessary pleadings and thereby reduce time of litigation and expenses. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  78. 78. Rules of Pleading 1. Pleading to state material facts and not evidence. Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. [O.VI R.2] 2. Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.[O.VI R.2] 3. Dates, sums and numbers shall be expressed in a pleading in figures as well as in words. [O.VI, R.2] 4. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. [O.VI, R.4] Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  79. 79. Rules of Pleading Cont. 5. If there is any condition precedent which plaintiff or defendant wants to be contested must be distinctly specified in the pleading. [O. VI, R. 6] 6. Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be considered only as a denial in fact of the contract and not the denial of the legality or sufficiency in law of such contract. [O.VI, R.8] 7. Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof. [O.VI R.9] 8. Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. [O. VI, R.10] Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  80. 80. Rules of Pleading Cont. 9. Wherever any contract or any relation between any persons is to be implied from a series of letters or conversations or otherwise from a number of circumstances it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letter, conversations or circumstances. There is no need to state details. [O.VI, R. 12] 10. Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied. [O.VI, R. 13] 11. Every pleading shall be signed by the party and his pleader. Pleading may be signed by person duly authorised by party to suit. [O.VI, R. 14] 12. Every pleading shall be verified at the foot by the party. It shall state the date on which and the place at which it was signed [O.VI, R.15] Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  81. 81. Striking Out Pleading • The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading: a) Which may be unnecessary, scandalous, frivolous or vexatious, or b) Which may tend to prejudice, embarrass or delay the fair trial of the suit, or c) Which is otherwise an abuse of the process of the Court. [O.VI, R. 16] Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  82. 82. Amendment of Pleading • The Court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner and on such terms as may be just. • The Court may allow amendment in the pleading when: a) It is necessary for determination of real question in controversy, b) It is just and proper, c) It is necessary in the interest of justice. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  83. 83. Plaint • A suit is instituted by presentation of plaint before the Court. A ‘plaint’ is written application made by plaintiff against defendant seeking relief from the Court. • A plaint is pleading and should conform to the rules of pleading. • Along with plaint, plaintiff shall file documents on which he relies for the relief. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  84. 84. Particulars of Plaint - [Order VII, Rule 1] a. The name of the Court in which the suit is brought; b. The name, description and place of residence of the plaintiff; c. The name, description and place of residence of the defendant, so far as they can be ascertained; d. Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; e. The facts constituting the cause of action and when it arose; f. The facts showing that the Court has jurisdiction; g. The relief which the plaintiff claims; h. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and i. A statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court fees, so far as the case admits. [O.VII, R.1] Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  85. 85. Rejection of Plaint • Where it does not disclose a cause of action; • Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; • Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; • Where the suit appears from the statement in the plaint to be barred by any law; • Where it is not filed in duplicate; • Where the plaintiff fails to comply with provisions of Rule 9 (fails to • provide copies of plaint). [ O. VII, R 11] Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  86. 86. Written Statement • Pleading include written statement. • Written statement is pleading on behalf of defendant wherein he • gives his defence or reply to the allegation made by plaintiff. • A written statement is pleading therefore should conform to rules of pleading. • WS shall be presented within 30 (maximum 90) days from service of summons. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  87. 87. Contents of Written Statement 1. New facts: New facts must be specifically pleaded. The defendant must raise by his pleading all matters which a. Show the suit not be maintainable, or b. Show that the transaction is either void or voidable in point of law, c. And all such grounds of defence as.[ Order VIII Rule 2] 2. Denial: Denial to be specific. Defendant should not deny generally. But he must deal each allegation of fact to which he does not admit the truth. If is not so denied specifically, it shall be taken to be admitted.[ Order VIII Rule 3, 5] 3. Denial should not be evasive. It should answer the point of substance.[ Order VIII Rule 4] Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  88. 88. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-2 APPEARANCE & NON APPEARANCE OF PARTIES
  89. 89. Introduction • Order IX of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code”) deals with issues as regards the appearance of parties to the suit and consequences apropos their non-appearance. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  90. 90. Order XI Rule 1 • Order IX, Rule 1 of the Code stipulates that parties to a suit are to present themselves before the court on the date fixed in the summons issued by the court to the defendant; summons are issued, firstly, to secure the appearance of the defendant (in person or through pleader) and, secondly, to enable the defendant to answer the claim of the plaintiff. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  91. 91. Order XI Rule 2 • Order IX, Rule 2 of the Code states that, where the plaintiff fails to pay the court- fee or postal charges chargeable for the service of summons to the defendant or fails to present the copies of the plaint as required by Order VII, Rule 9 of the Code, then, the suit of the plaintiff can be dismissed, regards being had to the discretion of the court. An appeal cannot be preferred against an order passed by the court dismissing the suit under Order IX, Rule 2 of the Code; only a revision under Section 115 of the Code can be preferred against such an order dismissing the suit. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  92. 92. Order XI Rule 3 • Order IX, Rule 3 of the Code further states that, where on the date fixed for the hearing of the suit, neither of the parties to the suit appears, then, the suit can be dismissed. Dismissal under this rule does not amount to a decree and no appeal as such lies from it; the plaintiff can either bring a fresh suit or can apply under Order IX, Rule 4 of the Code to set aside the dismissal. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  93. 93. Order XI Rule 4 • Order IX, Rule 4 of the Code stipulates that, when a suit is dismissed under Order IX, Rule 2, or, Order IX, Rule 3, of the Code, then, a fresh suit on the same cause of action is not barred if within limitation. An application for restoration of suit under Order IX, Rule 4 is to be preferred within 30 days of dismissal of the suit. Once the application for setting aside the dismissal is allowed, the defendant is entitled to get notice of restoration and the date of further hearing; the requirement of notice to the defendant is mandatory (and not directory) and non-service of notice is sufficient enough to get the decree set aside. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  94. 94. Order XI Rule 5 • Order IX, Rule 5 of the Code states that, a suit shall be dismissed where the plaintiff after the return of summons being not served, fails to apply for fresh summons within a period of 7 (seven) days reckoning from the date on which the earlier summons were returned as un-served. However, the court shall not dismiss the suit, if the plaintiff satisfies the court that: (a) despite best endeavours, the plaintiff failed to discover the residence of the defendant; (b) defendant is avoiding the service of process; and/or, (c) there is sufficient cause favouring the plaintiff to pray for the extension of the time for the service of summons upon the defendant. Where a suit is dismissed under Order IX, Rule 5 of the Code, the plaintiff is not prevented from bringing a fresh suit. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  95. 95. Order XI Rule 6 • Order IX, Rule 6 of the Code provides for the procedure that is to be adopted when on the first date of hearing of the suit only the plaintiff appears and the defendant does not appear despite the summons being duly served on the defendant, or, summons being duly served on the defendant but not within sufficient time, or, when summons were not duly served. Under Order IX, Rule 6 of the Code, the defendant can be proceeded against ex parte provided summon were duly served upon him within sufficient time. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  96. 96. Order XI Rule 7 • Order IX, Rule 7 of the Code contemplates a situation where by the case was proceeded ex parte since the defendant did not appear before the court of law, or, where the defendant failed to appear before the court of law after filing of the written statement, but, thereafter the defendant appears before the court of law and assigns good cause for his previous non-appearance, and thereby, prays for the setting aside of the ex parte order. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  97. 97. Order XI Rule 8 Order IX, Rule 8 of the Code deals with a situation where by the suit is dismissed in default, for, only the defendant appears before the court of law and the plaintiff fails to appear. Under Order IX, Rule 8 of the Code, a suit cannot be dismissed for non- appearance of the plaintiff if: (a) the defendant admits the whole of the claim of the plaintiff; or (b) the defendant admits the claim of the plaintiff only in part and not in whole; the court, therefore, shall decree the suit accordingly in favour of the plaintiff, as against the defendant. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  98. 98. Order XI Rule 9 • Order IX, Rule 9 of the Code states that, where a suit is dismissed either in part, or, in whole, under Order IX, Rule 8 of the Code, then, a fresh suit on the same cause of action is barred. An application for restoration of the suit under Order IX, Rule 9 is allowable provided it is made within 30 days of the dismissal of the suit. An appeal can be preferred under Order XLIII, Rule 1(c) of the Code against an order rejecting an application under Order IX, Rule 9 of the Code; however, a revision may lie from against an order restoring a suit dismissed in default. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  99. 99. Order XI Rule 10 • Order IX, Rule 10 of the Code provides that where there are more plaintiffs than one, and one or more of them appear before the court of law on the date fixed, while the others do not appear, then, the court may permit the suit to be proceeded as if all the plaintiffs have appeared, or may pass such an order as the it thinks just. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  100. 100. Order XI Rule 11 • Order IX, Rule 11 of the Code provides that where there are more defendants than one, and one or more of them appear before the court of law while the others do not appear, then, the court may permit the suit to be proceeded as if all the defendants have appeared, or may pass such an order as it thinks just. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  101. 101. Order XI Rule 12 • Order IX, Rule 12 of the Code states that when the plaintiff and/or the defendant, who have been ordered to appear before the court of law in person, neither appear nor show sufficient cause for non-appearance, then, such plaintiff and/or defendant are to be subjected to all the Rules as provided for in Order IX of the Code in this behalf, which are as such applicable apropos the plaintiffs and/or the defendants, who do not appear. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  102. 102. Order XI Rule 13 Order IX, Rule 13 of the Code states that an ex parte decree passed against a defendant can be set aside if the defendant satisfies the court on either of the two counts: (a) the summons were not duly served on the defendant, or, (b) the defendant was prevented by any “sufficient cause” from appearing before the court when the suit was called out for hearing. The court has the discretion to set aside the ex parte decree passed against the defendant on such terms as to costs or otherwise (deposit of decretal amount in the court) as the court deems fit in the facts and circumstances of each case. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  103. 103. Order XI Rule 13 Cont. • It is important to note that, the second proviso to Order IX, Rule 13 of the Code states that, the court shall not set aside an ex parte decree merely on the ground of irregularity in the service of the summons in a case where the defendant had sufficient notice of the date of hearing of the suit, and had enough time to appear and answer the claim of the plaintiff. An application under Order IX, Rule 13 of the Code must be preferred within 30 days from the date of the decree, or, where the summons were not duly served, within 30 days from the date of the knowledge of the decree. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  104. 104. Order XI Rule 14 • Order IX, Rule 14 of the Code states that, no ex parte decree can be set aside without notice to the opposite party. Moreover, in the case of, Mahesh Yadav v. Rajeshwar Singh, it was held that, an order setting aside an ex parte decree is a judicial order and therefore, it must be supported by reasons. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  105. 105. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) COMMISSIONS – S. 75 & Order XXVI
  106. 106. Introduction Under CPC, a commissioner is appointed to fulfil certain functions which are essential for the Court, in order to dispense full and complete justice. Section 75 and order 26 of the code provides the key provisions which relates to the commissioner. In this article, we will try to answer the most basic questions which comes to our mind when we begin to understand the concept of issue of commission and appointment of commissioner. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  107. 107. Issue of Commission By The Court - Meaning • Commission is instruction or role given by the Court to a person to act on behalf of the Court and to do everything that the Court requires to deliver full and complete justice. Such person who carries out the commission is known as a Court commissioner. • For example, whenever the Court has to do a local investigation, a commissioner is appointed who conducts the local investigation. Similarly, to record the evidence of a witness who cannot come to the Court for evidence, the Court can issue a commission for recording of such evidence. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  108. 108. Who Can Appoint A Commissioner? • Under CPC, the Court which issues the commission can appoint the commissioner. Section 75, provides that “the Court” can issue commission provided the limitations and restrictions applicable. Therefore, the Court who has to decide the suit can appoint the commissioner. • Commissioner is appointed to carry out the functions for which the commission is issued. Court has the discretionary power to appoint the commissioner and such power can be exercised on the application of any of the parties or the Court can issue the commission suo moto. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  109. 109. Who Can Be Appointed As A Commissioner? • Generally, there is a panel of commissioners which is formed by the High Court in which advocates are selected who are competent to carry out the commission issued by the Court. • The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it. Such a person should have the requisite skills to carry out the commission. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  110. 110. Who Can Be Appointed As A Commissioner? Cont. • It will be a complete waste of time and resources of the Court and the parties if a person who cannot read and understand the accounts and documents is appointed as commissioner to adjust accounts. Similarly, a person who does not have the qualifications to conduct scientific investigation should not be appointed as a commissioner for such task. • The District judge supervises the subordinate Courts who have to take special care while appointing a commissioner. The same person should not be appointed by the Court in all commissions and a person who hangs about the Court should not be appointed. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  111. 111. What Is The Procedure For Appointment Of Commissioner? 1. Every High Court has the power (Article 227) to make rules and regulations which is to be followed by the subordinate Courts. Procedure for appointment of a commissioner is provided in High Court rules each state. 2. For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides procedure for appointment of Commissioner. The following procedure is followed by the Delhi High Court: • A panel of not more than 4 commissioners is to be formed which consists of young persons including a lady lawyer, appointed by the Court for recording of evidence. • The District Court notifies the bar about the number of vacancies of commissioners and the bar forward the applications received for the same to the Court who then forwards it to the High Court with their recommendation. • The term of such appointment is generally 3 years which can be extended by an order of the High Court but no commissioner can be appointed after 6 years of such appointment. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  112. 112. Functions of Commissioner • To examine witnesses: Order 26 Rule 1-8 R1 - Cases in which Court may issue commission to examine witness R2 - Order for commission R3 - Where witness resides within Court's jurisdiction R4 - Persons for whose examination commission may issue R5 - Commission or request to examine witness not within India R6 - Court to examine witness pursuant to Commission R7 - Return of commission with depositions of witnesses R8 - When depositions may be read in evidence Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  113. 113. Functions of Commissioner Cont. • To make local investigations: Order 26 Rule 9-10 R9 - Commissions to make local investigations R10 – Procedure of Commissioner • To adjust accounts: Order 26 Rule 11-12 R11 - Commission to examine or adjust accounts R12 - Court to give Commissioner necessary instructions. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  114. 114. Functions of Commissioner Cont. • To make partition: Order 26 Rule 13-14 R13 - Commission to make partition of immovable property R14 – Procedure of Commissioner • To hold investigation: Order 26 Rule 10-A • To sell the property: Order 26 Rule 10-C • To do ministerial work: Order 26 Rule 10-B • Powers of the commissioner: Order 26 Rule 16-18 R16 – Questions objected to before the Commissioner. R18 – Parties to appear before Commissioner Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  115. 115. Whether The Commissioner Will Be Entitled To A Remuneration? • There is no provision in the CPC which expressly provides for remuneration to the commissioner but Rule 15 of order 26 provide for the expenses which might be incurred by the commissioner. • While issuing commission, the Court directs the applicant to deposit a sum of amount which can be used by the commissioner to account for the expenses which might be incurred by him while carrying out the commission. • The Court has the discretionary power to make directions make any other direction regarding the remuneration Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  116. 116. What Are The Limitations On The Commissioner? • Commissioner has to assist the Court in carrying out the judicial functions but he cannot do the judicial functions on behalf of the Court. For example, a commissioner cannot value the suit property because it is a judicial function and only the Court has the power to do so. A commissioner can assist the Court by producing the documents such as plans of the suit property by which the Court can ascertain the value. • It is not the objective of issuing a commission to procure evidence for the parties. Therefore, if a party has the apprehension that the opposite party will tamper with a document which is relevant to the case, the Court should not appoint a commissioner to seize such documents. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  117. 117. Evidentiary Value Of The Report Submitted By The Commissioner? • According to order 26 rule 10 (2) of the CPC, the report and the evidence submitted by commissioners forms a part of the record but if the evidence is submitted without the report of the commissioner, such evidence does not form part of the record. • The report forms an important part of the case and can only be challenged on sufficient grounds. The Court has the final say on how much reliance should be placed on the report submitted by the Court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  118. 118. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) General Provisions relating to Appeal, Appeal from Original & Appellate Decrees
  119. 119. General Provisions Relating To Appeal Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  120. 120. Introduction • Appeal can be defined as judicial examination of the decision by a higher court of the decision of the inferior court. Section 96-99 and Rules 23 to 33 of Order 41 enumerate the powers of an appellate court while hearing first appeals. Further Section 100-103, 107-108 and Order 42 deals with Second Appeal. • Every person has been given right the of appeal against decree. However, right of appeal is not an inherent right. Rather it can only be availed where it is expressly granted by law. Appeal lies against a decree and not against a judgment. Rights of appeal are substantive right and they are not mere matters of procedure. Further right of appeal is governed by the law prevailing at the date of the suit and not by law that prevails at the date of the decision or at the date of filling of the appeal. An appeal lies under section 96 CPC only from a decree because the decree marks the stage at which the jurisdiction of the court which the appeal is made begins. As such unless a decree is drawn up, no appeal lies from a mere finding, but if the finding amount to a decree, an appeal would lie. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  121. 121. Section 107 – Powers Of Appellate Court (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  122. 122. Section 108 - Procedure In Appeals From Appellate Decrees And Orders The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals— (a) from appellate decrees, and (b) from orders made under this Code or under any special or local law in which a different procedure is not provided. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  123. 123. Appeals From Original Decree Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  124. 124. Introduction • As stated above appeals from original decrees are known as first appeal. The expression “appeal” has not been defined in the Code of Civil Procedure. Right of appeal is the right of entering a superior court and invoking its aid and interposition to redress the error of the court below. Thus, appeal is “the judicial examination of the decision by a higher court of the decision of an inferior court”. • Explaining the concept of appeal in Bhil Kanji Bhagwan v. Bhil Karsan Bijal (2003 GLH (23) 285) the Gujarat High Court observed: “Appeal is an application or petition to a higher authority or a Court of law for reconsideration of the decision of a lower authority or an inferior Court of law. It is an application or a proceeding for review to be carried out by a higher tribunal of a decision given by a lower one. An appeal is one in which the question is. whether the order of the Court from which an appeal is brought was right on the materials which that Court had before it.” Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  125. 125. S. 96 - Appeal From Original Decree (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  126. 126. S. 97 - Appeal From Final Decree Where No Appeal From Preliminary Decree Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  127. 127. S. 98 - Decision Where Appeal Heard By Two Or More Judges (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges. (2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed : Provided that where the Bench hearing the appeal is composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it. (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters to patent of any High Court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  128. 128. S. 99. - No Decree To Be Reversed Or Modified For Error Or Irregularity Not Affecting Merits Or Jurisdiction No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal 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 : Provided that nothing in this section shall apply to non-joinder of a necessary party. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  129. 129. Order XLI – Appeals From Original Decrees R1. Form of appeal. What to accompany memorandum. Contents of memorandum. R2. Grounds which may be taken in appeal. R3. Rejection or amendment of memorandum. R3A. Application for condonation of delay. R4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. R5. Stay by Appellate Court. Stay by Court which passed the decree. R6. Security in case of order for execution of decree appealed from. R8. Exercise of powers in appeal from order made in execution of decree. R9. Registry of memorandum of appeal. Register of appeal. R10. Appellate Court may require appellant to furnish security for costs. Where appellant resides out of India. R11. Power to dismiss appeal without sending notice to Lower Court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  130. 130. Order XLI – Appeals From Original Decrees R11A. Time within which hearing under rule 11 should be concluded. R12. Day for hearing appeal. R13. Appellate Court to give notice to Court whose decree appealed from. Transmission of papers to Appellate Court. Copies of exhibits in Court whose decree appealed from. R14. Publication and service of notice of day for hearing appeal. Appellate Court may itself cause notice to be served. R15. Contents of notice. R16. Right to begin. R17. Dismissal of appeal for appellant's default. Hearing appeal ex parte. R18. Dismissal of appeal where notice not served in consequence of appellant's failure to deposit costs. R19. Re-admission of appeal dismissed for default. R20. Power to adjourn hearing, and direct persons appearing interested to be made respondents. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  131. 131. Order XLI – Appeals From Original Decrees R21. Re-hearing on application of respondent against whom ex parte decree made. R22. Upon hearing respondent may object to decree as if he had preferred a separate appeal. Form of objection and provisions applicable thereto. R23. Remand of case by Appellate Court. R23A. Remand in other cases. R24. Where evidence on record sufficient, Appellate Court may determine case finally. R25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. R26. Findings and evidence to be put on record. Objections to finding. Determination of appeal. R26A. Order of remand to mention date of next hearing R27. Production of additional evidence in Appellate Court. R28. Mode of taking additional evidence. R29. Points to be defined and recorded. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  132. 132. Appeals From Appellate Decree Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  133. 133. Introduction • The expression ‘appeal’ has nowhere been defined in the Code of Civil Procedure, 1908. An appeal, according to Black’s Law Dictionary is “The complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse. The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial.” In a similar manner, a second appeal lies against the decree passed by the lower court that heard the first appeal. An appeal is a statutory and substantive right and not merely a legal right. The recourse to it can only be taken when it is expressly prescribed by the statute. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

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